Reciprocal Punishment

Makkot (1:3) | Yisrael Bankier | 17 years ago

Masechet Makkot begins with the topic of eidim zomemin. The term refers to false witnesses that have been proven so by virtue of others testifying that they could not have been witnesses as they were with them at the time of the claimed incident. In general, they are punished with that which they tried to inflict on the falsely accused – “ka’asher zamam la’asot” – be it money, lashes or capital punishment. The first Mishnah lists exceptional circumstances where the reciprocal punishment cannot be administered and the false witnesses instead receive lashes. Putting these cases aside, since there may be only one accused and two or more false witnesses one needs to considered how reciprocal punishments are administered. The Mishnah (1:3) teaches:

[The eidim zomemin] divide a monetary sentence but do not divide lashes. How? If [the false witnesses] testified that their friend was obligated to pay two-hundred zuz, they divide it amongst themselves [and, if it was two witnesses, they each pay one-hundred zuz]. If however they testified that he was obligated to receive lashes, each of [the false witnesses] receive forty lashes.

The Gemara (Makkot 5a) presents two opinions for the source of this distinction. Abaye explains that a gezeirah shava is employed connecting the punishment of lashes with a capital punishment. Just as with a capital punishment, it is impossible to administer half-punishments, and yet the Torah still maintains that each of the false witnesses are punished with a complete punishment, the same applies for lashes. The implication being that were it not for the gezeirah shava, we would have divided lashes, in the same way that we divide money, so that the collective punishment of the false witnesses is equal to what they attempted to inflict on the falsely accused.

Rava however presents a different understanding. He explains that if each of the witnesses only received a share of lashes, then “ka’asher zamam la’asot” would not have been fulfilled. The Gemara asks, then why do we divide a monetary punishment? Abaye responds that “money can combine, lashes cannot combine.” How do we understand this dialogue and how money differs from lashes?

The Nimukei Yosef explains that with money we can collect all the money due from each of the witnesses and then present this combined pool to the falsely accused. With lashes however, as each would be administered to separate bodies (the false witnesses) there is no way of combining them. In other words there would be, for example, three instances of thirteen lashes (“partial”-lashes) and not one unit of thirty-nine as demanded by ka’asher zamam la’asot.

The Meiri however appears to maintain that there is a more fundamental problem, denying the concept of partial-lashes completely – “ein malkut le’chatza’in”. The punishment of lashes is not a quantitative culmination of thirty-nine blows, it is one single unit. Were we to administer less (other than by medical direction) it would not be considered lashes. Therefore dividing lashes amongst three false witnesses and trying to combine them would results in three times naught.

The Beit HaLevi (Be’Shalach) provides the rationale explaining that with money, one-hundred is indeed half of two-hundred. Yet with lashes each blow gets more difficult to bear. One blow is clearly not half of two and three times thirteen blows would not equate to thirty-nine.

A question is still left remaining: if we then give full sets of lashes to false witnesses, in effect they have received multiple times that which they wished to inflict on the falsely accused. How is ka’asher zamam la’asot being fulfilled?

When the Ritva explains the distinction between money and lashes he explains that money can combine as it “combines in the hand of the falsely accused”. However with lashes, the falsely accused “does not receive anything” and therefore it cannot combine. What function is the falsely accused playing? In the case of money, as the falsely accused receives something, the money the false witnesses pay is in the style of compensation and can therefore combine. With lashes (as cases of capital punishment also testify) ka’asher zamam la’asot takes on a different form. The focus is no longer on the falsely accused but rather on the false witnesses. Now it acts as a punishment; each witness punished in the way they wished to punish the innocent.29

Why does the focus shift? Rav Yonatan Rosensweig sharpens this explanation explaining that really there is only one ka’asher zamam la’asot. With a monetary payment it is fulfilled (chal) in hands of the receiver of the payment – that is how payments work. With lashes however the ka’asher zamam la’asot is fulfilled in the body of the receiver of the punishment.

29 One could boldly suggest that the inability to divide lashes means that ka’asher zamam does not apply and in such cases (1:1) we give the eidim zomemin each full lashes. This line would require more thought (see Rambam, Edut 18:1 “loke kol echad mehem kesha’ar mechayvei malkut”).

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