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PARASHAT MISHPATIM 5758
If a thief is found burrowing his way into a house and he is struck dead [by the owner of the house], the one who killed him is not guilty of murder [since he killed out of self-defense]. [However,] if the sun shone upon [the thief], one who kills him *is* guilty of murder.
"If the sun shone upon [the thief]" - This is but a metaphor,
meaning, "If it is as clear that the robber is at peace with the
homeowner as it is clear that the sun brings peace to the world."
That is, if it is clear that the robber will not kill even should
homeowner stand before him to protect his property -- for instance,
if a father is found trying to steal from his son -- in such a
case... it *is* considered murder if the thief is killed."
The Torah permits a person to act in self-defense when his life is endangered. He may even take the life of his adversary, if there is no other way to protect himself. When a robber is found burrowing into someone's apartment, it is assumed that the robber does not plan on allowing anything deter him from his plans. If he bumps into the homeowner, the thief will not think twice about doing away with him. For this reason, it is permitted to kill the thief on sight.
The Torah appears to limit this law to nighttime robbers. However, Rashi, based on the Gemara (Sanhedrin 72a) explains that this is not so. A would be robber/murderer may be killed in an act self-protection both by day and by night (Mechilta ad loc.). Rather, if it is "as clear as day" that the homeowner's life is *not* in danger, he may not slay the robber. The Torah's mention of day is to be understood as no more than an idiomatic expression.
We find numerous other instances in which Chazal teach that the words of a particular verse are not to be taken literally. Another prominent example of this concept, also appearing in this week's Parasha, is:
If a person smites another with a stone or a fist, and the person that is attacked does not die immediately but falls ill, if he [eventually] arises and walks outside leaning on his walking stick, the attacker is exonerated and is not judged to be a murderer. (That is to say, until the attacked party is healed, the attacker is taken into custody. If the attacked dies, the attacker *is* judged a murderer).
"On his walking stick" - that is, in his full health and strength.
Words of the Torah, and Mitzvot, should not be understood
metaphorically except for three instances, which Rebbi Yishmael
took to be parables... (1) "if he arises and walks outside leaning
on his walking stick" - [not really with his walking stick, but]
in his full health -- for even if he is walking with a stick he may
still be sick from the original blow. The verse here is referring
to his own body, which is supporting his weight just as a walking
stick does. Similarly (2) "If the sun shone upon [the thief]"....
The third instance (3) is [in Devarim 22:17, see Rashi there].
Indeed, the Rambam uncharacteristically makes a point of stressing, in his Halachic composition, that these verses must be understood in a non-literal fashion (Hil. Geneivah 9:8-10; Hil. Rotze'ach 4:4).
However, Talmudic and Midrashic sources notwithstanding, other early commentators insist that the above verses may indeed be understood in a most literal fashion.
It would appear to me that even though the sages explained the
words "If the sun shone upon him" metaphorically... nevertheless,
the verse does not lose its literal meaning. By day, it is not
permitted to kill the robber since the robber probably meant to run
away immediately. It is only a night-thief who would spend time in
the house collecting a large amount of money or killing the owner
of the house. He knows that the owner is in the house, and he comes
to kill or be killed, while a day-thief assumes that the owner is
not home, and plans on making a quick getaway.
According to the Ra'avad, there is good reason to differentiate between a day-thief and a night-thief; the homeowner's life is endangered only by the latter. The Ramban (on the Torah ad loc. -- and Rabbeinu Bachye as well) proposes a similar interpretation of the verse, suggesting that a day-thief will not kill, for fear of being recognized and tried for his crime.
The Ramban (and Chizkuni) proposes a similar, literal interpretation of the verse about the walking stick as well. The verse indeed means that if the person who was attacked walks outside with a *cane*, it is assumed that he is healthy. If he only walks with the help of a cane *inside* the house, he probably has still not recovered. But if he walks outside, in the street, he has probably recovered enough that his life is no longer in danger (and therefore his assailant cannot be classed as a murderer). It is only to be expected for him to still feel somewhat weak and to support himself with a cane.
The Ramban and Ra'avad do not mean to argue with the Midrashim cited above. Rather, as the Ramban specifies, it is their opinion that the simple, literal understanding of the verse is but *slightly modified* by the exegetical interpretation. The verse is not stating an absolute fact, but rather giving the *common example* of a certain fact. *Commonly*, the day-thief will not kill and the night-thief will. It is not day or night that determines the law of whether or not the thief may be killed, though, but rather the readiness of the thief to kill. Similarly, not always will we assume that a person has recovered just because he walks out with a cane. However, *normally* the life of a person who does so is no longer endangered.
The basis for the Ramban and Ra'avad's approach is the Talmudic axiom that, biblical exegesis notwithstanding, "a verse does not lose its literal meaning" (Shabbos 63a). The Magid Mishneh (Hil. Geneivah 9:8) poses a number of questions to the Ramban and Ra'avad's interpretation of this Talmudic dictum, two of them again from this week's Parasha:
(a) If a woman, while defending her husband from another man, reaches for the assailant's private parts, "You shall *sever her hand*." The Gemara (Bava Kama 8a) interprets this to mean that she should simply *pay* him for embarrassing him. (b) One who damages another's eye, must pay "an eye for an eye" (Shemot 21:24). Our sages (Bava Kama 83b) tell us that the assailant's eye is not to be gouged out; rather he must simply pay the his victim for the damages that was incurred. (c) If a person does not take proper care of his ox (which has already killed three times in the past), and it kills someone, "the ox must be stoned to death, and its owner is put to death as well" (Shemot 21:29). According to the Talmud, this means that the owner must simply pay an expiatory compensation to the family of the victim (Sanhedrin 15b). How will the Ramban and Ra'avad justify the literal meanings of these verses?
