The following perspectives make this law appear reasonable and even superior. I also (at the end) give some pedagogical advice on how to teach this difficult topic.
1st) PROHIBITION vs. DEATH PENALTY:
There is a prohibition of murder. This prohibition also applies to the Goel Hadam if the negligent murderer has not left his refuge city. However, if a Goel Hadam - relative of the murdered - kills the negligent murderer outside the refuge city, he is not subject to a death penalty. We infer this from the verse Deut. 19:6 "... and he [the blood avenger] has no death penalty (cf. Rambam Rotzayach 5:9)" In other words, he cannot be convicted for execution by a court. But the prohibition "Thou shall not kill" still applies to him.
To recap: We must carefully distinguish between prohibition and death penalty. Exemption from a death penalty does not imply exemption from the prohibition of murder.
2) PATUR, ASUR, MUTAR:
In our halachic works we must distinguish between the three technical terms "patur" (exempt), "asur" (prohibited), and "mutar" (permissible). "Mutar" means there is no prohibition! "Patur" means there is a prohibition but there is no punishment. "Asur" means there is both prohibition and also a punishment if criteria for conviction are met.
2a) A Goel Hadam who found the negligent murderer anyplace (outside his refuge city) and killed him is "Patur" (Rambam, Rotzayach, 6:4)
2b) A Goel Hadam who killed the negligent murder inside his refuge city may be convicted of murder and executed (Rotzayach 5:10)
2c) A Goel Hadam is "mutar" to kill a negligent murderer who willfully left his refuge city. Any other person who kills a negligent murderer who willfully left his refuge city is "patur." (Rotzayach Rambam 5:9 citing Nu. 35:27)
3) LEGAL PHILOSOPHY
The Goel Hadam has a "natural desire" to avenge the murder. He is motivated. He is not a DA who has a 9-5 job who may think he has done his work for the day. Why not use these natural emotions. The Torah uses these natural emotions as follows:
3a) In the case of conviction, it is the Goel Hadam who executes the murderer (Rotzayach 1:2)
3b) In the case of willful leaving of the refuge city, we give the Goel Hadam the right to kill the murderer. Why? Because the murder was not accidental but rather negligent. The proper translation of Shogayg is negligent. He could have foreseen it but was not paying attention. Such a person is risky to society. He is "confined" to a refuge city. We leave it up to the Goel Hadam to decide if his life should be terminated if this negligent murderer after having been negligent once violates his prison term and leaves his city.
4) CITATION FROM THE RAV ON VENGENANCE
The Rav (Rav Joseph Baer Soloveitchick) from whom I learned Chumash for 7 years provided the following insights on vengeance. >>The Talmud Beracoth 33a states 'Great is vengeance since the word vengeance is found sandwiched between two names of God (Ps 94:1 A God of vengeance is God)'. To explain the meaning of this passage, consider some of the Nazi hunters who spend their time finding where active Nazi leaders are currently hiding and bringing them to justice. What motivates these Nazi hunters? Do you think it is justice? But aren't you and I just? Rather it is vengeance. Thus we see that vengeance when controlled can be a positive motivating force.<<
5) PEDAGOGICAL IDEAS
a) If you are teaching these passages to High School seniors I would simultaneously teach all 3 passages (The ones in Exodus, Numbers and Deuteronomy so as to compare nuances. See Rotzayach 5:7 for a good illustration of how to combine these passages.)
b) I would bring in the various Talmudic concepts including the distinctions between mutar, patur and asur as well as the distinction between prohibition and death penalty. These distinctions facilitate removal of appearances of inequity.
Russell Jay Hendel; Ph.D., A.S.A; [
www.Rashiyomi.com]
Dept of Mathematics
Towson University,
Towson Md
Edited 1 time(s). Last edit at 01/15/2012 10:14PM by mlb.
