Parshat Shoftim
“When there is found among you, within one of your
gates that the Lord your God is giving you, a man or a woman that does what is
ill in the eyes of the Lord your God, to cross his covenant, going and serving
other gods and prostrating oneself to them – to the sun or to the moon or to
any of the forces of heaven that I have not commanded - and it is told to you, you are to hear
and you are to inquire well, and if here: true and correct is the matter – this
abomination was done in Israel – then you are to take out that man or that
woman who did this evil thing, out to your gates, the man or the woman; you are
to stone them with stones, so that they die. On the statement of two witnesses
or three witnesses shall the one worthy of death be put to death; he shall not
be put to death on the statement of one witness. The hand of the witnesses is
to be against him, at the
beginning, and put him to death, and the hand of the entire people, afterward;
so shall you burn out the evil from your midst!
(Devarim
17:2-7)
“So shall you burn out
the evil from your midst”
As an idiom of inner struggle against evil
“So shall you burn out the evil from your midst”
–
Perhaps this is an allusion to him whom The Holy One, Blessed Be He, labeled
‘evil’ [i.e., the evil inclination], as is written (Bereishit 8:21) “The
devisings of man’s mind are evil”. The phrase “evil” refers to
that recognized evil. And the meaning of the passage is, that when justice
is done to such a person, the evil is burned out and its strength sapped, and
it will not become strong in men’s hearts, as is said “from your midst.”
(Ohr
HaHayyim, Devarim 13:6)
. . . The evil inclination in all its full power is
bad, but generally it is good, for it enables the righteous person, who
conquers his inclination, to
receive his reward. There are two categories of overcoming the evil
inclination. David killed it, as is written “and my heart is hollow
within me” – he removed the power of evil from his heart, leaving it
hollow; but our father Avraham transformed it into a force for good, as is
written (Nehemiah 9:8), “You
found his heart true to you,” (Yerushalmi, Berachot Chap. 9, Halacha 5) as
is written “with all your heart” – with your good inclination and with
your evil inclination” (Berachot 54a); he takes all the evil qualities –
murder, pride, anger, envy, hatred from the evil inclination and uses them to
worship the Creator, Blessed Be He, such as the case of one who killed someone
deserving of death, thereby observing the commandment of “So shall you burn out the evil from
your midst”.
(Sifre Hassidut, Rav Tuv 97b)
It is also
known that the essence of shattering the evil inclination is through the
Torah, as our Rabbis, of blessed memory, said: (Kiddushin 30b) “I created the evil
inclination, and I created Torah as its antidote.” Thus do we perform the positive commandment “So shall you
burn out the evil from your midst” (Devarim 13:6) – which is
repeated in the Torah seven times.
It is also written “for your being accepted you are to slaughter it”
– in the Torat Kohanim this is interpreted as “you shall slaughter your daat”,
and this is the slaughtering of the evil inclination. (The
Midrash in Torat Kohanim is based upon multiple meanings of words. The word “ratson”,
may be translated as ‘will’, as “favor’, and and ‘desire’.The simple
meaning of the Biblical passage quoted, - lir’tsonchem tizb’chuhu – is “for
your being favorably accepted you
are to slaughter it”. The
Midrash, however, translated the passage “slaughter your daat.’ ‘Daat’ may
mean belief, knowledge, opinion, and intelligence. The author of Maalot
HaTorah seems to be saying
that the midrash is telling us to ‘slaughter’ our evil inclination which is
expressed either through our false beliefs or by use of our falliable
intelligence.)
It is also written, “And you shall slaughter it on the northern corner of
the altar” (Ibid. 1:11) – this refers to one’s yetser –
his inclination – as is
written, “And I shall distance the northern one from you” (Yoel 2:20)
-– and the Talmud (Sukkah 52a)
identfies the ‘northern’ as ‘the evil inclination.”
(Maalot
Hatorah, a volume of Mussar)
***
The
parasha of Arey Miklat – the Cities of Refuge – features two central
figures: the accidental murderer
and the blood redeemer.
For
whose sake did the Torah institute the parasha of arey miklat – for the accidental
murderer, or for the blood redeemer?
We shall attempt to answer
this question, presenting two possibilities and suggesting how the various laws suit each of the
approaches. Finally, we shall
examine the relevance of the law of arey miklat for our day, according
to each approach.
The opinion which emerges
most clearly from the Halakhic discussion of arey miklat is
that the exile to the cities of refuge is intended to provide expiation for the
accidental murderer. Our Sages
devised reservations and qualifications to determine who is the accidental
murderer who deserves exile. If his act of manslaughter was almost coercive,
i.e., he could not possibly have prevented the accident, he is exempt from
exile. If, on the other hand, his act was so serious that one might say that
his negligence was almost intentional – he, too, is exempt from exile, because
his action is too severe for him to justify expiation through exile.
