Bekiyut Makkot 2
For the pleasure of all those in Gemara Sem (and anyone else that wishes to read it), I present the first 2015-2016 Bekiyut summary. Enjoy!
Summary:
Mishna-
Mishna’s
question: How do Eidim become Eidim Zommemin?
Answer (but
it’s not really answering the question): There are 2 cases of Eidim Zommemin
when we give malkot instead of “Va’sitem lo Ka’asher zammam la’asot l’achiv”
(do to the Eidim Zommemin, as they tried to do to the accused- if you need more
clarification, check your 10th grade Gemara notes).
1. People testify that someone else is a Ben Chalutza (a Cohain did a
sin that makes him worthy to be stripped of his status as a cohain). If the
witnesses are found to be false, they would get forty lashes, and not be
stripped of their own status as Cohanim, (even though that’s what we would have
thought the punishment would be because of Ka’asher Zammam).
2. People testify that a man is Chayiv Galut and he must go to an Ir
Miklat. But if the Eidim are found to be zommemin, they don’t have to go to an
Ir Miklat, rather, they get malkot.
Gemara-
What the
Mishna should have said is “How do the eidim not become Eidim Zommemin?!
(because that is the question that the Mishna is really answering)”
The Mishna
on daf 5 describes what zommemin is, but this mishna does not!
The Gemara
responds; Rabbi Yehuda Hanasi wrote all of the Mesechtot of Gemara together.
Makkot comes right after Sanhedrin. The end of Sanhedrin discusses Eidim
Zommemin. This mishna is piggy backing on the last discussion of Sanhedrin,
which was discussing “Ka’asher Zammam”.
The end of
Sanhedrin was discussing a case when Eidim do not get the punishment of
“Ka’asher Zammam”. (So when the new Masechet
starts, it asks the question of “Kaitzad”, because it is asking for other cases
when eidim zommemin don’t get the punishment of “Ka’asher Zammam”.)
The Gemara
asks another question: From where do we know that we give lashes as a
punishment in the first case of the mishna instead of Ka’asher Zammam? The
Gemara gives to possible answers:
1. The pasuk
says “va’asitem lo….”, but the only people that can be punished with this are
the eidim themselves- not their offspring.
But if we were to make the eidim zommemin Ben Chalutzah’s, their
children would be affected as well.
Attack: So why don’t we just exclude the children from the
punishment of the eidim?
Response: Part of the punishment for the accused would have been
to take away his children’s status as Cohanim as well, so we cannot exclude
that part of the punishment when punishing the Eidim.
2. Another
possible answer: This is a kal v’chomer. If a cohen sleeps with a woman who is
forbidden to him, the kids of that relationship become are not valid Cohanim,
but he himself is not considered a Ben Chalal. So Kal va’chomer, someone who
tried but failed to make someone else a chalal should not become a chalal
himself.
Rejection of
this answer: Why does this Kal Vachomer work?! If we rely on this idea, then
nobody could ever become an eid zommen because the whole idea of eidim zommin
relies on the fact that we did not carry out any punishment on the accused yet. Just like someone who gets someone else
stoned does not get stoned, should we say that someone should get stoned but
they were not successful in getting him killed, they should not get killed
either?!
You’re right,
this Kal VaChomer does not make sense, so we must go back to the first answer. (we cannot affect their children).
We move onto
case #2 of the mishna (a few lines from the top of Amud bet):
How do we
know that people who testified falsely about someone deserving of galut only
deserve lashes and not to be sent into Galut themselves? The Gemara gives 2
possible answers:
1. It says in the torah: “he
runs to one of the cities”. Only the person who kills by accident has to run to
an Ir Miklat, (not the eidim zommemin)
2. It is a kal vachomer: Had the accused killed it on purpose, he would
not be able to run to the Ir miklat. So for sure people that only used words to
testify falsely should not have to go to the Ir Miklat!
That is a
terrible kal vachomer! If you kill someone on purpose, you cannot go to the Ir
Miklat because that would not be enough of a punishment! But maybe it would be
a harsh enough punishment for the false witnesses to be sent to the Ir Miklat.
The Gemara
responds: You are right, this Kal Vachomer doesn’t make sense. The first answer
must be correct.
New(ish)
Topic:
Where does
the torah hint to the idea of Eidim Zommemin?
The Gemara responds:
Why do you need a hint to the topic of Eidim Zommemin if there are pesukim that
explicitly talk about it?!
Response/Question:
We must really be asking “How does our mishna know that we would give malkot to
Eidim Zommemin if we can’t carry out Ka’asher Zammam?”
Answer: It
says in the torah “They exonerate the innocent one and convict the guilty one.
