Murder as an über ^[1]-transgression.

While murder is obviously the most extreme act of anti-sociability in which one can engage, and it is not surprising that the prohibition against murder is one of the seven Noachide commandments,[1] ^[2] as well as one of three sins where Jewish tradition demands one should rather give up one’s life than transgress,[2] ^[3] the Tora nevertheless draws a distinction between premeditated murder and manslaughter. Verses that categorize intentional murder as a heinous crime deserving of the perpetrator’s forfeiting his/her own life include: Beraishit 9:5-6; Shemot 20:12, 14; 21:12, 20; VaYikra 24:17; BaMidbar 35:16-21; Devarim 5:17; 19:10-13. On the other hand, inadvertent taking of human life is treated in an entirely different manner, primarily in Parashat Masai,[3] ^[4] with the murderer being sentenced to a period of exile[4] ^[5] [5] ^[6] in one of the forty-eight cities allotted to the Levi’im,[6] ^[7] located throughout the land of Israel.[7] ^[8]

Why should the consequence of manslaughter be exile to a city of refuge?

The logic behind imposing exile upon someone causing inadvertent death would appear to be that a person who takes another’s life, even accidentally, requires time to reevaluate his  own life and consider why he was so careless. By requiring the murderer to remain in a Levite city, the Tora is positing that this is the best place to spend such a “time out” when introspection and soul-searching is required, i.e., a city filled with individuals whose entire lives are dedicated to serving HaShem and helping the rest of the Jewish people to carry out their religious obligations in the Tabernacle and Temple. Let someone who obviously did not care sufficiently about his fellow human being take up residence in a community where the majority of the citizens devote their lives to just such a cause, in the hopes of effecting the rehabilitation of the accidental murderer.

The variable of the amount of time that the inadvertent murderer must spend in the city of refuge.

a) The customization of punishment.

A less logical aspect of the institution of exiling an inadvertent murderer to either an Ihr Miklat (city of refuge) or Ihr Levi’im (city of Levites), is that he must remain within the city[8] ^[9] until the death of the High Priest who is in office at the time of his transgression. (BaMidbar 35:25 [the same fact is reiterated twice more in v. 28 and 32]) “…and he (the perpetrator) will dwell in it (the city) until the death of the High Priest who was anointed with holy oil.” The Mishna in Makkot 11a poignantly records that the mothers of High Priests would send gifts of food and clothing to the exiles in the Levite cities so that these individuals would be favorably disposed towards their sons and not pray for them to die prematurely, thereby more speedily releasing the accidental murderers from their quasi-imprisonment. But, while interesting and psychologically engaging, such a source does not explain why the fates of these two categories of individuals, High Priests and inadvertent murderers, are linked together in the first place.

Several commentators, including Da’at Zekeinim MiBa’alei HaTosafot, Sephorno and HaKetav VeHaKabbala, essentially explain the intertwining of the exile of the murderer with the death of the Kohen Gadol as a means by which HaShem can tailor the punishment, or at least the process of atonement,[9] ^[10] to the specific nature of the crime. In contrast to the clear-cut evil that is inherent within a case of deliberate murder leading to the obvious punishment of execution by either a this-worldly or other-worldly court,[10] ^[11] a case of manslaughter can involve degrees of nuance in terms of culpability, irresponsibility, indifference, and inconclusiveness that would make establishing a standard punishment or course of atonement impossible.[11] ^[12] Consequently, making the amount of time that has to be spent in a Levite city dependent upon the lifespan of the High Priest creates the possibility of tailoring the sentence to the crime, a direct proportion being established between the degree of complicity and negligence and the current age and health of the Kohen Gadol. An additional variable that enters into the equation is the expectations for proper behavior, or lack thereof, associated with the specific perpetrator in question. It is possible that two cases that appear similar in every way in terms of how the victim met his end at the hands of the inadvertent murderer, will result in different lengths of exile due to the moral and spiritual level of the individual at whose hands someone died. Just as HaShem judges the righteous KeChut HaSa’ara (by a hairsbreadth)[12] ^[13] in all matters, in contrast to those who are deemed less righteous at the outset, it would stand to reason that such a calculation should equally apply to the case of the Rotzeach Be’Shogeig (the inadvertent murderer). In the end, such an approach to explaining why time spent in an Ihr Miklat (city of refuge) corresponds to the life of the Kohen Gadol has nothing intrinsic to do with the latter, and simply provides a means by which to vary and therefore customize, the punishment to the conditions of the specific incident in question. The inherent weakness in such an approach, is that it does not account for why the Kohen Gadol in particular should be singled out as the referent for establishing the quantity of exile—time in the Levite city could just as easily be made dependent upon the life of the king, of the head judge of the Sanhedrin, by lottery,[13] ^[14] or some other apparently random fluctuating numerical variable that could be orchestrated by HaShem.

