Topics in Tractate Makkot, Chapter 3 – Lesson 4 – Rabbi Michael Abraham
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
🔗 Link to the original lecture
🔗 Link to the transcript on Sofer.AI
Table of Contents
Topics
- Opening: Does repentance help with respect to punishments imposed by a religious court? A review of the three explanations discussed previously: the Chida, the Noda B’Yehuda, and the Maharal, and the difficulties in each of them.
- A critique of the Chida — the claim that a religious court cannot know what is in a person’s heart is problematic, since elsewhere a religious court does in fact decide whether a person has repented.
- The Noda B’Yehuda’s explanation and deterrence — if repentance exempted a person from punishments imposed by a religious court, everyone would claim to have repented and thereby undermine the whole penal system.
- Admitting liability for a fine as a principled exception — the Rabbi suggests that the exemption is not merely a problem of admissibility of self-incrimination, but a waiver that stems from repentance.
- The distinction between “a person cannot render himself wicked” and “one who admits liability for a fine is exempt” — the first only disqualifies admissibility, while the second creates an exemption even if witnesses come afterward.
- Defining the overall strategy — to challenge the assumption that repentance is irrelevant to a religious court by raising difficulties with the accepted explanations and presenting significant exceptions.
- Expanding the discussion to conspiring witnesses — an analysis of the baraita in Makkot: “they do not pay based on their own admission,” and Rabbi Akiva’s explanation that their liability is considered a fine.
- What defines a fine — not compensation for actual damage caused, but punitive liability not measured by the amount of damage; therefore, in the case of conspiring witnesses, who caused no actual result, the liability is a fine.
- A dispute over how to understand the kind of fine in conspiring witnesses — whether only monetary payment counts as a fine, or whether lashes and death under “as he intended” are also a fine, as in Rashi and the Rosh.
- The meaning of the punishment of conspiring witnesses — the punishment is not for the lie itself (“לא תענה”, “do not bear false witness”) but for the plot against the accused; therefore, when no actual harm occurred, this is a unique kind of fine.
- A discussion of Maimonides and the Rashash — Maimonides limits the rule that “they do not pay based on their own admission” to money, unlike other medieval authorities who extend it to lashes and death as well.
- Tosafot Shantz as explicit evidence — the lashes of conspiring witnesses are considered a fine, unlike the lashes in the case of a disqualified priestly lineage, where they are punishment for the false testimony itself.
- An essential distinction between ordinary punishment and punitive-fine — ordinary punishments imposed by a religious court repair a flaw in reality, whereas with conspiring witnesses the punishment is directed at the person, and therefore repentance helps.
- Rashi on Makkot 5a — a far-reaching innovation: a murderer who comes and confesses before witnesses arrive would be exempt, because his confession is understood as repentance that exempts even from punishments imposed by a religious court.
- A possible resolution of the original passage — in the Talmudic passage that says repentance does not help for punishments imposed by a religious court, it apparently refers to repentance after the verdict, not before it.
Summary
General Overview
This lecture dealt with a fundamental question: can repentance exempt a person even from punishments imposed by a religious court, or does it help only with regard to punishments from Heaven? The starting point of the discussion is the Talmudic passage implying that repentance does not help for lashes and death, but the Rabbi seeks to challenge that accepted assumption. To do so, he presents two moves: first, to show that the standard explanations for why repentance does not help in court are not sufficiently convincing; and second, to point to halakhic exceptions that suggest repentance may in fact operate even within an earthly legal framework.
The Three Common Explanations and Their Difficulties
The Chida explains that a religious court cannot know what is in a person’s heart, and therefore it does not take repentance into account. The Rabbi notes that this is problematic, because elsewhere a religious court does in fact deal with repentance and with restoring someone to eligibility as a witness; in various places we see that the court determines whether a person repented or not. The Noda B’Yehuda offers a deterrence-based explanation: if repentance exempted a person, everyone would claim to have repented. Here too, in the background, is the same difficulty of verifying authenticity. The Rabbi thinks these explanations are not decisive, and certainly do not fully explain why someone who has been cleansed through repentance in the heavenly court would not also be cleared in the earthly court.
Admitting Liability for a Fine: Not Just Inadmissibility but an Exemption
The central example is the rule that “one who admits liability for a fine is exempt.” The Rabbi argues that this should not be understood merely as a problem of admissibility, similar to “a person cannot render himself wicked,” but as a substantive exemption: a person who confessed has done something like repentance, and therefore the fine, which is a punishment, is waived. The proof comes from the rule: “one who admits liability for a fine, and afterward witnesses come” — if this were only a matter of disqualifying the admission as evidence, there would still be room to obligate him on the basis of the witnesses; but since Jewish law exempts him even then, it is clear that the confession itself creates the exemption.
Conspiring Witnesses as a Fine, Even in Cases of Lashes and Death
From there the Rabbi moved to conspiring witnesses. Rabbi Akiva says that they “do not pay based on their own admission” because their liability is a fine. The Rabbi discusses whether this applies only to monetary payments, or whether even lashes and death under “כאשר זמם” (“as he intended”) are considered a fine. From Rashi, the Rosh, and Tosafot Shantz there emerges a far-reaching possibility: even the death and lashes of conspiring witnesses are a fine, because there is no repair of actual damage done — after all, “לא עשו מעשה” (“they did no act” in the sense that no result occurred), and the injured party suffered no actual harm.
Punishment for the Lie or for the Plot?
The central innovation is that the punishment of conspiring witnesses is not for the lie itself, since false testimony has another track, as in the case of one declared the son of a divorced woman or a released-from-levirate woman. Here the punishment is for what they plotted to do to the accused. Since in practice no damage occurred, this is not compensation but a fine. From here the Rabbi concludes that such punishment is directed at the person himself, the offender, and not at repairing a damaged reality.
A Fundamental Distinction: Repairing Reality vs. Repairing the Person
At this point the Rabbi proposed a broader distinction: in ordinary punishments imposed by a religious court, such as a murderer or one who desecrates the Sabbath, the punishment may not be merely a response to the person but a means of repairing a flaw created in reality. Therefore, even if the person repents, there may still remain a need to “לכפר לארץ” (“atone for the land”) and to repair the act. In contrast, with conspiring witnesses, where no actual damage was caused, there is nothing to repair in reality; the punishment is directed only at the person. Therefore, in that case repentance can exempt.
Rashi’s Novel Reading: A Murderer’s Self-Confession as Exempting Him from Punishment
The high point of the lecture was Rashi in Makkot, from whom it appears that a person who murdered someone and came to confess before witnesses testified against him would be exempt. The Rabbi reads this as direct proof that confession is not merely inadmissible but actually exempts, because it expresses repentance. According to this, repentance helps even with respect to death and lashes, provided it was done before the verdict and authentically, not as a last-minute maneuver when witnesses are already about to arrive.
Resolving the Original Passage and the Conclusion
To reconcile this with the Talmudic passage that opened the discussion, the Rabbi proposes a distinction between repentance before the verdict and repentance after the verdict. The Talmudic passage from which it appears that repentance does not help for punishments imposed by a religious court is apparently dealing with someone whose sentence has already been handed down. In contrast, early and genuine repentance may exempt even in an earthly court. The lecture’s conclusion is that there is a real halakhic and conceptual basis for the view that repentance is indeed relevant to punishments imposed by a religious court, at least in some cases, and that the position that categorically denies this is far from simple.
