Literary Links: Parents and Children in Ba B’Machteret and Ben Sorer U’Moreh

When I shifted from teaching Gemara to semikha and graduate students to primarily teaching high school students, I expected many of the pedagogical challenges I confronted: how to engage less experienced, less independent and even less motivated students. At the time, however, I did not anticipate that my own Gemara learning would be enhanced in meaningful ways. My yeshiva studies had trained me to focus exclusively on conceptual questions when studying Gemara. As a result, “Brisker Lomdus” also formed the core of my teaching. But over the past decade I have found that my SAR high school students are curious about many details of the Gemara that I had overlooked when studying in yeshiva and teaching more experienced students.¹I have experienced this same inquisitiveness among adults with less indoctrination into the “right kinds of questions” to ask when learning Gemara. In his introduction to the Birkat Shmuel, Rav Boruch Ber Liebowitz states that there is a tradition, or mesorah, on what constitutes a good, worthwhile question; as per the author’s talmudic methodology, those questions are invariably conceptual ones. Bright, intellectually curious high school students want the Gemara to “make sense” and are frustrated when a drasha or a line in the Gemara seems arbitrary or defies logic. While much of my teaching remains rooted in introducing high school students to the world of conceptual learning, I now prepare every line of Gemara informed by the questions that students might ask. One additional element about answering the questions of high school students is critical to mention. To answer their questions, I often need to deploy a broader range of methods in preparing and teaching each sugya, including examining earlier parallels of the Gemara’s sources as well as literary analysis of the text itself.² These methods of analysis (synoptic, diachronic, layers, and literary) are often associated with the academic study of Talmud. Synoptic, diachronic, and layer analysis entail studying earlier parallels of a text, which often shed a great deal of light on how the material is used and presented in the Bavli. Literary analysis looks at key words and intertextual insights to explain word choices or enhance the meaning of a passage. These additional methods not only help make the Gemara more accessible and enriching to our students, they have also deepened my own understanding of many sugyot.

In this essay, I have chosen a small section of a much larger sugya – the laws of the “tunneling thief” (Ba Bamachteret) – to demonstrate the benefits of this more eclectic approach. We will examine the first of four consecutive beraitot (“Tanu Rabanans”) which appear in Sanhedrin 72a-72b. ³ Each of the four beraitot explicates a different word or phrase of the Torah’s laconic legal account of the home burglar.

Beyond the benefits of brevity, I selected these lines precisely because I had previously overlooked them due to their being less conceptually significant than the other Tanu Rabanans. Only after being challenged by high school students and deploying methods of analysis to “make sense” of the Gemara did I discover that these short few lines are essential for a richer understanding of the sugya of Ba Bamachteret, as well as the larger literary and thematic links between it and the chapter where it is found – Perek Ben Sorer Umoreh.

Here is the abbreviated passage, broken down into three stages:

ת”ר: “אין לו דמים. אם זרחה השמש עליו״ (שמות כב:א-ב) – וכי השמש עליו בלבד זרחה?! אלא אם ברור לך הדבר כשמש שאין לו שלום עמך- הרגהו. ואם לאו- אל תהרגהו.
תניא אידך: ״אם זרחה השמש עליו דמים לו״ (שמות כב:ב) וכי השמש עליו בלבד זרחה?! אלא אם ברור לך כשמש שיש לו שלום עמך- אל תהרגהו. ואם לאו- הרגהו.
קשיא סתמא אסתמא?! לא קשיא- כאן באב על הבן כאן בבן על האב.

[Beraita #1:] The Sages taught: “…there is no blood compensation on his account. If the sun has risen upon him…” (Shemot 22:1–2). But did the sun rise only upon him?! Rather, if the matter is as clear to you as the sun that the burglar is not coming to you in peace, kill him. But if not, do not kill him.
[Beraita #2:] It is taught in an alternative beraita: “If the sun has risen upon him, there shall be blood compensation on his account” (Shemot 22:1–2). But did the sun rise only upon him? Rather, if the matter is as clear to you as the sun that the burglar is coming to you in peace, do not kill him. But if not, kill him.
[Stam:] The generic case contradicts the generic case?! [The first beraita indicates that if the homeowner is unsure about the burglar’s intentions, he is prohibited from killing the burglar, whereas the second beraita indicates that in such a case, he is permitted to kill the burglar.] It is not a question: here (the first beraita), it is a father who comes to rob his son. There (the second beraita), it is a son who comes to rob his father.⁴The Gemara then adds a statement of Rav and analysis of that statement (below). It is not obvious what this curious passage adds to the sugya. I hope to address this halakhic/aggadic coda to the sugya in a separate essay.
אמר רב: “כל דאתי עלאי במחתרתא קטילנא ליה לבר מרב חנינא בר שילא.” מאי טעמא? אילימא משום דצדיק הוא הא קאתי במחתרתא! אלא משום דקים לי בגוויה דמרחם עלי כרחם אב על הבן.

