The Derive for Ta‘ama De’kra: 4. The Law of Hazamah Cannot Be Detached from the Facts (Column 718)

With God’s help

Disclaimer: This post was translated from Hebrew using AI (ChatGPT 5 Thinking), so there may be inaccuracies or nuances lost. If something seems unclear, please refer to the Hebrew original or contact us for clarification.

In the column before last we looked at the dispute between Abaye and Rava regarding edim zomemim (conspiring witnesses). Rava holds that this is a gezerat ha-katuv (a Scriptural decree), and therefore their disqualification begins only from the moment of hazamah (the refutation by alibi), whereas Abaye holds that they are disqualified from the time they testified. We saw that the early authorities (Rishonim) disagree whether, according to Abaye, this too is a Scriptural decree or not. Maimonides holds that it is, while the Tur and many other Rishonim hold that it is not. We noted objections to the very possibility of offering a rationale here (though I rejected them), and R. Shmuel Rozovsky concluded that according to all opinions this is a Scriptural decree. Now we shall see that the very notion that this is a Scriptural decree is utterly unacceptable.

Can One Execute People Because of a Scriptural Decree?

The picture that emerges from what I brought in that column is that, essentially, hazamah is treated like a contradiction of trei u-trei (two versus two): factually, even in a case of hazamah there remains doubt about whether either set is telling the truth, just as with a simple contradiction. Yet there is a Scriptural decree that, notwithstanding this, the second set is believed and the first is not. In a case of hazamah in capital testimony we would even execute the edim zomemim because they schemed to have an innocent defendant executed, all while in actual reality it is by no means necessary that the defendant is indeed innocent or that they are truly liars. You must admit that something here feels illogical.

The question is whether we can take people who, in reality, told the truth—or at least there is a good chance that they did—and nonetheless decide with respect to them that they are liars by force of a Scriptural decree, and ultimately execute them for that “offense.” This is patently unreasonable. You will surely ask how this differs from any other Scriptural decree that instructs us to act against reason (assuming that this indeed is the nature of a Scriptural decree—more on this below). I will now try to sharpen and clarify the particular difficulty that exists specifically here.

The Moral Aspect

We can focus the question on the moral aspect: does the Torah obligate us to execute people who did nothing wrong, solely by virtue of a Scriptural decree? Recall that edim zomemim do not require prior warning (hatr’ah; see Makkot 4b). The two of them come in good faith to testify truthfully. Moreover, halakhah even obligates them to come and testify if relevant information is in their possession. Those two witnesses come and testify—and suddenly, after hazamah, which from the standpoint of the facts does not prove any actual falsehood on their part (for conceptually their status is like trei u-trei), we execute them. And all this without any warning and without any proven guilt.

From another angle: what were those witnesses supposed to do to avoid being offenders? If they witnessed an event, they were obligated to come and testify to what they know; and our assumption is that they indeed knew what they reported in their testimony (for even after hazamah we still hold them to be, at least possibly, truthful). Yet the Torah decrees that we execute them. How could they possibly escape this punishment?

At first glance one might compare this to Sabbath desecrators. There too there is a Scriptural decree for the Torah to put to death people who have done nothing wrong by ordinary human reasoning. If so, how is our Scriptural decree different from other Scriptural decrees that concern capital punishment? Why assume that precisely here such a Torah directive would be especially problematic morally? But this analogy is mistaken, since the two situations are utterly different. In Sabbath desecration the person knows that the Torah forbids it and even punishes it with stoning, even if the reason is unknown to him and to us (and in practice it is also irrelevant—ta‘ama de’kra is not required). Without such knowledge we truly do not punish him. He undergoes a process of prior warning by two witnesses before the act; he must accept the warning upon himself—both regarding the offense and the punishment—and only if this entire process is completed (which in practice has no real chance of happening) do we indeed stone him. But even if he was warned by two witnesses, he can of course escape punishment by accepting the warning and refraining from desecrating the Sabbath. By contrast, in the case of edim zomemim, those witnesses came innocently to testify. They testified truthfully. They committed no offense, and the Torah did not warn them about what they were doing (for indeed they did nothing wrong). Moreover, no one warned them—neither about any offense nor about any punishment. And yet we execute them—just like that. As noted, they have nothing they can do to prevent their deaths.