Then it will be that if the guilty one is liable to lashes…”
What it
means to say that the eidim declared someone to be guilty. Then another group
comes and says that the first eidim are wrong. Eidim group #1 would get malkot.
Question: Shouldn’t
we say anyway that they get malkot because they testified falsely? (Why didn’t
the Gemara just pick a more explicit source?)
We could
have easily brought the source “Lo Ta’aneh”
The Gemara
responds: This would not have been sufficient because testifying is not an
action, so they cannot get malkot for it. (the source for malkot does not come
from “lo ta’aneh”)
The Gemara
asks another question:
Are there
the only exceptions to “ka’asher zammam”?
There are 4
cases: The 2 that were already discussed in the mishna and 2 more.
3. The Eid Zommem doesn’t have to pay a Kofer if he testified falsely
that X person’s ox killed Y person.
4. An Eid Zommem also doesn’t have to become an Eved Ivri if he
testifies falsely that a poor person stole something and the poor person’s
punishment would have to become an Eved Ivri.
Rabbi Akiva
says that there is a 5th case:
If the Eid
Zommem admits that he is an Eid Zommem before he was caught, he is not killed.
How do we
know that Eidim Zommemin do not have to pay back Kofer (case 3)?
Paying is a
punishment for atonement of the sin so the Eid doesn’t have to pay because he
did not do the sin.
How do we
know that the punishment is for atonement and not to pay for the loss caused by
the ox?
There is an intricate
argument here but bottom line: Rabbanan says that the accused must pay the value
of the person who was killed, but Rabbi Yishmael says that he has to pay his
own value. Everyone agrees, however, that the accused must pay atonement and
not for the loss.
How do we
know that Eidim Zommemin don’t become Eved Ivris (case 4)?
An accused
person only becomes an Eved Ivri if he does not have enough money to pay for
the object that he allegedly stole. So we do not sell that Eidim if they would
have had money to pay for the object or if the person that they are accusing
has money to pay for the object. If this
is the case, we would have thought that if everyone is poor, the Eidim do get
sold.
But this is
not the case because you would only get sold as an Eved Ivri if you steal and
not because you are an Eid Zommem.
Question for
discussion:
The Gemara’s
reasoning that Eidim Zommemin do not receive a punishment of “Ka’asher Zamman”
when testifying falsely about Galut or stealing (so they only receive Malkot
instead of being sent into Galut or becoming an Eved Ivri), is because they did
not commit the crimes themselves. Does this reasoning apply when Eidim Zommemin
testify falsely about murder as well? The Eidim were not the ones to who
allegedly killed someone, so can they really be killed because of “Ka’asher
Zammam”?
I think Shana's question is a very good one. Similarly, the proof for why the eidim zomemim don't go to an Ir Miklat (the pasuk that says "he" not "they) doesn't feel so convincing to me. The context of that pasuk is specifically discussing a person who kills accidentally, not eidim zomemim, so it makes sense to use a pronoun that matches up with that.
ReplyDeleteI think that the rule should apply because it needs to be consistent. Even though being an eid zomem is horrible, it should not lead to something as harsh as death if there are other exceptions to "ka'asher zammam".
ReplyDeleteI don’t think this reasoning should apply to the case of murder- that the witnesses should get lashes- because even though the false witnesses did not do the action themselves, murder is a much more serious crime so it should require a harsher punishment so the false witnesses should die. Falsely accusing someone of stealing or Galut is not as big of a sin as murder, which is a permanent sin- stealing can be undone as well as exiling someone to an Ir Miklat.
ReplyDeleteI think this reasoning should apply in a case of murder as well. One reason for the rule is that Kohanim do not become chalal if they accused someone else of being chalal is becasue their children would be punished also and they dont want to punsih the children. When killing someone, you are essentially also punishing the children that could have been born and now do not have the chance to be.
ReplyDeleteI think Eidim Zomemin should be killed for a false testimony on an intentional murder case. Similar to what Yihudit said, this is a much more serious verdict and cannot be reversed. Additionally, these false witnesses know well that their testimony will ultimately kill the wrongly accused. They should receive the punishment that they intended for the defendant. With the case of stealing, the Eidim Zomemin may not know that the defendant does not have enough money to pay (which would make the defendant become an eved ivri), thus not having the direct intention for the punishment.
ReplyDeleteVery interesting question. While it seems from the gemara that with these 4 / 5 different cases of malkos instead of ka'asher zamam, that many cases can be worked out as malkos punishments, these are after all, EXCEPTIONS and each have individual pesukim and proofs. Like other said, killing is a serious felony to falsely testify to, so I think the eidim would in fact be chayav misa in that case.