In this passage, the Gemara cites two contradictory beraitot/drashot addressing the precise circumstances when the homeowner⁵The third Tanu Rabanan does extend license to others to kill the burglar based on a comparison of the thief to a rodef. This is an important expansion and a suggestive equation. See also Rambam, Hilkhot Geneiva 9:9. is permitted to kill the intruder and subsequently resolves the contradiction through an okimta, a distinction limiting the case of the first beraita. Students encountering this Gemara for the first time typically ask two basic questions:
1. Does one of the two drashot make more sense?
2. Why does the Gemara privilege the second drasha in its okimta of the first drasha?

To evaluate the competing drashot and answer these questions, I encourage students to examine the pesukim and how each drasha reads and interprets them.
This is the biblical account of the law (Shemot 22:1-2):

אִם־בַּמַּחְתֶּרֶת יִמָּצֵא הַגַּנָּב וְהֻכָּה וָמֵת אֵין לוֹ דָּמִים׃ אִם־זָרְחָה הַשֶּׁמֶשׁ עָלָ֖יו דָּמִים לוֹ שַׁלֵּם יְשַׁלֵּם אִם־אֵין לוֹ וְנִמְכַּר בִּגְנֵבָתוֹ׃

If a burglar is found breaking in, and he is smitten and he dies, there is no blood compensation on his account. If the sun has risen upon him, there is blood compensation on his account.⁶In this essay, I translate the phrases “ein lo damim” and “damim lo” like Rashbam, Chizkuni, and Yad Ramah, based on the persuasive analysis of David Henshke in his “The Thief Who Steals in a House: The Relationship between Exegesis and Plain Meaning,” Megadim 7 (1989): 9-15 [Hebrew]. Henshke discusses alternative translations and their shortcomings.

The Torah describes two different scenarios of home burglary (or two sequential stages of the same scenario): the first is when the thief tunnels in at night and the second is when the thief invades in broad daylight (or, if chronicling two stages of one scenario, when the thief is first in the tunnel and when he later emerges from the tunnel into the light of day).⁷The Bekhor Shor interprets the verses as two stages of the same scenario. On whether the plain meaning remains halakhically significant (אין מקרא יוצא מידי פשוטו) see Rambam and Rabad Hilkhot Geneiva 9:7 and commentaries there. Both drashot reading the verse hyper-literally question the language of the sun rising upon him – אם זרחה השמש עליו. The two drashot proceed to interpret the verse as referring not to actual sunlight but to when the intent of the thief – to merely steal property versus willingness to kill the homeowner – is “clear as day.” Where the two drashot part ways is the scenario to which we attach the “clear as day” intent. The first beraita attaches it to the first scenario and therefore only permits killing the burglar when we know for sure that he does not come in peace (i.e. he is willing to kill); whereas the second beraita reads the clear as day intent as associated with when one is not permitted to kill the burglar (i.e. the burglar is not willing to kill).

The implication of these alternative readings, as the Gemara notes, is a contradiction in the vast majority of cases (i.e. when we are not sure of the burglar’s intent). According to the first beraita, one would not be permitted to kill in these situations; according to the second, one would be. This yields, in turn, the core debate of the sugya: is a homeowner permitted to kill when their life may be in danger? Does Jewish law permit killing based merely on the possibility that one could be killed?⁸ This is indeed the position of Rabbi Yishmael, who states that Ba Bamachteret is a case where one is permitted to kill based on safek pikuah nefesh (Yoma 85a).

