Defining the Ambiguous, the Unknown, and the Dangerous. The Significance of the Ritual Process in Deuteronomy 21:1–9
Pages 209 - 221
1 The difficulty of this process has been noted by numerous scholars. See David P. Wright, “Deuteronomy 21:1–9 as a Rite of Elimination,” in Catholic Biblical Quarterly 49/3 (1987), 387–403, who provides a substantial bibliography concerning the passage. For a more recent and exhaustive study on this difficult passage, see Jans Deitrich, Kollective Schuld und Haftung: Religious-und rechtsgeschichtliche Studien zum Sünderkuhritus des Deuteronomiums und zu verwandten Texten, Orientalische Religionen in Der Antike 4 (Mohr Siebek, 2010).
2 For more on the redactional history see Paul E. Dion, “The Greek Version of Deut 21:1–9 and its Variants: A Record of Early Exegesis,” in De Septuaginta (1984), 151–60; also Ziony Zevit, “The ˁEGLÂ Ritual of Deuteronomy 21:1–9,” in Journal of Biblical Studies 95/3 (1976), 377–90, who suggests three stages of redaction.
3 Dietrich, Kollective Schuld, 227: “Diese Gefährdungssituation — die nicht auf einen Fluch enggeführt werden kann — enthält keine konkrete Auskunft über den Gehalt der Bedrohung. Sie bleibt unbestimmt könnte aber im Hinblick auf die biblischen und syrischen Parallelen (Aqhat-Epos; Gen 4,1–16 und 2 Sam 21) und im Hinblick auf die bäuerliche „Agrarsemantik‟ von Dtn 21,3b–4a auf Dürre und Hungersnot hinweisen.”
4 “You shall not pollute the land in which you live because blood pollutes the land and to the land there is no atoning the blood which was shed in it except in the blood of the one who shed it.”
5 This perhaps reflects the common biblical idea that blood is the purview of deity (Lev. 3:17; 7:26–27; esp. 17:10–14). Thus wrongful use of blood, in this case dām nāqî, results in cosmic, and therefore divine, interaction.
6 This study is not the first to note the affinity of these two passages. See Calum M. Carmichael, The Laws of Deuteronomy (Ithaca and London: Cornell University Press, 1974), 136: “There is an obvious affinity between this law in xxi and the laws in xix on homicide.” As to a possible reason for the separation of the two in the text, Carmichael continues: “In the drafting of a law code, it might be expected to appear after the homicide laws in xix. The reasons why other laws intervene have been discussed. D's method of instruction is digresseive. Where a subject under consideration is related to a historical background, and where matters of interest to D arise in that history, D treats the historical matters before returning to the original subject. A process like this is observable for the homicide law in xix. The untraced homicide law in xxi returns to the subject of homicide, which in xix. 1ff. initiated an excursion into matters other than homicide. In addition to the common factor of homicide, the elders have a similar role in both laws. …The murder takes places in the open country, not in a city. It is possible that this situation is chosen for the law because the law originally resulted from just such a case. However, given the peculiar character of other D laws and of D's method, another analysis is possible. Following the homicide law in xix is the law on the boundary mark. The untraced homicide law in xxi describes how the distance to the cities in the proximity of the slain man is to be measured. There is, therefore, a formal similarity between the laws on the untraced homicide and the boundary mark in that a standard of measurement respecting territorial limits is to be reckoned with in each case.” I would add that dām nāqî also reflects the widespread concern for legal justice found throughout the biblical legal texts, and in particular reflects concern over partiality in legal proceedings and thus may be read as reflecting the same principles as legal instruction concerning false witnesses, the bribing of judges, etc. In light of this legalistic element, the placement of the city of refuge legislation next to legislation concerning the law of witnesses found in Deuteronomy 19:15 and false witnessing (Deuteronomy 19:16–20) suggests continuity of legal reasoning. In a similar manner, as we shall see, the ritual process in Deuteronomy 21:1–10 is concerned with the defining of space, thus it is situated among legal traditions also concerned with newly acquired spaces (from the result of warfare) that have not been completely integrated into Israelite space.
