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Home » Mishpatim

Mishpatim: Dont Be Crass

Submitted by on February 12, 2012 – 4:32 amNo Comment | 2,809 views

Two Laws
If you catch a burglar in your home in the middle of the night and kill him, you are not guilty of murder by Jewish law even if the burglar didn’t draw a weapon. This is because it is logical to suppose that thieves in the night intend to take any action necessary, including murder, to avoid detection. (1) (2)

This law, astounding as it appears, is a cousin of another law. If you see an aggressor pursuing a victim with intent to kill you are obligated to stop the pursuit even at the cost of the pursuer’s life. Saving life is a primary obligation in Torah and those who threaten life forfeit their own claim to life. (3)

A Distinction
These laws are cousins but they aren’t identical. The crucial difference between them is that when you are the intended victim you aren’t required to take the thief’s life. If you want you can negotiate. If the victim is another, then you, the bystander, cannot stop to chat with the pursuer, you must take action.

To illustrate the point: If you encounter a burglar in your own home you know that he will kill only if he is threatened.  As the primary protector of your home it is your right to oppose and threaten him. Once you threaten him you are right to suppose that he might kill you to avoid capture, which automatically activates your right of self defense to kill him first.

But in truth, you have another option. You can invite him to take your possessions and go. Nothing prevents you from standing aside while the thief takes your home. Granted you would have to be extremely pious or extremely cowardly to do this, but it is an option.

This isn’t an option when you see a pursuer threatening someone else. You can surrender whatever you want to save your own life, but you can’t stop to make offers when someone else’s life is in peril. This is a key point. It explains why Maimonides obligates a bystander to kill a pursuer (or maim him if that would save the intended victim), versus his terminology with respect to the thief, which renders the killing an exculpable act, but doesn’t obligate the killing. (5)

In Our Lives
We live in a terrible world, where crimes are an everyday affair. But still, we hope to never encounter either of these scenarios in our personal lives. The question before us is thus as follows. How can those of us fortunate enough to never encounter either of these scenarios make these passages relevant?

The answer, as it often is, can be found in the spiritual application of these laws. We are each endowed with a Divine spark that inspires us to piety, rectitude, selflessness and devotion. Yet, it is a sad fact that not everyone lives up to all or even most of these aspirations. What holds us back is what the Talmud calls the yeast in the dough or as it colloquially known, the Yetzer Hara, our internal evil inclination.

In English the term evil connotes terrible, unspeakable crimes. But in our sages’ vernacular, evil connotes the allure to all inappropriate things even those we might consider crass rather than evil.

We are each carriers of a Divine spark. This means that we are privileged to hold a piece of G-d Himself. Suppose we took a container that holds a piece of G-d and left it at the town dump. It wouldn’t be a crime in the legal sense, but it would be considered a crime against G-d. Where nobility and awe should have been the norm such action is entirely unbefitting. It is the height of indecency and disrespect.

Leaving G-d at the town dump is one thing, but suppose you grabbed the container holding a piece of G-d and dragged it along on a crime spree. Now, that is much more than unbefitting. That is a true crime.

Two Forms Of Pursuit
Our Yetzer Hara has two modalities, the soft approach and the hard one. The soft approach is to entice us into behavior that is entirely permissible, but unbefitting a person graced with G-d’s spark. This includes gross absorption into tactile pleasures and physical stimulation. Repulsive dietary habits, obsession with wealth accumulation and extreme preoccupation with self are, but a few examples.

These pursuits aren’t sinful, but they can be dangerous. Precisely because they are permissible we are prone to justify them and indulge in them without limitation. Of course the result of such absorption is that we become dead to the refined, sacred and spiritual sensitivities that characterize our Divine spark. Like a thief in the night, our Yetzer Hara, in its soft approach, seeks to rob us of our Divine possession.

The Yetzer Hara’s hard approach is much more brazen. This is when it drives us to forbidden behaviors and feeds our allure for the non Kosher. It drives us to peek at inappropriate images on the internet or entices us to unhealthy behavior such as narcotics abuse. The worst example is when it draws us into a web of dishonesty, theft, violence and deceit.

This approach is an outright attempt to kill off our holiness of spirit. Any vestige of nobility and Divinity within us would be wiped away (left in a state in deep latency in the depths of our subconscious hopefully to rise one day, but at this point entirely dead to the world) as a result of such behavior.

Our Response
The Torah’s teaching on the difference between the thief in the night with whom it is possible to negotiate and the pursuer, who must be killed at first sight, informs our response to these two modalities of the Yetzer Hara.

The first approach can be reasoned with. It is possible to manipulate our impulse to such behaviors and utilize it for the sake of G-d. We can accumulate wealth for the purpose of charity. We can channel our enjoyment of good food toward the Mitzvah of Shabbat meals. We can use our obsession with self to drive us to the highest states of spiritual achievement. (5)

The Yetzer Hara’s second approach that entices us to sin can never be reasoned with. This must be cut off at the knees and stopped before it gains traction. Good can’t come from sin, no matter how much we attempt to justify it. One cannot justify theft for the purpose of wealth redistribution or eating non kosher for the purpose of beautifying the Shabbat meal. This is what we call a Mitzvah induced by a sin, which is itself a sin. The only approach to this Yetzer Hara is banishment. It is a pursuer and it must be stopped in its tracks. It must never be permitted to gain traction.


  1. It is not murder, it is self defense. The only exception is when you are certain the thief won’t kill you like if he were, for example, your father… (Exodus 22: 1-2. See Rashi ibid)
  2.  The Talmud (Sanhedrin 74a-b) elaborates on the argument: It is known that a homeowner does not restrain himself when his money is in danger therefore the burglar, knowing this, expects extreme danger in the event of capture and arrives with intent to kill. This being the case, the homeowner may rise up and kill the burglar first.
  3. Babylonian Talmud: Sanhedrin 74a-b. As the Torah (Exodus 22: 1) puts it, the burglar (or pursuer) has no blood. His life is forfeit. And in this there is no difference between the victim being another or yourself.
  4. See Maimonidies Hilchot Rotzeiach, 1:9 and Hilchot Geneivah, 9:3 and 9:9. This insight is advanced by Rabbi David J Bleich in Contemporary Halachic Matters v. III pp. 301-302.
  5. Tanya Ch. 7. OF course there are times when this Yetzer Hara must also be cut off. When we feel in our heart of hearts that we are incapable of indulging our material desires for noble purpose and if we would indulge, it would indeed be for self-centered purpose, the only solution is to deny ourselves that indulgence. If we were to permit ourselves at that point it would slowly draw us further and further into self and therefore by definition further and further away from G-d. It is only when we reach a state in which we feel competent to indulge in our pleasures for the sake of G-d that we can once again introduce this Yetzer Hara and utilize its drive for holy purpose.

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