Students enjoy debating the arguments for each side of this legal and moral question. This also presents an excellent opportunity to engage students in a discussion of comparative law: how do the American (stand your ground laws) and Israeli (Shai Dromi Law) legal systems adjudicate parallel cases? This discussion, in turn, raises consequential and timely societal questions related to racial disparities in how these laws are implemented in America and Israel.

While students are able to make compelling legal arguments for either of these views, I push them to evaluate the drashot further, as a more careful reading is critical for understanding the entire mini-sugya. Upon further examination, students notice that a closer textual comparison of the two drashot clearly favors the second. That is because the first drasha ignores the syntactical division of the two verses and reads the opening phrase of the second verse (im zarcha hashemesh alav) as a modifier of the last phrase of the first verse (ein lo damim).⁹Rashi subtly notes this syntactic maneuver in his commentary to the Gemara by stating that the beraita is employing “semukhin,” a rabbinic method of interpretation that allows for two distinct verses to inform one another. The second drasha, on the other hand, reads more smoothly, as it focuses on the second verse exclusively (im zarcha hashemesh alav damim lo).

Once students grasp the syntactic difficulty of the first drasha, the Gemara’s resolution decisively favoring the second drasha makes sense. The Gemara’s okimta asserts that the first beraita refers to the remote scenario where a father is tunneling in to rob from his son. Because a parent naturally has overwhelming compassion for a child,¹⁰ At some stage of teaching this sugya the gender question of father instead of parent and son instead of child will likely be raised. I think this is an instance where the true distinction is parent and child rather than father and son. We will suggest a literary explanation for the linguistic choice of father and son at the end of the essay. the beraita presumes that the father will not kill his son. Accordingly, it rules that the homeowner (the son) is prohibited from killing the burglar (the father) unless he is certain that the father would kill him if he resists. The second beraita, according to the Stam, refers to all other scenarios, including where a son comes to rob his father. Since a son, and certainly a random stranger, does not typically have exceptional compassion for the homeowner (the father), it is presumed that the burglar is willing to kill the homeowner. Therefore, in all standard cases the homeowner is permitted to kill.

After students understand why the Gemara favors the second drasha, they typically turn to next-level analysis and more vexing questions:
1. Many students are troubled by the okimta this Gemara imposes on the first beraita: how and why does the Gemara restrict this earlier text to a singular, far-fetched circumstance (a father robbing his son)? ¹¹Some students may assume that the Gemara had an oral tradition to interpret the beraita in this fashion, but most students will not be satisfied with that assumption.
2.Students also question the opaque language of the Gemara’s distinction: why does the Gemara employ language that is so ambiguous (father versus son; son versus father) in differentiating between the two drashot instead of stating the distinction in a more straightforward manner? It would certainly have been easier for the Gemara to clearly state the distinction as follows: the first beraita is dealing with a case where we are confident the burglar will not physically harm the homeowner and the second beraita is a case where we are not confident the burglar will not physically harm the homeowner. Why, then, does the Gemara invoke the confusing and potentially misleading language of father–son and son–father to resolve the contradiction? ¹²The language of the son robbing the father is misleading because the latter beraita actually refers to all cases of burglary other than a father robbing his son! Moreover, the father robbing the son exception may be subverted by the continuation of the Gemara (Rav’s statement, cited above in note 4) which indicates that the real distinction is not father versus son but any burglar one is confident would not kill the homeowner (such as a close teacher or colleague).