Full Transcript
[Speaker A] We
[Rabbi Michael Abraham] We finish the loss, so then it’s our responsibility to fix it. Okay, we’re really in the discussion of repentance and punishments imposed by a religious court — can repentance help with respect to punishments imposed by a religious court? We saw in the Talmud that it doesn’t, and the question is why. So we spoke about three directions in the commentators explaining what the reason for that might be. The Chida says that a religious court cannot know what is in a person’s heart, whether he truly repented or didn’t truly repent — these are matters of the heart — and therefore an earthly court does not deal with matters of repentance. I noted that this is a problematic explanation, because a religious court does deal with matters of repentance and restoring someone to eligibility as a witness; in all kinds of other places we see that the court determines whether a person repented or not. So the court can determine such a thing. I noted that maybe it’s still possible to defend the Chida, but we won’t get into that now. The Noda B’Yehuda explains that deterrence is needed here. Meaning, if repentance were effective in exempting a person from punishments imposed by a religious court, then everyone would say, “I repented,” and that would be the end of it. Of course, in the background is the Chida’s claim. Why can everyone say he repented? Because we can’t know whether it’s true or not. In the background really stands the same assumption as the Chida’s — that we as human beings cannot know what is in a person’s heart — except that the Noda B’Yehuda says that if so, then he can fool us too; he can tell me, “I repented,” when he didn’t, and then basically we can’t punish anyone for his sins. And then the Maharal, who talks about the heavenly court dealing also with going beyond the strict letter of the law, and with positive commandments and not only prohibitions, and with reward and not only punishment — all those distinctions. We discussed the two directions he takes, whether they are in fact two directions, one and what the relation is between them, and so on. At the end of last time I spoke about one who admits liability for a fine, and I argued that it’s a counterexample. Because the explanation that seems to me the natural one for why one who admits liability for a fine is exempt is not, as people usually think, that this is a problem of admissibility — meaning that we simply do not accept his confession because he is testifying about himself, like “a person cannot render himself wicked” or something like that — but rather because he repented, and we waive the fine for him. Meaning, with compensation we would not waive it for him even if he repented, because in the end you still have to compensate the person who was harmed, or repay the loan to the person from whom you borrowed. So there is some concrete result that has to be reached. But a fine is a punishment. Once it’s a punishment, if the person repented then the punishment is waived, basically, because he repented. And in that I suggested an explanation for why if someone admits liability for a fine and afterward witnesses come, he is still exempt. If this were only a problem of admissibility — say, “a person cannot render himself wicked” — then if someone comes and says, “So-and-so lent me with interest and I lent to so-and-so with interest,” the Talmud in Sanhedrin 25, we do not accept his testimony about himself because a person cannot render himself wicked. Now what happens if afterward two witnesses come and say that he borrowed with interest or lent with interest? Then of course we would accept that testimony, right? And we would draw the appropriate conclusions. We would accept that testimony. Why? But doesn’t “a person cannot render himself wicked” apply? Right — he didn’t render himself wicked; the witnesses rendered him wicked. What he said is inadmissible. It’s not that he becomes exempt if he spoke; he does not become exempt. It’s just that what he said is not enough to believe him. So we put that aside; it’s irrelevant, as if he never spoke. Now if two witnesses come, why wouldn’t we accept their testimony? Two witnesses come and say that he borrowed or lent with interest. That’s all in the case of “a person cannot render himself wicked,” because there the problem is admissibility. But in the case of one who admits liability for a fine, as we saw, it’s not that the admission merely does not obligate — it exempts. What does it mean that it exempts? That even if witnesses later come and say that he raped, or that his ox gored, or that it was a non-habitual ox — all the cases of fines — we will not accept their testimony and we will not impose the fine on him. Why not? How is that different from “a person cannot render himself wicked”? Because “a person cannot render himself wicked” is an admissibility problem — we do not accept his testimony, and therefore it is as if he never spoke. If two witnesses come, then they convict him on the basis of the two witnesses. But in the case of admitting liability for a fine, it is not an admissibility problem — or not only an admissibility problem — rather there is also the element that we waived it for him because he repented. So what do I care if afterward two witnesses come and say that in fact that’s what happened? We know that’s what happened; we have no issue with that. It’s just that we do not punish him, or do not fine him, because we waived it for him — he repented. And therefore it seems to me that this is the natural explanation of the rule that one who admits liability for a fine and afterward witnesses come is exempt — that is how we rule in Jewish law, in accordance with Rav, that he is exempt. And if so, then in fact one who admits liability for a fine is an exceptional example to this general rule that repentance does not help with punishments imposed by a religious court. Because regarding fines we do see that it does help. Of course now one can ask: what happens if someone did not admit liability for a fine but did repent? Two witnesses came and said his ox gored, okay? His non-habitual ox gored, or that he raped, whatever the case may be. And then we obligate him to pay a fine. Now he repented. So if we say that repentance exempts from punishment, then what difference does it make whether the repentance takes the form of the person coming and confessing, or whether he simply repented independently of confessing? We have testimony, but he repented — so what’s the problem? You could exempt him. Here I don’t think that’s correct, because once the witnesses came and testified, he was already obligated. To exempt him from a punishment to which he is already obligated is different from never obligating him in the first place. Okay? Maybe even all the things we discussed earlier apply — once he’s already obligated, he’ll always rush to repent in order to get out of it or something like that — so all the explanations I gave before can be added in. But they are relevant after he has already incurred the punishment. Still, in the case of one who admits liability for a fine, where they want to obligate him on the basis of his own confession, there indeed we do not obligate him, okay? So that’s really a counterexample or an exception to this rule that repentance is not relevant to punishments imposed by a religious court. I just want to frame the discussion: basically my goal is to reach a conception — or at least a possible conception — that repentance does help with punishments imposed by a religious court. Contrary to what everyone thinks. Repentance does help even with punishments imposed by a religious court. So the strategy will be — the strategy is, not “will be” — one part of it is the difficulties in all the positions that explain why not. We brought three approaches; each one of them, none of them is really convincing, okay? So there are difficulties. Why not? Why are we assuming that it really is not relevant to punishments imposed by a religious court? After all, repentance cleanses me; it is supposed to help me in the heavenly court — why shouldn’t it help in the earthly court? What’s the problem? If I’m clean, why punish someone who is clean? Okay? So it’s a very good question, and the three answers are much less good. That’s one aspect of the argument — the difficulty in the explanations of why it should not help. And the second aspect is to show exceptions. To chip away at the accepted view that says punishments imposed by a religious court are unaffected by repentance — here, I’m showing you, one who admits liability for a fine: yes, it is affected. Meaning there are examples where even if I adopt the standard view, they would still have to agree that repentance helps even with punishments imposed by a religious court. And once that is so, it obviously strengthens the possibility of a conception — if such a conception is possible — that repentance helps generally with punishments imposed by a religious court. Of course that will still leave us needing to explain what happens in our Talmudic passage. In our passage, where Rabbi Akiva said, “כי אם הכרת”, if you remember, there we saw that repentance does not help for punishments imposed by a religious court, only for karet, which is a punishment at the hands of Heaven, but not for lashes and death, okay? So we’ll have to explain our passage. But at the level of the conceptual discussion prior to the passage, there are definitely good reasons to reach the conclusion that repentance does help even with respect to punishments imposed by a religious court. We still have to explain our passage, but there are some good reasons. So what I want to do right now is expand a bit on this exception of one who admits liability for a fine. Okay, so let’s see. Fine. It just doesn’t stop pestering me.
[Speaker C] That’s not healthy, that’s not healthy.
[Rabbi Michael Abraham] That’s what I told you — you should know, healthy means being pestered. Everything healthy is a nuisance. Healthy and tasty are two disjoint sets. Healthy and tasty, or comfortable and healthy, are disjoint sets. Meaning there is nothing that is both healthy and tasty, or healthy and comfortable — and vice versa. What? Kosher and tasty only barely overlap. Meaning no — actually, by the way, that’s true; it’s a mathematical principle. Obviously, if you have a kosher restaurant and a non-kosher restaurant, the non-kosher one will be tastier. It’s not a joke, it has to be that way. Because if the kosher one were tastier, then the non-kosher one would serve that too. But if the non-kosher one is tastier, the kosher one can’t serve it. Therefore kosher is the lower bound of non-kosher. Meaning it can only be tastier, or the same. Not to mention there’s more.
[Speaker E] It tastes good to me, but still only for the sake of observing. So don’t lie, in short. Yes. And here, one who admits liability for a fine is exempt. And obviously he was precise. So what? Is he still exempt? What? He
[Speaker C] Is he still exempt?
[Rabbi Michael Abraham] There’s a dispute between Rav and Shmuel; we discussed it in the previous lecture. A dispute between Rav and Shmuel, and in Jewish law the ruling is that if someone admits liability for a fine and afterward witnesses come, he is exempt. And therefore that means the confession is not merely non-obligating; the confession exempts. Because if it merely did not obligate, fine, so it does not obligate — now two witnesses came, obligate him based on them. If you see that even two witnesses who come later do not obligate him, that means the confession really exempts; it is not just that it fails to obligate. Okay. And the novelty that he
[Speaker D] knows.
[Rabbi Michael Abraham] Right, I’ll get to that later. That’s one possibility. I’ll get to it later. So I want to expand a bit on this matter of one who admits liability for a fine, and then I’ll expand it a bit more. Or more than a bit. Wait. Receiving… let’s put that tab there for a second. Okay. In the Talmud in Makkot 2b there is a baraita. “תנו רבנן” — the Sages taught. Oh, you can’t see? What? No, here there’s no response at all. Before there was. It’s on. Here, here, wait, wait, here. Maybe from the side. There. Wow, wow.
[Speaker A] What
