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סְמִיכַת זְקֵנִים וַעֲרִיפַת עֶגְלָה, בִּשְׁלשָׁה, דִּבְרֵי רַבִּי שִׁמְעוֹן. וְרַבִּי יְהוּדָה אוֹמֵר, בַּחֲמִשָּׁה. הַחֲלִיצָה וְהַמֵּאוּנִין, בִּשְׁלשָׁה. נֶטַע רְבָעִי וּמַעֲשֵׂר שֵׁנִי שֶׁאֵין דָּמָיו יְדוּעִין, בִּשְׁלשָׁה. הַהֶקְדֵּשׁוֹת, בִּשְׁלשָׁה. הָעֲרָכִין הַמִּטַּלְטְלִין, בִּשְׁלשָׁה. רַבִּי יְהוּדָה אוֹמֵר, אֶחָד מֵהֶן כֹּהֵן. וְהַקַּרְקָעוֹת, תִּשְׁעָה וְכֹהֵן. וְאָדָם, כַּיּוֹצֵא בָהֶן:
Designation by Elders and the Decapitation of the Calf are done before [a Bet Din of] three, according to Rabbi Shim'on; Rabbi Yehudah is of the opinion [that the number is] five. Ĥalitzah and Refusal [must be done before a Bet Din of] three. Redemption of Neta Reva'i and of a second tithe which is of unknown magnitude [must be done before] three. Redemption of Donations to the Bet Mikdash [must be done before] three. Evaluation of chattels [must be done before] three; Rabbi Yehudah says that one of them must be a priest. [Evaluation of] real estate [must be done before a Bet Din of] nine with a priest added. [Evaluation of] a human being – similarly.
8:
One of the most basic concepts underlying Biblical law is the concept that murder pollutes. It not only pollutes the person committing the heinous crime, but it also pollutes the very ground upon which the murder took place, and the land becomes polluted. After the very first murder, the murderer was told that "Your brother's blood screams at Me from the ground … [which] opened its mouth to receive your brother's blood from your hands" [ Genesis 4:10-11]. It would seem that according to Biblical thought only by bringing the murderer to justice could the pollution be removed (and the criminal's sin would be atoned for by his death).
9:
The above remarks derive from a consideration of Biblical law, rather than the rabbinic interpretation thereof, but we should also note that Biblical law takes care to distinguish between murder and killing. The atonement for accidental homicide is very different from the atonement for murder [Exodus 21:12-14].
10:
However, a very real problem could exist when the murderer goes undiscovered and unpunished. Biblical law, geared up as it was to function without benefit of a communal force to prevent or detect crime, tried to solve the problem by making it worth the criminal's while to give himself up to justice. Every person had a near relative [termed a Go'el in Hebrew] whose sacred duty it was to assist me if I become indigent, to champion my cause when I am afflicted, and – most important of all – to avenge my death at someone else's hand. (As far as the people Israel are concerned as an ethnic and political unit these functions are performed by God as Israel's Go'el [Redeemer].) If the Go'el tracks down the murderer when he is still at large he (the Go'el) is required to exact justice on the spot and is completely free from all blood-guilt. However, if the suspect manages to escape to one of the six "cities of refuge" before the Go'el can lay hands on him, then he must be given a fair trial by law.
11:
But what happens when a Go'el fails to track down the murderer – either because of his own inability or because of the murderer's great ingenuity? The fact that the murderer goes unpunished is a problem that can be safely left to God; but the pollution of the ground upon which the murder was committed cannot be ignored. The Torah describes a ceremony to be performed under such circumstances:-
If a corpse be found … lying in the open and the identity of the assassin cannot be ascertained, then your elders and judges shall go and measure [the distance] to the townships nearest the corpse. The elders of the township that is nearest the corpse shall procure a calf … Then the elders of that township shall take the calf down to a fast-flowing stream … and decapitate it in the stream… All the elders of that township shall wash their hands of the blood of the decapitated calf and proclaim out loud: "It was not our hands that shed this blood and our eyes have not seen [who did it]. Grant atonement to your people Israel … and do not hold them accountable for the innocent blood [shed]." Thus shall atonement for the bloodshed be granted them… [Deuteronomy 21:1-9]
The seemingly superfluous mention of both elders and judges is the basis for the distinction in the Gemara [ Sanhedrin 14a] between two sets of officiants. The measurement of the distances in order to ascertain which township is to perform the ceremony of the decapitated calf is to be done by selected members of the Sanhedrin – three according to Rabbi Shim'on and five according to Rabbi Yehudah (whose view prevails). These are the 'judges' of the biblical verse. Subsequently, the elders of the identified township can perform the actual decapitation ceremony.
