Why do we Keep Reinventing Cities of Refuge?
And what does it say about our instincts about justice?
Epistemic status: speculative
Then the Lord said to Joshua, “Say to the people of Israel, ‘Appoint the cities of refuge, of which I spoke to you through Moses, that the manslayer who strikes any person without intent or unknowingly may flee there. They shall be for you a refuge from the avenger of blood. He shall flee to one of these cities and shall stand at the entrance of the gate of the city and explain his case to the elders of that city. Then they shall take him into the city and give him a place, and he shall remain with them. And if the avenger of blood pursues him, they shall not give up the manslayer into his hand, because he struck his neighbour unknowingly, and did not hate him in the past. And he shall remain in that city until he has stood before the congregation for judgement, until the death of him who is high priest at the time. Then the manslayer may return to his own town and his own home, to the town from which he fled.’”
So they set apart Kedesh in Galilee in the hill country of Naphtali, and Shechem in the hill country of Ephraim, and Kiriath-arba (that is, Hebron) in the hill country of Judah. And beyond the Jordan east of Jericho, they appointed Bezer in the wilderness on the tableland, from the tribe of Reuben, and Ramoth in Gilead, from the tribe of Gad, and Golan in Bashan, from the tribe of Manasseh. These were the cities designated for all the people of Israel and for the stranger sojourning among them, that anyone who killed a person without intent could flee there, so that he might not die by the hand of the avenger of blood, till he stood before the congregation.
Joshua, chapter 20
I first came across the concept of Cities of Refuge1 at the age of 7 or 8, when they were mentioned in my children’s Bible.2 It seemed a pretty peculiar idea - but it was 3000 years ago, and there were lots of fairly odd things in the Bible, so I didn’t think much more of it.
Later, I learned that if you took refuge in a Mediaeval church, you could avoid being arrested - even if you’d murdered someone. Again, this seemed a pretty peculiar concept, and I wondered why they’d set up a system in such a way.
Later still, I discovered3 that around 1800, if you were in debt, there were certain places - such as the Liberty of the Savoy - where you couldn’t be pursued for that debt and thrown into debtor’s prison. Even more bizarrely, outside of these areas, you could only actually be arrested for debt if the law officers managed to touch you, leading to madcap chases to gain the Liberty before one was caught.4
And of course, even today, we have embassies in which the likes of Julian Assange can shelter for years (not even in his own!) to avoid arrest and extradition.
When societies keep reinventing a societal feature that seems so peculiar, it’s worth examining why - particularly when it appears to work directly against the interests of the powerful.5
It feels like it may say something about our understanding of human systems of justice - an appreciation that they are not infallible.The accused may not be guilty, or there may be extenuating circumstances. Perhaps, even if they are guilty as sin, in some way we believe, in the abstract,6 they should have a chance - however small.
After all, it might be us.
This concept, of perfect justice being too harsh to endure, is a strong one. ‘Justice, tempered with mercy’ occurs from the Bible to Shakespeare, to many classic stories, in which mercy is shown, even if not deserved. The wheels of justice grind exceptionally fine - yet Kings and Emperors have very often had the power to pardon. Christianity, of course, goes big on this idea.
We see this idea of desiring exceptions in our society today. Almost every system, from criminal trials to school place allocations, has an appeal system. As humans, we like the idea that another human will consider the special circumstances of our own particular case. Almost all of us would wish the chance to make the case for why we should get a mortgage to a person, rather than be denied by a computer.7 People trust teacher assigned grades over those awarded by algorithms.
So perhaps Cities of Refuge, and their successors form part of this. To create the space to be human, the exceptions, the places outside the clockwork of the perfectly functioning system, ‘where the falling angel meets the rising ape’.8
But why should this be place-based? We can see it with the Mediaeval churches, perhaps, but why for the other places? Why should reaching a particular place grant such an extraordinary privilege as (temporary) exemption from justice?9
If one wanted to give those accused some additional chance, one could do it by other means.