7 TDOT 2, 351: “goˀēMl is used of a man's nearest relative at a particular time. In Lev. 25:48f it refers to a mans's brother, uncle, cousin, or some other kinsman who is responsible for standing up for him and maintaining his rights. Behind this usage stand the strong feeling of tribal solidarity: not only the members of the clan, but also their possessions, form and organic unity, and every disruption of this unity is regarded as intolerable, and as something which must be restored or repaired.” See also Pamela Barmash, Homicide in the Biblical World (Cambridge: Cambridge University Press, 2005), 98: “Restoration constitutes the role of another figure in legal actions, the ,גאל, a close male relative who is obligated to reclaim land sold by a member of his extended family (Lev 25:25; Jer 32:7-8; Ruth 3:12; 4:3–4) and to redeem a relative sold into slavery (Lev 25:47–49). He acts on behalf of a powerless person in the restoration of lost property. In the same manner, the victim's blood is lost and needs to be recovered. The function of is to undo the unlawful spilling his relative's blood by spilling the killer's blood.”
8 Barmash, Homicide, 85: “It is not the sacredness of a Levitic city that determines its status as a refuge but rather its geographic distribution.”
9 Ibid, 102-3: “Generally a reprieve is granted at the accession of a leader, not his death; that a high priest's death should be the occasion of an amnesty is puzzling. (103) The answer lies in the status of the high priest. Many scholars have recognized the expiatory aspect of his death. Only the high priest has the ability to purge guilt for others… The death of the high priest, whether soon upon the confinement of the accidental slayer or after many years, would serve as expiation for the killing. An animal sacrifice would not be sufficient. Only a human death can undo the killing of a human being, even if it is accidental. The accidental killer must remain in the city of refuge until the offense he has committed has been purged by the death of the high priest, who alone expiate the guilt of others. The stay of the accidental killer in the city of refuge has a cultic valence.”
10 See Turner, The Forest of Symbols: Aspects of Ndembu Ritual (Ithaca: Cornell University Press, 1967), who described the liminal state as a “realm of pure possibility” (97).
11 Concern for potential scenarios that have not yet happened may be a part of some cultic events. Milgrom, Wright and Gane all argue that the defiling nature of the red cow ashes, described in Numbers 19:2–10, before they are ever used in impurity expunging reflects an anticipation of their eventual function. See Wright, Heifer, Red, ABD III, 115–166, also Roy E. Gane, Cult and Character: Purification Offerings, Day of Atonement, and Theodicy (Winona Lake: Eisenbrauns, 2005): “When the contact occurs and the ash water absorbs the impurity, it is as though this pollution is transmitted back through time and space to the burning of the cow so that those involved in the process, including the officiating and supervising priest, become impure.” Gane goes on to say;, “it is a unique instance of the pars pro toto principle in tha the cow's unity transcends not only a gap in space but also in time so that the burning sacrifice bears future impurity, as if treatment of persons with its ashes has already occurred…it is as though corpse contamination travels back in time and space through the ashes of the cow to its incineration, where the impurity goes up in smoke…like automatic defilement, the pars pro toto dynamic transcends constraints of time and space operating in the material world. Remember that we are in the world of ritual” (190–1). Contra the potentiality argument, see Nicole J. Ruane, Sacrifice and Gender in Biblical Law (New York: Cambridge University Press, 2013), 124–6.
12 Richard D. Nelson, Deuteronomy: A commentary, Old Testament Library (Louisville, London: Westminster John Knox Press, 2004): “Priests appear, supposedly because of their vocation to minister, bless and judge (v. 5), but they do not actually perform any of those tasks. Perhaps priests are needed to hear and administer the oath of innocence spoken by the elders. These priests might also solemnly declare the effectiveness of the atonement at the close of the ceremony” (256).
13 It is even possible that the death was completely justified, meaning that the individual may have been guilty of murder and thus been exacted the consequences by a go?ēl. The key here is that there is just no way to tell.
