Parshat Mishpatim
 29 Shevat 5764 - February 20, 2004

The Torah elaborates on the commandments taught in the Decalogue. Among these are the laws of murder and manslaughter:
One who strikes a man and he dies, shall surely be put to death. But one who did not lie in wait, but G-d caused it to occur by his hand, then I shall appoint a place for you where he can flee there. And if a man act intentionally against his fellow, to kill him with guile, from (ME’IM) My Altar shall you take him (TIKKACHENNU) to die (Shemot 21:12-14).
The city of refuge (Ir Miklot) offers sanctuary for one who killed unintentionally, but even Hashem’s Altar does not provide sanctuary for one who murdered premeditatedly.

Rashi (based on Yoma 85a) explains: if the murderer was a kohen who wants to offer the sacrifices, he must nonetheless be taken to his execution, even if the offering will not occur without him (Sanhedrin 35b-36a). Alshich adds: The kohen should not think that the sacrifice will atone for the murder. Such an offering is abhorrent to Hashem. Rather, let his execution atone for him.

Perforce, the Altar will not shelter other murderers, as in the case of Yoav, who supported the rebellion of Adoniyah, and also killed Avner and Amasa. King Shlomo ordered his execution, but:
Yoav fled to the tent of Hashem and took hold of the horns of the Altar (Melachim I 2:28).
He thought that Shlomo would not allow the Sanctuary to become defiled (Metzudat David; see also Yerushalmi Makkot 2:6). Nevertheless, Yoav was put to death.

On the other hand, the Altar does provide sanctuary in a way that is similar to the cities of refuge, as Rambam summarizes in Laws of the Murderer and Protection of Life, ch. 5:
12. The Altar affords sanctuary, as it says regarding one who kills intentionally “from My Altar shall you take him to die” – it follows that one who kills unintentionally is not killed at the Altar . . .
13. Only the top of the Altar of the permanent Temple affords sanctuary, and it does so only for a kohen who is in active service . . .
14. Furthermore, one who has been afforded sanctuary by the Altar is not left there; rather, he is assigned guards and banished to his city of refuge. But this applies only to one who is liable for banishment. However, one who was afraid to be killed by order of the king, or by emergency order of the court, and he escapes to the Altar and leans on it, then even if he is a non-kohen he is saved. We do not ever take him from the Altar to die, unless he is liable for the death penalty by the court with complete testimony and forewarning, like others who are executed by the court at all times.

In addition, Torah Temimah explains that
from My Altar shall you take him (TIKKACHENNU) to die
assumes that the court was so close to the Altar that one needed only to take him there; if they were farther apart, the Torah would have said "bring him." Tosafot (on Avodah Zarah 8b) put it this way: the Sanhedrin must be next to the place of the Shechinah in order for the court to be authorized to execute.

In other words, in order for a court to try capital cases and execute, there must be a functioning Temple and Altar. Rambam in his Sefer HaMitzvot (14th Principle, end) quotes one source of this idea:
Also, we do not judge capital cases except when the Temple is standing. And the words of the Mechilta [of R. Shimon bar-Yochai]: “Whence that we do not execute except in the presence of the House? The verse teaches “from My Altar shall you take him to die” – thus, if you have a House you may execute, but if not you do not execute. “ And it further says there “Whence that the Sanhedrin should be next to the Altar? The verse teaches “from My Altar [shall you take him to die].”
Ramban and Rashi on Bamidbar 35:29 both support this.

Based on Makkot 7a, Rambam synopsizes in Laws of the Sanhedrin, ch. 14:
11. We do not judge capital cases except while the Temple is standing and only when the Supreme Court is there in the Chamber of the Temple . . .
12. When the Temple was first built, the Supreme Court sat in the Chamber of Hewn Stones in the court of the Israelites . . .
13. Forty years before the destruction of the Second Temple, capital cases were nullified in Israel, even though the Temple was standing, because the Sanhedrin was in exile and they were not in their place in the Sanctuary.
14. As long as they can judge capital cases in the land of Israel they may judge capital cases outside the Land, provided that the Sanhedrin be authorized in the Land, as we have explained, that the Sanhedrin is practiced both in the Land and outside the Land.

The power to put a criminal to death is inseparable from the atonement provided by the Altar, which makes peace between the people of Israel and Hashem. As R. Shimshon Raphael Hirsch expresses it:
“When the very precisely defined Law of G-d -- giving Man no scope for his own judgment or arbitrary discretion – ordains death for a criminal, the carrying out of this sentence is not an act of harshness to be commuted for any consideration whatsoever, it is itself the most considerate atonement, atonement for the community, atonement for the land, atonement for the criminal, atonement in quite the same way as that brought about by the altar.”

Perhaps we might put it another way: Only when the society of Israel is completely united with Hashem by means of the Temple do they have the right to take the life of a member of that society who has committed a capital crime according to the norms of the Torah.

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