Eglah Arufah: A Ritual Response to an Unsolved Murder

The Law of the Eglah Arufah

A Body is Found – Deuteronomy discusses the responsibility of Israelites who find the body of a murder victim on public land outside any city or town:

^{דברים כא:א} כִּי יִמָּצֵא חָלָל בָּאֲדָמָה אֲשֶׁר ה’ אֱלֹהֶיךָ נֹתֵן לְךָ לְרִשְׁתָּהּ נֹפֵל בַּשָּׂדֶה לֹא נוֹדַע מִי הִכָּהוּ:

^{Deut 21:1} If, in the land that YHWH your God is assigning you to possess, someone slain is found lying in the open, the identity of the slayer not being known,

Measuring – The first responsibility is for the elders^[1] to determine which town is closest:

^כא:ב וְיָצְאוּ זְקֵנֶיךָ וְשֹׁפְטֶיךָ וּמָדְדוּ אֶל הֶעָרִים אֲשֶׁר סְבִיבֹת הֶחָלָל:

^21:2 your elders and magistrates shall go out and measure the distances from the corpse to the nearby towns.

Unyoked Heifer – Once the closest city is determined, the elders of that town must perform a ritual with a heifer that has never been yoked.

^כא:ג וְהָיָה הָעִיר הַקְּרֹבָה אֶל הֶחָלָל וְלָקְחוּ זִקְנֵי הָעִיר הַהִוא עֶגְלַת בָּקָר אֲשֶׁר לֹא עֻבַּד בָּהּ אֲשֶׁר לֹא מָשְׁכָה בְּעֹל:

^21:3 The elders of the town nearest to the corpse shall then take a heifer which has never been worked, which has never pulled in a yoke;

The provision requiring an unyoked heifer is found only here and in the law of the red heifer (Num 19:2):

^{במדבר יט:ב} …וְיִקְחוּ אֵלֶיךָ פָרָה אֲדֻמָּה תְּמִימָה אֲשֶׁר אֵין בָּהּ מוּם אֲשֶׁר לֹא עָלָה עָלֶיהָ עֹל.

^{Num 19:2} …Instruct the Israelite people to bring you a red cow without blemish, in which there is no defect and on which no yoke has been laid.

Elders Kill the Heifer – The elders then break the heifer’s neck over an unsown plot of land:

^כא:ד וְהוֹרִדוּ זִקְנֵי הָעִיר הַהִוא אֶת הָעֶגְלָה אֶל נַחַל אֵיתָן אֲשֶׁר לֹא יֵעָבֵד בּוֹ וְלֹא יִזָּרֵעַ וְעָרְפוּ שָׁם אֶת הָעֶגְלָה בַּנָּחַל:

^21:4 and the elders of that town shall bring the heifer down to an everflowing wadi, which is not tilled or sown. There, in the wadi, they shall break the heifer’s neck.

Priests Arrive – Having done this, the Levitical Priests come, though they text does not say what role they have, other than “approaching”:

^כא:ה וְנִגְּשׁוּ הַכֹּהֲנִים בְּנֵי לֵוִי כִּי בָם בָּחַר ה’ אֱלֹהֶיךָ לְשָׁרְתוֹ וּלְבָרֵךְ בְּשֵׁם ה’ וְעַל פִּיהֶם יִהְיֶה כָּל רִיב וְכָל נָגַע:

^21:5 The priests, sons of Levi, shall come forward; for YHWH your God has chosen them to minister to Him and to pronounce blessing in the name of YHWH, and every lawsuit and case of assault is subject to their ruling.