[Rabbi Michael Abraham] It decided to do reserve duty for me today. Fine. It’ll shatter our myths — rationalist explanations. Fine. “תנו רבנן, ד’ דברים נאמרו בעדים זוממין: אין נעשין בן גרושה ובין חלוצה, ואין גולין לערי מקלט, ואין משלמין את הכופר, ואין נמכרין בעבד עברי. ומשום רבי עקיבא אמרו, אף אין משלמין על פי עצמן” — the Sages taught: four things were said concerning conspiring witnesses: they are not made into the son of a divorced woman or a released-from-levirate woman, they do not go into exile to cities of refuge, they do not pay ransom, and they are not sold as a Hebrew slave. And in the name of Rabbi Akiva they said: they also do not pay based on their own admission. Conspiring witnesses, briefly: if we have two witnesses who testify that Reuven murdered, and two witnesses who testify that he did not murder — that’s two against two, right? You can’t convict him and you can’t acquit him; it’s two against two. He goes free because of doubt. What happens if the first two witnesses say that Reuven murdered, and the second two witnesses testify that the first pair were with them somewhere else? Right? They are not testifying about the substance of the case, but only about the persons of the first witnesses. Then the second pair are making them conspiring witnesses, and they are believed, and the first pair are discredited and are not believed. This has two main consequences. One consequence is that they are disqualified from testimony; it turns out they lied. The second consequence is that they are punished, and the rule is that they are punished “כאשר זמם לעשות לאחיו” — as he intended to do to his fellow. Okay? Meaning, the Torah says that what they intended to do to the accused — to the litigant — that is what we do to them. That applies in lashes, in death, in money, in everything — whatever they wanted to do to him, we do to them. Of course only if they intended to do it and not if they already did it; I’m not getting into all the details now. In any event, there are places where we do not do to them “כאשר זמם”. When? If they testified about someone that he was the son of a divorced woman or a released-from-levirate woman, then they disqualify both him and his offspring, right? He becomes a disqualified priest, and then his offspring are disqualified too. But the offspring of the witnesses are not disqualified. And if the offspring of the witnesses are not disqualified, then we did not really do to them what they intended to do to the accused; what happens to them is not exactly what they wanted to happen to him. So a problem arises here — after all, there isn’t really “כאשר זמם”. Anyway, the Mishnah at the beginning of Makkot says that they receive lashes. In any case, they do not become the son of a divorced woman or a released-from-levirate woman. Okay? So that’s one rule. They do not go into exile to cities of refuge if they testified concerning exile; no matter, each thing has its own reason. What matters for us is what Rabbi Akiva says: that they do not pay based on their own admission. What does that mean? So the Talmud asks why. The Talmud says: in the name of Rabbi Akiva they said — what is Rabbi Akiva’s reason? “קסבר קנסא הוא, וקנס אין משלם על פי עצמו” — he holds that it is a fine, and a fine is not paid based on one’s own admission. Right? One who admits liability for a fine is exempt. By the way, there are two expressions in the Talmud here: “a fine is not paid based on one’s own admission” is one expression, and “one who admits liability for a fine is exempt” is another expression. They’re not the same thing. Right? “He does not pay based on his own admission” is lack of admissibility. But if that were all, then if witnesses came afterward — fine, you don’t pay based on your own admission, you pay based on the witnesses. But if you say, “one who admits liability for a fine is exempt,” as we saw, exempt means that the confession exempted him. If it exempted him, then even if witnesses come later he will not be liable. It’s an interesting question why the Talmud uses two different formulations — whether it intends two different meanings or not — I won’t get into that now. In any case, he does not pay based on his own admission. So the Talmud says: this is apparently a particular case of the laws of fines, right? One who admits liability for a fine is exempt, so if a person admits that he owes a fine, we do not obligate him — he is exempt. So also in the case of conspiring witnesses, where they incriminate themselves by coming and admitting that they conspired, we do not punish them, because this is one who admits liability for a fine being exempt. So it’s a specific case of that rule. Rava said: you should know this, for they did no act and yet they are killed and they pay. Rav Nachman said: you should know this, for the money remains in the owner’s possession, and yet they pay. What does it mean, “they did no act”? That’s just Rava’s point. Right, there are two statements here. Rava’s statement is: they did no act, and yet they are killed or forced to pay. Rav Nachman says: the money is still in the owner’s possession — they didn’t do anything, the money remained with its owner, and nevertheless they are made to pay. We spoke about this — “כאשר זמם” and not “כאשר עשה” — the punishment of conspiring witnesses, “as he intended,” applies only when their intention was not carried out. If it was carried out, then we no longer do to them “כאשר זמם”. So if they did no act and yet they are killed or made to pay or something like that, what does that mean? It means, says the Talmud, that this is a fine. Right? That’s what the Talmud says. Rabbi Akiva says that the punishment of conspiring witnesses is a fine — and why? How do I know it’s a fine? Because of the statements of Rava and Rav Nachman. Because the general rule is this: what defines a fine as opposed to ordinary monetary liability? When you pay not in the amount of the harm you caused. Right? Usually you pay more, though sometimes less — half-damages as a fine may be less. Exactly. Monetary compensation means paying the value of the damage you caused or the problem you created and restoring the situation to what it was before. That is called monetary liability. Liability for a fine means that in principle the monetary issue has already been resolved in some way, or doesn’t need resolution for some reason, and nevertheless you are still required to pay as a punishment. One indication of this is that the amount paid is not equal to the damage you caused. For example, half-damages as a fine in the case of a non-habitual ox, or double payment by a thief, or fourfold and fivefold payment. Right, all those are fines. Another indication is that the amount is fixed. Okay? That is not a necessary indication, because half-damages as a fine, for example, is not fixed. Okay? And yet it is still a fine — though really a somewhat different kind of fine. A kind of half-money half-fine, something in between. Ordinary fines are usually fixed. In any case, fines are something where the amount is not what you would pay if it were ordinary monetary liability; if it were monetary liability, you’d pay some other amount, not this fine. Okay? So here the Talmud says: how do I know that conspiring witnesses are a fine? Because if I ask myself what they would have to pay if this were ordinary monetary liability and not a fine, the answer is: nothing. Because they did nothing. What do you want them to pay him for? The money is still with him; they didn’t take his money in court. So why should they have to pay him? The damage is zero. Okay? So it can’t be ordinary monetary liability; it has to be a fine. The proof that this is a fine is based on the fact that there is no basis to impose monetary liability, because nothing happened; they did no act. “They did no act” doesn’t mean a prohibition with no physical act. It means there was no result to what they did, no consequence. Meaning, nothing happened. Okay? Independent of the question of how exactly they acted. We could bring Aristotle here, explaining corrective justice in torts — that you need simply to straighten the lines back out, when something was taken from him, to restore the situation to what it was, to straighten the lines. And here you don’t have that. Yes, exactly. There’s nothing to straighten out. True, there’s a dispute between Maimonides and the Raavad whether compensation for damage is restoring the situation to what it was or not. There is something there regarding land, in the laws of rental I think, where they discuss someone who damaged another person’s land. There is a dispute there whether he has an obligation… he has to pay, okay? But the question is whether one takes an oath on that payment, in a case of partial admission. The question is whether one takes an oath on that payment. No, maybe not in the laws of rental; maybe in the laws of claims and counterclaims. Does one take an oath on something like that? That is a dispute between Maimonides and the Raavad. The question is whether this counts as a claim concerning land. Now why — what is the dispute? So the claim is that according to Maimonides, I think — I already don’t remember who says what, but I think it’s Maimonides — he says that the obligation upon him is to repair the land. Only if he does not repair the land should he pay instead. So in effect the claim is a claim concerning land, and no oath is taken on it. But according to the Raavad, the claim is a claim for monetary compensation. You don’t have to repair the land; you caused me damage, give me monetary compensation. On that one does take an oath because… it’s a claim for money, not for land. Okay? And the dispute is — that’s how the later authorities usually explain it — whether the purpose of a tort claim is to demand that you restore the situation to what it was before; that’s Maimonides — basically, I want you to fix the land. If you can’t, then pay. But the underlying aim is to fix the land. And the Raavad says no: a tort claim is a monetary claim. Bring me money because you caused damage. Not to restore the situation to what it was before. Fine, one could say much more about that; there is the Machaneh Ephraim on this and more. Anyway, yes — so they did no act, and therefore this thing is a fine. What about “כאשר זמם” in cases of death or lashes or anything non-monetary? Right, there is “כאשר זמם” in monetary cases. They intended to obligate someone in money — say, if it was meant to obligate him in a fine, then obviously what is imposed on them is a fine, right? That’s not in question. If they intended to obligate him in money — meaning they testified that so-and-so damaged another person, okay? Then if they had turned out to be right, the court would have obligated him to pay as one who caused damage. That is monetary liability. But now they were exposed as conspiring witnesses, and the court did not obligate him to pay. So now they are made to pay. The basic liability that they were about to impose on him was monetary liability, not a fine. But for them, the liability is a fine. That’s Rabbi Akiva’s view — there’s a tannaitic dispute, but that’s Rabbi Akiva’s position. Why? Because they did no act. Right? Basically I’m not saying to them: pay the money of the damage you caused him, because they didn’t cause damage; nothing happened. Therefore even if the testimony concerned money, the punishment of “כאשר זמם” for the witnesses is a fine. Okay? That’s regarding money. What happens if they testified that so-and-so murdered? Or desecrated the Sabbath, I don’t know—
[Speaker D] Ate pork?
[Rabbi Michael Abraham] Then there is “כאשר זמם”, but are we saying about that too that it is a fine? The reasoning applies there too, right? There too, nothing happened. They intended to have him killed, or lashed, but they did not kill him and did not lash him. So they receive a punishment even though nothing happened. But on the other hand, the whole distinction between a fine and ordinary monetary liability belongs to money. What does that have to do with this? If I desecrated the Sabbath, does the punishment I get repair something in what I did? What difference does it make whether what I did happened or didn’t happen? Punishment is punishment. Punishment is directed at the person; it’s not to repair something in the world. Okay? So there is room to wonder whether what Rabbi Akiva says here — that they do not pay based on their own admission — means only “pay,” only money? Or whether all cases of “כאשר זמם”, even in death and lashes, are not imposed based on their own admission, because all of it is fines. Now in the wording of the Talmud, look: Rava said — in the marked section — yes, Rava said: you should know this, for they did no act and they are killed and pay. “They are killed.” So that implies that this reasoning apparently speaks not only about money, but also about being made conspiring witnesses in criminal law, not only in civil law — yes, in punishments of death and lashes too. Right? Right, that’s in square brackets. Square brackets usually mean the text is still read, but the brackets are there for this reason: because people found it odd — what is “they are killed” doing here? You want to explain that the payment of conspiring witnesses is a fine rather than monetary liability, not that their execution is a fine rather than monetary liability. In execution, punishment is punishment; there is no execution that is monetary liability. But conspiring witnesses are a Torah novelty, that we believe the second pair over the first.
[Speaker G] Right. And among other things the basis is not “כאשר זמם”. So all kinds of claims that undermine the basis of “as he intended” — I don’t understand. The Torah introduced a basis of “as he intended,” and then let’s say for a moment it’s a fine—
