Forcing an Entire City to Engage in Introspection

 

R. Yaakov Bieler

Parashat Shoftim, 5765

 

At the end of Parshat Shoftim (Devarim 21:1-9), we encounter the curious and mysterious ritual of “Egla Arufa” (lit. broken-necked calf). The procedure is required when the body of a murder victim is discovered in an unpopulated area within the land of Israel. The closest Jewish city is notified and its inhabitants perform a ceremony that culminates in a prayer for HaShem to Grant atonement for the crime that has taken place so close to their homes. Some of the components of the ceremony seem to have purely symbolic value, e.g., the killing of a calf that has never been used for any type of work upon a site has never been cultivated, and would therefore appear to qualify as “Chukim” (lit. statutes), laws whose meanings are obscure to the human mind.[1]

However, one aspect of the ritual is very comprehensible, and probably quite disconcerting for the city’s leadership. By means of both body language as well as the spoken word, the leaders of the community are commanded to declare their innocence of any wrongdoing in connection to the murdered individual’s demise.

 

Devarim 21:6-7

And all of the elders of that city closest to the lifeless body will wash their hands[2] over the broken-necked calf in the valley.

And they will recite and say: Our hands did not spill this blood and our eyes did not see.

 

The Tora-mandated public declaration by these leading personalities of the city, suggesting that some degree of suspicion regarding their complicity in the murder has to be unambiguously refuted, inspires the Mishna (paraphrased by RaShI in his interpretation to Devarim 21:7) to rhetorically ask a pointed question, and then answer its own query with an intriguing hypothesis.

 

Sota 9:6

…Does it ever occur to us that the elders of the local court are murderers?

But rather (they are declaring) that we were never approached by this individual and we never deliberately sent him away without food;

we never saw him setting out on a journey and are to be blamed for allowing him to travel without a protective entourage…

 

The Mishna interprets the elders’ verbal formula associated with “Egla Arufa” as suggesting that rather than focusing upon the murder itself from which the elders hopefully should be able to easily disassociate themselves, reflecting upon and reenacting the series of events that possibly led up to the actual crime is of importance to us all, and that the responsibility for this chain of unfortunate circumstances might have to be laid at the feet of the city’s leadership, however distinguished their reputations. Every grouping of human beings, large and small, contains within it, on the one hand, individuals who are vulnerable and needy, and on the other those who are predatory and predisposed to violence. When the paths of members of these two groups cross under extenuating circumstances, e.g., when food is scarce and extreme poverty is wide-spread, the Tora suggests that blame for violence cannot be confined to the immediate perpetrator of a crime, but rather has to be shared by those mandated to create and enforce a spirit of cooperation, mutual respect and safety within their municipality’s precincts. The implication of the elders’ declaration in the ritual of “Egla Arufa” is that the repair of manifestations of the fraying of the social fabric is the primary responsibility of the political, judicial, military and executive branches of government.

 

The Babylonian and Jerusalem Talmuds disagree regarding the identity of the individual about whom the elders are declaring their freedom from blame. Bavli Sota 45b-46a understands that the elders are referring to the murder victim whom they claim they did not know either lacked food or had felt compelled to travel alone on dangerous roads. Much more intriguingly, the Talmud Yerushalmi takes a different perspective, shifting the focus from the social services offered by the society, to its justice system.

 

Yerushalmi Sota 9:6

The Rabbis from here (Israel—Jerusalem Talmud) explain the verse in terms of the murderer, while the Rabbis from there (Bavel—Babylonian Talmud) interpret the verse in terms of the murder victim.

The Rabbis from here explain the verse in terms of the murderer: he did not come into our hands and we freed him (without subjecting him to punishment). We did not see him committing the crime, and failed to bring him to justice.[3]

 

While the Rabbis of the two Talmudical traditions disagree regarding how to understand the focus of the elders’ declaration, from the perspective of considering societal needs, both perspectives are important to consider. Individuals reduced to desperate circumstances in order to be able to survive will feel compelled to engage in risk-taking that can sometimes prove fatal, while unrepentant criminals who are allowed to continue to wreak havoc with impunity will similarly erode the quality of life within the community. R. David Tzvi Hoffmann[4] suggests that the difference in opinion between the Yerushalmi and Bavli revolves around whether a “Beit Din” (Jewish court)’s failure to convict a criminal who subsequently murders someone is tantamount to the judges themselves being guilty or at least accused of spilling blood—according to the Rabbis of Israel “yes”,[5] and the Rabbis of Bavel “no”.[6] The tension that is created by recognizing the need to bring evil-doers to justice in order to protect future potential victims, and yet worrying that perhaps an error might be made and an innocent person will be convicted of a crime that s/he did not commit, is reflected in the following Mishnaic debate:

 

Sanhedrin 1:10

…A Sanhedrin that executes a single person over the course of a seven year period is declared a violent court.

R. Elazar ben Azarya says: A single person over the course of seventy years.

R. Tarfon and R. Akiva say: If we would be seated on a Sanhedrin, no one would ever be executed.[7]

R. Shimon ben Gamliel says: They (R. Tarfon and R. Akiva) will also thereby multiply the murderers among the Jewish people.

