Parshat HaShavua
Yeshivat Har Etzion

This parasha series is dedicated
in memory of Michael Jotkowitz, z"l.

PARASHAT MISHPATIM

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This shiur is dedicated in memory of Nathan (Naftali Chaim ben Akiva) Wadler z"l, whose yahrzeit will be observed on the twenty-ninth of Shevat.

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Please pray for a refuah sheleimah for Chaya Chanina bat Marcel.

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Murdering with Guile

By Rav Yaakov Medan

Halakha generally recognizes two types of murderers: one who murders knowingly and with premeditation and one who kills unwittingly. But from the above verses a third type arises: one who kills "with guile". In the simple understanding of the halakha, the special law of "You shall take him from My altar to die" is applied to any intentional murderer, but the sources apply it specifically and exclusively to the person who murders with guile. This will be the subject of our shiur.

There are two types of murder "with guile":

a. A person may deceive his neighbor into trusting him and letting down his guard, thus enabling him to carry out the murder without having to contend with any self-defense on the part of the victim. Concerning this type of deceit Yirmiyahu declares (9:7-8):

A perfect biblical example of this sin is presented in the story of the murder of Gedalia ben Achikam by Yishmael ben Netanya - a murder which led to the downfall of the last remnant of Yehuda:

This interpretation of "murder with guile" does not sit well with the order of the verses in our parasha. One would think that this murder is even more abhorrent than regular premeditated murder. The order of the verses should progress either from the most severe to the least severe or vice versa. How are we to understand the order as it appears in the text: first a premeditated murder, then homicide, and then murder with guile? Moreover, what is the nature of the special punishment reserved for one who murders with guile - that he is taken to die [even] from the holy altar?

b. The first type of murderer we discussed is concerned about the victim's potential of self-defense. A second type of murderer "with guile" is worried about the punishment that a beit din will mete out to him because of the blood that he has spilled. There are two subcategories here: one does everything in his power to cover up any trace of his involvement with the murder; the other claims that he acted unwittingly or lawfully.

The murderer who seeks to erase all traces of his deed will follow the example of the first murderer - Kayin, who killed his brother Hevel:

Perhaps God revealed Himself to Kayin while he was offering his sacrifice - as is the case in many other revelations in Tanakh. Kayin killed his brother in order to "force" God, as it were, to accept his own sacrifice rather than that of Hevel. Perhaps, following the murder, Kayin went off to achieve his aim and to offer his sacrifice to God. And as he offers it, he protests his innocence, claiming to have no knowledge of where his brother is. While performing the very service at the altar, Kayin attempts to deceive the Receiver of his sacrifice.

God does not accept Kayin's sacrifice; on the contrary, He banishes him from the altar. Further on in the interchange, God grants Kayin a "stay of execution." He cancels the death sentence that the murderer deserves, but does not forgive the attempt to erase the traces of the sin by hiding the spilled blood in the ground:

In other words, even when God cancels Kayin's punishment for willful murder, He does not forego the punishment for murder with guile. Kayin is immediately banished from the ground which he used in order to hide his act.

Another parasha that emphasizes this point is that of the "egla arufa." Here the Torah describes a situation where the murderer has succeeded in erasing all traces leading to him, as though the earth had "swallowed him up" - just as the earth swallowed up all traces of Hevel after Kayin murders him. [THIS IS NOT CLEAR: IN THE CASE OF THE EGLA ARUFA THE VICTIM'S BODY IS FOUND, BUT THE MURDERER HIMSELF IS NOT.] The heifer whose neck is broken in the ravine is the complete opposite of a sacrifice slaughtered upon the altar. Its purpose is to signify that God will accept no sacrifice as atonement for the murder, nor for the guilt of the community as a whole - for the fact that the murderer goes about freely. On the simplest level, the ravine where the heifer's neck is broken is the site of the murder, and therefore it shall neither be tilled nor sown. This ground is cursed because it opened its mouth and swallowed the footsteps of the murderer - just as the ground cursed Kayin after it hid Hevel's murder. The elders of the beit din of the closest city must declare that they were not party to the hiding of the crime, that there has been no situation in which they came upon the murderer but guilefully took no notice of his crime.

The other type of guileful murderer seeking to avoid punishment but unable to cover up his actions, tries to camouflage his intent and to present his act as either a mistake or something that was justified and permissible.

This parasha is juxtaposed to the command concerning the cities of refuge, in order to protect those who shed blood by mistake. A willful murderer may not escape to a city of refuge, and therefore this parasha speaks about a person who murders with guile, seeking the protection of the elders of the beit din in his city against the sword of the avenger of blood. The altar, in this instance, is interpreted - contrary to the previous case, where it implied the place of Divine worship - as the place of refuge from the avenger's anger. The avenger, so the murderer believes, will never dare enter "God's altar" with a sword. Therefore the Torah commands us, "You shall take him from My altar to die".