Actually, upon further study none of these verses pose serious problems for the Ramban and Ra'avad's approach. (a) The Rambam and Ra'avad openly explain the verse which discusses severing the woman's hand to be discussing a woman who is threatening the *life* of her husband's assailant. In such a case, it is indeed permitted for the assailant to save his life be severing her hand (Rambam and Ra'avad Hil. Rotze'ach 1:7). (b) As we explained above (section II), the Ramban and Ra'avad agree that the exegetical interpretation changes somewhat the literal meaning of the verse. However, they propose that it does not *entirely* uproot the literal meaning. It simply *modifies* it from being read in its full literal sense. If so, the verse that says "an eye for an eye" can easily be read "an eye must be *given to the victim* in return for his eye [which was damaged]." Since it is not possible to return a physical eye, the intention of the verse is clearly that the victim must be compensated monetarily. (c) As Rashi (in a comment on the Torah ad loc.) explains, the owner of the ox is indeed dealt a death penalty. He is punished with death *at the hands of heaven*, unless he compensates the victim's family as required
Rav Reuven Margolies (ha'Mikra veha'Mesora, ch. 16 footnote #1) points out that the Rambam and Ra'avad, who argue about whether a verse may be understood metaphorically, are consistent with their respective opinions regarding another matter.
When the Mashiach comes, explains the Rambam (Hil. Melachim 12:1), do not expect the world to change physically. The physical world will continue to function exactly as it does today. What does the prophet mean by saying that "The wolf will live with the lamb..." (Yeshayah 11:6)? He means that the Jewish people will live side by side with their former gentile antagonists, who will repent and follow the true and just ways of Hashem. The Ra'avad (ibid.), however, refuses to accept this metaphoric interpretation of the verse, since "the Torah says, 'I shall cause all harmful animals to cease from the earth'" (Vayikra 26:6 -- see "Torah from the Internet," Parashat Bechukotai).
Once again, the Rambam is obviously willing to accept a metaphoric interpretation of a biblical verse, based on the Midrashic interpretation of a parallel verse in Yeshayah (see Targum ad loc.), as the commentaries on the Rambam point out. However, the Ra'avad does not accept this as viable, since "a verse does not lose its literal meaning."
We may add another observation. It would appear that the Rambam and the Ra'avad and Ramban each follow their respective opinions in this matter as expressed in the Rambam's book of Mitzvot.
By way of introduction to his count of 613 Mitzvot, the Rambam lays down 14 rules of thumb for counting Mitzvot. The Rambam's second rule in that list is that the count of 613 does not include laws that are learned from the Torah through the application of the 13 Principles of Biblical Exegesis. Those laws fall into the realm of the Oral Law ("Torah she'Be'al Peh") and do not count towards the 613, because they are not based on the literal meaning of the verse and "a verse does not lose its literal meaning."
The Ramban (and Ra'avad and nearly every other major commentator) takes strong exception to the Rambam's contention that "a verse does not lose its literal meaning" precludes the exegetical interpretation of the verse. That is not what our Sages meant, exclaims the Ramban (end of comment #27). "A verse does not lose its literal meaning" means not that *only* the literal meaning of the verse remains; rather, it means that *even* the literal meaning of the verse remains, in *addition* to the Midrashic interpretation. Both meanings were the intention of the verse, and both are equally true.
There appears to be an important difference of opinion here as to the nature of the statement that "a verse does not lose its literal meaning." According to the Ramban, the literal meaning of a verse is just another method of biblical exegesis. That is to say, if the verse only meant to tell us the exegetical meaning, why did it do so in such a roundabout fashion? Since the verse expressed itself in the particular manner in which it did, it is clear that something else may be learned from the verse, besides the exegetical teaching. The literal meaning gives an added dimension to the verse, just as the exegetical meaning does.
According to the Rambam, on the other hand, the literal meaning of a verse serves to demarcate the boundary between the Oral and the Written Laws. The Written Law consists of the literal meaning of the verse, while the rest falls into the category of the Oral Law. This is what is meant by "a verse does not lose its literal meaning."
Of course, even the Rambam admits that sometimes, the *Mesorah* (as opposed to biblical exegesis) teaches that a verse was meant to be interpreted in a particular manner -- such as that "Pri Etz Hadar" means an Etrog, etc. (Rambam's introduction to the Mishnah, Rambam's second rule at the beginning of the book of Mitzvot). In these cases, the Mesorah, rather than the literal meaning, defines the Written Law. In any case, though, there can remain only *one* actual meaning for the verse according to the *Written Law*. (The Oral Law may of course add many more dimensions to the verse through biblical exegesis.)
If so, it is clear that the *Ramban and Ra'avad* will have no qualms about explaining one verse in a number of ways. It can be a metaphor, yet also have a literal meaning. However, when the *Rambam*, saw that the Sages reinterpreted a verse to be read in a manner other than its simple, literal reading, he took that to be the new translation of the Written Law. There can only be one such translation, and therefore he rejected the literal meaning of the verse in favor of the Mesorah. This is why the Rambam saw no need to translate the verses discussing the day-thief, the recuperating wounded man, the sheep and the wolf, etc. in any manner other than their Masoretic rendering!