It would seem that understanding edim zomemim as a Scriptural decree in the simple sense is entirely Kafkaesque: the Torah determines about people who tell the truth that they are liars, and then sentences them to death for their “lying.” And at no stage in this Kafkaesque process is there anything in their hands to defend themselves or avoid this punishment, even though the truth is that they are truthful (at least possibly).

Two Examples of ‘Mechanical’ Punishment (Without Guilt)[1]

The author of Sefer ha-Chinuch, in Mitzvah 69 (the prohibition against cursing judges and against blasphemy), writes as follows:

“Not to curse judges, as it is said (Ex. 22:27), ‘You shall not revile Elohim,’ and its meaning is ‘judges,’ as in (Ex. 22:8), ‘Those whom Elohim condemn.’ Scripture expressed it with the term Elohim in order to include within this prohibition another prohibition as well, namely the prohibition of blaspheming the Name, as our Sages said in the Mekhilta and Sifrei: the warning against blasphemy is derived from ‘You shall not revile Elohim’; what is written elsewhere (Lev. 24:16), ‘One who pronounces the Name of the Lord shall surely be put to death,’ is the punishment, but the warning comes from here, for mentioning the punishment for a commandment does not suffice without a warning. This is what our Sages always say: ‘Punishment we have heard; from where [do we learn] the warning?’ The point is that if we were told only of the punishment without a prohibition from God, that is, if it were merely stated that one who does such-and-such shall be punished thus-and-so, it would imply that any person is at liberty to accept the punishment and, paying no heed to the pain, transgress the commandment—so that in doing so he would not be acting against the will of the Blessed One, and the commandment would thus be reduced to a sort of commercial transaction: whoever wishes to do such-and-such shall pay thus-and-so and do it, or bear such-and-such and do it. But that is not the intent of the commandments. Rather, the Almighty, for our benefit, restrained us by words and informed us in some cases of the punishment that will befall us immediately, apart from the violation of His will—which is graver than all. This is what they said: ‘In all cases He does not punish unless He has warned,’ that is, He does not inform us of the punishment that comes upon us for transgressing the commandment unless He first informs us that His will is that we not do that thing for which the punishment comes.”

The Sefer ha-Chinuch explains why, in addition to a punishment, the Torah also requires a prohibitive verse that forbids the act. If only the punishment were stated, one might think that the punishment is not a response to our having acted against God’s will but a sort of mechanical reaction—punishment without sin. There would be a kind of stipulation that whoever does a certain act will receive a punishment in response, but there would be no process of judgment and deterrence—only a kind of law of nature (a “law of action and reaction”).

The author of the Minchat Chinuch (Mitzvah 519 §4) proposes explaining, based on this principle, Jonah the prophet’s flight from God. Seemingly, he violated the prohibition of suppressing one’s prophecy. The Minchat Chinuch explains that in this offense there is a punishment but no explicit warning (the Jerusalem Institute edition notes already remark that this is an error), and therefore Jonah decided to transgress it and bear the punishment. He did not act against God’s will; the punishment would be a result of the stipulation. In the end the Minchat Chinuch rejects this possibility.

Another example appears in Temurah 3b, where the Talmud entertains the possibility that a person would, according to halakhah, be obligated to take an oath of truth, and nonetheless he would be flogged for it (see there the commentary of R. Gershom on the page, and compare Rashi). In the Talmud’s conclusion, this too does not in fact exist.

What emerges from these two examples—and in fact already from the words of the Sefer ha-Chinuch above—is that the Torah does not punish without sin (in the sense of an act against God’s will). If so, in the matter of edim zomemim as well, we cannot say that the first set of witnesses is punished without having committed any sin, merely by a Scriptural decree. This is not related to the topic of reasons for commandments (ta‘amei ha-mitzvot) and the death penalty for Sabbath desecration; here there is killing without any transgression at all—not killing for a transgression without a known reason.

