Parashat Mishpatim: Sins which Lead to Death

(1) וכי יזיד איש על רעהו להרגו, “and if a man shall act intentionally against his fellow to kill him,” the meaning of the word להרגו, is והרגו, i.e. “he has carried out his intention and killed the person he intended to kill.” The Torah had to add the words בערמה, “with guile,” in connection with the legislation involving murder and its penalty as nearly every murderer makes an elaborate attempt to conceal the fact that he killed intentionally. In other words, a murder almost by definition, engages in ערמה, guile, deceit. Not only that, his sin is one that was inspired by the original serpent who wanted to make man guilty of death. The Torah had described the principal characteristic of that serpent as being that it was the “most ערום,” the most crafty of all the living beasts (Genesis 3,1). Murder then is a sin directly attributable to the influence of the serpent. According to ancient sources, the serpent had mated with Chavah and its seed had produced Kayin, the first murderer. (see author’s commentary on Genesis 5,2; Ed.) This is also why the sages (Sotah 21) call anyone who engages in sin after having misrepresented his intentions a רשע רע, “an evil sinner,” (as if a sinner were not evil by definition already). The attribute רע which the sages appended to the description רשע is based on Isaiah 3,11 אוי לרשע רע, “woe to the wicked sinner.” Such a sinner derives his strength from the celestial sphere Mars, which itself is described as רע, evil, as wars and murder usually take place under its aegis. (I have explained this in detail on Exodus 10,10). The prophet Jeremiah 1,14, when saying that “disaster shall break loose from the north upon all the inhabitants of earth,” also refers to the planet Mars. This planet was also referred to as רעה, by Pharaoh in Exodus 10,10. (2) מעם מזבחי תקחנו, “from My altar shall you take him (to die).” The Torah implies that there is no need to tell us that a city of refuge does not offer protection to an intentional killer, and that he will have to be surrendered to the court to stand trial; here the Torah adds that even if the murderer sought refuge in sacred grounds, clinging to the altar, this is no protection for him and the authorities are instructed to remove him from there to stand trial. We find proof of this having been done in Kings I 2,28 where it is described that Yoav, David’s commander-in-chief who had sided with Adoniah in the latter’s abortive attempt to become king instead of Solomon, took refuge in the Tabernacle and held on to the corners of the altar to escape being executed for treason. Solomon commanded Benayahu to extradite him from there. When Yoav refused to leave the holy precincts, Benayahu executed him inside the sacred grounds, carrying out the instructions in our verse. The message contained in the legislation is that even someone who thinks he can call on G’d to save him from prosecution by a human tribunal does so in vain if the sin he was guilty of was murder, (as David had explained to Solomon about Yoav prior to his death). Display of “mercy or pity” in such instances is tantamount to displaying cruelty as failure to execute a murderer deprives him of atonement in this life and he will face the whole burden of his sin after death when he comes up to be tried by a celestial tribunal. (3) Rashi explains the words מעם מזבחי תקחנו למות, as meaning that even if the murderer happens to be a priest or a Levite, whose domain is the proximity of the altar, he will be taken to stand trial and will be executed if found guilty. This is based on Mechilta Nezikin section 4. The Talmud in Makkot 12 already pointed out that Yoav, who held on to the corners of the altar in order to save himself from extradition, was executed only because he thought that even the corners of the altar not only its roof were an area of refuge from prosecution by human tribunal. He had misinterpreted the fact that the Torah wrote מעם מזבחי, “from beside My altar,” instead of מעל מזבחי, “from on top of My altar,” to include any part of the altar. Alternatively, he thought that the Torah referred only to murderers who had committed murder in the presence of witnesses and after legally valid warning and who had thus become subject to trial by a human court. Seeing that he did not commit his crime under such conditions he thought he could throw himself on G’d’s mercy instead. The fact is that the words in our verse are intended to tell us that whereas under the aforementioned circumstances the court cannot convict and execute, Yoav’s guilt was also insurrection against the king. This is a crime which does not need warning and witnesses of a certain type in order for the king to execute the offender. Yoav erred thinking that when there were no witnesses or warning the altar could protect him from the king’s vengeance. (4) One can also interpret "from my altar he should be taken" as referring to the witness: Even if the witness is currently occupied with offering a sacrifice on the altar, he should be summoned immediately to bear testimony.
