CITY OF REFUGE

CITY OF REFUGE (Heb. טָלקמ ריע). Moses assigned six cities (Num. 35:13, Deut. 19:9) to which "shall flee thither and live whoso killeth his neighbor unawares and hated him not in time past." Moses himself set aside three of these cities (Bezer, Ramoth, and Golan) in Transjordan (Deut. 4:43), while Joshua "sanctified" the other three (Kedesh, Shechem, and Hebron) west of the Jordan after the conquest (Josh. 20:7).(See Map: Cities of Refuge). These cities were all populated towns in which the manslayer would be immune from persecution by the *blood avenger (Num. 35:12) and where he could lead a normal life and earn his livelihood. The biblical institution is not utopian. Among ancient peoples (Phoenicians, Syrians, Greeks, and Romans) certain shrines or sacred precincts provided security to fugitives (Greenberg, Greenfield in Bibliography). An Aramaic treaty inscription of the eighth century b.c.e. from Sefire (iii:47–) indicates that Aleppo was a city of refuge. The institution of asylum is particularly well attested in the Hellenistic period.

Rabbinic tradition elaborated the biblical regulations. Thus the words "and live" (Deut. 4:42; 19:5) were interpreted to mean that he was entitled to all normal amenities of life: if he was a scholar he was even entitled to take his school with him; if a pupil he was entitled to have his teacher brought to him (Mak. 10a). But to discourage avengers from frequenting these cities, certain trades – believed to increase commercial intercourse – were banned to them, such as the manufacture of textiles, ropes, and glassware (Tosef., Mak. 3:9), and the sale of arms and hunting tools (Mak. 10a). According to a later tradition, it was not only the six cities of refuge proper (which were all levitical cities: Num. 35:6), but also the additional 42 cities allotted to the levites (Josh. 21; i Chron. 6:39ff.) which provided a refuge to manslayers (Mak. 13a; Maim. Yad, Roẓe'aḥ 8:9) – the difference between the six cities and the other levitical cities being that in the former one was automatically immune from persecution, whereas in the latter asylum had to be expressly requested (ibid., 8:10). Moreover, in the former one could claim housing as of right (Tosef., Mak. 3:6), whereas in the latter one had to pay rent (Mak. 13a).

The procedure – which talmudic scholars reconstructed from biblical accounts – was that the manslayer fled to the nearest city of refuge: in order to facilitate his escape, road signs had to be put up on all crossings showing the way to the refuge (Mak. 10b; Tosef., Mak. 3:5), and all roads leading to a city of refuge had to be straight and level and always kept in good repair (Yad, loc. cit., 8:5). On arrival, the man had to present himself at the city gate before the elders of the city, who would give him accommodation (Josh. 20:4). Afterward he would be taken to court, which provided an escort to protect him from any encounter with the avenger on the way from the city to the court or back (Mak. 2:5–6). Should the court find him guilty of premeditated murder, he would be executed; if found guilty of unpremeditated manslaughter, he would be returned to the city of refuge to stay there until the death of the then officiating high priest; if no high priest was alive or officiated at the time of the verdict, or if it was a high priest who killed or was killed, the killer would have to stay there for life (Maim. loc. cit., 7:10). It is reported that mothers of the priests would have food and clothing sent to the refugees, so as to persuade them to pray for a long life for

the priests, notwithstanding their exile (Mak. 2:6). During their stay they were not allowed to leave the city precincts, not even in order to testify in court where a man's life depended on their testimony (Mak. 2:7; Maim. loc. cit., 7:8); for if they left the city, the avengers were free to kill them (Num. 35:27). They were allowed to occupy places of honor in the cities of refuge, provided that they first disclosed to the people honoring them that they had come there as refugees (Mak. 2:8; Tosef., Mak. 3:8). On his release from the city of refuge, the refugee returned to normal life wherever he pleased, and if the avenger killed him he was guilty of murder (Maim. loc. cit., 7:13). Opinions were divided as to whether positions of trust and honor were restored to him or whether he had forfeited them (Mak. 2:8) because of the misfortune he had brought into the world (Maim. loc. cit., 7:14). Exile to a city of refuge was tantamount to punishment for unintentional homicide and, like punishment for murder, could not be compounded (see *Compounding Offenses) by the payment of blood money (Num. 35:32).

