When Crime is Committed, Everyone Loses

Parshat Mishpatim

by Rabbi Avi Billet

Less than 2 chapters after telling us “Thou shalt not commit murder” the Torah gives us an example of where it is perfectly permissible to kill someone: “If a burglar is caught in the act of breaking in, and is struck and killed, he has no ‘damim.’” (22:1)

The phrase “he has no damim” is typically translated to mean, “it is not considered an act of murder” because the burglar took his life into his own hands through the invasion, making himself already a dead man, and his killer innocent based on double indemnity.

This is the overwhelming view of most commentaries.

Rabbi Chaim Paltiel explained the verse differently, utilizing the Talmudic definition of the word “damim” which is “money,” and noting that there is no space in the Torah between this verse and the previous verse. Despite the new chapter, the lack of a break between 21:37 and 22:1 stands to indicate a connection between the verses, at the very least thematically, if not even still remaining the same topic completely!

Parenthetically, we’ll note that the chapters as divided were not made by Jews, but by early Christian scholars who divided the text into chapters based on their interpretations, but clearly with no knowledge of the tabs and returns (keyboardly speaking) in the actual text of the Torah. They were accepted as standard fare out of convenience, but they are by no means authoritative, as in being able to teach us anything. For that we rely on the spaces in the text, as transmitted through our mesorah.

Rabbi Paltiel assumes that the burglar is coming in the night to steal an ox or lamb (the topic of 21:37), and if the animal is killed in the process of the theft, the burglar has no responsibility to pay the otherwise necessary fine of 5x the amount for cattle and 4x the amount for sheep. However, “if the sun shines on him,” and he is successful in his thievery, then “he has damim and he would have to pay, and if he does not have the money, he is to be sold to pay the debt.” (22:2) In this case “damim” means a financial responsibility owing to the ownership he claims on the item. When it is still in the actual owner’s property, the thief hasn’t taken control of it. Anything that happens while on the owner’s land is not considered stolen property.

Go back and look at the verses, and you’ll likely find this argument to be a lot more compelling than you’ve given it credit for until now.

So what are we to do with the “classic” interpretation? Can we argue that the Torah is not really condoning the killing of a burglar?

The fact of the matter is that every other time the word “damim” appears in the Torah, it refers to blood. This would suggest that the word likely means “blood” here as well, and not “money.”

I think that even if we apply the depiction of the “struck and killed” to the animal, as Rabbi Paltiel does, we could still argue that the phrase “he has no damim” is referring to the burglar - he is a dead man walking around in the property of his victims.

Which leads us to the bottom line, which I believe is an almost-universal truth.

There is something very very wrong with being a burglar. Anyone who burgles, no matter the outcome of the theft, has no rights to his (or her) own blood. Certainly if it happens that the burglar dies in the process, but even if an animal dies on account of criminal negligence, or the animal being put in harm’s way on account of the crime, the burglar is responsible for all resultant consequences (not merely whether he has to pay the full fine, but ALL consequences).

So, is the Torah telling us a bit of legal-eze in the realm of thievery, or is the Torah calling a homeowner James Bond and granting a license to kill?

I think the Torah is doing a little bit of both. But even more than anything, the Torah is using this little anecdote to prove that crime, in one form or another, doesn’t really pay in the end. On the contrary – crime only serves one purpose: it makes everyone involved a loser.