In Israel: Mas ‘ei
The Lex Talionis
One of the most widespread legal principles in the ancient world was the lex [or “ius”] talionis, the law [or “right”] of retribution. A person who, for example, injured someone was to be punished by suffering the same injury, and a murderer was to be punished by being killed.
This principle was enshrined not only in Roman law, but in the Torah as well: “He who sheds the blood of a man, by a man shall his blood be shed” (Gen 9:6). Similarly, “A man who kills another shall be put to death… And if a man injures his fellow, as he has done, so shall it be done to him: fracture for a fracture, eye for an eye, tooth for a tooth: the injury that he inflicted on someone will be inflicted to him” (Lev 24:17-20).
In the ancient Near East, this principle of retaliatory justice was sometimes carried out without regard to the particular circumstances, and sometimes it apparently could be inflicted on someone other than the wrongdoer. A biblical example is the case of Lamech, one of Cain’s descendants; he is quoted as saying, “I killed a man to avenge a wound, and a boy for a bruise.” (Gen 4:23-24) (Actually, I believe both verbs here are intended in a general or conditional sense: “I would kill,” or even “I regularly kill.” But this grammatical nuance is in any case irrelevant to the overall point here.)
Lamech is boasting that the lex talionis isn’t good enough for him: he says he would kill someone to avenge a mere injury, in fact, he would kill a boy to avenge a minor bruise. There is no indication that either of these victims is actually the one who injured Lamech—and the thought of Lamech saying that a mere boy had hurt him doesn’t work well with this rough-and-tough boast.
Rather, what Lamech means—and he certainly wasn’t the only one in those times who thought this way—is: “If you hurt me and/or one of mine, your side is going pay for it disproportionately—and it really doesn’t matter to me who I end up killing.” In fact, Lamech continues, if my ancestor Cain was known for his unfair, sevenfold vengeance (Gen 4:15), well, my revenge will be even more lopsided, seventy-sevenfold (Gen 4:24).
The biblical concept of the “blood avenger” in this week’s reading (Num 35:19 etc.) also reflects an ancient concept redolent of the lex talionis: the relative of a person whose blood has been shed must avenge the blood by killing the killer. The blood itself calls out, as it were, for justice (Cf. Gen 4:10).
It is against this background that we can assess the true significance of a section of this week’s Torah reading. Here, the Torah distinguishes between murder (someone kills his fellow with malice aforethought), and a simple mishap, whereby the person is killed accidentally and with no prior intent.
Naturally, it was often impossible to establish with certainty what had occurred without a full judicial inquiry. But how could such an inquiry be undertaken in a world in which the swift justice mandated by the lex talionis was so deeply engrained? How could one stop a blood avenger from doing his work even as the blood itself was calling out for revenge?
That is why this week’s Torah reading mandates the designation of “cities of refuge” in various parts of the land of Israel. When someone died suddenly and under unusual circumstances, anyone who was in danger of being accused of murdering him could escape to the nearest city of refuge (Num 35:9). Those in charge of guarding the city would prevent the blood avenger from entering the city until the judicial inquiry had been completed.
Interestingly, if, at the conclusion of the inquiry, the accused was found to be innocent, he was nevertheless returned to the city of refuge, there to wait until the death of the reigning High Priest. This waiting period may seem unwarranted by current standards: if the man is innocent, let him go wherever he wants!
But in practice, the wait would usually have been a relatively short one, and, moreover, altogether necessary. The principle of blood revenge was so widespread and well established that some such cooling off period was no doubt necessary to allow the victim’s family to come to terms with their loss. If, on the other hand, the accused was found guilty, he was no longer given any refuge but was punished according to the Torah’s laws.
Shabbat shalom!
Outside Israel: Mattot and Mas‘ei
Not Shirking
The story of the tribes of Reuben and Gad in this week’s Torah reading contains a rather subtle message. Following Israel’s defeat of Midian, the Reubenites and Gadites realize that the territories conquered on the far side of the Jordan included some grazing land that would be perfect for their vast holdings of cattle and other livestock. So they approach Moses with a request to allow them to settle there.
Moses interprets this as a request to settle there now and reacts with anger. “You mean you want the rest of the tribes to cross the Jordan and wage war while you settle peacefully on this side of the river? That’s exactly how your own fathers behaved when I sent them to scout out the land of Canaan.” Moses was referring to the men who, having surveyed the Canaanite fortifications and their fearsome inhabitants, declared that the proposed invasion of Canaan was doomed to failure. Their lack of faith then brought down divine punishment upon them (Numbers 13).
Numerous readers, ancient and modern, denounce the request of Reuben and Gad. After all, they say, all the tribes ought to have willingly shared in the nation’s burdens, no matter what their own particular situation. What a selfish thing it was for the people of those two tribes to think that they could just sit on the sidelines while their own countrymen risked their lives in conquering the land that had been promised to Abraham, Isaac, and Jacob! Moses had to make clear to them that every tribe had to do its part.
But there are a few problems with this understanding of the story. To begin with, if that were the whole point, the narrative could have been a lot shorter: Reuben and Gad could have said what they said, and Moses could have sharply rebuked them. End of story. Instead, Moses goes into a long comparison with the earlier incident of the spies—a comparison which, when you think about, is not completely congruent. The sin of the spies was a lack of faith: they reported on what they saw—which was, after all, their mission—but then they went on to conclude that the conquest ordered by God would be impossible. They simply lacked faith in God. By contrast, the present story has nothing to do with a lack of faith or any belief that the conquest would be impossible. Rather, Moses is accusing the two tribes of following their own narrow interests and, in the process, shirking their duty.
Even more to the point: the two tribes never asked to be excused from the fight. What they request from Moses is that “this land [on this side of the Jordan] be given to us as a permanent holding (aḥuzzah); do not have us cross over the Jordan.” Apparently, Moses does not understand that they are talking about where they wish to settle: on the far side of the Jordan. He thinks they’re talking about not participating in the combined military effort to conquer the land. Moses thus ends up blaming them for nothing!
The representatives of the two tribes make it quite clear that they are not shirkers. “Just let us leave our herds and flocks on this side, along with our wives and children, and we will gladly join the fight as ḥalutzim, marching at the very forefront of the Israelite troops. And we won’t rejoin our families until all the other Israelites are settled in their allotted portions” (Num 32:16-19).
Reading this episode again, its needless repetitions are obvious. Moses on the one side and Reubenites and Gadites on the other keep saying the same thing. So what point is the Torah making? Certainly not that these two tribes were potential shirkers. Rather, the protracted negotiations between Moses and them seem to be a warning against jumping to conclusions. This may sound a little trite, but experience has taught that such a thing can happen to anyone, even to a great, in fact, a divinely chosen leader like Moses.
Shabbat shalom!
