Sin and Punishment
The idea of midda keneged midda ("measure for measure") is fundamental to the Torah's system of punishments. This is not just a moral concept, matching the deed with appropriate retribution, but an overarching principle that is integral to reality. According to this principle, the punishment is not an external response that is separate from the sin, but rather a direct and necessary consequence. In today's justice systems, there is no inherent connection between a crime and the penalty imposed in response to it. The purposes of fines or imprisonment in our time include deterrence and compensation to the victim, but they are not a direct outgrowth of the crime. In contrast, if a person jumps off a roof and breaks his legs, this is not a "punishment" for having jumped; rather, his broken legs are the direct consequence of his jump. Similarly, many of the punishments stipulated in the Torah are natural outgrowths of sins, rather than external responses to them.
This principle of midda keneged midda is not limited to punishments that God metes out in response to human actions, but also includes punishments that the beit din imposes. Rather than elaborate on this at length, the following two examples will suffice:
In the case of an ox falling into a pit, the Torah stipulates that the owner of the pit has to pay to replace the ox, and he receives the carcass of the ox that fell (Shemot 21:3-34).[1] Clearly, this is not a "punishment" in the usual sense, but the creation of a new reality: it is as if the ox that died had belonged to the owner of the pit, while the owner of the ox still possesses a live ox, as before.
If an ox that was presumed to be tame gores another ox, they are both sold, and their owners split the money. This is not a punishment, but an acknowledgment that since neither owner is guilty of wrongdoing (the ox that gored had been considered tame, and the other ox did nothing wrong), the responsibility must be shared: they sell both the live ox and the dead ox, and divide the money between them.
In both of the above cases, the Torah is not imposing a punishment on a person who caused (or was responsible for the cause of) harm, but rather molds the appropriate reality for the situation – just like our example of a person who jumps off a roof and breaks his legs. In this newly shaped reality, one who has caused damage to his neighbor's property ends up having actually caused damage to himself, rather than to his neighbor.
The principle of midda keneged midda finds expression in several places in our parasha. We shall focus here on two examples of people who cause damage to others and are punished midda keneged midda: conspiring witnesses, and someone who has accidentally caused a death.
Conspiring Witnesses
In the unit on conspiring witnesses (eidim zomemim), the Torah states explicitly that their punishment is "measure for measure:
And you shall do to him as he conspired to do to his brother, and you shall put away the evil from your midst… And your eye shall not pity: a life for a life, an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot." (Devarim 19:19-21)
What is notable about this unit is that the guilty party is punished even though he has not (yet) caused any actual damage to his fellow.[2] The Torah does not usually punish a person for mere intent to do harm, thus it must be that the conspiring witness is not punished for causing the intended victim to lose his eye (which did not actually happen), but for his testimony before the beit din (which did happen).
Someone who gives testimony in a beit din may think he has not done anything wrong or caused any harm; after all, it is the beit din that ruled, and it is therefore the judges who are responsible for any damage caused to the victim. The Torah makes it clear, however, that the act of giving testimony with intent to cause harm is itself a problem, and if he gave testimony that would lead to the accused losing an eye, then he should be treated as though he had actually removed the eye, and the same should be done to him. Perhaps this is an expansion of the concept described above: The Torah seeks to teach witnesses that their testimony is of critical importance in reaching a verdict and sentencing, and to this end, it establishes that once the testimony is accepted in the beit din, a reality has been created that requires removal of an eye. If the witness's testimony were true, the defendant's eye would be removed. If he gave false testimony, then it turns out that what he testified was that his own eye should be removed – and so that is what must happen.
