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02.02.2016 13:24    Comments: 0    Categories: Weekly Parashah      Tags: torah  shabbat  parashah  exodus  mishpatim  

"If the sun has risen on him"

The law pertaining to thieves includes the expression, "If the sun has risen on him" (Ex. 22:2).  This phrase is not easily understood at face value, for mention of the sun shining with regard to a specific person appears only twice more in Scripture (with a different Hebrew preposition, albeit close in meaning), and in those instances the phrase has to do with healing the body, unlike its use in the law on thieves:  "The sun rose for him as he passed Penuel, limping on his hip" (Gen. 32:32); "But for you who revere My name a sun of victory shall rise to bring healing.  You shall go forth and stamp like stall-fed calves" (Malachi 3:20).  Indeed, the midrash (Genesis Rabbah 78.5) finds something in common between the last two verses, but does not associate them with the verse in our weekly reading:

The sun rose for him, etc.  Rabbi Berekiah commented:  And for whom does the sun not rise?  Rather, it rose "for him" meaning to heal him, but for others only to give light.  Rabbi Huna said in Rabbi Aha's name:  Thus the sun healed Jacob and burned up Esau and his chieftains.  The Holy One, blessed be He, said to him:  You are a sign for your descendants—even as the sun heals you while it burns up Esau and his chieftains, so will the sun heal your descendants while it burns up the heathen.  It will heal them:  But for you who revere My name a sun of victory shall rise to bring healing, and will burn up the heathen—For lo!  That day is at hand, burning like an oven, etc. (Malachi 3:19).

Even if we take the Hebrew preposition `al in the expression, "If the sun has risen on (`al) him," merely as a stylistic embellishment, as Radak interpreted in Genesis 32:32[1] the meaning still remains unclear, for the "sun shining" in the laws of theft should be the opposite of theft ba-mahteret (according to the New JPS Translation, while tunneling), as with other subjects covered by the laws in this week's reading, where one instance and its opposite are discussed.  Interestingly, the laws pertaining to thievery are presented in a somewhat complex manner—three pairs of cases, interwoven one with the other,[2] as we illustrate below:

(A1)  "When a man steals an ox or a sheep, and slaughters it or sells it, he shall pay five oxen for the ox, and four sheep for the sheep" (Ex. 21:37).  (A2) "If the thief is seized while tunneling, and he is beaten to death, there is no bloodguilt in his case (Ex. 22:1).  (B2) If the sun has risen on him, there is bloodguilt in that case.  (A3)  He must make restitution; (B3) if he lacks the means, he shall be sold for his theft" (Ex. 22:2).  (B1) "But if what he stole—whether ox or ass or sheep—is found alive in his possession, he shall pay double" (Ex. 22:3).[3]

The first double provision, beginning and concluding the law, is that the penalty for any crime of theft[4] is monetary, and in the ­­most extreme case, with which the section begins, the fine is four-fold or five-fold.  In all other cases (discussed at the end of the passage), the fine is twice the value.  The third double provision appears between the two parts of the first provision and emphasizes that the thief's punishment is a monetary fine if he has the means, and only if he cannot pay is he deprived of his freedom.[5] The second double provision, presenting the possibility that a monetary crime might end with the death of the thief but only in the act of committing the theft, comes as a parenthetical remark, sandwiched between the two parts of the first double provision, presenting the monetary fine, and adjacent in the same verse to the third double provision, which again emphasizes the principle:  he shall pay.

The Torah writes in this fashion in order to engrave in our consciousness the monetary payment, rule out the possibility of a thief paying with his life, and to stress that the thief might die only in the act of committing the burglary, as a sort of "work accident" and not because he deserves to die.  M. D. Cassuto explains the Torah's innovative approach to the laws on theft in comparison to Hammurabi's code, which was prevalent in the world in which Abraham lived:

The Torah presents these laws in order to oppose the legal tradition reflected by the Code of Hammurabi, by which a thief would be sentenced to death if he did not have the means to pay (article 8 of Hammurabi's Code),[6] or if he stole by tunneling under a house (art. 21, loc. cit.); in line with the principle of the sanctity of human life, the Torah protects the thief's life.  It abolishes the death penalty for thieves who cannot pay, replacing it with the penalty of being sold into slavery.  The Torah even protects the thief who tunnels under a house, setting limits this protection only out of well-justified concern for the life of the master of the house.[7]