The
‘accidental murderer’ sentenced to exile is one who, on the one hand, could
have prevented the act, but, on the other hand, his act cannot be equated with
willful murder. The Torah taught that such a person must be punished by exile
to an ir miklat. At the
heart of this decree is the recognition of the value of human life; it is
essential to warn people that they must exercise caution and not cause – even
unintentionally – another’s death. This deterrence is created by decreeing exile, and by
labeling the person who has unintentionally killed “rotseach bi’sheggagah” –
‘accidental murderer.’1
The accidental murderer is
permitted to leave the city of refuge upon the death of the High Priest.
How to explain this
particular date of release? Chazal, in Tractate Makkot, rationalize this ruling
from the viewpoint of the High Priest. We, however, shall attempt to examine
this law from the position of our current subject, the accidental murderer.
The
most salient feature of this method of determining date of release is its unpredictability. The High Priest may go to his eternal
rest shortly before the murderer’s exile, or his date of demise may arrive long
after. From the murderer’s point of view, the length of his incarceration
depends upon chance. It seems to me that we have here a case of measure
for measure. The accidental murderer no doubt argues: “What could I have done?
I certainly did not intend a death which happened by chance.” So the Torah also leaves the term of
imprisonment to chance. There is clearly an element of deterrence – if
you do not wish to be given over to the hands of chance, conduct yourself in
such a way that you do not “by chance” cause someone’s death.
The
value of human life, and the war against death caused by negligence are as
relevant today as much as – if not more than – in ancient times. The traffic
accidents which take a higher toll than any other plague, are the fruits of
repeated accidental murders. I don’t think that we are able to again establish arey
miklat (even from a Halakhic standpoint, the matter is complicated), but we
certainly have much to learn from the parasha of arey miklat about the
importance of the value human life, and of the necessity of dealing severely
with today’s accidental murderers.
Let
us turn to the other character who ‘stars’ in the parasha of arey miklat
– the blood redeemer. The
practice of blood redemption has both positive and negative aspects, but it
seems to me that in a country which has a stable and enlightened government, the negative aspects
outweigh the positive ones. It is
best to entrust the government authorities with the obligation of preventing
needless bloodshed. The fury of the avenger must not lead to the murder of one who killed accidentally. Even
considering the severity of causing death by negligence, it is essential to
differentiate between it and between intentional murder; therefore the
accidental murderer must not be left to the mercy of the avenger. This idea, which focuses our view on
the avenger, is to be found in Rambam’s Guide for the Perplexed, Part
III, Chap. 40:
“The
reason for the exile of the accidental murderer is to calm the soul of the
blood redeemer, that the one responsible for this accident be out of his
sight.”
According to this approach,
it can be said that the aim of the mitzva of arey miklat is the
prevention of blood vengeance. This rationale would seem to place the mitzvah
of arey miklat alongside such mitzvot as sacrifices and the laws
pertaining to slavery. In both latter cases
– according to some commentators
– the Torah would have preferred to totally abolish the
underlying foundations of these laws, but, aware that the people were not yet
ready for such far-reaching legislation, the Torah instituted rules which were
to minimize the negative phenomena.2 The parasha of arey miklat can be viewed in
like fashion. The Torah takes a negative view of blood vengeance. One may not
be executed “until he can come before the community for judgement.” In
ancient patriarchal society, however, it would have been impossible to totally
abolish the institution of blood redemption. Therefore, the Torah minimized it
so as to prohibit blood vengeance,
at least from the moment the accidental murderer reaches his city of refuge.
It
seems that today the Torah has achieved its aim; the phenomenon of blood
vengeance is hardly prevalent in the Jewish community. Again we may compare
this to slavery. The principles of freedom embodied in the Torah have affected the human race, to
the point where slavery has been abolished in most places. Is there any purpose
today to insist on laws such as “Whoever frees his slave violates a positive
commandment”? The answer would be in the negative. The influence of Torah
values was so effective that it is pointless to return to the intermediate
stage in which laws suitable to that stage were promulgated. So with our subject under discussion.
It would be pointless to re-institute
the law of arey miklat;
the Torah has had so favorable an influence that in most of the land the
practice of blood redemption has been done away with. What, then, would be the
purpose of again permitting blood redemption when the accidental murderer is
found outside his city of refuge?!3
According
to this interpretation – in which the attention of the arey miklat
law is focused upon the blood redeemer – why does the accidental murderer go
free upon the death of the High Priest? We shall quote the answer of the Rambam
in his Guide for the Perplexed.:
“And it [the release of the accidental murderer] is
contingent upon the demise of that person who is the greatest of men and the
most beloved in all Israel, because thus will the soul of he who suffered the
death of a relative be pacified. Such is the nature of man, that whenever
one is harmed, if another is harmed equally or more
severely, he finds some comfort for his own hurt, and for us there is no more painful
a hurt than the death of the High Priest.”