Elders’ Declaration – The elders then make a declaration to God over the body of the heifer:

^כא:ו וְכֹל זִקְנֵי הָעִיר הַהִוא הַקְּרֹבִים אֶל הֶחָלָל יִרְחֲצוּ אֶת יְדֵיהֶם עַל הָעֶגְלָה הָעֲרוּפָה בַנָּחַל: ^כא:זוְעָנוּ וְאָמְרוּ יָדֵינוּ לֹא שָׁפְכוּ אֶת הַדָּם הַזֶּה וְעֵינֵינוּ לֹא רָאוּ:

^21:6 Then all the elders of the town nearest to the corpse shall wash their hands over the heifer whose neck was broken in the wadi. ^21:7 And they shall make this declaration: “Our hands did not shed this blood, nor did our eyes see it done.

Request for Atonement – After the elders declare that they are not responsible, they (or the priests, see appendix) ask God to absolve Israel from guilt:

^כא:ח כַּפֵּר לְעַמְּךָ יִשְׂרָאֵל אֲשֶׁר פָּדִיתָ ה’ וְאַל תִּתֵּן דָּם נָקִי בְּקֶרֶב עַמְּךָ יִשְׂרָאֵל

^21:8 Absolve, O YHWH, Your people Israel whom You redeemed, and do not let guilt for the blood of the innocent remain among Your people Israel.”

וְנִכַּפֵּר לָהֶם הַדָּם:

And they will be absolved of bloodguilt.

Summary – The law ends with a summary statement:

^כא:ט וְאַתָּה תְּבַעֵר הַדָּם הַנָּקִי מִקִּרְבֶּךָ כִּי תַעֲשֶׂה הַיָּשָׁר בְּעֵינֵי ה’:

^21:9 Thus you will remove from your midst guilt for the blood of the innocent, for you will be doing what is right in the sight of YHWH.

Talmud: Freeing the Elders from Culpability

In many of the lists of חוקים—laws that, according to the rabbis,^[2] have no readily understandable rationale—the eglah arufah appears.^[3] Early rabbinic discussion of the eglah arufah focuses instead on the declaration that is specifically placed in the mouths of the elders: “Our hands did not shed this blood.” Sifrei (210) and the Mishnah (Sotah 9:6) both question this declaration:

וכי על דעתינו עלתה שזקני בית דין שופכי דמים הן

Could it have crossed our minds that the elders of the rabbinical court are murderers?

The Mishnah (in the reading found in the most reliable manuscripts^[4]) explains that the elders are really saying,

שלא בא לידינו ופטרנוהו ולא ראינוהו והנחנוהו

It is not the case that he came to us and we dismissed him, or that we saw him and let him go.

The subject of בא, “he came” is unclear, and the Jerusalem Talmud (Sotah 9:6, 23d) offers two different possibilities:

A) Murderer – The explanation attributed to the rabbis of the Land of Israel (themselves), is that the elders’ declaration refers to the murderer. They are affirming that they, the elders, had never apprehended nor even seen the murderer and then subsequently released him or allowed him to escape:

שלא בא על ידינו ופטרנוהו ולא הרגנוהו ולא ראינוהו והנחנוהו ועימעמנו על דינו.

It is not the case that he [the murderer] came to us and we dismissed him without execution, nor did we, acting irregularly in the judgment of his case, see him and let him go.

According to this understanding, the ceremony reminds the elders of their responsibility for pursuing justice. If they are lax in their attempt to apprehend and convict a murderer, it is as if they themselves spilled the blood of the victim.

B) Victim – The explanation attributed to the rabbis of Babylonia^[5] is that the elders are saying that they were not guilty of having neglected the needs of the murder victim:

שלא בא לידינו ופטרנוהו בלא מזון ולא ראינוהו והנחנוהו בלא לויה

It is not the case that he [the murder victim] came to us and we let him go without food or that we saw him and let him go without accompaniment [as he left the city].”^[6]

This understanding suggests that the ceremony reminds the elders and all Jews that they are responsible for the social welfare of the vulnerable. Whenever poverty causes a person’s death, the community bears some of the responsibility.

Poverty Made the Victim a Criminal: Rashi

Rashi, in his commentary to the Talmud,^[7] explains how the community’s failure to give food to a poor person could have been the root cause for his murder:

ידינו לא שפכו לא נהרג על ידינו שפטרנוהו בלא מזונות והוצרך ללסטם את הבריות ועל כך נהרג.