ReplyDeleteWhen I first read this question, I thought that since testifying falsely about murder is so terrible, it would make sense that the eidim zomemin are killed "kaasher zamam." This way, it would serve as a good warning against other possible "will be" eidim zomemin. However, when thinking about the kal v'chomer on the source for the exclusion of the zomemin from the penatly of exile (ir miklat), and the reason the kal v'chomer is rejected, it seems as though it might be too harsh for the zomemin to be killed. The kal v'chomer is rejected because if you kill someone on purpose, you cannot go to the Ir Miklat because that would not be enough of a punishment. Maybe, however, it would be a harsh enough punishment for the false witnesses to be sent to the Ir Miklat. This makes it seem that the ir miklat would be enough of a punishment for the zomemin of a murder case, and although that would not actually be their penalty as we see in the Gemara, (if the zomemin are not killed, they would get lashes), murder seems too extreme a punishment based on this rejection of the kal v'chomer.
ReplyDeleteThough the punishment for aidim zomim in murder who are then killed seems harsh, I think it is the proper punishment according to the Gemara’s logic. The reason that the specific cases above are exceptions to the rule is because of phrasing of the pasuk itself or because it will have illogical conclusions. The cases are not exceptions not based on degree of intensity of the punishment. However, this answer is complicated because the Gemara through its rejections of the Kal V’ Chomers shows that it is in fact concerned with giving an extreme punishment to the aidim zomim. This is clear when the Gemara speaks of how the ir miklat could possibly be an adequate punishment for the aidim. Though this is a very complicated question and the Gemara shows both sides, I would say that the aidim should be killed, because this logic can’t be applied across the board given that these cases are exceptions based on the pasuk ( the ir miklat case) or obvious logic with precedent (the kohen case), neither of which apply to murder.
ReplyDeleteI think that the rule of "Ka'asher Zammam" should apply to cases of false testimony about murder. I think that the cases are very different--the case of false witnesses regarding a murder vs. false witnesses regarding someone stealing and not repaying/accidentally killing someone. The murder case is much more severe, and I think it is important for the Eidim Zommemin to realize the severity of their actions; even though they didn't actively murder anyone, they attempted to create an execution, so technically they did try to kill someone. In the other cases, the Eidim Zommemin were not trying to cause as much harm--they didn't want to take anyone's life away, as the Eidim Zommemin with the murder case tried to do. These cases are not as severe--Ir Miklat and Eved Ivri are not so severe, so the Eidim Zommemin should not get punished as severely as with the murder case. However, they do need a punishment, and malkot is one that will stay with them, but is not as severe as being killed.
ReplyDeleteI think that Shana's question is very poignant because it highlights an apparent inconsistency in the Gemara. However, I believe that there is no inconsistency because the reason that only some witnesses can receive the punishment of "vaasitem lo caasher zamam" is rooted in practicality. Someone is unable to receive the true "caasher zamam" for a case where they try to strip a cohen of his kehuna because in that case his children would also be affected, but we do not punish the witnesses children. However, a case of murder is a standard punishment. We would be able to punish the witness in the exact same way that we wished to punish the person that he falsely accused. Practically, punishing for caasher zamam works for murder, but not for all other cases.
ReplyDeleteThe reasons that eidim zomemin who testify about stealing or galut dont get "kaasher zamam" and instead get malkot must be more than just because they did not do the crime themselves. We see that when the Gemara is trying to explain why an eid zomem who tries to make a cohen a chalal does not become a chalal himself, it uses a kal v'chomer-- if a cohen who slept with a gerusha does not even become a chalal (only his children do) then kal v'chomer the eidim zomemin who didnt even do the crime should not become chalalim. The Geamara then rejects this K'V because eidim zomemin never do the actual aveira. Based on this, we know that there must be a specific reason why Eidim Zomemin who testify about galut or stealing, and not simply because they did not actually commit the crime. The Gemara explains the specific reasons that in these two cases they do not get the regular punishment but instead they get malkot. However, these exceptions would not apply in a case of eidim zomemin for murder and therefore the false witnesses would be killed instead of getting malkot.
ReplyDeleteEidem Zomimin cause an innocent person to receive punishment. While the false witnesses deserve to be punished in whichever way they would have harmed someone else, Judaism isn't only about an eye for an eye. If the punishment does not necessarily fit the crime it should be adjusted. I think the methodology behind the punishments (galut and eved ivri) is to give the sinner an opportunity for reflection. For example, when someone is a slave he/she has nothing of his/her own and he/she realizes what it is like to have everything taken from him/herself. Thus the person will regret stealing because now that he/she has nothing he/she realizes what it is like to lose something of value. For edim zomimin the same would not be true. Therefore malkot are more befitting because it is a painful punishment and will have a greater impact than becoming an eved ivri. In a case of murder, where the edim are trying to end a life, it is an appropriate punishment for them to get the death penalty.
ReplyDelete