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The Unintentional Killer: Midrashic Layers in the Second Chapter of Mishnah Makkot*

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The Unintentional Killer: Midrashic Layers in the Second Chapter of Mishnah Makkot* JOURNAL OF JEWISH STUDIES, VOL. LXI, NO. 1, SPRING 2010 The Unintentional Killer: Midrashic Layers in the Second Chapter of Mishnah Makkot * MICHAL BAR-ASHER SIEGAL Yale University Abstract Mishnah Makkoth, or to be exact the last part of tractate Sanhedrin, is imbued with midrashic materials. As previously noted in scholarly re- search the Midrashic sources can be revealed through study of its parallels in the legal Midrashim. This paper will define the reciprocality between the second chapter of Mishnah Makot and Sifre Deuteronomy dealing with Deuteronomy verses on the unintentional killer. I will illustrate both overt midrashim quoted in the Mishnah, usually with the underlying verse and the term øîàðù, shene’emar, and covert midrashim. In this last category I address different statements found in the Mishnah whose origins can be explained as emanating from an early midrashic interpre- tation of the biblical verses, even though such a source is not explicitly mentioned in the Mishnah itself. The comparison raises again the ques- tion of the various sources of Mishnah Sanhedrin-Makkoth in particular and of Rabbi’s Mishnah in general. ifre Deuteronomy on the passage dealing with the unintentional killer S (Deut. 19:1–13), as in other places, often cites our Mishnah, the Mish- nah of Rabbi Judah the Patriarch. At the same time, m.Makkoth, or to be exact the last part of tractate Sanhedrin,1 is imbued with midrashic materials to a greater extent than most other mishnaic tractates. Midrashic passages in tractate Sanhedrin, as J. N. Epstein concluded, ‘originated mostly from the * Parts of this paper are based on talks given at the J. N. Epstein Prize symposium, in the Talmud Department, Hebrew University (January 2002), and the 39th Annual Conference of the Association for Jewish Studies, in Toronto, Canada (December 2007). I am thankful to Profes- sor Menachem Kahana for his many helpful remarks, as well as to Professors Christine Hayes and Steven Fraade for their thorough reading and useful comments on previous versions of this article. English translations of the rabbinic sources are taken (with adjustments according to manuscripts’ versions) from The Mishnah. Translated from the Hebrew, with introduction and brief explanatory notes by Herbert Danby (Oxford / New York, NY: Oxford University Press, 1933); Sifre: a Tannaitic commentary on the book of Deuteronomy. Translated from the Hebrew with introduction and notes by Reuven Hammer (New Haven: Yale University Press, 1986); The Tosefta. Translated from the Hebrew by Jacob Neusner (Hoboken, N.J.: Ktav, 1977–1986); Trac- tate Makkot. Translated by Jacob Neusner (Atlanta: Scholars Press, c.1991). 1 The two tractates used to be one, at least in Palestinian traditions, as it still appears in Mishnah manuscripts such as ms. Kaufmann. See J. N. Epstein, Mevo ot le-sifrut ha-Tana im: Mishnah, Tosefta u-midreshe-halakhah, Jerusalem / Tel Aviv, 1957 (in Hebrew), p. 417. THE UNINTENTIONAL KILLER 31 school of Rabbi Akiva’.2 The midrashic origins of m.Sanhedrin can be re- vealed through a comparative study between the Mishnah and the halakhic Midrashim. The relevance of such a study has been shown in the works of Menachem Kahana, which compare Sifre Zuta Deut. and m.Sanhedrin 3:1;3 Steven Fraade’s work on m.Sanhedrin 2 and Sifre Deut. on ‘the Torah of the king’;4 and the work of Aaron Shemesh showing the close connection between m.Makkoth and Scriptures.5 This paper similarly examines the mutual relations between the second chapter of m.Makkoth and Sifre Deuteronomy on the accidental killer. I shall deal with ‘overt Midrash’ (éåìâ ùøãî) that includes a quoted verse and intro- duces it with the formula ‘as it is said’, øîàðù. I shall also examine ‘concealed Midrash’ (éåîñ ùøãî), i.e. halakhot in the Mishnah whose sources can be explained as a midrash on the biblical verses, though such a midrashic con- nection does not explicitly appear in the Mishnah itself. This examination of the relationship between the Mishnah and the Sifre offers a fresh set of ex- amples of the midrashic nature of this chapter and of tractate Makkoth in general. The results of this survey, in turn, offer an additional perspective on the long-standing deliberation of the nature of the Mishnah–Midrash rela- tionship. 1. m.Makkot 2:6 An example of a halakha that relies explicitly on exegesis of biblical verses can be found in m.Makkoth 2:6: øéòì ïéîã÷î ãéæî ãçàå ââåù ãçà äìéçúë øîåà äãåäé øá äñåé §ø åäåâøä äúéî áééçúéðùî ¬íùî ïúåà ïéàéáîå ïéçìåù ïéã úéáå èì÷î åúåà ïéøéæçî úåìâ áééçúéðù éîå ¬åäåøèô äúéî áééçúéð àìù éîå ¬äì øáãîá© §îåâå åèì÷î øéò ìà äãòä åúà åáéùäå §ðù åîå÷îì ®¨äë Rabbi Yose Bar Yehuda says, ‘To start with, both the intentional killer and the unintentional killer hasten to the city of refuge, and the court sends and fetches them from there. Whoever is deemed worthy of being killed is killed and whoever is not deemed worthy of being killed is let go, and whoever is deemed worthy of exile is brought back to the city of refuge as it is said “and the assembly sends him back to the city of refuge to which he fled”.’ (Num. 35:25) In this example, there is a list of halakhot in which only the last is pro- vided with biblical support. However the same Mishnah is quoted in Sifre 2 J. N. Epstein, Mevo ot le-sifrut ha-Tana im: Mishnah, Tosefta u-midreshe-halakhah, p. 418. 3 M. Kahana, Sifre Zut.a Devarim: Muva ot mi-Midrash Tana iH. adash, Jerusalem, 2002 (in Hebrew), pp. 235–236. 4 S. D. Fraade, ‘ “The Torah of the King” (Deut. 17:14–20) in the Temple Scroll and Early Rabbinic Law’, in The Dead Sea Scrolls as Background to Postbiblical Judaism and Early Chris- tianity: Papers from an International Conference at St Andrews in 2001, ed. James R. Davila, pp. 25–60 (Studies on the Texts of the Desert of Judah 46; Leiden: E. J. Brill, 2003). 5 A. Shemesh, Elo hen hagolin, MA thesis, Ramat Gan, 1988 (in Hebrew). 32 JOURNAL OF JEWISH STUDIES Deuteronomy, this time with biblical verses supporting each stage of the pro- cess: ïéá ââåùá ïéá ùôðä úà âøåää ®§åà äãåäé §øá éñåé §ø äéä ïëéî ïúåà ïéàéáîå ïéçìåù ïéã úéá ®èì÷îä éøòì ïéîã÷î ìëä ãéæéîá íéøáã© §åâå åç÷ìå åøéò éð÷æ åçìùå §ðù ¬åäåâøä äúéî áééçúðùî ®íùî çöøä úà äãòä åìéöäå §ðù ¬åäåøèô äúéî áééçúð àìù éî ®¨áé ¬èé §ðù ¬åîå÷îì åúåà ïéøéæçî úåìâ áééçúðù éî ®¨äë ¬äì øáãîá© §åâå ®¨íù© §åâå äîù ñð øùà åèì÷î øéò ìà äãòä åúåà åáéùäå From this, Rabbi Yose b. Rabbi Yehuda used to say: ‘The killer of a person, whether intentionally or unintentionally, all hasten to the cities of refuge. The court sends and fetches them from there. Whoever is deemed worthy of killing is killed as it is said: “the elders of his town shall send for him, bring him back from the city, and hand him over to the avenger of blood to die” (Deut. 19:12). Whoever is not deemed worthy of killing is let go as it is said: “The assembly must protect the one accused of murder from the avenger of blood” (Num. 35:25), and whoever is deemed worthy of exile is brought back to the city of refuge as it is said “and the assembly sends him back to the city of refuge to which he fled”.’ (Num. 35:25) The parallel Sifre, therefore, fleshes out the biblical origins of the mishnaic statements. According to this, the laws described in the Mishnah are actually derived from two biblical texts—Deuteronomy 19 and Numbers 35—and are not the rephrasing of a single biblical source. The Sifre’s citation of this Mishnah is unique in that it is the only instance in the Sifre’s treatment of the unintentional killer in which a halakha derived from Deuteronomy appears side by side with halakhot derived from the book of Numbers. This goes against the usual practice of the Sifre in this section, in which the focus is solely on halakhot derived from Deuteronomy, while ignor- ing any additional halakhot on the same matter that are mentioned elsewhere in the Bible. It is possible that this exception was caused by the fact that here the Sifre is quoting a pre-existent Mishnah that had already combined the verses from Deuteronomy and Numbers to create a coherent juristic process, although without citing the verses themselves. 2. The axe and the wood, m.Makkot 2:1 In contrast to this last example in which a verse was explicitly mentioned in the Mishnah, the next example focuses on a mishnah that does not explicitly quote a biblical verse. Instead, the wording of the verse can be detected in the phrasing of the mishnaic halakha. Deuteronomy 19:5 reads: õòä úøëì ïæøâá åãé äçãðå íéöò áèçì øòéá åäòø úà àáé øÖàå íéøòä úçà ìà ñåðé àåä úîå åäòø úà àöîå õòä ïî ìæøáä ìÖðå ®éçå äìàä A man may go into the forest with his neighbour to cut wood, and as he swings his axe to fell a tree, the metal may fly off from the wood and hit his neighbour and THE UNINTENTIONAL KILLER 33 kill him. That man may flee to one of these cities and save his life. The question that arises from this verse is well-known. What is the situation described by the words: ‘the metal may fly off from the wood and hit his neigh- bour and kill him’? Does ‘the wood’ refer to the wooden handle so that the metal axe-head flies off of the handle as the axe is swung, or does ‘the wood’ refer to the tree (as it does throughout the verse) so that the metal axe-head flies off the handle upon striking the tree? M.Makkoth (2:1) probably reflects this same interpretive question and its subsequent clarification: íéøîåà íéîëçå äìåâ åðéà øîåà éáø âøäå åúð÷éî ìæøáä èîùéð äìåâ åðéà íéøîåà íéîëçå äìåâ øîåà éáø òé÷áúîä õòä ïî »äìåâ If the metal slips/flies off from its handle, Rabbi says: ‘he does not go into exile’, and the sages say: ‘he does go into exile.’ From the wood that is being chopped, Rabbi says: ‘he goes into exile’ and the sages say: ‘he does not go into exile.’ The Mishnah advances two possible readings of the scenario described by the verse and attaches a dispute to each reading.6 Understanding ‘the wood’ as referring to the axe handle, the sages view the incident as an accidental homi- cide requiring flight to a city of refuge; but Rabbi disagrees.
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