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Eglah Arufah

Photo by Alexander Wallnöfer from FreeImages

Question #1: Which Cities?

What are the requirements for a city to be obligated in eglah
arufah
?

Question #2: Where?

How do we measure to determine the obligation of eglah
arufah
?

Question #3: Why Now?

Why are we discussing this mitzvah this week?

Background

Chazal teach us that the last subject Yaakov and
Yosef had been studying together before Yosef so mysteriously disappeared was
the topic of eglah arufah. This provides opportunity for us to study the
very detailed and difficult laws surrounding the mitzvah of eglah
arufah
. Let us begin with the description of this mitzvah as expressed in
the Torah:

“Should you find, lying in a field, someone slain in the
land that Hashem, your G-d, is giving to you to inherit – and it is unknown who
killed him, your elders, your judges, must leave (their usual location) and
measure the distance from the cities that are near the corpse. The elders of
the closest city bring a calf that has never been worked nor pulled a yoke. The
elders of that city bring this calf down to a ‘hard’ valley that will not be
worked and not planted, and there, in that valley, they decapitate the
calf. Then, the kohanim, who are the sons of Levi, come forward, because
Hashem, your G-d, chose them to serve Him and to bestow blessing in the Name of
Hashem, and by their mouths will be decided all disputes and all matters
germane to nega’im. Subsequently, all the elders of that city that is
nearest the corpse shall wash their hands over the calf that was decapitated in
that valley. They then raise their voices, declaring, ‘Our hands did not shed
this blood, and our eyes did not see. Atone for Your people, Yisroel, whom You,
Hashem, have redeemed, and do not allow innocent blood to be shed among Your
people, Yisroel.’ Thereby, shall this blood be atoned” (Devorim, 21:1-8).

The words of this posuk are carefully analyzed in Torah
she’be’al peh. To review: A terrible calamity occurred to the Jewish
nation. A murder has taken place, and, to make matters worse, indications are
that a Jew was the perpetrator. How do we see that it is appears that a Jew was
the murderer? Firstly, the halacha is that if there were non-Jews near
the murder site, no eglah arufah is offered, based on the supposition
that it was a non-Jew who performed the crime (see Sotah 44b, according
to the version quoted by the Rambam; see also Tosafos, Bava Basra
23b s.v. beyosheves, and Minchas Chinuch #530). In addition,
should the victim have fallen near the Jewish country’s borders, no eglah
arufah
is offered, under the assumption that he was murdered by a foreign
intruder (Mishnah, Sotah 44b). Furthermore, in an unfortunate era
when there were gangsters among the Jewish people, no eglah arufah was
offered either, since the assumption is that one of the gangsters performed the
heinous crime, and the eglah arufah is only offered when there is no
knowledge about the perpetrator’s identity (Mishnah, Sotah 47a).

There are several questions relating to these pesukim that
we will discuss. For example, the verse goes to great length to describe the
role of the kohanim in the Jewish people, yet it does not say what
function they perform in the eglah arufah procedure. (The answer to this
question will need to wait until our sequel.) Also, we should note that there
are three different descriptions of elders in the pesukim: At first it
refers to “your elders, your judges,” then it refers to “the elders of that
city,” and lastly it refers to “all the elders of that city.” These seem to be
three different categories of elders. Indeed, we will soon see that this is
exactly the situation.

Should the murderer be apprehended, no eglah arufah
is offered. Since no murderer has yet been caught or suspected, the community
from which it is most likely that the murderer came is required to atone for
itself. This atonement procedure is the fulfillment of the mitzvah of
bringing an eglah arufah, which is counted by the Sefer Hachinuch
as mitzvah number 530. If the procedure of the eglah arufah has
already been performed, and subsequently the murderer is identified in a way
that halacha rules that he be punished, the regular punishment is
carried out (Mishnah Sotah 47a). The purpose of the eglah
arufah
is to atone for the negligence of the community and its leadership,
not for the murderer.

Details, details

There are several different stages involved in fulfilling
the mitzvah of eglah arufah, each of which is performed by a different
group of people. The first step is the responsibility of those who find the
corpse. Contemporary society would expect them to call the police department to
file a criminal report, and the police would contact the coroner’s office to
examine the corpse. However, the halachic instructions are quite
different. Those who find the victim send a notification to the Sanhedrin,
wherever it is headquartered, to send representation to the location of the
fallen individual (Minchas Chinuch #530). The corpse is not moved in the
slightest, and the examination of the crime is performed only by observation.
In order to make sure that the meis has a proper burial place, the halacha requires
that he be buried in the place he was found, a halachic principle called
meis mitzvah koneh mekomo
, which literally means that someone who dies
without next of kin nearby or available to guarantee proper burial has an
automatic legal right to be buried in the place where he was found, unless it
is a place that causes public inconvenience (Eruvin 17a, b). The Gemara
explains that this was one of the ten rules that Yehoshua established when he
led Klal Yisroel into Eretz Yisroel (Bava Kama 81a).

