THE FAMILY HEADS IN THE CLAN OF THE DESCENDANTS OF GILEAD THE SON OF MACHIR SON OF MANASSEH, ONE OF THE JOSEPHITE CLANS, CAME FORWARD AND APPEALED TO MOSES AND THE CHIEFTAINS, FAMILY HEADS OF THE ISRAELITES. THEY SAID, "THE LORD COMMANDED MY LORD TO ASSIGN THE LAND TO THE ISRAELITES AS SHARES BY LOT, AND MY LORD WAS FURTHER COMMANDED BY THE LORD TO ASSIGN THE SHARE OF OUR KINSMAN TZELOFHAD TO HIS DAUGHTERS. NOW, IF THEY MARRY PERSONS FROM ANOTHER ISRAELITE TRIBE, THEIR SHARE WILL BE CUT OFF FROM OUR ANCESTORAL PORTION AND BE ADDED TO THE PORTION OF THE TRIBE INTO WHICH THEY MARRY; THUS OUR ALLOTTED PORTION WILL BE DIMINISHED... SO MOSES, AT THE LORD'S BIDDING, INSTRUCTED THE ISRAELITES, SAYING: "THE PLEA OF THE JOSEPHITE TRIBE IS JUST. THIS IS WHAT THE LORD HAS COMMANDED CONCERNING THE DAUGHTERS OF TZELAFHAD: THEY MAY MARRY ANYONE THEY WISH, PROVIDED THEY MARRY INTO THE CLAN OF THEIR FATHER'S TRIBE."

 (Bamidbar 36:1-6)

 

 

Decrees Which Respond to the Demands of the Day

Commands beginning with the phrase this is the word are usually only observed temporarily. The limitation on marriages of a daughter who inherits was only observed by the generation which participated in the conquest of the Land.

 (S.R. Hirsch on Devarim 36:6-7)

 

Rabban Shimon ben Gamliel said: There were no better days for Israel than the fifteenth of Av and Yom Kippur.

Yom Kippur makes sense - it offers forgiveness and atonement, [it is] the day when the second Tablets were given. But what is there to the fifteenth of Av?

Rav Yehudah said in the name of Shemuel: It was the day when the tribes were allowed to intermarry.

How is it learned from a verse? This is the word that the Lord instructed the daughters of Tzelofhad (Bamidbar 36:6) - This thing will only be observed in the present generation.

(Ta'anit 30b)

 

 

In memory of Arik Frankenthal,

 who loved life and the Land,

and was brazenly murdered by criminals.

 

Who are the Cities of Refuge For?

Elon Langheim

 

The rules regarding accidental murder constitute a significant new element in biblical law, because it contradicts the principle which determined this branch of law up to our parasha. The principle is stated in Bereishit (9:6): One who sheds the blood of a human will have his blood shed by a human. Generally speaking, in early biblical society the death penalty was carried out by the victim's relatives, who were known as go'alei ha-dam (redeemers of the blood). This graphic phrase requires of the executors of the death penalty that they kill the murderer by "redeeming his blood" - "freeing his blood" from his body to be spilled on the ground. However, when it is possible to show that the murderer had not intended to kill, that death was not the intended consequence of his action, the execution of the death penalty is taken out of the hands of the go'el ha-dam.

Here is how this new biblical idea is expressed in Shemot: He who fatally strikes a man shall be put to death. If he did not do it by design, but it came about by an act of God, I will assign you a place to which he may flee (21:12-13). This passage describes the accidental murderer as someone who did not intend to harm the victim, a person who did not do it by design, harming the victim by mishap, or as scripture puts it, it came about by an act of God, that Divine chance brought about the death. The main novelty here is the limitation upon the sweeping application of the death penalty. This limitation requires Israel's sages and judges to further develop the laws of capital punishment.

The second chapter of the tractate Makot contains a fascinating Talmudic discussion regarding the judgment of accidental murderers and the conditions under which they are exiled to cities of refuge. Various legal situations are considered in light of the exegesis of the biblical text, allowing us to sense the creative tension and ethical dilemmas generated by this topic. One of the most interesting and difficult issues to arise involves the case of a ger toshav (resident alien) who murders accidentally.