“Our hands did not shed…”: He was not killed on account of our malfeasance. [It was not the case that] we sent him off without food, such that he had to become a highwayman [in order to eat] and thus he was killed.

While Rashi’s explanation may not reflect the peshat understanding of the text, it demonstrates his desire to make this text relevant, since we all have opportunities to give charity to the needy or to refrain from doing so.

We Are All Responsible for Each Other

In consonance with the rabbinic approach, Shadal (Samuel David Luzzatto, Italy; 1800-1865) suggests that one reason for this law is:

לחזק האמונה המפורסמת באומה שכל ישראל ערבים זה לזה . . .

It strengthens the belief in the Jewish nation that all Jews are responsible for each other . . .

What about the Ritual?

The Talmudic explanations focus on the elders’ confession, but do not relate to the elements of the ritual of the heifer. But what kind of ritual is eglah arufah and what does the killing of a heifer have to do with an unsolved murder? As noted above, the rabbis considered the ritual to be an inexplicable law (חוק). But this did not stop academic scholars and Jewish thinkers over the ages from attempting to find a rationale.

The Function of the Ritual

David P. Wright, professor of Bible at Brandeis University, lists various possible explanations. The killing of the heifer is either:

…a sacrifice, a symbolic or vicarious execution of the murderer, the representation of the penalty the elders will suffer if their confession of innocence is not true, the means of preventing the animal laden with guilt from returning to the community, or a reenactment of the murder which removes blood pollution from the inhabited to an uninhabited area.^[8]

Rabbinic commentators from medieval through modern times also debated the meaning of the ceremony.

Maimonides and Bekhor Shor: Generating Publicity

In his twelfth-century work, Guide for the Perplexed (3:40), Moses Maimonides offered an original interpretation of the ceremony (Friedlander trans.):

The beneficial character of the law concerning “the breaking of the neck of a heifer” (Deut. xii. 1-8) is evident. For it is the city that is nearest to the slain person that brings the heifer, and in most cases the murderer comes from that place… As a rule, the investigation, the procession of the elders, the measuring, and the taking of the heifer, make people talk about it, and by making the event public, the murderer may be found out, and he who knows of him, or has heard of him, or has discovered him by any due, will now name the person that is the murderer, and as soon as a man, or even a woman or handmaid, rises up and names a certain person as having committed the murder, the heifer is not killed.…

When the murderer is discovered, the benefit of the law is apparent. If the court of justice cannot sentence him to death, the king may find him guilty, who has the power to sentence to death on circumstantial evidence; and if the king does not put him to death, the avenger of blood may scheme and plan his death, and at last kill him.

Force is added to the law by the rule that the place in which the neck of the heifer is broken should never be cultivated or sown. The owner of the land will therefore use all means in his power to search and to find the murderer, in order that the heifer not be killed and his land not be made useless to him.^[9]

According to Maimonides, this very strange and very public ceremony is simply meant to attract attention, in the hopes of building awareness and catching the killer.^[10] A similar explanation to that of Maimonides’ is found in the Torah commentary of Rabbi Joseph Bekhor Shor (Deut 21:8), a contemporary of Maimonides who lived in France:^[11]

וכל זה צוה הקב”ה לעשות שיהא קול לנרצח, ושיהא אוושא מילתא מתוך הערים הנמדדות, וסנהדרי גדולה שבאים שם, והעגלה שנערפה ונקברת, שהוא דבר תימא.

God commanded that all this be done so that the murder victim “has a voice.” Noise is made through the measuring of the cities [to find out which one is closest], and the arrival of the rabbinic court there, and the heifer which is killed and buried. All these are unusual [and attract attention].

ומי שהלך מביתו ולא שב, ולא נודע מה נעשה בו, באים בני ביתו ובני משפחתו אל הקול [לראות] אם מכירין אותו, ואין אשתו עגונה, . . .

