CHAMISHOH MI YODEI'A - FIVE QUESTIONS ON THE WEEKLY SEDRAH - PARSHAS SHOFTIM 5772 - BS"D

2) Ch. 17, v. 7: "Yad ho'eidim ti'h'yeh bo borishonoh l'hamiso" - The witnesses who testify to the guilt of someone who has transgressed a sin that deserving of the death penalty are the ones who execute the sinner. What is the rationale for this ruling?

3) Ch. 19, v. 19: "Va'asisem Lo Ka'asher Zomam La'asos" - The gemara Makos 2a derives from our verse that the Torah requires that the witnesses give sufficiently specific testimony which could make them liable to be refuted by other witnesses who could say that the first ones are false by virtue of not having been at the location where they claim the situation took place at the time they testified it took place, commonly called "imonu heh'yi'sem." If witnesses don't open themselves up to this risk, they are invalid.

It seems that this ruling makes it impossible to ever have acceptable witnesses. If the first set of witnesses requires the possibility of being refuted by the second, then the second can only be accepted if it can be refuted by the third set, and so on. Eventually we will run out of people, so then the last set will be invalid. This will create a reverse domino effect as the ones before them will likewise be invalid, all the way back to the first witnesses. How can we ever have acceptable witnesses?

4) Ch. 19, v. 19: "Kaasher zomam LAASOSE" - The mishnoh Makos 5a derives from the word LA'ASOSE "v'lo kaasher ossoh," that only when the sentence has not been executed and the witnesses are found to be false in a manner called "hazomoh," that others testify that the earlier witnesses were not present at the time and location which they claimed they saw the act done, do we carry out reciprocal punishment. However, if the sentence was irrevocably carried out, the false witnesses are not punished.

This obviously deserves an explanation. If they are punished when nothing was actually done to the falsely convicted person, surely when the sentence was carried out, and they have brought about actual damage to an innocent person (lashes, death, etc.), they surely deserve to be punished.

5) Ch. 20, v. 20: "Rok ho'eitz asher TEIDA" - When we have a doubt if a Torah prohibition applies, we apply the dictum "sofeik d'Oreisoh l'chumroh," when in doubt regarding a Torah-level law, we are stringent. However, there is a disagreement between the Rambam and the Rashboh if acting stringently is required by Torah law or if by Torah law one may be lenient, and it is only a Rabbinical decree to be stringent. According to the opinion that "sofeik d'Oreisoh m'd'Oreisoh l'kuloh," that by Torah law one may be lenient, why does the Torah say that only a tree which YOU KNOW is not a fruit producing tree may be cut down? Even when one has a doubt if it produces fruit, he would also be permitted to do so by Torah law.

1) Ch. 17, v. 6: "Al pi shnayim eidim o shloshoh eidim yumas ha'meis lo yumas al pi eid echod" - By the testimony of two witnesses or three witnesses shall the guilty person be put to death he shall not be put to death by the testimony of one witness - a) Since we know that one witness is insufficient even for money matters (Dvorim 19:15), why does our verse repeat this by capital punishment? b) If two are believed here, why bother telling us that three are also believed?

a) The Chizkuni says that without our verse we might believe that one witness is believed when it comes to matters of life and death, as the seriousness of the punishment is a deterrent to lying. Therefore our verse tells us that even by life judgments one witness is not believed. b) 1) The mishnoh in the first chapter of Makos says that this teaches us that just as when two witnesses are found "zom'mim," they are both reciprocally punished, so too with three, they are all punished, and we don't say that the third witness is extra baggage, as two are sufficient, and not punished. Also, just as when one of two is disqualified, their testimony is useless, the same with three, even though two remain.

2) Haksav V'hakaboloh says that it is necessary for our verse to tell us that three witnesses are believed regarding rulings that carry the death penalty. If not for our verse we might think that when three witnesses testify that a sin that carries the death penalty has been perpetrated in front of all three of them it is logical to assume that it just cannot be, as one would never commit such a severe sin in front of three people (three are a crowd). It is therefore necessary to tell us that EVEN three are believed.

2) Ch. 17, v. 7: "Yad ho'eidim ti'h'yeh bo borishonoh l'hamiso" - The witnesses who testify to the guilt of someone who has transgressed a sin that deserving of the death penalty are the ones who execute the sinner. What is the rationale for this ruling?

