Bill Dauster
This week’s Torah portion is Matot-Masei: Numbers 30:2 – 36:13.
This week’s Torah reading includes the perplexing story about the avenger of blood and the cities of refuge. How do we make sense of this?
Imagine you lived in a time before organized police forces and courts of law. You would have to rely on your extended family to exact justice on their own. If someone committed a crime against your family, you would have to ask a relative to hunt down and punish the offender.
Israel and other ancient civilizations authorized this relative, called an avenger of blood, to kill a murderer on behalf of the community.
But it’s not hard to see that a legal system grounded in vengeance could lead to blood feuds between extended families. Where would the cycle of retribution end?
In this week’s reading, the Torah restricted what such an avenger of blood could do. If a fugitive fled to one of the cities of the Levites designated as a city of refuge, then the avenger could not kill the fugitive.
It’s not coincidental that the cities of refuge were all Levite cities. The ancient Phoenicians, Syrians, Greeks and Romans had similar laws providing that fugitives could not be killed if they reached designated shrines or sacred precincts. We might think of the cities of refuge as locations with sanctuaries.
This week’s Torah reading provides that the community would then decide between the fugitive and the avenger of blood. This decision-making process signals the beginnings of a criminal justice system.
The rabbis elaborated on the Torah’s teachings. The Mishnah in Tractate Makkot tells that once a fugitive fled to a city of refuge, the court in the fugitive’s home city would send for the fugitive and retrieve the fugitive to stand trial.
If the court found the defendant liable to receive the death penalty for intentional murder, the court would execute him. If the court found the defendant not liable for the death penalty, the court would let the defendant go. And the court could also find the defendant liable to be exiled, in which case the court would restore the defendant to the city of refuge to which the defendant had fled.
The Mishnah even reported something like a public defender. The Mishnah says that the court would provide the fugitive with two Torah scholars, out of concern that perhaps the avenger of blood would try to kill the fugitive on the way to a city of refuge. The Rabbis of the Mishnah said that in that case, the scholars would try to dissuade the avenger of blood from killing the fugitive.
Writing in 1881, Justice Oliver Wendell Holmes, Jr. traced the history of criminal law to circumstances like those of the avenger of blood. Holmes wrote that early legal procedure was grounded in vengeance. Roman and German law started from the blood feud, which led to a system — at first optional and then mandatory — by which the feud was bought off. The Anglo-Saxon tradition had largely broken up feuds by the time of William the Conqueror. Holmes concluded that the killings and house-burnings of an earlier day transformed first into appeals to the state, and then into the legal actions now familiar to lawyers.
The Fourteenth Amendment now guarantees “nor shall any State deprive any person of life, liberty, or property, without due process of law.”
To get to justice, the civilized world first had to part ways with revenge killing. The arrangement that we now call the justice system has its roots in sanctuaries. First, society provided sanctuary from retributive revenge, and only then could it provide justice.
Questions for Discussion
Does gang-on-gang violence mirror the revenge justice of ancient times?
Does the story of cities of refuge show how the Torah addressed our ancient ancestors in the circumstances in which they lived?
Can the law of cities of refuge help to inform how we think about refugees seeking asylum in the United States?
Bill Dauster, a Senate, White House and campaign staffer since 1986, has written Wikipedia articles on the 54 Torah portions.