To answer these more probing questions, additional methods of analysis must be deployed. An analysis of earlier parallels sheds light on the first question. Midrash Halakha utilizing the phrase “im zarcha hashemesh alav” are found in the Mekhilta,¹³ מכילתא דר׳ ישמעאל שמות כב:ב אם זרחה השמש עליו [ר’ ישמעאל אומר,] וכי השמש עליו בלבד זרחה והלא על כל העולם כולו זרחה. אלא מה שמש שלום בעולם אף זה אם ידוע הוא שבשלום עמו והרגו הרי זה חייב. the Tosefta ¹⁴תוספתא סנהדרין יא:ט …שנאמר (שמות כ״ב:ב׳) אם זרחה השמש עליו דמים לו וכי עליו בלבד חמה זורחת והלא על כל העולם כולו היא זורחת אלא מה זריחת השמש שהוא שלום לעולם אף זה כל זמן שאתה יודע שיש שלום הימנו בין ביום בין בלילה אין מצילין אותו בנפשו וכל זמן שאין אתה יודע שאין שלום הימנו בין ביום ובין בלילה מצילין אותו בנפש. and the Yerushalmi.¹⁵ ירושלמי סנהדרין ח:ז …אם זרחה השמש עליו דמים לו. וכי עליו לבדו החמה זורחת והלא על כל באי העולם זורחת החמה אלא מה זריחת החמה מיוחדת שהוא שלום לכל באי העולם כך כל זמן שאת יודע שאת שלום ממנו בין ביום ובין בלילה ההורגו נהרג. In all three instances the phrase is interpreted like the second drasha in our Gemara. Textually, each of these drashot links the phrase with “damim lo,” and substantively, each rules that only when one is certain that the burglar comes in peace is one prohibited from killing. The first drasha in our Gemara is not found in any earlier rabbinic text. ¹⁶The Stam in Pesachim (2a-2b) does follow along the lines of the first drasha in our Gemara and seemingly rules against the conclusion of our Gemara. See Tosafot (Pesachim 2b s.v. אי פשיטא).
This analysis of earlier sources suggests that the first drasha in our Gemara is a newer alternative.

What are the implications of this research? It either indicates that the Gemara possessed a heretofore unknown alternative drasha, or, more boldly, that this drasha was constructed by the Gemara.¹⁷Further evidence in support of this conclusion emerges from manuscript analysis. Several manuscripts of our Gemara (see Yad Ramah ad loc. and Yalkut Shimoni Shemot 342) present the two drashot in reverse order. Rashi on our sugya also had this alternative girsa, which he rejects in favor of the version that appears in our Gemara. The drashot originally appearing in reverse order strengthens the possibility that the first drasha of our Gemara (originally, the second) was constructed as an alternative to the prevailing view. I do not engage my class in this manuscript analysis as it is speculative and does not add substantively to understanding the Gemara.
Either way, students (and teachers) are left wondering why our Gemara would introduce this syntactically problematic drasha, only to immediately relegate its applicability to a remote case of a father stealing from his son.

One possible explanation is that the Gemara cites this drasha precisely in order to reject it.¹⁸This is the explanation suggested in the Talmud Meshulav prepared on behalf of SAR HS by Machon Shiluvim, p. 56 of Perek Ben Sorer U’Moreh. By presenting a potential contradiction and providing a swift and decisive resolution, the Gemara sharpens the essential teaching of our sugya: a homeowner is indeed permitted to kill a burglar even if there is only a possibility that they may be killed. Unless the homeowner is absolutely certain that they are safe, like a scenario where the homeowner knew that it was their own loving father breaking and entering, they are permitted to kill the burglar. Without citing (and, perhaps, constructing) this alternative drasha, the Gemara would not have distilled this takeaway as conclusively.

This approach is helpful in explaining the mystery and provenance of the Bavli’s alternative drasha. But it does not explain the Gemara’s specific okimta, nor its opaque, father-son language. Moreover, suggesting that the Gemara may “construct” a tannaitic source in order to emphasize its rejection, without explaining the significance of all the details included in the answer of the Gemara, is highly fraught, especially in a high school classroom. Students inevitably raise the charged question: does the Gemara just create a tannaitic source from thin air? If a teacher cannot fully explain why the Gemara would introduce (only to reject) a new drasha, the synoptic and diachronic analysis may do more harm than good.

After several years of struggling to make sense of this passage and answer my students’ questions I finally realized that an additional layer of analysis was required; specifically our sugya must be read against the backdrop of the larger literary unit of Perek Ben Sorer Umoreh. Indeed the mishnayot of the eighth chapter already establish a significant literary and halakhic connection between the topics of the wayward and rebellious son and the tunneling thief by invoking the shared terminology and legal framework of נידון על שם סופו judged according to their end as the reason that in both instances we may kill the would-be criminal preemptively.

