Covenantal Accountability and Free Will

 

 

              “It is not with you alone that I am making this sworn covenant,   but with whoever is standing here with us today before the Lord our G-d, and with whoever is not here with us today” (Deuteronomy 29:13-14).

              “Life and death I have set before you, blessing and curse. And you shall choose life.” (Deuteronomy 30:19)

  

On his final day, Moshe gathers Am Yisrael for the purpose of renewing their Brit (Covenant) with G-d. The name of the parashah, “Nitzavin,” hints at the solemnity of the occasion. “Nitzav” means “standing” in Hebrew. However, as commentators like Rash”i and Sforno suggest, it means more than just “standing.” It carries the sense of standing firmly, uprightly, with presence, and resolve to honour this important milestone in Jewish history

Parashat Nitzavim includes some of the most fundamental principles of the Jewish faith. This essay will focus on two of them.

The first stresses collective accountability, as the words “whoever is not with us today,” in the first quote above (Deuteronomy 29:13-14) alludes to. The Torah, it tells us, applies to every Jew at all times and is binding on every Jew even those not born yet. All members of Am Yisrael are original covenant partners. In other words, Our Covenant with G-d is not just historical but eternal.

“The phrase, ‘whoever is not here,’ explains Lord Rabbi Sacks, “cannot refer to Yisraelites alive at the time who happened to be somewhere else……since the entire nation was assembled there. Moshe can only mean ‘generations not yet born’…..By agreeing to be G-d’s People,” concludes Sacks, “subject to G-d’s laws, our ancestors obligated us all.”

Midrash Tanchuma (Nitzavim 3) and Talmud (Shavuot 39a) interpret the phrase, which has been central in Jewish thought, “all Jewish souls, past, present, and future, were spiritually present.” 

Ramba”n (Nachmanides) goes even further and asserts that this phrase also includes gerim (further converts to Judaism). Even those who would one day join Yisrael were foreseen and included (proving that Torah’s reach is beyond biological descent).

Sforno highlights the  responsibility and solidarity facet of our Jewish faith suggesting that the covenant is binding on every individual because Yisrael functions as a community where all are responsible for one another.

What these verses establish is that Judaism is a timeless, transgenerational commitment.

The second paramount principle of the parashah that this article wishes to address is Free Will. It is reflected in the second verse above (Deuteronomy 30:19).  There, Moshe, in a stirring declaration, calls upon the People to “choose life,” a declaration that is often cited as the clearest statement of human Free Will.

It seems that at the heart of Parashat Nitzavim lies a profound tension between destiny and free will. It stems from the paradox it echoes. On the one hand, how can unborn generations be forced into a covenant that they never chose, if individuals truly have free will? On the other hand, if a nation as a whole is accountable for each member’s conduct, does that diminish the individual’s authority?

This tension did not escape Jewish thinkers and commentators who were trying to reconcile the two conflicting themes.

Ramba”n and Abrabanel teach us that just as any child is born into a family without choosing it, so too, every Jew is born into the Covenant. The Covenant in their view is a national identity contract which defines our Peoplehood. Ramba”m (Hilchot Teshuvah 5) stresses that though the Covenant is permanent, every human being is fully free to choose obedience or disobedience. How one lives in that Covenant is left to each person’s free choice.

Midrash (Shabbat 88a) contends that though the Covenant binds us objectively, every generation must subjectively re-embrace it by choice.

Modern Jewish thinkers also address this tension between the binding covenant and free choice in Nitzavim.

Rabbi Joseph B. Soloveitchik (1903-1993) distinguishes between Covenant of Fate (Brit Goral) which “coerced”  future generations into a Covenant of Fate since they were born into it and Covenant of Destiny (Brit Yi’ud) in which every individual must freely choose to live out the covenant of destiny (Kol Dodi Dofek...The Lonely Man of Faith).

In Covenant and Conversation on Nitzavim, Lord Rabbi Jonathan Sacks explains that Covenant is not tyranny but rather a partnership. G-d gives people freedom to choose how to respond, including the possibility of failure, exile and redemption. For Sacks, the phrase “choose life” demonstrates that while we inherit the Covenant, its fulfillment depends on moral freedom.

Rav Kook (1865-1935) asserts that the eternal Covenant means that every Jew, even if they reject it consciously, retains a spark of connection. The manner in which that spark of connection is expressed is left to the individual’s free will.

The lesson that Parashat Nitzavim teaches us is that the Covenant is inescapable as collective identity. Every Jew past, present or future is born into it. However, within that, it points out that every person retains absolute Free Will in how to live, respond, or rebel. The Covenant gives the framework, Free Will determines the journey.

