Halakhah zu Schemot 22:1

The Halachah of rodeif is similar to the Halachah of ba b'machteret that is presented in Shemot 22:1. The Torah teaches that one may kill a thief who is tunneling into one's house, since one may assume that the thief is armed and constitutes a danger to life. The Torah permits the householder to kill the thief in self-defense. Chazal (Sanhedrin 72a) phrase this rule accordingly, "If someone comes to kill you, act first and kill him." The Gemara (Sanhedrin 73a), in turn, presents the sources in the Torah that teach that one must kill someone who is attempting to kill another person. This rule applies not only to self-defense but also to defending the lives of others. It applies even to someone who engages in sexual assault (Sanhedrin 73a). Thus, if no other option is available, one must kill someone who is attempting to murder or rape.⁶²For a discussion of the subtle distinctions between the cases of rodeif and one who tunnels into a house, see my Peninei Torah (Sanhedrin pp. 7-8).

To be sure, wars of self-defense are recognized by Halakhah, not only as permissible, but as mandatory in nature. Such military action is the sole form of warfare requiring neither a king, Sanhedrin nor urim ve-tumim. Nevertheless, self-defense on the part of an individual is justifiable on entirely different grounds. Self-defense is recognized by Jewish law as justifiable homicide. Not only is the taking of the life of an aggressor sanctioned when necessary to preserve one's own life but such action is obligatory. Moreover, unlike common law, Judaism regards such intervention as also mandatory in order to save the life of a third person who is putatively the innocent victim of an aggressor.¹⁵See Rambam, Hilkhot Roẓeaḥ 1:9. There also are situations in which homicidal intent is imputed to a malevolent individual even in the absence of overt demonstration of murderous intent. The Bible declares, "If a thief be found breaking in and he be smitten so that he dies, there shall be no bloodguiltiness for him" (Exodus 22:1). The verse refers to a burglar who has designs only upon the property of his victim. Since he is not intent upon bloodshed, killing the perpetrator would consititute force that, under the circumstances, would appear to be entirely disproportionate. Yet the Gemara, Sanhedrin 72a, elucidates the biblical exoneration of the victim in his use of lethal force with the explanation, "It is to be presumed that a person [faced with loss] of his money does not restrain himself. This [perpetrator] says to himself, 'If I go [there], he will oppose me and not let me [steal his property]; if he opposes me, I will kill him.' "

The law of pursuit has two distinct formulations. When the pursuer is intent upon the death of his victim there is an absolute duty to eliminate such threat. Even a bystander must intervene and dare not plead that he declines to save one human life at the cost of another. Rambam, Hilkhot Rozeaḥ 1:9, writes, "This, too, is a negative commandment: not to spare the life of a pursuer." The positive obligation is cited by Rambam, Hilkhot Rozeaḥ 1:7, and predicated upon the verse "And you shall cut off her hand, your eye shall not pity her" (Deuteronomy 25:12). Yet another formulation of the law of pursuit is found in Exodus 22:1: "If a thief be found breaking in, and be smitten that he die, there shall be no blood shed for him." Scripture here provides that one who kills a thief incurs no punishment. The Gemara, Sanhedrin 72a, explains that it is to be assumed that a person will not permit his property to be seized unlawfully without offering resistance. The thief is deemed to be well aware of this instinctive psychological reaction and hence it is presumed that he is prepared to use lethal force should he meet with resistance in carrying out his design. Accordingly, the thief is presumed to be a "pursuer" whose life is forfeit. However, in codifying this law, Rambam, Hilkhot Geneivah 9:7, states only that "All persons have permission to kill [the thief] whether on a weekday or on the Sabbath" but fails to posit an absolute obligation to eliminate the thief as a pursuer. It may be posited that the distinction between the thief who is the subject of this ruling and the aggressor described in Hilkhot Rozeaḥ whose life is always forfeit lies in the fact that the latter is actually intent upon an act of aggression while the former, although he may become an aggressor, is not yet engaged in an actual act of aggression. Elimination of the thief is a preemptive act. Such an act is permissible but is not mandatory.