2 If a thief is found breaking in, and is beaten to death, no bloodguilt is incurred;
3 but if it happens after sunrise, bloodguilt is incurred. (NRSV)
When I first read this verse, it resonated with me because God was permitting self-defense. You hear discussions about the Sermon on the Mount, especially Jesus' exhortation that people turn the other cheek (Matthew 5:39). People wonder if Jesus there is forbidding people to protect themselves, their loved ones, or others from those who are immediately threatening their lives. Like many, I have struggled with Matthew 5:39. Exodus 22:2-3, on the other hand, struck me as realistic. Call me a counter-Marcionite, in this case!
But I did not understand v 3. Why would God allow people to protect themselves from thieves during the night, but not during the day?
I have been reading the first century Jewish thinker Philo's take on this issue (Special Laws IV:7-10), and also various other people's interpretations: Nahum Sarna's Jewish Publication Society commentary on Exodus; Jeffrey Tigay's comments in the Jewish Study Bible; Ed Greenstein's comments in The HarperCollins Study Bible; The IVP Bible Background Commentary; John Calvin; Rashi; John MacArthur; Keil-Delitzsch; and the commentators featured on E-Sword (i.e., John Gill, Matthew Henry, Adam Clarke, Barnes, JFB, etc.).
The commentators phrase things differently, and some of them emphasize things that others do not emphasize. Still, overall, they have roughly the same explanation regarding Exodus 22:2-3.
Their idea is this: if a thief is breaking into a house at night, there is a greater probability that the thief will murder the residents of the house. The thief knows that people are in the house at the time of the theft, since the thief is breaking in at night, when people are at home and are sleeping. Self-defense is justified in that case, for the residents do not know if the thief will kill them or not.
During the daytime, the situation is different. The thief is primarily interested in stealing, since he does not even know if anyone is at home. He would probably prefer for no one to be at home, since in that case no one would identify him as the thief and turn him in! Philo makes the point that, during the daytime, residents can take the thief to the judges, and there will more likely be people around to help them against the thief. During the nighttime, people are asleep, so neighbors will be less likely to help the residents then. During the daytime, by contrast, neighbors are awake, alert, and around in case the residents need help. In short, there is less danger to residents during the daytime when a thief breaks into a house, and residents are able to pursue alternative paths to killing the thief to protect themselves, their loved ones, and their property.
Philo says that to kill a thief when he breaks into a house in the daytime is to yield to passion rather than reason, which, for Philo, is a big no-no. Philo also says that such an act would itself be theft in that it steals from justice. Of the commentators that I read, Matthew Henry was the only one who explicitly appealed to compassion and mercy for the thief. Sarna, however, acknowledged that Exodus 22:2-3 had a humanitarian element and contrasted that with certain other ancient Near Eastern laws:
“The laws of Eshnunna also deal with the topic of theft and likewise distinguish between daytime and nighttime offenses, but they are concerned solely with the protection of property and ignore the humanitarian issue. Hammurabi simply prescribes the death penalty for the thief who made a breach in a house or committed robbery.” (Page 130 of the Jewish Publication Society commentary on Genesis)
There are cultures that had different sets of laws for this situation, and people who interpreted the Torah a bit differently. They may realize that things are not so simple as a literal interpretation of Exodus 22:2-3 would indicate. After all, a thief breaking in during the daytime can immediately threaten a resident's life, and there may not be anyone around to help. What does a person do then? Are his or her hands tied because he or she is forbidden to kill a thief in self-defense during the day?
John Calvin refers to the Roman Twelve Tables, which permit self-defense during the night and during the day. Calvin then states: "But, since God had sufficiently repressed by other laws murders and violent assaults, He is silent here respecting robbers who use the sword in their attempts at plunder. He therefore justly condemns to death those who have avenged by murder a theft in open day." Calvin seems to be divorcing Exodus 22:3 from self-defense, saying that it concerns instead an attempt to carry out personal vengeance against someone who stole from one's house during the day. For Calvin, it seems, Exodus 22:3 does not forbid self-defense during the day, but it does forbid being so concerned about possessions that one kills a thief who is not an immediate danger.
The medieval Jewish exegete Rashi presents a not-so-literal interpretation of Exodus 22:3. For Rashi, the sun shining on the thief in that passage relates not so much to the timing of the theft. Rather, it relates to the understanding that the victim has of the thief's motivations----the light that the victim has on the situation. Does the victim perceive that the thief is peaceably disposed and is not an immediate threat to the victim's life? If so, then the victim is forbidden to kill the thief. According to Nahum Sarna, the rabbinic Mekhilta de-Rabbi Ishmael contains a similar opinion. Rashi may have gotten the idea from the Mekhilta.