This would appear to explain the order of the murderers listed in our parasha. The first is the willful murderer; he is sentenced to death. The second is someone who did not "lie in wait"; the Torah sets aside a place for him to flee to. At this stage the cities of refuge had not yet been established; the command to build them is to be fulfilled only upon reaching Eretz Yisrael. Therefore the expression, "I shall make for you A PLACE to where he shall flee" would seem to imply that the word 'makom' (place) is used here in the same way that it is used in many other places in the Torah:

In other words - 'makom' means an altar, or another site devoted to Divine worship. It is to such a place that the murderer flees.

According to our interpretation, the third type of murderer is a composite of the first two types. He murders intentionally, but pretends to have done so unknowingly. It is concerning this murderer that the Torah commands that he be removed from the place of his refuge, from the 'altar,' and put to death. (This also includes the murderer who justifies his act as being permissible; we shall discuss this further below.)

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It would seem that the biblical character who best epitomizes the concept of murdering "with guile" is Yoav ben Tzeruya, the commander of David's army.

Yoav kills three people, either directly or indirectly: Avner ben Ner, Uriya ha-Chitti, and Amasa ben Yeter.

Let us examine the murder of Avner:

Yoav decides to kill Avner. It is possible that he does this because he suspects that Avner will seduce David and spy against him; perhaps he does it to avenge the blood of Asa'el his brother. Perhaps he kills him for a different reason, which is not mentioned in the verses: the concern that Avner will take over his position as chief of the army as part of the agreement concerning the unification of the kingdom that is to be drawn up with David.

How does Yoav kill Avner? First, he takes him aside at the gate in order to speak with him. Avner does not suspect Yoav of any scheming against him and fails to protect himself; Yoav exploits this and deals him a mortal blow. The Midrash and Rashi describe the scene in more visual terms:

While involved in discussing an halakhic question, Avner lowers his guard and does not protect himself. Yoav exploits this to kill him, in a way that is neither fair nor honorable. This is the way of guile.

But this was not the only guileful aspect of Yoav's act.

Yoav judges Avner in accordance with Torah law, as a murderer, and he punishes him in accordance with the law of an avenger. Apparently, everything here is in order. But David, in his eulogy for Avner and in his will, treats Yoav as a murderer:

Apparently, a person may judge his fellow in accordance with Torah law and still be considered a murderer, deserving of death. David knew that it was not the avenging of blood that motivated Yoav to kill Avner, but rather his concern that he would lose his own position as chief of the army.

This is guile of the second variety. The murderer is wary not only of the victim's self-defense, but also of his own punishment at the hands of the beit din. Therefore, he produces explanations and excuses that are not true, so as to satisfy the judges and assure their protection.

Yoav acts in a similar way when he kills Amasa:

There was guile involved in killing him, but in this case, too, there was seemingly a solid halakhic justification for Yoav's act:

Despite this justification, Yoav is judged as a murderer for killing Amasa. This shows that the justification was no more than an excuse to get rid of Amasa, who was appointed as commander of the army instead of Yoav after Yoav killed Avshalom, and because David wanted to make peace with the commander of his army. The excuse, then, was nothing more than guile.

Was there truly a justification for killing Uria ha-Chitti, or was the supposed justification again just an excuse? The scope of this shiur does not allow for discussion at length on this subject. In any event, the prophet Natan rebukes him severely. But here we are discussing not David, whose motivations and state of mind we may perhaps at least understand. Rather, we are discussing his accomplice - Yoav, who fulfilled David's orders. Fulfilling the order of the king of Israel is clearly demanded by halakha, but Yoav did not make any effort to know the limits of the law of obeying the king:

The fact that Yoav was not blindly obedient towards David in other areas gives rise to serious questions as to his true intentions in the matter of Uriya.

The way in which Yoav killed Uriya was also guileful; it exploited military camaraderie and self-sacrifice in order to stab a comrade-in-arms in the back:

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Yoav's punishment is appropriate, as is fitting for one who murders with guile, concerning whom it is written, "You shall take him from My altar to die":

The Gemara in Sanhedrin and the Rambam (Laws of a Murderer, 5:14) elaborate at length on the two death sentences that Yoav deserves. The one was for rebelling against the king because he supported Adoniyahu. For this sin the altar protected him, and Benayahu was unable to kill him. The second death sentence was for spilling the blood of Avner and Amasa (the Midrash in the Gemara adds Uriya to this list). For this Benayahu took him from the altar and killed him.

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Yoav's personality is too rich and complex to discuss fully in such a short space. Let us review just a tiny sample of the sources that balance the negative picture that emerges from the discussion above:

On the other hand, in this shiur we addressed only one aspect of Yoav: his sin of murdering with guile, and the severity of this sin and its punishment.

Translated by Kaeren Fish