Death, Thou Shalt Die

The end of the wilderness sojourn of the wandering Israelites approaches as the Book of Numbers reaches its conclusion. In Parashat Mas-ei, the Torah looks backward and ahead. Summarizing forty years of marches and encampments since the Exodus from Egypt requires almost a full chapter. This travelogue is detailed, but without elaboration. Moses's version of the events that transpired in those places and his attempt to distill their lessons will be the main endeavor of Deuteronomy. Here, only the death of Aaron at the ripe age of one hundred and twenty-three years is mentioned.

The bulk of the portion anticipates the Israelites' entry to the land of Canaan and lays out initial steps to be taken as they establish their national home in that land of promise. This includes defining the land's outer boundaries and apportioning it among the ancestral tribes, except for the Reubenites, the Gadites, and the half-tribe of Manasseh, who had elected to settle east of the Jordan River, and the landless Levites, for whom special provision was to be made. The latter were assigned forty-eight towns and the surrounding pastures to be carved out of the other tribes' allotments in proportion to their relative sizes.

The Torah turns next to a core aspect of criminal law: homicide. Six of the Levite towns were to be designated as "cities of refuge to which a manslayer who has killed a person unintentionally may flee" and therein find protection from "the blood-avenger . . . so that the manslayer may not die unless he has stood trial before the assembly" (Numbers 35:11-12). The Torah is well aware that not every killing is premeditated and it recognizes a moral and legal distinction between murder-taking a life with intent or reckless disregard of the consequences of one's actions, and manslaughter-a death resulting from an accident or negligence.

The former category is not limited to killings that are specifically intended. The Torah provides that one who strikes another with an iron object or a stone or wood tool "that could cause death-and death resulted, is a murderer" (35:18). The principle established is that an attacker with a potentially lethal weapon is accountable when death, the foreseeable outcome of such an assault, occurs. Likewise, one who pushes, throws something at, or strikes another person "in hate" or "in enmity" resulting in death, that is, with a state of mind known in criminal law as "malice aforethought," may be put to death by the blood-avenger "upon encounter" (35:19-21). In either case, actual subjective intent is either irrelevant or inferred from the act itself and the surrounding circumstances.

In seeking to distinguish between two categories of killings in both legal process and culpability, the Torah faced a considerable challenge: the likelihood that the victim's relatives would seek to avenge the death by extra-judicial means, without regard to whether the killing was intentional or not, and notwithstanding the absence of an adjudication of guilt. It is well to keep in mind that at this point in the narrative, the Israelites not yet having entered the Land, their judicial institutions must have been rather rudimentary. It undoubtedly took considerable time and effort to establish enduring, effective, and accepted ones, especially since it was necessary to overcome ingrained cultural patterns like blood vengeance. Thus, rather than attempt to eliminate the practice altogether, the Torah wisely attempted to limit it as a step in that direction.

The same can be said of a related provision of the Torah, setting forth as the proper measure of punishment for harming another, "life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise" (Exodus 21:23-25). Known by the Latin name, lex talionis, "the law of retaliation" or "the principle of retributive justice," this text is much misunderstood. The Talmud insists that these verses were never intended to be carried out literally but, instead, establish a standard of financial compensation (Babylonian Talmud, Bava Kama 83b-84a). And, in any case, the evident intent of the Torah was to limitvengeance rather than encourage or sanction it. In other words, in a world where blood vengeance was the norm and an avenger might seek to kill the person who wounded a relative, or to destroy an entire clan to avenge a killing, the Torah renders such disproportionate actions wrong and impermissible.

The Torah's effort to differentiate among types of killings and to deal with them accordingly is an example of its sophistication in matters of jurisprudence, which predated and foreshadowed parallel developments in Western criminal law by millennia. A primary purpose of criminal law generally is to prevent private individuals from "taking the law into their own hands" and to give those accused of crimes "their day in court." The Torah's provision for cities of refuge was aimed at ensuring that a duly authorized judicial body, rather than an outraged and aggrieved relative of the deceased, would determine the killer's degree of culpability and levy the appropriate punishment. In order to ensure a fair process, the Torah also establishes in this portion the rule that a minimum of two witnesses are required for death to be imposed as punishment for murder.

The rules set forth in Parashat Mas-ei are elaborated upon in Rabbinic literature. The Talmud holds that road signs showing the way to the nearest city of refuge were required at intersections (Babylonian Talmud, Makot 10b) and Maimonides held that all roads leading to a city of refuge had to be straight, level, and always kept in good repair (Encyclopaedia Judaica 5:591).

The humane impulse evident in these Rabbinic requirements, whether or not they were ever implemented in actual practice, is consistent with a considerable body of Talmudic legislation imposing complex and burdensome evidentiary and procedural requirements in capital cases. These reflected a deep-seated ambivalence toward or even outright opposition to the death penalty. A famous mishnah (Makot 1:10) states that "A Sanhedrin that puts one man to death in [seven years] is called 'destructive.' R. Eleazer b. Azariah says: 'Or one in seventy years.' R. Tarphon and R. Akiba say, 'Had we been in the Sanhedrin, none would ever have been put to death.' "

This text often serves as the cornerstone of the claim that while the Rabbis accepted in theory the Torah's prescription of death as the appropriate punishment for murder, they made it impossible to carry out the penalty in practice. This claim is inaccurate, and Jewish opponents of capital punishment have sometimes been less than scrupulous, failing to quote the last sentence of the mishnah, "Rabban Simeon b. Gamaliel says, 'Those [who would not impose the death penalty] would multiply shedders of blood in Israel' " (ibid.). Taken as a whole, the Rabbinic tradition is deeply ambivalent about capital punishment, and both proponents and opponents can find support for their views (see Crime and Punishment in Jewish Law, Walter Jacob, Moshe Zemer, editors, "Capital Punishment," Rabbi Richard A. Block [New York: Berghahn Books, 1999], p. 64ff). We, like our ancient ancestors, continue to struggle with the tension between justice and mercy.

Rabbi Richard A. Block is senior rabbi of The Temple - Tifereth Israel in Cleveland, Ohio. He is president-elect of the Central Conference of American Rabbis and the vice chair of the Reform Pension Board.