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February 20, 2020 - Parashat Mishpatim 5780

Knowing What We Don’t Know
A D’var Torah for Parashat Mishpatim
By Rabbi Jill Hammer

Parashat Mishpatim deals, among many other matters, with the laws of robbery. Exodus 22:1-2, which is part of the larger discussion of robbery, reads: “If one finds someone who comes through a tunnel [into one’s house], and one strikes them and they are killed, one is not liable for bloodguilt [murder]. But if the sun shone upon them, there is bloodguilt [it is murder if one kills them]…” When I was in rabbinical school, in one of my Talmud classes, we studied a section (sugya) of the Talmud known as “haba b’mahteret” or “one who comes through a tunnel.” (Babylonian Talmud, Sanhedrin 72a)—which comments on these verses. The sugya offers three possible interpretations of this verse, which invite us to contemplate how we judge others we fear.

The text considers the possibility that, as safe as we feel in our homes, someone with malevolent intent could break in and harm us. But what does the text mean? One opinion in the Gemara reads the text as follows: if a thief tunnels into someone’s house, that person clearly knows that they might meet the homeowner and that there might be violence. Therefore, from the second that the thief begins to tunnel, “ain lo damim”—he has no bloodguilt. A homeowner is not liable for killing a person who breaks in, because the assumption is that such a person expected violence to begin with, or they wouldn’t have tried to enter the house. Essentially, this reading suggests, the person’s actions clearly indicate their ill intent, and homeowners who come upon such a person in their basement are justified in using lethal force to defend their homes.

However, the Gemara also offers an alternative reading. The Gemara reads the verse differently, and less literally: “Does the sun rise only on him?” (In other words, the text “if the sun rose upon him” should be read as a metaphor). Rather, if the matter is as clear to you as the sun that he has come with intention to violence, you may kill him (this interpretation assumes that damim lo, “he has blood” means “you may kill him”). But if you are not sure, do not kill him.” In this text, only if the person has specifically demonstrated that they intend to harm you may you use lethal force against them. Otherwise you must wait in order to determine their intentions.

The Gemara follows this up with a deceptively similar, but opposite, reading: “Does the sun rise only on him?” Rather, if the matter is as clear to you as the sun that he has not come with intention to violence, you may not kill him (this interpretation assumes thatdamim lo, “he has blood” means “you may not kill him.” But if you are not sure, kill him”). This reading understands the text as follows: if the person who breaks in is “in a tunnel”—i.e. their intentions are obscure—you may kill them to defend yourself. But if “the sun has shone” upon the person—i.e. it is clear they don’t mean to harm you, you may not harm them.

The three readings offer three different standards for self-defense: a) You may use lethal force against anyone who breaks into your home, b) you may use lethal force against anyone who breaks into your home unless you have reason to believe they won’t harm you, or c) you may not use lethal force against a person who breaks into your home unless they specifically demonstrate they are about to harm you. Each of these interpretations balances the question of risk to the homeowner and risk to a potentially innocent intruder differently, and each one reasons differently about what I can conclude about another human being when I don’t have a lot of information. The Gemara has an obscure way of resolving the contradiction (it involves parents breaking into children’s homes and vice versa), but to me, that is less interesting than this basic disagreement about how to handle a situation where we feel afraid for our lives.

We are all aware of times when a police officer or civilian, perhaps believing someone is going to harm them, uses lethal force— and then it comes out that the person who was shot “in self-defense” was unarmed and not threatening the shooter. In some of these cases, the shooter malevolently shot an unarmed person, but in many others, the shooter perceived a person as threatening when that wasn’t the case. As we all know, biases around race play a large part in these events: people of color are more likely to be shot even when they’re innocent. Lack of awareness around mental illness can also be a factor in some of these cases: people may be treated as threatening when they’re really just ill or non-responsive. These incredibly painful cases indicate that we can indeed make wrong judgments about whom we should fear, and those wrong judgments can lead to fatal error. These incidents show us that the Gemara’s concern—that we might act before we know the individual’s true intent, and harm an innocent person—is just as real today.

I’m not a legal expert, nor am I an expert in self-defense, and it wouldn’t be right for me to give advice about what to do if, God forbid, someone actually breaks into a home. Nevertheless, I want to consider some larger implications of these three readings. One question we might consider is: are we any good at determining people’s intent? Are our fears of others justified? And what if we’re wrong? I am moved by the Gemara’s attempt to consider, even in a situation where people might reasonably be afraid, that we may be judging before we have enough information.

We can learn from the Gemara’s discussion as we consider, as citizens, how to improve our criminal justice system—but we can also learn from this discussion in our daily lives. When someone seems angry at us, we might consider that maybe we are misinterpreting their words or actions. If someone is whispering in the corner of the room, we shouldn’t leap to the conclusion that they are talking about us. Often, we can afford to give people the benefit of the doubt—and when we do, we can end up with a much kinder interaction than we might otherwise have had. I often remember a moment when I was leading a service and a person got up and left. I was convinced I had offended that person and spent the rest of the service, not praying, but obsessing over what I might have done wrong. Later the person told me how enjoyable the service was, and that she was sorry she had developed a headache. I had judged her by an action I saw, but had reached entirely the wrong conclusion. It was a good learning experience for me about how not to waste my energy on assuming things I didn’t know.

And, we should also remember that our biases can influence us even in daily interactions. A recent post by Marra Gad, a Jew of color, makes this clear. Marra Gad presented recently at a liberal Jewish conference, and she describes how person after person assumed that she didn’t belong there, worked for the hotel, etc., etc. and harassed her with questions and demands until the conference organizers had to provide her with an escort to minimize further harassing incidents. The unthinking assumptions of the individuals who caused Marra Gad’s discomfort contributed to a hostile environment. When we train ourselves and others not to make assumptions, we help others feel comfortable being themselves.

Sometimes, not knowing is a spiritual practice. Parashat Mishpatim, which deals with and prescribes behavior for many difficult moments in daily life, also reminds us to wait to assume until things have become clear—in the words of the parashah, until the sun has risen upon us. Just like Jacob who wrestled all night until the sun had risen upon him, we can receive a blessing from wrestling with the truth until we know for sure.

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Rabbi Jill Hammer, PhD, is the Director of Spiritual Education at AJR. She is the author of several books, including The Hebrew Priestess: Ancient and New Visions of Jewish Women’s Spiritual Leadership, Sisters at Sinai: New Tales of Biblical Women, and The Jewish Book of Days: A Companion for All Seasons—as well as the forthcoming Return to the Place: The Magic, Meditation, and Mystery of Sefer Yetzirah.