We are therefore compelled to conclude that the Torah teaches us that they truly lied, and for that they are punished. That is, the conclusion must be that there is a substantive rationale (sevara) underlying the credibility of the refuting set of witnesses. The refuted set indeed lied in fact, and only thus is there justification for the punishment imposed upon them.[2]

The Legal–Halakhic Aspect

So far we have dealt with the moral aspect. The more problematic aspect, however, is the legal–halakhic–interpretive one. The verses explicitly state that edim zomemim are punished for the sin of falsehood by which they wished to incriminate an innocent person (“Behold, the witness is a false witness; he has testified falsehood against his brother; and you shall do to him as he schemed to do to his brother”). But according to the approach that this is a Scriptural decree without rationale, they did not lie at all, and the defendant is not necessarily innocent. The question we raise here is not moral but interpretive: according to the “Scriptural decree” school, how can we possibly interpret the biblical verses that instruct us to punish edim zomemim for falsehood, when in reality they did not lie?

Had the Torah intended to tell us to execute them “just because,” like Sabbath desecrators, it should have said: execute witnesses who were refuted (leaving aside the moral problem for the moment). If it had said that witnesses whom other witnesses come and refute must be executed—without labeling them “false witnesses”—that would be understandable (again, apart from the moral issue). But the Torah does not say that. It tells us to execute false witnesses, and because of the problem of how it could be that witnesses are found to be false, the Torah hints that these “false witnesses” are those who are discovered through hazamah. Why would the Torah “mislead” us and classify them as liars who die because of their lying, when in fact they are no such thing and are executed due to a Scriptural decree? It stands to reason that if the Torah classifies them as liars, then in its eyes they truly are liars. If so, there must be a rationale here; it is not merely a decree. The second set is genuinely preferable to the first, and we genuinely understand that the first set lied.

To put it differently: nowhere in the Torah do we find a Scriptural decree that overturns reality—that calls black white. And certainly not a decree that overturns reality and then establishes laws, and certainly not punishments, based on that imagined reality. Halakhah does not come and punish black for being white.

Comparison to the Scriptural Decree of Disqualifying Relatives from Testifying

As an example to sharpen the problem, consider the disqualification of relatives (pesul kerovim). The Encyclopedia Talmudit, entry “Gezerat ha-Katuv,” notes that there are Scriptural decrees that instruct us to relate to reality differently: “that we hold the matter as if it were so in reality, even though reason indicates that reality is otherwise.” One example is the disqualification of relatives from testifying.

The Shulchan Aruch (Choshen Mishpat 33:10; see also Rambam, Hilchot Edut 13:15) formulates this law as follows (its source is Bava Batra 159a):

“That the Torah disqualified the testimony of relatives is not because they are presumed to love one another—for they are disqualified to testify both to acquit and to convict—and even Moses and Aaron are unfit to testify for one another. Rather, it is a Scriptural decree.”

One might have understood this law as relating to the judicial plane and not to reality: the Torah decrees that we not accept the testimony of relatives, but it does not say that they are liars. There is a prohibition against using their testimony to adjudicate their relatives’ cases.

Yet later authorities wrote that this is not so (see Chiddushei ha-Rim, ad loc., at length). In monetary cases, if we know the facts, there is no need for testimony to render judgment. Therefore, if the relatives are truthful and the disqualification is a Scriptural decree (as the Talmud says), we could still render judgment not on the basis of their testimony, even if formally their testimony is invalid. The Chiddushei ha-Rim therefore writes that the Torah decreed here that we treat them as liars—that is, we artificially alter reality and rule accordingly.

It would seem that here we do have a Scriptural decree that changes reality: both regarding the relatives, whom it deems “liars,” and regarding the content of the testimony—we know what happened (say, a loan), and nevertheless we rule as if it did not happen. This example would appear to contradict our earlier assumption that halakhah does not employ Scriptural decrees that alter reality.

