Copyright
© 1999 by Calvary Baptist Theological Seminary, cited with permission;
digitally prepared for use at
Cities of Refuge
Much of the Mosaic legislation
contained in the
Pentateuch
seems foreign to the modern reader. The laws
concerning the priesthood, the sacrificial system,
and the
religious holidays are neither practiced nor
paralleled in the
dispensation of the church. Though
they do have didactic and
illustrative value as types of the
work of Christ, they are often
rushed over or skipped altogether in personal Bible
study.
The Old Testament legislation
concerning so-called
moral law has received greater attention. Since it addresses
many issues which are also social problems in the
twentieth
century, it is frequently lifted from its Old
Testament context
and applied to contemporary society. Provisions for dealing
with cases of adultery, homosexuality, theft, and
murder in
such treatment.
Several minority political/religious groups even
advocate a complete return to Old Testament-style
political
regulations and policies.
It is within the context of this
debate that the Old
Testament
legal provisions concerning the city of refuge should
be studied.
These cities were designated locations to which one
who was guilty of accidental homicide1
could flee in order to
receive legal protection and a fair trial. They were part of the
ancient legal system which recognized the right
and even the
l
This paper will refer to an accidental homicide as
manslaughter and a deliberate
homicide as murder.
2 Cities of
Refuge
responsibility of the nearest relative
of a dead victim to put the
murderer to death. Since modem society is again
embracing the
death penalty, it will be wise to consider the
function and use of
the city of refuge in order to determine if it is
in any way
relevant for modern society.
The legislation concerning cities of
refuge is found in
Exodus
21:12-14; Numbers 35:9-34; Deuteronomy 4:41-43;
19:1-13;
and Joshua 20:1-9. There are several relevant
examples from the historical books of the
concepts of refuge
and blood vengeance found in n Samuel 21 and I
Kings 1-2.
The
goal of this paper is to summarize the Old Testament
legislation on this aspect of Israelite society, and
then to
determine if it has any applicability to the
current age. To that
end, the paper will first examine several critical
theories both
which erode the value of the Old Testament as a
historical
document in general and as a clear witness to the
validity of
this legislation in particular, and which challenge
the provisions
of the law as barbaric. Second, a brief summary of
the teaching
of the passages mentioning cities of refuge will
be made,
carefully noting the similarities and differences
between them.
After
synthesizing the passages into a summary of the Old
Testament
teaching on the subject, its relevance for modern
criminal justice will be examined. The study will
be limited
only to those aspects of Hebrew law which are
relevant to the
legislation governing the cities of refuge and will
not analyze
any of the other offenses for which capital punishment
is
mandated ( adultery, dishonor to parents, etc.).
Nor will it
systematically compare Old Testament
law to other ancient
near eastern systems of law, except when relevant
for the
present study. Finally, no attempt will be made
to explore the
relationship between the six named
cities of refuge in Joshua
20:7-8
and the 48 Levitical cities in Joshua 21.
Critical Theories
Textual Development
The legislation concerning the cities of refuge
does not
occur in one text of the Scriptures, nor are all the
mandates
listed in one scripture text. Due to this fact, it is
possible to
discover apparent "discrepancies"
between the various pieces
of legislation. For example, Exodus 21:13-14
indicates that
God
would appoint a place for the manslayer to flee, but that
this protection would not extend to the one guilty
of murder.
The
one guilty of murder was to be removed even from the
altar of God and put to death. Though this place is
distinct from
the altar mentioned in verse 14, it is unclear
exactly where it
will be located.2
Conversely, Numbers 35 and Deuteronomy 19 speak
of
the establishment of cities of refuge for the one
guilty of
manslaughter without mentioning any
altar. These variations in
the texts have been exploited by source-critical
scholars
holding to a late date for the book of
Deuteronomy in line with
the theory that it was produced as a part of
Josiah's reform
movement. Milgrom, for
instance states,
What is the relationship between the asylum
altar and
the asylum cities? Most
critics hold that asylum cities
were designated by Israelite
rulers to replace the
anarchic power of the altar to
grant asylum, but they
are divided on when the
change took place. Some opt
for the reign of David and
Solomon, and some for
Josiah.3
2 Moshe Greenberg, "The Biblical
Conception of Asylum,"
Journal of Biblical
Literature
78 (June 1959): 123.