The brief passage in our Gemara takes this literary link a step further. In the previous extended sugya devoted to the wayward and rebellious son (Sanhedrin 68b-71b), the Gemara examines the details of this enigmatic law. In one critical passage (71a), commenting on the Mishnah’s ruling that both parents need to agree on bringing the son to the court to be convicted of a capital crime, the Gemara asserts that the law of the wayward and rebellious son would never actually be carried out because no set of parents would be willing to bring their beloved son to the court to be stoned.¹⁹ The Gemara initially says the law would never be carried out, as a consequence of Rabbi Yehuda’s impossible to fulfill requirements of the law; namely, the parents have to be identical in their voice, height and appearance. This view and its potential implications about the rabbis interpreting an ethically challenging law out of existence, has been analyzed at length by modern scholars. See, most recently, Rachel Rosenthal, Rebel With a Clause: Interpretation, Pedagogy, and the Problem of the Stubborn and Rebellious Son, Phd Dissertation (JTS: 2019).

This earlier passage in the perek is the key to making sense of the details of our sugya. It suggests that our sugya’s agenda in citing an alternative drasha is not merely to highlight that a homeowner is permitted to kill the burglar even if there is just a possibility that they may be killed. If that were the singular aim of the sugya, the specific scenario and language of the okimta would remain unaccounted for. The specific scenario and language of the okimta is also a powerful, albeit subtle, literary and thematic allusion to the previous sugya of the wayward and rebellious son.

The Gemara presents an alternative drasha, then quickly invokes an exceptional okimta with the confounding distinction of a father robbing a son versus a son robbing a father in order to underscore the prior message that no parents would ever be willing to kill their son: not if the son were a wayward and rebellious child, and not if the parent’s circumstances forced them to tunnel into their son’s home to steal property. And the potentially misleading language of son versus father reinforces that the wayward and rebellious son is fully capable of anything, up to and including murdering a parent.

Explaining every line of this brief passage in response to students’ questions requires deploying additional methods beyond conceptual analysis. This push generates a significant literary insight into the Gemara, an insight which makes sense of even the most vexing details of the sugya. This literary insight, in turn, yields a more enriching reading of the entire passage for high school students and adults alike. These few lines of Gemara don’t merely delineate the circumstances when a homeowner is permitted to kill a burglar. They also underscore the potential threat of a troubled child while serving as a powerful paean on the abiding nature of parental love.²⁰The Gemara’s invoking of the converse (a son robbing from a father) in its perplexing distinction also raises a fascinating question about childrens’ love of their parents and how it differs from parental love.

• 1
  I have experienced this same inquisitiveness among adults with less indoctrination into the “right kinds of questions” to ask when learning Gemara. In his introduction to the Birkat Shmuel, Rav Boruch Ber Liebowitz states that there is a tradition, or mesorah, on what constitutes a good, worthwhile question; as per the author’s talmudic methodology, those questions are invariably conceptual ones.
• 2
  These methods of analysis (synoptic, diachronic, layers, and literary) are often associated with the academic study of Talmud. Synoptic, diachronic, and layer analysis entail studying earlier parallels of a text, which often shed a great deal of light on how the material is used and presented in the Bavli. Literary analysis looks at key words and intertextual insights to explain word choices or enhance the meaning of a passage.
• 3
  Each of the four beraitot explicates a different word or phrase of the Torah’s laconic legal account of the home burglar.
• 4
  The Gemara then adds a statement of Rav and analysis of that statement (below). It is not obvious what this curious passage adds to the sugya. I hope to address this halakhic/aggadic coda to the sugya in a separate essay.
  אמר רב: “כל דאתי עלאי במחתרתא קטילנא ליה לבר מרב חנינא בר שילא.” מאי טעמא? אילימא משום דצדיק הוא הא קאתי במחתרתא! אלא משום דקים לי בגוויה דמרחם עלי כרחם אב על הבן.
  