As for the witnesses themselves, this is not comparable to hazamah. With relatives we do not accept their testimony, but we do not impose any status or punishment upon them because of it. Thus, there is no real alteration of reality here. Moreover, they were not supposed to come and testify in the first place; indeed, it is forbidden for them to do so. Here, then, there is no being trapped in a situation against their will, as we saw with edim zomemim, who were required by halakhah to come to court and say what they know.

However, regarding the content of relatives’ testimony, it would seem that there is an alteration of reality by Scriptural decree, and even a legal ruling based upon it: we know that there was a loan, and yet we render judgment as though there had not been one. This is, ostensibly, exactly the picture with hazamah according to the “Scriptural decree” view.

Still, the situation differs, at least in three respects:

1. Here we are disqualifying testimony in monetary matters, but we are not executing anyone. Even in capital cases we merely do not accept the testimony; it is hardly plausible that we would execute on that basis. One might imagine a scenario where two witnesses testify that so-and-so committed murder, and two relatives arrive and contradict them, claiming he did not murder. In such a case the relatives’ testimony is invalid, and we execute the accused even though we have a genuine doubt regarding his guilt.

In an even more extreme scenario, the second set—who are relatives—does not merely contradict but refutes (mezimim) the first set. Now we know with certainty that the first set are liars (by the rationale of hazamah), and yet we would execute the accused on the basis of the first set, merely because the refuters were relatives and we did not accept their testimony by Scriptural decree.[3] It is very plausible that in such a case the court would recuse itself and not impose a death sentence on the basis of the Scriptural disqualification of relatives.

As noted, the moral problem would also not exist here, since it is fairly clear that we would not execute the defendant in such scenarios, if only because of the rule of a “tainted case” (din merumeh), which instructs a judge who suspects that his ruling will not be true to withdraw from the case. In my view, even in monetary law it is not necessary, as the Chiddushei ha-Rim suggests, to ignore the testimony of relatives in such circumstances; perhaps one can also withdraw there because of din merumeh.

2. The Torah has a reason why it wishes to disqualify the testimony of relatives and treat them as if they were liars. That reason is not that they are liars, but an external reason for which the Torah does not want us to rely on relatives’ testimony (derived from the verse “Parents shall not be put to death for children”—as regards children testifying). Therefore, with relatives the Torah does not tell us that they are liars; it simply instructs us not to accept their testimony (for this reason it also does not punish them). By contrast, in the case of zomemim the very reason the Torah gives is that they lied. If there were another reason, the Torah should have told us to execute them for that reason, and not invent falsehood ex nihilo and hang the punishment on their “lying.” If so, even if a moral question might arise with relatives, the interpretive problem certainly does not exist there.
3. It is crucial to emphasize another decisive difference between the problem posed by the Scriptural decree regarding edim zomemim and that of relatives. In the case of zomemim, the disqualification of the first set is the very core of the Torah’s novelty. This is not an exceptional one-off; it is a problem inherent in the law itself. The law, as such, is irrational. By contrast, the disqualification of relatives does not inherently lead to moral catastrophes and has its own logic (whether we grasp it or not). Occasionally an exceptional situation may arise in which this acceptable and reasonable principle leads to a localized problem. Therefore, with relatives the difficulty is less acute, since a legal system cannot be perfect and cover every case (this is one of the functions of din merumeh). But with edim zomemim this is not an accidental bug in the system; here the halakhic definition seems distorted in and of itself. In other words: here we would have to invoke din merumeh in every single case of hazamah, not only in some specific scenario. This is not a rare situation; it is the normal case. It cannot be that the Torah expects us, as a rule, not to carry out this law and to invoke din merumeh so as not to execute the innocent. In the next section I will bring an illustration of this distinction.