3 Jacob Milgrom,
"Santa Contagion and Altar/City
Asylm,"
Congress Volume
4 Cities of
Refuge
Proponents
of the theory usually note that it was necessary to
eliminate the prominence of local altars as Josiah
worked for
religious reform since they had become centers for
idol
worship, and that the asylum cities were
established in order to
replace this one particular function of the
altar. The theory
holds that since Deuteronomy does not even mention
the altar
that, "the sole conclusion. . . is that
D[Deuteronomy] no longer
knew of the institution of the asylum altar. If the
altar was
replaced by the city, it happened long before D”4
Since the
Bible
clearly records Adonijah and Joab
requesting asylum by
grabbing on to the altar in I Kings 1 and 2, the
conclusion
supported by this critical theory is that
Deuteronomy was
written no earlier than the time of Solomon.
This conclusion of critical scholarship is both
wrong and
unnecessary. That there is a certain evolution in
the concept of
asylum cannot be denied, but it is the product of
progressive
revelation over a relatively short period of time
instead of the
product of religious decline over many
centuries. Exodus 21,
penned at the beginning of
written to a group of people living as nomads
gathered in one
central location. Presumably, an accidental
murder might have
been committed, in which case the guilty party would
flee for
protection to the altar within the camp. Exodus,
therefore,
merely mentions that at some future time, God will
establish
places for them to flee while leaving the function of
the altar as
a place of asylum intact. In Numbers and
Deuteronomy,
however, the people are on the verge of entering
the land and
their manner of life is about to change. They are
about to be
split into their tribal groups and spread throughout
a large
geographic area. At this point, they receive
instructions
concerning the number and location of the cities.
They are also
Supplements
to Vetus Testamentum, vol.
32 (
1981), 297.
4 Ibid., 304.
given laws concerning the determination of whether a
killing
was a murder or a manslaughter. Since Moses the
lawgiver
was present and acted as a judge among the people,
these
principles were certainly followed by him when
judging such
cases. Now, however, these laws are recorded in view
of the
impending dispersion of the people through the
land. Tigay
suggests this when he writes,
Exodus
accidental killers may flee, but
that intentional killers
are to be denied even the
time-honored asylum of the
altar. . . . Numbers 35:9-34
fleshes out the law. . . . It
describes circumstances which
create a prima facie
case that the killing was
intentional and a smaller
number of conditions
establishing that it may not have
been.5
In
similar fashion, Craigie advocates that, Deuteronomy
19:1-
13
seems to be an expansion of
the simpler law contained
in Exodus
in the sanctuary of the
Lord) offered protection. . . . As
the Israelites took
possession of the land, however, the
sanctuary and its altar would be
located a considerable
distance away from the majority
of the population”6
5 Jeffrey H. Tigay,
Deuteronomy, The
JPS Torah
Commentary
(Philadelphia: The Jewish Publication Society, 1996),
179.
6 Peter C. Craigie,
Deuteronomy, The
New International
Commentary
on the Old Testament (Grand Rapids: Eerdmans, 1976),
265.
6 Cities of
Refuge
Therefore,
the variations in the legislation concerning
manslaughter and cities of refuge
indicate the sociological
transformation
time. They indicate progressive revelation, not a
slow,
humanly-produced process of religious
evolution culminating
in a reform movement.
