Kommentar zu Schemot 21:14

וכי יזד AND IF A MAN ACT INTENTIONALLY — Why is this stated at all (since v. 13 expressly provides a place for the murderer only if he does not lie in wait)? Since it is said, (v. 12) “Whosoever smiteth a man [so that he die shall be put to death]”, I might infer that this is so even if the victim is a heathen, and that there it included even a physician who kills a person as a result of his treatment, and a court-officer who kills a man when inflicting on him the forty lashes, and a father who beats and thereby kills his son, and a teacher who chastises his pupil and thereby kills him, and one who kills in error (שוגג, i. e. one who intended to kill a certain person but missed the mark and killed another instead — נתכוין להרוג את זה והרג את זה)! Scripture therefore states here: “if a man acts intentionally (יזיד)” — but not in error (שוגג); “against his fellowman (רעהו)” — but not against a heathen; “to slay with guile (בערמה)” — thus excluding the court-officer, the physician, and one who chastises his son or his pupil for all these though acting intentionally do not do so with guile (cf. Mekhilta d'Rabbi Yishmael 21:14:1).

מעם מזבחי, even though at that time when no cities of refuge existed yet the entire camp of the Levites, and not only the immediate area of the altar served as such a place of refuge.

וכי יזיד איש.. להרגו בערמה, If someone plans devious murder, etc. Mechilta concentrates on the word למות at the end of the verse and understands it as excluding "bringing him to trial, inflicting corporal punishment, or exile." This is the reason that Yoav (David's general) who had taken refuge in the Temple holding on to the altar was dragged away and executed. While it is true that Yoav was executed, this was because he was rebellious and not because he had murdered Avner or Amassa (compare Sanhedrin 49). He had fled before he could be brought to trial. The Talmud in Makkot 12 claims that Yoav's error in thinking that the altar could save his life was that at that time the altar was still a temporary structure, Solomon's Temple not having been built yet.

וכי יזיד איש על רעהו להרגו, “and if a man shall act intentionally against his fellow to kill him,” the meaning of the word להרגו, is והרגו, i.e. “he has carried out his intention and killed the person he intended to kill.” The Torah had to add the words בערמה, “with guile,” in connection with the legislation involving murder and its penalty as nearly every murderer makes an elaborate attempt to conceal the fact that he killed intentionally. In other words, a murder almost by definition, engages in ערמה, guile, deceit. Not only that, his sin is one that was inspired by the original serpent who wanted to make man guilty of death. The Torah had described the principal characteristic of that serpent as being that it was the “most ערום,” the most crafty of all the living beasts (Genesis 3,1). Murder then is a sin directly attributable to the influence of the serpent. According to ancient sources, the serpent had mated with Chavah and its seed had produced Kayin, the first murderer. (see author’s commentary on Genesis 5,2; Ed.) This is also why the sages (Sotah 21) call anyone who engages in sin after having misrepresented his intentions a רשע רע, “an evil sinner,” (as if a sinner were not evil by definition already). The attribute רע which the sages appended to the description רשע is based on Isaiah 3,11 אוי לרשע רע, “woe to the wicked sinner.” Such a sinner derives his strength from the celestial sphere Mars, which itself is described as רע, evil, as wars and murder usually take place under its aegis. (I have explained this in detail on Exodus 10,10). The prophet Jeremiah 1,14, when saying that “disaster shall break loose from the north upon all the inhabitants of earth,” also refers to the planet Mars. This planet was also referred to as רעה, by Pharaoh in Exodus 10,10.

The Torah therefore says: “If he plots.” You might ask: Since liability for the death penalty requires testimony and prior warning, how could killing accidentally ever be liable for the death penalty? And perforce, an accident was not prewarned. For if it was, it would not be accidental! The answer is: We are dealing with [a killer who is] a learned person and needs no warning [since he surely knows the punishment — were he to act intentionally]. You might ask: Why do we need our verse to exclude an unintentional killer [from the death penalty]? It is written (v. 13) that when “he did not lie in wait,” the punishment is exile, not death. (Re’m) The answer is: We are dealing with an unintentional killing that was close to being intentional. For example, he intended to kill one person and killed another. In such a case, exile does not atone for him, since he acted negligently, [therefore we need this verse to exclude this case from the death penalty].

