Murder and Monarchy
Yeshivat Har Etzion
Murder and Monarchy
By Yaacov Steinman
Parashat Shoftim is clearly about civil administration, how the civil life of the Jewish people in the Land of Israel should be organized. The first section (16:18-17:13) deals with setting up a judicial system. This is followed by the commandment to appoint a king; in other words, the executive branch of government (17:14-20). This is followed by a short section on support for kohanim and levi'im, which may be seen as an appendage to setting up society in the Land. The next section (18:9-22) consists of two parts; first a prohibition on various forms of soothsaying, and then a positive commandment to listen to the prophet of God. This should be understood also in the civil, public sense - the prophet essentially serves to guide the nation (rather than to help one solve one's private problems, the case of Shmuel and the donkey of Shaul notwithstanding), and the nations which are being supplanted in the Land used the means of soothsayers and magicians for that same purpose. This is made clear by Moshe's explanation of the origin of the institution of prophecy (18:16-18) - the Jews had asked for guidance at Chorev in place of the fiery voice of God. The prophet is a replacement for Moshe - "I shall raise up a prophet from the midst of their brethren like you (Moshe)..." (18:18).
Chapter 19 deals with the cities of refuge for murderers and then the case of false witnesses. We shall return to this chapter in a moment. Chapter 20 deals with the national army and war, a natural continuation of the subject of government in Israel. (The Rambam defines the two roles of the king as "to do justice and [wage] wars" [Hilkhot Melakhim 4:9]). The final chapter (21) deals once again with murder, this time in order to describe the ceremony of "egla arufa."
There are four sections that do not fit in to the picture of civil administration, at least not at first glance. The first consists of three verses at the end of the mitzva to set up courts:
1. the prohibition of "asheira" (16:21);
2. the prohibition of "matzeiva" (16:22);
3. the prohibition to sacrifice a blemished animal (17:1).
All three prohibitions concern the proper way to serve God in the Temple. While the Temple is a national institution, it does not form part of the government of Israel, and, in any event, all the other laws of temple service are not found here at all. (In Sefer Devarim, these laws could perhaps have fitted in last week's parasha). Furthermore, these laws consist of only three verses in the middle of a much longer section dealing with the judiciary, so that their out-of-place character is all the more glaring. For this reason, many commentators explain the location of these laws here as a metaphor for the independence and purity of the judicial system (See Abrabanel and Sforno for examples). This approach derives from the Targum Yonatan, who explains that the prohibition to plant an asheira next to the altar teaches us that one should not appoint a foolish judge to sit beside a wise one, and the prohibition on matzeiva teaches us not to appoint a violent (or haughty) person. While this approach seems to be very "drushy," it should be noted that the commentators are not claiming that this is the "peshat" of the verse, but only the peshat why these laws are repeated here in this context.
The second section out of place deals with the punishment of the idolater (17:2-7). In fact, this section teaches us primarily laws of judicial procedure, so that it is an integral part of the section concerning the judicial system. The most important verse is the next to the last - "He shall be put to death by two witnesses or by three witnesses; he shall not be put to death by one witness" (17:6). But this merely focuses the question even more clearly - these procedures are not specific to the idolater, so why is the introduction of his sin necessary to teach us these important laws of judicial procedure? It appears that "you shall exterminate the evil from your midst" (17:7) is the crux of the section, as though it were the reason why this section is here. While exterminating evil may indeed be an important part of proper civil society, the question remains why idolatry was singled out in this parasha.
The answer to this question is hinted rather clearly in the introduction to the section itself.