Status as a Humane
Punishment
The second controversy stirred by critical theorists
is to
consider the inherent morality of the whole
concept of capital
punishment and the accompanying legislation
concerning the
cities of refuge. The fact that someone's life is to
be taken from
them has been assumed to be a barbaric vestige of ancient
civilization. The law, however,
always fits the punishment to
the crime; and since murder requires that one lose
his life, it is
indicative of the high regard which the Scriptures
reflect for
human life. This high regard is especially evident
when
compared to the punishments prescribed by other
ancient Near
Eastern
cultures for similar offenses. Greenberg remarks that
the insistence of life for life to the exclusion of
monetary
compensation--a severity
unparalleled in ancient Near Eastern
law and which had its counterpart in the refusal to
consider any
offense against property worthy of the death
penalty--was
equally unheard of in all Near Eastern systems
but the Hittite.7
Other ancient systems of law allowed the family
of the
victim to receive financial compensation from the
murderer. As
Greenberg
states,
Not the archaicness of
the biblical law of homicide
relative to that of the
cuneiform codes, nor the
progressiveness of the biblical law of
theft relative to
7 Greenberg, "The
Biblical Conception of Asylum," 129.
that of
the evaluation of life and
property separates the one
from the others. In the
biblical law a religious
evaluation; in non-biblical, an
economic and political
evaluation predominates.8
The
Old Testament law, therefore, can in no sense be viewed
as an archaic and outdated barbarism. The fact
that the most
valuable of all commodities, human life, should
be prized and
protected in so many instances and taken away in
other
instances is certainly paradoxical to the thought
processes of
fallen human reasoning, but it is the only penalty for
murder
which is just.
The legislation regarding the cities of refuge
fit in as a
part of this high regard the Old Testament law holds
for human
life. In many ancient societies, the administration
of justice was
largely a private matter to be dealt with by
individuals. The
"aspiration [of the laws] to control vengeance by making it
possible for public justice to intervene between
the slayer and
the avenger has long been recognized as an advance
over the
prior custom of regarding homicide as a purely
private matter
to be settled between the families of the two
parties”9 City of
refuge legislation, therefore, was the instrument by
which each
accused killer had the opportunity to receive
due process.
Before
one could be put to death, he had to stand trial before
the congregation/elders and be declared guilty. It
also removed
the automatic protection the ancient custom of grabbing
the
horns of the altar provided to anyone, whether
innocent or
8 Moshe Greenberg, "Some Postulates
of Biblical Criminal
Law," A
Song of Power and the Power of Song, ed. Duane L.
Christensen.
Sources for Biblical and Theological Study, vol. 3
(Winona Lake, Eisenbrauns,
1993), 292-3.
9 Greenberg, "The
Biblical Conception of Asylum," 125.
8 Cities of
Refuge
guilty.10 Miscarriage of justice
occurs when either the guilty go
free or the innocent are punished. The city of
refuge legislation
has the specific purpose of avoiding either
extreme.
Texts Relation to Cities of Refuge
Having examined the critical theories which
challenge
both the historical development of the legislation
and its status
as a moral and fair punishment, it is now time to
examine the
various passages which established the cities of
refuge.
Exodus 21:12-14
This passage occurs in a section of laws
establishing the
death penalty. The general principle stated in verse
12 is that
one who strikes a person so that he dies must also
be put to
death. The exception given for the law is in cases of
premeditated murder. If the killer
did not lie in wait (Hebrew
hdAcA), thus indicating a
calculated murder, then he was to have
the opportunity to flee to a place of safety.
According to verse
14,
the one who did act with treachery toward any comrade
was a murderer and would have to be put to death.
The one
guilty of murder was to be taken from the altar itself
and put to
death.
Two curious features are present in the text.
First, the
exact nature of the homicide is ambiguous. It may
refer to a
crime of passion,11 which takes place in
the heat of an
argument and is not premeditated. It may refer to
an accidental
death. The Hebrew in Exodus 21:13 states:
10 Milgrom,
"Santa Contagion and Altar/City Asylum," note
84, 309.
11 John
3 (Waco: Word Books, 1987), 322.
vdoyAl;
hn.Axi Myhilox<hAv; hdAcA xlo
rw,xEva
The
English translation of the phrases reads "but if he did not
lie in wait, but God let him fall into his hand." The subject of
the first phrase is the third person
"he," while the subject of the
second phrase is the third person "God."
