Conspiring Witnesses: Can One Execute by ‘Scriptural Decree’?

The Rabbi’s opening post

Conspiring Witnesses: Can One Execute by ‘Scriptural Decree’?

Posted on 25/3/2006

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Conspiring Witnesses: Can One Execute by ‘Scriptural Decree’?

As is well known, the Torah recognizes two kinds of conflict between groups of witnesses: contradiction—in which the two groups give opposite testimony about some event; and refutation—in which one group testifies about an event, and another group testifies that the first was not even present at the scene. The Torah rules that in the second case the first group is established as false and only the second group is believed, and the conspiring witnesses are treated as they sought to do to the person about whom they testified. If they testified regarding murder, or Sabbath desecration (whose punishment is death by stoning), they are executed, and so forth.*:namespace prefix = o ns = “urn:schemas-microsoft-com:office:office” />

And it is well known that the medieval authorities disagreed regarding the law of conspiring witnesses:

According to Rambam, this is a scriptural decree, for the first witnesses are no less credible than the latter, and under the basic law the result should have been ‘two against two.’ The Torah introduced the novelty that the latter are believed and the former are not. In Rambam’s words (Laws of Testimony 18:3):

That the Torah believed the testimony of the latter witnesses against the former witnesses is a scriptural decree. Even if the first witnesses were one hundred, and two came and refuted them, saying to them, ‘We testify that all one hundred of you were with us on such-and-such a day in such-and-such a place,’ they are punished on the basis of the latter witnesses, for two are like one hundred and one hundred are like two. Likewise, where there are two groups of witnesses that contradict one another, we do not follow the majority; rather, we reject both of them.

According to the Tur and Ramban, there is a rationale here: the first witnesses are testifying about themselves, and therefore they are not believed (like a litigant). The latter, however, testify about the former, and therefore they are believed, like two witnesses who testify about the former that they are robbers or otherwise disqualified for some reason, where everyone agrees that the latter are believed and the former are disqualified. In the Tur’s words (Hoshen Mishpat, sec. 38):

What is the difference between contradiction and refutation? Contradiction does not concern the persons of the witnesses themselves; rather, they contradict them, for these say, ‘So-and-so borrowed from so-and-so,’ and those say, ‘We know that he did not borrow, because we were with him all day and saw that he did not borrow.’ Refutation, however, concerns the persons of the witnesses, for they say, ‘At that very time when you say he borrowed, you were with us.’ And for this reason the latter are believed, since they testify about the persons of the witnesses, and it is as though they testified about them that they committed murder or desecrated the Sabbath; and they are not believed about themselves to say, ‘We did not do such-and-such.’ And even if the first witnesses were one hundred, the latter are believed against them to put them to death, whether the hundred testified all at once or whether they testified one after another, two after two, and these refuting witnesses refuted each group separately, one after the other.

Ramban wrote similarly (Deuteronomy 19:18):

‘And the judges shall inquire thoroughly, and behold, the witness is a false witness’—Scripture did not explain how it is known that he is a false witness. For when the matter consists of two witnesses testifying about an event, even if a hundred come and contradict them, it is not thereby clarified that they testified falsely. Nor can we say that the alleged victim came walking in alive, for in such a case Scripture would not say, ‘And the judges shall inquire thoroughly.’ Therefore the trustworthy tradition came and explained that refutation occurs when they say, ‘But on such-and-such a day you were with us’ (Makkot 5a). The reason is that this testimony concerns the persons of the witnesses, and they are not believed about themselves to say, ‘We did not do this,’ just as the latter could say about them that they committed murder or desecrated the Sabbath.

Lechem Mishneh, on this ruling in Rambam, says that Rambam and the Tur are following their respective approaches, for Rambam holds that a refutation accompanied by contradiction is not treated as refutation but as contradiction—on the principle that ‘you have only its novelty and no more.’ From the Tur, however, it appears that he disagrees with Rambam on this point as well, since the rationale for believing the latter exists here too.

