Tunneling into the Castle

Friday, 24 February, 2017 - 8:00 am

c.jpgTunneling into the Castle  

Immediately after the great revelation at Sinai, the Torah continues with the portion of Mishpatim, the logical laws which govern the dealings between people. The Mishpatim differ from the Chukim, the commandments which are categorized as decrees.

Yet, the Mishpatim are part of the Torah. While they may seem similar to laws in other systems of law, upon deeper examination we find the Torah’s values embedded within them.

We will examine one law in the portion of Mishpatim, and compare and contrast the Torah’s approach with the legal system in the United States.

Suppose I am lying in bed, in the middle of the night, and wake up in terror to see an intruder trying to burglarize my home. Suppose I have the option to escape my home unnoticed, am I allowed, instead, to use deadly force to prevent the theft?

Do I have to retreat, if I am safely able to do so, or may I kill the intruder to protect my home?

In most states, including Connecticut, the homeowner may use deadly force to protect his home, the legal basis for this is called the Castle Doctrine: 

The Castle Doctrine is a common law doctrine stating that an individual has no duty to retreat when in his or her home, or “castle,” and may use reasonable force, including deadly force, to defend his or her property, person, or another. Outside of the “castle,” however, an individual has a duty to retreat, if able to do so, before using reasonable force…

Forty-six states, including Connecticut, have incorporated the Castle Doctrine into law. Connecticut law justifies the use of reasonable physical force, including deadly force, in defense of premises. Connecticut courts have recognized the common law privilege to challenge an unlawful entry into one's home, to the extent that a person's conduct does not rise to the level of a crime. Deadly force is justified in defense of one's property by a person who is privileged to be on the premises and who reasonably believes such force is necessary to prevent an attempt by the criminal trespasser to commit any crime of violence.[1]

The law, obviously, permits one to kill in self defense. The Castle Doctrine, however, goes much further: it allows one to kill in order to prevent an intruder from entering and damaging his home. The homeowner does not have to believe that his life is at risk to be protected by the Castle Defense; as long as the homeowner reasonably believes that the intruder wants to commit arson or burglary, he would be protected by the castle Doctrine if he kills the intruder. 

What would the Torah say about the Castle Doctrine? Would the Torah allow for defending property at the expense of the intruder's life? In this week’s Parsha the Torah states:

If the thief is discovered while tunneling (breaking in), and he is struck and dies, (it is as if) he has no blood[2]. 

Like most laws in the Torah, this law is written in concise language, the details and explanations are elaborated on in the Talmud. Rava, the great Talmudic sage, poses the question[3]: what is the reason for the law of the intruder who tunnels? He then offers the following explanation: the intruder enters the home, despite knowing that a person will try to protect his own property. This is ample evidence that the intruder is prepared to use force against the homeowner. Therefore, says the Torah, the homeowner has the right to kill the intruder; as the Torah's position is "if someone comes to kill you anticipate ("get up early" to) him and kill him first".

Rava explains that the law has nothing to do with the right to protect one's property, but has everything to do with the right of self defense.

Rava’s great innovation is that we consider the intruder a threat to life even if it seems that all he wants is jewelry, and he has not yet shown any sign of wanting to attack the homeowner. We don’t have to wait for the escalation of violence, as we are permitted to assume that the intruder will in fact use deadly force, when the homeowner will try to stop him from stealing; the homeowner, therefore, may use deadly force first to protect his life.

In other words, merely entering a home in order to steal, with the expectation that the homeowner is home, is in itself the greatest act of aggression that permits the homeowner to kill in self defense.

[Jewish Law offers important exceptions to the right to kill an intruder: for example, Maimonides rules:Different rules apply with regard to a thief who stole and departed, or one who did not steal, but was caught leaving the tunnel through which he entered the home. Since he turned his back on the house and is no longer intent on killing its owner, he may not be slain.”[4]]

In summary: although the Torah’s approach seems similar to the Common Law’s Castle doctrine, there is a fundamental difference between them. Namely, the Castle Doctrine claims that in some cases one may protect his own property at the expense of the intruder's life, the Torah, on the other hand, says no such thing. Although the Torah would allow one to kill an intruder, the rationale has nothing to do with protecting property. Rather, since we know the intruder is prepared to threaten your life, therefore, you may protect your life at the expense of the intruder's life.



[2] Exodus 22, 1.

[3] Talmud Tractate Sanhedrin 72a: “Rava said: what is the reason for the law of breaking in? Because it is certain that no man is inactive where his property is concerned; therefore this one [the thief] must have reasoned, ‘If I go there, he [the owner] will oppose me and prevent me; but if he does I will kill him.’ Hence the Torah decreed, ‘If someone comes to kill you, anticipate him and kill him first’.”

[4] Maimonides, Laws of Theft, Chapter 9 Halacha 11. See Chapter 9 for additional important exceptions.  

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