MOREH NEVUKHIM—END OF CHAPTER 40, BEGINNING OF 41

PLEASE REMEMBER THAT THIS SHIUR IS ENDING WITH NEXT WEEK’S PRESENTATION, AND THAT WE WILL BE"H BEGIN A NEW SHIUR IN SEPTEMBER. PLEASE NOTE THAT AS OF NOW REGISTRATION FOR SEPTEMBER HAS BEEN DISAPPOINTING. WHILE I HOPE TO OFFER NEXT FALL’S SHIUR (SO FAR, THE REGISTRATION HAS FAVORED HELEK, THE LAST CHAPTER OF SANHEDRIN, BUT THERE IS TIME TO ADJUST THAT AS WELL), I CAN ONLY JUSTIFY THE TIME I SPEND IN PREPARING THE CLASSES IF I HAVE SUFFICIENT REGISTRATION.

UNINTENTIONAL MURDER AND ITS CONSEQUENCES

Among Rambam’s reasons for the way the Torah handles situations of tort, his understanding of the situation of unintentional murder is perhaps the most stimulating. The Torah rules that someone who kills someone else unintentionally (many translate the Talmudic term be-shogeg as "accidentally," but that ignores the element of liability the Talmud clearly assumes—it is more correct to envision shegagah as incorporating an element of negligence, not enough to be considered almost intentional, but more than a complete accident) must flee to an ir miklat, a city of refuge, until the death of the High Priest. Should that murderer leave the ir miklat before that time, the go’el hadam, a close relative of the victim whose fury over his relative’s death has yet to subside, may kill the murderer. Rambam explains both why the Torah set up the ir miklat system to begin with, and why the death of the High Priest frees him. Each is worth pondering.

In terms of the ir miklat, Rambam says that it was created in order to give the avenger a chance to calm down before he kills a man who is not liable for death. In that explanation, however, we make the murderer live in the city of refuge as a way of protecting him, not because his act incurred any liability on his part. It is somewhat akin to the Witness Protection Program, where we force a family to move and take on new identities only because they witnessed a crime perpetrated by someone so threatening that they would not testify without such protection (of course there are differences, but it’s a reasonable analogy).

Rambam may have meant that, but I find it hard to accept because of the Talmud’s clear differentiation of various kinds of act by whether the person who did that act bears responsibility for it, in at least some way. Rather, I would use this as an example of a principle I’ve noted many times before, that Rambam’s goal is not to give the reason for everything in Judaism, but to demonstrate the logic and rationality of the system. Since we can envision a rational system that would require murderers to flee the avengers of their victims by moving to a protected area. Rambam’s reasoning, despite its deficiencies in fully explaining this halakhah, does accomplish his goal, making the Jewish system rationally and philosophically plausible.

THE DEATH OF THE KOHEN GADOL

An odd detail of the laws of the unintentional murderer is that he must stay in the city of refuge until the death of the High priest—regardless of how long or short that period may be. Many have struggled to explain this facet of the law, but Rambam’s explanation is particularly fascinating.

According to Rambam, the death of the Kohen Gadol will almost definitely calm the soul of the avenger. Noting that the death of others—particularly those greater than the decased-tends to assuage our own grief, Rambam claims that the death of the Kohen Gadol is the single most important death of an individual in the Jewish people. Note again Rambam’s focus on the impact of this ritual on the avenger; the murderer is a bystander—the death of the Kohen Gadol has no real meaning for him other its effect on the avenger who is out there waiting for him.

Rambam’s reason also assumes a connection between people that I would not have —for Rambam, the death of others calms us, helps us put our own tragedies in some perspective. Even more interesting, the death of public figures affects us that way as well (I have seen that in our times, with the death of Princess Diana, for example, but here Rambam is assuming that the death of the Kohen Gadol would be a similarly emotionally affecting event).

THE EGLAH ARUFAH

Moving up in the level of criminality involved, Rambam takes up the case of the eglah arufah, the odd ritual ordained by the Torah for situations where a murder victim is discovered and no one knows who committed the crime. (In our day, that situation is so common that we do not think twice about it; for the Torah, it was seen as extraordinary). The Torah says that the elders of the city nearest to the victim—it was apparently unthinkable that a murder would be committed within a city’s boundaries without someone knowing who did it—should bring a heifer to a piece of land that was not used for agriculture, announce that they had nothing to do with this person’s death, and break the heifer’s neck there.

While the ritual is replete with symbolism, and has been discussed many times, Rambam here focuses only on the public element of the ceremony. He explains that it is meant as a way to find out the truth of what happened as efficiently as possible. Since this ceremony is a big deal, the word will go out ahead of time, and the elders of the city will try their hardest to elicit any information about the crime before they face God with the declaration that the citizens of their town had nothing to do with the death. Furthermore, the owner of the land, who will henceforth not be allowed to use that land for any productive purpose, will also go to great lengths to find out any information about the murder.

As Rambam notes, even if a witness whose testimony will not be accepted by a formal court, claims to know the murderer, the heifer will not be killed. There must in other words be complete ignorance about a murder before we engage in this ceremony, which is calculated to lift that veil. Interestingly, Rambam stresses that knowing who committed the crime, even if the information does not come in a package that a formal court procedure can use, should lead to practical consequences. The ruler (the king of a Jewish State in which halakhah is the law of the land) will punish such a person, since part of his job is to insure that justice is accomplished, even if that means working outside of the formal court system set up by the Torah.

CHAPTER 41—THE BEGINNING

Rambam takes up the punishments of transgressions—a topic he had touched on

at the end of chapter 40, when he noted that the ruler might punish murderers outside of the formal rules of halakhah. In this chapter, though, his point is to discuss the rules of punishments that judges administer within the formal court system.

He takes up first the crimes people commit against each other—either against another’s property or their person (which would be a tort). In that regard, he sets up as the central principle the notion of middah ke-neged middah, that we do to the criminal that which he had done to the victim. He notes that that principle suggests that the victim has the right to forego the punishment of his aggressor (to not press charges), with the one exception of murder. Murder, in other words, is not only a crime against another person, but against society, etc., so that we must punish the murderer. Although we do not have the space to discuss it here, Rambam’s claim that the victims can always forego their attackers’ punishment seems overstated (with the case of false testimony providing what seems like a good counterexample).

AN EYE FOR AN EYE

In his list of crimes that support the notion of middah ke-neged middah, Rambam includes the principle of removing the limb of someone who removed someone else’s limb—an eye for an eye, in the well-known phrase. The problem with this inclusion is that the Talmud is very clear that those verses should be taken as a monetary command, not a literal one. Rambam, recognizing this, says that he is discussing the original Biblical law, not the Talmudic legal principles.

Again, we do not have the time to investigate the issue fully here, but this is a difficult statement, since we generally do not divide Torah law from the Oral Law in this way. Further, Rambam’s claim that he has an interpretation of the Talmud’s ruling that he is only willing to share in person has also paved the way for many speculations as to what he means. Consulting the Mishneh Torah, however, I believe I once heard Rabbi Rosensweig point out that in the first chapter of the Laws of Damaging Others (Hovel u-Maziq) treats the payment of nezeq as a qenas, a fine rather than damages, and sees it as a kofer for the loss of limb that should have occurred. Rambam seems to indicate, in other words, that the Torah meant an eye for an eye literally, but also insisted that a monetary payment replace the deserved punishment.