Unintentional Killing
The general rule for an unintentional killer is that he is exiled to a city of refuge and may not leave until the Kohen Gadol dies. The Torah lays out this law in great detail in Parashat Mas'ei, with various examples of how one might cause a death unintentionally. Let us review the verses there, counting the possible scenarios listed:
If (1) he smote him with an instrument of iron, so that he died, he is a murderer; the murderer shall surely be put to death. And if (2) he smote him with "a stone of the hand," whereby a man may die, and he died, he is a murderer; the murderer shall surely be put to death. Or if (3) he smote him with a weapon of wood "of the hand," whereby a man may die, and he died, he is a murderer; the murderer shall surely be put to death. The avenger of blood, he will put the murderer to death; when he meets him, he will put him to death. And if (4) he pushed him out of hatred, or (5) hurled [something] at him, lying in wait [or: on purpose], so that he died, or (6) he struck him with his hand in enmity, that he died, the one who struck shall surely be put to death; he is a murderer; the avenger of blood will put the murderer to death when he meets him. (Bamidbar 35:16-21)
The Torah presents six instances that can be clearly divided into two groups (1-3, and 4-6), with some significant differences between them:
In the first group, the Torah gives no indication as to whether the killer acted out of hatred. Striking another person with an instrument of iron, a stone, or a wooden weapon is enough to make one responsible for the resultant death even if his intention was only to deliver a blow, not to kill. If, on the other hand, someone strikes his fellow with his hand (#6), he is considered a killer only if he did it out of hatred.
In the first group, the person who strikes is referred to consistently as a "murderer." In the second group, he is also referred to as "the one who struck" – indicating a lesser degree of culpability and a less serious crime.
The Torah takes for granted that someone who kills his fellow by means of an instrument (i.e., the first group) is deserving of death, and within that fact, establishes that "the avenger of blood" is the one who will carry out the punishment: "The avenger of blood, he will put the murderer to death." The formulation in the second group, however, is less sharp: "The avenger of blood will put the murderer to death." This softer statement opens the door to the possibility that in the second group, the avenger of blood has license to kill the murderer but is not obligated to do so.
The distinction between the two groups indicates that the cities of refuge have a dual role. Note that when the Torah commands that someone who has killed unintentionally must be exiled to a city of refuge, it does not explain why; it simply states that the avenger of blood is not permitted to kill him in the city of refuge. There are different ways to understand the obligation of exile to a city of refuge, and it may be that they are all correct:
As I have explained in the past, Eretz Yisrael cannot tolerate the presence of murderers in its midst. The cities of refuge are territories that are excluded, in some sense, from the boundaries of Eretz Yisrael, and therefore the murderer must go there in order not to violate the sanctity of the Land.
The cities of refuge are considered territory belonging to God, and a person who is exiled there is comparable to someone who seizes the horns of the altar – whether the altar, because of its holiness, protects those who attach themselves to it, or whether the person is safe because it is not appropriate to kill a person right in front of God, as it were.[3]
Exile is the punishment for someone who has killed unintentionally, just as death is the punishment for someone who murdered with intention.
The problem with this understanding, however, is that the Torah does not treat exile to a city of refuge as a punishment. Besides, it is difficult to understand why one accidental killer has to spend a longer time in the city of refuge than another accidental killer (i.e., until the death of the Kohen Gadol, whenever that may occur). If it were a punishment, the period of exile should be fixed and uniform.
The city of refuge has a dual function. On one hand, the killer who dwells in it is protected; on the other hand, he is given over to the domain and responsibility of God. The Torah's wording suggests that it is even forbidden to kill an intentional murderer while he is in a city of refuge. This suggests that the city of refuge protects anyone in it from punishment. At the same time, it is often not clear whether a death was the result of a pre-meditated murder or an accident. In such instances, the Torah sometimes hands judgment over to God. For example, a sota – a woman suspected of adultery – is tested via the bitter waters, which is in effect a way of handing the clarification of her possible guilt over to God. Similarly, someone who has (apparently) killed by accident is exiled to a city of refuge as a way of handing him over to God for judgment; if he is guilty, God will find the proper way to punish him.[4]
The Torah defines the circumstances of the unintentional killing as "God caused it [to come] to his hand" (Shemot 21:13); in other words, God arranged events such that the victim would be killed. God's responsibility for the death is signified by the handing over of the killer to His hand – i.e., to the city of refuge.[5]
The Death of the Kohen Gadol
One of the most puzzling laws pertaining to the cities of refuge is that one who killed unintentionally must remain in the city of refuge until the death of the Kohen Gadol. What is the meaning of this law? One might be tempted to suggest that the Kohen Gadol is responsible – indirectly, of course – for someone having been killed in his country, but this is difficult to accept, as the Kohen Gadol's role does not include responsibility for the nation. It might be appropriate to attach this sort of indirect responsibility to the Nasi or the king, but not to the Kohen Gadol.[6] Admittedly, a sin on the part of the Kohen Gadol affects the entire nation (as we find in the verse, "If the anointed kohen shall sin, bringing guilt upon the people" – Vayikra 4:3), but it is not necessarily the case that any sin of the nation is considered the responsibility of the Kohen Gadol.
