Masei: Contrasts in Justice. Che Guevara and the Cities of Refuge

July 26, 2014
Masei: Numbers 33-36

Today (July 26), is the 61st anniversary of the start of the Cuban Revolution.  After six years of struggle, Fidel Castro assumed power in January 1959.

In his biography
Che Guevara:  A Revolutionary Life, Jon Lee Anderson describes revolutionary justice:

Throughout January, suspected war criminals were being captured and brought to La Cabana daily.  For the most part, they were not the henchmen of the ancient regime… . but the deputies, or rank-and-filers and police torturers.

The trials began at eight or nine in the evening, and more often than not, a verdict was reached by two or three in the morning.

Every night, after the trials, Che Guevara would go over the cases with his judges.  Che, the “supreme prosecutor,” made the final decision on men’s fates.

Che took to his task with a singular determination, and the old walls of the fort rang out nightly with the fusillades of the firing squads.

(Pages 386-388 condensed and rearranged).

What a contrast to the system of justice set forth in today’s Torah portion.

The Torah takes murder seriously. You cannot buy yourself out of a murder rap.  Unlike property crimes, there are no monetary damages for murder.

The Torah institutes order in society.   We do not read about a police force.  Murder is punished by the blood avenger—-the next of kin who is entitled to kill a killer.  The Torah curbs the blood avenger.  The Torah provides for asylum for a person who kills by accident.

By implication in Exodus 21 and specifically in Numbers 35 and Deuteronomy 19, the Torah provides that a person who commits a homicide by accident may flee to a City of Refuge.

The elders of the City place him on trial.  If the killing is found to be intentional, the killer is expelled from the City.  He  becomes vulnerable to the blood avenger. 

If the elders find that the killing was accidental, the killer may remain in the City of Refuge.  He must stay until the death of the high priest.

Though the killer’s life is protected, he is still punished.  He lives in exile.  He cannot buy a parole to leave the in safety. 

Rules of evidence are promulgated in Numbers 35.  The testimony of at least two witnesses is required for a conviction involving the death penalty.  In American courts, a person can be convicted of murder on circumstantial evidence alone.

Moshe Greenberg

In a June 1959 article in the
Journal of Biblical Literature, Professor Moshe Greenberg of the University of Pennsylvania, discusses the Cities of Refuge.  He presents—-without advocating—-a number of theories.

The article suggests that the different versions of asylum in Exodus, Numbers an Deuteronomy were written at different times.

Exodus 21 states at verses 12-14:

He who fatally strikes a man shall be put to death.  If he did not do it by design, but it came about by an act of God, I will assign you a place to which he can flee.  When a man schemes against another and kills him treacherously, you shall take him from My very alter to be put to death. (NJPS)

Exodus 21 is reflected in two passages in First Kings involving enemies of the King.

First Kings Chapter 1 verse 50 states:

Adonijah, in fear of Solomon, went at once [to the Tent] and grasped the horns of the alter.  (NJPS)

First Kings Chapter 2 verse 28 states:

When the news reached Joab, he fled to the Tent of the LORD and grasped the horns of the altar—-for Joab had sided with Adonijah, though he had not sided with Absalom. (NJPS)

It is proposed that Numbers 35 and Deuteronomy 19 were written after King Josiah abolished the local shrines and centralized the cult in the Temple in Jerusalem.  The Cities of Refuge continue the Exodus concept of asylum. 

Joshua 20, describes the establishment of the Cities of Refuge.  It is significant that two of these cities, Shechem and Hebron, were the sites of local shrines.

In her
Old Testament Lecture 10 on You Tube, Professor Christine Hayes of Yale University, discusses a 1976 article by Moshe Greenberg, Some Postulates of Biblical Criminal Law.

Greenberg says that as a result of Divine authorship of the Torah, offenses against morality are also religious offenses.  They are sins because they are infractions of the Divine will.

Sin requires expiation.  Blood pollutes the land.  The land can have no expiation for blood that is shed on it, except by the blood of him who shed it.  The blood guilt of a murderer is expiated by the blood avenger. 

However, Hayes suggests that the blood guilt is also expiated in case of an accidental homicide.  The slayer does expiation through his exile in the City of Refuge. 

Finally, Greenberg in his 1959 article writes that the death of the High Priest (mentioned in Numbers and Joshua, but not in Deuteronomy) acts as expiation of the blood guilt, thereby enabling the accidental slayer to return home.

On balance, the City of Refuge sounds morally neutral.  Though the life of an unintentional killer is spared and the blood guilt is expiated, society is not advanced.

Samson Raphael Hirsch

However, Rabbi Samson Raphael Hirsch offers a more optimistic note.  As reported in
A Torah Commentary for Our Times by Rabbi Harvey Fields, Rabbi Hirsch says that the City of Refuge gives the unintentional killer an opportunity for rebirth. 

Rabbi Hirsch says that the City of Refuge must have teachers, students, people of science, people of spiritual and intellectual quality.  As Deuteronomy 19:5 states, unintentional murderers are to “flee to one of these cities AND LIVE.”