A more ancient type of asylum was the *altar: as a murderer with malice aforethought is to be taken from God's very altar "that he may die" (Ex. 21:14), so may the unintentional manslayer seek refuge at the altar to escape punishment (Mak. 12a; Maim. loc. cit., 5:12); and if he does, he is led away from the altar and escorted into a city of refuge (ibid., 5:14). Several instances of manslayers seeking refuge at the altar are reported in the Bible (i Kings 1:50; 2:28–30).

[Haim Hermann Cohn]

In the State of Israel

The laws of exile to a city of refuge served the Israeli Supreme Court as an inspiration in establishing the rights of incarcerated prisoners. In the Weil case (hc 114/86, Weil v. State of Israel, 41(3) pd 477), the Court dealt with the issue of whether a prisoner has a right to have marital relations with his wife. In his decision, Justice Elon noted that Jewish law does not discuss the question because the penalty of incarceration was not used much in Jewish communities; nevertheless, the laws of the city of refuge in Jewish law may serve as an example and inspiration for the proper treatment of prisoners serving a jail sentence:

The Torah explains exile to a city of refuge as providing the accidental killer with the means to be saved from the blood avenger. Already during the tannaitic period, exile to the city of refuge was seen as constituting punishment for the act of killing, so that the killer must be exiled even if there is no chance that the relative of the victim will be seeking revenge, or when the killer has voluntarily waived such a defense (Sifrei Devarim §181; cf. Or Sameah on Maimonides, Yad, Roẓe'aḥ u-Shemirat ha-Nefesh 6.12; D.Z. Hoffman, Sefer Devarim on Deut 19:5) (pp. 494–495).

The Court cited Sefer Ha-Hinnukh no. 410 to the effect that the main reason for exile to the city of refuge is to punish the accidental killer, who caused such a great calamity, by his imprisonment in a city of refuge and separation from his friends and home.

The Court proceeded to discuss the conditions of the exile's stay in the city of refuge:

One convicted of killing a person was exiled to a city of refuge together with his family. Moreover, he was given housing opportunities and means of support, means of education and study, and other essential human requirements. As stated, the 42 towns that were inhabited by the Levites, who were the people's teachers and wise men, served as cities of refuge, and this environment served to rehabilitate the exile-prisoner. These laws, and others like them, are repeated in various Talmudic sources. (See Sifrei on Numbers and Deuteronomy, ibid.; Mishna, Makkot 7.1–13.1; Tosefta, Makkot, 2–3). We will review several of these, as discussed by Maimonides, op. cit., 7.1, 67–; 8.8:

If a disciple is exiled to a city of refuge, his teacher must be exiled with him, for Scripture says, And he shall live (Deut. 9:4), that is: make it possible for him to live on. For life for scholars and for those who seek wisdom is like death when they are deprived of the study of Torah.

Similarly, if a teacher goes into exile, his school must be exiled with him.

If most of the inhabitants of a city of refuge are slayers, it cannot provide asylum further, for Scripture says, And declare his cause in the ears of the elders of that city (Josh. 20:4); but his cause must not be the same as their cause. Similarly, a city without elders cannot provide asylum, for Scripture says, The elders of that city (ibid.).

If a slayer is exiled to a city of refuge and its citizens wish to honor him, he must say to them, "I am a slayer." If they reply, "That makes no difference," he may accept the honor from them.

A city of refuge may not be situated either in a small town or in a large city, but only in a town of medium size. It must be situated only at places where there are markets and where there is a water supply. If there is no water supply, one must be provided. Such a city must be situated near other settlements. If the number of these diminishes they must be increased. If the population of the city diminishes, priests, levites and ordinary Israelites must be drafted into it …

There are a number of instructive disputes in the Mishnah regarding the status of the exiled prisoner after he has returned from his exile. Thus in tb, Makkot 13a we read:

And he returns to the authority he held (if he was a tribal leader or head of a clan, he returns to his former prominence when he returns to the city upon the death of the High Priest (Rashi, ad loc). This is the view of Rabbi Meir. Rabbi Yehudah says: He does not return to the authority he held.

The law is in accordance with Rabbi Yehudah's position. (Maimonides., op cit., 7.13)

If a slayer returns home after the death of the High Priest, he is regarded as any other person, … for his exile atoned for his crime. Yet although atonement was effected for him he may never resume any office he formerly had, but he must remain deprived of his honors throughout his life because so great an offense occurred through his agency. He does not return to his office and to his honors, but he can return to another [type of] office, and after serving his sentence – "he is like any other person."