As discussed in the past, the kohanim serve as God's representatives. This role is emphasized at the beginning of our parasha, where the Torah states that the kohanim sit on the beit din ("And you shall come to the kohanim, the leviim, and to the judge who will be in those days" – Devarim 17:9). The Torah draws a connection between the unintentional killer and the Kohen Gadol in order to hint at a connection between the murder and God's responsibility for what has happened. The Kohen Gadol, God's representative, is responsible, as it were, for the murder.[7]
Why, then, does the Torah require that the killer remain in the city of refuge until the death of the Kohen Gadol? It seems that this punishment arises from the overarching principle that we discussed at the outset: midda keneged midda. Since the killer did not intend to kill his fellow, in a sense, the victim "happened to" die. Since he carried out an irresponsible act that caused the life of his fellow to be lost through "happenstance," the Torah seeks to make his life dependent on "happenstance." He must remain in the city of refuge until the death of the Kohen Gadol so that he will experience the feeling of a person whose life and freedom are not under his own control, but are at the mercy of "happenstance."
(Translated by Kaeren Fish; edited by Sarah Rudolph)
[1] This reflects the plain reading of the verses. The Tannaim debate the actual halakha in this case.
[2] In fact, Chazal rule that the conspiring witness is punished only if he has not yet caused damage, based on a close reading of the verse: "You shall do to him as he conspired to do to his brother," not "as he did to his brother."
[3] The latter possibility is learned from King Shlomo, who chose not to kill "in front of God."
[4] A similar principle underlies the oath taken by one who holds onto another's property (shomer). If one's animal comes to harm while under the responsibility of another person, who was supposed to be taking care of it, a question arises as to whether the animal was harmed despite the keeper taking all necessary precautions, or whether the keeper did not perform his duty properly. The keeper takes an oath, and the matter is handed over to God: if the keeper behaved improperly, God will somehow restore the loss to the owner, and He will also punish the keeper. Therefore, Chazal rule that when a keeper takes an oath, he is exempt from paying damages even if it becomes clear that he lied.
[5] Chazal distinguish two types of cities of refuge: some absorb a killer even if he is not aware that he is located in a city of refuge; others absorb a killer only if he knows he has entered a city of refuge. This distinction arises from the different aspects of a city of refuge: a person who hands his judgment and fate over to God must do so consciously, but a city that belongs to God can protect those who dwell within it even if they are not conscious of it.
[6] Similarly, in the unit on the egla arufa (the ritual carried out when a stranger is found murdered in a field between two cities), it is difficult to argue that the kohanim (as opposed to the elders) bear some degree of guilt for a murder that is carried out in the boundaries of their city. It seems more likely that their role is to seek atonement for Am Yisrael because of the blood that has been spilled.
[7] It is interesting to note that from the examples the Torah brings for accidental killing, it appears that there is no need for intention to kill in order to be punished for deliberate murder. Someone who strikes his fellow with a metal instrument is considered as a willful murder, even if he did not intend to kill him, since he should have taken the probable results of his actions into consideration. If, on the other hand, he only shoved him, it is considered willful murder only if he acted out of hatred.
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