Shiur #10: Eidim Zomemim (Part 2)

  • Rav Moshe Taragin
The Israel Koschitzky Virtual Beit Midrash

Talmudic Methodology
Yeshivat Har Etzion

Shiur #10: Eidim Zomemim (Part 2)

By Rav Moshe Taragin


            Having previously established two different theories to explain the phenomenon of ka'asher zamam, we may now inspect the very complex first mishna of Makkot.  The mishna lists two situations in which actual ka'asher zamam cannot be administered while the ensuing gemara lists an additional two.  The first scenario listed in the mishna concerns eidim zomemim who conspired to disqualify a kohen by assailing his pedigree.  By testifying that the kohen's father illegally married his mother – a divorcee - the eidim intended to disqualify this subject from future kohen activities.  Since we cannot convert the eidim to this status and cannot perform actual ka'asher zamam, we administer malkot (lashes) instead. 


            The gemara elaborates on this condition, explaining our aversion to literal ka'asher zamam.  Since they had planned to incriminate the subject's children, actual ka'asher zamam would demand disqualifying the children of the eidim as well.  However, the same pasuk also specifies "va'asitem lo" (you should perform to him) from which we infer that the penalty of eidim zomemim CANNOT affect children.  Given this inner clash - that ka'asher zamam demands reciprocity, yet children of witnesses are immune - we must suspend literal ka'asher zamam and deliver malkot instead. 




This paradox may be understood in purely QUANTITATIVE terms.  Ka'asher zamam demands applying the sentence to AS MANY parties as would have been affected.  However children are procedurally immune to ka'asher zamam.  These two criteria create an irresoluble clash which invalidates the application of ka'asher zamam, because we cannot affect the appropriate number of parties involved. 


            Tosafot seem to adopt this notion when they claim that if eidim conspire to define someone as a Mitzri sheni (a second-generation Egyptian who cannot marry Jews) they cannot themselves be tagged as a Mitzri sheni and must instead be administered malkot.  Even though their plan would not have indicted children (since third-generation Egyptians can marry Jews after conversion), their plan WOULD HAVE affected the alleged subject's wife (who would also have been impugned).  As we cannot punish the wives of the eidim themselves, consequently, full symmetry between plan and penalty, (resulting in complete ka'sher zamam), cannot be achieved, and malkot are administered.  Though the mishna does not identify this situation, Tosafot feel confident assuming the same rule. 




            There may be an entirely different way to understand this paradox - one which would be irrelevant to Tosafot's case.  The reason that full application of ka'asher zamam aspires to affect the children of an incriminated kohen is that ka'asher zamam not merely the administration of penalty but the assignment of IDENTITY.  By defining the witnesses as actual pesulei kehuna (invalid kohanim) through ka'asher zamam we would be altering the status of their children.  However, as we witnessed above, the pasuk "va'asitem lo" implies an exemption for children from ka'asher zamam implications.  Faced with this dilemma we withdraw the ka'asher zamam penalty and administer malkot.  The ambition to create symmetry between intended plan and ultimate penalty is not merely quantitative (aspiring to affect as many individuals as their conspiracy would have impacted).  Since ka'asher zamam applies an IDENTITY and not just a penalty we aspire to realize the full consequences of the status we apply - which in this case would include children.  However, this leads us to withdraw ka'asher zamam, since procedurally we are unable to affect the children. 


            Based on this latter view we would theoretically be capable of applying ka'asher zamam to a conspiracy of Mitzri sheni.  Even though their conspiracy would have implicated the wife of their subject, we may not be forced to aspire to the same consequence for the wives of the eidim.  The wife of the subject would have been invalidated because of her SEXUAL CONTACT with a Mitzri and not as a direct outcome of the assignment of Mitzri status to her husband.  We can certainly assign Mitzri status to the eidim and still protect the ka'asher zamam immunity of their wives without compromising on the scope of ka'asher zamam.  The wife's status does not stem AUTOMATICALLY from the husband's in the same biological manner that a child's status stems from his father's.  Even though, by granting immunity to the wives of the eidim we will be compromising quantitative symmetry, we will not be limiting the full application of Mitzri status since a wife's status is not an INHERENT element of the husband's status.  Therefore, there should be no impediment to applying ka'asher zamam to a case of Mitzri sheni! Indeed the Ritva argues with Tosafot claiming that, fundamentally, Mitzri status can be applied through ka'aser zamam but is not applied for merely technical reasons.  Perhaps Tosafot and the Ritva were debating whether ka'asher zamam is a penalty or a status. 


