Parshat Shoftim 5780: The Irei Miklat and the Eternality of Halacha vs Man’s Sovereign Law

Shalom Friends;

This week, our Parshat HaShevua Shoftim is sponsored by Matt and Ilana Bornstein of Ramat Beit Shemesh and dedicated in honor of their son Yitzchak’s Bar Mitzvah. To the Bornstein family, many thanks for your sponsorship and for your continued kindnesses.

You can celebrate a Simcha — a birth, a Bar/Bat Mitzvah, a Chassuna or other Simcha event in your life, or commemorate a Yahrtzeit of a loved one, or for whatever other reason by sponsoring a Parshat HaShevua.

Please forward to your relatives and friends and encourage them to sponsor a Parshat HaShevua. And please be in contact with me with any questions, or for further details.

Best Regards,

Moshe Burt
skype: mark.burt3

Parshat Shoftim 5780: The Irei Miklat and the Eternality of Halacha vs Man’s Sovereign Law

by Moshe Burt

In previous vorts on our Parshat Shoftim, this author discussed the Torah requirement of appointment of judges, and officers of the court to enforce judicial decisions with righteous judgement. The third posuk of our parsha reads:

“Tzedek, Tzedek tierdof…” Righteousness, righteousness (also rendered Justice, Justice) you shall pursue that you may live and inherit the land which the Lord, your G’d gives you.” (Sefer Devarim, Perek 16, posuk 20)

Such righteousness in judgement must not be prejudiced by bribes, gifts, appearance of, or financial position of either litigant.

In short, this means the application of righteousness of judgement to police and law enforcement, as well as the judiciary. And the paradigm posuk of our Parshat: “Tzedek, Tzedek tierdof –(Justice, Justice) shall you pursue” would seem to apply to law enforcement to at least the same extent as to Judges and Judiciary.

But with this year’s vort, this author endeavors to focus on the Irei Miklat as a paradigm of the eternality of Halacha in a Torah Halachic State vs Man’s sovereign law.

In Parshat Va’etchanan, Moshe Rabbeinu begins to deal the laws of the Irei Miklat in establishing three such cities in the Transjordan “for individuals convicted of negligent homicide.” (citing Rabbi Shmuel Goldin’s Parsha summary in his sefer, “Unlocking The Torah Text,” Sefer Devarim, page 31)

In his Parsha summary for Parshat Shoftim, Rabbi Goldin writes in his sefer, “Unlocking The Torah Text,” Sefer Devarim, pages 167-168):

…Moshe instructs the nation to set aside three Irei Miklat (cities of refuge) upon entry into the Land; in addition to those cities already designated in the Transjordan. Exile to the Irei Miklat will serve as punishment, atonement and protection for individuals guilty of a specific level of unintentional manslaughter, the parameters of which Moshe proceeds to outline. Moshe then contrasts these laws with the laws governing an intentional murderer who, upon conviction, is to be put to death.

Rabbi Goldin then provides an outline regarding the establishment and circumstances of the Irei Miklat, as well as an understanding of the levels of culpability of personal actions in cases of murder/manslaughter (ibid, pages 207-209, 212-213):

Moshe… elaborates upon the obligation, originally outlined in Sefer Bamidbar (Rabbi Goldin citing Sefer Bamidbar, Perek 35, posukim 9-28)… These cities (the Irei Miklat in Canaan and the Irei Miklat in the Transjordan) already designated by Moshe (Rabbi Goldin citing Sefer Devarim, Perek 4, posukim 41-43) are to serve as places of safety for individuals found guilty of killing another b’shogeg (unintentionally). (Rabbi Goldin citing Sefer Devarim, Perek 19, posukim 1-10)

Based on the passages in both Sefer Devarim and in Sefer Bamidbar, the Mishaic scholars record procedures to be observed following an event of murder/manslaughter within the community:

1/ An individual who kills another, under any circumstances, should immediately flee to a city of refuge.

2/ The court of the city where the event occurred then summons the perpetrator to return and stand trial.

3/ The perpetrator who is found by the court to have acted b’meizid (with full intent) and to be guilty… [and face] the death penalty under the law is to be handed over to the go’el hadam, the blood avenger, for execution. The go’el hadam is a close relative of the victim who serves as the agent of the court in carrying out the sentence of execution.

4/ A perpetrator who is found to have acted b’oness, as a result of coercion or force of circumstance (i.e. as a result of an accident), is set free.

5/ A perpetrator who is found guilty of an act that falls into the category of shogeg, a specific level of unintentionality, is returned to the city of refuge, where he is to remain until the death of the Kohen Gadol. (Rabbi Goldin citing Mishna Makkot 2:6)

6/ A perpetrator found liable to exile who fails to flee to the city of refuge or who leaves such a city prematurely becomes liable to death. RAbbi Yossi HaGalili maintains that, under such circumstances, the go’el hadam is obligated to execute the criminal, while others have the right to do so. Rabbi Akiva argues that [under such circumstances] the go’el hadam is permitted to execute the criminal, while others are forbidden from — but not punished for — doing so. (Rabbi Goldin citing Mishna Makkot 2:7) The Rambam codifies the law according to Rabbi Akiva. (Rabbi Goldin citing Rambam, Mishneh Torah, Hilchot Rotzei’ach U’shmirat Hanefesh 5:10)

7/ Clear, direct paths must be established towards the Irei Miklat and two sages are assigned to accompany the convict back to the city after the court ruling, in order to dissuade a go’el hadam from taking action before the city is reached. (Rabbi Goldin citing Mishna Makkot 2:5)

Halachically, responsibility for acts performed falls along a range based upon the degree of intentionality of an individual’s actions. This range is defined by the end points of oness (pure accident or force) at the bottom and meizid (acts performed with full intentionality) at the top. An individual who commits an act as a result of oness carries no guilt, while conversely, an individual who commits an act b’meizid, with full premeditation, must be punished to the full extent of the law.