There are additional proofs that Rambam and the Tur are consistent with their respective positions, but this is not the place to discuss them.

Sefer HaChinukh, in commandment 524, brings the reasoning of the Tur and Ramban as something one of the sages told him as ‘a bit of a rationale in the matter’; that is, it seems that for the author of HaChinukh there was no rationale here at all and this was a scriptural decree, until someone came and suggested to him ‘some rationale’ in the matter (which is not entirely sufficient on its own).

And in fact, R. Shmuel Rozovsky and other later authorities added that clearly, even according to the Tur, this is a scriptural decree, for the testimony of the first witnesses about themselves is not truly the testimony of a litigant, since the subject under discussion is not their testimony but the act itself. The implication for the witnesses is only incidental. If the testimony of the first witnesses about themselves were indeed considered the testimony of a litigant, then every testimony would contain an element of disqualification, since every witness also says about himself that he was present at the scene. On that basis we would not need another group of witnesses in order to disqualify them, because they themselves would be litigants.

And indeed, on the next verse (19), Ramban writes that conspiring witnesses are disqualified ‘by decree of the Sovereign.’

We may add that in the Talmudic discussion in Sanhedrin, Abaye and Rava disagree regarding the disqualification of conspiring witnesses: according to Abaye, they are disqualified from the moment of their testimony, and according to Rava they are disqualified from the moment of the refutation. One of the reasons the Gemara gives for Rava is that a conspiring witness is a novelty, and ‘you apply it only from the moment of its novelty.’ That is, since this is a scriptural decree, we apply it only to the minimum necessary. From Rambam’s words above it emerges that Rava too agrees that this is a scriptural decree, although in his view that is not enough to invalidate them retroactively prior to the refutation.

Now for my question and request to the esteemed public:

How can it be that we execute witnesses because of a scriptural decree? The meaning of this is that there is a substantial possibility (50 percent) that the conspiring witnesses were in fact telling the truth. And nevertheless, because the Torah decrees it, we execute them.

One must remember that conspiring witnesses do not require prior warning; that is, they come innocently to testify truthfully, and we execute them with no warning at all and with no proven guilt.

True, we do find scriptural decrees because of which people are executed. For example, one who intentionally desecrates the Sabbath is executed. But that is after he has been warned, and after he knows that the act is forbidden and that the Torah punishes it with death. Here, however, they are testifying truthfully, and they have no reason to suspect that someone will come and kill them. And we believe them (in principle we should have presumed them fit, at least according to Rav Huna, who holds that in a case of two-against-two contradiction they are not disqualified).

This, of course, is inconceivable and ought never to be said. And it has nothing to do with the question whether the commandments have reasons or not. It is obvious to everyone that one may not execute without guilt, and one cannot determine as a matter of fact that someone lied by a mere scriptural decree when that is clearly neither necessary nor proven.

More difficult still: how is it that none of the later authorities even senses the difficulty and comments on it? We noted that R. Shmuel Rozovsky and those who follow his approach even remark that, according to all views, it is clear that this is a scriptural decree. They do not find it necessary to remark that, according to all views, it must also be clear that there is a rationale here as well.

In my humble opinion, it is quite clear that no one disagrees that the first witnesses are indeed liars, and that there is a rationale for this (see, for example, Pnei Yehoshua on Makkot 5a). The talk of a ‘scriptural decree’ is nothing more than citing a source from the Torah to reinforce the rationale (and in my humble opinion many scriptural decrees are like this; I have also seen this in Rabbi Shilat’s book on MHRGN, and I once brought evidence for it from the Meiri at the beginning of the section on the stubborn and rebellious son, but this is not the place).

How do all the later authorities ignore the problem and continue to engage in dialectical analysis over whether this is rationale or scriptural decree? Is no one bothered that we are killing an innocent person without evidence, merely because of a scriptural decree?

Source (‘Stop Here, Think’ forum): http://www.bhol.co.il/forums/topic.asp?topic_id=1855687