Literary critic Adam Kirsch is reading a page of Talmud a day, along with Jews around the world.
Last week, Daf Yomi readers began Tractate Makkot, a short section of the Talmud made up of just three chapters. Makkot is closely connected with the previous tractate, Sanhedrin, which dealt with capital crimes. Indeed, some scholars believe these three chapters were originally part of Sanhedrin, only to be split off at some point in the Talmud’s history. The reason is that the crimes covered in Makkot call for lesser punishments—not strangling, stoning, or burning, but makkot or lashes. (Incarceration is not a traditional punishment in Jewish law, though, as we have seen, the rabbis allow it to be used in certain cases.)
The first chapter of Makkot focuses on a knotty problem in Jewish law: the punishment of what are known as “conspiring witnesses.” As we have seen in many contexts, Jewish law requires the testimony of two eyewitnesses to convict someone of a crime: “At the mouth of two witnesses or three witnesses shall he who is to die be executed,” says Deuteronomy 17:6. Earlier, in Sanhedrin, we saw that the rabbis introduced strict rules about the role of these witnesses. They must offer identical testimony and they must have specifically forewarned the accused that he was about to commit a crime. But there is always the possibility that two witnesses could get together and agree on false testimony in order to cheat the accused out of his life or property. The Bible, foreseeing this possibility, imposes a fitting punishment on such conspiring witnesses: “You shall do unto him as he conspired to do to his brother.” That is, someone who gives false testimony that could lead to the defendant’s execution is himself executed.
But what about other kinds of punishments, which are not capable of being so symmetrically applied? Tractate Makkot begins by inquiring about a case in which witnesses falsely testify that a priest is ineligible for the priesthood because he is the son of a divorced woman. If their lie is exposed, does that mean that the witnesses should be declared ineligible for the priesthood? This is what a plain reading of the biblical verse might suggest, but in practice, this would make no sense—what if the witnesses were Israelites, not Kohanim, and therefore ineligible for the priesthood to begin with? To ensure that such conspiring witnesses don’t get off scot-free, the Mishna imposes a punishment of 40 lashes.
This is not the first time that the Talmud has modified the straightforward provisions of biblical law. In Tractate Bava Kamma, we saw that the law “an eye for an eye” did not mean that the culprit’s own eye should be put out, but rather that he must pay monetary compensation to his victim. In this case, too, the rabbis justify the innovation by carefully interpreting the biblical text: When the verse says “you shall do to him as he conspired,” it means that only the conspiring witness himself can be punished for his deed. If he were declared ineligible for the priesthood, that would affect his offspring as well, and it wouldn’t be fair to punish the children for the sins of their father.
In addition to criminal penalties, a conspiring witness can also be subject to a monetary fine, in cases where his false testimony might have led to a financial loss on the part of the defendant. For instance, the Mishna in Makkot 3a addresses a case in which a divorced husband and wife are disputing over the payment of the marriage contract. The husband claims that he paid his wife the money owed her in the contract, while the wife claims she has not been paid. If false witnesses emerge and testify against the husband, and then are shown to be lying, must they pay the husband the same amount of money he would have lost if the case went against him? In this case, the answer is, not exactly; rather, they pay the market value of the marriage contract. Evidently, it was possible to financially speculate in marriage contracts by purchasing them from wives. The risk involved had to do with which spouse died first: if the husband died first, the wife would inherit her contractual portion and the speculator would profit, but if the wife died first he would get nothing.
The bigger question, of course, is exactly how the charge of conspiracy can be proved against witnesses. As the Mishna in Makkot 5a makes clear, it is not enough for a second pair of witnesses simply to contradict the testimony of the first pair. The rabbis give the example of a murder case in which a pair of witnesses testify that “with regard to a man called so-and-so that he killed a person.” If a second pair of witnesses come forward and say that this was impossible, because they had seen the victim alive after the time of the alleged murder, then the first pair of witnesses is discredited. But this alone doesn’t mean that they conspired to give false testimony; they could simply have been mistaken. If, on the other hand, the second pair of witnesses testifies about the first pair that “you were with us on that day on such and such a place,” then they are accusing the first pair of deliberate lying, since there is no way they could have witnessed the murder in the first place. In that case, “these [first] witnesses are conspiring, and are executed on the basis of their [the second set’s] testimony.”
But this presents a logical problem: Why should the judge believe the second pair of witnesses rather than the first? In the absence of any other evidence, there’s no way to know who is lying, the first pair or the second pair. The Mishna goes on to highlight the problem, imagining that a third set of witnesses comes forward to confirm the first set and contradict the second set. What if the second set then says that the third set of witnesses, too, is conspiring, because they were also present with the first set at the time of the murder? Indeed, what if a hundred sets of witnesses emerge to confirm the first pair, but the second pair accuses all of them of conspiracy? In this case, the surprising ruling is that the testimony of the second pair of witnesses is sufficient to procure the execution of all 100 pairs of contradictory witnesses. Numbers, the rabbis suggest, mean nothing: The testimony of two is as good as the testimony of 200. But of course, this leaves the question of why the second pair of witnesses is more trustworthy than the first pair.
The Gemara describes another scenario, in which “a certain woman brought witnesses to testify on her behalf, and they were proved to be liars.” This happened again with the second pair of witnesses she brought. If she then goes on to bring a third pair of witnesses, does the court have to treat their testimony as valid, or is there a presumption that the woman is suborning perjury? Reish Lakish says that she has “assumed the presumptive status of dishonesty,” since she has twice been proved a liar, and so her third set of witnesses is automatically discounted. Rabbi Elazar, however, disagrees: “If she has assumed the presumptive status of dishonesty, has the entire Jewish people assumed that presumptive status?” In other words, just because this woman is a liar, does that mean that the third pair of witnesses should be considered liars too? Jewish law, like all legal systems, operates on the presumption of honesty: Witnesses are believed unless there is a good reason not to.
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Adam Kirsch is a poet and literary critic, whose books include The People and the Books: 18 Classics of Jewish Literature.