Thus the text
represents the primary mover in the death of the individual
as a
different person in each case. As Sarna concludes, "the
theological assumption is that the death of the
victim occurred
by the intervention of
unwitting agent."12 Verse 14 repeats the
same basic premise
from the perspective of the one who is worthy of
death. The
Hebrew,
hmAr;fAb;
Onr;hAl; Uhrere-lfa wyxi dziyA-ykiv; is translated "but
if a
man acts presumptuously against his neighbor in
order to kill
him with cunning." Smith defines the meaning
of the verb dyz
as, "connected to individuals or nations who
presume to have
authority or rights that are not legitimately
theirs. This may
involve an attitude or behavior that ignores or
rejects the
validity of God's authority to control Israelites
by his laws."13
Thus
the legislation involved in the verse is directed to anyone
who takes the life of another without having the
judicial
authorization to do so, unless the
death can be ruled an
accident. The legislation would also presumably
apply to a
crime of passion. Even a crime of passion requires
that one
person find a tactical advantage against another
person which
he may exploit in order to kill the person.
Furthermore, in the
same context verse 18 stipulates regulations for
reparations to
12 Nahunl M. Sarna, Exodus, The JPS Torah Commentary
(Philadelphia:
The Jewish Publication Society, 1991), 122, believes
that "Hebrew makom, like its Arabic cognate maqum, probably
means here 'sacred site,' a sanctuary"
13
Old Testament Theology
and Exegesis,
ed. Willen A. VanGemeren
(Grand
Rapids: Zondervan, 1997), 1:1094.
10 Cities of Refuge
be made when two men fight. If the injured man
thoroughly
recovers, the other party is liable only for the
loss of income
during the time the man recovered. The provision is
valid,
however, only if the man does not die. If a
death occurs, then
presumably the one who caused it is then liable to
death. The
place of asylum envisioned in the passage then is for
situations
of accidental, unpremeditated murder. It is not
for cases of
premeditated murder, regardless of
the time lapse between the
decision to kill another and the commission of
the act.
The second issue to resolve concerns the
location of the
asylum which is provided as a refuge for the
manslayer. Verse
13
indicates that God will appoint a "place" (MvqmA) to which the
manslayer may flee.14 The corresponding
legislation of verse
14
states that one who does not meet the qualifications for
innocence because he committed premeditated murder
is to be
taken from the altar and put to death. The perfect
verb in verse
13
looks to the point in time when
will have provided a definite place for them to go
to deal with
such matters. Verse 14 indicates that even the
time-honored
asylum given by an altar will not deliver a murderer
from his
punishment. The passage, therefore, envisions a
specific place,
whether referring to a holy site or a city, to
which one guilty of
manslaughter must go for asylum. The
exact relationship
between the altar and the asylum city is never
specified.
Numbers 35:9-34
Numbers 35 is the next passage which addresses
legal
provisions for places of asylum. This passage,
which
introduces the term "city of refuge,"
expands greatly upon the
general provisions set forth in Exodus 21:12-14.
Speaking of
this contrast, Ashley writes,
14 cf. fn. 12.
The law of Exod.
21:13-14 allowed for temporary
asylum, but did not designate
the place (except to say
that it may be at an altar)
or define how long the
asylum may last. The current
passage more carefully
distinguishes murder from
unintentional killing. . . puts
responsibility for determining guilt
or innocence in the
hands of the congregation. ..and defines the time
period of the guilty party's
stay in a city of refuge.15
Apparently,
the Exodus legislation sets forth the broad
guideline stating that God requires
for an asylum for the manslayer. God's instructions
to Moses in
Numbers
35 are designed to be carried out at a specific point in
time as indicated by the temporal clause in v. 10 (yKi). The
details outlined are to be implemented when
the
Verses 11-15 indicate the purpose, number, and
location
of the cities. The city of refuge was to be a
place where the
manslayer who killed someone inadvertently might
flee.16 The
manslayer was to go to the city so that he would
not be put to
death by the avenger17 of blood until he
had opportunity to
15 Timothy R. Ashley, Numbers, The New International
Commentary
on the Old Testament (
1993), 650.
