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.

Minḥat Hinnukh cogently argues that the commandments expressed in Leviticus 19:16 and Deuteronomy 22:27 are incumbent only upon Jews and hence cannot establish obligations upon non-Jews who are bound only by the provisions of the Noachide Code. Minḥat Hinnukh does, however, adduce another source which serves as a basis for derivation of the "law of the pursuer" and which is applicable to Noachides as well. The Gemara, Sanhedrin 72b, cites the verse "Whosoever sheddeth the blood of man, by man shall his blood be shed" (Genesis 9:6) as granting dispensation to preserve the intended victim by eliminating the pursuer. The phrase "by man" is understood as calling for the shedding of blood "by any man," i.e., by persons witnessing the act, rather than as a reference to punitive measures to be undertaken subsequent to the act. Thus the Gemara understands the verse as referring, not to an act of homicide which has already been committed, but to the prevention of a would-be homicide. The verse, which was addressed to Noah, establishes a law not only for Jews, but for Noachides as well. The general principle is that any commandment given prior to Sinai is binding upon Noachides even subsequent to the Sinaitic revelation provided it has been reiterated at Sinai. The law of the pursuer is indeed repeated in Exodus 22:1. In the course of the same discussion, the Gemara, Sanhedrin 72b, states that the statute formulated in this passage, which provides that a thief who breaks into a dwelling during the night may be smitten without penalty, is based upon the assumption that the thief is intent not only upon larceny but will commit homicide as well if he meets resistance. Hence the thief is in effect a pursuer and may be put to death if necessary by virtue of the "law of the pursuit." Tosafot, Sanhedrin 72a, commenting on the redundancy of the multiple scriptural sources for the "law of pursuit" states that Exodus 22:1 serves only to establish a license for execution of the pursuer but does not make such a course of action obligatory. The obligation, according to Tosafot, is expressed solely in Deuteronomy 22:27. Minḥat Hinnukh assumes that Tosafot intends this comment to apply as well to the interpretation of Genesis 9:6, which presents the same difficulty. The phrase ba-adam damo yishafekh, according to Minḥat Hinnukh's understanding should thus be translated "by man may his blood be shed" and serves to grant permission to put the aggressor to death when necessary to preserve the life of the victim, but does not mandate such action.¹³R. Shlomoh Zevin, Le-Or ha-Halakhah, p. 17, argues against Minḥat Ḥin nukh’s position and maintains that Noachides are not merely permitted, but are obligated, to execute the pursuer in order to preserve the pursued. He argues that this is evident from the phrase “domo yishafekh” which he maintains must be translated “by man shall his blood be spilled.” It would, however, appear that the question raised by Tosafot, Sanhedrin 73a, s.v. af, with regard to the earlier cited verse which speaks of the ba ba-maḥteret applies with equal validity to this verse. It would appear that Tosafot’s statement that the verse establishes permission rather than obligation applies to the subsequently cited verse “ba-adam damo yishafekh” as well. Accordingly, concludes Minḥat Hinnukh, Noachides are justified not only in acting in self-defense but may eliminate a threat to the lives of others as well, even though, in contradistinction to Jews who are bound by Sinaitic revelation, they are under no obligation to do so.

However according to what it seems, it is not understood that if an Israelite came and began to be wicked to pain his fellow with his bad words, that the listener should not answer him. For it is not possible for a man to be 'like a stone that cannot be overturned' - moreover, that he will be in his silence like one who concedes to the insults. And in truth, the Torah did not command for a man to be like a stone, silent to those who insult him and to those who bless him alike. Rather it commands us to distance ourselves from this trait and that we should not begin to quarrel and insult people. And like this, every man will be saved from all this - since one who doesn't quarrel will not be insulted by people, except for [by] complete fools; and we should not pay attention to fools. And if perhaps some insulting person will force him to answer his words, it is fitting for a wise person to reply to him in a roundabout and pleasant way, and not become very angry; as 'anger rests on the bosom of fools.' And he will [so] save himself before those who listen to his insults, and he will cast the burden upon the one who insults [him]; and this is the way of the best among men. And we should learn this thing - that it is permitted to us to reply to a fool - according to what it seems from how the Torah permitted one who comes to rob secretly to be preceded and killed (Exodus 22:1). As there is no doubt that a man is not obligated to bear harm from his fellow; as he has permission to save himself from his hand - and similarly from the words of his mouth that are full of deceit and cunning - with anything that he is able to save himself from him. However there is a group of people the righteousness of which rises so much that they do not want to include themselves in this teaching - to reply something to those that insult them, lest anger will overpower them and they become involved in the matter more than is necessary. And about them they, may their memory be blessed, said (Shabbat 88b), "Those who are humiliated but do not humiliate [back], who hear their insult and do not reply - about them the verse states (Judges 5:31), 'but those who love Him are like the sun coming out in its strength.'"