Abarbanel on the Parsha

For the week ending 10 September 2016 / 7 Elul 5776

Parshat Shoftim

by Rabbi Pinchas Kasnett
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Witnesses and Testimony

In this section the Torah deals with the laws of witnesses and testimony. Guilt in criminal cases or monetary obligation in civil cases must be established by the corroborated testimony of two witnesses. Normally in a case where one pair of witnesses is contradicted by a second pair, the case remains unresolved. However, there is one particular circumstance where different principles apply. For example, if two witnesses testify that Reuven killed Shimon, and then two other witnesses come and testify that they know nothing about the alleged crime but that the first pair of witnesses was with them in a place where they could not have possibly seen the murder — we then believe the second pair. We not only believe that the first pair was lying but we also punish them with the exact same punishment to which they were attempting to subject Reuven. Stranger still, if the court executes Reuven based on their testimony and it is only later that the second pair of witnesses comes and reveals that the first set lied in the above manner, that first pair is not punished at all. They can only be punished if this revelation occurs after the court has declared Reuven guilty but before he is actually executed.

Abarbanel, as well as many other commentators, is puzzled as to why the second pair is believed over the first pair, and why the first pair is not punished at all when the individual that they attempted to frame actually loses his life as a result of their treachery.

Abarbanel first mentions Rambam, who does not attempt to explain the reasoning behind the law but rather considers it a Divine decree. Ramban and Ralbag, however, give a logical explanation as to why the second pair is believed. When the testimony of contradictory witnesses is canceled out, it is because they are both testifying on exactly the same thing. In this case, however, the two pairs are testifying on two very different things. The first pair is testifying on an act; the time and place are secondary facts that help to establish the veracity of their description of the act. The second pair is testifying on the first witnesses themselves, not the act. Both pairs are testifying about where the first pair of witnesses was located at the time of the alleged act. In essence, the first pair is testifying about themselves — i.e. where they were located. The Torah is clear that witnesses cannot testify about themselves or about people or situations in which they have a personal stake. Thus, the testimony of the first pair regarding themselves is disqualified and all that remains is the testimony of the second pair.

In order to explain the counterintuitive law that the first pair is punished only for their treacherous intent, but not if they actually succeed, Abarbanel offers two possible explanations. First of all, courts and judges are considered G-d’s agents, as the Divine Presence rests upon them. The Torah tells us that cases should be brought “before G-d”. When the disputants appear in court they are considered to be standing “before G-d”. Therefore, if the lying witnesses would be executed after their victim was already executed, the court would be sending a message that it was mistaken in its judgment. If the judges are G-d’s agents, how can they make a mistake? Rather, it must be that the executed individual really was guilty, and the witnesses who “framed” him were actually correct. However, if the plot is uncovered before he is executed, it must be that he was innocent, and the witnesses can certainly be executed for their treachery.

Another possible explanation is that G-d wants to protect the honor and prestige of the courts. By killing the treacherous witnesses after their victim has already been executed, we would be sending a clear message to the public that the court made a mistake, and the court would lose its credibility to judge correctly in the future. The ensuing damage would be enormous. People would spread the word that these treacherous witnesses were killed because they were able to fool the judges into killing an innocent individual. However, if they are executed for their attempted treachery, people will realize that they attempted to mislead the judges but were not successful due to the diligence and efforts of the court to judge correctly. Thus, the prestige of the court remains intact.

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