Letter and Spirit

For the week ending 7 September 2019 / 7 Elul 5779

Parshat Shoftim

by Rabbi Yosef Hershman
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Courts of Limited Jurisdiction

The halacha of false witnesses presents a curious conundrum that leaves the novice and the learned similarly puzzled. But the question needs an introduction.

The law provides that criminal verdicts can be issued only by the valid testimony of two eyewitnesses. If a pair of witnesses would misuse their power to testify falsely, another pair of witnesses could be used to incriminate the false witnesses. This second set of witnesses impeach the testimony of the first pair by testifying that the first pair could not have been at the scene of the crime, since at that moment they were elsewhere with the second pair.

Clearly, the opposing contentions do not touch on the truth of the matter asserted. It disputes only the witnesses’ right to declare anything about the matter. These witnesses are described in this verse as standing before G-d. The power of a witness — and his reliability in the first instance — derives from his awareness that he stands before G-d. In the final analysis, testimony is beyond the purview of the human eye and beyond human judgment. For every testimony, no matter how objective, necessarily entails a subjective assertion. The Torah thus places every witness before G-d, Who alone probes the mind and heart and weighs every word and thought on the scales of justice and truth. Perhaps this is why the Jewish court did not put witnesses under oath — his testimony presupposes oath to G-d.

Now, the false witnesses will suffer a punishment just as severe as they had planned to impose on the original defendant. But there are two very important limitations. First, the false witnesses do not suffer the penalty unless a guilty verdict had already been issued on the basis of their testimony. They are not punished if the verdict had not yet been issued. Second, they will suffer the penalty only if the verdict has been pronounced, but not yet carried out. If the verdict had already been carried out, and the original defendant has suffered the penalty, they are exempt from punishment by the court.

Now, if the witnesses are punished after the verdict was merely pronounced, then a fortiori they certainly deserve to be punished if the punishment was already carried out! This astonishing feature of false witnesses appears to be an unusual and counterintuitive application of a general halachic principle: in criminal law, no penalty may be imposed if it is based on mere deduction.

Embedded in the very inexplicability of this rule — that the false witnesses are exempt when their conspiracy successfully punished another Jew — is a fundamental principle of the Jewish penal system. A court of G-d is a court of limited jurisdiction, and takes no liberty beyond the literal meaning of the text, even to draw logical conclusions which appear to be self-evident. Instead, the punishment of those witnesses is left to the Hand of G-d.

This fact openly proclaims that Torah law was given to human tribunals, and its applicability is not to be extended by human judgment. G-d stands above the law, and in handing over the law to human court He transferred to it only a part of His judicial authority. The courts are to administer justice only as His delegates and only as far as their mandate reaches. Where their power ends, the sovereignty of His justice begins.

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