[Rabbi Michael Abraham] So then we won’t do it? No, not that we won’t do it. We won’t do it based on their own admission. If other witnesses make them into conspiring witnesses, then we will do to them “כאשר זמם”. But they themselves didn’t make themselves conspiring witnesses; they admitted that they intended it, that they lied. Do we do to them “כאשר זמם” or not? So no, we don’t. So from the wording of the Talmud it seems that this speaks not only about monetary cases. Right? And look at Rashi, for example: “דקנסא הוא, שהרי המעידים בנפש לא הרגו אדם ולא נהרג אדם על פיהם ונהרגים ומשלמין ממון” — “for it is a fine, since those who testify in a capital case did not kill a person, and no person was killed on their account, and yet they are killed and pay money.” The whole sentence, except for “and pay money” at the end, speaks entirely about testimony concerning a killing, a murder, and that they are executed. And Rashi apparently understands that this is the difference between Rava and Rav Nachman. Rava says: you should know this, for they did no act and they are killed. I would maybe not even read “and pay,” fine. And then Rav Nachman says: you should know this, for the money remains in the owner’s possession, and yet they pay. What’s the difference between them? Rav Nachman speaks about monetary cases, but from Rava’s words it seems he speaks about capital cases too, not only monetary ones. Both are saying the same basic thing — that there is some novel punishment here even though nothing happened; they are punished, and therefore it is a fine in some sense — but one says it with regard to money and the other says it with regard to death. Okay? And if so, then what Rabbi Akiva says — that they do not pay based on their own admission — speaks about all cases of “כאשר זמם”, not only monetary “כאשר זמם”. Also lashes under “כאשר זמם”, also death under “כאשר זמם”, everything. Meaning, if conspiring witnesses admit what they did, they are exempt — from money, from lashes, from death, from everything. According to the text before us, and that’s how it appears from Rashi. The Rosh here goes even further, for example. Rava said — he reads “Abba,” but that doesn’t matter — you should know this, for they did no act and they are killed. No “and pay,” only “they are killed.” In the Talmud there are square brackets around “they are killed.” And “and pay” is left. According to the Rosh it’s the opposite. “They are killed” is included in the text, and “and pay” is omitted. Okay? And that makes a lot of sense, because then what is this duplication between Rava and Rav Nachman? Rava speaks about “they are killed” and Rav Nachman speaks about “they pay.” Okay? And so Rav Nachman said: you should know this, for the money remains in its owner’s possession, and yet they pay. That is the same as “they did no act and yet they pay.” Meaning both Rava and Rav Nachman are saying the same thing, except that one speaks about being killed and the other about paying. But for our purposes, the upshot is that all of it is basically some kind of fine. And according to this, a really striking novelty emerges: with conspiring witnesses, it is not only that they do not pay based on their own admission; we do not impose “כאשר זמם” on them based on their own admission — not only in money, but in everything. Because all these things are fines. Their death is a fine, their lashes are a fine, and their monetary liability is a fine. Everything is a fine. Now, what is the difference between their death and a death penalty that is not a fine? The death penalty, say, for someone who desecrated the Sabbath, versus the death of a conspiring witness who testified about him that he desecrated the Sabbath and was exposed? So the one who desecrated the Sabbath — that is punishment. And the conspiring witnesses — that is a fine. A fine is a punishment. In money there is payment that is compensation, so a fine is a monetary punishment, a fine, right? In ordinary punishments there isn’t something else — all these punishments are punishment. So what does it mean that they are a fine? There is something very odd here. Okay? Now, maybe — after all, there is room to wonder here — what are they getting the punishment for? Ostensibly, for the fact that they lied. If it were for the fact that they lied, then there would be no room for this whole Talmudic discussion. Because if it were for the fact that they lied, what do you mean “nothing happened and yet they pay”? Of course something happened: they gave false testimony. The same way that in the case of someone who desecrated the Sabbath, “nothing happened” — he just desecrated the Sabbath — and for that he is punished. The person committed a transgression and therefore deserves punishment. What do you mean, nothing happened? If you assume that their payment comes to compensate, I don’t know, the injured party, then you say: but nothing happened; the money is with the injured party — what do you want? Fine, I understand that. But if you say that the punishment is for the lie in their words, then the lie happened. What do you mean, nothing happened? They lied in court; they deserve punishment for that. What difference does it make whether the court ultimately relied on it? So what? The transgression is in the person, not because of the damage caused as a result of the lie, but the lie itself. Okay? From the Talmud here it seems that the punishment of “כאשר זמם” is not for the lie. And this is a major conceptual inquiry among the medieval and later authorities — whether there are lashes for “לא תענה”, lashes of “והצדיקו”, lashes of “כאשר זמם”, whether these are the same thing or not. From the Talmud here, in my opinion, there is very strong proof for the position that lashes or death under “כאשר זמם” are not for the lie being spoken; they are not for “לא תענה”. If they were for “לא תענה”, then this whole discussion would never get off the ground. What do you mean, nothing happened? Of course something happened. They bore false witness against their fellow. So this really means that the Talmud understands that this punishment is some kind of liability that comes to compensate. If it is liability that comes to compensate, I don’t know exactly how killing me, the witness who plotted against him, compensates the accused — as if I compensate the accused by being killed. Somehow, some sort of measure for measure; it comforts him. Factually, it certainly does comfort him, yes? That’s obvious. People have a certain desire to take revenge on whoever harmed them. We see that all the time. Why are victims of terror at the forefront of activism against releasing terrorists and in favor of a harsh hand against terrorists and so on? It’s some sort of feeling of revenge. They always explain, “No, we don’t want this to happen again in the future,” and I also don’t want it to happen again in the future. Why are they out in the streets demonstrating and I’m not? Clearly there is some element of revenge there. They were harmed and they want the offender to be punished. Okay? So it seems from here that the punishment of “כאשר זמם” is a kind of payment — even lashes and death — a kind of payment to the injured party. Fine, but the injured party was not actually injured. So what kind of payment is that? So it’s a fine. Okay? Meaning even the lashes and death under “כאשר זמם” are basically a fine, because fundamentally they are for the accused, not a punishment — not punishment for “לא תענה”, for the lie in their words — but rather for the accused, like money that I pay for the accused. But after all I didn’t harm him at all, so it’s like money being paid to an accused person who was not harmed. That money is fine money. Okay? Like my ox damaged your ox — half-damages are a fine. Right, so my ox damaged your ox; fundamentally I am not liable to you for money. Ordinarily oxen are presumed guarded; I am not liable to you for money. Fine? But they nevertheless fined me to pay half. But still, you were harmed — it’s not that you were not harmed. So the fine of half-damages as a fine is in some sense still meant to improve the condition of the injured party.
[Speaker H] It’s not meant to restore the situation to what it was before, because there is nothing to restore — he wasn’t harmed.
[Rabbi Michael Abraham] Right? Or at least I’m not responsible for the fact that he was harmed. And basically the purpose is so that people won’t do this. What? So that people won’t do it? You could say that about any punishment. Any punishment, you can say it is
[Speaker H] deterrence, even where witnesses come and testify something.
[Rabbi Michael Abraham] If someone desecrates the Sabbath, then you punish him with death so that people won’t desecrate the Sabbath. What’s the difference? Every punishment is like that, or can be like that. Decide how you understand punishment in Jewish law — is its purpose deterrence or something else? That’s a separate question, but it is true of all punishments. Therefore I’m saying: with conspiring witnesses it seems from the Talmud that there is some kind of improving the condition of the injured party. I’m not calling it compensation because there is nothing to compensate him for, but I don’t know, maybe some good feeling or something like that for the benefit of the injured party. And therefore the Talmud says this is basically parallel to a fine, even in lashes and death, not only in money. It’s very interesting — people never think that there could be a state of affairs where a fine exists outside monetary law, where a punishment could be a fine. There is punishment that is punishment, and punishment that is a fine, and those are two different things. Now this is in the Arukh, okay? So we were in Rashi, we were in the Arukh. Look at Maimonides: “The liability of conspiring witnesses to pay in a place where they are required to pay is a fine, and therefore they do not pay based on their own admission.” Fine — up to this point, like Rabbi Akiva, except for one thing. What is missing? Right — he speaks only about money; he does not mention anything else. Now in Rabbi Akiva’s wording, that is what is written; he didn’t innovate anything. But I would have expected that if he sees in the Talmud the extension that you’re bringing into Jewish law, he would say: yes, all liability of conspiring witnesses, not just “to pay” — the liability of conspiring witnesses is a fine. But he doesn’t say that. He says: “The liability of conspiring witnesses to pay, where payment is required, is a fine.” In Maimonides it seems that he understands this only regarding money, okay? Also later, look: “How so? If they testified, and their testimony was investigated in court, and afterward both said: ‘We testified falsely, and this one owes that one nothing,’ or they said: ‘We testified about this one in such-and-such a matter and we were made conspiring witnesses,’ they do not pay based on their own admission. But if they said: ‘We testified about this one, and we were made conspiring witnesses in the court of so-and-so, and we were obligated to give him such-and-such,’ then they do pay, for this is an admission of money whose judgment had already been concluded to be given. And if one said so, he pays his share.” So Maimonides distinguishes here among three cases, because in truth there is room to wonder what it means that they pay based on their own admission. Conspiring witnesses come and testify that Reuven murdered or owed someone money — let’s say owed money in Maimonides, okay. Now what? What does it mean that they were made conspiring witnesses by their own admission? Now they themselves come and say that they lied. But a witness cannot retract and testify differently.
[Speaker E] They won’t become conspiring witnesses like that. He won’t become a conspiring witness that way.
[Rabbi Michael Abraham] Well, you could say yes, they exposed themselves as false. A definition under which we were with you. “We were with you” is trivial; they were always with themselves. A person is within himself. This depends on Maimonides and the Tur; you know there’s a dispute between Maimonides and the Tur, and the Lechem Mishneh brings it. What happens if the conspiring witnesses both expose and contradict? “We were with you,” and also there was no murder; the murdered person was also with us, without the murderer, okay? There couldn’t have been a murder. Maimonides says that isn’t refutation as conspiring witnesses; it’s contradiction, and the Tur says it is refutation. The Lechem Mishneh claims that their disagreement is whether this is a scriptural decree or not a scriptural decree. But that is exactly the point. If so, you say: I come and say about myself that I plotted, meaning that I gave false testimony. So in effect I’m doing both refutation and contradiction. According to the Tur that is refutation; according to Maimonides it isn’t. Right? It is refutation in that I’m refuting myself, even though there is both contradiction and refutation here. But in any case, how does such a thing happen? On the face of it, it really doesn’t look exactly like refutation. One could say they are testifying about a refutation that took place in court—not that they refuted themselves, but that they testify that in another court they were exposed by witnesses. Witnesses came and exposed them, and that’s it. Now they come to another court and testify that they were exposed in another court. But here too there is room to distinguish, says Maimonides: if they testify that they were exposed but no verdict has yet been issued—that is our case—witnesses do not pay on the basis of their own statement; conspiring witnesses do not pay on the basis of their own statement. But if they testify that they were exposed in such-and-such court and we already became liable to pay—a verdict was already issued in that court—then it is already a monetary obligation, because they are no longer testifying about the punitive liability. The punitive liability already became money the moment the court ruled: now you owe one hundred shekels. I don’t care that you owe one hundred shekels because of the punishment involved. Bottom line, you already owe money. Now when you testify to that, you will indeed have to pay. That is a litigant’s admission regarding money, and it is equivalent to a hundred witnesses. So the case Maimonides brings here is either that both of them say: we gave false testimony, or they say: we testified to such-and-such and were exposed. The second case is relatively simpler, because the ones who exposed them were other witnesses, and they are only testifying that this event of exposure took place in another court. Okay, that I understand. But the first case that Maimonides brings is that they expose themselves; they say, we gave false testimony. Now were this not a fine—say, according to the Sages who disagree with Rabbi Akiva and say that conspiring witnesses are monetary liability, not a fine—then it would come out that we would obligate them to pay when they say “we gave false testimony.” That would resemble refutation, not contradiction. Even though there is the rule that a witness cannot retract and give a different account, I could raise all kinds of difficulties here; it’s very strange. But that is what emerges from Maimonides. In any case, it is either this case according to Maimonides or the second case, that they were exposed by other witnesses in such-and-such court. Let’s set aside that case; it doesn’t