Moral Duties to Immoral Actors: Pikuach Nefesh for the Ba Bamachteret

When preparing a sugyah with the goal of teaching high school students, the variegated goals of developing skills, exposing students to lomdus, and helping students make personal meaning out of the sugyah at hand can occupy a tremendous amount of both time and headspace for an educator. We have limited time to teach our students and our students have limited attention spans, and we run the risk of treating certain sections of a sugyah as ‘ancillary’ or material to simply ‘run through’ on our journey through the broader topic. But a brief brayta tucked in the middle of the sugyah of ba ba’machteret (Sanhedrin 72a-72b) serves as an important reminder that the formulations, assumptions, and conclusions of even seemingly ‘non-central’ elements of a sugyah provide a real opportunity for both educators and high school students to probe and explore the values and meaning that can be gleaned from the text of the Talmud.

The sugyah of ba bamachteret revolves around the halakhic distinctions between two categories of home intruders first described in Exodus 22:

אִם־בַּמַּחְתֶּ֛רֶת יִמָּצֵ֥א הַגַּנָּ֖ב וְהֻכָּ֣ה וָמֵ֑ת אֵ֥ין ל֖וֹ דָּמִֽים׃ אִם־זָרְחָ֥ה הַשֶּׁ֛מֶשׁ עָלָ֖יו דָּמִ֣ים ל֑וֹ שַׁלֵּ֣ם יְשַׁלֵּ֔ם אִם־אֵ֣ין ל֔וֹ וְנִמְכַּ֖ר בִּגְנֵבָתֽוֹ׃

If the thief is seized while tunneling^* I.e., under a wall for housebreaking. and beaten to death, there is no bloodguilt in that case. If the sun had already risen, there is bloodguilt in that case.—[The thief] must make restitution, and if lacking the means, shall be sold for the theft.

Certain intruders are placed in the category of אֵ֥ין ל֖וֹ דָּמִֽים, meaning that the homeowner is justified in killing in self defense. Others are assigned the category of דָּמִ֣ים ל֑וֹ, in which case the homeowner is not justified in killing the intruder.

After fleshing out exactly which thieves belong in each category, the Gemara (Sanhedrin 72b) cites a beraita which considers how the restrictions of Shabbat affect each of these categories:

תנו רבנן: דמים לו, בין בחול בין בשבת, אין לו דמים – בין בחול בין בשבת.

בשלמא אין לו דמים בין בחול בין בשבת – איצטריך, סלקא דעתך אמינא: מידי דהוה אהרוגי בית דין, דבשבת לא קטלינן – קא משמע לן דקטלינן.

אלא דמים לו בין בחול בין בשבת השתא בחול לא קטלינן ליה – בשבת מבעיא? אמר רב ששת: לא נצרכא אלא לפקח עליו את הגל

אמר רב ששת לא נצרכא אלא לפקח עליו את הגל

The Sages taught in a baraita: If he has blood, this applies both on a weekday and on Shabbat. If he does not have blood, this applies both on a weekday and on Shabbat.

Granted “he has no blood” was necessary to say that this applies both during the week and on Shabbat, as it might enter your mind to say that this is just as it is in the case of those who are executed by the court, who are not executed on Shabbat. Therefore, the baraita teaches us that the burglar may be slain in self-defense even on Shabbat.

But with regard to “he has blood” the statement that this applies both during the week and on Shabbat is puzzling. Now, if on a weekday he may not be slain, is it necessary to say that he may not be slain on Shabbat?

Rav Sheshet says: This ruling is necessary only to teach that if a building collapsed on the burglar on Shabbat, one is obligated to clear the pile of stones from on top of him (even if it involves the desecration of Shabbat)

While the linking of the killing of the ba bamachteret to executions taking place in beit din points to a potential framing of the entire sugyah of ba bamachteret as a pseudo-judicial execution delivered via a layperson, this paper will focus on the later half of the beraita and the analysis of the Gemara.

The gemara notes that the second teaching of the baraita seems unnecessary: Why would we ever think that if we cannot kill a thief on a weekday that the rule would be any different on Shabbat? The gemara then reframes the halakhic focus of this passage in the beraita as focusing not on the homeowner’s obligation to refrain from killing, but on their duty to save the intruder. Rav Sheshet points out that this beraita teaches us that in the scenario in which a ‘non-killable’ thief becomes trapped in the tunnel they dig, the homeowner is required to dig the intruder out of the tunnel, even though doing so will entail a violation of Shabbat.