Possibly, the Torah specifically wants the witnesses to carry out the punishment because:

1) The witnesses have a weakened resolve regarding the sin that they have witnessed. We see this concept in the gemara Brochos 63a and Nozir 2a, "Horo'eh sotoh b'kilkuloh, yazir atzmo min haya'yin." When one witnesses a sinner brazenly transgressing, moments after he was warned against doing so, the onlooker's resolve must surely be weakened. Therefore, the Torah says that the witnesses carry out the execution, as by actively carrying out the punishment, their resolve to not transgress that sin is strengthened.

2) There is a fear that if someone wanted to have a person killed, but wasn't sufficiently corrupt to actually commit murder, he might decide to testify falsely that the person transgressed a sin that carries the death penalty. He has only testified, and not lifted a finger to kill the person. The Torah says that if the court concludes that the person is guilty, the witnesses must carry out the execution, thus preventing this scenario.

3) Ch. 19, v. 19: "Va'asisem Lo Ka'asher Zomam La'asos" - The gemara Makos 2a derives from our verse that the Torah requires that the witnesses give sufficiently specific testimony which could make them liable to be refuted by other witnesses who could say that the first ones are false by virtue of not having been at the location where they claim the situation took place at the time they testified it took place, commonly called "imonu heh'yi'sem." If witnesses don't open themselves up to this risk, they are invalid.

It seems that this ruling makes it impossible to ever have acceptable witnesses. If the first set of witnesses requires the possibility of being refuted by the second, then the second can only be accepted if it can be refuted by the third set, and so on. Eventually we will run out of people, so then the last set will be invalid. This will create a reverse domino effect as the ones before them will likewise be invalid, all the way back to the first witnesses. How can we ever have acceptable witnesses?

This question is raised by the Sfas Emes.

1) A simple answer is that we do not require "yochol l'hazimo" to such a great extent, as this would defeat the possibility of having acceptable witnesses, as above. It is sufficient to have a number (how many I don't know) of pairs who can create hazomo and hazomo on hazomo. 2) There is no lack of "yochol l'hazimo" if there is an outside factor stopping it. Only if within the testimony there is insufficient clarity to be able to be "mahzim" the witnesses, then they are disqualified. If all seven "chakiros" are accurately answered the witnesses are fully "yochol l'hazimom."

I was given an answer that the previous witnesses could be recycled and could testify regarding others further down the chain. This is not satisfactory, either because they are at the moment of their testimony invalid, "posul," or testifying about a pair of witnesses, that if made kosher would render themselves not kosher. Then they cannot be "meisim atzmo rosho" (Y'vomos 25b, Sanhedrin 9b), self incriminate.

4) Ch. 19, v. 19: "Kaasher zomam LAASOSE" - The mishnoh Makos 5a derives from the word LA'ASOSE "v'lo kaasher ossoh," that only when the sentence has not been executed and the witnesses are found to be false in a manner called "hazomoh," that others testify that the earlier witnesses were not present at the time and location which they claimed they saw the act done, do we carry out reciprocal punishment. However, if the sentence was irrevocably carried out, the false witnesses are not punished.

This obviously deserves an explanation. If they are punished when nothing was actually done to the falsely convicted person, surely when the sentence was carried out, and they have brought about actual damage to an innocent person (lashes, death, etc.), they surely deserve to be punished.

Rabbi Ovadioh of Bartenura gives three answers to this and the Baalei Tosfos give one.

1) So as not to weaken the stature of the judges. Once a punishment is carried out and the false witnesses are also punished this publicizes the mistake of the judges. People would afterwards not go to the trouble of traveling to a court, saying that the judges often rule inaccurately.

2) If punishment would be carried out even after the falsely convicted person was punished, then there is a fear that his relatives would hire false witnesses to contradict those witnesses as an act of revenge. This could create an endless string of false witnesses and punishments.

3) In T'hilim 82:1 it says, "Elokim nitzov ba'adas Keil b'kerev elohim yishpote." This verse tells us that Hashem is actively involved in the judgements of our courts. Since Hashem allowed the verdict of the court to actually be carried out, although the defendant was innocent of the crime in this case, no doubt, he was guilty of something else which also deserved this punishment. Therefore, after the punishment has been carried out we do not reciprocally punish the false witnesses.

4) If the court has only come to a guilty verdict but not carried it out, the false witnesses have not caused irreparable damage. They therefore are worthy of atonement by reciprocal punishment. Once their testimony has brought about irreparable punishment to the innocent defendant, they have sinned so greatly that they cannot receive atonement through the court system.