matter. So in practice it really seems that according to Maimonides this applies only to money, and the Rashash in Ketubot writes: “And it seems to me that even Rabbi Akiva said this only regarding ‘as he plotted’ in monetary matters, but with death we do not find anywhere in the whole Torah that there should be a fine.” That is, seemingly, the intuitive view. But as we saw in the Rosh and in Rashi, it doesn’t look that way; it seems they are speaking also about death and lashes. And there the main textual version seems to be there in tractate Makkot—the main version seems to be: since they did no act and yet pay without being executed, and not like Rashi’s explanation there, nor like the explanation of the Rosh, whose version reads only “are executed.” Rashi says both “are executed” and “pay,” and the Rosh’s version has only “are executed”; there it is harder to alter the text. And you should know that Rav Nachman said there only that the money is in the owner’s hand and they pay; Rav Nachman certainly was speaking about money. Fine, we said that Rava is speaking about death and lashes, and Rav Nachman is speaking about money, and they are saying the same idea—that both are fines—but they are speaking about different things. In any case, the Rashash apparently learned like Maimonides, and that seemed obvious to him, but he himself says that this is not like Rashi, meaning that Rashi did not learn that way, and the Rosh did not learn that way either. So now what this means, in practice, is that according to the Rosh and Rashi, conspiring witnesses—if they testified, whether they exposed themselves or testified that they were exposed, it doesn’t matter, they admitted they were exposed—then even in lashes and death they are not punished. Okay, even in lashes and death they are not punished. Now on the face of it this is very strange: a person cannot render himself wicked, and a witness cannot retract and give a different account—there are very strange things here. But I’ll ask a different question: what practical difference does this make? Obviously they are not punished on the basis of their own statement because a person cannot render himself wicked. True—they render themselves wicked in that they exposed witnesses, and therefore they are coming to obligate themselves with death or lashes, and a person cannot render himself wicked. There is a difference between the two things. If you say “a person cannot render himself wicked,” then it would only be inadmissible, and if other witnesses come and expose them, then they really would be exposed and we would do to them as they plotted. Okay? But if you say that this is a fine, and even death and money are a fine, then with one who admits a fine we saw that even if witnesses come afterward he is exempt. Why? Because the admission exempts; it not only does not obligate—it’s not merely a problem of admissibility, but he repented and is exempt. So if that is so, then even if witnesses come afterward and expose them and obligate them to death or lashes, they would not become liable. But if so, then we already arrive at a more far-reaching conclusion: that even from death and lashes in an earthly court you can exempt yourself if you repented, not only from money. Okay, of course that raises the question: so why not in an ordinary case? Forget conspiring witnesses. Suppose someone simply ate pork, fine, and he comes and testifies about himself that he ate pork. Then he is exempt because a person cannot render himself wicked; we don’t believe him. A person cannot render himself wicked. But if he admitted, and then two witnesses came afterward and said he ate pork, then he would receive lashes, right? A person cannot render himself wicked, fine, so we did not accept it. Now two witnesses came, okay? But if I understand that a person who testifies about himself that he is wicked has in fact repented and therefore is exempt, then it’s not only that his testimony is inadmissible; there is an exemption here. So if there is an exemption here, then even if two witnesses come afterward he should not receive lashes, because he became exempt through his admission; not only did it fail to obligate him, right? That we do not recognize. Meaning, if a person comes and says “I ate pork,” and afterward two witnesses come and say that he ate pork, then apparently he would become liable. Again, I do not know an explicit source for this, but on the face of it he would indeed become liable. So why is it not so with conspiring witnesses? With conspiring witnesses, according to Rav Pappa and Rashi, we saw that even if witnesses come afterward they do not punish them. So I say: that is why earlier I made the distinction between a fine and ordinary punishment. A fine is basically some kind of punishment for the sake of the injured party. Meaning, a death penalty and lashes—a death penalty and lashes are not punishments for the sake of the injured party. If they execute someone who desecrated the Sabbath, there is no injured party at all. But even when they execute a murderer, they execute a murderer not for the sake of the victim. They execute you because you murdered, because that is a severe transgression and you are liable to punishment for it, like idolatry, like Sabbath, like all transgressions that incur death. With conspiring witnesses, even the lashes and death are basically some type of payment to the injured party, to the defendant against whom they plotted. True, in the end he was not harmed, and therefore that payment is a fine, not compensation, because it is death and lashes, but it is like a fine and not like monetary compensation. But it is not like ordinary punishment, the usual punishments of the court; rather it is like a fine, which is in some sense intended for the injured party or something like that. Therefore it is a different category, and in that category, one who admits a fine and afterward witnesses came is exempt. So the lashes and death of conspiring witnesses resemble a fine; they do not resemble the ordinary punishment of lashes and death for ordinary transgressions.
[Speaker E] And still, that’s really far-reaching—to the point that there’s no practical difference? Because if a classic death penalty is involved, and the injured party comes and says “I waive it,” no one would listen to him, because the one prosecuting is really the lawgiver, the court. Whereas here, if it’s a fine for his sake, then the one who comes and says, fine, in a monetary case or a fine, I waive it—
[Rabbi Michael Abraham] First of all, maybe yes, I don’t know, it does sound that way. The question is how far to take this idea—I don’t know. I have no sources, so it’s hard for me to give a clear answer here. But maybe you could even get that far; I don’t know, if that is really how one understands the issue. But again, since it is not really for his sake, it is a punishment, but the punishment somehow appeases him. So there is room to hesitate. Just ask in an ordinary fine: in an ordinary fine, what if the person says, “I don’t want the fine”?
[Speaker E] There’s no one to receive it.
[Rabbi Michael Abraham] Exactly. So I’m saying yes, but only because there is no one to receive it, not because there is no obligation. It is as if he gives it back. I’m allowed to give you a gift, right? But according to what you are saying, no—it should really be that he need not pay at all. It is not that he pays and I return it as a gift. No, no—he should not have to pay at all. Okay? So I think the point is that a fine is not compensation. Compensation is to compensate the injured party. If he doesn’t want it, if he doesn’t sue, he won’t get it—that is obvious. But in a fine, true, there is some idea here of improving the condition of the injured party, but clearly there also joins it the need to punish the offender. It’s only a question of where the money goes. It goes to the injured party because he was harmed. Where should we put the money—throw it into the Dead Sea? What should we do with it? We give it to the injured party. But there is also some motivation to punish the offender, okay? So in that sense, even if he waives it, it is not certain that we will pardon the offender, because we need to punish him. With payment, of course, he can always return the payment, fine, he can give him gifts. But with death and lashes, that option does not exist. Because I thought a bit about the difference between ordinary death and lashes and the death and lashes of conspiring witnesses. The question is: when you—you can also speak about two kinds, or two aspects, of punishment. There can be punishment, and I think in the Torah you can see this in a number of places, where the purpose of punishment is in some sense to repair what happened, to restore the situation to what it was before, okay? And then, ולארץ לא יכופר בדם הרוצח—or something like that, what the Torah says—meaning, כי אם בדם הרוצח. You see that when we execute the murderer it comes to repair some distortion in reality. It is not only punishment of the person. Something happened in reality, some sort of problem, I don’t know exactly what, and the punishment comes to fix it. Now if that is the idea of punishment, then in a place where nothing happened, there is no need to punish, right? There is no need to punish. So then why do we nevertheless punish conspiring witnesses? Why do we punish them anyway? After all, nothing happened. A fine—but a fine within the laws of punishment. What does that mean, a fine? It means: I punish you, the person; the punishment is on you—forget what happened, okay? As for what happened, nothing happened. There is nothing here to fix in reality, because nothing happened. But wait a second—I still need to punish you. But notice: if that is so, then excellent—if he repents, then why punish him? He repented. In ordinary punishments, why doesn’t repentance help? Because the purpose of the punishment is to fix something in reality. Why do I care that you repented? Fine, so you as a person are corrected, but in reality there is a murder here, קול דמי אחיך צועקים אלי מן האדמה, yes, the land requires atonement, so to speak, as the Torah puts it. Something happened in reality, and the punishment somehow purifies it, fixes it—I don’t know exactly, something like that. Meaning, it is in the object, not in the person. So your repentance will not help—what good will your repentance do? In practice, something happened here: someone was murdered. Therefore repentance does not help; you will receive the punishment because your punishment comes to fix what happened. But in a place where nothing happened—and I already said that it is not about your lie, because then something did happen, rather about the injured party—then in fact nothing happened. So why punish you with lashes or death? Because we want to punish you as a person. Right? There is nothing here to fix in reality. But if it is punishment of the person, then if he repented, it changes things, and we forgive him. Therefore, according to Rav and Rashi, the Talmud says that with death and lashes in the case of conspiring witnesses, if they repented—for in my view their self-admission is repentance—then they are exempt. Because the lashes and death of conspiring witnesses are not like the lashes and death for ordinary transgressions. There repentance really is relevant; repentance concerns the person. And that also gives us another reason why the court does not take repentance into account. Because the court can take repentance into account with regard to the person. The person repented, so very good, he is clean. But bottom line, what he did still needs to be repaired. And the punishment, in some metaphysical sense, I don’t know how, repairs what happened. And therefore his repentance cannot help, because the need to repair still remains, to atone for the land through the blood of the one who shed blood. Yes, meaning, you need to do this because otherwise the land keeps boiling. But all of that is in ordinary punishments. In the punishment of conspiring witnesses, where this is exactly what they say here: “after all, he did no act,” “after all, the money remains in the hand of the injured party,” there is nothing here to atone for. So why does the punishment of conspiring witnesses come? It comes in order to correct the person, to requite the person for the sin he committed. If so, then when the person repents, he is already clean; why punish him? He is fine, he has already repented.
[Speaker I] Why not say that the whole subject of conspiring witnesses is closing a loophole in the law? Since if we have a law without the law of conspiring witnesses, someone could bring eight hundred pairs of witnesses, accuse one person, and in the end they’ll kill him because he was harmed. Because if they do nothing, what prevents a person from bringing many groups?
[Rabbi Michael Abraham] First of all, there is the presumption that witnesses are upright, that they will not lie. Why should they lie? What do you mean? What prevents a person from murdering? He is corrupt, but then find two more corrupt people who will cooperate with him. Fine, so I’m saying, it is not so simple for people to lie.
[Speaker I] Conspiring witnesses provide initial deterrence for that.
[Rabbi Michael Abraham] I’m saying: but the presumption of people’s uprightness basically says that the presumption is that he will not succeed in doing it even if he wants to. Now, true, so we have some interest in preventing it, but then the question arises: then why “as he plotted”? Why “as he plotted”? Give forty lashes. Give—I don’t know what—decide on some deterrent punishment.
[Speaker I] Why is that more deterrent?
[Rabbi Michael Abraham] Sometimes it is less deterrent, sometimes more.
[Speaker I] For someone who wants to kill another person, it will be deterrent if they kill him.
