Parashat Mishpatim (Exodus 21:1 – 24:16) is an early attempt to create a comprehensive law code and, thus, is a miscellany of obligations and
prohibitions. It observes: “If a thief is found tunnelling and is beaten to death there is no bloodguilt but, if the sun has risen, there is bloodguilt and restitution must be made….”
This states that if the burglary takes place in daylight and it is assumed the burglar had no intent other than to steal, the householder could have prevented the burglary or further harm without killing the thief.
In the event the burglar loses his life, compensation is payable, which affirms the general Torah principle of the sanctity of human life – even a burglar – over the protection of property.
A thief at night, however, is a different matter from both the perspective of the burglar and of the householder. It is assumed that at night, a residence will be occupied by sleeping persons who, when awoken, cannot be sure of the intention of the burglar, who might respond with violence if disturbed.
It is further assumed the burglar will fight to get away, and therefore, the legal condition of ‘imminent threat’ justifies the householder’s claim of ‘lawful self-defence’.
In English law, it is similarly assumed that a residence is occupied at night-time, which aggravates the offence.
A householder may take ‘reasonable’ steps to protect him or herself, other residents and indeed one’s property, but ‘reasonable’ is always a matter of judgment and circumstances.
The Torah lays down a sensible and sensitive teaching by which, while every life including the burglar’s has value, there are circumstances where a householder may claim the necessity of taking that life.
- Danny Rich is Senior Rabbi of Liberal Judaism and has sat as a magistrate for more than 20 years