The expression “caught red-handed” seems to suggest the worst possible result of being a thief. After all, if someone else’s property is found in someone else’s possession without evidence of a legal transaction, the “someone else” has some explaining to do.
The Torah, however, tells us that it can indeed be worse. The penalties for theft are spelled out in our parashah, Mishpatim:
“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…but if what he stole–whether ox or sheep–is found alive in his possession, he shall pay double” (Exodus 21:37, 22:3).
In her commentary on the Torah, Nechama Leibowitz (1905-1997) explores the meaning of the exceptionally higher penalty to be paid by the thief who isn’t caught red-handed because the stolen object has already been moved elsewhere, in this world or the next. She divides her analysis of the penalty into three compartments, one for each of the three human parties involved: the judge, the victim and the thief. Here is the first, the perspective of the judge:
“[David] Daube (1909-1999, scholar of ancient law at Cambridge, Oxford and Cal-Berkeley) points to the ‘objectivity’ of the proof of theft which exists when the animal has actually been slaughtered or sold. So long as the animal remains intact in the domain of the thief, he can argue that it had merely run away and that he was going in any case to restore it to its owner. Only when he has actually misappropriated it by positive action can it finally be proved that theft was committed.” (quoted in Leibowitz, vol. 2, p. 363)
Leibowitz isn’t particularly moved by this interpretation, for it doesn’t explain the large gap between double indemnity and quadruple or quintuple restitution. On Shabbat morning, we’ll look at this law from the perspective of the victim and the perpetrator.
Why do you think the Torah comes down so harshly on the thief who is caught not red-handed, but empty-handed?
Rabbi David Wise