The Law of the Tunnel
How Torah Confronts Those Who Weaponize Ambiguity
If the thief is seized while tunneling [bamachteret] and beaten to death, there is no bloodguilt in that case.
If the sun had already risen, there is bloodguilt in that case. [The thief] must make restitution, and if lacking the means, shall be sold for the theft. (Exodus 22:1-2)
In the dark they tunnel into [chatar] houses;
By day they shut themselves in;
They do not know the light. (Job 24:16)
If they tunnel [yacht’ru] down to Sheol,
From there My hand shall take them (Amos 9:2)“I and the burrow belong together in such a way that I could calmly, in spite of all my fears, settle down here without at all having to try to open the entrance-way despite all my reservations.” (Kafka, “The Burrow”)
The 10 commandments, which we read last week in Yitro, speak in absolutes: “Thou Shalt X,” “Thou Shalt Not Y.” This week’s Torah reading, Mishpatim, speaks in terms of tangible cases and situations: “If this happens, do this,” “When this happens don’t do this.” “Although you will want to do this, don’t.” Read Mishpatim carefully and you’ll find nearly every verse beginning with a ki (“when”) or im (“if”). The 10 commandments provide a priori, unconditional principles, or general rules for a good life. The Mishpatim that follow speak to the conditional rules, triggered by non-ideal events, that help us live in a world of transgression, error, and ambiguity. We hope that we won’t have to know, first-hand, what to do in many of these situations, but the laws are waiting for us in the event that we need them. It’s hard to reason in a crisis. Mishpatim offer structure to those in a state of moral chaos. They also help society work. If every individual kept the 10 commandments, we wouldn’t need them. But given the “Tragedy of the Commons,” Mishpatim describe a social covenant that will be needed to manage individual and interpersonal failure.
One such law is that of the night burglar. Tractate Sanhedrin turns him into an archetype of the rodef, the criminal whom one is permitted to kill in self defense. One is not allowed to kill a daytime thief as we cannot presume the thief’s intent to kill. Still, in the night, we do not see the thief and we do not see his intention outright, yet we can infer that he has chosen a time and place specifically to maximize the chance of a violent confrontation. In such conditions, it would be folly to offer the would-be-killer what Rabbi Y.Y. Jacobson calls “Suicidal empathy.”
Mishpatim asks us to judge (sharing the same root as shofet) the situation. And while the courts will settle the hard cases, one cannot observe Mishpatim without being a judge oneself. Developing discernment is a religious obligation. One might think Torah law is only about submission, but Mishpatim break that spell, because agency and interpretive creativity are needed to bridge the general, abstract rule with the specific circumstances in which I must apply it. Ex-ante, “Thou Shalt Not Steal,” “Thou Shalt not Kill.” Ex-post, I hear an unidentified sound and I need to figure out how to respond. It isn’t just the burglar burrowing beneath my home, it’s every event that disturbs my pre-fit, preconception of how things are. The thief robs me of my ability to assume there are no thieves. The tunneler has not just violated my physical space, but my mental space. He has created a situation of maximum ambiguity, and chosen time specifically to create moral confusion. The thief turns the home, a site of shelter, into a battlefield.
The Torah permits, even obligates me, to self-defend. The covenant is aspirational, but it must also be practical. Paul is wrong when he writes, I would not have known sin, but through the law; for I would not have known lust, except that the law had said, “Thou shalt not covet.”” (Romans 7:7) Quite the opposite: the Mishpatim are needed—im v’ ki—if, when, and because most people are not saints. Paul’s critique, in any case, refers to the Law as an abstraction. But what Paul needs to address is not the absolute law of “Thou shalt not” but the relative, worldly laws regarding what to do when we share the earth with those who violate basic norms of decency.
The tunneling thief thus emerges as more than just a legal case - he becomes a paradigm for how Torah law confronts those who make ambiguity itself their weapon. Just as the tunnel transforms domestic space into a zone of uncertainty, modern forms of warfare and violation often operate by creating spaces where moral clarity becomes impossible. The Torah's insight is not just that we must defend against such violations, but that we must understand the psychology of those who choose to operate underground - whether literally or metaphorically. They win their war against the light not through direct confrontation but by forcing its defenders to meet them in twilight. This is why the law appears in Mishpatim: it teaches us how to judge and act in precisely those moments when judgment seems most impossible. The tunneling thief may be an extreme figure, but he reveals a profound truth about moral life - that some of our most difficult challenges come not from those who break rules directly, but from those who deliberately create spaces where rules become unclear.
The underground is not only the home of evildoers. It is also the home, ironically, of those who judge our good-enough-world too harshly. The underground is a hideout from the complex architecture of Mishpatim, back into the primal place where one need not change one’s mind. Dostoevsky and Kafka describe the paranoid and pressured consciousness of underground life. The modern misanthrope is not the plotting, hostile thief or terrorist, but his inverse: one who retreats from the world above ground because the terrorist-thief has robbed him of his faith in ordinary life. Like the hidden, primordial light that must go underground until it is “sewn by the righteous” these beings are too sensitive for this world. They cannot accept the moral ambiguity above ground so they hold on to their moral absolutism, even if it means they have to become refugees from daylight. They denounce all who disagree with them as evil until they are left only with themselves. Amos writes about those who dig into Sheol so as to avoid divine judgment—as though God’s gaze might not penetrate to certain recesses. But one might invert his point, as well: they dig into Sheol so as not to have to judge their fellow earthlings, so as not to have to develop discernment.
The Torah enjoins us to both moral clarity and moral complexity. We must strike down our pursuers and identify them as such, even and precisely as they deliberately obfuscate. We must not let their underground logic—their preference for digging into Sheol rather than building in the light—cause us to burrow in self-righteousness. Discernment is the middle way between a quietistic retreat from moral judgment, on the one hand, and a facile moralizing on the other. Having now experienced Revelation, and accepted a moral ideal, the challenging, ongoing work begins of realizing it in the world.
Shabbat Shalom,
Zohar Atkins