If the thief is discovered while tunnelling in, and he is struck and dies, there is no blood-guilt on his account. If the sun shone upon him, there is blood guilt on his account …… (Shemos 22;1-2)
It’s 2am. You hear someone downstairs. What can you do? Press the bedside panic button, most sensibly. But what happens if you want to pick up an implement and proceed downstairs? Is the law on your side when acting in self-defence? Is an Englishman’s home really his castle?
The householder’s dilemma was highlighted in a famous case in recent years when one Tony Martin was imprisoned for shooting an intruder in the back. That ruling seemed to be slanted in favour of the housebreaker. This week the British Government moved to clarify confusion. They issued guidelines which restore the balance by affirming that householders can attack and even kill intruders in their home.
Only if they act in revenge or set a trap do house-holders risk prosecution. What does Jewish law say? ‘Halachic man’ – is his home his castle? An examination of the Chumash source in our Sedra this week indicates that the civil law contains echoes of our ancient divine biblical law.
The verses (as clarified by notes to Artscroll Chumash) address two situations: 1. The verse “If the thief is discovered tunnelling in and he is struck and dies, there is no blood-guilt on his account”, gives permission to the householder to defend himself – even at the cost of the intruder’s life. This is based on the Jewish law principle of rodef, pursuer, which directs that if someone comes to kill you, act first and kill him. The housebreaker is automatically considered a pursuer. The rationale for a householder having the unfettered right of self-defense is articulated by Rava in Gemoro Sanhedrin 72a: Since it is obvious that a householder will fight to protect his property, it may be assumed that the thief is ready to overpower him and kill, if need be.
2. There is a second verse, however, which limits the householder’s permission to attack an intruder. An allegorical verse – “If the sun shone upon him there is blood guilt on his account” – which means: If it is as clear as daylight that the intruder intends no harm then there is no permission to kill him. This teaches that where it is clear that the intruder does not intend to kill, or even to cause injury, then the householder has no licence to kill since this is no longer a matter of self-defence. An example of such clarity would be if a father breaks into the house of his son – in such a case the parent is clearly lacking murderous intent.
In the regular, case, however, faced with an unknown intruder, Jewish law would be fully behind the attempts of the householder to defend himself. This would not extend however, to permission to shoot the intruder in the back as he made his escape.