Rabbi Shimon ben Shetach’s Son: Execution on Procedural Grounds

We find in the Talmud a case in which a man was indeed put to death for a crime he had not committed, for purely procedural reasons. There are several versions (with significant differences) of this incident. The Babylonian Talmud, Sanhedrin 44b, states:

“Our Rabbis taught: There was a case of a man who was going out to be executed. He said: ‘If I am guilty of this sin, may my death not atone for all my sins; but if I am not guilty of this sin, may my death atone for all my sins, and may the court and all Israel be innocent, and may the witnesses never find forgiveness.’ When the Sages heard this, they said: ‘To bring him back is impossible, for the decree has already been decreed. Rather, let him be executed, and let the collar be hung on the necks of the witnesses.’—That is obvious; how could it be otherwise?—It was necessary [to teach this], for the witnesses had retracted. And what of it if the witnesses retracted? Once one has testified, he cannot retract his testimony! It was necessary [to teach this] even when they gave a reason for their words (as in the case that required concealment).”

The case is of a man led out to be executed who proclaimed his innocence. The witnesses retracted shortly before the punishment was carried out (and even provided an explanation to account for the falsehood in their first testimony), and the Sages did not cancel the sentence, since as a matter of law a witness cannot retract his testimony. The Sages decided to execute him, and to hang the blame upon the witnesses.

Rashi there relates that the condemned man was the son of Shimon ben Shetach, and that the false testimony resulted from Shimon ben Shetach’s famous execution of the eighty witches (see also Jerusalem Talmud, Chagigah ch. 2, and elsewhere). The case also appears in the Jerusalem Talmud, Sanhedrin 6:3, and in the Tosefta, Sanhedrin ch. 9, among other places. Seemingly, this is the execution of an innocent man on purely procedural grounds. Such a ruling would contradict our assumption that one does not execute a person when the court is certain he is not guilty of the offense that warrants the punishment.

It should be noted, however, that in some of the sources it is not explicit that the witnesses retracted (see, for example, in the Tosefta), in which case this is more understandable: then it is a suspicion of an erroneous ruling rather than certainty. There would still have been room to vacate the ruling because of din merumeh, but at any rate this does not flatly contradict our thesis.

In the Babylonian Talmud, Tosefta, and Rashi, however, it is explained that the court could not legally rescind the punishment because of the rule that “once he has testified he cannot retract.” By contrast, in the Jerusalem Talmud, Sanhedrin 6:3, it states that the court wished to reverse itself, but Shimon ben Shetach’s son himself requested that they carry out the erroneous ruling. There it says:

“Shimon ben Shetach’s hands were hot. A band of scoffers came and said: ‘Give counsel; let us testify about his son and have him killed.’ They testified against him and he was sentenced to death. When he went out to be executed, they said to him: ‘Master, we are liars;’ his father sought to have him returned. He said to him: ‘Father, if you desire that salvation come by your hand, make me as a threshold (to be trampled).’”

This is a “Socratic” case, in which the condemned man himself asks that the sentence be carried out and personally prevents his own rescue. Why would he do so? It would seem that his goal was to save the rule of law (exactly parallel to the well-known description of Socrates in prison in Plato’s Crito). After Shimon ben Shetach executed eighty witches, he wishes to show that there is no favoritism in judgment, and his act was in the category of “salvation.” The son is prepared to sacrifice himself for that aim. The conclusion is that, as a matter of strict law, they indeed should not have executed him; the execution was beyond the letter of the law. If so, this does not contradict our assumption above.[4]

It is interesting to note that in Bavli Makkot 5b we are told that Yehudah ben Tabai, the colleague of Shimon ben Shetach (see Avot 1:8; Yerushalmi, Chagigah ch. 2, and elsewhere), executed a single refuted witness (ed zomem) who had been refuted alone, in order to uproot the view of the Sadducees who held that a refuted witness is executed only if the defendant’s sentence had actually been carried out. Shimon ben Shetach told him that he had shed innocent blood, since the law is that the witnesses are not punished until both are refuted. He undertook to judge only in the presence of Shimon ben Shetach, so that the latter would supervise him and prevent error.