The discussion begins with the mishnah on page 9b: "All are exiled for [having accidentally killed] an Israelite, and an Israelite is exiled because of them, except for a resident alien. A resident alien is exiled [for having accidentally killed] a resident alien." That is, anyone who kills an Israelite accidentally is exiled to a city of refuge, and any Israelite who kills accidentally is exiled as well. However, if one of the parties to the incident (killer or victim) is a resident alien, the rule does not apply. Textual variants of this mishnah create difficulties for our understanding of such "mixed" cases. If we read "except for a resident alien", one must ask: To whom do these words apply - to the resident alien who killed an Israelite, or to the Israelite who killed a resident alien, or to both? If we read it, "except for [exile brought upon the murderer] by a resident alien [‘s death]," it is evident that an Israelite who kills a resident alien is not exiled, but in the reverse case in which a resident alien kills an Israelite, the resident alien is exiled. The Talmudic discussion of the mishnah brings to light a pre-existing difficulty in the interpretation of the law's biblical foundation.

The Talmud claims that the difficulty arises from an apparent contradiction between two verses in our parasha. The Gemara deduces from the expression for you in the verse and these cities shall be for you as a refuge (35:10) that the cities of refuge are designated for use by Israelites, and not by resident aliens. In contrast, verse 15 clearly includes the resident alien among those living in a city of refuge:

For the Israelites and for the alien and resident among them, there shall be six cities.

In addition, according to most of the Rishonim, the Sages also took into account a third source dealing with the cities of refuge, appearing in Devarim (19:4-5):

Now this is the case of the manslayer who may flee there and live: one who has killed his neighbor unwittingly, without having been his enemy in the past. For instance, a man goes with his neighbor into a grove to cut wood; as his hand swings the axe to cut down a tree, the axe-head flies off the handle and strikes his neighbor so he dies. That man shall flee to one of these cities and live.

The midrash Sifrei comments: "What do we learn from the repetition of the word neighbor three times? His neighbor - to exclude others, his neighbor, to exclude the resident alien..." This source certainly implies that the resident alien is not among those exiled to a city of refuge.

The Gemara explains that the mishnah's ruling resulted from an attempt to solve the apparent contradiction between the verses. However, that does not end the discussion of the mishnah. The Gemara asks how the mishnah jibes with a baraita stating that just as in the case of an idolater, a resident alien is not exiled even if he kills accidentally: "There is a contrary source: Therefore, a resident alien and a gentile who kill are themselves killed!" That is to say: There is no difference in law between a resident alien who kills accidentally and a gentile (who has not achieved the status of resident alien) who in any case is liable to incur the death penalty in accordance with the verse from Bereishit cited above. Without entering into the technical details of the Talmudic discussion and the various attempts to solve the contradiction between the mishnah and the braita, let us consider one essential question, which is asked by Rava: Could it be possible that the same unintentional act draws the death penalty for a resident alien, but not for an Israelite? Could it be possible that the Torah is stricter with a resident alien than it is with an Israelite? In order to solve this problem Rava proposes that the resident alien mentioned together with the gentile in the braita is not just any accidental killer, but rather "one who says it is permitted" - a person who thought that the act of murder was permitted, since he was ignorant of the law against killing. Rava goes on to develop his view, claiming that the resident alien who thought murder to be permitted should have been acquainted with the law prohibiting bloodshed, since it is one of the seven Noahide commandments that resident aliens are required to observe. Therefore, if he disavows his responsibility to uphold the Noahide commandments, he should be treated as a gentile and killed, but if it is demonstrated that he really did murder unintentionally, the law treats him as it would an Israelite.

A question similar to that of Rava appears in Mekhilta Masekhta De-Nezikin:

Aysi ben Akavya says: Before the Torah was given, they were warned about bloodshed. After the Torah was given, instead of the law becoming more stringent, it became more lenient! In truth they said: Absolved from mortal judgment, it is given over to Divine judgment.

Actually, this derasha deals with the question why an Israelite who kills a gentile does not receive the death penalty, but incidentally, it asks: Could it be that the Torah is lenient with Israel in connection to laws of killing? In contrast to Rava's solution, which tried to explain the circumstances behind the stringency and leniency, here the darshan dissolves the possibility of ascertaining what is stricter and what is more lenient. Aysi ben Akavya claims that if absolution from the death penalty seems to be a sign of leniency, we have not succeeded in seeing the bigger picture, which includes Divine as well as human justice. This explanation also clarifies why, when studying our mishnah, we should not be confused by the apparent severity of its ruling.

