The Cities of Refuge
The Two Passages That Discuss the Cities of Refuge
And the Lord spoke to Moshe, saying: “Speak to the children of Israel, and say to them: When you come over the Jordan into the land of Canaan; then you shall appoint you cities to be cities of refuge for you, that the slayer who kills any person unawares may flee there. And they shall be to you cities for refuge from the avenger; that the manslayer not die, until he stand before the congregation in judgment. And the cities which you shall give shall be six cities for refuge. (Bamidbar 35:9-13)
In our parasha, God commands Moshe to establish cities of refuge – "that the slayer who kills any person unawares may flee there." This command is repeated in Moshe's oration in the book of Devarim,on the eve of Israel's entry into the land, but there it appears differently. The difference between the passages is manifest in their respective laws, but no less in the spiritual world, in the world view that each passage manifests.
In this shiur, wewill focus on the relationship between the two passages. We will try to understand the value to which each one is committed. This will serve as a window on a common biblical phenomenon, in which a law or a story repeats itself more than once. Each passage presents a spiritual position that is not only different from, but also contrary to the other, to the point of an essential, conceptual gap between them. Two spiritual positions, which would ordinarily be found on opposite sides of the barricade, co-exist in the different passages of "the one Torah."
Our study will begin with the passage in the book of Bamidbar, giving a sort of overview of the structure of the passage and of the values embedded in it.
Justice for Bloodshed
Our passage appears to be structured as follows:
vv. 9-15: A command concerning the very existence of cities of refuge: "Then you shall appoint you cities to be cities of refuge for you… that the manslayer not die, until he stand before the congregation in judgment… both for the children of Israel, and for the stranger, and for the sojourner among them; that everyone that kills any person unawares may flee there.”
vv. 16-21: The law governing the intentional killer: "And if he smite him with an instrument of iron, so that he die, he is a murderer; the murderer shall surely be put to death… he that smote him shall surely be put to death; for he is a murderer. The revenger of blood shall slay the murderer, when he encounters him."
vv. 22-29: The law governing an unintentional killer: "But if he thrust him suddenly without enmity… So these things shall be for a statute of judgment to you throughout your generations in all your dwellings."
vv. 30-34: The prohibition to be lenient in the punishment of the intentional or unintentional killer: "You shall take no ransom for the life of a murderer, who is guilty of death, but he shall be surely put to death. And you shall take no ransom for he who has fled to the city of his refuge, that he should come back to dwell in the land until the death of the priest. So you shall not pollute the land in which you are."
As a whole, the subject of our passage is justice for shedding blood. The passage relates to the murderer, whether intentional or unintentional, and the revenger of blood who goes after him - after the intentional killer, executing his death sentence, and after the unintentional killer, limiting his movement, uprooting him from the land, and causing him to flee to a city of refuge. This is the topic of the entire length of the passage. But then in the final unit (vv. 30-34), the passage sets up three signposts regarding the law governing a killer, intentional or unintentional, emphasizing not to be lenient with him in judgment. These three signposts establish three different moral foundations for the law regarding a killer.
Let the Law take its Course
The first signpost: "And you shall take no ransom for the life of a murderer, who is guilty of death; but he shall be surely put to death. And you shall take no ransom for him that is fled to the city of his refuge, that he should come back to dwell in the land, until the death of the priest" (vv. 31-32). Mitigating the punishment of one "who is guilty of death," or of one who is destined to flee to the city of his refuge, demeans the value of justice that is based on the fundamental moral principle – measure for measure.
The second signpost: "So you shall not pollute the land in which you are; for blood pollutes the land, and the land cannot be cleansed of the blood that is shed therein, but by the blood of him that shed it" (v. 33). The land is assigned the status of prosecutor and it does not tolerate pollution. A polluted land is one whose mouth and heart are not the same, a land does not speak what is in its heart. What this command means is: Do not allow blood-shedding murderers to walk about free in the land, and thus cause it to become polluted. The description - "the land in which you are," rather than the “land of Canaan” – points the finger on the people that are living there. It is as if the verse were saying: Do not pollute the land that bears you, for it would be you that you pollute, in the territory in which you are found. "For blood pollutes the land" in the absence of justice for the murderer/blood-shedder. The question still remains: Would it be possible in some unusual situation to show leniency to a murderer? In response, the Torah draws an equation: "And the land cannot be cleansed of the blood that is shed therein, but by the blood of him that shed it." Polluting the land puts it in the position of sin, for as long as the killer walks about freely, there is no atonement for it, "but by the blood of him that shed it." Over and beyond the first moral principle – measure for measure – the land is depicted here as speaking its mind. A moral law is embedded in the land that establishes Israel's life system, and if it is false to its role, it is liable to pay a heavy price.
