Rotzeach uShmirat Nefesh - Chapter 5

Although the killing came about as a result of an accident, Judaism maintains that there are no total accidents. Instead, what occurred is a sign from above that the killer has a certain dimension of evil hidden within his soul that must be cleansed. The Sifre (commenting on Deuteronomy 22:8) states that liability is brought upon a liable person.
Going into exile enables such a person to begin a new phase of life and redefine his identity and personality.

Sefer HaMitzvot (Positive Commandment 225) and Sefer HaChinuch (Mitzvah 410) regard this as one of the Torah’s 613 commandments.
There are commentaries who maintain that (see Halachah 7) the scope of this mitzvah also includes allowing an intentional killer refuge in such a city until his trial.

Sefer HaMitzvot (Negative Commandment 295) and Sefer HaChinuch (Mitzvah 413) regard this as one of the Torah’s 613 commandments.

The Ra’avad differs with the Rambam and maintains that this law applies only when the killer accidentally kills the victim by causing his throat to be slit. If he kills him in another manner, he should be exiled, even if the victim survives for a brief time afterwards. The other commentaries justify the Rambam’s ruling.

And it is only when the victim’s death is his fault entirely that he must be exiled.

The Rambam uses the expression “two signs,” for the signs for determining whether ritual slaughter is acceptable are whether the windpipe and the esophagus have been slit correctly. Once these two organs have been slit, the person will surely die.

The commentaries note that from Gittin 70b, the source for this halachah, it appears that both conditions are necessary: the person must be wounded in a closed room (otherwise it is possible that the wind sped his death), and he must not go into any spasms (otherwise it is possible that he hastened his own death). Some commentaries suggest that there was a scribal error in the text of the Mishneh Torah and the Rambam wrote “and” instead of “or” in this phrase - i.e., he also required both conditions. The majority, however, do not accept that explanation.
The Pri Chadash explains the Rambam’s ruling as follows: When both of the factors are combined - the possibility of hastening one’s own death through a spasm and being exposed to wind - we are still not certain that the killer did not cause the victim’s death. Nevertheless, the combination of factors creates a compounded doubt (ספק ספיקא, and we do not impose exile upon him. Therefore, if one of these factors is absent, there is only one dimension of doubt. Therefore, we follow the rule that in an instance of doubt concerning a Scriptural law, the more stringent position should be followed. Hence the killer must go into exile.

As mentioned in Chapter 2, Halachah 11, although a Canaanite servant is not obligated to perform all the 613 mitzvot, he has still become a part of “the heritage of God,” and one is therefore liable for killing him, as one is liable for killing a Jew.

Since a resident alien has been given the privilege of living in Eretz Yisrael, he is regarded with honor, and one must bear the responsibility for killing him unintentionally. [One is not, however, liable for execution for killing him intentionally, for such a severe punishment is given only for killing a Jew.]
The Ra’avad differs with the Rambam, maintaining that a Jew should not be exiled for unintentionally killing a resident alien, noting that the Talmud (Makkot 8b) appears to exclude such an instance. Moreover, the source for the obligation to flee to a city of refuge mentions killing “your colleague,” and that term does not apply to a person who has not accepted the Torah and its mitzvot.
The Kessef Mishneh accepts the Ra’avad’s objections. Indeed, he suggests that there was a scribal error in the Mishneh Torah, and the Rambam indeed did not mention a Jew being exiled for killing a resident alien.
From the Rambam’s Commentary on the Mishnah (Makkot 2:3), and similarly from the authentic manuscripts and early printings of the Mishneh Torah, it is clear that the Rambam’s intent is that a Jew is exiled for killing a resident alien. The commentaries explain that the Rambam’s version of Makkot, loc. cit., differed slightly from that of the other Rabbis. The Radbaz (Volume V, Responsum 1484) explains the rationale for the Rambam’s ruling: killing a resident alien is also a serious matter and requires atonement. That is the purpose of his exile.

For he must accept responsibility for his conduct, and do what is necessary to gain atonement.

And he must therefore pay “a life for a life,” in the most literal sense.

The Rambam’s ruling raises a question: A resident alien is given that status because he accepts the seven universal laws commanded to Noah and his descendants. Among those laws is the prohibition against killing. How then is it possible for a gentile to kill without knowing that it is prohibited? It is possible to explain that the intent is that he commits an act that is deemed murder by the Torah, but is not commonly considered to be murder - e.g., abortion or mercy killing (Kin’at Eliyahu).

Although a Jew is not executed under such circumstances, this is an extra measure of consideration, which is not shown to a gentile.

I.e., one who has not accepted the seven universal laws commanded to Noah and his descendants, as a resident alien does.

He is not sentenced to death, but he must continually protect himself from the blood redeemer.

If, however, a son accidentally injures his father, he is not exiled. Although a son may be executed for intentionally injuring a father, exile is not imposed for unintentional injury. (See Chapter 7, Halachah 15.)

