Joel Cohen
Joel Cohen

The Blood Avenger

In Honor of Parshat Shoftim

The title itself is of course extremely unsettling. Almost jarring.

Just to think that the Bible might actually accept the notion that the next of kin – the so-called “Blood Avenger” – of a victim inadvertently killed at someone’s hand would be at liberty to retaliate by intentionally killing the killer. It seems bizarre, perhaps barbaric.  It is akin to Gambino Mafioso John Gotti having allegedly caused the disappearance and murder of the driver who accidentally killed his 12 year old son – the boy having recklessly ridden his motorized mini-cycle into the street (as children sometimes do).  Yet, in some way, what Gotti did (albeit reportedly with the help of a hitman, armed with gun and shovel) approximates what the Bible not only permits, but actually countenances and institutionalizes.

Here is what the Bible contemplates: A man kills someone, let’s say a child as in the Gotti example. The killer, to avoid the wrath of the child’s next of kin, escapes to the nearest City of Refuge.  Safe behind that City’s walls, the next of kin cannot touch him.  But, if the killer is slow of foot or dawdled while escaping to the City of Refuge, he might, in today’s parlance, be shot in the back by The Blood Avenger – the Goal Hadam – who would act with complete impunity.  Assuming the killer reaches the City, he can then be safely escorted to defend himself at trial.  If the court (the congregation) determines that the victim’s killing was unintentional – in current terms negligent, not murderous –  he is escorted back to the City of Refuge, again protected.  The killer would avoid the next of kin’s vigilante wrath once found “not guilty of intentional murder” only by remaining in that City, claiming “sanctuary” (think Esmeralda in The Hunchback of Notre Dame.)  The only time to safely leave would be if the Kohane Gadol dies while the killer is in the City.  If the Kohane Gadol endures past the killer’s lifetime, the sentence will be life! It brings new perspective to the words of Graham Nash: “You, who are on the road, must have a code, that you can live by” – imagine, Biblically-endorsed vigilante justice as that code!

Unlike Notre Dame or any church, cathedral, synagogue or House of God, the Cities of Refuge existed for only one purpose – as a venue to which (inadvertent) killers could safely flee.  And the existence of these cities appears in several places in the Canon: “Then Moses separated three cities . . . that the manslayer might flee thereto, he who murders his fellow man unintentionally, but did not hate him in time past . . .” (Deuteronomy 4:41; 19:2)  Joshua 20:9: “These were the appointed cities for all  . . . that whosoever killeth any person through error might flee thither, and not die by the hand of the avenger of blood, until he stood before the congregation.”  And Joshua 21:13, 21, 32 – they all speak of the “city of refuge for the manslayer.”

Why have them at all? And why so many?   Because The Blood Avenger should not be able to “overtake and kill [the killer, as] he did not incur the death penalty, since he had never been the other’s enemy” – bringing a stain on the entire community (Deuteronomy 19:6; 19:8-10).  Indeed, these special cities were created solely for habitation by those who have killed.  Astonishing!  Why would the Bible allow, or enable, vigilantism by flatly authorizing a Blood Avenger to kill, especially when his kin’s death, albeit tragic, was unintentional?  Beyond that, why doesn’t the Bible discourage The Blood Avenger who is distressed over his loss?  Indeed, the Bible doesn’t instruct the congregation to attempt to cool the next of kin’s ardor, to temper his passion, to quell his impetuousness – making clear that killing one who unintentionally killed is itself a sin.   Or even by telling him that “the Law” itself will justly punish the perpetrator.

Rather, the Bible gives the Avenger free license to kill, even if his blood is no longer hot. Think about it:  once a trial has occurred, acquitting the killer of intentional murder, presumably the Avenger’s blood will have cooled, yet he will still have the right to kill the killer if the killer leaves the Refuge City – say, to attend a wedding, a funeral, to travel to another City of Refuge or, for that matter, to visit his girlfriend or attend a ballgame (Numbers 35: 25-28).  This is the case even though years may have passed and there is a judicial decree that the killing was unintentional.  Surprisingly, the Bible doesn’t even commend – perhaps, offering God’s blessing to – the would-be Blood Avenger capable of exercising sufficient self-control.  It is almost as if the Bible willingly accepts human frailty without encouraging self-conquest over bloodlust – a concept thoroughly antithetical to the Bible’s usually unyielding demand that its adherents exercise willpower.

With no satisfying answer for the eccentricity of this “romantic” Biblical notion of how to deal with killings, the rabbis do what rabbis do. They attempt to make it “look better” even if – were one to dig too deep – their theories would likely raise more questions than are answered. Some rabbis argue that the killing that requires escape to the Refuge City isn’t totally “accidental”; the killer is not a complete innocent.  Were he a complete innocent, the court would totally absolve him and The Blood Avenger would himself be a murderer if, despite the acquittal, the Avenger nonetheless “took the law into his own hands.”

Further, the rabbis tell us, if the killer safely reaches the Refuge City, the Avenger may only kill him if the killer leaves the City after he was acquitted. But why make the killer run for safety in the first place – why wouldn’t the Bible direct that the killer be escorted to the Refuge after he unintentionally killed to assure safe-passage from the Avenger so that the killer could then be tried to determine his guilt?