[Rabbi Michael Abraham] Of course. But also for someone who wants to make another person pay, it would be more deterrent if they kill him. If you really want to deter him, then kill everyone. If you want to give some other punishment, give him some other punishment. But why should it be proportional to the plot—to the thing you did not do? I didn’t do it. You wanted to. I did—so why should it be proportional? I don’t want people to lie in any case. No, I don’t see a reason. I think it makes much more sense that there is indeed some kind of requital here. But to that the Talmud says: after all, there is no requital here, because nothing happened. The measure-for-measure aspect here practically screams out; it is quite clear that this is some kind of requital. The Talmud says yes, but it is not really requital, because after all nothing happened. Therefore it is like a fine. Nothing happened; it is quasi-requital, but a fine—cast in the form of a fine, not in the form of compensation. Unlike ordinary punishment, which is not requital; it comes to repair, not only to requite. Rather, it comes to repair what happened. Therefore repentance helps here and does not help in ordinary punishments. Now Tosafot Shantz, which appears in Shitah Mekubbetzet—I heard of it for the first time. Fine. And he says: “Nevertheless, this answer does not sit well.” There they want to learn from conspiring witnesses that one can receive lashes for a prohibition that involves no act. So Tosafot Shantz says: “Nevertheless, this answer does not sit well, because even without והיה אם בן הכות we can derive that conspiring witnesses receive lashes because of ‘as he plotted,’ for example when they testify about so-and-so that he is liable for lashes and they are exposed. And though according to Rabbi Akiva that is considered a fine there, and it also does not require prior warning, as explained in the chapter ‘These Young Women,’ since he sought to kill without prior warning. But in the case of one who is the son of a divorced woman or the son of a woman released from levirate marriage, where he is lashed for the transgression of false testimony, that is not a fine, and it does require prior warning like other cases liable for lashes.” What is he saying? In testimony that someone is the son of a divorced woman or the son of a woman released from levirate marriage—that is, they come and testify: so-and-so is the son of a divorced woman or the son of a woman released from levirate marriage—then we do not do to them “as he plotted,” right? We saw that in the beraita at the beginning. So what do we do to them? We flog them. Now the question is why do we flog them? After all, they did not plot to flog the other person. So it is not “as he plotted.” The Talmud says these lashes are for לא תענה, “do not bear false witness,” or from והיה אם בן… סליחה, ויצדיקו את הצדיק והרשיעו את הרשע והיה אם בן הכות הרשע. Meaning, these are lashes of והצדיקו. In a place where you cannot do to them “as he plotted,” they receive lashes from the lashes of והצדיקו. What are those lashes of והצדיקו? There are those who claim these are also the lashes of לא תענה; I mentioned that earlier. They are flogged for false testimony, right? That is the case of witnesses about a son of a divorced woman or son of a woman released from levirate marriage. But if I am flogged because I wanted to make him liable to lashes—not as an alternative to “as he plotted,” but the lashes of “as he plotted” themselves—I wanted to make him liable to lashes, so now “as he plotted” means they flog me. That is not by the law of “do not bear false witness against your neighbor.” What is it? It is a fine. About that Rabbi Akiva spoke. Why? Because if the lashes were for false testimony, then it is exactly what I said earlier: if the lashes were for false testimony, then you cannot say that nothing happened. Why is he flogged? He gave false testimony, so he is flogged for that. Meaning, “nothing happened”? The lashes for false testimony are not a fine. The lashes in the case of a son of a divorced woman or a son of a woman released from levirate marriage are not a fine. They are ordinary lashes for the transgression of “do not bear false witness against your neighbor.” So the lashes we are discussing for conspiring witnesses, where they came to impose lashes or to impose death—that is the fine of which Rabbi Akiva spoke. Why? Because there the goal is really to atone for what you did. But after all, you did not do it. You are not flogged for your false testimony. You are flogged for what you wanted, for what you were about to do. But in practice, says Rabbi Akiva, yes, but in the end he did not do it. Therefore it is in the category of a fine; here Tosafot Shantz explicitly says so. Not only is it explicitly stated, but he is speaking about lashes. He is not speaking about money. About this, Rabbi Akiva says that the lashes are a fine. And this is the clearest source—even more than Rabbeinu Chananel and Rashi—for the idea that when Rabbi Akiva says that the lashes and death of conspiring witnesses are a fine, he means also lashes and death, not only money. Here you can see even more than that. You could say: after all, the fact that they did no act and nevertheless receive lashes is certainly factually true. That has nothing to do with Tosafot Shantz. Factually it is true; they did no act and they are flogged. But that does not mean we will now say, ah, so therefore one who admits a fine is exempt. That is relevant only to money; that is how Maimonides learned, for example. Right? Maimonides also agrees that regarding these lashes and death, nothing happened and nevertheless they are punished. But still he does not call it a fine, because in death and lashes there is no fine; a fine is in money. That is the accepted view. Tosafot Shantz says more than that. Not only is it factually true that nothing happened and nevertheless they are punished with lashes or death; he also says that because of this it is a fine, and therefore one who admits a fine is exempt. The whole package. Meaning, he says that everything Rabbi Akiva said—that they are not punished on the basis of their own statement—is not only about money; it is also about lashes and death. In Rabbeinu Chananel and Rashi this is an inference; in Tosafot Shantz it is written explicitly. Okay? And he also explains why, because that is exactly it. The point is that the testimony is not about what—the punishment is not for the lie involved; it is for what happened. But it did not happen. It did not happen. With witnesses about a son of a divorced woman or son of a woman released from levirate marriage, when you are flogged, no one would say it is a fine, because you are flogged for having lied. You really did lie, and you are liable for lashes, so that will not be a fine, and if you testify about yourself they will accept it. You will be flogged even though you exposed yourself in the case of witnesses about a son of a divorced woman or son of a woman released from levirate marriage. Fine? But if you are speaking about testimony for lashes or testimony creating liability for lashes or testimony creating liability for death, then there the punishment you receive is not for the lie involved. So for what is it? After all, what they did was lie. No—the punishment is for what you did. But we didn’t do it; we only plotted to do it. The Torah says we regard it as if you did it, and you will be punished for what you did. Correct—that is what the Torah says. But in reality, we didn’t do it. So it is only a novelty of the Torah; that is exactly a fine. And not only is it a fine, but why—what is the significance of calling it a fine? That my aim is basically to punish the person, not to repair the thing, because there is nothing to repair. If so, then one who admits a fine is exempt because he repented. And if the whole purpose is to punish you, not to repair something that happened, then what is relevant is not whether it happened or did not happen, but whether you repented. So there are two sides here; there is a stringency and there is a leniency. The stringent side is that even if nothing happened, you are punished. The lenient side is that if you repented, you are not punished. To the point that one could say that if conspiring witnesses repent afterward, then perhaps they too should not be punished—even afterward, no. Because if they repent after they were exposed by other witnesses, where they incurred lashes or death, and now they repented, perhaps we should not execute them, because if he repented then he no longer has personal liability, and as for punishment to repair what happened, that is unnecessary because nothing happened. Okay? So it is not necessarily only when they expose themselves or testify about themselves that they were exposed. It may be that even when they repent after they were exposed, and look—notice Maimonides’ middle case, the second one. What does Maimonides say? What does it mean when they exposed themselves? They testify that they were exposed in such-and-such court. Right? That court already accepted the testimony exposing them, and that’s it—they were already exposed. Now they come and testify to that, meaning: when did they repent? Now. So if they repented now, why does that help regarding a punishment that became due because of wickedness already established a month ago? Because repentance helps even after they were declared guilty. Now true, if there was already a verdict then—not just a declaration of guilt, but they were already obligated to pay or to receive lashes or death or something like that—then Maimonides says no, because that is already a monetary obligation; it is no longer a fine. What happens with lashes and death, I do not know, because there there is no monetary obligation. Therefore it could be that with lashes and death it would still remain so. Not according to Maimonides, because for Maimonides the whole discussion is only about money, but according to Tosafot Shantz and Rashi and the Rosh, it could be that with lashes and death too this would be the case.
[Speaker C] Fine, so everyone who was exposed… we say, in such-and-such court, in such-and-such place… yes, right.
