The Castle Doctrine and the Halachic Treatment of Intruders

The Common Law “Castle Doctrine”

Within the past month, there have been several incidents in which homeowners who shot intruders were cleared of any wrongdoing, because of the “Castle Doctrine.” The Castle Doctrine is a common law rule that allows a person to use deadly force to defend an attack in or intrusion into his dwelling. (The word “castle” in the name of the doctrine is a reference to the saying “an Englishman’s home is his castle.”) In one recent case, an 18-year-old woman in Oklahoma shot an intruder because she feared for the safety of her child and herself. Similar events occurred in South Carolina and Pennsylvania.

In order to correctly comprehend the Castle Doctrine, it is necessary to understand the context in which it applies. 

Robbery vs. Larceny: Which Is Worse?

For centuries, common law countries have distinguished between larceny and robbery. Larceny was traditionally defined as “the felonious taking and carrying away of the personal goods of another.”(1) Robbery was considered a “compound larceny,” meaning that it contained all of the elements of larceny, but also required two other elements. First, the taking must be directly from a person or in his presence. Second, the taking must be done by “violence or putting [the victim] in fear.”(2) Modern American statutory definitions are essentially the same.(3)

The additional elements necessary for robbery result in the crime being categorized differently than larceny. In American state statutes, larceny is considered merely a crime against property. Robbery, in contrast, is classified as a crime against the person, because it involves a “violent invasion of the person.”(4) Accordingly, robbery generally carries a more severe punishment.(5) Thus, it is clear that American society views robbery as worse than larceny. The Torah, however, has a different perspective.

Criminal Justice in Exigent Circumstances

As noted in the comments to the previous post, which discussed capital punishment in Jewish law, there are some situations in which the usual laws of criminal procedure and punishment are disregarded due to necessity. This notion is also briefly discussed in the letter of Rabbi Moshe Feinstein, quoted in that post. Essentially, there are some times when Jewish courts exercise “extralegal” authority in dealing with criminals when “hasha’ah tzricha lekach” – when required by the moment. The term “extralegal” is used here to describe methods not mentioned in the Torah.

This concept is illustrated by the following statement of Rebbi Eliezer ben Yaakov (Yevamos 90b; Sanhedrin 46a; as explained by Rashi):

I heard from my teachers that courts may administer corporal and capital punishment, even though such punishment is not prescribed by the Torah. They cannot violate the Torah based on a whim, but they may act to protect the Torah if the situation requires. For example, a man once rode a horse on Shabbos during the period of persecution by the Greeks, when the observance of mitzvos was lax. Although he only violated a rabbinic prohibition, he was executed to enforce the observance of mitzvos. . . .

Besides for administering punishments not prescribed by the Torah, as described by Rebbi Eliezer ben Yaakov, batei din (Jewish courts) may also disregard various procedural protections generally afforded to criminal defendants.  An example of this is when Shimon ben Shetach executed 80 women in one day for practicing witchcraft. See Sanhedrin 45b. Generally, a beis din may execute no more than one person per day, to ensure that the judges spend ample time attempting to vindicate the accused. See Rashi, ad loc., s.v. Ein Danin.  However, since the practice of witchcraft was rampant at the time, Shimon ben Shetach understood that it was necessary to disregard this procedural safeguard in order to protect Torah observance. He therefore judged and executed all 80 women in one day, instead of prosecuting each one on a different day, so that no one would inappropriately attempt to save the accused from certain death. Id. Similarly, other procedural rules that would ordinarily protect a criminal defendant may also be disregarded in cases of exigency, such as the requirement that accused be warned by two witnesses and that confessions of the accused are inadmissible as evidence against him. Responsa Rivash § 234.

As for the rationale underlying this rule, the Rashba explains that if courts were restricted in all circumstances to the punishments and processes prescribed by the Torah, criminals would be undeterred, and society would not be able to function. Responsa Rashba, vol. 3, § 393. Although such lawlessness was historically uncommon in a Torah-based society, due to religious self-enforcement of the Torah’s laws, there were certain times when emergency action was required. Rabbi Moshe Feinstein, Igros Moshe, Chosen Mishpat, vol. 2, § 68.

In upcoming posts, I hope to address other examples of criminal justice in exigent circumstances, such as the kippa and the authority of a Jewish king to maintain societal order.

The Death Penalty in Illinois and in Jewish Law

Governor Pat Quinn of Illinois recently signed a law that abolished the death penalty in that state. According to an enlightening article in the Chicago Tribune, “It wasn’t the question of morality but the question of accuracy that led state to abolish capital punishment.” Apparently, it used to be only those who morally opposed the death penalty who were the sole supporters of its abrogation. However, after several wrongful convictions were publicized, even those who morally supported capital punishment had a reason to oppose it: a concern that innocent people were being put to death.

The concern for accuracy in capital punishment is by no means foreign to Jewish jurisprudence. Thirty years ago Rabbi Moshe Feinstein was asked by an American government official (see the comments for a discussion regarding who it was) for an explanation of the Jewish view of capital punishment. In his response (Igros Moshe, Chosen Mishpat, vol. 2, § 68), Rabbi Feinstein emphasized two points. First, unlike secular governments, the Torah does not impose the death penalty as a means of revenge or keeping the peace through fear. For that, we trust that God will do as He sees fit. Rather, capital punishment serves an educational purpose: it teaches us which transgressions are the most serious.

Furthermore, explains Rabbi Feinstein, the Torah shows concern for human life by ensuring that capital punishment is only imposed after satisfying numerous procedural safeguards. Some examples of the requirements that must be met before one can be punished with death are: a Beis Din whose judges have received Semicha (which is only bestowed upon great and wise men); a quorum of 23 judges; three rows of knowledgeable men must sit before the court and offer any arguments in favor of the accused; two purely impartial witnesses; the witnesses must have warned the accused, and he must have acknowledged the warning; and finally, capital punishment could only be imposed when the Great Sanhedrin of 71 judges sat in the Beis Hamikdash (the Temple). As a result, throughout Jewish history, the death penalty was rarely imposed (see Makkos 7a)––not because of any moral opposition to it, but because of a concern for accuracy.

For a fascinating discussion of criminal punishment in Jewish law and Western legal systems, see generally Rabbi Dr. Warren Goldstein (Chief Rabbi of South Africa), Defending the Human Spirit: Jewish Law’s Vision for a Moral Society 223-333 (Feldheim Publishers 2006).