If a false witness stands against a man,,,you shall do to him as
he conspired to do to his fellow, and you shall destroy the evil from your
Losing on The Rebound1
Rashi: As he conspired to do, but not what he succeeded in doing. Chazal
derive from this that if the witnesses prevailed in having the accused
executed before they were determined to be false witnesses, they are not
Maharal: This law strikes people as paradoxical. How could attempted murder
be worse than murder itself? Why should the conspiring witnesses be punished
for attempting to frame an innocent man, but walk free if the victim is
executed by the court on the strength of their false testimony?
Ramban offers a reason. The witnesses are executed for trying to frame an
innocent person. When a second set of witnesses arrives in court to falsify
the testimony of the conspiring witnesses, we understand their testimony to
be a life-saving intervention. They save a guiltless party from death he
does not deserve. Those who tried to kill him ought to be punished. When
the second set of witnesses testifies only after the intended victim has
been executed by the court, we are no longer confident in the innocence of
the framed party. Hashem Himself provides assistance to the members of the
beis din. He would not allow such a travesty of justice, unless the accused
was actually not so innocent! Although he was executed for a crime he may
not have committed, he surely must have been guilty of an equivalent crime.
If not, G-d would have found a way to guide the court to a different
conclusion. While the conspiring witnesses had no way to know that, and were
certainly full of evil and malice, the bottom line is that they did not harm
an innocent person, but a guilty one. Therefore, the court does not execute
I, Maharal, cannot accept this reasoning. Judges do make mistakes, and they
can be misled by false witnesses. The gemara emphasizes that there are
limits to what the members of the court can learn. “A judge has nothing more
to go by than what his eyes can see.” The judge cannot see what is
invisible, even if what can’t be seen has enormous impact on the case. If
the judge is misled by lying witnesses, they are the ones who bear the
entire weight of moral responsibility for the outcome – not the judges.
If we had to offer an explanation, it would come from the end of the pasuk,
“You shall destroy the evil from your midst.” By “evil” the Torah does not
mean the witnesses, but their evil thoughts and intentions. Thoughts are
not substantive; they are also ephemeral and fleeting. They have no fixed
presence. Once a thought has been turned into action, it ceases to have
importance. Often a person decommissions his own thought by acting upon it,
turning it into something of substance. In regard to the plotting witnesses,
they are not the ones to act upon the evil thought. It is the court that
does that when it executes the accused. The members of the court are
blameless; they simply followed procedure in accepting the testimony of the
false witnesses before they were unmasked. There are no grounds to punish
them. On the other hand, while the plotting witnesses are certainly morally
responsible for the death of the accused, they cannot be punished as
murderers. The fact remains that they didn’t shed his blood – the court did!
They cannot be executed for the actual death, because they didn’t commit the
deed. Neither can the court go after their evil thought (along with them,
for bearing it) once the thought disappears by turning into action. Thus,
they escape punishment, at least at the hands of a human court.
While this explanation has some merit, it is not the best explanation. That
we have left for last.
The punishment of the conspiring witnesses is unusual. We could find justice
in visiting upon the false witnesses whatever discomfort they wished to
inflict upon their intended victim. But this stated punishment includes
taking their lives, upon occasion. Applying the rule to those who falsely
accuse a person of a capital crime, they would be executed for the attempt.
Now it is clear that what we call “justice” is only one of a number of
considerations that the Torah uses in criminal procedure. Typically, only a
small fraction of what we would call first-degree murder cases could
possibly lead to a court-mandated execution. Halacha raises the bar for a
capital conviction to dizzying heights. Even where there is no question
about factual guilt and premeditation, not all murderers are punished by the
court. Halacha calls for taking the a human life only when the victim is
killed more or less directly at the hands of the murderer. All of this
contrast strongly with the court executing false witnesses for something
they did not do, and was a crime only in the arena of their imagination. Why
does the Torah relax its rules about execution in this one kind of case?
We must conclude that the punishment of eidim zomemim is sui generis. It is
not so much a response to a crime as a statement about the power of thought.
The Torah communicates to us that thought is powerful; focused, determined
thought will produce results. When they do not produce those results in the
desired place, they ricochet and harm the person who thought them. Should
those thoughts bear fruit – even evil, unjust fruit – they no longer pose
any danger. Once their potential for harm has been shifted to action, there
is nothing that needs to dealt with. Where that shift has been thwarted,
e.g. when a second set of witnesses unmasks the plot, the evil in the
thought remains to be discharged – and finds the thinker the nearest target.
Chazal tell us2 that whoever unjustly suspects his fellow of a
wrongdoing will suffer bodily as a consequence. It is the same principle at
work. The unjust suspicion, having no place to go since its object is in
fact innocent, rebounds back and strikes the person who gave rise to it. For
the same reason, they tell us3 that it is better to be at the
receiving end of a curse, rather than the one issuing the curse. In all
these cases, the force of some powerful thought is redirected at the
thought’s original author.
Human thought has great potency. It should not be dismissed as simply an
internal affair. Hashem endowed it with power – far greater power than we
would have imagined. Once launched, it will leave an impression. If it
encounters an insurmountable obstacle, it will turn on the one who created
it. Think of it as a projectile, thrown against some surface. If it cannot
penetrate that surface, it will carom back against the one who threw it.
Wherever it lands, machshavah, thought, is the output of the soul. It should
never be trifled with.
1. Based on Gur Aryeh, Devarim 19:19; Be’er HaGolah, 2nd Be’er
2. Shabbos 97A
3. Sanhedrin 49A
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