"If there be found in your midst, in one of your gates which God has given you, a man or woman who does evil in the eyes of the Lord your God, to TRANSGRESS HIS COVENANT. And he went and worshipped other gods, and bowed to them..." (17:2-3)
Notice that the specification of the transgression is delayed until the second verse. First comes a full description of one who is doing evil, transgressing the covenant - how? - Ah yes, by worshipping false gods! The point is not that he has violated a specific commandment, but that he is undermining the covenant between God and the Jews, and thereby undermining the national basis of the people in the land. This impression is strengthened by the specification that the transgression be performed in "one of your gates which God has given you," a formulation which seems to imply that the idolatry was committed in the Land of Israel. Halakhically, there is no significance to the location of idolatry - in all locations the perpetrator should be stoned (see Ramban). This introduction does not belong to the legal nature of this section, but to the context - this law is found in Parashat Shoftim because it deals with the foundations of civil society in Israel, which is based on the covenant between God and the Jews. The judicial response of society to idolatry, aside from the general response to all crime, is a crucial aspect of proper government, because otherwise the very basis of civil society is undermined.
The last two "misplaced" sections both deal with murder - first the cities of refuge, and secondly the egla arufa ceremony. Again, in both cases the Torah preserves the civil framework, since the "chiddush" of each section concerns public arrangements - the setting up of special cities of sanctuary and the egla arufa ceremony, which is performed by the elders of the neighboring city; i.e., it is expiation for society as a whole. Nonetheless, the question remains why specifically the public aspects of dealing with murderers is outlined in this parasha, rather than any other prohibition. More specifically, we can ask why murder elicited this public response, first in society's responsibility to establish cities of refuge, and secondly in the public responsibility for acts of murder implicit in the egla arufa ceremony.
"If a corpse be found IN THE EARTH which the Lord your God gives you to inherit, fallen in the field, and it is not known who smote him." (21:1)
What is the meaning of the phrase "in the earth?" Even if one will answer that it was necessary to write that the corpse is fallen (and where else would it be?), is that not included in the phrase "fallen in the field?" And why is it necessary to repeat that familiar phrase, "(the earth) which the Lord your God gives you to inherit?"
The answer is that bloodshed has a particular power to corrupt and pollute the earth. At the very beginning of the Torah, God tells Kayin, "The voice of your brother's blood cries out to me from THE EARTH" (Bereishit 4:10). Even more striking is this verse in Bemidbar (35:33):
"You shall not pollute the land on which you are, for blood, it pollutes the land, and the land shall not be purified of the blood that was spilled on it, but by the blood of he that shed it."
If blood be shed on the earth which God has given the Jews, the earth itself is polluted, desecrated, and the physical basis of the national existence of the Jewish polity is undermined. Therefore, aside from the demands of justice that murder be punished, there is a social necessitto first of all prevent bloodshed (of the unintentional murderer, by providing cities of refuge), and secondly to atone for the blood spilled without any murderer apprehended. This is the responsibility of society as a whole, as part of the mechanism of setting up a working responsible government whose role is to protect the foundations of society. No other sin (other than idolatry) has this social effect, this degree of social perniciousness.
This special nature of murder is reflected in a law found in the Rambam:
"One who kills without clear evidence, or without prewarning (hatra'a), or with one witness, or an enemy who killed unpremeditatedly, the king may execute him and improve the world (le-taken olam) according to the needs of the hour." (Hilkhot Melakhim 3:10; see also Hilkhot Rotzeach 2:4-5)
The Rambam does not mention this role of the king in regard to other crimes. The fact that murderers may escape punishment because of the stringency of the rules of evidence in the Torah requires a special act on the part of the king. In other words, other crimes are to be punished according to the rules of the Torah. If one avoids punishment because of the application of those rules, it affects only him, and his relationship with God. Murder, however, is a societal problem, aside from the question of absolute justice, and must be extirpated. Allowing murder to go unpunished and unatoned would be a flaw in the underpinnings of society, in a manner that does not hold true for other sins and crimes.
It would be interesting to speculate on the reason for the singular status of murder. I suspect that the answer is found in the verse, "He who sheds the blood of man, by man shall his blood be shed, FOR IN THE IMAGE OF GOD WAS MAN CREATED." Since there are at least three possible explanations of the final clause of that verse, however, the question is not simply resolved.
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