We
see, then, that the law mandating arey miklat embodies both aspects: the
emphasis upon the value of life, as expressed by the severity with which the
accidental murderer is dealt, and the desire to eradicate the practice of blood
vengeance. For us today, it is appropriate to embrace that aspect which
emphasizes the value of human life.
Avi
Gorman is an attorney
1 Additional conclusive proofs that exile to arey
miklat is, indeed, a punishment for the accidental murderer, may be found
in a number of laws. When an accidental murderer dies before his going into
exile, his coffin is exiled to an ir miklat (Makkot 11b). And even when there is no blood redeemer, the accidental murderer must
go into exile. From both these laws, it is clear that purpose of exile is not
the protection from the redeemer, but rather punishment for causing death
through negligence.
2 Rabbi Nahum Rabinowitz, Darka Shel Torah,
pp. 11-27
3 The dependence of a mitzvah upon its rationale is
a complex and sensitive subject. True, in our case, there is no real
justification for deep exploration
of this subject, because, according to the Halacha, the absence of a
Sanhedrin precludes the reestablishment of the law of arey miklat. Our discussion is limited to the
question of application of theoretical foundations of arey miklat to our
lives, and in this context we should certainly probe the relevance of the
mitzva and its aims to our lives today.
***
“Should You Say . . .
You May Set, Yes, Set Over You A King” – Mitzvah or Compliance with
the Will of the People
“Should
you say: I will set over me a king” – Rabbi Nehorai says: This passage is
critical of Israel, for it is written “For it is not you that they have
rejected; it is Me they have rejected as their king.” (Samuel II, 8:7)
Said
Rabbi Yehuda: Is it not a Torah-ordained mitzva to request a king?! For it is
written, “[You may] set, yes, set over you a king that the Lord your God
chooses” – why, then, were they punished in Samuel’s time? Because they
added to their request “like all other nations around us”.
Rabbi
Nehorai says: They desired a king who would impose idol worship, as is written,
“that we may be like all the other nations; let our king rule over us and go
out at our head and fight our battles.”
(Sifrei,
Shoftim, 156)
At the time the Children of Israel entered the Land, they were commanded to perform three
mitzvot: To appoint a king, as is written “Set, yes, set over you a king,” to
wipe out the seed of Amalek, as is written, “Erase the memory of Amalek,” and
to build the Chosen House, as is written, “To put his name there, to have it
dwell, you are to inquire and are to come there.”
(Rambam, Mishneh Torah, Laws of Kings 1:1)
“Should you say: I will
set over me a king” – The
meaning of “say” is not expression by speech; it is rather like “And you
say: I want to eat meat”, et
al. This usage implies that there was no absolute mitzva to appoint a king – the
matter was optional. Yet it is
common knowledge that Chazal considered the appointment of a king to be a
mitzvah! Why, then, does Scripture state “Should you say”? It would seem
that the form of national leadership depends on whether matters are determined
by monarchy or by the will of the people. Some nations cannot bear monarchial
control, whereas for others a state without a king is like a ship without a
captain. This matter cannot be
determined by the force of a positive mitzvah; matters of state leadership
touch upon sakanat nefashot – life-threatening situations, and
considerations of sakanat nefashot take precedence over positive
mitzvot. Therefore it is impossible to command the appointment of a king as
long the general public is not in favor of it, seeing neighboring nations
functioning under a better system . . . Therefore it is written “Should you
say” – if the people demand it, then “[You may] set, yes, set over you a
king”.
(Netziv,
Haamek Davar, Devarim 17:14)
‘With the Increase in the Number of Murderers – the Law of
the Neck-Broken Calf Was Abolished”
How
are we to understand these words of Chazal regarding the abrogation of the laws
of egla arufa -– the neck-broken calf – and of “the bitter waters” because of the increase of
murderers and adulterers? The answer is that these mitzvot, involving
impressive ceremonies of expiation, were conducted in exceptional
circumstances, and were intended to repair breaches in existing barriers. . .
When the foundations of the life of Torah and purity are weakened, such
as in these days, when murder, bloodshed, rape, and adultery become an almost
daily item in the communications media, and when the social framework is such
that murderers act openly, there is something ridiculous – and even repulsive –
when organizations and associations
declare war against these phenomena. We see how what was, in the past,
an institution of justice and an act of constructive influence, disappears and
is nullified when the generation is undeserving of it.
To
what can this be compared? To a rabbinate which pronounces a severe
interdiction against the use of a defective blade by the butcher who slaughters
a pig. These words also relate to the conflict regarding violation of graves
about which we recurrently hear.
(Y.
Leibowitz, Seven Years of Discussions on the Weekly Parasha, p.858)
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