16 The Hebrew word hgAgAw; , meaning
"unintentional," is used
to "signify an inadvertant
error or mistake arising form the routine
experiences of daily living" Andrew E. Hill,
"hgAgAw;," in New
International Dictionary
of Old Testament Theology and Exegesis,
ed. William A. VanGemeren
(Grand Rapids: Zondervan, 1997),
4:42.
The word is used frequently in the Pentateuch (often
with the
verb xFH, to sin) to refer to
the sacrifice which must be made for sins
which were not committed in defiance of God, or
high-handed sins.
17 According to Leviticus 25:47-49 the
redeemer, who in this
case acted on behalf of an impoverished Israelite,
was a near relative.
The
responsibility of redemption or vengeance fell first to a brother,
12 Cities of Refuge
stand trial before the congregation.
such cities, three on each side of the
to be for the use of any Israelite, resident
alien, or sojourner.18
Verses 16-24 stipulate criteria for determining
whether
a killing qualifies as accidental or
premeditated. The criteria for
determining culpability concern the murder weapon
and the
killer's mental state. Several types of
instruments might be
used. Verse 16 states that if the killer used an
iron implement,
then he is a murderer and must be put to death. At
this period
in history, iron was employed only in the
production of
weapons,19 which would be a
certain indication that the killing
was intentional. Weapons or tools of stone or wood
which
could be held in one's hand and were potentially
dangerous
were also "considered. . . [to
be] murder weapon[s] by
definition”20 The type of weapon was
important because it gave
an indication of the killer's intent when he
struck the victim.
Verses 20-22 indicate other possible means of
death.
These
are means of death which do not so obviously indicate a
hostile predisposition toward the victim, so the
killer's
psychological condition becomes a
factor. If the victim was
pushed to his death because of hatred, then the
killing was
punishable by death. If something was thrown at the
victim
from a concealed position (while "lying in
wait"), then the killer
was again judged guilty of murder since a
deliberate act was
involved. Verse 22 makes even the hands a
possible murder
then an uncle, then a cousin, then finally any blood
relative from his
family.
18 The two Hebrew terms employed here, rG and bwAOT
may refer to resident aliens with varying levels of
attachment to the
community, or they may function as virtually
equivalent terms
(function as a hendiadys).
19 Jacob Milgrom,
Numbers, The
JPS Torah Commentary
(Philadelphia: The Jewish Publication Society,
1990), 292.
20 Ashley, Numbers, 652.
weapon, providing that the killer struck down his
victim
because of hate.
Conversely, verses 23 -24 indicate evidence
which will
clear one of murder charges. If the death resulted
from pushing
or a thrown object, but there was no history of
hostility between
the individuals, then the killing should be ruled
accidental. If a
stone object was accidentally dropped on a person so
that he
died, then the killing was again ruled to be
accidental.
The type of the weapon used and the state of
mind of the
killer are the key factors to determine for the
adjudication of the
legal case. The provision might apply to modern cases
as
follows. In a case where a pedestrian was shoved
into a line of
oncoming traffic, the killing would be ruled
accidental if the
killer merely stumbled and pushed his companion into a
dangerous position. Had, however, there been
previous hostility
between the two, then he would be judged a
murderer. A
contemporary illustration of this
might be a death caused by a
gunshot wound. It would also be considered a
murder because
a gun is a weapon. The only exception might be on
the basis of
verse 23, which allows for an accidental death caused
by a
deadly object of stone. A hunting accident in which the
shooter
did not see an improperly dressed human would be an
excellent
example.
The congregation is the judge in such cases
according to
the above mentioned ordinances (v. 24). Should the
killer be
found guilty of murder, then he was to be put to
death. If the
congregation determined that the
killing was accidental, then
the killer was reprimanded to the city of refuge
until the death