b. Explanations that focus upon the function of the Kohen Gadol currently in office.

Other commentators offer explanations that are more directly tied to the nature of the position of the High Priest. RaShI, basing himself on R. Yehuda HaNasi’s view in Sifrei, sees the role of the Kohen Gadol as diametrically opposed to the crime of which the murderer is guilty, and therefore a certain negative symmetry is achieved by assuring that neither ever travels in the orbit of the other. “He (the High Priest) comes to contribute to the indwelling of the Divine Presence among Israel,[14] ^[15] and to lengthen their (the Jews’) days, while he (the inadvertent murderer) comes to remove the Divine Presence from Israel, and shortens the days of life.”[15] ^[16] Rabbeinu Bachaye, in addition to also citing R. Yehuda HaNasi’s position, and perhaps as a conceptual explanation for this view, adds that the Kohen Gadol “achieves atonement on behalf of all of Israel”, a view echoed by Ibn Ezra. The description of the High Priest’s role on Yom HaKippurim in VaYikra 16 emphasizes numerous times (v. 16, 17, 19, 21, 24, 30, 33, 34) how his Divine Service is specifically meant to achieve Israel’s forgiveness. Yet, it appears that these commentators are attributing the achieving of atonement for the inadvertent murderer, not to what the Kohen Gadol accomplishes during his life by virtue of his annual service on Yom HaKippurim, but rather by virtue of his death. While Rabbeinu Bachaye adds a psychological dimension to this concept, when he explains that the death of this Jewish leader distracts the survivors of the murder victim, and influences them to temper the intense anger that they feel towards the murderer, others suggest that the atonement is accomplished metaphysically. Beit Elokim, Sha’ar HaYesodot, Chapter 27 presents the following intriguing analysis: Inadvertent sins that are between man and God, e.g., prohibited foods and sexual prohibitions, can be atoned for via sacrifices. However, there is no comparable atonement process for transgressions against one’s fellow man. In the latter case, one has to either give reparations for damage and injury, or forfeit his life in the event that he has taken life. The case of inadvertent murder presents a quandary, because on the one hand, you cannot pay for a life[16] ^[17] in the manner that you can compensate for an eye or a foot, and on the other, the fact that this was an accidental death precludes the execution of the perpetrator. The Kohen Gadol’s role is to achieve atonement for sinners, and if he cannot accomplish this via a sacrifice, then he achieves it by means of his own death, whenever that occurs. Such an approach understands the life of the Kohen Gadol as not only the offer-er of sacrifices, but as a sacrifice in its own right.  A support for Beit Elokim’s view can be derived from a commandment that uniquely applies to the High Priest, and which appears to depersonalize him in the interests of assuring his readiness to devote himself to the Jewish people as a whole. The fact that he is not permitted to participate in the funeral of even his closest relatives,[17] ^[18] lest he intentionally become ritually impure and thereby unable to perform the Temple Service suggests that his private life is placed on hold as long as he occupies his leadership position.

c. A critique of the performance of this particular Kohen Gadol.