14 See TDOT 14, 37–45, where locations designated as śādeh are best characterized by their openness and may include both developed and undeveloped property, that lay outside of the city proper. This may include both territories immediately adjacent to the city, thus associated with the particular city, as well the territory that lay outside the city's jurisdiction, and thus be understood as outside the cosmic order and therefore dangerous.
15 The uncertainty arises from 35:4, which states that the length of the migrāš is 1000 cubits, and verse 5, which states that the length is 2000 cubits. Scholarship is undecided as to how the two verses are meant to be harmonized.
16 That the corpse is assumed to be unrecognizable may be understood by the lack of family representation in any of the legislation, unlike the city of refuge legislation which notes the role of the family representative (the go'ël).
17 Don C. Benjamin, Deuteronomy and City Life: A Form Criticism of Texts with the Word CITY (‘ir) in Deuteronomy 4:41-26:19 (Lanham, MD: University Press of America, 1983), 206: “the intention of Dt 21:109 is to transfer the unknown murderer from the jurisdiction of the city nearest the scene of the crime to Yahweh. By the ritual in Dt 21:2-6 and the formula in Dt 21:7-8, the city acknowledges that none of the sacral or judicial remedies by which it ordinarily keeps the peace is adequate to compensate the family or the city of the victim for its loss. Therefore, the city releases the unknown murderer from its jurisdiction, and appeals to Yahweh to intervene so that harmony may be restored. The ordinary remedies for murder are presented in Dt 19:1-13 which is also a city text.”
18 See Dietrich, Kollektive Schuld, who also views the śādeh through the lens of uncontrolled, and therefore dangerous, space: “Das Feld bietet sich nämlich nicht nur als Hinterhalt und Kampfplatz an, sondern auch als Ort heimlichen Rechtsbruchs. Hier kann der Räuber sein Unwesen treiben, hier erschlägt einer seinen Bruder in der Annahme, daß kein Zeuge vorhanden (Gen 4,8); kein Retter da ist (2 Sam 14,6). Hier ver-gewaltigt der Mann die Frau, so daß ihr Hilfeschrei wirkungslos verklingt (Dtn 22,25-27), und hierher wirft Joab den von ihm heimtlickisch ermordeten Amasa, damit das Volk den Leichnam nicht sieht (2 Sam 20,12f)” (187).
19 While Wright notes that there is no explicit mention of blood manipulation, he assumes that ˁarāp included some form of bloodshedding (see Wright, “Deuteronomy 21”, 393–4).
20 Most commentators believe this declaration to represent a late stage of redaction. Zevit suggests that the declaration ultimately lessens the efficacy of the original rite, but the fact that the process still includes the ritual slaughter suggests that the late redaction does not distinguish the two as separate components, but that the two components are crucial to the efficacy of the process (see Zevit, “The EGLA Ritual”, 390).
21 In his study, Wright five primary theories, as well as the history of their adherents, as to the purpose of the ritual process: 1) as a sacrifice, 2) as a re-enactment of the murder, 3) a symbolic act representing the elder's penalty if the act is not resolved, 4) a fixing of impurity (see Wright, “Deuteronomy 21”, 390–4). Wright himself accepts the second option as the correct one, as does Zevit. Dietrich understands the process as a form of scapegoating by which the community removes itself from the act itself.
22 Nelson, Deuteronomy, 257: Although the “nearest” city (v.3) might have been thought of as the most likely residence of the perpetrator, the real issue is an objective, impersonal bloodguilt that would endanger the closest town and for which that town would be considered the most responsible. What is untouched and pristine is advantageous in ritual (cf. the unworked cows and new cart of 1 Sam 6:7; cf. 2 Sam 6:3); the red heifer, Num 19:2; firstlings, Deut 15:19), and this special quality is required of both cow and wadi. The absence of cultivation also indicates that this potentially dangerous ritual operation can take place at a safe distance from human residence.”
