All the current television programs that highlight the use of the latest technology in forensic science to solve crimes, including cold cases, reassure us that most crimes will be solved and that justice will ultimately prevail. But, when we come to the end of this week’s parashah, we remember that our ancestors did not have the benefits of these technologies. And, when a case ran cold, and there was an unsolved homicide in the community, what was to be done?
The closing verses of Shoftim (Deut. 21:1-9) describe a curious ritual to be performed when a corpse is found in an open field, an apparent homicide victim, and the slayer is not found. The elders of the nearest town are to take a heifer that has never been worked to a wadi and break its neck there. The kohanim are to come forward then, and the elders are to wash their hands over the heifer (the eglah arufah), and declare that their hands did not shed the blood of the innocent victim of the homicide. In this manner, they were to be absolved of any guilt in the matter.
So, just what are we to make of this curious ritual? First, we have to imagine what life was like for our ancestors in ancient Israel. They lived in small towns and villages where everyone knew everyone else, and many were related. Their towns and villages were not far from one another. If the murderer was not someone they knew, could it be someone from a nearby town? Imagine the fear.
Any murder is a horror. An unsolved murder is even more unsettling. After all, the murderer is still out there, and could be someone among us. There is the victim to consider, and his or her family. Will there be any justice for them? And there is the community. A horrible thing has happened within our boundaries. Do we, in any way, bear any responsibility? Is there anything we could have done to prevent this? Have we done everything possible to find the guilty party? How can we go on living here after something like this has happened?
As you look at the case of the eglah arufah in the Talmud, you find that the rabbis seemed to be more concerned with whether the ritual needed to be performed, and any loopholes that might preclude its being performed, rather than the “why” of it. After all, it was a solemn procedure, carried out in the presence of priests, acknowledging the horror of what happened and the need to be absolved of guilt. And it involved the slaying of an animal from which no material benefit was to be derived. It must have been a powerful rite. And, while the Torah prescribes it, the rabbis wanted to make sure that it was absolutely necessary.
The eglah arufah is discussed in Masechet Sotah. In the Mishnah (Sotah 9) the sages ask a number of questions in an effort both to follow the law according to the Torah, and to determine whether the ritual is really necessary. What if the body had been hidden before it was discovered, or had been found hanging from a tree, or floating in a body of water rather than lying in an open field? What if the body is headless, and the head and the body were found in different places? What if the nearest city was a city with mostly gentile residents, or near a border, or one without a court? What if the slayer was found before the ritual was to be performed? What if he were found after it already had been done? And the Gemara (Sotah 45b-47b) expands the discussion of these questions.
While Rashi – bolstered by the Talmudic discussion in Sotah – was concerned primarily with a straightforward explanation of the Torah in discussing the eglah arufah, Rambam was more concerned with explaining the “why” of it. In Part III of his “Moreh Nevuchim” (Ch. 40), Maimonides characterizes the law of the eglah arufah as having a beneficial effect.
First, the city nearest where the victim was found brings the heifer. In most cases, he contends, the murderer comes from there. Second, the elders have to declare that they have done everything in their power to make sure that people are safe in their town – whether residents or wayfarers – and that they were not negligent. He assumes that an investigation, the procession of the elders, the measuring of distances to nearby towns, the taking of the heifer, etc., would make people talk about the case. With such public awareness, the murderer might be found because now, someone with some knowledge might come forth. Furthermore, the owner of the land where the heifer’s neck is to be broken would be highly motivated to help solve the case, because, after the ritual, that land could never be cultivated or sown. Quite an incentive. Thus, if the murderer is found, then the benefit of the law of the eglah arufah would be self-evident. Such is the Rambam’s take on the law prescribing this curious ritual.
So, was this rite ever performed? And, how far into our people’s history was this law observed? For that matter, why is it discussed in Masechet Sotah?
Sotah discusses obscure and arcane rituals that leave us perplexed and baffled. Since the main discussion is that of the potion of bitter waters to be drunk by the suspected adulteress (Numbers 5:11-31), it is not surprising that the discussion of the eglah arufah is found there, too. Both rituals fell into disuse. At the end of Sotah the rabbis tell us that when adulterers became many, the ritual of the bitter waters ceased. And when murderers became many, the rite of the eglah arufah ceased. In one sense it is a sad commentary.