But the most morally challenging perspective is mentioned by RaShI, based upon a view attributed to Rabba in Sanhedrin 11a, as his secondary interpretation: “It was up to the Kohen Gadol to pray that disasters like this (the accidental killing of a person) should not occur during his lifetime.” The type of prayer that is expected of him is exemplified in Mishna Yoma 6:2, where we find what the Kohen Gadol would recite on the head of the “scapegoat”[18] ^[19] on Yom HaKippurim before the animal was sent out into the desert:

I beg of You, HaShem. Your nation, the Family of Israel, has been iniquitous, sinned willfully, and sinned before You. I pray with Your Name! Forgive now the iniquities, willful sins and errors, for Your People, the Family of Israel, has been iniquitous, sinned willfully, and erred before You, as it is written in the Tora of Your servant Moshe. (VaYikra 16:30) “For on this day He shall Atone for you to Purify you. From all your sins before HaShem you shall be purified.”[19] ^[20]

Rabbeinu Bachaye expands the implications of Rabba’s contention that the Kohen Gadol is at fault, if accidental murder takes place on his watch. “Whomever fails to pray when they have the opportunity and obligation, is a sinner…And so it is stated regarding David… (Tehillim 35:13) ‘But as for me, when they were sick, my clothing was sackcloth; I afflicted my soul with fasting, and as for my prayer, MAY IT RETURN TO MY OWN BOSOM.’ From these words we learn that one who prays for another, the benefit also positively affects the pray-er, according to the principle of Mida KeNeged Mida (repayment in kind.) The opposite is also the case, i.e., if an individual intended harm for another, events take their course and bad things end up happening to the plotter…” Rabbeinu Bachaye’s innovative insight is that harmful intentions not only manifest themselves in terms of positive actions, but can also take the form of passivity, i.e., the failure to intervene with another human being as well as not praying and thereby not intervening with HaShem on behalf of someone who has the potential to come into harm’s way.

A significant difficulty with approach c.

While an interpretive approach that attributes blame to the High Priest for ineffectively praying, and concomitantly sheds new light on the idea that those in exile will pray for his speedy demise, i.e., another example of an ironic quid pro quo, more satisfyingly accounts for why the lifespan of the Kohen Gadol is chosen as the determining factor in the sentence of exile for the accidental murderer, a different difficult issue comes into play for these commentators. Why should we assume that if something unfortunate takes place, this is due to a lack of prayer on the part of the Kohen Gadol? Are we to believe that every last thing that he requests, be it on Yom HaKippurim, or for that matter any other time, will inevitably be responded to favorably, and therefore omissions, or failure to pray altogether are equivalent to negative prayers, or even curses? In particular, consider the classical scenario of inadvertent death that is quoted by RaShI on Shemot 21:13, based upon Makkot 11b:

What is the verse referring to? To two people, one who is an accidental murderer, the other a premeditated murderer. In neither instance were there witnesses to testify against them, leading to the fact that this one was not exiled and this one was not executed. God sees to it that both patronize the same inn. The deliberate murderer sits under a ladder, and the inadvertent murderer climbs up the ladder, but loses his balance and falls atop the intentional murderer, thereby killing him. This time there are witnesses and they testify so that the accidental murderer (now for the second time!) will be sent into exile. The result is that the individual who should have forfeited his life earlier, dies, while the individual who should have had to reside in a Levite city is finally forced to do so.

What is difficult to understand is why should it be assumed that the original accidental murder took place during the reign of the same Kohen Gadol who now occupies the position? And if this is not the case, then why is the later Kohen Gadol in effect being blamed for not praying on behalf of his community, when actually, what is taking place at this time is the consequence of something whose origins may have occurred a long ago?

While the commentaries attempting to account for the relationship between the exile of an inadvertent murderer and the length of days of the Kohen Gadol appear to raise as many questions as they answer, we nevertheless should reflect upon the concepts that: a) that which may appear to be random, might be anything but, b) it is a privilege and honor to devote oneself however extensively as one can, to the needs of the community and work on behalf of their collective and individual welfare, and c) to pray not only for ourselves and those close to us, but all of Kellal Yisrael. In this way, our intellectual questions can be transformed into practical and spiritual answers.

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[1] ^[21] See Sanhedrin 56a-b, based upon Beraishit 2:16.