The third signpost: "And you shall not defile the land which you shall inhabit, in which I dwell; for I the Lord dwell among the children of Israel" (v. 34). This verse describes a chain. A killer who roams free in the land defiles it, violating its holy dimension. The land under discussion is "that land in which you are" – not the land in itself, but in the context of your dwelling in it. The impurity does not stop with the land; it ascends. "In which I dwell" - God dwells in it, and the impurity reaches the place of the Dweller. The passage ends with an interesting conclusion: "For I the Lord dwell among the children of Israel." This does not relate to God in Himself, but rather focuses on His presence among the children of Israel. This accords with the central axis of the book of Bamidbar – the organization of the camp of Israel physically and spiritually, in such a way that will allow the Dweller to enter the camp. If at first this was by way of the fire and cloud that dwelt in the camp, now God's appearance is abstract – a moral imperative to the children of Israel not to be false in the judgment of a murderer out of commitment to the sanctity of the land in which Israel dwells, in the context of the presence of the Dweller among the children of Israel. The two circles – the land and God – come back in the end to the people for whom these are its spiritual floors, and set up an internal moral compass for those who bear His name and His presence in the land.
To summarize, three logical arguments underlie the demand for justice in the case of murderers: measure for measure; preventing pollution of the land, which demands atonement for the blood that was shed in it; and above these two, preventing defilement of the land in which God dwells, as a space of sacred life that sets up a moral imperative to the people living in the land and bearing God's name it its life.
This is the passage in the book of Bamidbar. Let us now move on to the passage in the book of Devarim.
Responsibility of the Sovereign Power
When the Lord your God has cut off the nations whose land the Lord your God gives you, and you have driven them out, and do dwell in their cities, and in their houses, you shall separate three cities for you in the midst of your land, which the Lord your God gives you to possess it. You shall prepare the way, and divide the border of your land, which the Lord your God gives you to inherit, into three parts, that every slayer may flee there. And this is the case of the slayer, who shall flee there, that he may live: whoever unwittingly kills his neighbor, whom he hated not in time past; as when a man goes into the forest with his neighbor to hew wood, and his hand fetches a stroke with the axe to cut down the tree and the head slips from the handle, and strikes his neighbor, that he die; he shall flee to one of those cities, and live: lest the avenger of blood pursue the slayer, while his heart is hot, and overtake him, because the way is long, and slay him; though he was not worthy of death, since he hated him not in time past. Therefore I command you, saying: You shall separate three cities for you. (Devarim 19:1-7)
Already upon first glance, many differences can be observed between the two stories. In contrast to the passage in Bamidbar,which addresses the children of Israel in the plural, here the passage is addressed in the singular ("your God… gives you… and you have driven them out, and do dwell… you shall separate three cities for you in the midst of your land…" [all in the singular]). This is a remarkable opening to the passage, which describes the destruction of the nations, relating to the land as their land and to the cities and the houses as their cities and their houses. At the same time, a description is given of the giving of the land, in contrast to the book of Bamidbar,which speaks of the crossing of the Jordan rather than Israel's sovereignty over its land. Why is sovereignty the issue? In contrast to the need for the very existence of three cities in the account in the book of Bamidbar, now the issue is dividing the land into three parts, with equal distances between the cities. This equality is logical, and the question arises why it was not an issue in the book of Bamidbar.