E. g., the son already knows a profession through which he can earn his livelihood, and this is merely an avocation.

Our translation follows the interpretation of the Ma’aseh Rokeach. It must, however, be noted that on this basis, the Ma’aseh Rokeach raises questions regarding the Rambam’s statements. For it appears that it is a mitzvah to instruct one’s son in secular subjects aside from what he needs to earn a livelihood. This concept, the Ma’aseh Rokeach finds hard to accept.
Rav Kapach explains that “wisdom” also refers to Torah knowledge. “Torah” refers to the knowledge of Torah law, while “wisdom” refers to the Torah’s philosophical principles. One might draw support for this interpretation from the Rambam’s wording in Hilchot Talmud Torah 3:13. Significantly, the Rambam’s Commentary on the Mishnah states “Torah or ethical conduct,” leading to the inference that the intent is the type of wisdom that leads to character refinement.

It is a mitzvah to instruct one’s son in all three of these areas. While giving instruction, it is permissible to employ corporal punishment. Since the father is allowed to strike his son at these times, he is not punished if he accidentally administers a blow that causes his death.

See Hilchot Talmud Torah 2:2, which states: “A teacher may employ corporal punishment to cast fear upon [the students]. He may not, however, beat them cruelly.”

The words “an emissary of the court” appear in the Mishnah (Makkot 2:1). Generally, that term is defined in the manner defined by the Rambam. In this instance, however, Rashi and the Ra’avad differ and interpret the term to refer to the person who administers lashes on behalf of the court.

Deuteronomy 19:11 speaks of a killer “who hates his colleague, lies in wait for him, and kills him,... flee[ing] to one of these cities.” For the blood redeemer should not kill him until he is given the benefit of a trial.

See Chapter 6, Halachah 3.

Why Torah sages? Because they will find the proper words to convince the blood redeemer to restrain himself. Moreover, out of respect for them, he will not act violently.

We have translated the term in the singular although in the Hebrew, it is written in the plural. Perhaps the intent is that there may be many who desire to act as redeemers of the blood.
Alternatively, the Meiri explains that this statement is made to the inhabitants of the city of refuge. And Rav Kapach states that it is made by the court to the two sages who accompany the killer.

2000 cubits from a square drawn around the perimeter of its buildings.

As evident from the following halachah, this is speaking about an instance when the blood redeemer slays the killer before he enters the city of refuge originally, or while he is being returned to the city of refuge. In these instances, the blood redeemer is forbidden to slay the killer. If he does so, however, he is not liable.
Several authorities (see Ketzot HaChoshen 2:1) maintain that the same law applies to a person who kills intentionally, but has not been tried.

See Chapter 7, Halachah 8.

This is the opinion of Rabbi Akiva (Makkot 11b). Although Rabbi Yosse HaG’lili differs and maintains that it is a mitzvah for the blood redeemer to slay the killer, the Rambam follows Rabbi Akiva’s position, because, when there is a difference of opinion between Rabbi Akiva and a colleague, Rabbi Akiva’s opinion is followed.

Implied is that although another person is not allowed to slay the killer, he is not held liable if he does so.
The standard text of Makkot 11b states that Rabbi Yosse HaG’lili maintains that any other person has permission to slay the killer, while Rabbi Akiva states that another person is held liable for slaying the killer. The Rambam’s position is found in the Jerusalem Talmud. According to some (Kessef Mishneh, the Tosafot Yom Tov, and others), this version should be substituted in the Babylonian Talmud as well.

Significantly, in his Commentary on the Mishnah (Makkot 2:7), the Rambam rules that the slayer should be executed.

Letting him free would defeat the entire purpose of a city of refuge.

Even if the killer was a priest and involved in the sacrificial worship, he should be taken from the altar to die (Mechilta on the above verse).

The concepts in this halachah are all derived from the discussion of the execution of Yoav, King David’s leading general, in Makkot 12a. As I Kings, Chapter 2, relates, before he died, King David had told King Solomon to have Yoav executed. Upon assuming the monarchy, King Solomon gave orders that his father’s command be carried out. Yoav, hearing of this order, fled to the tent where the ark was kept and took hold of the horns of the altar. Solomon, however, gave orders that Yoav be slain despite the fact that he was holding on to the altar’s horns.
Our Sages comment that Yoav erred in three matters. It is the top of the altar that serves as a refuge, and he took hold of its horns. The Temple had not been built at that time, and it is only the altar of the Temple that can serve as a refuge. And it is only a priest who is involved in the Temple service who can use the altar as a refuge, and Yoav was a commoner.

I.e., once the priest completes the service, he is not forced to continue his work in the Temple forever to protect his life. Instead, he is given escort to a city of refuge.

I.e., when are the three conditions mentioned in the previous halachah applicable?

See Chapter 2, Halachah 4.

For the verse “From My altar take him to die,” is directed to the court. Thus, one might infer that the verse applies only when all of the particulars required for execution by the court are met.
On the basis of this halachah, the Kessef Mishneh questions why King Solomon had the right to order Yoav’s death. He answers that Yoav was judged to be a rebel against the king, and the laws governing such a person are more severe.
The Hagahot Maimoniot 2:6 and others cite the Jerusalem Talmud, which states that Yoav fled to the altar to gain time, so that he could be killed by the judgment of the Sanhedrin and not on the orders of the king. In this way, his heirs would gain the right to inherit his property.