Rabbi Samson Raphael Hirsch wrote: “Behind all the judicial punishments ordained by the Torah, there is neither the idea of deterrence nor of retaliation … all punishments are kapara, atonement” (Genesis 9:6).  And so, while a great philosophical debate rages over the justifications for imposing various forms of punishment on wrongdoers, Judaism dismisses them all in an appeal to the metaphysical.  The Torah is concerned with atonement, with redeeming the relationship between man and his Maker.

One of the most profound examples of this notion is the biblical punishment for manslaughter (referred to as “unintentional murder”).  In the event that a person killed his fellow, the killer is to flee to a designated “city of refuge” where he awaits trial to determine, first and foremost, if the murder was carried out with intent or not.  If the court finds the killer guilty of intentional murder, he is sentenced to death.  If, however, that act was unintentional and the circumstances of the manslaughter occurred due to minor negligence (i.e., due neither to gross negligence nor to unavoidable circumstances), the perpetrator is sentenced to live in a city of refuge “until the death of the high priest.”

This sentence – exile until the death of the high priest – is perhaps the most puzzling punishment in the Torah.  Nowhere is there found a variable time length sentence made conditional upon the death of a third party, let alone the high priest.  This stipulation gives rise to the extreme situations wherein, on the one hand, if the high priest dies immediately after sentencing, the manslayer goes free immediately; and on the other hand, if the high priest dies prior to sentencing, a new priest not yet being installed, the manslayer spends his entire life in exile (Makot 11b).

Commentators throughout the ages have attempted to make sense of how one crime (manslaughter) can engender such disparate punishments – something that clearly grates against the ancient dictum, “Let the punishment be proportionate to the offense” (Cicero).  The Talmud (Makot 11b) asks how, if exile effects atonement, is the person who never went into exile expiated of his act.  The response is most telling:

“Do you think it is banishment that procures atonement?  It is the death of the [high] priest that procures the atonement!”

As such, the banishment is not a punishment but only an inescapable measure employed to remove the perpetrator from society until his sin has been expiated, as said, through the death of the high priest.  But still the question remains, why?  Why does the death of the high priest atone specifically, and exclusively, for unintentional murder?

The conclusion of the narrative provides some direction:

So ye shall not pollute (hanaf) the land wherein ye are; for blood, it polluteth (hanaf) the land; and no atonement can be made for the land for the blood that is shed therein, but by the blood of him that shed it. And thou shalt not defile the land which ye inhabit, in the midst of which I dwell; for I the Lord dwell in the midst of the children of Israel. (Numbers 35:33-34)

As such, the punishments for murder – intentional or unintentional – are meted out to achieve atonement.  This atonement is necessary not only for man, but for the land that becomes “polluted” (hanaf) through the spilling of innocent blood.  Interestingly, the term hanaf has much deeper connotations than the standard translation, “pollute”, conveys.  Rabbi Hirsch (Numbers 35:33) explains that the word denotes hypocrisy:

If you tolerate intentional murder and careless manslaughter, then you make the land … into a hypocrite.  It deceives the expectation which otherwise you are justified in entertaining from it, it keeps back the blessing that should flow out from it. … a human society … which does not take up the cudgels for innocent human blood spilt, … breaks the condition upon which the soil of its land belongs to it, deceives the expectations in which the earth offers its forces, becomes a “hypocrite” to its land and makes its land into a “hypocrite” towards it.

There is a symbiotic relationship between man (adam) and the earth (adama) from which he was made.  This is seen initially in God’s words to Adam after his sin, “cursed is the ground for thy sake; in toil shalt thou eat of it all the days of thy life. Thorns and thistles shall it bring forth to thee.” (Genesis 3:17:18).  And it is noted more vehemently in God’s reproof to Cain after his murder of Abel: The voice of thy brother’s blood crieth unto Me from the ground. And now cursed art thou from the ground, which hath opened her mouth to receive thy brother’s blood from thy hand. When thou tillest the ground, it shall not henceforth yield unto thee her strength…  (Genesis 4:10-12).

This state of “hanufa”, of the ground spurning man’s efforts, persists, explains Rabbi Hirsch, until society atones for the spilled blood by spilling the blood of the murderer.  To not do so “is an insult to, and a derision of, the higher dignity of the conception of Man being near to God, is a breach of the contract under which God gave the earth to Man, under which God had given the land to Israel.”  Here Rabbi Hirsch refers to the contract that was made with Noah upon leaving the ark: “Whoso sheddeth man’s blood, by man shall his blood be shed; for in the image of God made He man” (Genesis 9:6).  And it is this contract that was renewed with Israel in the words of our parsha: “and no atonement can be made for the land for the blood that is shed therein, but by the blood of him that shed it.”

All this is fine and good for the intentional murderer, but what of the unintentional murderer?  On the one hand, he is a “murderer” – having spilt innocent blood the very earth demands his blood be shed; on the other hand, his act was unintentional – surely his punishment differs from the man who acted with malevolence.  How are we to reconcile the conundrum generated by manslaughter?

Enter the high priest.  The fundamental duty of the high priest is to effect atonement for the people through ritual sacrifices.  Atonement for the sins of individuals is accomplished by bringing, appropriately, a sin-offering.  Significantly, the sin-offering is effective only for unintentional sins, as it says, “If any one shall sin through error” (Leviticus 4:2).  Now, it would be incongruous to spill the blood of an animal to atone for the blood of a man, as the verse implies, “Whoso sheddeth man’s blood, by man shall his blood be shed.”  Only the blood of man can atone for the blood of man.

One way this could be effected is through the “blood redeemer”, the individual tasked with killing the perpetrator if found outside the city of refuge.  This is not ideal.  Instead, it is the very blood of the high priest himself, I suggest, that ideally effects atonement.  The man who atoned for the unintentional sins of the people all his life now provides atonement for the unintentional murderer in his death.

The occasion of the high priest’s demise effects not deterrence nor retaliation, but atonement.[1]  Of all the justifications for judicial punishment, atonement – the metaphysical dynamic that effects reconciliation between man and his Maker – is perhaps the only one that can be applied with a clear conscience.  Furthermore, it is the only one which promotes the very purpose of creation – bringing man in touch with the divine.

 


[1] The idea of the death of the righteous providing atonement is found in the Talmud (Moed Katan 28a).

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