Bar-Ilan University
Parshat Mishpatim 5774/January 25, 2014
Parashat Hashavua Study Center
Lectures on the weekly Torah reading by the faculty of Bar-Ilan University in Ramat Gan, Israel. A
project of the Faculty of Jewish Studies, Paul and Helene Shulman Basic Jewish Studies Center, and
the Office of the Campus Rabbi. Published on the Internet under the sponsorship of Bar-Ilan
University's International Center for Jewish Identity. Prepared for Internet Publication by the
Computer Center Staff at Bar-Ilan University.
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"If the sun has risen on him"
By Yonah Bar Maoz
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

Ms. Bar Maoz teaches in the Department of Bible.
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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 32:321 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
1
He found a closely related example of similar use of the idea of light: "the sun has risen on him"—
like "the day broke upon them (va-ye'or lahem) in Hebron."
2
As with other laws, the first case is presented after the introductory word, ki (= when), and the other
cases begin with the word im (=if).
3
The Christian division into chapters interrupted the theme without justification, for the thief in verse
1 of chapter 22 is mentioned with a definite article and clearly had been spoken of earlier. But the
division of the Torah into parshiyot views all the laws of theft as a single unit, presented in a single
passage and clearly differentiated from the laws of the goring ox, which precede them, and the laws
of the man who lets his livestock loose to graze in another's land, which follow them.
2
The first double provision, beginning and concluding the law, is that the penalty for any
crime of theft4 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
4
The law in these verses ostensibly speaks only of stealing animals, for which the punishment can be
as high as five times the value of the stolen goods, however, in any other instance of theft the thief
only pays double, as will be stated in verse 6, below.
5
This law is not specific to theft, since the thief is sold on account of accumulating a debt he cannot
pay and in this regard he is like any other debtor.
6
"If a man steals an ox, a sheep, a donkey, a pig, or a boat—if it belongs either to the god or to the
palace, he shall give thirtyfold; if it belongs to a commoner, he shall replace it tenfold; if the thief does
not have anything to give, he shall be killed."
http://archive.org/stream/LawCollectionsFromMesopotemiaAndAsiaMinor/LawCollectionsFromMeso
potemiaAndAsiaMinor_djvu.txt
3
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)."
7
M. D. Cassuto, Perush al Sefer Shemot, Jerusalem 1965, p. 196.
8
Eshnunna, situated north of present-day Baghdad, fell to Hammurabi. Its law code preceded the
Code of Hammurabi by about 150 years.
9
http://archive.org/stream/LawCollectionsFromMesopotemiaAndAsiaMinor/LawCollectionsFromMes
opotemiaAndAsiaMinor_djvu.txt
10
Article 22 of the Code of Hammurabi gives the death sentence to anyone who steals, not
distinguishing between theft in the open and theft in secret.
11
Likewise Ezek. 12:5, 7, 12. The same seems to be the sense in Job 24:16 as well as Amos 9:2. But in
Jeremiah the meaning appears to be influenced by the sense which follows from the verse in our
reading, namely something done covertly: "Moreover, on your garments is found the lifeblood of the
innocent poor—you did not catch them breaking in. Yet, despite all these things" (Jer. 2:34). As for
Jonah (1:13): "Nevertheless, the men rowed hard (va-yahteru) to regain the shore, but they could
not, for the sea was growing more and more stormy about them," sailing the ship involved channeling
through the barrier of water before it.
4
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
12
As in Judges 9:33: "Early next morning, as the sun rises, advance on the city." Hence the expression
mizrah shamesh (=from whence the sun shines) as denoting one of the four cardinal directions.
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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
13
Mekhilta de-Rabbi Ishmael, Mishpatim, Tractate De-Nezikin, ch. 6, s.v. im yakum.
14
And, in the spirit of the midrash cited at the beginning of this article, we might say: for his spiritual
healing.
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