Yet other scholars try a different approach. They employ the Maimonidean construct that God sometimes employed Biblical commands to wean the House of Israel from the arcane brutality of the day.  For example – they would argue – the Bible authorized animal sacrifice as a humane substitute for human sacrifice.  Likewise, the argument goes, the Bible softened Hammurabi-like vengeance which was still in vogue, by institutionalizing Cities of Refuge as an escape hatch for those whose conduct didn’t warrant a retaliatory death at the hands of a hot-blooded next of kin.  Still, if the City of Refuge approach was simply an efficacious means to wean the nation, why would the rabbis (or at least some rabbis) postulate, by interpreting the language of the Bible (Deuteronomy 19:8-10) that with the Messiah’s arrival, three more Cities of Refuge would be built to address the requirement of housing the inadvertent killers du jour?

Now, of course, if the killer killed intentionally – meaning, he’s an out-and-out murderer – the Bible prescribes something far different for him. He is simply released to The Blood Avenger, period.  And The Blood Avenger can do what he must (Numbers 35:19-21).If the intentional killer masquerades as an accidental killer and flees to a Refuge City, “the Elders of his City” would enter the Refuge City and, something like today’s bounty hunters, simply hand him over to the Avenger, who is permitted to kill him (Deuteronomy 19:11).

One could posit that, in creating these laws, God sought to address the harshness of life in Biblical times, factoring in the human dynamic that virtually insisted on revenge for the killing of an innocent loved one. At the same time, God undoubtedly recognized that the punishment warranted for an accidental death should be less harsh, less punishing than the death penalty that would automatically flow from a deliberate killing predicated on hatred, or committed in ambush.

And so, what amounted to the inadvertent killer’s self-executed remand to a City of Refuge (beyond the reach of The Blood Avenger), was itself a punishment.  It was a punishment – essentially, “minimum security” punishment – that could theoretically last the lifetime of the killer if the Kohane Gadol was young, healthy and spry at the time of the killing (Numbers 35: 28).  Preferable for the killer, to be sure; but still a life sentence.

Unquestionably, the world has changed greatly since the Bible was written. These concepts of retribution, retaliation and reprisal are far different today – at least we believe they are.  While the death penalty still exists, it will likely disappear over time.  So, looking at The Blood Avenger through the prism of today’s laws and customs, we find it hard to understand how the Bible’s Author (or is it “authors”?) would have wanted society to yield so much authority to a next of kin who ragingly suffers from a terrible personal loss.  And assuming the Author(s) intended an incrementalism in the direction of “enlightenment” – a gradual departure from the harshness of Biblical decrees such as that of The Blood Avenger – one wonders why He/they didn’t impose “term limits” on their harshness.  Why didn’t the Bible instruct its readership that Society and consequently the Law would change over time, and that institutional acceptance of personal retaliation would have to come to an end?

The House of Israel today, living in Diaspora and in Israel, no longer employs the rite of The Blood Avenger, which we can all agree is a good thing.  There are the hardline believers, however, who don’t read the Bible as “historical”  – they don’t see its occasional harshness as purely instructional given that we now that we live in a society which has evolved; one which has “enlightened” views as to how criminal justice is dispensed.  While we, today, still can understand the emotional explosion that might lead one to retaliate violently when his loved one is killed, Society today fears anarchy, and thus forbids a next of kin from letting emotion overcome him.  However overwhelmed today’s man might be upon learning that his loved one died at someone else’s hands, and reflexively lashes out by killing the killer, no one would postulate that the law has authorized it.  Today, he simply makes the choice of what he feels he must do, the potential criminal consequences to him notwithstanding.  One wonders, though, why the Bible didn’t legislate the same way.

Are today’s lawgivers better lawgivers than was God or whoever spoke for Him? For the believer, the answer is necessarily “no.” Still, the question raises a foundational trilemma.  If man, today, has enacted a more thoughtful regime to address the problem, did the Bible simply wish to wean man from the harshness of the mores existent when Moses received the Law at Sinai?  Did God actually perceive the Cities of Refuge/Blood Avenger regime as the best means with which to proceed?  Or, finally, herewith venturing to the edge of apostasy, did man (not God) fashion the Bible’s laws, so that, having evolved, man found a better way to address the calamity of unintentional death at another’s hands?

Or, maybe, there’s another answer altogether. Perhaps God, having authored the Refuge City regime (and other regimes seemingly so harsh) actually wanted mankind (call it, the House of Israel) to discover for itself that the Bible – indeed, the Law – is a living, breathing portrait. That in reflecting on the Bible’s original depiction we realize – in a reverse pentimento, of sorts – that over the fullness of time that original, ancient work has been succeeded and painted over by something in some ways far more valuable; a portrait of  laws in which we have found better ways to address man’s inhumanity to – and interaction with – man.

And it seems, at least to this writer, that mankind has indeed found them – although we still need to work harder.

* * *

As a postscript, one may believe — or want to believe — that the world has moved far beyond these ancient concepts of revenge and refuge described in the Bible. Yet Pahtunawali, the code of honor of the Pashtun people situated in Afghanistan and Paskistan, speaks of Badal (revenge)  and Nanawatei (asylum) which offers one refuge particularly from one bent on vengeance against him.  Just how far indeed have we come? And what does it say about the ancient precedents, including the Bible’s, that have brought some of today’s societies to a similar place that once existed so many years later?

About the Author
Joel Cohen is a white-collar criminal defense lawyer at Stroock in New York and previously a prosecutor. He speaks and writes on law, ethics and policy (NY Law Journal, The Hill and Law & Crime). He teaches a course on "How Judges Decide" at Fordham Law School and Cardozo Law School. He has published “Truth Be Veiled,” “Blindfolds Off: Judges on How They Decide” and his latest book, "I Swear: The Meaning of an Oath," as well as works of Biblical fiction including “Moses: A Memoir.” The opinions expressed in this article are not necessarily those of the Stroock firm or its lawyers.
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