• 5
  The third Tanu Rabanan does extend license to others to kill the burglar based on a comparison of the thief to a rodef. This is an important expansion and a suggestive equation. See also Rambam, Hilkhot Geneiva 9:9.
• 6
  In this essay, I translate the phrases “ein lo damim” and “damim lo” like Rashbam, Chizkuni, and Yad Ramah, based on the persuasive analysis of David Henshke in his “The Thief Who Steals in a House: The Relationship between Exegesis and Plain Meaning,” Megadim 7 (1989): 9-15 [Hebrew]. Henshke discusses alternative translations and their shortcomings.
• 7
  The Bekhor Shor interprets the verses as two stages of the same scenario. On whether the plain meaning remains halakhically significant (אין מקרא יוצא מידי פשוטו) see Rambam and Rabad Hilkhot Geneiva 9:7 and commentaries there.
• 8
  This is indeed the position of Rabbi Yishmael, who states that Ba Bamachteret is a case where one is permitted to kill based on safek pikuah nefesh (Yoma 85a).
• 9
  Rashi subtly notes this syntactic maneuver in his commentary to the Gemara by stating that the beraita is employing “semukhin,” a rabbinic method of interpretation that allows for two distinct verses to inform one another.
• 10
  At some stage of teaching this sugya the gender question of father instead of parent and son instead of child will likely be raised. I think this is an instance where the true distinction is parent and child rather than father and son. We will suggest a literary explanation for the linguistic choice of father and son at the end of the essay.
• 11
  Some students may assume that the Gemara had an oral tradition to interpret the beraita in this fashion, but most students will not be satisfied with that assumption.
• 12
  The language of the son robbing the father is misleading because the latter beraita actually refers to all cases of burglary other than a father robbing his son! Moreover, the father robbing the son exception may be subverted by the continuation of the Gemara (Rav’s statement, cited above in note 4) which indicates that the real distinction is not father versus son but any burglar one is confident would not kill the homeowner (such as a close teacher or colleague).
• 13
  מכילתא דר׳ ישמעאל שמות כב:ב אם זרחה השמש עליו [ר’ ישמעאל אומר,] וכי השמש עליו בלבד זרחה והלא על כל העולם כולו זרחה. אלא מה שמש שלום בעולם אף זה אם ידוע הוא שבשלום עמו והרגו הרי זה חייב.
• 14
  תוספתא סנהדרין יא:ט …שנאמר (שמות כ״ב:ב׳) אם זרחה השמש עליו דמים לו וכי עליו בלבד חמה זורחת והלא על כל העולם כולו היא זורחת אלא מה זריחת השמש שהוא שלום לעולם אף זה כל זמן שאתה יודע שיש שלום הימנו בין ביום בין בלילה אין מצילין אותו בנפשו וכל זמן שאין אתה יודע שאין שלום הימנו בין ביום ובין בלילה מצילין אותו בנפש.
• 15
  ירושלמי סנהדרין ח:ז …אם זרחה השמש עליו דמים לו. וכי עליו לבדו החמה זורחת והלא על כל באי העולם זורחת החמה אלא מה זריחת החמה מיוחדת שהוא שלום לכל באי העולם כך כל זמן שאת יודע שאת שלום ממנו בין ביום ובין בלילה ההורגו נהרג.
• 16
  The Stam in Pesachim (2a-2b) does follow along the lines of the first drasha in our Gemara and seemingly rules against the conclusion of our Gemara. See Tosafot (Pesachim 2b s.v. אי פשיטא).
  
• 17
  Further evidence in support of this conclusion emerges from manuscript analysis. Several manuscripts of our Gemara (see Yad Ramah ad loc. and Yalkut Shimoni Shemot 342) present the two drashot in reverse order. Rashi on our sugya also had this alternative girsa, which he rejects in favor of the version that appears in our Gemara. The drashot originally appearing in reverse order strengthens the possibility that the first drasha of our Gemara (originally, the second) was constructed as an alternative to the prevailing view. I do not engage my class in this manuscript analysis as it is speculative and does not add substantively to understanding the Gemara.
  
• 18
  This is the explanation suggested in the Talmud Meshulav prepared on behalf of SAR HS by Machon Shiluvim, p. 56 of Perek Ben Sorer U’Moreh.
• 19
  The Gemara initially says the law would never be carried out, as a consequence of Rabbi Yehuda’s impossible to fulfill requirements of the law; namely, the parents have to be identical in their voice, height and appearance. This view and its potential implications about the rabbis interpreting an ethically challenging law out of existence, has been analyzed at length by modern scholars. See, most recently, Rachel Rosenthal, Rebel With a Clause: Interpretation, Pedagogy, and the Problem of the Stubborn and Rebellious Son, Phd Dissertation (JTS: 2019).
• 20
  The Gemara’s invoking of the converse (a son robbing from a father) in its perplexing distinction also raises a fascinating question about childrens’ love of their parents and how it differs from parental love.