Tuesday, July 2, 2013

The Ethics of Killing in Self-Defense


If a thief is found ﻿breaking in and is struck so that he dies, there shall be no bloodguilt for him, but if the sun has risen on him, there shall be bloodguilt for him.

Photo credit:  dutytoact.com
The concern of the law at this point is to determine when a homeowner is and is not justified in using deadly force against a thief. In short, he is justified when the thief is actually caught in the act. If a thief is found breaking in and is struck so that he dies, there shall be no bloodguilt for him (v. 2). The meaning is:  the homeowner shall not be charged with criminal homicide. He is not guilty of unjustly taking a human life. But why is it not unjust? The penalty for theft is restitution, not death. [1]  

Lethal force is not unjust in such a scenario because while the act is in progress and the motives of the intruder are unclear, the homeowner is within his rights to fear the worst—that the intruder may intend not only to steal, but also to kill. In such a case, the homeowner is not to be charged with the guilt of shedding innocent blood.

But what are we to make of the next statement? But if the sun has risen on him, there shall be bloodguilt for him (v. 3a). Most commentators, both Jewish and Christian, understand this of a break-in that occurs during the day as opposed to one that occurs during the night.[2] If the break-in occurs at night, the homeowner is justified in using deadly force (v. 2); but he is not justified in using deadly force if the break-in occurs during the day (v. 3a). If the break-in occurs during the day, and the homeowner kills him, the homeowner shall be charged with criminal homicide. In the words of the text, there shall be blood guilt for him. He shall be held accountable for spilling the blood of someone who did not deserve to die.

Why should there be a difference between killing a thief who breaks and enters by day as opposed to one who does so by night? Several reasons are given:  (1) the power and intention of a thief are more difficult to determine in the dark of night; (2) a thief is more likely to be bold enough to kill a homeowner who resists him at night, trusting in the cover of darkness to hide his identity; (3) the homeowner is less able to “guide his blows with that discretion and moderation which in the day-time he might use”;[3] and (4) during the day there is a greater chance of identifying and apprehending the thief without resorting to killing him.[4]

Rashi interprets if the sun has risen on him metaphorically:  “if it is clear as day that the thief has no evil purpose,” (i.e., he does not intend to murder or otherwise harm the homeowner).[5]

It may be best, however, to understand but if the sun has risen on him to stand in contrast to found breaking in. In other words, the intended contrast may not be between a thief who is found breaking in during the day as opposed to the night, but a thief found in the act as opposed to after the fact. If this is the proper way to take it, then the homeowner who catches a thief in the act of breaking and entering (regardless of whether it is day or night) is justified in assuming the thief’s willingness to commit murder also, and consequently justified in using deadly force to stop him.[6] However, if the homeowner does not catch him in the act, but afterward discovers who he is, hunts him down, and kills him, he is guilty of criminal homicide.[7]

The reasons for this should be obvious. When a thief is caught in the act of breaking and entering, his victim has no way of knowing his full intentions. The homeowner is justified in assuming a worst case scenario—that the intruder intends, or at least is willing to kill if caught in the act. If, however, the thief is caught after the fact, it is apparent he had no intention to harm his victim.

To kill the intruder after the fact is wrong for two reasons:  (1) a thief does not deserve to die for his crime, and (2) whatever punishments are inflicted upon criminals are to be inflicted upon the authority of the civil magistrate after the due process of law.

Certainly, if it can be determined that the intruder means no bodily harm, care should be taken so as not to kill him in the effort to stop him; but the mere circumstance that the crime is committed during the day is no guarantee the intruder means only to steal and not to kill.

The basic principle to be kept in mind is this:  the use of deadly force is justified when there is a reasonable fear the intruder intends bodily harm. This is true whether the crime is committed in the daylight or in the dark of night. Of course, if the would-be thief is observed to possess a weapon, or makes threatening statements or menacing movements, his intentions become clearer.

Undoubtedly one has the right of self-defense in other circumstances also. If one has the right to use deadly force against a thief when caught in the act—when the threat to one’s life and limb is less clear—how much more when the threat is obvious and direct.

In cases of self-defense, quick judgments must be made by the victim concerning the offender’s intentions and what degree of force is necessary to stop him. The details of each case will necessarily be a matter for deliberation by the appropriate governing authorities.

     [1] See vv. 1, 4
     [2] For example, Rashbam, Nachmanides, Cassuto, Paul, Cohn, Telushkin, Calvin, Keil, Clark, Rushdoony, Jordan, Douma, Frame, etc. See also William Blackstone’s Commentaries on the Laws of England, Book IV § 214
     [3] Matthew Poole, Matthew Poole’s Commentary on the Holy Bible, vol. 1, p. 165
     [4] See Frame, “The presumption seems to be that if the sun has risen, less lethal remedies, including help from others, are available” (p. 693.). See also Douma, “In the darkness of night, the situation is confused. Is the intruder armed? Is there only one, or are there more? If the owner (properly) refused to let the intruder simply rob him, a fight could well break out at the cost of the intruder’s life. But during the daytime the situation is clearer, and then everything must be done to prevent bloodshed. From this twofold regulation we see how precious human life is. Even when someone is busy robbing another, care must still be taken with his life” (p. 234). Compare The Twelve Tables of Roman Law: “If one is slain while committing theft by night, he is rightly slain” (VII.3). “If the theft has been done by night, if the owner kills the thief, the thief shall be held to be lawfully killed. It is unlawful for a thief to be killed by day....unless he defends himself with a weapon; even though he has come with a weapon, unless he shall use the weapon and fight back, you shall not kill him. And even if he resists, first call out so that someone may hear and come up” (VIII.12-13). See also the Laws of Eshnunna (§ 12-13).
     [5] The Soncino Chumash, p. 480; cf. Targum Pseudo-Jonathan, “If the thing be as clear as the sun that he was not entering to destroy life, and one hath killed him, the guilt of the shedding of innocent blood is upon him.”
     [6] Of course, if the homeowner surprises the thief and the thief attempts to flee, but the homeowner kills him nonetheless, the homeowner is guilty of unjustly taking the intruder’s life.
     [7] This was also the view taken by John Peter Lange, “Inasmuch as further on it is assumed that the thief has really accomplished his theft, the expression probably means:  If some time has elapsed. If in this case the owner kills the thief, he incurs blood-guiltiness” (p. 91).

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