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Beit Midrash Torah Portion and Tanach Vayeshev

Eglah Arufah

26
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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.
here 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.
This Shiur is published also at Rabbi Kaganof's site

Rabbi Yirmiyohu Kaganoff
Was the Rabbi of the Young Israel of Greater Buffalo, the Congregation Darchei Tzedek and also served as a dayan on the Beis Din of Baltimore. Now is a Rabbi in Neve Yaakov, Jerusalem. His Shiurim and Q&A can be found on his site: www.rabbikaganoff.com
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