Less than two chapters after telling us “Thou shalt not commit murder,” the Torah in this week’s parsha of Mishpatim 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 by 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. (Parenthetically, we’ll note that the chapters divisions were not made by Jews, but by early Christian scholars who divided the text into chapters based on their interpretations but without knowledge of the tabs and returns (keyboardly-speaking) in the Torah’s text.)
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 five times the amount for cattle and four times 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.” In this case, damim means a financial responsibility owing to the ownership claimed 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 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.
Which leads us to the bottom line, which I believe is an almost-universal truth.
There is something 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.
So, is the Torah conveying to us a bit of legalese in the realm of thievery, or is it turning a homeowner into a James Bond with a license to kill?
I think the Torah is doing a little bit of both. But more than anything, the Torah is using this anecdote to prove that crime, in one form or another, really doesn’t pay in the end. On the contrary, crime serves only one purpose: it makes everyone involved a loser.