Sanhedrin 114

Yiftah Shapir writes:

There is one question that intrigues me since we began discussing the issue of Ben Sorer u-Moreh, and this is the exact opposite logic the sages and the tradition ever since, took on other issues. Take, for example: "Thou shalt not cook the kid in it's mother milk" [Exodus 23:19, Exodus 34:26, Deuteronomy 14:21]. Applying the same logic of the rebellious son would have led the sages to say: thou shalt not cook, but one may fry or bake. a kid is not a calf, its mother is not it's father etc. The route chosen as we know was the exact opposite, that interpreted the kid not only as a calf or cow but a chicken as well, and that led us all the way to "thou shalt not wash the fleischig spoon in the milchig sink"

Our modern logic accepts and understands the interpretation regarding the rebellious son (or the similar interpretation of "Ir ha-Nidahat"[the idolatrous township]). I think we understand less the reasons for taking the opposite logic. the interesting question is – are there any parameters, or guiding rules, or just explanations of when was the interpretation of a commandment minimalist (like the rebellious son), when was it maximalist (like the Kashrut issue) – and when was it closer to the original spirit of the commandment.

I respond:

In many matters the sages saw themselves as constrained within a traditional interpretation that had been received from time out of memory. The Rabbinic tradition is very careful to distinguish between the various categories of the material that make up the oral tradition. In an absolutely superb General Introduction to his Mishnah Commentary, Rambam [Moses Maimonides, North Africa, 12 century CE] enumerates the following categories:-

Categories 4 and 5 are different from the other three in that no claim is made for a Torah origin. The sages freely admit that they initiated these laws for the better ordering of society. The only difference between category 4 and category 5 is that the former is negative, prohibiting certain actions which are not prohibited by the Torah (Written or Oral), while the latter is positive, requiring certain actions not required by the Torah. In his original question Yiftah touched upon one such "decree" unawares: the sages admitted that the Torah only prohibits the mixing of milk products with meat products and that this did not include fowl. The inclusion of fowl in the prohibition is a decree of the sages.

Category 3 is the standard kind of rabbinic discussion, one in which the sages can give full rein to their interpretive skills – such as "the riotous and rebellious son".

Categories 1 and 2 are interpretations of the Torah that were so ancient that the sages had no knowledge of their provenance, and could only assume that they date back to Moses at Sinai. These "hard core" interpretations include the shape and colour of Tefillin, for example. It is, of course, to these categories that the "milk and meat" issue must be consigned.

Ron Kaminsky writes:

In the following cases a human life is saved at the cost of a human life: when one person threatens the life of another, when a male is sexually threatening another male, or an affianced young woman. But when someone is intending a sexual union with an animal, or to desecrate Shabbat or to practice idolatry – no human life is forfeit in order to prevent this.

I find it interesting, the contrast between this and my (perhaps erroneous) understanding of halacha that even if I am threatened with death I am forbidden to commit murder, practice idolatry or to engage in various forbidden sexual unions (and the exact details of which ones I am sure I don't know).

Is the basis of this "discrepancy" discussed somewhere?

I respond:

I am not quite certain what Ron's question means. There are three cardinal sins which, should it ever come to the final crunch, a Jew is required to give up his life rather than contravene. I enumerate them without going into halakhic details. Idolatry is forbidden to all Jews at all times: one cannot even save one's life by publicly performing an idolatrous act. Unchastity is another: one cannot save one's own life by copulating illicitly (at gun point, for example). And, of course, you may not take the life of another in order to save your own. ("How do you know that your blood is redder than his?" [Sanhedrin 74a]) Now, if these acts are absolutely forbidden to one even at the cost of one's life, how much more is it but logical that someone else's life should be forfeit rather than that he should be permitted to do one of these acts?

Richard Friedman offers a different explanation to the one I gave, and I find it worthy of being brought to your attention:

This is a belated comment. You said that the homeowner is entitled to kill the burglar because of two principles – that it is not reasonable that a person should permit himself to be robbed, and that when another person may be threatening one's life, one is entitled to strike first and kill the other. You seem to be implying that protection of property entitles one to kill a potential thief. I had thought that the Gemara mentions this idea (that it is not reasonable that a person should permit himself to be robbed) for a different purpose – not to permit the homeowner to kill, but merely to explain the thought process of the burglar. That is, the burglar will expect the homeowner to defend his property, and therefore, if the burglar enters anyway, we must assume that the burglar intends to kill the homeowner if he finds him. Now, if the homeowner expects the burglar to use deadly force, then the homeowner himself is entitled to use deadly force to defend his own life.

In other words, I think your two principles are really only one – it is only self-defense, not defense of property, that entitles the homeowner to kill the burglar. The only relevance of property defense is that the burglar expects the homeowner to use deadly force to defend his property (though such use of deadly force might not be justified for that purpose alone), and thus the homeowner must expect the burglar to use deadly force.

I think that's why a daytime break-in would not entitle the homeowner to kill the entering thief, even though the interest in defending his property is the same as during a nighttime burglary – the thief entering in daytime does not expect the homeowner to be at home, and thus we cannot assume that the daytime thief comes prepared to use deadly force. Because the homeowner cannot assume that the thief will use deadly force, the homeowner himself is not entitled to use such.