Both attempts, that of Rava as well as that of Aysi ben Akavya, to reconcile between the sources and the fact that the Israelite's punishment is lenient compared to that of a gentile (which seems illogical to them) exemplify the Sages' efforts to grasp the truth arising from the verses and the mishnah. This mission is especially difficult in relation to the case at hand, due to the legal complications relating to the resident alien. These complications arise from the status of the resident alien as someone living under two different legal systems: that of Noahide law, which metes out the death penalty whenever a human is killed, and the laws of the Torah observed in the Land of Israel, which differentiate between deliberate and non-deliberate killings. The pinnacle of complexity is reached in a deadly encounter between an Israelite and a resident alien.

It seems to me that it is not by chance that this point remains open to interpretation, interpretation that demands of the legal authorities' great sensitivity to the social fabric of relations between residents of the land and the Israelites, making the system of laws dealing with killings all the more sophisticated.

It was not accidental that the command to set up cities of refuge is the first imperative involving the organization of government authority that Israel is commanded to execute with its entry to the Land (after the distribution of the tribal territories and Levite cities). The demand to safeguard the lives of all the Land's inhabitants is an essential condition for the establishment of Israel's control over it. Following the Land's bloody conquest, it is possible to begin life on a new path. Today, despite the establishment of the State of Israel's sovereignty, we hear increasing calls from extremists to struggle for territories with the Land of Israel, even at the price of bloodshed. Instead of trying to minimize the killing, while coping with the region's complicated reality, we hear harsh words of incitement, mostly from the religious-Zionist camp, legitimizing the deaths of Arabs and Jews. We all remember a similar period in which extremists distorted words of the Torah to justify the murder of people who would relinquish parts of the Land of Israel. In our times we should listen attentively to verses of our parasha, from which we discover that one who calls for killing in the name of the Land of Israel pollutes the land. Of such people it is written: You shall not pollute the Land in which you live; for blood pollutes the land (Bamidbar 35:33).

Eylon Langenheim is a member of the movement for "Realistic Religious Zionism" and a graduate of Yeshivat Kibbutz HaDati in Ma'aleh Ha-Gilboa. He works in education.

 

 

The Vengeance of the Israelites - God's Vengeance?

We have already on Bereishit 4:15 pointed out the relationship of nakom [avenge] to kum [rise up] (compare hom & naham, zol & nazal, zor & nazor, sug & nasog, potz & nafatz, utz & na'atz, doh & da'ah, etc.). It is the re-erection of rights which have been trodden under foot, or a person who has been thrown to the ground. The avenger identifies himself with the object to be raised up. That probably explains the reflexive form nakam, and also the mode of construing with the letter mem: carry out the avenging of the Israelites from [me'eit] the Midianites (Bamidbar 31:2). The purpose is not revenge, throwing down an enemy - that would be construed with the letter bet [ ba'Midyanim]. The purpose is the re-erection of Israel from the Midianites, its spiritual and moral freeing out of the power of their arts.

(Rabbi S.R. Hirsch on Bamidbar 31:2, Isaac Levy translation)

 

You shall not defile the land in which you live, for I the Lord abide among the Israelite people.

 (Bamidbar 35:34)

 

You shall not defile: He who pollutes the land. Alternatively, it may be read as a command, since I abide in it, and not for the land's sake, rather for the Israelites' sakes, that is why it says abide among the Israelite people.

(Ibn Ezra loc. cit)

 

I now establish my covenant with you (Bereishit 9:9) - On the condition that you do not shed innocent blood, I will establish my covenant with you not to destroy the earth again. However, the shedding of innocent blood will ruin the land, as it says, you shall not pollute the land, and the land can have no expiation, etc., but for all other transgressions only the perpetrator shall be struck but the land will not [be affected].

(Seforno Bereishit 9:9)

 

Even a Murderer Deserves a Fair Trial

The cities shall serve you as a refuge from the avenger, so that the manslayer may not die, etc. (Bamidbar 35:12) - why is this said? Because it says, and the blood-avenger kills the man-slayer, there is no bloodguilt on his account (35:27) - do I hear from this that he kills him on his own? We learn from the verse [that this not so]: the manslayer may not die unless he has stood trial before the assembly (35:12).

(Sifrei Massei 160)

 

Rabbi Akiva says: How is it known that if a Sanhedrin sees someone kill a person that they do not kill him immediately, [but rather only] after he stands trial? We learn from the verse unless he has stood trial before the assembly - not until he has stood before a different court.

(Makkot 12a)

 

 

 

 

 

 

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