Now, let us focus on the verses:
"When the Lord your God has cut off the nations, whose land the Lord your God gives you, and you have driven them out, and do dwell in their cities, and in their houses" – This passage is written in the singular, which refers here to the nation, the collective. Relating to the people in this way is not self-evident. It is connected to the advanced stage in which the people are counted as a people, as a single entity. The people are presented as an entity found in the land, ready to embark upon a process of applying their sovereignty to the land. The account begins with a land that belongs to the other nations, it continues with a description of the giving, still relating to the land as their land and to the cities and the houses as their cities and their houses. The process of giving is described at first in the present tense, as not yet having been completed: "whose land the Lord your God gives you." In the second verse, the description continues in the present tense, but the land is already described as "your land" – "in the midst of your land, which the Lord your God gives you to possess it" (v. 2). At a later stage, the giving is described in past tense, as something that already took place: "And if the Lord your God enlarge your border, as He has sworn to your fathers, and He has given you all the land which He promised to give to your fathers" (v. 8). We shall try to explain this process below.
"You shall separate three cities for you in the midst of your land, which the Lord your God gives you to possess it" –In the wake of the sovereignty over the land, the people are commanded to separate three cities. The words "you shall separate for you" indicate the people's involvement. The land is once against affiliated with the people – as the party to whom God gave the land to possess it. It is as if it says: Fundamentally, the land is not yours. Now it is being given to you and it passes into your possession, into your sovereignty – take responsibility for it. The nature of this responsibility is spelled out: "You shall prepare the way, and divide the border of your land, which the Lord your God gives you to inherit, into three parts, that every slayer may flee there" – to prepare the way, to divide the land into three parts, and to create a situation of closeness to all places, thus allowing the slayer to flee to these three cities.
"And this is the case of the slayer, who shall flee there, that he may live: whoever unwittingly kills his neighbor, whom he hated not in time past; as when a man goes into the forest with his neighbor to hew wood, and his hand fetches a stroke with the axe to cut down the tree and the head slips from the handle, and strikes his neighbor, that he die; he shall flee to one of those cities, and live" – An account is given of his unwitting act, void of hate or intention to cause harm. It is an innocent person like this whom you, the sovereign power, must protect: "Lest the avenger of blood pursue the slayer, while his heart is hot, and overtake him, because the way is long, and slay him; though he was not worthy of death, since he hated him not in time past. Therefore I command you, saying: You shall separate three cities for you."
Two Spiritual Positions
I wish to summarize the value to which each of these passages is committed. In the book of Bamidbar,the issue is the duty to punish the murderer. In the book of Devarim,the issue is the limits of punishment, or, to put it differently, concern regarding excessive punishment. In Bamidbar, the value is applying justice in a situation of bloodshed; in Devarim, the value is protecting the lives of innocent people. The duty of applying justice in Bamidbar begins with the crossing of the Jordan and presence in the land. The issue is the new channel of punishment that becomes possible with Israel's entry into the land. The obligation in Devarim follows from a more developed stage of the people, at a time when it has acquired the status of an entity to which the land was given and it assumes the responsibility to maintain a living system for the individual as well as the collective and to protect it. In contrast to Bamidbar, where the issue is justice fulfilled with the very existence of the three cities, in Devarim the issue is protecting people, and thus the question of distances is significant, as it allows for greater protection of the one fleeing.
It seems that this is the way to understand the opening of the passage describing the eradication of the nations and the transition from their sovereignty to Israel's sovereignty. Initially, the land is theirs, and it is as if Scripture is noting that it is not at all evident that Israel should be dwelling in the land. This applies to the land, the cities, and the houses. But the question arises: By virtue of what does Israel dwell in a land that is not theirs, in cities and houses belonging to others? Scripture's answer is that God gives Israel the land and hands it over to their sovereignty, but this process has a context: "You shall prepare the way, and divide the border of your land, which the Lord your God gives you to inherit, into three parts, that every slayer may flee there" (v. 3) – preparing the way and dividing the land into three so that innocent people not die in it. This high moral standard, which sets the value of life as a sacred value, is the basis for Israel's existence in a land from which the nations that had lived there previously were driven out. Moreover, the very reference to the rights of unintentional killers to protection and justice embodies the concept of a sovereign that sees itself committed to society as a whole, and not just a certain, higher segment of it. This concept of sovereignty - the responsibility to ensure that innocent people are not harmed – is part of the message that constitutes Israel's right to exist in the land, despite the prior presence in it of the other nations.