[Rabbi Michael Abraham] But that is the question; more generally it’s a question. So then why do we need the Talmud in Makkot that says repentance does not help with punishments administered by the earthly court? I mean, after all, we see that they tell him to repent, he repents, and then they execute him. So here there really would be room to distinguish, as I just said: if he repents after conviction, maybe that no longer helps; if he had repented beforehand, maybe it would have helped. That is the basis for distinguishing between repentance when you admit in advance and repentance done afterward. Okay, but we’ll get to that in a moment. Okay, now there is a responsum of the author of Beit She’arim—maybe you know what? Let’s leave Beit She’arim aside for a moment; he was a fanatical Hungarian. Let’s go to Rashi. A bit ad hominem. So look: in the Talmud in Makkot 5a, the Talmud says as follows: And Rava said: if two came and said, “On the first day of the week so-and-so killed a person.” Right? We are now on Tuesday, okay? Two witnesses come and testify that so-and-so murdered on Sunday. And then two others come and say, “You were with us on Sunday; rather, on Monday so-and-so killed a person.” You were with us on Sunday, but on Monday we really saw that so-and-so killed a person, not as you said on Sunday. And more than that, even if they said, “On Friday so-and-so killed a person,” even on Friday, earlier, so-and-so killed a person—they are executed, the conspiring witnesses are executed. Why? Because at the time they testified about the man, he was not yet liable to death. What does that mean? What did they testify to, to kill him? After all, the person was already liable to death. Now you come to impose death on someone who is already liable to death, so you did nothing; you killed a dead man. So when I come to do to you as you plotted, there is no reason to kill you, because you plotted to kill someone already under sentence of death, right? So he was already essentially dead. The Talmud says no—he was not yet dead. Why? After all, when we came—we are on Tuesday and testify that he murdered on Sunday or on Friday. Then the witnesses who expose us come and say, “You were with us”—not true. But on Monday he really did murder; yesterday. All this is taking place on Tuesday. Yesterday, on Monday, he really did murder. Meaning that now he is already liable to death; the defendant is liable to death. From Monday onward he murdered, so he is liable to death. On Tuesday, when they were exposed, they had in effect plotted to kill someone already liable to death. So why are they executed? The Talmud says: because at the time they testified, he was not yet liable to death. For they testified that he murdered on Friday or Sunday. So even according to the testimony that he murdered on Monday, on Friday or Sunday he was not yet liable to death. So when they came to make him liable to death, they came to impose death on someone who was not yet a dead man. Therefore they are executed, and afterward he too will be executed, because he murdered on Monday and we accept the testimony of the second pair, and therefore he too will be executed. There is a massacre there. What the Talmud is basically saying is that a person is innocent, essentially, until his sentence is completed. Meaning, when does he become liable to death? Only on Tuesday at the earliest. At most on Tuesday retroactively from Monday. At most. But certainly not before that. In the straightforward reading, that is how Tosafot learns there: only from Tuesday is he liable to death, from the moment of testimony and verdict. But for our purposes, look at Rashi there: what is the reason? At the time they testified, he was not a dead man. When they came on Tuesday to testify against him, he still was not a dead man. Why? Because there had been no testimony against him in court. Notice: on Tuesday he still was not a dead man. On Tuesday. But he already murdered on Monday. He murdered on Monday. Now they come and testify on Tuesday that he murdered on Sunday. Now two others come and expose them and say no, he murdered on Monday. After they expose them, they say he murdered on Monday. So factually, right now, the court knows the man murdered on Monday. Now when those fellows came and testified, that was Tuesday morning. So they testified that he murdered at a time when he was already liable to death, right? On Monday he already murdered, so he was already a murderer liable to death. No—because when is he liable to death? Only from the time testimony arrived that he murdered on Monday, which is Tuesday afternoon. Tuesday morning the first testimony was that he murdered on Sunday; Tuesday afternoon the second group comes, exposes the morning group, and testifies that he murdered on Monday. The verdict—that was after the verdict, right, from the time of the verdict. So when the witnesses testified on Tuesday morning, I am not even speaking of Friday or Sunday, on Tuesday morning when they came to testify he still was not called a dead man, even though he murdered yesterday. We already know factually that he murdered yesterday, because his case was not yet concluded; there had been no testimony against him and no verdict, and therefore he still was not a dead man. Now look at the continuation of Rashi; that is what is most important for our purposes. Tosafot goes in a different direction here, and there is a very well-known Rabbi Akiva Eiger in Makkot 5a—a long Rabbi Akiva Eiger—who is astonished at Tosafot and says: what do you want? It is obvious that the person is not liable. Tosafot says: why is he not a dead man? Because perhaps witnesses will not come. Who knows? Perhaps witnesses would not come at the time when we testified on Tuesday morning. We know retroactively that by Tuesday afternoon witnesses already came and said that he murdered on Monday, but at the moment I testified, Tuesday morning, perhaps the Tuesday-afternoon witnesses would not come; therefore he was not a dead man. Rabbi Akiva Eiger asks on that: it is not because perhaps witnesses would not come—even if they do come. Even if they do come, the time when he becomes liable to death is only from the time there was testimony and a verdict. Until then, the act by itself does not make you a dead man; only the verdict makes you a dead man. That is a very well-known Rabbi Akiva Eiger, and Tosafot—that is the accepted view in the world. That Tosafot there says otherwise: that liabilities of death and lashes, yes, criminal liability, exist only from the moment the court rules it. Say someone at this time desecrates the Sabbath in the presence of witnesses and after prior warning. He is not liable to death. He is not liable to death because there is no court that will rule that he is liable to death. Not that he is liable to death and there is no court to carry it out—otherwise let him jump off the roof and carry it out himself. After all, in practice he is liable to death, so he ought to do what must be done. No—he is not liable to death at all. If there is no court that ruled you are liable to death, then you are not liable to death.
[Speaker E] Meaning, that seems to me like the doubt in the Talmud—whether from now on they are disqualified as witnesses, or retroactively.
[Rabbi Michael Abraham] That is about conspiring witnesses, whether they are disqualified from now on. I am speaking about the question of from when the defendant becomes a dead man. That is a dispute between Abaye and Rava.
[Speaker E] Regarding testimony? Someone who desecrated the Sabbath would be valid as a witness even though later—
[Rabbi Michael Abraham] No, no, no, that is unrelated. We are speaking about the witnesses. A conspiring witness—whether he is disqualified from now on or retroactively—that is a dispute between Abaye and Rava. I am speaking about from when the defendant is liable to death, not the witness.
[Speaker E] And for a fifth of value—is it from when the court passed sentence? Right? And in the meantime he remains a valid witness and a betrothal is valid?
[Rabbi Michael Abraham] From when does he become wicked—that is a different question. From when is he a dead man—that is yet another question. He is wicked from the moment he committed the act; for that there is clear evidence. He is wicked from the moment he did the act. But he is a dead man only from the moment a death sentence was ruled against him. Now look how Rashi continues. “When they came on Tuesday to testify against him, he still was not a dead man, because no testimony had yet been given against him in court.” So far so good, right? “And if he had come and confessed, he would have been exempt.” What is this? Meaning, if that fellow who murdered on Monday had quickly, quickly, quickly run to the court on Tuesday morning and said, “Gentlemen, gentlemen, I murdered yesterday,” okay, penitent, all the best, goodbye, you are exempt. A moment later two witnesses come and say so-and-so murdered on Monday. Fine, so what? But he already confessed; he is exempt, like one who admits a fine is exempt, right? And therefore the witnesses who came had testified about a man who was not liable to death; that is what Rashi says. Therefore he was not a dead man, because he could have come and exempted himself. He could have—yes. Somewhat similar to the Talmud in our discussion, that for karet he can repent and be exempted from karet. Therefore it is not certain that the punishment of karet applies to him. So here too, he says, it is not a dead man because he could have come and exempted himself. What do we see here in Rashi? This has nothing to do with conspiring witnesses; there is a tremendous novelty in this Rashi. That every person who committed a transgression—if he comes to court and confesses to that transgression, he is not merely “not becoming liable”; he is exempt. It is like one who admits a fine; he becomes exempt. So long as witnesses have not yet testified against him, if he comes and confesses we exempt him. A tremendous novelty. Here we already have the whole package, as I said earlier. Meaning, here you see a conception that is head-on against what everyone thinks about this Rashi. Head-on. Clearly, repentance helps in the earthly court for all kinds of transgressions. For all kinds of transgressions. If a person comes and confesses that he committed the transgression, he is exempt—even if witnesses come afterward. Not because a person cannot render himself wicked; rather, he is exempt. Until witnesses come?
[Speaker D] Yes.
[Rabbi Michael Abraham] That is how we rule in Jewish law. That is how we rule—we rule like Rav against Shmuel. So this Rashi is a tremendous novelty, because it basically means… I mean, you know the story about Rabbi Chaim. No—I claim that the confession is accepted because we see it as repentance. Yes, when he comes and confesses, he repents. Therefore, if he saw witnesses drawing near—we spoke about this in the previous lecture—if he saw witnesses drawing near and ran to confess, then no, he is not exempt. Why not? When you run to confess because you see the witnesses, that is not really repentance. The confession is not really because of repentance; you are doing it as a trick to get exempted. That is not authentic repentance; therefore you are not exempt. That is one of the supports I brought for the repentance thesis: that if he saw witnesses drawing near, we do not accept his confession as exempting him. For our purposes, you see that there is a very far-reaching idea here. Meaning, when a person incriminates himself, it is not only that a person cannot render himself wicked, which only means inadmissibility; rather, he is exempt. He is exempt, meaning that even if witnesses come afterward, we do not punish him.
[Speaker J] So every murderer will come and confess as quickly as possible, confess and not be executed. Right. Wow, that’s amazing.
[Rabbi Michael Abraham] Okay. That is what the Chida and the Noda B’Yehuda claimed—that that is why the earthly court does not take it into account. And Rashi says that it actually does take it into account. And if so, let him run and confess. Of course, what does that mean? If I return to what someone suggested earlier, maybe that itself is the point: the punishment comes to push him to repent, and if he repents, everything is fine, excellent. I have no problem with that; I have no interest in killing people. If he really repents, then everything is fine. I—who was it that mentioned this, I don’t remember—I once saw an unbelievable film about the Truth and Reconciliation Commissions in South Africa. Have you heard of that phenomenon? Yes. There was some bereaved mother, a left-wing woman, well known, who made a film in the hope that they would import it here too, but never mind. Her son was murdered in a terrorist attack by terrorists. She asked: how do you solve the Israeli-Palestinian conflict? What do you do? It seems unsolvable. So she made a film about what happened in South Africa during the transition, when Nelson Mandela—
[Speaker A] Replaced white rule.
[Rabbi Michael Abraham] Desmond Tutu, right. So they reached a kind of social covenant there, an agreement. Desmond Tutu, Archbishop Desmond Tutu, was the bishop there in South Africa, and he said he would exempt from punishment all the whites who had done terrible things there, some of them truly horrifying, insane abuse with no justification whatsoever. He exempted all of them from punishment if they would come before a local tribunal—meaning, each place would set up some tribunal, gather the whole public there, something really like a justice proceeding—you would go up on stage, confess your sins, express remorse, and you would not owe any punishment for it. If we were convinced that you genuinely regretted it, you were completely exempt from punishment. Now it was unbelievable—that worked. It worked. They were exempted; they regretted it there, they repented, and you could see it was authentic. It was not only to escape punishment, and they really were exempted from punishment. The public truly did nothing to them, forgave them. The blacks ruled there—they could have done whatever they wanted to them—and they did nothing. Meaning, in the end they reached some kind of… because otherwise there would simply have been endless bloodshed there. She tried to import that here. But for our purposes, what I am saying is: there is no value in killing the criminal. Killing the criminal is only so that—if I can bring him back in genuine, authentic repentance, not as a trick to escape punishment—excellent. Do I have some interest in killing him? Therefore I am not alarmed by this argument of the Noda B’Yehuda: if so, everyone will repent. The Noda B’Yehuda himself makes that argument only because we cannot know, because maybe he is doing it as a trick. But if we had a tool that measured the authenticity of repentance, even the Noda B’Yehuda would be willing to accept it. He has no problem with your genuinely repenting and us not killing you—perfectly fine; we achieved the goal without killing. So much the better. Okay. Therefore it is not problematic. The whole point is only the question whether I suspect that he is doing it as a trick merely to escape punishment. So I said: I do not accept the claim that we have no way of knowing. You can get an impression and see whether it is authentic or not authentic. Maybe you will err, maybe not; that is always true—human beings can always err—but you have your tools, and you can try to estimate whether it is authentic or not. In any event, for our purposes that is basically what Rashi says. Now of course that raises the question: first of all, then every place where it says “punishments of the court” is only where he did not repent, right? Now there is room to discuss: did he repent before, or did he repent after the punishment was already in place? Because Rashi there is speaking of a case where he repented—he could have confessed and been exempted before testimony arrived that he murdered, meaning before. Would repentance help after they already testified against you and sentenced you? I assume not. The same idea as one who confesses after seeing witnesses drawing near and runs to confess—we do not accept that. Why not? Because we do not see it as truly an act of repentance. But again, if hypothetically I were somehow persuaded that it was authentic repentance even though he saw witnesses drawing near—I don’t know, maybe yes—the question is how far we insist on the reason of the verse. But yes, it could be so.
