The Lex Talionis
One of the most widespread legal principles in the ancient world was the lex [or “ius”] talionis, the law [or “right”] of retribution. A person who, for example, injured someone was to be punished by suffering the same injury, and a murderer was to be punished by being killed.
This principle was enshrined not only in Roman law, but in the Bible as well: “He who sheds the blood of a man, by a man shall his blood be shed” (Gen 9:6). Similarly, “A man who kills another shall be put to death… And if a man injures his fellow, as he has done, so shall it be done to him: fracture for a fracture, eye for an eye, tooth for a tooth: the injury that he inflicted on someone will be inflicted to him” (Lev 24:17-20).
In the ancient Near East, this principle of retaliatory justice was sometimes carried out without regard to the particular circumstances, and sometimes it apparently could be inflicted on someone other than the wrongdoer. A biblical example is the case of Lamech, one of Cain’s descendants; he is quoted as saying, “I killed a man to avenge a wound, and a boy for a bruise.” (Actually, I believe both verbs here are intended in a general or conditional sense: “I would kill,” or even “I regularly kill.” But this grammatical nuance is in any case irrelevant to the overall point here.)
Lamech is boasting that the lex talionis isn’t good enough for him: he says he would kill someone as revenge for a mere injury, in fact, he would kill a boy just to avenge a bruise (Gen 4:23). There is no indication that either of these victims is actually the one who injures Lamech—and the thought of Lamech saying that a mere boy had hurt him doesn’t work well with this rough-and-tough boast.
Rather, what Lamech means—and he certainly wasn’t the only one in those times who thought this way—is: “If you hurt me and/or one of mine, your side is going pay for it disproportionately—and it really doesn’t matter to me who I end up killing.” In fact, Lamech continues, if my ancestor Cain was known for his unfair, sevenfold vengeance (Gen 4:15), well, my revenge will be even more lopsided, seventy-sevenfold (Gen 4:24).
The biblical concept of the “blood avenger” in this week’s reading (Num 35:19 etc.) also reflects an ancient concept redolent of the lex talionis: the relative of a person whose blood has been shed must avenge the blood by killing the killer. The blood itself calls out, as it were, for justice (Cf. Gen 4:10).
It is against this background that we can assess the true significance of a section of this week’s Torah reading. Here, the Torah distinguishes between murder (someone kills his fellow with malice aforethought), and a simple mishap, whereby the person is killed accidentally and with no prior intent.
Naturally, it was often impossible to establish with certainty what had occurred without a full judicial inquiry. But how could such an inquiry be undertaken in a world in which the swift justice mandated by the lex talionis was so deeply engrained? How could one stop a blood avenger from doing his work even as the blood itself was calling out for revenge?
That is why this week’s Torah reading mandates the designation of “cities of refuge” in various parts of the land of Israel. When someone died suddenly and under unusual circumstances, anyone who was in danger of being accused of murdering him could escape to the nearest city of refuge (Num 35:9). Those in charge of guarding the city would prevent the blood avenger from entering the city until the judicial inquiry had been completed.
Interestingly, if, at the conclusion of the inquiry, the accused was found to be innocent, he was nevertheless returned to the city of refuge, there to wait until the death of the reigning High Priest. This waiting period may seem unwarranted by current standards: if the man is innocent, let him go wherever he wants!
But in practice, the wait would usually have been a relatively short one, and, moreover, altogether necessary. The principle of blood revenge was so widespread and well established that some such cooling off period was no doubt necessary to allow the victim’s family to come to terms with their loss. If, on the other hand, the accused was found guilty, he was no longer given any refuge but was punished according to the Torah’s laws.