If someone had gone on a journey and did not return, and no one knows his fate, his household and his relatives might come because of the publicity and they can see if they recognize the person who died. Thus his wife will not be an agunah [but will be allowed to remarry]. . . .

ומתוך שהוא ניכר, נודע מי הלך עמו ומי נתחבר לו, ופעמים שמתפרסם הרוצח על ידי כך.

Once the victim is identified, we can find out who travelled with him and who joined him on the trip. Sometimes, as a result, the murderer can be identified.

Although Bekhor Shor ends with the hope of catching the murderer, he also notes the importance of ensuring that the victim’s family knows what happened to their loved one.^[12]

Shadal: To Avoid a Panic

Shadal turned Maimonides’ explanation on its head:

כדי שבתוקף אמונתם בעונש המגיע לארץ בשביל הדם אשר שופך בה, לא יבאו להרוג נקי שיהיה נחשד על הרציחה ההיא, בזולת ראיה גמורה ועדות ברורה . . . בנדון שלנו שהחלל נמצא, יתכן שיהיו כל הקהל נענשים אם לא ישתדלו עד שימצא הרוצח.

As a result of their belief that the land would be cursed because of [unavenged] spilled blood, it was necessary to take steps to avert the possibility that they would be tempted to kill an innocent person who was suspected of the murder even without clear evidence and certain testimony. . . . In the current case, where the murder victim was found, [they might have mistakenly thought] that the entire people would be punished if their efforts did not turn up the murderer.

Shadal is concerned with combating vigilantism. Out of fear of the consequences the Israelites could suffer from God for having allowed innocent blood to be spilled on their land, they might try to “identify the culprit” even without solid evidence.

Thus, the ceremony’s goal is to stop people from feeling that, in order to keep the land from being polluted^[13] following an unsolved murder, they have to find and punish the murderer even without solid evidence. The ceremony averts vigilantism by providing a method of removing bloodguilt from the land when punishing the offender is not an option. Thus Shadal totally rejects the claim of Maimonides that the ceremony’s benefit is that it may lead to the execution of a murderer despite the lack of incontrovertible evidence.

Ramban: It’s a Sacrifice

Ramban (Moses ben Nahman, 1194-1270) suggests that the eglah arufah is really a sacrifice, just not a standard one.

ולפי דעתי יש בו טעם כענין הקרבנות הנעשים בחוץ שעיר המשתלח ופרה אדומה

In my opinion, its explanation is like that of [other] sacrifices that are offered outside [of the Temple]: the goat that is released (Lev 16) and the red heifer (Num 19).

Ramban, who is deeply immersed in the world of Jewish mysticism, has little use for any of the rational explanations of the eglah arufah. He prefers to understand the eglah arufah the way many understand the goat that is released to Azazel on Yom Kippur and the red heifer, namely as a very unusual sacrifice that is meant to accomplish a specific (kabbalistic) purpose. In his Torah commentary on those other two mitzvot, he offers kabbalistic explanations that involve placating or overcoming the forces of evil in the world.^[14] It is likely that he has a kabbalistic explanation for this ritual as well, though in this case he does not include it.

Ironically, Ramban ends up at a place not so far from some modern scholars who note that the ceremony appears to be a sacrifice as it centers on the killing of an animal and it effects atonement or absolution. Yet other modern critical commentators conclude that the ceremony could not be a sacrifice:^[15] It does not take place at a holy site; no altar is involved; the animal is not slaughtered in the standard manner of sacrifices;^[16] the animal’s blood is not mentioned and nothing is done with it; no one eats any of the meat of the animal; and the flesh is not burned—crucial elements of sacrifice in Torah law.