Here too it would appear that someone innocent was executed for extraneous reasons (to uproot the Sadducees’ view). Yet note that here it involved a witness who had been refuted; his execution was therefore not entirely unjustified. Had there been another witness alongside him, he would certainly have been liable to death. Beyond this, in this case there is, according to all opinions, no novelty in the credibility of the second set, for two witnesses testified regarding one witness (Sanhedrin 27a explicitly states that there is no novelty in refuting a single witness). If so, the punishment was in principle due him; it was not carried out only for “Scriptural decree” considerations. Moreover, here too it is a matter of punishment beyond the letter of the law (as in the previous case, according to the Jerusalem Talmud’s version), not the establishment of an unjust law as part of halakhah. If so, this case also does not flatly contradict our assumption.

Even if we say that Shimon ben Shetach’s son was indeed executed without any guilt—only for procedural reasons (and not merely as a one-time, extra-legal punishment at his own request)—there still remains an important difference between that case and our issue, rooted in the rationale presented in the previous section: the case of Shimon ben Shetach’s son is an exceptional case. The procedural rule that does not allow witnesses to retract their testimony is generally logical and clear (since allowing such retraction would open the door to very serious problems). It can, at times, create an exceptional situation in which an innocent man is executed. Theoretically, one might imagine that in such a case the Sages would insist on upholding procedure even at the cost of a human life (though it is hard to understand why not vacate the ruling as a din merumeh, were it not for the explanation that there was a unique judicial interest here, as in the Jerusalem Talmud’s version). By contrast, according to the “Scriptural decree” approach to edim zomemim, the case of edim zomemim is entirely arbitrary procedure, with no justification in any case. This is not an exceptional case of a justified rule; it is a rule that is unjustified through and through. With edim zomemim we would execute innocents in every case. Why legislate an arbitrary procedural rule like that? Such a situation is patently unreasonable, as we saw at the end of the previous section.

The Fundamental Difficulty—and the Difficulty in the Commentators’ Position

Up to this point we have described a substantive difficulty with the “Scriptural decree” approach to edim zomemim. It cannot be that the Torah decrees that we regard the refuted witnesses as liars even though in reality they are not, while at the same time imposing upon them the death penalty for their “lying.”

But this difficulty need not trouble us necessarily, except perhaps according to Maimonides. As we saw in the previous column, according to the other Rishonim there are rationales that explain the logic of believing the refuting set of witnesses. The problem lies with some later authorities (Acharonim, such as R. Shmuel Rozovsky). They find it necessary to note that the rationale offered by the Tur and by Nachmanides is incorrect, and therefore they claim that according to all opinions it is a Scriptural decree. Their assumption is that the view of the Tur and his allies is the more problematic position. Yet none of them takes care to point out that it is precisely Maimonides’ position that is more problematic, for on his view there is a death penalty for innocent people based on a Scriptural decree that redefines reality. They should have noted that Maimonides, who speaks of a Scriptural decree, does not hold that there is no rationale here—whereas the Tur and Nachmanides, who say there is rationale, need not hold that this is a Scriptural decree.

A Possible Solution: Divine Guarantee

One might suggest that the Holy One, blessed be He, guarantees that whenever a case of edim zomemim arises, the second set will always be truthful and the first set the liars. That is, although there is no natural legal logic for assuming that the first set is lying—and in that sense this is a Scriptural decree—the Torah promises that in practice God will see to it, each time, that the refuted set are in fact the true liars. Thus, no perversion of justice will emerge from our hands, and we will indeed execute the liars. This consideration is similar to the metaphysical consideration quoted by Nachmanides in the previous column, that God assists the judges to bring justice to light and prevents them from erring in judgment. Something like this is also found in the aggadah in Bavli Makkot 10b regarding an inadvertent killer (rotzeach b’shogeg) who goes into exile: God arranges that he and one who deserves death meet at the same inn, so that providence works out justice for both.

