Literary critic Adam Kirsch is reading a page of Talmud a day, along with Jews around the world.

This week, Daf Yomi readers completed the second chapter of Tractate Makkot, a short section of the Talmud that deals with non-capital crimes. The subject of this chapter was what American law calls involuntary manslaughter: What happens to someone who accidentally kills another person? Clearly, he cannot be convicted of murder under Jewish law, because we learned in Tractate Sanhedrin, a murderer is only guilty if he is forewarned by two witnesses that he is about to commit a capital crime. But does this mean that an unintentional killer suffers no consequences at all?

The Torah addresses this situation from an unexpected angle. Today, we are used to the idea that the state has a monopoly on the use of violence; punishing a criminal is not the responsibility of the victim or the victim’s family, but of the police and the prosecutor. But in the Torah, as in some parts of the world to this day, things are different. The relatives of a murder victim had a right, even an obligation, to take the life of the murderer, because the crime was committed not just against an individual, but against his whole clan. As a result, even an accidental killer was in danger of being murdered himself, by a “blood redeemer” out for revenge.

For his protection, then, the Torah instituted “cities of refuge”: six cities, three on either side of the Jordan River, where a blood redeemer was forbidden to take the life of an accidental killer. Anyone who committed involuntary manslaughter could flee to the closest city of refuge, where he could live safely until the death of the sitting High Priest, when he was he allowed to return home. Until then, however, if he emerged from the city of refuge for any reason, the blood redeemer had the right to take his life.

These rules, which are promulgated in the book of Numbers and again in the book of Deuteronomy, come in for analysis in Chapter Two of Makkot. First, there is the fundamental question of what constitutes involuntary manslaughter: Does it mean any action that results in another person’s death? The Mishna in Makkot 7a says no, and proceeds to make a strange distinction. If one was using a rope to lower a barrel from a roof, to take one example, and the barrel falls and kills someone, then the person lowering the barrel is exiled. But if the same person was raising the barrel to the roof, and the rope snapped and the barrel fell and killed someone, then he is not liable to be exiled. Likewise, if you are descending a ladder and you fall and land on someone and kill him, a blood redeemer has the right to kill you and you must flee to a city of refuge. But if you were ascending the ladder and the same thing happens, you are exempt.

The Mishna states the general principle: “Any murderer who kills unintentionally through a downward motion is exiled, and one who kills not through a downward motion is not exiled.” Evidently, the law considers an initial movement toward the victim to be a kind of intentionality. Even if the person lowering the barrel didn’t intend for it to fall on someone, he did at least intend for it to be lowered, and so he is partly responsible for what happens in its descent. A man raising a barrel, on the other hand, did not intend for it to descend at all, so he is not responsible for the consequences of its fall, which happened contrary to his will. This is a subtle and surprising account of intentionality, but in the rabbis’ view, it preserved a necessary distinction between pure accident and partial responsibility.

The rabbis go on to discuss questions of negligence. There seems to be a moral difference between accidents that are purely random and accidents that a person should have been able to foresee and take precautions against. The Mishna in Makkot 8a gives the example of someone who throws a stone into a public place. If a second person enters the area after the stone has left the thrower’s hand, and it hits him and kills him, the thrower is exempt from exile, because he didn’t know there could be anyone in the stone’s path. But the Gemara challenges this conclusion: if you throw a stone in a public place, the rabbis argue, you should be considered an intentional murderer, since you ought to be able to foresee that this might cause an injury.

Thus the Gemara goes on to narrow the Mishna’s hypothetical example. It is not about simply throwing a stone, the rabbis propose, but about someone who is demolishing a wall so that a stone falls into a public place. How much precaution must such a person take to avoid injuring passersby? If he does the work during the day when people are likely to be using the public area, he is negligent, and thus he must go into exile he if he accidentally kills someone, But if he does the work at night, is he in the clear? Not necessarily, the rabbis say: “at night too he is required to examine” the area to make sure no one is nearby. In general, the principle seems to be that a person must take all possible precautions to avoid causing accidental injury.

However, there are some cases where a person is allowed, even expected, to use violence in the discharge of his duties. Say an agent of the court is ordered to flog a criminal, and in the course of the punishment the victim dies. In this case, the agent of the court is exempt from exile, because the accidental death occurred in the course of performing a mitzvah. This case is easy enough to understand, but the Mishna adds two other cases which present a moral problem. A father, the rabbis say, is allowed to strike his son, and a teacher is allowed to strike his student, if in the course of this corporal punishment, the victim dies, then the father or teacher is exempt from exile. The Gemara cites a biblical justification for such beatings: “Chastise your son, and he will give you rest,” says the book of Proverbs.

Not every kind of violence against children is permitted, however. If the killing comes in the course of the child’s Torah education, then it is excusable, because teaching Torah is a mitzvah. But if it happens when a father or teacher is instructing the child in a worldly subject—the Gemara gives the example of “a carpenter’s apprentice”—then it constitutes manslaughter, because teaching carpentry is not a divine commandment. In this way, the rabbis effectively justify killing a child in the name of Torah learning—a bizarre and cruel conclusion, which flies in the face of today’s moral sensibilities. For, of course, we would consider a parent or teacher who beat a child to death to be the worst sort of murderer. It is moments like these that remind me of how distant the Talmud’s assumptions—about power, patriarchy, and divinity—are from my own.

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Adam Kirsch embarked on the Daf Yomi cycle of daily Talmud study in August 2012. To catch up on the complete archive, click here.





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