[2] ^[22] See Sanhedrin 74a.

[3] ^[23] In addition to BaMidbar 35, inadvertent murder is also mentioned in Shemot 21:13, 23; Devarim 4:41-42; 19:2-10. Judging by the subject matter of the verses, it appears that the Tora is more concerned that there be enough cities of refuge for such an individual to reach before being overtaken by the avenger of blood—see BaMidbar 35:27; Devarim 19:6— than with the nature of the atonement that residing in such a city for possibly a significant amount of time (as will be noted in this essay, the exact length of the exile is dependent upon a highly unpredictable variable) will effect.

[4] ^[24] BaMidbar 35:25.

[5] ^[25] The first instance of murder in the Tora is the fratricide involving Kayin and Hevel in Beraishit 4:8. Should we conclude that by virtue of the fact that Kayin is exiled—see 4:11-12—rather than killed, he was the prototype of the inadvertent murderer? The detail that he was not exiled to a specific city could be accounted for by the absence of cities altogether, let alone cities devoted to spiritual introspection, at this time of the development of civilization. When imagining the crime, did Kayin realize that by striking his brother either repeatedly or in certain vital areas that this would inevitably lead to his death? No human had died to this point! On the other hand, the Tora mentions that Hevel had brought animal sacrifices—see 4:4. Should we assume that he had killed the animals prior to placing them on an altar? Furthermore, in 3:21, the Tora notes that HaShem makes for the newly embarrassed Adam and Chava leather clothing. Were animals killed in order to obtain the leather? If so, had mankind experienced the killing of animate life and therefore should have been able to anticipate that the same could be done to human beings? Many questions in this regard would appear to remain open and subject at best to speculation.

[6] ^[26] BaMidbar 35:2-8. Although only six of these cities are officially designated at this point as cities of refuge for inadvertent murderers, RaMBaN on 35:14 points out that all of them would protect accidental murderers from being attacked by blood avengers. It would appear that the official cities of refuge would be more clearly marked as such, even though the other Levite cities offered similar sanctuary.

[7] ^[27] The initial six cities of refuge—BaMidbar 35:6—were divided equally between both sides of the Jordan, with Moshe, since he was to die without entering Canaan proper, being able to designate only the three in the area where Reuven, Gad and half of Menashe would eventually take up residence—see Devarim 4:41. Devarim 19:8-9 describes a future time when Israel would prove deserving by virtue of their conformity with the Divine Commandments, and the land of Israel would be expanded to include the lands of three more peoples and consequently would require the establishment of three additional cities of refuge. (Originally in the Covenant between the Pieces in Beraishit 15:19-21, the land of ten nations are promised as the future home of the Jewish people; however when the Jews approach Canaan in Devarim, only seven nations are mentioned—see e.g., Devarim 7:1.) Whether these cities of refuge, and for that matter, the Levite cities, were equally distributed throughout the land, or were concentrated in areas that were expected to be more lawless and consequently would experience a greater percentage of loss of life, is a debate between the commentators on BaMidbar 35:14.

[8] ^[28] While the inadvertent murderer could decide to take his chances and leave the Levite city in which he had established a safe haven, the fact that he then could be killed by the blood avenger without accountability, as in BaMidbar 35:26-27, would probably give him sufficient pause to decide to remain for the entire term.

[9] ^[29] Although punishment could be considered a component of achieving atonement or forgiveness for a transgression, the two could also be separated. It is possible that atonement entails repentance and the restoration of whatever was originally taken or lost. On the other hand, if the crime is considered egregious, or if the restoration is no longer possible because of the uniqueness of what has been destroyed or diminished, it is possible that some form of personal suffering on the part of the perpetrator might be required in order to achieve forgiveness.