But this, too, is not really a solution. First, how will God prevent the free choice of evildoers who choose to come later and refute a set of truthful witnesses? Human beings have free will to sin.[5] Second, arguments of this sort can be offered when the procedure itself makes sense, but we worry about special cases in which an error may emerge from our hands and we might execute the innocent. In such instances God can come and tell us that He guarantees that if we acted properly, no error will emerge from our hands. But the procedure must have basic logic in and of itself, and the “divine guarantee” serves only to “plug holes.” In our case, however, the procedure itself lacks logic. We could just as well leave the matter at trei u-trei, as we do in a simple contradiction, and let God guarantee that no mishap will result. The Torah decrees that we execute the zomemim, but on this explanation there is no reason for it at all; there is only a guarantee after the fact that no mishap will result.

By the same token, the Torah could have commanded us to fire a gun into the air on the hour every hour on the main street, while guaranteeing that no one would be harmed who does not deserve to be harmed. Clearly there is no logic to such a command, for the basic instruction is devoid of reason.

A Note on Principles That ‘Build Themselves’

There is a rationale similar to the “divine guarantee,” which instructs us to believe the first set more than the second—at least in capital cases (and perhaps not only there). It is a general type of reasoning that can justify a Scriptural decree on the grounds that it “builds itself,” i.e., the halakhic determination itself turns the situation into one that will come out justified. In our case the reasoning would be as follows: if the first witnesses are lying, they are doing so to have someone executed. Such a situation is possible (and has occurred), but a priori it is exceedingly unlikely that someone would lie in order to have an innocent person killed—especially if he is not known as the latter’s enemy. By contrast, if the second witnesses are lying, they are doing so to save the defendant. It is conceivable that someone would do that even if the defendant is liable to death, merely to save his life (even for moral reasons: he opposes the death penalty; he does not trust the court to have investigated properly; he suspects the first witnesses of lying or error; and so on). Therefore, their presumption of trustworthiness is less impaired in such a situation, since their lie would be more plausible and far less wicked.

But all this is true only before we establish the credibility of the second set and, on that basis, also impose the punishment of “as he schemed” (ka’asher zamam). Once we determine that the second set is believed and that punishment is imposed, the situation is completely balanced: now the second set is in exactly the same position as the first. If they lie, they are doing so to have the first set executed, not merely to save the defendant. As noted, it is unlikely that a person would lie in order to have an innocent person killed. Thus, now the situation is precisely balanced.

Note that on this explanation the punishment of “as he schemed” takes on deeper meaning. We must impose on the edim zomemim the very same punishment that would have been imposed on the defendant, so that the likelihood that the second set will lie will be exactly equal to the likelihood that the first will lie. Now it truly becomes trei u-trei, at which point there is room to consider all the other rationales. In other words, the punishment of “as he schemed” “builds itself”—it itself makes the law more reasonable and justified (or at least less unjustified).

We should add that once the sentence has been carried out, the situation changes. It is clear that the second set will not save the defendant, since he is already dead. Therefore, the likelihood that they are lying diminishes, since the lie would be pointless; it is thus more likely that they are telling the truth. This strengthens the Talmud’s question: why not apply “as he schemed” even after the sentence has been carried out?

In any event, once we have determined that no punishment is imposed on the zomemim in such a state, the likelihood that the second set is lying increases, since they cannot cause the first set to be executed. What reason would they have to lie at all? To clear the defendant’s name after his death—and all this without the heavy price of executing the first set. Thus, once again, the Torah’s law “builds itself.”

Needless to say, none of these considerations can serve as a justification for the law of “as he schemed,” or for the law that we do not do “as he did” (ka’asher asah). All these are after-the-fact justifications of the type: if we determine it so, it will also turn out right. But the opposite determination is also possible, and it too would “turn out right.” Hence the situation remains balanced, and we must look for an external reason why we chose to establish the law in this particular way. An after-the-fact justification cannot justify the law; it can only soothe the conscience when there is an external justification that has “holes.” In that sense, this type of reasoning is similar to the “divine guarantee.”

Beyond that, even if we accept a law that “builds itself,” that is not what truly happens here. Even if this consideration is correct, at most we have reached a state in which the two sets are not equally suspect; but then the question returns: why accept precisely the testimony of the second set? In the end, the law of hazamah instructs us to execute the first set, and this consideration does not suffice to justify that.