V. 14. וכי יוד איש וגו׳ ist das vollendete מזיד (siehe unten V. 18). Zwischen ihm und dem im vorhergehenden Vers mit גלות belegten שוגג liegt das קרוב למזיד, die strafbare Unvorsichtigkeit, bei welcher nur die ערמה, die Absicht fehlt, und die daher weder die gerichtliche Todesstrafe zu erleiden hat, noch mit גלות gesühnt werden kann.

מעם מזבחי, even when the murderer has taken refuge near My altar; all the more so when he escaped to one of these cities.

מעם מזבחי תקחנו למות THOU SHALT TAKE HIM FROM MY ALTAR, THAT HE MAY DIE — even if he is a priest and stands at the altar intending to officiate thou shalt take him away that he die (cf. Mekhilta d'Rabbi Yishmael 21:14:4; Yoma 85a).

תקחנו למות, as in Jeremiah 7,11 “do you consider My house to be a den of thieves?

I have noted that Maimonides writes in chapter 5,12-14 of his Hilchot Rotzeach that the altar serves as a refuge for unintentional killers as far as protection against an avenger who is a member of the victim's family is concerned. It does not act as an alternative to such a killer having to go into exile. Clearly, Maimonides had not seen the Baraitha which we quoted above according to which the word למות excludes exile, etc. The Baraitha's whole point is that if someone tries to save himself in the Holy Temple by holding on to the altar he can be dragged out only in order to be executed and not in order to be confined in a city of refuge. While it is true that one could offer a forced explanation that the words in the Baraitha ולא לגלות mean that that if someone is guilty of confinement in the city of refuge the family's avenger has no right to kill such a person, this is extremely forced seeing it contains no new element. We know this already. Besides, the words in the Baraitha which appear immediately before this comment about לא לגלות contradict such an explanation. The Baraitha had said: "not to have corporal punishment administered to him nor to be brought to trial." I have an even greater difficulty with the words of the author of Mishneh Lamelech who wonders why Maimonides makes a distinction between intentional and unintentional killers seeking refuge at the altar, whereas he makes no such difference at all. The latter statement is incomprehensible even if we did not have a Baraitha at all. We have no authority to rule that the altar fails to act as refuge except in a situation specifically excluded by the Torah.

מעם מזבחי וגו׳ Der jüdische Altar gewährt dem Verbrecher keinen Schutz. Es. sind nicht etwa zwei sich gegenseitig kontrollierende, mildernde und beschränkende Prinzipien, wie etwa Kirche und Staat, Gnade und Recht etc. etc.; unmittelbar neben dem "schwertfeindlichen" Altar war die oberste Stätte des "Rechts". Es ist ein und dasselbe Prinzip, das am Altare gepflegt und vor dem Sanhedrin zur Verwirklichung kam. Der ganze Begriff des Begnadigungsrechts fehlt im jüdischen Staatskodex. Nicht des Menschen, Gottes ist das Recht und das Gericht. Wenn das genau präzisierende, der Menschenwillkür keinen Spielraum lassende Gottesrecht den Tod über den Verbrecher verhängt, dann ist die Vollziehung dieses Urteils nicht eine etwa durch Rücksichten zu mildernde Härte, sie ist selbst rücksichtsvolle Sühne, Sühne der Gesamtheit, Sühne des Bodens, Sühne des Verbrechers, ganz so Sühne wie das Opfer, das auf dem Altar vermittelt wird. Und stände der Priester an dem Altare und wäre der einzige Priester, das Opfer zu vollbringen, und es trifft ihn die Anklage des Mordes: von dem Altare weg hast du ihn vor Gericht zu bringen, dem Recht zu genügen.