 

R. S.R. Hirsch (Devarim 21:7) offers a different perspective as to why he prefers the explanation of the Talmud Bavli over that of the Yerushalmi, based upon contrasting a number of different scenarios that could account for how and why the murder victim met his end:

 

…The words of the text, “Our hands did not spill the blood…” seem to indicate that it refers to clearing themselves from any blame in participation in bringing about the deed, rather than from their having been forgetful of their duty and showing leniency to the murderer after the deed was done (see fn. 3). If we consider further…that the whole “Egla Arufa” institution applies only to cases where the victim has been left lying in the open as if in mocking defiance of the public officials, then there could really only be one case where such scorn could possibly be deserved, and that would be if the officials of the town had really sent a hungry traveling stranger away without giving him any food, and his hunger had driven him to try highway robbery in the course of which the man attacked had killed him in self-defense; a case in which the slayer would be entirely guiltless, the slain one have at least some excuse, and the real blameworthy ones would be the officials of the city who had failed to exercise the Jewish communal duty towards the needs of the slain man. This same eventuality could also refer to the slayer (as the authorities in the Yerushalmi would say), i.e., that the neglect of their duty on the part of the town officials had left him in such dire need that he had to resort to highway robbery and killed the victim of his attack. But the Babylonian Gemora could prefer to take the case primarily to refer to the slain man because then there would be the possibility of complete blamelessness in the actual deed, and also the Babylonian explanation seems more feasible as it puts the allowing to depart without food as the explanation for “Our hands did not spill” accordingly as a possibility of actual participation in the causation of the crime, and not, as the Yerushalmi does, as the explanation of “Our eyes did not see”.

 

Whereas Mishna Sota understands the confession of the Kohanim and the elders as implying at least the possibility of indirect guilt in the death of the individual whose body has been discovered, Ibn Ezra uncharacteristically[8] proposes a metaphysical approach to the situation that precipitates the “Egla Arufa” ritual by suggesting that nothing at all directly associated with the particular murder in question might have actually taken place in the city whose leaders are now required to profess their innocence.

 

Ibn Ezra on Devarim 21:7

And it is possible that God Commanded that these actions be performed in the closest city (to the discovered dead body), since had the inhabitants (of that city) not violated a similar transgression (to the sin of murder), it would not have happened that an individual would have been murdered in their proximity. And the Thoughts of HaShem are deep and ethereal without measure viewed from our human perspectives.

 

It appears that for Ibn Ezra, the assumption that a Jewish city’s leadership could be implicated in any way—directly or indirectly—in the murder of an average non-descript individual is completely preposterous. However that fact does not preclude the engagement in behaviors by the residents of the city in question that are in need of correction. Ibn Ezra insists that the conduct which has attracted God’s Attention at worst merely parallels in some way the crime of murder and while such actions are duly grievous, they do not necessarily involve any aspect of the criminal taking of life.

 

Ibn Ezra’s approach to identifying what precipitated the murder that then requires the performance of the “Egla Arufa” ritual, calls to mind the theological explanation associated with the concept of “Rotzeach BeShogeig” (the inadvertent murderer) and God’s Orchestrating[9] his/her need to spend time in an “Ihr Miklat” (city of refuge). RaShI presents this very type of theological scenario for “Rotzeach BeShogeig” in a well-known commentary on a verse in Shemot.

 

Shemot 21:13

And if he did not lie in ambush, and God Made him (the victim) fall into his (the inadvertent murderer’s) hands, and I will Give you a place that he can flee there.

 

RaShI

What is the circumstance being discussed by the verse? Two individuals, one who had murdered someone inadvertently and another who had murdered deliberately. In both instances there were no witnesses to attest to what had taken place. This one was not executed, and this one was not exiled (to a city of refuge). And the Holy One Blessed be He Orchestrates events so that these two individuals find themselves in the same inn, the one who had previously killed with premeditation sits at the foot of a ladder, and the one who had killed inadvertently climbs up the ladder, and accidentally falls on the one who killed deliberately and kills him, before witnesses who testify against him and he is sentenced to exile. Consequently, the one who originally should have been exiled is exiled, while the one who should have been executed is killed.  

 

Extending the context of the aforementioned RaShI to the case of “Egla Arufa” according to Ibn Ezra, one could suggest that while there may not have been specific errors or insensitivities with respect to the particular murder that is now being dealt with, there may have been other murders which could be attributed to judicial incompetence and/or a lack of concern for the poor and oppressed. In order to finally sensitize the entire city to these long-standing flaws in the municipality’s social makeup, a dramatic event such as the “Egla Arufa” ritual will ideally lead to reflection upon everyone’s part in order to assure that similar regrettable incidents will happen with far less frequency, if at all.

 

However, it is possible that according to Ibn Ezra, the need for “Egla Arufa” may have nothing at all to do with previous murders.  Another comment by RaShI implies that an action, or lack thereof, that unfortunately leads to another’s death may have nothing to do with previous murders that have gone unsolved and unpunished.

