Biblical Commentary on the Old Testament, by Carl Friedrich Keil and Franz Delitzsh, [1857-78], at sacred-texts.com
The reason for grouping together these five laws, which are apparently so different from one another, as well as for attaching them to the previous regulations, is to be found in the desire to bring out distinctly the sacredness of life and of personal rights from every point of view, and impress it upon the covenant nation.
Expiation of a Murder Committed by an Unknown Hand. - Deu 21:1 and Deu 21:2. If any one was found lying in a field in the land of Israel (נפל fallen, then lying, Jdg 3:25; Jdg 4:22), having been put to death without its being known who had killed him (וגו נודע לא, a circumstantial clause, attached without a copula, see Ewald, 341, b. 3), the elders and judges, sc., of the neighbouring towns, - the former as representatives of the communities, the latter as administrators of right, - were to go out and measure to the towns which lay round about the slain man, i.e., measure the distance of the body from the towns that were lying round about, to ascertain first of all which was the nearest town.
This nearest town was then required to expiate the blood-guiltiness, not only because the suspicion of the crime or of participation in the crime fell soonest upon it, but because the guilt connected with the shedding of innocent blood rested as a burden upon it before all others. To this end the elders were to take a heifer (young cow), with which no work had ever been done, and which had not yet drawn in the yoke, i.e., whose vital force had not been diminished by labour (see at Num 19:2), and bring it down into a brook-valley with water constantly flowing, and there break its neck. The expression, "it shall be that the city," is more fully defined by "the elders of the city shall take." The elders were to perform the act of expiation in the name of the city. As the murderer was not to be found, an animal was to be put to death in his stead, and suffer the punishment of the murderer. The slaying of the animal was not an expiatory sacrifice, and consequently there was no slaughtering and sprinkling of the blood; but, as the mode of death, viz., breaking the neck (vid., Exo 13:13), clearly shows, it was a symbolical infliction of the punishment that should have been borne by the murderer, upon the animal which was substituted for him. To be able to take the guilt upon itself and bear it, the animal was to be in the full and undiminished possession of its vital powers. The slaying was to take place in a איתן נחל, a valley with water constantly flowing through it, which was not worked (cultivated) and sown. This regulation as to the locality in which the act of expiation was to be performed was probably founded upon the idea, that the water of the brook-valley would suck in the blood and clean it away, and that the blood sucked in by the earth would not be brought to light again by the ploughing and working of the soil.
The priests were to come near during this transaction; i.e., some priests from the nearest Levitical town were to be present at it, not to conduct the affair, but as those whom Jehovah had chosen to serve Him and to bless in His name (cf. Deu 13:5), and according to whose mouth (words) every dispute and every stroke happened (cf. Deu 17:8), i.e., simply as those who were authorized by the Lord, and as the representatives of the divine right, to receive the explanation and petition of the elders, and acknowledge the legal validity of the act.
The elders of the town were to wash their hands over the slain heifer, i.e., to cleanse themselves by this symbolical act from the suspicion of any guilt on the part of the inhabitants of the town in the murder that had been committed (cf. Psa 26:6; Psa 73:13; Mat 27:24), and then answer (to the charge involved in what had taken place), and say, "Our hands have not shed this blood (on the singular שׁפכה, see Ewald, 317, a.), and our eyes have not seen" (sc., the shedding of blood), i.e., we have neither any part in the crime nor any knowledge of it: "grant forgiveness (lit., 'cover up,' viz., the blood-guiltiness) to Thy people...and give not innocent blood in the midst of Thy people Israel," i.e., lay not upon us the innocent blood that has been shed by imputation and punishment. "And the blood shall be forgiven them," i.e., the bloodshed or murder shall not be imputed to them. On נכּפּר, a mixed form from the Niphal and Hithpael, see Ges. 55, and Ewald, 132, c.
In this way Israel was to wipe away the innocent blood (the bloodshed) from its midst (cf. Num 35:33). If the murderer were discovered afterwards, of course the punishment of death which had been inflicted vicariously upon the animal, simply because the criminal himself could not be found, would still fall upon him.
Treatment of a Wife who had been a Prisoner of War. - If an Israelite saw among the captives, who had been brought away in a war against foreign nations, a woman of beautiful figure, and loved her, and took her as his wife, he was to allow her a month's time in his house, to bewail her separation from her home and kindred, and accustom herself to her new condition of life, before he married her. What is said here does not apply to the wars with the Canaanites, who were to be cut off (vid., Deu 7:3), but, as a comparison of the introductory words in Deu 21:1 with Deu 20:1 clearly shows, to the wars which Israel would carry on with surrounding nations after the conquest of Canaan. שׁבי and שׁביה, the captivity, for the captives.
