BY SHLOMO BRODY – DECEMBER 3, 2010
The right to self-defense is well established within Jewish law as manifested by the law of ‘rodef’ (the pursuer).
The right to self-defense made headlines here in 2007 after Shai Dromi, a Negev farmer, fatally wounded a burglar. In his case, he shot the intruders after attempting to verbally scare them and aimed to only wound them. The location of the hit, however, led to massive bleeding. The case led to a rethinking of Israeli law on the matter which, to a large extent, drew upon Jewish legal sources. This essay will theoretically explore the discussion within Jewish legal theory, with the caveat that readers should clarify the relevant laws for their own locales.
The right to self-defense is well established within Jewish law as manifested by the law of rodef (the pursuer). The sages contended that the verse “You shall not stand idly by the blood of your neighbor” (Leviticus 19:16) not only demands saving a friend from drowning or other dangerous situations but further dictates that one stop an assailant from committing murder (Sanhedrin 73a). This right was extended to both onlookers and threatened victims alike and was also applied in cases of sexual assault. The status of rodef was further applied to a fetus whose mother is endangered by the pregnancy, thereby mandating an abortion, even as the fetus certainly has no malicious intent (CM 425:2-3).
A more controversial extension of the rodef principle was applied in medieval times to informants to governments (moser) that would unjustly penalize a convicted Jew to the point of endangerment (CM 388:10). Rabbi Moshe Isserles even applied the rodef status to money forgers if the local rulers would extend the wrath of their punishment upon the entire community (CM 425:1). Many decisors, however, believe that such calculations are no longer applicable in Western democracies that treat Jews fairly (Tzitz Eliezer 19:52). Equally significantly, Rabbi Yehuda Henkin (Bnei Banim 3:33) and Prof. Eliav Schochetman (Techumin 19) have compellingly argued (after the Yitzhak Rabin assassination) that rodef cannot be applied to democratically elected government officials, even if one deems their policies to be misguided and dangerous.
The license to kill an attempted intruder (haba bamahteret), however, stems from a different biblical passage. “If the thief is seized while tunneling and he is beaten to death, there is no bloodguilt in his case. If the sun has risen on him, there is bloodguilt in his case” (Exodus 22:1-2). Some biblical commentators understood the difference in the two cases to be a matter of timing. If the thief is killed during the act of the robbery, the killer is not liable to punishment; but once he has emerged from the house and the intensity of the moment has dissipated, one may no longer kill him (Hizkuni).
The sages, however, understood the verse allegorically, contending that if it is clear (as the sun) that he has nonviolent intentions, one may not kill the intruder. (The paradigmatic example of such a nonbelligerent intruder is a father intending to steal from his son’s home; while horrible, the assumption is that he would never physically harm his child.) Otherwise, the intruder may be killed with impunity, following the legal principle “If one comes to slay you, kill him first” (Sanhedrin 72a). The sages stipulated that people do not remain passive when their property is attacked. As such, a robber expects a confrontation and comes prepared to kill the owner, thereby giving him the status of a rodef (Geneiva 9:8).
This rationale led some to contend that a daytime intruder (when the sun literally shines on him) would not garner this status, since he hopes to avoid confrontation by entering when the owner is not home (Rabad) or because it will lead to his identification (Ramban). While Maimonides disagreed with this assertion, some have accepted it as normative law (Bach CM 425).
One major distinction to the intruder case is that unlike a classic rodef scenario, in which the law requires a person to attempt to save the threatened life (Rotzeah 1:6), the homeowner is not obligated to kill the intruder (Geneiva 9:9). He has permission to do so, and is not held liable for this death, but he may refrain from taking such action (Afikei Yam 2:40). Indeed, some have contended that many intruders would choose to flee if confronted, and that the Torah only allowed for their killing as a punishment for their creating a potentially violent situation (Ran Sanhedrin 72a).
Following public outrage over the arrest of Dromi (who was ultimately acquitted), the Knesset in 2008 adopted a law which removed the requirement for homeowners to prove they were under direct threat, even as it continued to forbid killing when such a response is entirely excessive to deter the robber. The case thus became an example of the potential impact of Jewish norms on Israeli law.
The writer, online editor of Tradition and its blog, Text & Texture (text.rcarabbis.org), teaches at Yeshivat Hakotel. [email protected]