To sum up: our verse teaches that if the objective of retribution is not so much vengeance as the removal of wicked sinners from the face of the earth, G’d waives the sanctity of the altar in order to enable justice to be done to such people. (1) ומכה אביו ואמו מות יומת, “If someone strikes his father or his mother he shall be executed.” The blow must be such that it causes an injury involving bleeding or a bruise (Mechilta Nezikin section 5). The situation described here is similar to Kings I 20,37: “he struck him and wounded him.” When the Torah writes אביו ואמו, the meaning is not that in order to become guilty of the penalty prescribed the son or daughter has to strike both father and mother. The letter ו here as well as in many other instance means או, “or.” A striking example of the letter ו meaning “or” instead of “and,” is Deut. 17,3 ויעבוד אלוהים אחרים וישתחו להם ולשמש או לירח או לכל צבא השמים, “and he will go and serve gods of others and prostitute himself to them, or to the sun or the moon or to any of the host of heaven;” clearly the letter ו in the word וישתחו cannot mean that he must perform all of these acts of idol worship in order to become culpable. The Torah lists a number of alternatives any of which result in his becoming guilty of death by stoning. In our verse the death penalty for someone striking either parent is death by strangulation. (1) וגונב איש ומכרו, “If someone kidnaps a man (person) and sells him, etc.” Rabbi Saadyah Gaon explains the reason this verse has been inserted between the one dealing with striking father or mother, and the one dealing with cursing father or mother. He writes that seeing most people who have been kidnapped and sold into slavery were minors at the time they were snatched, if or when such a person returns to his home town after many years he does not recognise his parents. He may therefore have occasion to strike or curse someone and will do so not knowing that the person whom they strike or curse is actually his father or mother. The cause of such a sin occurring is the kidnapper. This makes the kidnapper morally guilty of the crime committed by his victim and, at least theoretically, of the death penalty. (2) Nachmanides writes on this subject that the reason the Torah wrote both these verses together is that both the kidnapper and the person striking father or mother is subject to the identical death penalty חנק, death by strangulation. Someone who curses father or mother (verse 17) however, is subject to death by stoning, as we know from Leviticus 20,9 כי איש איש אשר יקלל את אביו ואת אמו מות יומת, אביו ואמו קלל דמיו בו, “any man who will curse his father or his mother shall be executed; his father or his mother he has cursed, his blood is upon him.“ Wherever the words דמיו בו appear the death penalty referred to is stoning. The verse from which we learn this is Leviticus 20,27 באבן ירגמו אתם דמיהם בם, “they shall pelt them with stones, their blood is upon themselves.” Stoning is a more severe death penalty than death by strangulation. One of the reasons may be that the sin of cursing parents is more widespread than the sin of striking them; the Torah therefore provided for a penalty which is more likely to restrain a person from committing this offense. Or, the fact that cursing anybody involves using (abusing) the name of G’d in the process, cursing father or mother makes it a double offense. The Torah therefore threatened a more severe death penalty for violators. (3) The reason the Torah inserted this prohibition here, in between the prohibitions of hitting and cursing one's parents, is to magnify the sin and give it the level of severity of those transgressions. In the Ten Commandments the prohibition to kidnap has also been inserted between the sin of adultery and that of false testimony for similar reasons. Had the Torah mentioned that offense only at the end we would have thought that this is a relatively less serious offense than striking father or mother or cursing them. On the other hand, the Torah was unable to position the law against kidnapping earlier as it had already commenced with the penalties about murder in verse 12. This had to be followed by the law against striking father or mother. The severity of kidnapping is best demonstrated in that the brothers who had kidnapped Joseph had not been punished until more than 1000 years later when the “Ten Martyrs” died at the hands of the Romans in order to finally expiate for that sin. I have already explained the reason that the Torah repeats the words מות תמות in order to hint at death in the terrestrial as well as the celestial regions (see commentary on Gen. 37:28, 44:17). (4) ונמצא בידו, “while he was in his power.” The word נמצא must be contrasted with מצוי. The former is a person over whom the kidnapper had no legal authority; the latter is someone such as a teacher who does have a certain legal authority over the victim. Such a kidnapper is not subject to the death penalty (Sanhedrin 86).