Somewhere in the middle of the spectrum of culpability lies the category of b’shogeg, unintentional acts for which the perpetrator, nonetheless, bears a certain degree of responsibility. Although unintended, acts committed b’shogeg could have been avoided through greater care and attention. The very existence this category, and its distinction from the fully blameless category of oness, indicates that not all unintentional acts are “equal” in the eyes of Torah law.

Rabbi Goldin goes on to discuss opinions regarding possible understandings of the border-points of what constitutes oness, b’shogeg and b’meizid, the connection between the passing of the period’s Kohen Gadol and the resultant freedom of the b’shogeg perpetrator and possible rationales regarding the court’s appointment of the blood avenger as the agent of the court in in cases of murder/manslaughter. But these opinions, understandings and rationales are not within the purview of the vort, but may be subject of some future vort on Parshat Shoftim.

Rabbi Goldin now discusses the size, population demographics and other laws of Irei Miklat (ibid, pages 212-213):

The Irei Miklat, Talmudic authorities maintain, must be neither small towns nor large metropolises, but rather mid-sized cities. (Rabbi Goldin citing Talmud Bavli Makkot 10a) If they are too small, Rashi explains, provisions for inhabitants will become difficult to obtain, while if they are too large, the safety for the rotzei’ach [the b’shogeg perpetrator] might become difficult to ensure. (Rabbi Goldin citing Rashi, Makkot 10a). These cities must be located where water, marketplaces and lodging are plentiful and readily accessable…. The populations of the cities must be maintained at a proper balance. At no point should the percentage of convicts in the city’s population be allowed to exceed fifty percent. (Rabbi Goldin citing Talmud Bavli Makkot 10b) Animal traps, nets and the like may not be set up within the Irei Miklat, lest these items be used by the blood avenger against the rotzei’ach. So concerned are the Rabbis over the welfare of an individual sentenced to exile that, based on the Torah’s statement “he shall flee to one of these cities and live,” they mandate that a perpetrator’s spiritual mentor must accompany him into exile. The law, they maintain, must provide the perpetrator with the physical and spiritual ability to “live.” (Rabbi Goldin again citing Talmud Bavli Makkot 10b)

Again, the Torah view of justice, as exemplified by that third posuk of our Parshat Shoftim:

“Righteousness, righteousness (also rendered Justice, Justice) you shall pursue that you may live and inherit the land…” (Sefer Devarim, Perek 16, posuk 20)

Contrast this Torah standard with the changeable sovereign laws of man. Shakespeare wrote, “Fair is foul and foul is fair, creeps from this petty pace from day to day” — the only famous Shakespeare quote this author recollects. But it is soo true of the changeability of man-made laws. Check out the state of America these days: post-delivery abortion, same-genderism, parts of cities taken over by criminal mobs as “autonomous zones,” defund the police, masks mandated for presidential rallies during the period of the Chinese corona virus pandemic while so-called “peaceful demonstrators” go maskless “legally” while looting, rioting, shooting wildly in streets — killing little children as they sit in their homes, or march on a wealthy family home while the family living in that home is not lawfully entitled to defend themselves and their property against invaders. And these don’t even scratch the surface of what can and does happen under man’s sovereign law.

One can see that Hashem laid out very specific and detailed laws regarding the Irei Miklat and who, and under what circumstances, under a Torah-true justice system, can be exiled to a city of refuge. These laws serve as a paradigm of the eternality of Halacha in a Torah Halachic State in contrast to man’s sovereign law.

May we, the B’nei Yisrael be zocha that our brethren — the refugee families from Gush Katif be permanently settled and be made totally whole — be totally restituted for all that was stolen from them and that the thrice expelled families of Amona be restored to their rebuilt homes, at government expense; both due to alt-leftist-agendized, supreme court legalized Yassamnik gunpoint. May our dear brother Jonathan Pollard be liberated and truly free, as Naama Issachar is now free and home — which can only occur when Jonathan is home in Israel and carrying for his ill wife Esther Yocheved bat Rayzl Bracha, and that the MIAs be liberated alive and returned to us in ways befitting Al Kiddush Hashem — as with the return in April, 2019, via Russia, of the remains of Zachariah Baumel, as should the remains of the two chayalim from the Gaza War of five and a half years ago. May we have the courage and strength to stand up and physically prevent the possibility of Chas V’Challila any future eviction of Jews from their homes and prevent Chas V’Challila the handing of Jewish land over to anyone, let alone to enemies sworn to Israel’s and Judaism’s destruction and eradication. May we fulfill Hashem’s blueprint of B’nai Yisrael as a Unique people — an Am Segula, not to be reckoned with as with “the nations” and may we be zocha to see the Moshiach, the Ge’ula Shlaima, as Dov Shurin sings; “Ki Karov Yom Hashem Al’Kol HaGoyim”, the Ultimate Redemption, bimhayrah b’yamainu — speedily, in our time”, — Achshav, Chik Chuk, Miyad, Etmol!!!

Chodesh Tov and Good Shabbos!
Moshe Burt, an Oleh, is a commentator on news and events in Israel and Founder and Director of The Sefer Torah Recycling Network.
He lives in Ramat Beit Shemesh.