From this last explanation we see the awesome responsibility one has for the ripple effects of one's actions. The defendant being found guilty was caused by the false testimony of the witnesses, and they still merit having their sin exonerated by the earthly court. Once the punishment is executed they no longer merit this. The carrying out of the punishment wasn't done by the witnesses, but rather by the court itself, and yet through the effect of their words that an action was carried out, they no longer merit to have their sin forgiven through court action.

There is one exception to the court's carrying out the punishment through its own law enforcement staff. This is the death penalty. The witnesses themselves must carry out the death penalty, as stated earlier in our parsha, "Yad ho'eidim ti'h'yeh bo borishonoh l'hamiso" (17,7). The Torah puts into place numerous safety measures to avoid hastily carrying out the death penalty. This exception can be explained as follows: There is a fear that if someone wanted to have a person killed, but wasn't sufficiently corrupt to actually commit murder, he might decide to testify falsely that the person transgressed a sin that carries the death penalty. He has only testified verbally, and not lifted a finger to kill the person. The Torah says that if the court concludes that the person is guilty, the witnesses must carry out the execution, thus preventing this scenario.

Possibly the rule of "kaasher zomam, v'lo kaasher ossoh" is also a powerful tool in keeping the witnesses on the straight and narrow. Being aware that once their false testimony has been accepted and acted upon, they will no longer be punished by an earthly court because their sin is so great that it can only be punished and rectified by the celestial court, they become keenly aware of the enormity of the sin of false testimony. We now have a 5th answer.

5) Ch. 20, v. 20: "Rok ho'eitz asher TEIDA" - When we have a doubt if a Torah prohibition applies, we apply the dictum "sofeik d'Oreisoh l'chumroh," when in doubt regarding a Torah-level law, we are stringent. However, there is a disagreement between the Rambam and the Rashboh if acting stringently is required by Torah law or if by Torah law one may be lenient, and it is only a Rabbinical decree to be stringent. According to the opinion that "sofeik d'Oreisoh m'd'Oreisoh l'kuloh," that by Torah law one may be lenient, why does the Torah say that only a tree which YOU KNOW is not a fruit producing tree may be cut down? Even when one has a doubt if it produces fruit, he would also be permitted to do so by Torah law.

1) An answer heard in the name of Rabbi Chaim haLevi Soloveitchik that the prohibition of "bal tash'chis," needless wasting, is not limited to the actual object itself, but also to its value. Let us say that the value of the tree which is in doubt would be $100 if it were definitely not a fruit producing tree, and good for lumber only. If it would definitely be a fruit-producing tree, let us say it would be worth $200. Since there is a doubt as to which type of tree this is, it would be fair to say that for the 50/50 chance involved, its fair market value would be right in the middle, at $150. However, if one were to fell this tree, it would not be capable of producing fruit and would have the lesser value. Hence, felling a tree which is doubtful if it is a fruit-producing tree is not a doubt in value. It definitely loses value as a cut tree, so if a "sofeik" fruit tree is felled it brings a definite loss of value. Therefore the Torah only permits felling a tree that is SURELY NOT a fruit tree. This is quite a "chiddush" and has only been verbally transmitted in the name of the Gra"Ch haLevi.

2) The Sforno gives a most novel interpretation of our verse. He says that we are speaking about a tree that is definitely known to you as a fruit tree. However, this tree might be dead or so diseased that it is impossible for it to produce fruit anymore. In such a circumstance the Torah says,"Rok ho'eitz asher TEIDA ki lo eitz maachol hu oso sash'chis," - only a tree that you KNOW is not a food producing tree, because it is dead or dying, may you destroy. This is most puzzling. Why does the Sforno not simply learn that the verse is discussing a situation where you have a tree that you do not know is a fruit tree or a non-fruit tree, rather than his seemingly convoluted explanation?

Perhaps this difficulty on the opinion that "sofeik d'Oreisoh m'd'Oreisoh l'kuloh" is what prompted the Sforno to explain the verse in the manner that he did. Once we have a tree that definitely is a fruit tree species, we must always assume that it is a fruit producing tree, "chazokoh d'mei'ikoro," until we definitely know otherwise, because of the ruling that something does not change its status because of a doubt, and only changes its status if we are sure there is a change, "vadai nishta'neh." (Nirreh li)

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