Cassuto's remarks were made in comparison with Hammurabi's Code, but they also hold with regard to the Laws of Eshnunna, which preceded Hammurabi's Code,[8] although they provide for the death penalty for thieves under different circumstances.  Article 12 reads:  A man who is seized in the field of a muškēnum (commoner) among the sheaves at midday, shall weigh and deliver 10 shekels of silver; he who is seized at night among the sheaves shall die, he will not live.  Article 13 reads:  A man who is seized in the house of a muškēnum (commoner), within the house, at midday, shall weigh and deliver 10 shekels of silver; he who is seized at night within the house shall die, he will not live.[9]

The Laws of Eshnunna are similar to the laws of the Torah in that they distinguish between theft in the day and theft at night,[10] although this distinction in the Torah is not stated explicitly, since the root h-t-r has not been found to have to do with night and only its appearance here in contrast to the "sun rising" hints at this possible meaning.  For example, according to its usage in Ezekiel, "He said to me, 'Mortal, break through (hator-na) the wall'; so I broke through (ve-ehtor) the wall and found an entrance" (Ezek. 8:8),[11] we see that "If the thief is seized while breaking in (ba-mahteret)" deals with a parallel case to that of article 21 in the Code of Hammurabi:  "If a man breaks into (ipluš) a house, they shall kill him and hang him in front of that very breach (pilšim)."

In other words, mahteret means breaking into a house, whereas "the sun rising on him" matches article 13 of the Laws of Eshnunna, which speak of theft at midday.  Thus the verse in the Torah subsumes two situations:  breaking into a house and burglarizing at night, and breaking into a house and burglarizing by day.  Breaking into a house at night would have entailed the death penalty for the thief according to both Babylonian legal systems, and breaking in by day would have entailed the death penalty at least according to one of the legal systems.

The innovation in the Torah's laws is not only that the thief under no circumstances is liable to the death penalty, but that his life is even protected as the life of any law-abiding citizen, even though he himself is breaking the law.  The key statement here is that "there is bloodguilt in that case," and therefore it appears in the middle of the passage.  The Torah limits the possibility that the theft of any possession should lead to the death of the criminal solely to those cases where the life of the owner is clearly in danger, defenseless in his bed at night while his home/his castle is under attack.  In such a situation he might fear for his life, and his actions against the burglar fall under the category of self-defense.  Such a distinction is very far from what we find in the Laws of Eshnunna, where a thief receives the death penalty by law even if the life of the owner of the property was not in danger, as in the case of theft from a field at night.  In the day a violent confrontation might have developed between the thief and the owner of the field or his workers, yet nevertheless the thief is not given the death penalty under such circumstances.

Still the law of the Torah remains unclear, for in other scriptural passages the "sun rising/shining" signifies the beginning of the day,[12] and is not a parallel expression to the entire daytime, the meaning of the expression in the context of this law.  Therefore, there is room to interpret that the rising of the sun mentioned specifically in connection with the thief denotes something more.  On these grounds Rabbi Ishmael stated that the expression denotes special circumstances that are not time dependent:

This is one of the three expressions in the Torah which Rabbi Ishmael used to interpret as being figurative.  Similarly:  "If the sun rise upon him"—But does the sun rise upon him alone?  Does it not rise upon the whole world?  Rather, just as the sun signifies peace in the world, so too, if it is known that this burglar would have left the owner in peace, and yet the latter killed him, he is guilty of murder.[13]

So the sun indeed rose especially for the benefit and well-being of the thief,[14] that his life not be taken lightly, notwithstanding his dastardly deeds.  To bring home this message, all the details of the law were written in a manner that minimizes attention to the possibility that the thief might be put to death or lose his freedom, and gives prominence to the minimal monetary fine with which the section concludes:  "he shall pay double," and further emphasized this punishment by restating it in a verse close by:  "If the thief is caught, he shall pay double" (Ex. 22:6).

Translated by Rachel Rowen

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