[Speaker E] Maybe here there is the added factor that there is a procedural order? There is one procedure for repentance and one procedure for judicial punishment, and you can’t—if—
[Rabbi Michael Abraham] We went down one side, on that track, so fine; after we walked on that track… okay, formalism, perhaps. It could be, I don’t know, but perhaps not. It could be that repentance would help perhaps even after that, I don’t know, so long as you are convinced it is authentic, yes? That it is not just something done to get out of punishment. One can be convinced of repentance beforehand as well.
[Speaker E] Meaning, if my criterion is to be convinced, then also to be convinced in a case where he came earlier and repented and then witnesses came—and then you could say, I wasn’t convinced, and still give him…
[Rabbi Michael Abraham] Exactly. If you’re still not convinced, then according to my thesis you really would give him the punishment even though he confessed. Meaning, his confession would fall under the rule that a person cannot make himself into a wicked person; that is, it would not be admissible in order to convict him. If witnesses later come and testify against him, he would not be exempt. Because the confession itself does not exempt him; what exempts him in a confession is the repentance involved in it. The confession is not admissible even without the repentance, meaning simply because you cannot convict a person on the basis of his own testimony—that is the rule that a person cannot make himself into a wicked person. But the dimension that exempts him would not exist without repentance—that’s my claim. Okay. Now what remains for us to clarify is what happens with our Talmudic passage. Our passage says that court-imposed punishments are not affected by repentance, only excision or death at the hands of Heaven—only heavenly punishments, not punishments of the court. Right? What do you say? Rashi is head-on against our passage here, isn’t he? In other words, all the explanations are wonderful. The explanations for why court-imposed punishments indeed should not be affected by repentance—sorry, should not be affected by repentance—they are not plausible. The three explanations we spoke about. Okay? They are not plausible. We saw examples like someone who admits to a fine and afterward witnesses come, or someone who admits in cases of the punishment for conspiring witnesses, which is an exception. This Rashi already says it’s not an exception; the whole story is simply not true. And then everything fits beautifully at the level of reasoning. In terms of basic logic, I’m completely at ease with this Rashi. The problem is our Talmudic passage, because our passage says the opposite. By the way, that’s Rabbi Akiva there now that I think about it, in our passage, and it’s the same Rabbi Akiva who speaks about conspiring witnesses and someone who admits to a fine. But never mind. For our purposes, in our passage we see that for heavenly punishments repentance helps, and for court-imposed punishments it does not. The question is: what case is our passage talking about? Is it talking about someone who repented after the verdict was issued or before the verdict was issued? In my opinion, after. Why? Because what does the passage say there? When you become liable to excision and lashes, right, that’s not a duplication. Why is that not a duplication? Because maybe you’ll repent and be exempt from excision. When will you repent? Right now the court is issuing the verdict against you. By the time you get to Heaven and they decide whether to cut you off or not cut you off, maybe along the way you’ll repent. So there it is clearly talking about repentance done after the verdict. Right? If so, then Rashi can be reconciled with the passage. What the passage says there—that repentance does not help for court-imposed punishments—that is when the repentance was done after the verdict. But if the repentance is done before the conclusion of the judgment—for example, when I come and confess or admit my transgression—then, says Rashi, all court-imposed punishments are void. Even if witnesses later come, meaning it’s not just that the confession is inadmissible; I am exempt. A penitent is exempt. If you come on your own initiative and repent, they exempt you. Now, just simply, think about it for a moment. We’re used to discussing these things in the study hall. The study hall is always a somewhat overly detached perspective from reality. You have to be careful about that detachment. In the Talmud at the end of the first chapter of Makkot, the passage says there that Rabbi Akiva and Rabbi Tarfon said: if we had been in the Sanhedrin, no person would ever have been executed. Why? Because if they testified against him that he had murdered, they would ask: did you see that there was no pre-existing hole where the sword entered? And that the sword penetrated exactly there? Maybe there had already been a wound there beforehand. And the man was already as good as dead. Right? Or all kinds of things like that. The passage there brings various arguments for how one could exempt all murderers from punishment. Rabban Gamliel says: they too would increase bloodshed in Israel. Because in effect you are exempting all the… then there is no deterrence against murderers. What is the difference between these two perspectives? Rabbi Akiva was the son of converts; he did not sit in the Sanhedrin. The greatest of the generation, but he did not sit in the Sanhedrin. The Talmud says no one like him had ever been left in the Land of Israel, yet he did not sit in the Sanhedrin. So Rabbi Akiva and Rabbi Tarfon are discussing what you did in the study hall. They sit in the study hall discussing, והצילו העדה (“the community shall save”), you have to care for people and not just kill casually, so I have a trick: I can save all the murderers and all the criminals. Rabban Gamliel says: who was Rabban Gamliel? He was the head of the Sanhedrin. He says, gentlemen, I have to run things here. You in the study hall—wonderful, all honor to you. I have to run things. You cannot run things if you do not impose punishment. Where is the deterrence? Where is the order? What’s going to happen here? There will be anarchy. Okay? These are different points of view. Now think here from that perspective, but in the opposite sense. I am now sitting on the court. All right? And now a person comes, and I am convinced: here is a complete penitent, authentic, someone who has practically saved the universe already since he repented. Fine. But he is liable to death, because I issued a verdict sentencing him to death. So now I am going to take him, imprison him, take him to the place of stoning or whatever it may be, and slaughter him before all Israel. I find it very hard to believe that anyone would do such a thing. You are taking someone who at this moment is in fact completely righteous, yes? A penitent is completely righteous. Intentional sins become merits, right? In Heaven, in effect, when he arrives they’ll dance before him in rows together with the king. Okay? And you kill him—why? Because formally he incurred the death penalty in court. If I were a judge on a court—not in the study hall, but a judge on a court who actually has to kill such a person—I think he would not kill him. I have no formal arguments, but to me it’s obvious. It’s obvious to me. I’ll give you another example so you can understand the difference between the perspectives. We are used to the fact that related witnesses are disqualified. Right? Related witnesses are disqualified. But the Talmud says, and this is brought as Jewish law in Maimonides and in the Shulchan Arukh, that this disqualification is not because of suspicion of lying. It is a scriptural decree. The Torah disqualified the testimony of relatives not because there is concern that they may be lying—Maimonides writes this, the Tur, the Shulchan Arukh, everyone. Okay? Now understand: we live with this calmly. Right? Why? Because what case are we picturing? Two brothers come and say: Reuven murdered Shimon. Fine. Now we know the truth, that Reuven murdered Shimon, right? Because we have two witnesses, and relatives are not suspected of lying. So if you ask me what the truth is, Reuven murdered Shimon. But there is a scriptural decree not to accept the testimony of relatives, so I exempt the murderer from punishment. Right? Fine, the Holy One, blessed be He, will settle accounts with him; I can put him into confinement; there are ways to deal with these things from a religious point of view. But formally, what can I do? I cannot accept the testimony of relatives because there is a scriptural decree. But think about another case. Two witnesses come and testify that Reuven murdered, and now two other witnesses come who are brothers and they expose the first pair as false witnesses. Now notice the calculation. What is the truth first of all? The brothers are speaking the truth, right? There is no concern about lying. Meaning that the witnesses who testified about the murder are conspiring witnesses. Right? They are liable to death, and the defendant is exempt; he did not murder, because the witnesses who testified against him were shown to be false. That is the truth. What is the law? We do not accept the relatives, so there was no exposure of false testimony. So the first witnesses, in effect, testified about a murderer, and he is a murderer; we rule that he is a murderer. Now are we going to kill him? Are we going to kill him even though we know factually that he did not murder? Can anyone imagine that happening? Of course not. Meaning, if the court is convinced that the person did not murder, then it will not kill him. It does not matter that formally I do not accept related witnesses. We are used to relating to this calmly because usually it is lenient: we do not kill someone who deserves to be killed. Fine, fine, with that we can manage. But here I gave you a case where it works stringently: we will kill an innocent person because there is a scriptural decree that we do not accept related witnesses. Is there some scriptural decree to view a kosher, innocent Jew as a murderer? There is no such scriptural decree; there is no such creature. It cannot be. Now when I asked people in the study hall, everyone was sure—absolutely sure—we would kill him because there is a scriptural decree that we do not accept them. Because in the study hall you can say anything.
[Speaker E] When you are the judge who has to kill
[Rabbi Michael Abraham] him—not just sign, but actually kill him in practice—you won’t do it. You’ll remove yourself from the case, say it is a fraudulent case, I was not convinced. A fraudulent case is a mechanism that exists in Jewish law. I was not convinced, and therefore I am not killing him even though the formal evidence points against him. That is the meaning of a fraudulent case. I am claiming the same thing here. I’m saying, it’s not a fraudulent case, but I’m saying the same idea. In other words, in principle and formally the person is liable to death, but I know that he is purely righteous, he has repented, everything is fine. He has been appointed the rabbi of the community, meaning a public teacher of righteousness. But formally he still carries some liability to death because of the terrible thing he did, yet afterward he repented. Would anyone really kill him in practice? I don’t think so. And Rashi really says that in law they would not kill him. No, I’m saying it even without Rashi. Those who disagree with Rashi do so because they are sitting in the study hall, but if they were actually judges they would act like Rashi. That’s the claim. By the way, there was Aharon Shemesh, who was here in the Talmud department—he died young—but he wrote a book about capital punishment, executions in Jewish law, and he argues that it was never actually practiced. All these discussions are discussions from after there were no longer ordained judges and there was no Sanhedrin and capital punishment was not practiced. That is in the Talmud. Yes, that’s his claim: that it was basically never practiced in reality. I don’t know; in my opinion there are indications that it was practiced, but I haven’t read all his evidence. What I’m saying is that many times these discussions are discussions where, when you look at them through the eyes of someone who actually has to carry them out, you say: this cannot be, it just isn’t. Now true, formally it all works out; we have a very clear legal construction of what is right and what is not right, when you execute, when you accept testimony, when you do not accept testimony. But in practice we are not in the study hall. When we have to implement it, then considerations of common sense enter here beyond halakhic formalism, beyond halakhic analysis. I’ll stop here.