The additional step described in this passage relates to a further development:
And if the Lord your God enlarges your border, as He has sworn to your fathers, and He has given you all the land which He promised to give to your fathers; if you shall keep all these commandments to do them, which I command you this day, to love the Lord your God and to walk ever in His ways, then shall you add three cities more for you, beside these three.
At first glance, enlargement of the border is a physical fact that necessitates the addition of more cities. The difficulty is that the passage relates to various aspects that are not relevant to this need. Why mention the promise made to Israel's forefathers? Why is the description of the giving of the land formulated here in the past tense, "and He has given you all the land," in contrast to the formulation in the present tense up until now (v. 1 and 2)? Why is mention made of keeping all these commandments, "to love the Lord your God and to walk ever in His ways"? All these point to an expansion that speaks of a new, more mature spiritual position, a position in which Israel dwells in the land with more complete sovereignty and which sets a higher standard of accountability for existence. The additional cities should be interpreted as an expression of a higher level of responsibility never to hurt a man who killed unawares and without guilt.
Two passages deal with the cities to which a killer must flee. The first, the passage in our parasha, commands that cities of refuge be appointed to serve as a punishment for the unintentional killer, and the obligation to establish them is an expression of the value of justice. This obligation is based at its climax on the high value of the land in which Israel lives, God residing among them.
The second is found in the book of Devarim, in the course of which the land is given to the people, the people acquire sovereignty, and God makes room for them, casting responsibility upon them. Here the issue is not the presence of God, but on the contrary, the people's responsibility to maintain the living system, as well as the system of justice and law. Under this heading, the responsibility relates to the lives of all members of society, including the killer, who, when innocent, is entitled to protection.
This combination of the two passages establishes two complementary focuses: the obligation to uphold justice in the land and, alongside it, the obligation to maintain society and human life.
(Translated by David Strauss)
 Some of the differences: In the book of Bamidbar, the obligation to appoint cities of refuge begins immediately following the crossing of the Jordan: "When you come over the Jordan into the land of Canaan" (35:10). In the book of Devarim, it begins later, after driving out the nations and dwelling in their cities: "When the Lord your God has cut off the nations whose land the Lord your God gives you, and you have driven them out, and do dwell in their cities, and in their houses; you shall separate three cities for you…" (Devarim 19:1-2). The unintentional killer in the book of Bamidbar thrusts or casts something upon another person with no intention of killing him (Bamidbar 35:22-23). In contrast, the unintentional killer in the book of Devarim is one who in the course of his work, the head of his axes slips from its handle (Devarim 19:4-5) – a circumstance that is more out of his control than the situation described in the book of Bamidbar. The concept "city of refuge" is also the product of the book of Bamidbar, where it is mentioned 10 times, but not even once in the book of Bamidbar.
 The avenger of blood is mentioned seven times in this passage.
 This principle is presented in the previous verse: "Whoever kills any person, the murderer shall be put to death by the mouth of witnesses; but one witness shall not testify against any person to cause him to die." When there is testimony to intentional murder, the killer is put to death. Earlier as well, we find a formulation that manifests the principle of measure for measure as reflected in the execution of the killer (v. 27).
 In the Midrash: "'And you shall not pollute the land' – this is a warning to the polluters. Another explanation: 'And you shall not pollute the land' – you shall not cause the land to pollute you" (Sifrei Bamidbar, 161). The Midrash portrays a relationship of pollution between the people and the land in a situation where leniency is shown in the punishment of a killer. The difference between the two understandings relates to the question of who pollutes whom.
 In the book of Vayikra, for example, they are described in the plural, rather than the singular.
 Ramban: "To teach that they did not become obligated until after they took possession and dwelt [in the land]."
 The giving is described in detail, and the following verse continues to describe the expansion of sovereignty over the land: "If you shall keep all these commandments to do them, which I command you this day, to love the Lord your God, and to walk ever in His ways" (v. 9).
 Here, the city has no name or categorical status, in contrast to the book of Bamidbar, where it is called "city of refuge." It seems that this name points to the categorical status of the city that is intended to receive a person destined to be pursued. In the book of Devarim, its role is humane, to save, rather than to serve as a categorical punishment.
 "So these things shall be for a statute of judgment to you throughout your generations in all your dwellings" (Bamidbar 35:29).