23 Geoffrey R. Boyle, “Standing on the Brink: eschatological intention in Deuteronomy,” in Concordia Theological Quarterly 1/2/76 (2012), 19–35: “The Jordan appears by name twenty-six times in Deuteronomy. Only once does it appear within the ‘laws' (Deut 12:10); the rest occur within the sermons at the beginning and end. The author uses the Jordan River in two ways: first, as a simple geographical reference point (Deut 1:1, 5; 3:8, 17). Second, it serves as the (theological?) boundary to the land (2:29; 3:20, 25, 27). The two are not mutually exclusive” (p. 26). More recently the Jordan-as-liminal space was addressed by Linzie Treadway at the 2014 Society of Biblical Literature Annual Meeting, San Diego, Ritual in the Biblical World section, “Crossing and Uncrossing the Jordan: Rivers as Limi-nal Space in Israel's Collective Memory.”
24 TDOT 11, 366–71: “It is debated whether the verb means ‘cut off the head’ or ‘break the neck.’ Both interpretations are represented in early exegesis” (369).
25 Don C. Benjamin, Deuteronomy and City Life: A Form Criticism of Texts with the Word CITY (‘ir) in Deuteronomy 4:41–26:19 (Lanham, MD: University Press of America, 1983), 208: In Dt 21:1–9, the elders of the city, an in later developments, the judges (dt 21:2) and the priests, the sons of Levi (Dt 21:5), as well, are no fulfilling the responsibilities of avenger (go'el) to the victim, but testifying under penalty of death that they cannot fulfill those responsibilities.
26 Significantly, even if ˁarāp does include bloodshedding (as per Wright), it still does not change the ritual force of the declaration. As the context demonstrates, if there is any spilled blood from the bovine, it is overtly, explicitly, not recognized (“our hands have not shed this blood”). Thus the ritual intent is not dependent on any blood being spilled. If it is not, then the declaration reflects the reality, if blood is in fact spilled then it is explicitly not recognized as spilled blood.
27 See Psalm 26:6 in which handwashing does not appear to be cleansing, but an act associated with innocence. See also Benjamin, Deuteronomy and City Life, 208: “the oath is taken at a site clearly beyond the jurisdiction of any of the cities summoned in Dt 21:1′ to indicate they have no ability to prosecute. The site requires running water so that the elders of the city can wash their hands as a gesture of release, on the grounds that they lack testimony on which to prosecute. The site requires running water to that the elders of the city can wash their hands as a gesture of release, on the grounds that they lack testimony on which to prosecute. If they are guilty of perjury, they will be executed like the heifer whose neck is then broken.”
28 TDOT 9:205–6, 209. Schwienhorst believes that the term in association with rîb here refers to the type of legal cases seen by the priests, but the context suggests consequences to legal proceedings rather than type of legal proceedings. The term nāgaˁ is found in legal texts often denoting the concept of harming or afflicting another. In this case, since it represents God's ability to assign consequences, ‘penalties' seems to reflect more accurately the intent. As for the priest's responsibilities, see Richard D. Nelson, Deuteronomy: A commentary, Old Testament Library (Louisville, London: Westminster John Knox Press, 2004) 256: Priests appear, supposedly because of their vocation to minister, bless and judge (v. 5), but they do not actually perform any of those tasks. Perhaps priests are needed to hear and administer the oath of innocence spoken by the elders. These priests might also solemnly declare the effectiveness of the atonement at the close of the ceremony.” Similarly, Wright, “Deuteronomy 21,” 391: “It seems the editor wanted to indicate by the position that, though the rite has cultic authorization by virtue of the presence of the priests, it is not to be considered a sacrifice because the priest has nothing to do with the preparation or performance of the rite.” While they may not have an active participation, as noted above, they clearly have a participatory role as witnesses.
29 The insistence on divine action is what allows one to not categorize this process as “magic”. While the differentiation between legitimate, Yahwistic praxis and the implementation of magic has been the subject of a number of studies, Shawna Dolansky sums up the consensus (see Now You See It, Now You Don't: Biblical Perspectives on the Relationship between Magic and Religion [Winona Lake, IN: Eisenbrauns, 2008]): “the difference between magic and religion, outside of the social forces that act on both and seek to separate the two, is largely a matter of who controls supernatural events,” (35).