When the woman was taken home to the house of the man who had loved her, she was to shave her head, and make, i.e., cut, her nails (cf. Sa2 19:25), - both customary signs of purification (on this signification of the cutting of the hair, see Lev 14:8 and Num 8:7), - as symbols of her passing out of the state of a slave, and of her reception into the fellowship of the covenant nation. This is perfectly obvious in her laying aside her prisoner's clothes. After putting off the signs of captivity, she was to sit (dwell) in the house, and bewail her father and mother for a month, i.e., console herself for her separation from her parents, whom she had lost, that she might be able to forget her people and her father's house (Psa 45:11), and give herself up henceforth in love to her husband with an undivided heart. The intention of these laws was not to protect the woman against any outbreak of rude passion on the part of the man, but rather to give her time and leisure to loosen herself inwardly from the natural fellowship of her nation and kindred, and to acquire affection towards the fellowship of the people of God, into which she had entered against her will, that her heart might cherish love to the God of Israel, who had given her favour in the eyes of her master, and had taken from her the misery and reproach of slavery. But her master becoming her husband, she entered into the rights of a daughter of Israel, who had been sold by her father to a man to be his wife (Exo 21:7.). If after this her husband should find no pleasure in her, he was to let her go לנפשׁהּ, i.e., at her free will, and not sell her for money (cf. Exo 21:8). "Thou shalt not put constraint upon her, because thou hast humbled her." התעמּר, which only occurs again in Deu 24:7, probably signifies to throw oneself upon a person, to practise violence towards him (cf. Ges. thes. p. 1046).
The Right of the first-born. - Whilst the previous law was intended to protect the slave taken in war against the caprice of her Israelitish master, the law which follows is directed against the abuse of paternal authority in favour of a favourite wife. If a man had two wives, of whom one was beloved and the other hated, - as was the case, for example, with Jacob, - and had sons by both his wives, but the first-born by the wife he hated, he was not, when dividing his property as their inheritance, to make the son of the wife he loved the first-born, i.e., was not to give him the inheritance of the first-born, but was to treat the son of the hated wife, who was really the first-born son, as such, and to give him a double share of all his possession. בּכּר, to make or institute as first-born. וגו בּן על־פּני, over (by) the face of, i.e., opposite to the first-born son of the hated, when he was present; in other words, "during his lifetime" (cf. Gen 11:28). יכּיר, to regard as that which he is, the rightful first-born. The inheritance of the first-born consisted in "a mouth of two" (i.e., a mouthful, portion, share of two) of all that was by him, all that he possessed. Consequently the first-born inherited twice as much as nay of the other sons. "Beginning of his strength" (as in Gen 49:3). This right of primogeniture did not originate with Moses, but was simply secured by him against arbitrary invasion. It was founded, no doubt, upon hereditary tradition; just as we find in many other nations, that certain privileges are secured to the first-born sons above those born afterwards.
Punishment of a Refractory Son. - The laws upon this point aim not only at the defence, but also at the limitation, of parental authority. If any one's son was unmanageable and refractory, not hearkening to the voice of his parents, even when they chastised him, his father and mother were to take him and lead him out to the elders of the town into the gate of the place. The elders are not regarded here as judges in the strict sense of the word, but as magistrates, who had to uphold the parental authority, and administer the local police. The gate of the town was the forum, where the public affairs of the place were discussed (cf. Deu 22:15; Deu 25:7); as it is in the present day in Syria (Seetzen, R. ii. p. 88), and among the Moors (Hst, Nachrichten v. Marokkos, p. 239).
Here they were to accuse the son as being unmanageable, refractory, disobedient, as "a glutton and a drunkard." These last accusations show the reason for the unmanageableness and refractoriness.
In consequence of this accusation, all the men of the town were to stone him, so that he died. By this the right was taken away from the parents of putting an incorrigible son to death (cf. Pro 19:18), whilst at the same time the parental authority was fully preserved. Nothing is said about any evidence of the charge brought by the parents, or about any judicial inquiry generally. "In such a case the charge was a proof in itself. For if the heart of a father and mother could be brought to such a point as to give up their child to the judge before the community of the nation, everything would have been done that a judge would need to know" (Schnell, d. isr. Recht, p. 11). - On Deu 21:21, cf. Deu 13:6 and Deu 13:12.
Burial of those who had been Hanged. - If there was a sin upon a man, מות משׁפּט, lit., a right of death, i.e., a capital crime (cf. Deu 19:6 and Deu 22:26), and he was put to death, and they hanged him upon a tree (wood), his body was not to remain upon the wood over night, but they were to bury him on the same day upon which he as hanged; "for the hanged man is a curse of God," and they were not to defile the land which Jehovah gave for an inheritance. The hanging, not of criminals who were to be put to death, but of those who had been executed with the sword, was an intensification of the punishment of death (see at Num 25:4), inasmuch as the body was thereby exposed to peculiar kinds of abominations. Moses commanded the burial of those who had been hanged upon the day of their execution, - that is to say, as we may see from the application of this law in Jos 8:29; Jos 10:26-27, before sunset, - because the hanged man, being a curse of God, defiled the land. The land was defiled not only by vices and crimes (cf. Lev 18:24, Lev 18:28; Num 35:34), but also by the exposure to view of criminals who had been punished with death, and thus had been smitten by the curse of God, inasmuch as their shameful deeds were thereby publicly exposed to view. We are not to think of any bodily defilement of the land through the decomposition consequent upon death, as J. D. Mich. and Sommer suppose; so that there is no ground for speaking of any discrepancy between this and the old law. - (On the application of this law to Christ, see Gal 3:13.), - This regulation is appended very loosely to what precedes. The link of connection is contained in the thought, that with the punishment of the wicked the recollection of their crimes was also to be removed.