Monday, August 31, 2009

hasra'ah for eidim zomimim, take 2

Earlier today I posted that the Yerushalmi has a different reason than the Bavli for the din that eidim zomimim do not need hasra'ah. The Yl"mi writes that everyone knows that eidim who lie get punished, yet that does not deter anyone from testifying falsely, so hasra'ah would be pointless.

My son tried to one-up me yet again by observing that not only is the Yl"mi different than the Bavli, but it is also against the Bavli. The Bavli in its hava amina considers giving hasra'ah to be a practical impossibility. If you give hasra'ah after the eidim testify, it's too late -- testimony cannot be retracted. If you give the hasra'ah before they testify, then witnesses may not be willing to testify at all. Looking at the hava amina, it is clear that the Bavli thought hasra'ah given before testimony would be a very strong deterrent - not only would it discourage lying, it would discourage testimony completely.

The truth is that this observation is only partially correct. The Bavli also accepts that hasra'ah will not deter liars from testifying. The problem the Bavli raises is that hasra'ah is so powerful that it will discourage those who tell the truth from testifying. As Rashi puts is, "parshi v'lo m'sa'hadi - afilu emes..." Hasra'ah becomes like gun control laws -- they don't keep guns out of the hands of the criminals, but rather out of the hands of those who obey the law. Hasra'ah is not effective on the bad guys, but it will scare an honest citizen away from testifying.

9 comments:

  1. Mike S.6:29 AM

    I have often wondered what the gemara's kasha is in the first place. The judges are required to stress to the witnesses ('maiyimim') the severity of false testimony and of withholding testimony (Mishnah Sanhedrin 4:5). Why doesn't that constitute a hasra'ah? I suppose it might not be toch k'dei dibbur, but it could be repeated just before the witnesses give their final recitation.

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  2. Good kashe. What occurred to me offhand is a few weeks ago we discussed Rashi's view that hasra'ah must reference the specific lav being violated
    (http://divreichaim.blogspot.com/2009/07/hasraah-and-ain-onshin-min-hadin.html)
    which the threats beis din make don't do. I am not sure this fits the Yl"mi's approach.

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  3. Ritva in Kesubos 33 asks your question. He answers that the Mishna in Sanhedrin is referring to "iyum b'alma" which does not scare anyone away from testifying. Real hasra'ah, however, which includes a warning that hazamah can lead to the death penalty, may frighten people away for fear of being falsely huzam.

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  4. Mike S.4:29 PM

    I will look up the Ritva at my first opportunity, but your summary of it is difficult and provides no answer. The text of the iyum in Sanhedrin about false testimny is so frightening that it must be counterbalanced by the judges explicitly saying that "if you will say 'why do I need the trouble of testifying ... (given the severity of the punishment)' the punishment for not testifying ... (is also severe)". So Chazal were explictly concerned about frightening away truthful witnesses with the iyum, and seem to assume it would be sufficient to frighten false witnesses. If there were a need of a specific threat of court-imposed punishment in the iyum, it presumably could have been added.

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  5. Mike S.8:55 PM

    Ritva is commenting on a section of Gemara according to the shita of R. Eliezer, which is not followed. The Rashi you cite is similar

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  6. Rav Yoshe Ber Soloveitchik brought raayos ( I think in the name of Rav Chaim) that eidim zomemin has no hasraah because the punishment isn't for the maaseh aveira, it's for the shem eid zomem.

    So we're not warning anyone before a maaseh aveira.

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  7. chaim b.9:21 AM

    RYBS is based on the Rambam's reason for no hasra'ah: "l'fi she'ein bo ma'aseh" (Eidus 20:4), i.e. you are not chayav for the act, but for the shem issur. But how does that fit the gemara?

    Ritva's kashe is a general kashe, not specific to the man d'amar. Anyway, even if it is just aliba the hava amina, it is telling that the sevara is 180 from the Yl"mi.

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  8. Mike S.6:19 AM

    If the Ritva's kashe is general, it is hard to see how to reconcile it with the Mishna in Sanhedrin, unless perhaps you will say there is some difference between wounding your fellow (The case in ketuvot) and a capital case, which is the iyyum whose text is in the Mishna.

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