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

When preparing a sugya 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 sugya can occupy a tremendous amount of both time and headspace for an educator. We have limited time to teach our students, our students have limited attention spans, and we run the risk of treating certain sections of a sugya as “ancillary” or material to simply “run through” on our journey through the broader topic. But a brief beraita tucked in the middle of the sugya of Ba Bamachteret (Sanhedrin 72a-72b) reminds us that the formulations, assumptions, and conclusions of even seemingly non-central elements of a sugya provide an opportunity for both educators and high school students to explore the values and meaning that can be gleaned from the Talmud.

The sugya of Ba Bamachteret discusses the halakhic distinctions between two categories of home intruders first described in Shemot 22:

(א) אִם בַּמַּחְתֶּרֶת יִמָּצֵא הַגַּנָּב וְהֻכָּה וָמֵת אֵין לוֹ דָּמִים׃ (ב) אִם זָרְחָה הַשֶּׁמֶשׁ עָלָיו דָּמִים לוֹ שַׁלֵּם יְשַׁלֵּם אִם אֵין לוֹ וְנִמְכַּר בִּגְנֵבָתוֹ׃ 

(1) If the thief is seized while tunneling and beaten to death, there is no bloodguilt in that case. (2) 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 “אין לו דמים,” meaning that the homeowner is justified in killing in self-defense. Others are assigned the category of “דמים לו,” in which case the homeowner is not justified in killing the intruder. After articulating which thieves belong in each category the Gemara (Sanhedrin 72b) cites a beraita that considers how the restrictions of Shabbat affect each of these categories, followed by an analysis of the halakhot taught therein:

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 beraita: 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 it was necessary to say that “he has no blood” 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 beraita 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 collapses 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 by the beit din highlights a potential framing of the entire sugya of Ba Bamachteret as a pseudo-judicial execution, 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 beraita seems unnecessary: Why would we think that the prohibition against killing a thief on a weekday 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 solving 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 an important question: How does the law relate to the criminal who is intentionally trying to violate one’s rights as a property owner?

When posed to students as a role-playing scenario (i.e. “If someone was trying to break into your house via a tunnel and then due to their own negligence got trapped in the tunnel should you have to save them?”) many students feel no ethical or legal imperative to save the thief. 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” (Vayikra 19:16). Students are generally 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. Indeed the necessity of Rav Sheshet’s teaching shows that the impulse to allow the intruder to die is not merely understandable but expected. How can we make sense of that distinction and what is Rav Sheshet trying to teach us about that impulse?

Many readers, perhaps especially high school students, may understand the core duties that we have towards each other in terms of reciprocal treatment: I help you when you are in need because I hope you would do the same. But the case of an intruder who needs my help pushes this approach to its extreme: If 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 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 pikuach 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 follow 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 faces 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?” 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) excludes themself from the halakhic community, retain the right to others’ religious sacrifice?

Many students 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 sugya reinforces an absolute duty to save, it presents a window into a valuable moment of tension. To a person for whom 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 holds fast to Shabbat observance, potentially taking this passion too far and leaving the thief to die. 

 The important flipside of this scenario is left unspoken by the beraita. 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 whom the homeowner could have justifiably killed had they successfully made it through the tunnel?

 This scenario compounds all of the instincts that many would feel in a דמים לו scenario. Understandably we may think the homeowner is under no obligation to save the thief who got themselves into this situation so surely this instinct would be validated when the thief is liable to die anyway! But layering this final scenario presents a reminder to students that the sugya has already interrogated the validity of this logic: whether it “seems fair” may not be the best indicator of my obligation to help someone who would like 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 is the case.

 Rashi (Sanhedrin 72b s.v. לפקח עליו) 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 warning 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 began 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 halakhically forbidden. Since this thief is legally dead already, we cannot apply the principle of pikuach nefesh that would normally allow us to violate Shabbat. 

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 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). In an even more extreme formulation is the homeowner perhaps discouraged or prohibited from saving the burglar? Do the Torah and Chazal desire that this violent burglar meet his death in whatever way it happens? 

Rashi’s addition to the sugya 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 to criminals as individuals and how do we understand the rights of the criminal? 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 can and do occur in daily life, most educators and students are not probing these dapim to ascertain what halakha demands of them in such a scenario. But once a class has shifted its focus towards the core moral and societal relationship 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 sugya onto contemporary issues.

1. 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 forfeited. 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 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.¹“Lawsuit Alleges Federal Death-Row Conditions Violate U.S. Constitution and Human Rights Treaties,” Death Penalty Information Center, posted January 19, 2023, https://deathpenaltyinfo.org/news/federal-death-row-prisoners-file-a-class-action-lawsuit-challenging-conditions-on-death-row How does a just society view גברי קטילא and what rights do they retain?<p>

2. 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 halakhic 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.²The relationship between the sugyot of rodef and Ba Bamachteret is complex. I am grateful to my colleague Rabbi Shua Lindenbaum for suggesting that a high school class may benefit from learning the eighth 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 sugya of Ben Sorer Umoreh where the potential danger to society/others is still years away. In fact while expanding on Rashi’s discussion of an אין לו דמים thief who is trapped in the tunnel Rabbi Meir Abulafia in his Yad Ramah (Sanhedrin 72b) explains the halakha 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 the stones off of them. Since the homeowner was allowed to kill the thief without a warning, [there clearly must not be a duty to save].

Modern 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 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.³For a discussion of this topic see Benjamin Gesundheit, et al. “Medical care for terrorists – to treat or not to treat?” The American journal of bioethics 9, no. 10 (October 2009): 40-42 and the response published in the same issue: Ari Zivitofsky, “Medical Care for Terrorists is ‘Beyond the Letter of the Law,’” The American journal of bioethics 9, no. 10 (October 2009): 43-45.

Conclusion

The two teachings of this beraita, then, contains two fundamental principles for students to engage with: 1) Your duty to protect nonviolent criminals from harm is equal to your duty to any other member of society and 2) your religious observance while valued and precious cannot 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 sugya, this beraita certainly is worthy of serious attention of any high school class. 

• 1
  “Lawsuit Alleges Federal Death-Row Conditions Violate U.S. Constitution and Human Rights Treaties,” Death Penalty Information Center, posted January 19, 2023, https://deathpenaltyinfo.org/news/federal-death-row-prisoners-file-a-class-action-lawsuit-challenging-conditions-on-death-row
• 2
  The relationship between the sugyot of rodef and Ba Bamachteret is complex. I am grateful to my colleague Rabbi Shua Lindenbaum for suggesting that a high school class may benefit from learning the eighth 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 sugya of Ben Sorer Umoreh where the potential danger to society/others is still years away.
• 3
  For a discussion of this topic see Benjamin Gesundheit, et al. “Medical care for terrorists – to treat or not to treat?” The American journal of bioethics 9, no. 10 (October 2009): 40-42 and the response published in the same issue: Ari Zivitofsky, “Medical Care for Terrorists is ‘Beyond the Letter of the Law,’” The American journal of bioethics 9, no. 10 (October 2009): 43-45.