The gemara presents Rav Shehet’s statement as one that solves the problem of a painfully obvious statement in a beraita: not killing the thief on Shabbat is obvious, but apparently it is not self-evident that a homeowner must save a ‘non-killable’ thief who is trying to intrude on their property. The underlying logic of Rav Sheshet’s statement presents an important opportunity for students to engage with a deep and important question: How does both the law and a law-abiding citizen relate to the criminal who is intentionally trying to violate my rights as a property owner?

When posed to students as a scenario for them to imagine themselves in,(i.e. “If someone was trying to break into your house and then due to their own negligence got trapped in the tunnel do you think you should have to save them?”) many students feel that there should be no ethical or legal imperative to do so. This situation presents an opportunity to explore that impulse especially when contrasted with the standard biblical obligation of saving someone in danger לא תעמוד על דם רעך (Lev. 19:16). Most students are perfectly comfortable with a legal system that requires us to step in and save the life of a stranger but many students are uncomfortable with an obligation to save the life of their would-be intruder. How can we make sense of that distinction and what is Rav Sheshet trying to teach us about that initial impulse?

The necessity of Rav Sheshet’s teaching shows that the impulse to allow the intruder to die is not merely understandable, but expected. Why, in fact, should the homeowner have a duty to save the life of a fellow citizen who was attempting to steal from him?

Many readers, and high school students especially, may understand the core duties that we have towards each other to draw on a notion of reciprocal treatment: I help you when you are in need because you would do the same. But the case of an intruder who needs my help pushes this approach to its extreme: The thief has shown that they will in fact seek to harm the homeowner (at the very least economically), do the duties of the homeowner change in kind? Rav Sheshet’s teaching jolts us out of considering this approach; your duty to save your fellow citizen extends to those who would do you harm, even to one actively engaged in doing you harm!

The statement of Rav Sheshet pushes our assumptions a step further. The original statement of the beraita was that the category of דמים לו applies equally בין בחול בין בשבת, both on weekdays and on Shabbat with its additional restrictions. As we have noted, Rav Sheshet’s insight that we must save an intruder in danger is already somewhat novel, but the emphasis of the beraita is to extrapolate the principle and apply the same halacha to shabbat. The application of דמים לו to Shabbat is not self-evident but if Rav Sheshet is correct that דמים לו בין בחול בין בשבת is truly about the duty to save the thief what novelty is there in applying the same duty towards the thief on Shabbat? Once we have established that the homeowner’s duty to save applies to a criminal applying the normal principle of pikuah nefesh to a thief on Shabbat seems redundant.

This framing pushes students to consider their observance of Shabbat in a new way, not merely as a set of restrictions that they abide by, but as a precious commodity worth protecting. When faced with an emergency situation, clearly we should not be so concerned about our Shabbat observance that we hesitate to save another. But our beraita seems to present a scenario in which one would hesitate to save another, and therefore we must be reminded of our duty. The homeowner finds themself with a dilemma: “Even if I accept that in general I have a duty to save someone trying to steal from me, can this thief impinge on my own Shabbat observance? Must I sacrifice my own religious obligations for the sake of one who has gotten themself into this situation by trying to harm me?” This homeowner does not see their Shabbat observance as an obligation to be cast aside for just anyone in any situation; an innocent soul who has fallen into a pit clearly must be saved even if it means digging a hole on Shabbat. But does the thief, who via their attempted theft (which likely included a violation of at least the biblical shabbat prohibition of digging) may exclude themself from the halakhic community, retain their rights of religious sacrifice of others?

Many students, at first blush, might take this question as a given: the religious or legal standing of the person in need should not affect my willingness to save their life in any circumstance. Indeed, Rav Sheshet’s clarification reminds us of the truth of this statement. But a careful reading of the beraita highlights that viewing our Shabbat observance as a commodity worth protecting is a reasonable, even valuable, perspective. It would not be self-evident that we would violate shabbat to save someone endangered while in the act of committing a crime/sin. We might be tempted to view our duty to save a fellow man through the prism of our religious priorities. While our sugyah reinforces an absolute duty to save, it presents a window into a valuable moment of tension. To a person for whom their Shabbat observance is a yoke to be cast aside at the first opportunity to do so, our beraita is unnecessary. Instead our beraita speaks to one who is not leaping to abandon Shabbat, but instead to one who holds fast to it, potentially taking this passion too far and leaving the thief to die.

