Shabbat Parshat Matot-Masei 5767

Parshat Masei has the laws of the ‘arei miklat’ – the cities of refuge. The Torah deals here with both homicide – one who kills with intent – and the accidental murder where one was grossly negligent but did not intend to kill. One who kills by accident is to go the City of Refuge for protection from an avenging relative. In the Gemara, our Sages refer to this running to and living in the City of Refuge as ‘Galut’ – exile. The rishonim, following on the Sages’ terming this exile, describe this as an exile of Kapparah – atonement. The time spent in the City of Refuge is an exile that serves as atonement for the one who killed accidentally.
One who is in the City of Refuge remains there until the High Priest of his time passes away. What is the connection between the High Priest and the accidental murderer? Rashi (35:25) offers two answers, both from the Gemara; the first of these two answers is more readily understandable than the second. The first answer is that the High Priest comes to bring God’s presence to the Jewish people and bring life to the Jewish people while a murdered removes God’s presence from the Jewish people and shortens lives; it’s not proper for the murderer to be in front of or coexisting with the High Priest. In other words, there is a dichotomy between the murderer (even by accident) and the High Priest. The High Priest represents ‘Kehushat HaChayim’ – all that is good and spiritual about living life – while the murderer represents death and all that is bad in life. And the two cannot coexist with one another. This is highlighted by capturing the dichotomy within the interaction of the murderer and High Priest.
Rashi’s second answer is that the High Priest should have prayed that such an occurrence (of accidental death) should not have occurred to our people [and for his lack of prayer to this effect, the High Priest is put in a position where his death will allow the closure of the event. The Gemara talks of the murderer have loved ones praying for the High Priest’s early death to allow the murderer to go free earlier]. This answer is harder to understand than the first. Why are we punishing the High Priest for his lack of prayer? How exactly does his lack of prayer relate to the accidental death that occurred? [We will come back to this question at the end of the discussion].
Looking at murder on purpose: The only time we give the death penalty is when the Beit Din HaGadol – the High Court – that sits on the Temple Mount is in place in the Lishlat HaGazit. The Gemara has a piece where two of the Sages say if they had been alive and participating in the High Court, they would never have given someone the death penalty. Meaning, they would have made the details of receiving and accepting evidence and the like so difficult that no one could have been found guilty. R’ Shimon ben Gamliel (RaSHBaG) responds to them that this would lead to an abundance of murderers on the loose. Meaning, without a deterrent of the death penalty, there would be more murder. Rabbi Granatstein raised the issue: how could the Sages have contemplated not allowing a death penalty to be dealt out – there are commandments relating to the death penalty as to when to give it and how to do so (i.e. Capital punishment is a Mitzvah). How could the Sages have thought to create technicalities not to give it? Along these same lines, when RaSHBaG responds – why doesn’t he give this response that the Torah says we are to kill one who commits homicide? He gives an instrumental response rather than a fundamental one. Why? To address this, we have to draw a distinction between different mitzvot. With a mitzvah such as taking a lulav on Sukkot, you can talk about doing the mitzva with a lot of intent and concentration; you can’t have this discussion in regard to killing someone. [I think Rabbi Granatstein meant that with most mitzvot, there is an inherent opportunity to draw you closer to God in performing the mitzvah; it’s a lechatchila to do the mitzvah. With meting out a death penalty, it can never be a lechatchila. It may be necessary – instrumental – but not more than that. This allows us to say that while Torah deals with homicide, the Torah’s primary focus of a response to or necessary result of murder is exile].
As an aside, Rabbi Granatstein referred to two relatively recent times when the issue of the death penalty here in America came up. There was a time when there was no death penalty. Then it began to be instituted again – amidst much debate in State legislatures. An Orthodox legislator wrote Rav Moshe Feinstein regarding this – whether or not this judge should come out in favor of the death penalty or against it. Rav Moshe’s response was that without all the safeguards that the High Court has in place, there can’t be a death penalty. But, Rav Moshe said he could see allowing it for the purpose of having a deterrent that without it, there would be more murderers around. The second instance occurred when the Reform movement drafted a letter against the death penalty. The Orthodox Union drafted a response supporting the death penalty. Rav Soloveitchik told them they either couldn’t send the response or they had to come out also against the death penalty – because without a High Court, you cannot have the death penalty.
Returning again to accidental murder and Galut: looking at the beginning of man, we have two periods of ten generations, from Adam to Noah and from Noah to Avraham. In each of these periods we have a stance taken against murder, though they differ from one another. During the first period, no blood can be spilled, not even that of an animal. Man is to be perfect and perfection means not killing anything. Man then sins and is punished with the Flood. After the Flood, Hashem allows the killing of animals for man to eat them. This is recognition of the fact that man is not perfect, and allowance is made for what seems to be intrinsic blood lust in man. And still, the Torah makes a clear statement (9:6) – “Whoever sheds the blood of man, by man shall his blood be shed.” The murder of man cannot happen.
Looking at the Torah, we can see a theme of Galut from the first time we have murder. Kayin murders and his punishment is Galut. The Torah highlights this that he builds a city for his son Chanoch – ‘I will never know rest and have a home, but my son will.’ The generation of Noah – they sin and their punishment is being expelled from their places (they are washed away from their homes). With Migdal Bavel – the people gather together and sin and they are expelled to different lands. Avraham is told his children will be in Galut. And our Galut sets up the rest of the Torah as our search for home, to return from Galut. And there is a constant emphasis of our sin leading to further Galut.
Returning to Rashi’s second answer: you can talk about two types of a High Priest. One type is someone who does his Avodah each day and prides himself on it, seeing the Avodah as a right of his position and nothing more. A second type is one who sees the Avodah as representing his responsibility to the People. The High Priest’s role is to make sure that everyone and everything remains spiritually good and at home – that we don’t have some to the types of actions and lack of care that lead to Galut and to Hashem having to move things from their natural place. And we have many examples in the Navi where it’s emphasized that the Avodah is more than just the physical sacrifices and rites – it’s about our conduct; the High Priest – as our representative – is to perform the Avodah as a reflection of our dedication to the Kedushat HaChayim that the High Priest is supposed to represent. This is what Rashi is driving at with the answer he quotes from the Gemara. The High Priest’s not praying to avoid this occurrence reflects his not being sensitive to the role and responsibility that he has.

Submitted by Herzl Ginsburg