Three groups of elders

Above it was noted that the posuk mentions three
groups of elders:

1. “Your elders, your judges,” who “must leave and measure
the distance from the cities that are near the corpse.” This refers to the Sanhedrin,
the main court of the Jewish people, responsible for the continuity of the Torah
she’be’al peh
and for all regulations regarding the Jewish people. They
send a group of their members from Yerushalayim, or their headquarters, to
oversee the measuring from the fallen victim to the nearby cities to determine
which is closest.

2. “The elders of that city,” who become responsible for
the proceedings once it is determined which city is closest to the victim of the
crime.

3. “All the elders of that city,” which, according to the Rambam,
includes even senior citizens who are not necessarily scholars. The members of
this group are required to wash their hands and to make a declaration of their
innocence.

The arrival of the members of the Sanhedrin

The Rambam rules that we leave the corpse in place
until a representative body of the Sanhedrin arrives. Bearing in mind
that, in his opinion, this could take many weeks until it happens, this seems
very unusual, as we usually bury someone as soon as possible, unless the
dignity due the departed requires that we wait for the arrival of next-of-kin or
a larger turnout at the funeral. Here, the delay will not result in either of
the above; yet, in the Rambam’s opinion, we delay.

How long can this delay be? Allow me to calculate. The mitzvah
of eglah arufah applies anywhere in Eretz Yisroel, including the
large area on the eastern side of the Jordan River (Sifri; Rambam,
Hilchos Rotzei’ach
10:1). We know that the most distant places in Eretz
Yisroel
were fifteen days travel time from Yerushalayim (Mishnah Taanis
10a). Granted that the Mishnah there is calculating the time it takes a family
to travel, we can shave off a few days of travel time, but not much more, since
we know that beis din’s messengers could still take about twelve days to
get to the most distant parts of Eretz Yisroel (Rambam, Hilchos Kiddush
Hachodesh
5:4, 6). Therefore, it could take at least twelve days after the
discovery of the corpse until the locals get a message to the Sanhedrin
to send its representatives. After the Sanhedrin chooses the members for
this mission, if the city is this far removed from Yerushalayim, it could take
at least twelve more days for the delegation to arrive. Thus, we can easily
have a situation in which the corpse has been left for almost thirty days until
burial according to the approach of the Rambam (Minchas Chinuch).

What happens to the corpse during these many weeks of
waiting? All the rules of kovod hameis apply, other than allowing no
delay to bury him. Since he must be left in situ in order not to bias
the measurements, there is a requirement to provide shemirah on the body
by day and by night, firstly for the human honor due him, and secondly to make
sure that animals and insects do not feed on him. Thus, in this situation the
requirement of meis mitzvah requires that people be available to be
shomeir
this meis outdoors, wherever he was found, 24/7, for up to
and perhaps more than thirty days, regardless of the weather conditions! We
should also note that, according to the opinion of Rabbi Eliezer ben Yaakov
that we will soon cite, the wait could be considerably longer.

Several acharonim (Chasdei Dovid, Minchas
Chinuch
) question the Rambam’s ruling that the corpse must be left in
situ
until the representatives of the Sanhedrin arrive. The text of the Tosefta
(Sotah 9:2) implies otherwise: As explained by the Chasdei Dovid,
when the corpse is located, the Tosefta rules that a nearby beis din
sends representatives to mark the exact point from which we are going to
measure. Then, the meis is buried in place, because of the principle of meis
mitzvah koneh mekomo
. The Sanhedrin members, when they arrive,
measure not from the meis himself, who has already been buried, but from
the marker on the gravesite that indicates the pinpointed location from which
they are to measure. The Talmud Yerushalmi (Sotah 9:1) quotes
this Tosefta, yet the Rambam rules otherwise.

Three, five or more?

There is a dispute among tanna’im how many members
of the Sanhedrin are required to come: According to Rabbi Shimon, three
members, and according to Rabbi Yehudah, five (Sotah 44b; Sanhedrin
2a, 14a). The Rambam rules according to Rabbi Yehudah, requiring five
members of the Sanhedrin to come to the site of the murder (Hilchos
Rotzei’ach
9:1).

There is a third tanna, Rabbi Eliezer ben Yaakov,
who requires a very large representation of the Jewish people, including the
king, the kohein gadol and the entire Sanhedrin, not just three
or five representatives (Sotah 45a). As I mentioned above, his opinion
could potentially cause an even greater delay until the Sanhedrin arrives
to measure the distance to the nearby cities, since both the king and the kohein
gadol
may have other obligations, and the king could be away on a war or
other affairs of state.

However, Rabbi Eliezer ben Yaakov’s position is not
accepted as normative halacha, evidenced by the fact that the Mishnah,
which discusses this issue in two different places, does not even mention his
opinion. The Rambam, also, does not rule this way, but requires only
five members of the Sanhedrin, unaccompanied by either the king or the kohein
gadol
.