A Scriptural Decree with Reason and Rationale

We saw that some later authorities argued that according to all the early authorities—and not only Maimonides—the law of hazamah is a Scriptural decree. But the truth that emerges from our discussion appears to be the reverse: not only do the Tur and Nachmanides hold that the basis of the law is a rationale, but even Maimonides—who ostensibly speaks of a Scriptural decree—must agree that there is a rationale here. That is, according to everyone, factually it must be clear that the first set lied and the second set is credible—not merely possibly so. As we have seen, this cannot be a Scriptural decree detached from actual reality.

We should add here Maimonides’ words quoted at the opening of the previous column (Guide of the Perplexed III:31), to the effect that every law has reasons that relate to character traits, beliefs, or social-political order. It is therefore very likely that, in his view as well, edim zomemim are not executed “for nothing.” It stands to reason that, according to him, this Scriptural decree (and perhaps all of them) has a logical reason—and from the other Rishonim it appears that we can even understand it.

If so, why does Maimonides speak of a Scriptural decree? Note that Nachmanides, too, in his explanation quoted above, mentions the “decree of the ruler” immediately after he sets out the rationale. This also raises a question about the very concept of “Scriptural decree.” Does the term even have independent meaning? We are thus forced back to the question posed at the outset: if there is a rationale for the law, why do we need a verse? All the more so: why do we even label such a law a “Scriptural decree”?

To this—next time.

[1] I saw both examples years ago in a short article by R. Dov Landau, Rosh Yeshiva of Slabodka–Bnei Brak, in some memorial volume; I do not recall where.

[2] This is, of course, a proof that there must be a rationale; it is not itself a source for the rationale. In the previous column I cited several possibilities to explain, on rational grounds, the credibility of the second set.

[3] There is ample room to discuss whether we truly would not believe relatives in such a case. At least regarding women, the view of the Terumat ha-Deshen is well known (see also Rema, Choshen Mishpat end of §35, and Noda bi-Yehuda, §58) that in incidental testimonies—where it is impossible to use valid witnesses because the witnesses were those who happened upon the scene—women, too, are fit to testify. The invalidity of women applies only to pre-arranged testimonies, where the Torah commands us to summon specifically valid witnesses. From the beginning of the Rema’s wording there it sounds like this would apply to all invalid witnesses.

True, in the Rema there it appears that this is a rabbinic enactment of the early authorities (kadmonim), but in the Terumat ha-Deshen and Noda bi-Yehuda it sounds like there is a biblical element to it; see there at length. See also the Noda bi-Yehuda there regarding his dispute with the questioner whether this validation applies in every situation where valid witnesses are impossible, or only in cases where this is inherently the situation (such as a women’s bathhouse or the women’s section of a synagogue).

In any case, according to this, the entire objection from relatives falls away from the outset. No perversion of justice can result from the disqualification of relatives, for in a case of potential perversion of justice the disqualification does not apply at all.

[4] Note that some link Shimon ben Shetach’s saying in Avot (1:9) to this case:

“Shimon ben Shetach says: Be very probing in examining the witnesses, and be cautious in your words lest from them they learn to lie.”

[5] It is no coincidence that the aggadah about the inadvertent killer concerns killing by accident, where the killer did not choose to do so but “God caused it to come to his hand.” In such a case it is a divine act, and therefore there is a divine guarantee that everything is measured according to divine justice. But with an intentional murderer there is no such guarantee, for a person has the option to choose to murder someone—even if he is innocent. Here, even if the victim is innocent, God does not guarantee that he will not die, for there is freedom to sin. This is explicitly the view of Rabbenu Ḥananel on Chagigah 5a regarding the verse “There is one who is swept away without justice,” which he explains as referring to a deliberate murderer (see R. Mordechai Goodman, “Ha-yesh nispeh belo mishpat?,” Tzohar 11 [Summer 2002]).