12:
The Torah places a duty on a surviving brother to marry his deceased brother's childless widow. Such a union is termed levirate marriage [Yibbum]. (Levir is the Latin word for a brother-in-law.) Just as the ceremony of divorce terminates an ordinary marriage, so the ceremony of Ĥalitzah terminates a levirate marriage. An ordinary marriage is created by the mutual consent of the two contracting parties; a levirate union automatically exists between the childless widow and her brother-in-law from the moment her husband dies [omedet uzekukah lo], and this automatic connection can only be terminated by Ĥalitzah. Thus we have an anomalous situation: the union of this woman and this man was absolutely forbidden during the lifetime of the woman's husband; it would still be forbidden if she had a child by her late husband; and unlike any other marital connection, this one is not created by mutual consent. In order to understand how such an anomalous situation has arisen we must try to make a historical reconstruction.
13:
There are three main texts in the Bible that must be considered as regards Yibbum (and its termination, Ĥalitzah): Genesis 38, Deuteronomy 25:5-10, and Ruth 4. According to modern Biblical criticism the order of historical development is Ruth, Genesis, Deuteronomy.
14:
According to the story as told in the Bible, Ruth was the childless widow of Maĥlon, who had ancestral holdings in the town of Bethlehem. Ruth is destitute and is befriended by a distant relative, Boaz, and very soon their friendship deepens into love. Boaz would like to play the role of Ruth's Go'el and extricate her from her plight by taking over her late husband's holdings (which would have gone to her sons if she had any by Maĥlon before his death, and such sons would have had to take care of their mother). A further duty of the Go'el would be to take Ruth in levirate marriage. However, Boaz recognizes that there is another man who has a prior claim (a closer relative of Maĥlon's). While this man is most anxious to take over the holdings he refuses to take Ruth in levirate marriage. Boaz gets this man to formally cede to him, Boaz, his rights as a Go'el. It is very important that we quote the details of the transaction that now takes place:-
In earlier times any exchange of property was formalized in Israel by one party taking off his shoe and giving it to the other party as evidence [of the transaction]. The Go'el said to Boaz, "You acquire [the property]" – and he took off his shoe. Boaz now said to the elders and all the bystanders, "You are witnesses today that I have acquired from Naomi everything that belonged to Elimelekh, Khilion and Maĥlon. Also, that I have taken as my wife Ruth the Moabitess, the wife [i.e. widow] of Maĥlon, in order to establish the deceased's rights over his property, and so that the deceased's title shall not be cut off from his brethren and locality. You are witnesses [to all this] this day." [Ruth 4:7-10]
We should note here three salient points: the duty of acting as Go'el did not devolve on one sole relative, but there was a kind of "line of succession", and if the first in line did not fulfill his duty it could [should?] be transferred to the next in line. Secondly, Yibbum was an integral part of this economic process. Thirdly, the removal of the shoe was a testamentary act to formalize a business transaction (rather like a handshake nowadays, or a formal signature on a contract).
15:
Before we move on to the next text, we should perhaps clarify the reason for all this activity. In an agricultural economy a person's most precious possession was his land: without land a person was absolutely destitute. After one's death the holdings went to the next of kin, who also took over responsibility for the upkeep of the deceased's dependents. Since the next of kin was usually a son, this just meant that the son would take care of his widowed mother. (That the woman herself should take over the property was unthinkable, because she might then marry again, and if she married someone who was not of the same tribe as her late husband and had children by this second husband, the holding would eventually leave the possession of the tribe.) Thus originally, the institution of levirate marriage was not only a measure of kindness for a woman who would otherwise be destitute, but even more so was it an economic transaction.
To be continued.
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