Milgrom’s Hypothesis

This survey of the multiple explanations for the ritual suggests that its reason is unclear. Jacob Milgrom suggests that the reason for this ambiguity is that Deuteronomy is repurposing, and adding an ethical dimension to, an ancient pre-Israelite ritual that it inherited:

The key to this rite is its underlying postulate that the blood of the innocent . . . pollutes the earth on which it is shed (Num. 35:33). The earth, having received the blood involuntarily, withholds its strength (Gen. 4:11–12), bringing drought and famine upon its inhabitants (II Sam. 21:1, LXX; cf. also II Sam. 1:21; Ezek. 22:24). This belief is not peculiar to Israel, but is part of its heritage from the cultures along the Mediterranean littoral…. The ʿeglah ʿarufah is the cultic prophylactic to avert this contingency. Its purpose is to transfer the land polluted by the corpse to an uncultivated plot, removed from the settled area… According to this interpretation the Torah has incorporated an ancient rite.

…At the same time, it should not be overlooked how an act of pure sympathetic magic was transformed by the Torah to conform to its basic spiritual and ethical outlook. First, the ritual was placed in the hands of the priests, those “chosen by the Lord to serve Him” (21:5), and removed from the authority of the lay-elders, who might be addicted to its pagan origins. Then, the declaration was given an appendix (21:8–9), whereby the automatic, magical expiation presumed by the ritual was abolished, and the expiation and, indeed, all forgiveness of sin attributed solely to the Lord.^[17]

Milgrom thus hypothesizes an unattested pre-Israelite ceremony that removed the sin magically. Deuteronomy, he suggests, included the ritual in its laws, but added the declaration of the elders underlining the responsibility they have for the people under their care, added the priests who represent proper worship of God, and made the expiation come from God as opposed to automatically from the ritual itself.

The Ceremony Abolished, But the Idea Lives on

According to the Mishna (Sotah 9:9), the eglah arufah ceremony was abolished in the first century CE (perhaps before and perhaps after the destruction of the Temple). The official reason given in the Mishnah is that there were too many murderers in the land.^[18] That same Mishnah says that the ceremony of the sotah, the suspected adulteress (Num 5:11-31), was similarly abolished then as there was too much adultery in the land.^[19] In a sense, the Mishnah concluded that these ceremonies served no real function in the world of rabbinic Judaism.

Nevertheless, the idea behind the ceremony still lives on in Jewish thinking. After the massacre in the Sabra and Shatilla refugee camps in Lebanon in 1982, perpetrated by Christian Phalangist troops who were allies of the Israel Defense Forces, the Israeli government set up the Kahan Commission of Inquiry. The report concluded that while Israel did not bear direct blame for the massacre, under the principle of the eglah arufah, they shared in the responsibility.^[20] And in a wide range of social issues—from problems of traffic accidents^[21] to children alienated from their communities to overdosing on drugs,^[22] to the need for improved emergency services^[23]—Jewish groups continue today to cite the eglah arufah as a message to us that we are all responsible for each other.

Appendix

The Role of the Priests

In this law a role is played by “the priests, sons of Levi,” an unusual phrase in Deuteronomy.^[24] In verses 1-4, the authorities are not priests, but זקניך ושוטריך—your elders and magistrates. Only in verse 5 do the priests “come forward.” But the heifer had been killed already in verse 4, before the priests came forward,^[25] and immediately after that, in verse 5, the elders are again conducting the ceremony, not the priests. The speaker in verses 7-8 (“Our hands did not shed this blood…etc.”) could possibly be the priests,^[26] although most likely it is the elders.^[27] So what, then do the priests do?

A creative suggestion dating back to the Mishnah is that in verse 7, the elders say “Our hands did not shed this blood, nor did our eyes see it done.” Then, in verse 8, the priests answer: “Absolve, O YHWH, Your people Israel whom You redeemed, and do not let guilt for the blood of the innocent remain among Your people Israel.”^[28] Although there is no indication at the beginning of verse 8 that the speaker has changed, the notion that כפרה—atonement or absolution—is granted or proclaimed by the priests seems logical, and may provide a justification for the priests’ presence. ^[29]