            An interesting question of the Minchat Chinukh arouses a similar logic.  If eidim conspire to indict a city as an ir hanidachat (in which case the entire city is executed for perpetrating avoda zara), they themselves receive the death sentence.  The Minchat Chinukh questions the application of ka'asher zamam in this case, since the eidim intended to indict both adults and children of the ir hanidachat.  As we cannot 'touch' the children of the eidim should we not withdraw ka'asher zamam entirely, as we do for pesulei kehuna (for example)?


            The sentence of children of ir hanidachat is different from children of a kohen pasul.  Their sentence emerges independent of their parent's status and not as a direct outcome of their parent's indictment.  By their belonging to this city the children are executed independently.  We can therefore apply full ka'asher zamam status to the eidim and still protect their children's immunity.  Insulating the eidim's children from ka'asher zamam will not erode their assigned status as ir hanidachat violators – a status we aspire to apply to the eidim through ka'asher zamam. 




            Another fascinating question surrounds the application of the principle of kim lei to eidim zomemim who wanted to impose a dual penalty.  Typically a person charged with both a major offense and a minor offense (carrying a lighter punishment), is not subject to the lighter punishment.  This exemption, known as kim lei be-derabba minei, has rare exceptions.  Typically, the subject of the conspiracy would have received only the capital punishment and been excused of any monetary claims.  In general regarding eidim zomemin who conspired to generate dual indictments for their alleged victims, since practically their testimony would have obligated only capital punishment and not monetary reimbursement (due to the exemption of kim lei) eidim zomemim would only receive capital punishment and not render any money to their victims.  What would happen if the eidim conspire to actually indict a person on both capital punishment and monetary reimbursement in a manner which proves a rare exception to the kim lei rule.  For example a motzi shem ra – who slanders his wife – receives malkot AND renders payments.  If eidim falsely indict someone as a motzi shem ra would they receive both malkot and financial obligation as their intended victims would have, or would kim lei prioritize the malkot and excuse the monetary obligation.  Tosafot in Ketuvot (33b) debate this issue ultimately ruling that that kim lei DOES indeed excuse the eidim zomemim from a dual penalty.  Presumably, Tosafot are debating this very point.  If ka'asher zamam applies PENALTIES, kim lei may exempt one of these applied penalties.  By falsely indicting someone as motzi shem ra and generating two potential penalties (since kim lei does not apply to this criminal) the eidim are subject to them both.  However as kim lei DOES apply to eidim zomemim it should excuse the money in favor of the malkot (as Tosafot ultimately rule).  However, if the eidim actually adopt the STATUS of a moztzi shem ra, kim lei would be cancelled for them just as it is suspended for an actual mozti shem ra.  They too should receive malkot as well as paying a monetary fine. 


            An additional question may surround the complicated situation of eidim zomemim who conspire to indict a male adulterer with a female adulteress who happens to be a daughter of a kohen.  The gemara mentions this case in the beginning of Makkot and asserts that the eidim would receive the death sentence intended for the male (chenek – suffocation) and not the unique sentence which would have befallen the woman (sereifa - incineration – a special penalty for a daughter of a kohen who commits adultery).  The gemara derives this rule from the phrase "Va-asitem lo ka'asher zamam la'asot le-achiv" which implies that we duplicate the intended penalty of the male (achiv) and not the potential penalty of the female (achoto).  Is this merely a technical ruling that the penalty is transferred from the male subject rather than from the female subject? Or is this distinction based upon the premise that ka'asher zamam applies a STATUS as well as a penalty?  We can convert the witnesses into a male adulterer but cannot transform them into female adulteresses.  Hence, since they can only borrow the status of the same sex they can only receive the adulterer's capital punishment and not the woman's. 


            An interesting nafka mina would concern a situation in which the conspiracy did not include the male.  In these instances could we apply the female's sentence of sereifa? For example Tosafot debate a situation in which the male adulterer was a minor and therefore exempt of punishment.  Would the eidim receive the sereifa of the woman?  (Tosafot ultimately rule that they would not.) Alternatively, the Ritva deduces from Rashi that if the eidim testify about the adulterous woman but do not identify the male they MAY receive her unique sereifa penalty.  Again these situations would highlight the original question of why we applied the male sentence and not the female sentence.  If this is merely a technical preference based on the law derived from the phrase of le-achiv ve-lo le-achoto, we may apply a female sentence if the male sentence is inapplicable.  However, if the non-application of the female sentence is more fundamental – because eidim zomemim entails the application of a status and witnesses cannot be considered female adulteresses, we may never apply sereifa to eidim zomemim!  They cannot assume the status of an adulteress!!