Rabbi Yom Tov Ibn Ashvili, the Ritba – one of the great Jewish legal sages of fourteenth century Spain – made an interesting comment. He wrote that anyone who has been convicted of intentional murder may not return to any position of authority whatsoever because of the severity of the sin of murder, which is more extreme than any other sin. In the Ritba's view, the severity of causing the death of another person – even if done accidentally – is also the basis of Rabbi Yehudah's position. Rabbi Yehudah believed that the killer does not return to the office he held, and therefore he agrees that "with regard to all other sins, anyone who has fully repented, can be appointed to anything of which he is worthy, even as a first choice, and there is no need to say that he returns to what he or his ancestors have held before" (Hiddushei Ha-Ritba, at Makkot 13a; cf. Encyclopedia Talmudica, 5:,. 220ff., 6: 122ff.). (Ibid., pp. 4954–97).

The Court concludes the discussion of the city of refuge as a source for learning the proper methods of punishment by stating that:

The rule of the blood avenger and the subject of the cities of refuge are not implemented in our time, but the concept of punishment represented by the city of refuge should be an example for us in discussing the methods of punishment, the manner in which they are to be executed, and the goals of these methods. The punishment of exile to a city of refuge and the details of its laws are an example of a form of restriction of freedom – the exiled prisoner is restricted in terms of his movement and may not leave the area of the city of refuge – in which the human dignity of the one being punished is maintained, as is his position as a family member and his place in the society in which he had lived. The idea and the laws incorporated in the punishment of restriction of the freedom of a prisoner who has been exiled to a city of refuge constitute an example of imprisonment as an ideal punishment to which society should strive, even if no chance of actually achieving it can be hoped for in our current society. (Ibid., p. 497).

The court continues, with regard to the society and to the criminal activity within it:

And the Jewish ideal of punishment places a great emphasis on the society's part in responsibility for the criminals within it, as perhaps exemplified by the idea developed by some commentators regarding the Torah's statement that the prisoner-exile shall remain in the city of refuge until the death of the High Priest. And why is that? Because the High Priest, who is the people's spiritual leader and educator, is "guilty" in that accidental killings occurred during his time, since if he had been successful in educating the generation and had properly prayed for that generation, such a calamity would not have occurred. Hence, the exile must stay in the city of refuge until the High Priest's death. The Mishnah thus goes on to say "the mothers of the priests would bring them [the exiles] food and shelter so that they would not pray for their sons' death (Makkot, ibid.), so that the prisoners would feel well and comfortable in the city of refuge, where they were serving their sentence … (Ibid., pp. 4974–98).

In conclusion, relying upon the above discussion, the Court held that the prisoner's right to be with his partner exceeds the difficulties involved in realizing this right – difficulties which flow from the need to carry out the punishment of incarceration. The Court therefore held that the prisons and the legislature must allow the exercise of this right, by giving furloughs or setting up prison facilities for this purpose.

This ruling was written before the State of Israel enacted the Basic Law: Human Dignity and Liberty. Today, after the enactment of that law, which requires that laws be interpreted and implemented through a synthesis of the values of the State of Israel as a Jewish state with its values as a democratic state, the Courts must certainly decide these matters relating to human rights and dignity in accordance with the principles established in Jewish law over the course of generations.

For additional material on the city of refuge as source of inspiration for imprisonment in our days, see, Cr.F. 3007/02 State of Israel v. Avinon, (District Court of Jerusalem, Judge Moshe Drori).

For further discussion of this subject, see the entry *Imprisonment.

[Menachem Elon (2^nd ed.)]

bibliography:

S. Baeck, in: mgwj, 18 (1869), 307–12, 565–72; A.P. Bissel, The Law of Asylum in Israel (1884); S. Ohlenburg, Die biblischen Asyle im talmudischen Gewande (1895); N.M. Nicolsky, in: zaw, 48 (1930), 146–75; M. Loehr, Asylwesen im Alten Testament (1930); et, 6 (1954), 122–35; 7 (1956), 672, no. 6; Greenberg, in: jbl, 78 (1959), 125–32; Weinberg, in: Hadorom, 14 (1961), 3–13; Sorozkin, in: Sefer ha-Yovel … Jung (1962), 47–54. add. bibliography: M. Elon, Ha-Mishpat Ha-Ivri (1988), i:178f; idem, Jewish Law (1994), i:199f; idem, Jewish Law (Cases and Materials) (1999), 577–81; I. Warhaftig and S. Rabinowitz, "Ir Miklat be-Maarekhet Anishah Modernit – Dugmah Yissumit, mi-Torat ha-Anihsah shel ha-Mishpat ha-Ivri," in: Sha'arei Mishpat, 2:3 (2001) 353–81.