The important flipside of this scenario is left unspoken by the beraita/Rav Sheshet. We now understand that a duty to save exists when a דמים לו thief gets themselves trapped in the tunnel and even to do so on Shabbat. But what should a homeowner do if an אין לו דמים thief becomes trapped a thief who the homeowner could have justifiably killed had they successfully made it through the tunnel?

In the mind of the average high schooler this scenario compounds all of the instincts that many would feel in a דמים לו scenario. Understandably we may have thought the homeowner is under no obligation to save the thief who got themselves into this situation surely this instinct would be validated in a situation where the thief was liable to die anyway! But layering this final scenario in this way presents a reminder to students that the sugyah has already interrogated the validity of the above logic whether or not it “seems right/fair” may not be the best indicator of my obligation to help someone who would have liked to do me harm. If indeed the homeowner is allowed (or perhaps even encouraged) to let the thief die students can be pushed to formulate a more robust argument for why that would be the case.

Rashi (s.v. lifakeah alav) offers a potential avenue for how we are meant to relate to the intruder:

לפקח עליו את הגל – אם כשהיה חותר נפל עליו (את) הגל מפקחין עליו היכא דלא בא על עסקי נפשות אבל אם בא על עסקי נפשות כיון דניתן להרגו בלא התראה גברא קטילא הוא משעת סתירה:

To clear off of him the pile of stones-If while he was digging, the pile of stones fell upon him, we must clear [the pile] off him. This applies when the thief was not coming with intentions to kill (i.e. the category of דמים לו). But if the thief came with violent intentions, since the homeowner was permitted to kill the thief without hatraah, he is considered a dead man (גברא קטילא) from the time that he begins to break in.

Rashi writes that the obligation of לפקח עליו את הגל only applies when the intruder was not coming with violent intentions and therefore in the category of דמים לו. But in a situation of אין לו דמים, Rashi implies that we would not clear the pile of stones on Shabbat since the intruder is considered a גברא קטילא from the moment they begin to dig the tunnel. Borrowing terminology used to describe the status of someone who has been sentenced to death but whose punishment has not yet been delivered, Rashi suggests that no duty to save would exist once the ‘dangerous’ intruder begins the process of breaking in. The permission to kill the intruder extra-judiciously is rooted in the fact that the Torah has, in effect, decreed that this intruder is ‘already dead’.

Rashi’s framing of this comment under the heading of Rav Sheshet’s clarification that we must save the thief on Shabbat seems to indicate that Rashi feels that saving the intruder on Shabbat would be halachically forbidden. Since this thief is legally dead already, we cannot apply the principle of pikuah nefesh that would normally allow us to violate Shabbat. Given that there is no competing value of saving a life, digging out the intruder would be a straightforward violation of Shabbat and therefore forbidden.

Left unstated by Rashi and a fascinating question to pose to students is what a homeowner should do if an אין לו דמים thief is trapped in the tunnel on a weekday. If we accept Rashi’s suggestion that a thief is a גברא קטילא from the moment they begin to dig the tunnel what duties if any does the homeowner have to the thief once the tension of Shabbat observance disappears? This question hopefully allows students to consider the more fundamental relationship between an allowance to kill (אין לו דמים) and the basic duty we have to save every life we can (פיקוח נפש דוחה את הכל). And even if we accept the likely conclusion that the homeowner has no duty to save the thief, since the thief’s life is already forfeit, is the homeowner encouraged to save the burglar? In an even more extreme formulation, is the homeowner perhaps discouraged/prohibited from saving the burglar, and the desire of the Torah and Chazal is that this violent burglar meet his death in whatever way it happens.

Rashi’s addition to the sugyah prompts students to push the limits of how they understand their Shabbat observance as a resource that can not be cast away if the legal circumstances do not allow. His comments also prompt students to consider their intuitions about how they would approach more heinous criminals, whose lives have already been forfeited by the law. How do we as a society and as individuals relate, for example, to inmates awaiting capital punishment or to arrested/injured terrorists? While these conversations certainly call for maturity and nuance, our ethical consideration of even the most contemptible individuals is worthy of consideration.