Where is the Sanhedrin?

Until the destruction of the Beis Hamikdosh, the Sanhedrin
was always located either in a special chamber on the grounds of the Beis
Hamikdosh
or somewhere nearby. After the destruction of the Beis Hamikdosh,
the Sanhedrin went through a series of relocations, first to Yavneh, and
then to different places mostly in the Galil, including Shafra’am, Beis
She’arim, Tzipori, Usha and Teveryah (Rosh Hashanah 31). The Minchas
Chinuch
(530) rules that there was a law of eglah arufah during all
these periods. This would indicate that the Mishnah in Sotah 44b,
which states that the Sanhedrin members left from Yerushalayim, is an
old Mishnah dating back to the time of the Beis Hamikdosh and not
from the time of Rabbi Yehudah Hanasi, in whose day the Sanhedrin was
already in Teveryah, the last of its ten relocations.

Next mitzvah: Measuring

There is a mitzvah to measure even when the corpse
is found right outside one city, such that it is completely unnecessary to measure
to determine which city is closest (Sotah 45a; Rambam, Hilchos
Rotzei’ach
9:1).

Since this measurement is a Torah requirement, it must be
done very precisely (Eruvin 58b; Rambam, Hilchos Rotzei’ach 9:4).
Regarding other halachos involving measurement of distance, such as the techum
Shabbos
around a city or village within which one may walk on Shabbos,
we do not measure the elevations of hills around the city, but have various halachically
approved methods of estimating and shortening these distances. In other words,
techum Shabbos
is measured as the crow flies.

These rules do not apply to eglah arufah. In this
instance, the measurements must be exactly how far it would take someone to
walk this distance. In other words, the distance is measured not as the crow
flies, but as the person walks.

Must they measure it themselves?

Are the members of the Sanhedrin themselves required
to measure the distance from the corpse to the nearest city, or is it
sufficient if they supervise the measuring? The Minchas Chinuch rules
that they are not required to perform the actual measurements, but they must
oversee those who are measuring.

There are several unusual laws germane to the mitzvah
of measuring. We measure to the largest cities from which it is likely that the
murderer came. If there are smaller cities nearby, they are ignored (Rambam,
Hilchos Rotzei’ach 9:6, based on Bava Basra 23b). If the nearest
city includes a non-Jewish population, no measurement and no mitzvah of eglah
arufah
are performed (Rambam, Hilchos Rotzei’ach 9:5), and if
the nearest city is Yerushalayim, there is no mitzvah of eglah arufah
(Bava Kama 82b).

Is beis din a liability?

One of the unusual rules is a statement of the Mishnah
that the measurement is done only towards a city that has a beis din (Sotah
44b). This implies that if there are large, populous, completely Jewish
cities near the corpse that do not have a beis din, we do not measure
from the corpse in the direction of that city, but instead, we measure to a
more distant city that has a beis din. The question, raised already by Tosafos
(Bava Basra 23b s.v. bedeleika), is that the lack of a beis
din
does not demonstrate that the murderer was not a resident of that city.
Thus, if our goal is to determine which city most likely produced the murderer,
the farther city should not thereby be required to bring an eglah arufah.
This question has created much literature, but, to the best of my knowledge,
there is no universally accepted approach to answer it.

The measure of a man

From which point on the victim’s body do we measure? The Mishnah
(Sotah 45b) quotes a three-way dispute among tanna’im discussing
exactly from which point on the victim’s body we measure. According to Rabbi
Eliezer, we measure from the navel, which is where he first acquired
nourishment before birth. In Rabbi Akiva’s opinion, we measure from the
nostrils, which is the place from which a person draws his breath. Rabbi
Eliezer ben Yaakov rules we measure from the neck, which he bases on his
understanding of a posuk. The Rambam concludes that we follow
Rabbi Akiva and measure from the nostrils.

According to the above-referenced Tosefta, those who
found the body buried it in situ immediately, but were careful to mark
the exact place where his nostrils were at the moment they found him. The
elevation at which the body was found is also a factor in the measurement. This
means that they needed to measure carefully the height at which they found him,
not only his location on the ground before they buried him.

I will be sending the sequel to this article in two weeks.

Conclusion

The Sefer Hachinuch explains one of the reasons for the mitzvah of eglah arufah is that it teaches communal responsibility. The elders of the Sanhedrin are required to send a representation of either three or five members to personally oversee the measurement from the victim to the nearest city. After they complete their measurement, the city thus indicated must send out all its elders to participate in what can only be described as a very unusual ceremony. Certainly, they cannot declare innocence before Hashem unless they are certain that they provide every wayfarer with adequate security and provisions. Thus, the elders of the city must always be responsible for whatever happens in their city, not only among the residents, but even among the visitors.