[10] ^[30] Biblical sources appear to assume execution by Batei Din (courts with human judges). However, considering the difficulty of convicting someone, i.e., there have to be qualified witnesses who are related neither to one another nor to the perpetrator, the witnesses have to have given proper warning which entails mentioning the prohibition that is about to violated as well as the exact punishment that is in the offing, the transgressor has to have acknowledged that he understands the consequences of his action, and nevertheless goes through with the action that he has threatened to commit, and the witnesses have to stand up to individual cross-examination without contradicting one another’s stories, etc., leading Makkot 7a to posit that a court that executes a single individual over the course of seven years (an alternate reading: seventy years) is a bloody court, demonstrates that there is great reliance on the Heavenly Court to mete out justice. See e.g., Sanhedrin 89b.

[11] ^[31] Just as making the term of exile dependent upon the life of the Kohen Gadol introduces a flexible variable that allows for customizing the punishment to more appropriately fit the transgression, the Talmud’s assertion that the various biblical calls for “an eye for an eye”—see Shemot 21:24-25; VaYikra 24:20; Devarim 19:21—is not to be taken literally, but rather understood as referring to monetary compensation, accomplishes a similar goal. Once monetary evaluations are made, then variables such as the importance of the organ or limb for one’s livelihood, the pain experienced, the embarrassment that is caused by the injury, the medical bills incurred, and the amount of time until the victim can resume earning a living can all be factored in order to reach an equitable compensation package. If the punishment/atonement would be that the perpetrator had to lose a comparable limb or organ, such flexibility would not be possible.

[12] ^[32] See Bava Kamma 50a. For example, whereas for an ordinary individual, hitting the rock in order to extract water in BaMidbar 20 would not be considered a transgression, individuals like Moshe and Aharon are expected to know better, and are therefore judged accordingly.

[13] ^[33] A Goral (lottery) is used in e.g., BaMidbar 26:55—the division of Canaan among the tribes; Shoftim 20:9—the choice of soldiers to fight the tribe of Binyamin; Yona 1:7—the determination that Yona was responsible for the storm that threatened to capsize the ship on which he was traveling.

[14] ^[34] See BaMidbar 35:33.

[15] ^[35] Since the Kohen Gadol inspires the people to comply with the commandments of the Tora, this will lead to the Jews living long lives on their land, as is suggested in Devarim 11:21.

[16] ^[36] BaMidbar 35:31 stipulates that monetary compensation is not an option in a case of deliberate murder.

[17] ^[37] See Sanhedrin 18a.

[18] ^[38] VaYikra 16:21-22.

[19] ^[39] Even though Mishna Yoma 5:1 notes that on Yom HaKippurim, the Kohen Gadol prays for only a short time in the Holy of Holies in order not to worry everyone waiting for him to reemerge (they might think that he erred and died as a consequence, as happened frequently when the High Priest position was a political appointment and incompetent individuals attempted to carry out the complex Divine Service), the liturgical poem that comprises the repetition of the Amida for Musaf imagines a rather comprehensive prayer, based upon Yoma 53b and Yerushalmi Yoma 5:1:

May it be Your Will, HaShem, our God and the God of our forefathers, that this year that is coming upon us and upon all your people, the Family of Israel, be a year in which You Open Your Treasury for us, a year of abundance, a year of blessing, a year of beneficial decrees from before You, a year of grain, wine and oil, a year of expansiveness, success and permanence, a year of assembly in Your Holy Temple, a year of affordable prices, a year of good life from before You, a year that is dewy and rainy if it is hot, a year when choice fruits sweeten their produce, a year of atonement for all our iniquities, a year in which You bless our food and drink, a year of commerce, a year when we come to our Holy Temple, a year of prosperity, a year of delight, a year in whichYou Will Bless the fruit of our womb and the fruit of our land, a year in which You Will Bless our going and coming, a year in which You Will Save our community, a year in which Your Compassion Will Be Stirred upon us, a year of peace and tranquility, a year in which You Will Lead us with upright pride to our land, a year in which no woman will miscarry the fruit of her womb, a year in which You Will Bring us up joyously to our land, a year in which Your People Israel will not need to be dependent upon one another or upon another people, as You Bestow blessing on their handiwork. And concerning the inhabitants of the Sharon he would say,

May it be Your Will our God and God of our forefathers that their homes not become their graves. (ArtScroll Machzor-Yom Kippur, p. 571.)