Cities of Refuge

“You shall designate cities for yourselves; they shall be Cities of Refuge for you, and a murderer who killed a person unintentionally shall flee there” Bamidbar  (Numbers) 35:11

As Am Yisrael is about to enter the Promised Land, Moshe is instructed to designate six “cities of refuge,” three on each side of the Jordan river, to which anyone who accidentally kills a person can escape.  The purpose of such cities is to provide refuge, where the killer will be safe from being killed by a blood relative of the dead.

 

The vengeance of blood (or blood revenge) was a central concept in justice systems across the Ancient Near East. It refers to the right or duty of a family member to avenge the killing of a relative—usually through killing the murderer. This practice shaped legal codes, tribal customs, and religious thought in many ancient cultures. 

The Code of Hammurabi (18th century BCE), for instance, includes provisions for blood vengeance. In case someone kills another, the victim’s family could put that person to death. Retribution, in this Code, was based on lex talionis, “an eye for an eye.” Blood vengeance was also present in Hittite, Ugarit and Canaanite as well as in the ancient Hebrew laws.

However, as Lord Rabbi Sacks explains, in early societies, where blood vengeance was practiced, “there was a concern that people would take the law into their own hands,” which “would begin a cycle of vengeance and retaliation,” where, “one revenge-killing leading to another and another, until the community had been decimated.” 

In order to prevent unjust violence, it was, therefore, important to distinguish between murder, a deliberate killing and manslaughter, unintentional death. 

Over time, Ancient Near Eastern Societies, such as those mentioned above, moved toward a centralized legal system which distinguished between these two forms of killings. It gradually restricted blood vengeance as well as allowing kings and temples to assume more authority in criminal justice. Additionally, legal codes ( e.g.,Hammurabi, Mosaic law) attempted to channel vengeance through regulated procedures or sanctuary laws and permitted compensation in the form of monetary payment in place of blood revenge. 

While the notion of sanctuary or places of refuge which are one of the themes in this week’s Parasha, Masei, also existed in Mesopotamian societies, these were mostly confined to religious sites. The formalized, legalistic system of the Mosaic Cities of Refuge, though, is a distinct development. They did not have solely religious and legal importance; they also had moral and symbolic significance. 

Firstly, these cities did not only provide protection from vengeance, mostly for the accidental killer from the blood avenger who could seek retribution. They also prevented further bloodshed and more killings. 

Secondly, legally, the Mosaic concept provided due process. Although the main purpose of cities of refuge was to protect the accidental killer, in practice, murderers who killed intentionally went there as well (Talmud, Makkot 9b and 12a). Upon arriving in the City of Refuge, the court sent messengers to escort that person while, also, acting as his bodyguards and bring him in for a hearing. If the judges decreed that the murder was intentional, the verdict would be accordingly. However, if the judges ruled that his act of killing was unintentional, the messengers would accompany him back to the city of refuge for a mandatory stay. So long as the killers remained within the city limits, they were protected by law. They had to remain there until the death of the High Priest.

The mandatory stay in the City of Refuge is aimed at teaching a symbolic and spiritual lesson. The symbolic exile to a City of Refuge suggests a form of penance and moral reflection. It is aimed to tell us that even unintentional death is serious and requires atonement and rehabilitation. According to Ramba”n, it is a means to carry out Divine justice.Taking a life, he suggests, whether intentional or not, upsets the moral balance of the world.

The spirtual lesson relates to the revered status of the High Priest who represented the collective soul of the People. His death, which provided communal atonement and allowed the killer to leave the city, stressed the High Priest’s spiritual role for the nation. 

Midrash takes the importance of the role of the City of Refuge even one step higher. It explicitly compares the City of Refuge to Torah. “Just as the Cities of Refuge save lives, so, too, does Torah.”Midrash Tanhuma Buber (Appendix to Va’Etchanan,4).  In other words, just as someone, who accidentally killed someone, could find safety in a City of Refuge, engaging with Torah provides spiritual refuge, protection and healing.

It is noteworthy to mention that to ensure the clear and open access to justice, Talmud stresses the importance of precise and well marked signage to cities of refuge. “The roads to the Cities of Refuge were to be well-maintained and signposted….” (Makkot, 9b-10a). Likewise, Mishneh Torah, Hilchot Rotzeach u’Shmirat Nefesh (law of Murder and Protection of Life) where Ramba”m codifies the laws of the cities of refuge, he writes: “The court must prepare and repair the roads leading to the Cities of Refuge…They must build bridges, remove obstacles, and post signs: ‘Miklat (refuge)! Miklat!’ so that no one errs on the way. (Hilchot Rotzeach 8:5).

The sanctity of life is of utmost importance in the Torah and Jewish tradition. The Cities of Refuge reflect this value. They highlight the Torah’s underlying view of justice, combining accountability, compassion and restorative principles. They offer a deeply humane approach to dealing with bloodshed, tragedy, moral responsibility, spiritual growth and societal healing.