 

Devarim 22:8

When you build a new house and you make a fence for your roof, and you will not place blood in your house, “Ki Yipol HaNofeil Mimenu” (lest the faller falls from it).

 

RaShI

(Addressing the implications of the word “HaNofeil” [the faller]—how can such a person be referred to as a “faller” if s/he has as yet not fallen, RaShI writes:) This individual is predestined to fall (to his/her death). Nevertheless, do not allow his/her death to be associated with you, since meritorious actions are connected to those who are worthy, while negative actions are connected to those who have acted improperly in the past.

 

Once it is assumed, as apparently does Ibn Ezra, that there is some sort of “cause-and-effect” relationship between the discovery of a dead body resulting in “Egla Arufa” on the one hand, and preexisting negative behavior to which in God’s “Opinion” insufficient attention has been paid by the city’s leadership on the other, it would seem to be of great importance to identify exactly what type(s) of conduct   are in need of rectification. If a “Mida KeNeged Mida” (one attribute in direct correspondence with another) relationship is at work, and a city’s inhabitants are being reminded by means of a murder and its ensuing public ritual, that the murder rate in their community is unacceptable, at least the social problem in need of being addressed has been clearly identified, and hopefully people will attempt to find ways of improving the situation. However, if the relationship between “Egla Arufa” and a society’s shortcomings is no more than conveying to the city that there is something wrong, but it remains patently unclear what the problem may be, one could imagine one of two extreme reactions: 1) the citizenry decides to engage in a general reconsideration and overhaul all of the city’s values, institutions and interpersonal interactions,[10] or 2) due to how elusive and unspecific the indictment of the behavior of the city seems to be, nothing will end up being done.[11] An additional difficulty with Ibn Ezra’s approach would appear to be is how is it to be determined whether the offending behavior has been corrected? Would unidentified bodies continue turning up near the city in question until changes had been made?[12] Would “Egla Arufa” take place only when the shortcoming in need of improvement was so glaring that it left nothing to the imagination, and everyone would immediately recognize what had to be done?

 

Finally, since “Egla Arufa” is no longer practiced today (see. fn. 12 for a discussion of the primary source describing why it was discontinued), a homiletic interpretation presented by Chizkuni and Da’at Zekeinim MiBa’alei HaTosafot takes on more than passing interest.

 

Chizkuni, Da’at Zekeinim on Devarim 21:7

“Our hands did not ‘Shafchu’ (spill)”—the word pronounced “Shafchu” is written: “Shin” “Phey” “Chaf” “Heh” (instead of the more appropriate “Vav”), as if it is to be pronounced “Shafcha”, making this a case of “Ktiv VeKeri” (lit. writing and reading, i.e., where the pronunciation and the spelling of a particular word are at odds with one another; such inconsistencies are invariably the subject of homiletical and sometimes even Halachic interpretations by the Rabbis.)

It is written with a “Heh”, to teach that the “Ba’al HaBayit” (householder) is obligated to extend to his guest five (the numerical value of the letter “Heh”) things: 1) food, 2) drink, 3) accompaniment on his journeys, 4) a place to sleep, and 5) a gift, whether large or small…

 

Perhaps even during the period when “Egla Arufa” was carried out, it was too easy for the average inhabitant of a city to conclude that it is only the leadership, the elders, who are responsible to see to the needs of the poor. The interpretation of the “Heh” in “Shafchu” not only equates the average “Ba’al HaBayit” with the elder of the city, it further implies that his/her home is tantamount to a city, and the guest that he welcomes into it are comparable to those in need within a large metropolis. Refusing to receive a guest, or not offering generous and appropriate hospitality to one’s guest during the time that s/he is visiting your home, is viewed as a serious shortcoming, and potentially will require a public accounting should something untoward happen to one’s guest. It would seem that just as Sanhedrin 71a states with regard to “Ben Sorer U’Moreh” (the stubborn and rebellious son), “Ihr HaNidachat” (lit. a city that has been pushed aside, i.e., a locale where at least 51% of the population has engaged in idolatry, causing a decree to be issued that the entire city including its inhabitants are to be destroyed), and “Beit HaMenuga” (a house that has developed the spiritual fungus “Tzora’at”), that even if these situations never practically took place, “Derosh VeKabel Sechar” (interpret and explore these topics and it will prove rewarding), the same is true of a Mitzva that is no longer carried out such as “Egla Arufa”. In the case of the latter in light of Chizkuni’s and Da’at Zekeinim’s interpretation, we are enjoined to treat all guests with a high level of concern and respect. Rather than viewing the virtue of “Hachnasat Orchim” (bringing guests in) as a favor that we are extending to those we invite, we should perceive it as a great responsibility, that must be carried out as carefully as any other Mitzva, and for which we ultimately will have to give an accounting.

 

Shabbat Shalom, and may we aspire to communities and families that do not allow those in need, be they our family members, co-religionists, neighbors, fellow-citizens, members of humanity to fall by the wayside, particularly in their times of extreme need.