Shabbat Parashat Korach| 5770

Hemdat HaDaf Hayomi: False Witnesses (5b)

This week in the Daf Hayomi we begin to learn Tractate Makot. One of the main issues in the beginning of Makot is false witnesses. False witnesses are witnesses that testified against someone, and it was discovered that they were lying, since a second set of witnesses came and testified that the first set were in an entirely different location at the time of the event that they testified about. As to the reason why the second witnesses are believed, and not the first, see Hemdat Hadaf Hayomi to Parshat Ki Tisa 5769 (Baba Kama 72).

The Torah states that the punishment for a false witness is "as he plotted to do to his brother" (Devarim 19, 19). In other words, they receive the same punishment they wanted to inflict through their testimony. Therefore, witnesses who testified that a person transgressed a prohibition for which there is capital punishment, receive that capital punishment.

The Mishna (5b) records a dispute between the Sages and the Tzedokim regarding this issue. According to the Tzedokim, who did not accept the Oral Torah and the tradition of the Sages, the false witnesses are killed only if the person they testified against was actually killed by their testimony. However, according to the Sages, the witnesses are killed only if the lie was discovered before the person they testified against was put to death.

The Gemara explains that, according to the Sages, if the person was indeed killed, the witnesses are not killed, since the implication of the pesukim is that the death penalty for the witnesses is implemented only in a case where the person was not killed. Even though it can seemingly be learnt through a Kal Vachomer (if in a lesser case all the more so in a severe case), that the witnesses should be killed when they actually caused the death of their victim, there is a rule that punishments cannot be learnt through a Kal Vachomer. However, this seems very puzzling; we punish them if they did not succeed in carrying out their plot, but we do not punish them if they succeeded!

The Ramban explains that this Halacha reflects the personal involvement of Hashem. As mentioned, the fact that the second witnesses are believed over the first is a special innovation of the Torah. Therefore, explains the Ramban, if the second witnesses came before the sentence was carried out, this shows that the first witnesses lied and that is why Hashem made sure that the second witnesses will come before the sentence was carried out. However, if the second witnesses arrived only after the sentence was carried out, this shows that the first witnesses were telling the truth, and that is why Hashem prevented the second witnesses from coming until after the sentence was carried out.

However, the Rambam does not appear to agree with the Ramban. The Rambam, in his commentary to the Mishna (Makot 1, 6), writes that in a case where the person was killed, even though the witnesses do not formally receive the death penalty, the judges must find a way to punish them. Thus, it appears that he believes that even if the second witnesses came after the carrying out of the sentence, we believe the second witnesses and consider the first set of witnesses to be liars. How then can we explain this puzzling Halacha according to the Rambam?

It is possible that the explanation to this can be found at the crux of the dispute between the Sages and the Tzedokim. According to the Tzedokim, the punishment for false witnesses is issued for the damage they did to the person they testified against. Therefore, they are killed only if their victim also was. However, according to the Sages, they are killed even though nothing happened to the person they testified against. The punishment is issued for the fact that they testified falsely and caused the Beit Din to issue a false verdict on the basis of their testimony. Therefore, they are killed even though the person they testified against was not. However, in a case where he was killed, they are now culpable for the murder of the victim. Under the laws of murder, there is no formal death penalty unless a person murders in a direct fashion. Nevertheless, when a person indirectly causes another person's death, the Beit Din must find other means to punish him (see Rambam Hilchot Rotze'ach 2, 1-5).   

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