SALT - Tuesday, 3 Elul 5779 - September 3, 2019

  • Rav David Silverberg
            Parashat Shoftim concludes with the law of egla arufa, the special ceremony that was required when a murder victim was found along the road between two cities.  The leaders of the city nearest the place where the remains were discovered needed to bring a calf to a stream, where it was killed as a type of atonement sacrifice, and to make a proclamation disavowing responsibility for the murder and pleading to God for forgiveness.
 
            The Sefer Ha-chinukh (430) writes that this mitzva applies only when courts are authorized to administer capital punishment – meaning, when the Sanhedrin convenes in its proper place in the area of the Beit Ha-mikdash.  Once the Sanhedrin was forced to leave the Mikdash, the courts no longer had the power to administer capital punishment, and according to the Chinukh, the mitzva of egla arufa became inapplicable at that point. 
 
The Minchat Chinukh questions this assertion, claiming that there does not appear to be any source for this restriction on the scope of the egla arufa obligation.  Apparently, the Sefer Ha-chinukh understood that egla arufa does not stand alone as an independent obligation that takes effect in the case where a murder victim is discovered, but is rather part of the broader framework of a court’s responsibility to punish murderers.  When the murderer’s identity is known, the court is required to administer punishment, and when the murderer is unknown, the court is required to conduct a special atonement ceremony.  These should be viewed – according to the Chinukh – not as two separate obligations, but as two aspects of the same command requiring the courts to punish murderers.  And thus once this authority was taken away from the courts, and they could no longer punish killers, they also could no longer perform the egla arufa ceremony.
 
Rav Chaim Kanievsky, in his Nachal Eitan (1:3), brings several sources for this perspective of the Sefer Ha-chinukh.  Firstly, the Tosefta (Sota 9:2) states explicitly that the measurement to determine the city closest to the corpse was done by “beit din she-be-lishkat ha-gazit” – the court in the special chamber of the Sanhedrin on the Temple Mount.  This would certainly suggest that this ritual required the presence of the Sanhedrin in its place in the area of the Temple.  Moreover, the Mishna (Sota 44b) establishes that the egla arufa ceremony is performed by the closest city that has a court; a city without a court does not perform this ceremony, even if it is situated closer to the victim’s remains than the nearest city with a court.  The Rambam (Hilkhot Rotzei’ach 9:4) clarifies that egla arufa requires a city with a twenty-three-member court – that is, a court authorized to administer capital punishment.  Mabit, in his Kiryat Sefer commentary to the Rambam, explains that this is because the egla arufa ceremony has the status of dinei nefashot (capital cases).  It is performed in lieu of the murderer’s execution, and, as such, it requires a court of twenty-three judges, which has the authority to execute capital offenders.
 
Rav Kanievsky further notes the comment of the Talmud Yerushalmi (Sota 9:5) that the pronouncement of the city’s elders at the egla arufa ceremony includes their avowing that they did not identify the killer and then allow him to escape punishment.  This suggests that the ceremony is performed only when the courts are authorized to punish murderers.  The Yerushalmi also derives from the elders’ pronouncement that “our hands did not spill this blood, and our eyes did not see” (21:7) that only judges whose hands and vision are intact are qualified to serve on a court.  These requirements apply only to judges of capital cases, and not to judges presiding over monetary disputes, as the Rambam rules (Hilkhot Sanhedrin 2:7).  The fact that the Yerushalmi inferred these credentials from the pronouncement of the judges conducting the egla arufa ceremony appears to prove that the mitzva of egla arufa applies only when courts are authorized to administer capital punishment, as stated by the Sefer Ha-chinukh.
 
Rav Kanievsky further cites the Rashash (Sota 47b) as proving this theory from the explanation given by several commentators to the function of the egla arufa ceremony – that it is intended to publicize and generate awareness of the crime so that the killer will be identified and prosecuted.  This is indicated by the Torah’s conclusion to this section – “and you shall eliminate the innocent blood from your midst” – which could be understood to mean that as a result of this ceremony, the killer will be found and eliminated.  As the entire purpose of this ceremony is to increase the chances of finding the culprit so he can receive his due punishment, it stands to reason that this mitzva is applicable only at the time when courts are authorized to administer punishment.