By Rabbi Avraham
Fischer. A publication of the Orthodox Union in cooperation with the Seymour
J. Abrams Orthodox Union Jerusalem World Center
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
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.
Torah K'Torat Eretz Yisrael!"- Torah from Aloh Na'aleh*
“Land of the Free”
“Ki tikneh eved ivri…” “If you buy a Hebrew slave…” (Shemot 21:2). Parshat
Mishpatim begins with the laws of a Hebrew slave and how he acquires his
freedom. The Kli Yakar explains that the parshah opens with these laws in
order to teach us that just as the birth and formation of the Jewish
people began with “I am the Lord your God who took you out of Egypt,” i.e.
Hashem taking us out of slavery and granting us freedom, so too the Jewish
people must recognize the value of individual freedom and allow every
person to reach this state.
“The difference between a slave and a free man is not only a question of
whether or not he is enslaved to another human being (Olat Ra’ayah, p.
245).” True freedom, explains Rav Kook, is that uplifted spirit which
results when an individual or a nation reach and give expression to their
true inner selves in every walk of life.
Here lies the ge’ulah and the freedom of our return to Eretz Yisrael. It
is in Eretz Yisrael where we find ourselves upon the most fertile
spiritual ground, which allows us to reach complete self-expression,
without any foreign rule constricting the ideals and the values of the
Rabbi Ari Waxman
*D’var Torah from Aloh Na'aleh:
an initiative of former North American Rabbis and laymen who successfully
made Aliyah, aimed at highlighting the centrality of Israel and promoting
Aliyah. They send emissaries – Rabbis, academicians, and others – on
speaking-tours throughout the U.S. and Canada.
Tel: 972-2-566-1181 ext. 320