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   by Jacob Solomon

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When you pass over the Jordan into the land of Canaan, you shall appoint cities to be cities of refuge - to where whoever kills any person unawares may flee. These shall be cities for refuge from the avenger; so that the person who killed should not die until he stands before the congregation in judgement. The assembly shall rescue the murderer from the hand of the avenger of the blood… and he shall dwell in it (the city of refuge) until the death of the High Priest…(35:10-12,25).

The Talmud (Makkot 9b) derives four categories of taking life from the Parasha including the above extracts:

(a) The act was completely accidental - the perpetrator is absolved of responsibility.

(b) The act was completely unintentional, but with an element of carelessness - the person committing the act is exiled to a city of refuge until the death of the High Priest.

(c) The act was intentional, but with insufficient evidence; or there was a high degree of negligence - bringing it near to the category of intentional. In those cases, the Court cannot act: the neglect makes the circumstances too serious for the city of refuge, but the evidence is not strong enough for the Court to punish directly.

(d) The killing was intentional, with satisfactory evidence - the murderer is liable to execution by the Court.

Three questions present themselves on the above texts:

Six cities were to be built. Three were to be in Trans-Jordan – the area already conquered and occupied by the two and a half tribes (ibid. 13-14). The other three were in the remaining territory of the Holy Land – the future home of the remaining nine and a half tribes. Why were the cities of refuge divided disproportionately amongst the tribes?

The text describes these places as ‘cities of refuge from the avenger’ (ibid. 12). This implies that they served to defend the manslaughterer from the relatives’ vengeance. To qualify for this protection, the act must be ‘unintentional, but with an element of carelessness’. The classic example is where he is chopping wood and the metal breaks off from the handle, landing on someone and killing him (Deut. 19:5). Although the probability of such a catastrophe happening was very low, he still should have ensured his tools were safe to use. However, had an expert just then certified his tools as safe, he would not have eligible for such protection. So why does the complete accident not merit the protection of the city of refuge, whilst killing with some degree of carelessness does?

Why does the Torah state that he must stay in the city of refuge until the High Priest dies (ibid. 25) – whether it is on the very next day or in sixty year’s time – instead of giving a fixed period of time?

In looking at the issues raised by these questions, there are two key points – the nature of the cities of refuge, and the legitimate feelings of the close relatives of the person killed. These will firstly be discussed – each in turn.

The Book of Joshua implies that the cities of refuge were not remote settlements exclusively designed for the protective custody of the person that killed. At least two of them, Shechem and Hebron (Josh. 20:8), were large cities – the former was to be the place where the united Israelite kingdom split, and the latter became the first capital city of King David. It seems that these large cities served as areas of refuge over and above being home to a large population. That is important. Such is the nature of small and medium sized settlements – even today - that people get to know each other’s business. The large cities, on the other hand, would give the person who killed the anonymity necessary for him to take the next essential step – start life afresh, without the fear of local gossip.

As to the feelings of the families of the deceased, consider the following incisive comment in the Midrash. The Torah relates that when Jacob saw Joseph’s garment covered in blood, he thought that he had indeed been killed and ‘he refused to be comforted’ (Gen. 37:35). The Midrash gives a reason why. When a person dies, the anguish suffered by the family will decrease with time, as the Almighty ‘decrees that the dead, but not the living will be forgotten from the heart’ (Gen. Rabba 84:21). As Joseph – unknown to his father – was alive, G-d did not allow the pain of his presumed death to decrease with time.

It may well follow that the next of kin’s degree of distress and anger towards the killer is decreed by G-d in all circumstances. Applying it to the different degrees of homicide described, we get the following:

(a) Let us say that the act was completely accidental – for example the case of a person who killed in a road accident because the steering column broke, due to an undetectable fault at the manufacturing stage. If that indeed is the case, the next of kin’s ‘grief capacity’ will be applied to mourning for the close relative, and not to anger towards the driver. Thus he does not need the city of refuge for his own security. The Torah in effect witnesses that any such feelings will be neutralized by ‘G-d decreeing that the person who killed shall be understood and treated fairly’…

(b) Where the act was completely unintentional, but with an element of carelessness, G-d strikes a balance between the need to take every possible precaution (which the killer did not), and the legitimate right of the person to be safe from the wrath of the next of kin. He does this by apportioning a larger share of the next of kin’s ‘grief capacity’ to anger towards the killer. Thus the person who committed the act is exiled to a city of refuge until the death of the High Priest. The city is large enough for such a killer to disappear inside it without being easily found (until recently, finding someone in a city would have been as hard as the proverbial needle in a haystack.) And as to the ‘death of the High Priest’ – the S’forno implies that G-d allows these killings to take place in order of the true culpability of the killer - known only to Him. Where the negligence was greater, He decrees a greater period in the city of refuge – and at the same time, He allows the victim’s family to be angrier for a longer period. And where the negligence was only slight, He ensures that their anger lasts for a shorter period – by letting the killing take place closer to the death of the High Priest, so that on his death, it will be safe for the killer to re-enter society without fear of assassination.

It must also be noted that the three cities on the east bank of the Jordan were geographically the same distance from one another - as were those on the west bank. Cities of refuge were determined on a regional, rather than national basis. Thus the Torah showed compassion on the person guilty of manslaughter by exiling him to a place with reasonably similar characteristics to his place of origin. (The Jordan appears to have been a most effective geographical and cultural barrier – as implied in Joshua 21).

(c) A person who killed intentionally, but with insufficient evidence, or with a high degree of negligence (all the more likely where the killer hated the victim beforehand) is not protected by the city of refuge. G-d – who knows the true motivation of every act – will direct the victim’s family’s distress towards seeking vengeance for the killer to such a degree that the city of refuge will be incapable of protecting him. G-d will see to it that the victim’s ‘grief capacity’ will indeed be focussed on the killer – even to the degree that he will be determined to search for the ‘needle in the haystack’ until he finds it – within the city of refuge itself...



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