One could roll a d20, or use some other means of randomisation, and if it came up a 20 then one could pardon the accused. This feels patently absurd10 - but why is it more absurd than ‘if you can get to a particular place you go free’?
We could build in more appeals, more second-chances. And indeed, that is what, these days, we primarily do. But of course, such appeals are also administered by fallible humans. Judges can be biased, presidents can pardon those who give them lots of money - and one is still trapped in a system in which things are done to you, not by you.
I suspect the truth is that revealed preference suggests we want a level of ambiguity in our systems.11 We wish the space for human judgement, not cold equations and inhuman algorithms. And what is more, we wish the space for our own agency - the opportunity to plead our case and for that to have meaning, or for our own endeavours to have the potential set us free.
Place-based refuges provide one of ultimate expressions of that agency. More ambiguous than a literal roll of the dice, an illusion of a fair chance, and the onus on the individual - who, by luck, skill or judgement, has a chance to win through to freedom.
In a world in which I were God-Emperor, I would not reinstate Cities of Refuge.12 There are other, and fairer, ways of permitting agency and mercy within a justice system.
But in the drive to algorithmise the world, we should remember the deep-seated human desire for agency, for ambiguity and for mercy. The appeal, the second-chance, the marginal-case deserve their chance - though not their certainty - at success.
No AI system, no algorithm, no formula will deliver that, no matter how much the experts say it has removed all subjectivity or bias.13 Indeed, that very lack of subjectivity may be the problem.
Such devices may play an important role - as tools. But for the decisions that matter, we must retain the ability for an individual to give their 60 seconds worth of distance run - and for some other human to be required to look them in the eye, and to say yea or nay.
To be clear, the types of refuge I’m discussing in this piece have little in common with the US ‘Cities of Sanctuary’ concept. Those are straightforward disagreements between two tiers of government with differing views - like the Elector of Saxony sheltering Martin Luther from the Holy Roman Empire.
No, I’m not sure why it prioritised including this either.
From Patrick O’Brian’s Aubrey/Maturin series.
Since learning this, I’ve wondered if this was the inspiration for Mein Herr’s description of university recruitment in Lewis Carroll’s Sylvie and Bruno, in which professors would pursue the most desired students, with those who touched them first gaining them for their institution. The Spherical Professor, of course, was the most aerodynamic and the fastest.
If societies keep reinventing cultural features that obviously serve the powerful, such as slavery, or rich men being allowed to have multiple wives, this requires much less interrogation as to why this might occur!
Though often not when confronted with a particular individual’s heinous deeds.
Even if the algorithm can be proved to be less biased.
Quote by Terry Pratchett, in Hogfather.
We see this in other areas, too.
There is the famous Mansfield judgement in 1772, which ruled that if a slave landed in England, they would become free - despite slavery not being abolished in the Empire until 1834.
Even today, we hold that we can owe a non-citizen nothing, yet from the moment they arrive in Britain and claim asyslum, we owe them substantial obligations. Regardless of your overall views on the asylum and refugee system, it is hard to argue that a person’s ability to cross the Channel on a small boat, or sneak into Stansted on a plane, is the best or fairest way of determining those most needy, or most deserving, or most valuable to Britain* - yet that, in practice, is what we do.
*To mention three non-exclusive ways in which one could select refugees for assistance.
Though in former societies, where drawing lots was considered to, at least potentially, involve some form of divine intervention, one does see randomisation used more for important decisions.
Rather like women’s clothing sizes.
For one thing, modern transportation is causing these sort of systems to creak at the seams - as we are seeing with the asylum system. If the ancient Israelites had been able to hop on a Greyhound bus to Kedesh or Ramoth, I doubt their system would have worked well either.
Even if they are correct - and usually they will not be, they will simply have optimised on particular factors, or on removing biases they care about, potentially at the expense of others.