Daylight Robbery

One of the aims of the early biblical commentators was to explain how the biblical text was relevant in their own times. This was particularly important when it came the legal passages of the Torah. The law represented the framework within which one should live; if the law as stated in the biblical text made little sense, or was confusing, then the commentators needed to clarify it. Even if at times the clarification involved ideas not implied in the plain meaning of the text.

The chapters of Exodus following the Ten Commandments contain two verses which, in the eyes of the 3^rd century commentators, demanded to be brought up to date. The first (Exodus 21,19) discusses the liability of someone who injures another in a fight, such that he has to take to his bed. If the injured party is able to get up and to ‘walk outside on his staff’, then the assailant is obliged to compensate him for his medical bills and loss of earnings, but nothing more.

The phrase ‘walk outside on his staff’ caused problems for the rabbinic interpreters. What would be the law if someone could walk unaided? Could one deduce that if walking with a staff absolved the assailant from greater liability, then walking unaided certainly did? Or was it that if he walked unaided then the assailant didn’t even have to pay his loss of earnings and medical bills.

To resolve the dilemma they treated the phrase ‘upon his staff’ as a metaphor for ‘under his own power’. It was an expansion not demanded by the text, but by the necessity of constructing a clear and unambiguous legal framework. If someone injured another, but not so badly that after recovery they could still carry on their daily business, they were nevertheless liable to pay their medical bills and loss of earnings.

In the following chapter (22,1-2) we read that there is no liability imposed upon a householder who, when discovering a thief in the act of breaking in, kills him. However, ‘if the sun shines on him’ the householder is guilty of bloodshed. This seems to imply that one is may kill a thief at night, but not during the day. But what happens, says the Midrash, if it is clear that the night thief poses no danger? Or conversely, that the person committing daylight robbery is armed and dangerous?

The problem is resolved by treating ‘if the sun shines on him’ metaphorically. If it is clear as the sun that the thief means no harm, then the householder is held guilty for killing him. But without that clarity, without the ‘sun shining on him’, the householder has the right to protect his family from harm by slaying a thief who potentially poses a danger.

The act of biblical interpretation in the early rabbinic period was not a sterile, academic exercise. The Torah was the written code of law by which all were expected to live. It could not be changed, or overridden. But it could be creatively interpreted (by those of sufficient learning and authority) to remain relevant at all times, evolving hand in hand with society, in its interpretation.

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Harry Freedman’s 2014 book The Talmud: A Biography is now available in paperback on Amazon. His most recent book,  Kabbalah: Secrecy, Scandal and the Soul is available from Bloomsbury Publications, Amazon or www.harryfreedmanbooks.com. His biography of Rabbi Dr Louis Jacobs will be published in the second half of 2020.