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From Flight to Atonement
Rabbi Joshua Kulp
The Halakhah in the Parashah
If you’re a parent and your child has reached the age at which they can drive and has been doing so for a few years, you might have had the following conversation. Your child was in a car accident while they were driving. I’m hoping no one was seriously injured and that the damage was limited to property. Your child now has to face you and tell you what they did. After they get over their fear, they say to you, “But it was an accident.” And they are almost surely correct–it's highly unlikely they intentionally damaged your car. But this is not the end of the conversation, as you know. There is a vast difference between an accident in which, for instance, the driver swerved left trying to avoid a dog that ran out onto the street and hit a car in another lane, and a case where the driver was sending a text message and rammed into the car in front of them. Both are accidents, but the latter is a case of negligence, one for which there probably needs to be a response.
This week’s parashah makes it abundantly clear that a murderer is to be executed. If a person hates another, sets an ambush and then kills him and then runs away to a refuge city, the elders must send to the city, extract him from there, and give him to the blood avenger. The Torah specifically warns not to have mercy on such a person.
But the Torah does not believe that accidental murderers should be executed. Instead, Devarim 19 establishes a system of refuge cities to which an accidental murderer should flee to avoid the blood vengeance (these laws are also found in Bamidbar 35). An accidental killer has spilled blood and therefore something needs to be done. He cannot just remain in his home as if nothing happened. But this was not intentional murder. As verses 19:4-5 make clear, if the person did not have prior hatred for his fellow human being and the murder was done in a manner that seems to be accidental—for instance, “a man goes with another fellow into a grove to cut wood; as his hand swings the ax to cut down a tree, the ax-head flies off the handle and strikes the other so that he dies”--then we cannot consider this person at fault and he has the right to flee (see also Numbers 35:16-23).
Rabbinic law offers a subtle but deep shift in these laws. Mishnah Makkot, chapter 2 begins with the following statement, “These are those who go into exile.” While the Torah refers to this as “flight,” as in “That man shall flee to one of these cities,” and in Numbers 35:6 the cites are called “refuge cities,” the rabbis describe the one who spilled blood without prior intent as going into exile. This is a radical transformation achieved with one word. Instead of fleeing for his life from a blood avenger (an institution the rabbis find deeply problematic), the rabbis imagine this person as requiring atonement for having spilled blood.
But the rabbis do not stop merely with a different word to describe the action taken by the accidental murderer; they also radically transform the law. In the Torah itself there are two categories–intentional murder and unintentional murder. The rabbis add two more categories to this list, offering greater precision as to who needs atonement and who is allowed to get atonement.
First of all, Mishnah Makkot 2:1 refers to someone either moving heavy equipment on his roof or going up and down on a ladder. He or the equipment falls and kills someone below. No doubt that this was accidental. However, the Mishnah rules that if the person was either going down the ladder or lowering the equipment and the accident happened, then he goes into exile. This is negligent–when lowering something one needs to be extra careful not to harm those below. But if the person was going up or raising the equipment and it fell, then he does not go into exile. This is a new category–one called in Hebrew “אונס”--which I usually translate as “an unforeseeable circumstance.” To return to the driving analogy above, this is similar to the case of the dog running into the street. While the damages have to be paid, I hope I would not get angry at my child under such a circumstance.
The other new category can be found on Bava Kamma 32b, which describes a person who enters a carpenter’s shop and is killed by a flying piece of wood. Rava explains that if the carpenter gave the person permission and then proceeded to chop wood with no care, the carpenter is “accidental but close to intentional.” In our language we would call this criminal negligence. Rava does not believe that such a person should be afforded the opportunity for exile. The person cannot be executed because that is reserved for those who murder with full intent. The carpenter is clearly not a murderer. But his negligence seems to be so great that affording him an opportunity for easy and automatic atonement is an insult to the integrity of the law. To return to the driving analogy, this would be akin to drunk driving. While not quite murder, we do not offer such a person easy atonement.
The case of the accidental murderer offers us an excellent opportunity to trace the rabbis modifying, interpreting and expanding the precision of the Torah’s laws. They modify the laws by essentially abandoning the entire practice of a blood avenger. They reinterpret the cities of exile from places of refuge to places for atonement. And they expand the precision of the law by moving from the simple binary of intentional/unintentional to a system that includes four types of bloodshed: intentional, criminally negligent (the carpenter who granted permission to enter the shop), negligent (going down the ladder) and unforeseeable circumstances (going up the ladder).
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