Tuesday, December 04, 2007

punishment of zomimim: malkos vs. mamon

The halacha is that if a set of eidim are proven zomimim and are chayav malkos, each eid individually receives the full measure of 39 malkos. However, if the eidim zomimim are chayav money, the amount is split between them. My son is learning Makkos and his shiur discussed why there should be a difference in the way the punishment is meted out. Based on the chakira in yesterday’s post (is a haggadah of an eid echad not a haggadah, or is it a valid haggadah but beis din cannot act unless two eidim come) one might suggest the following: by mamonos, each eid’s haggdah is valid and causes a % of the total amount being assessed. By malkos, however, each eid’s haggadah individually is meaningless - the haggadas eidus is the voice of the set of eidim as a unit, not of any individual member. The punishment of malkos is therefore is not based on a % of damage that each individual eid tried to cause, but is based on the “shem” eid zomem, the status of being a person who testifies falsely, which demands complete punishment.

R’ Shimon Shkop rejects this sevara in favor of a different approach. R’ Shimon suggests that the purpose of payment by the eidim zomimim is to make restitution; the intended victim cannot collect more than he would have stood to lose, and therefore each eid pays only a % of the total. The purpose of malkos is to punish each witness, and each witness individually must bear that suffering.

R’ Shimon’s sevara strikes me as the type of thinking that seperates Sha’arei Yoser from the world of Brisk (this would be a great topic for a longer series of posts that I don’t have time for). Briskers notoriously avoid asking “Why?” – the focus is on structure, not reason. R’ Shimon constantly looks at the underlying cause of the din – the reason the eidim get malkos or pay is crucial to being able to properly understand the structure that emerges. It would be nice to take a few sugyos written on by both and compare, but I’m afraid I don’t have time now to do that.

3 comments:

  1. anon11:46 PM

    I'm not sure in reality they are as different as you think, because I think it is unlikely that R'Shimon is really getting into the issue of darshinan tayma dekra that often. I think both the R'Shimon and R'Chaim are getting to the "what" -- the hagdara of the din. R'Chaim leaves the question as "what" is the hagdara of the din. R'Shimon may call it "why" but it really is what. He is not asking why eidim zommemim get full malkus vs. partial payment -- because that gets into the taam of the mitzvos. Ultimately (I think) what it means is that the hagdara of the din malkos for eidim -- i.e., what the Torah is saying -- is one of onesh and therefore, memeilah each one gets the full onesh, as opposed to the din of payment, which is just restitution.

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  2. There is a story in a bio of R’ Baruch Ber (I think its called “HaRav sheDome l’Malach”) about a talmid who went to hear shiur by R” Shimon. After the shiur he came over to explain that R’ B.B. had the same mehalaich. R’ Shimon refused to listen and said that if he thought R’ B.B. and he were saying the same thing he didn’t understand the shiur.

    I appreciate your point, and of course R’ Shimon was not engaging in ta’amah d’kra or speculation, but his approach I think is different from Brisk in nuance if not in substance. Unfortunately, I do not have a clear way to formulate the difference. I heard R’ Chaims and RYBS at YU and always lacked an appreciation for R’ Shimon so I pushed my chavrusa to start learning Sharei Yosher with me this year and it is a different world. Sometimes we “translate” R’ Shimon into Brisker terminology more familiar to us, but in doing so we do lose something from the original; sometimes R’ Shimon says sevaras that do not fit the Brisker mold at all. My unsubstantiated opinion at this point is admittedly not worth much except as a bookmark to come back to if I ever have a chance to do some more comparisons on a sugya by sugya basis, or for someone else more capable than myself who wants to do such an analysis to provide some feedback.

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  3. anon13:39 PM

    The story you tell is very interesting. Maybe it is that I am not sufficiently appreciating the nuance in the difference between Brisker lomdus and other mehalchim but I often appreciate looking at a Griz on the sugya and realize that he is basically saying the same thing as R"Akiva Eiger but using different words/terms. Now maybe that is a lack of my understanding of the griz, but I guess on some level the building blocks are the same.

    Le-mashal from inyanei de-yoma, I saw in a few places the chakira of R'Moshe Soloveichik ztl about af hein hayu be-oso ha-nes. He had the chakira whether it meant that women have the same chiyuv as men as a result of af hein hayu or really they are patur from the basic mitzvah but they are chayav mi-din af hein hayu, as a separete din or separate chiyuv.

    I then saw that R'Goldvicht ztl (rosh yeshiva of KBY) explained the question of whether women were treated as chad derabanan or trei derabanan by neir chanuka (and mikra megilah) -- he was using it to explain the machlokes Rambam/Behag by mikra megilah. Do we say because of af hein hayu that they are chayav and are not considered chad derabanan or is it just that af hein hayu makes them trei derabanan.

    Again maybe there is great depth and nuance and difference between these approaches, but I felt that broken down, at its most basic the mehalchim were saying the same thing --just framing the issue using different terms. For what it's worth.

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