Contemporary Analogues

While the circumstances described in the sugyot of ba bamachteret and rodef are certainly scenarios that can and do occur in daily life, most educators and students are not probing these dapim to ascertain what halacha demands of them in such a scenario. But once a class has shifted its focus towards the core moral and societal reltionship to a criminal in danger, a number of modern-day political and philosophical issues serve as useful tools that can allow students to apply their knowledge from the sugyah onto contemporary issues.

I. Inmates on Death Row

While not directly analogous to the trapped אין לו דמים intruder a society’s treatment of prisoners who have been found guilty of a capital offense overlaps with the question of our moral duties to those whose lives are in effect forfeit. Notwithstanding the very real possibility of a prisoner being released due to an appeal or new evidence how does the judicial system’s categorization of this prisoner as a גברא קטילא affect both our moral impulses about potential mistreatment and our political will to affect change. In January of 2023 a class-action lawsuit was filed against the Federal Bureau of Prisons arguing that the treatment of ‘Death Row’ inmates in an Indiana prison fell below the minimum standard determined by international human rights treaties and violates the constitutional prohibition of cruel and unusual punishment. How does a just society view is גברי קטילא and what rights do they retain?

II. Medical Care for Neutralized Terrorists

Perhaps the most direct parallel students can examine in contemporary society is in how a modern state dictates the rights of a neutralized shooter or terrorist. An active terrorist attacker would almost certainly fall into Rashi’s categorization of גברא קטליא. One possible approach to the halachic permission to kill a רודף is that the would-be murderer has been (in affect) tried and convicted of the crime they are about to commit and therefore they may be killed.¹

In fact while expanding on Rashi’s discussion of an אין לו דמים thief who is trapped in the tunnel R’ Meir Abulafia in his Yad Ramah (Sanhedrin 72b) explains the halacha as follows:

אבל אם בא על עסקי נפשות אפילו בחול אין מפקחין עליו את הגל, דהא ניתן להרגו בלא התראה

But if the thief came with violent intentions, even on a weekday one does not clear off the stones from them. Since the homeowner was allowed to kill the thief without a warning, [clearly there must not be a duty to save].

Modern day states and the State of Israel perhaps most pointedly must grapple with how to treat assailants who moments ago were a clear גברא קטילא due to the danger they posed but are now in danger trapped under the metaphorical ׳גל׳. Students can grapple with both the rights, or lack thereof, of the individual assailant as well as the broader structural and political ramifications of policies mandating or forbidding medical professionals providing care to an injured terrorist.²

Conclusion

The two teachings of this rather pithy beraita, then, contains two fundamental principles for students to engage with: in how we relate to criminal or otherwise ostracized members of society: 1)Your duty to protect nonviolent criminals from harm is equal to any other member of society 2)Your religious observance while valued and precious can not be the altar on which you sacrifice others even a criminal. While one may feel that their Shabbat observance can and should take precedence over saving a would-be criminal even a criminal is endowed with a צלם אלוקים of infinite worth.While the beraita does push students to see their Shabbat observance as a treasure not to be cast aside lightly, ultimately the intruder’s life takes precedence. These two principles are complicated greatly when the person in question currently is or recently was eligible to be killed, as our legal and ethical relationship to the criminal may change.

While every educator will have to decide how to budget class time in an already rich and complex sugyah, this beraita certainly is worthy of serious attention of any high school class.

1. The relationship between the sugyot of rodef and BBM is complex. I am grateful to my colleague R’ Shua Lindenbaum for suggesting that a high school class may benefit from learning the 8th perek of Sanhedrin in reverse order. First students can understand a basic case of an active rodef, then progress to a scenario where the intentions of the intruder are not as clear, and finally to the sugyah of Ben Sorer U’Moreh where the potential danger to society/others is still years away.
2. Relevant articles include Medical Care for Terrorists—To Treat or Not to Treat? by Gesundheit et al in The American Journal of Bioethics 2009 and a response in the same issue by Prof. Ari Zivitofsky titled Medical Care of Terrorists is “Beyond the Letter of the Law”