Tuesday, August 25, 2020

eidim zomimin: does Hashem prevent beis din from making mistakes?

The law of eidim zomimim seems counter intuitive: if beis din acts as a result of their testimony, then they get off scott free; if they are revealed to be liars before any damage is done, then they get punished.  Wouldn't the opposite make more sense? 

Ramban (19:19) explains that 1) "Elokim nitzvav b'adas K-l" -- Hashem has an active hand in ensuring beis din does not err, and 2) Hashem has an active hand in ensuring the innocent are not punished unjustly.  If the court ends up meting out punishment on the basis of the testimony of zomimim, it means that the person who was punished is not really innocent.  Maybe the testimony of the zomimim is false, but the person punished must have deserved what he got anyway, or Hashem would not have allowed it to happen.

In short, you don't get punished for harming a guilty man.

Maharal in Gur Aryeh takes issue with Ramban's reasoning:

ואין דבר זה טעם לסמוך על דבר זה - שלא היה נהרג על ידי בית דין אם לא היה חייב ממקום אחר, דבכל מקום אמרו (ב״ב קלא.) אין לדיין אלא מה שעיניו רואות, והקולר תלוי בצואר העדים, ומה יעשו בית דין

Interestingly, the principle Maharal bases himself on -- "ain l'dayan elah mah she'einav ro'os" -- is itself derived (see Sanhedrin 6a, as Rashbam in BB 131 notes) from the very same pasuk of "Elokim nitzvav b'adas K-l" that Ramban quotes as the basis for his sevara! 

Yesh lachkor with respect to Elokim nitzvav b'adas K-l: Is halacha telling us that beis din will not err, or is it telling us that if beis din does err, they are not held accountable so long as it is an honest mistake?

Maharal understood "Elokim nitzvav b'adas K-L" as merely a ptur from punishment.  As Rashi in Sanhedrin writes:
אלא לפי מה שעיניו רואות. לידון ויתכוין להוציאו לצדקו ולאמיתו ושוב לא יענש

Ramban, on the other hand, reads  "ain l'dayan elah mah she'einav ro'os," as saying that a judge need only concern himself with the facts before him because Hashem acts as a backstop to ensure the outcome will always be correct.

Sefas Emes (in likkutim) asks a more technical question on Ramban.  He quotes the case in the Mishna (Makos 6b) of two sets of witnesses that independenty testify that someone committed a crime.  One set of witnesses are zomimin; one set is not.  The Mishna says that if the zomimim are discovered before the verdict is rendered they will be punished as zomimim, and the person they testified against will also be punished based on the testimony of the other good witnesses.  According to Ramban, why are the zomimim punished?  They are testifying against a guilty man!

Sefas Emes suggests that the reason eidim zomimim do not get punished if beis din acts on their testimony is because punishment serves as a kaparah.  Once the damage is done, the crime of hazamah is beyond the pale and there can be no expiation.  (Maharal in Gur Aryeh argues that exactly the opposite is true: the plotting of the crime, the thought of doing evil, is far more severe than the act itself, and therefore it is only before gmar din, before beis din has acted on their testimony, that the zomimim are subject to punishment.)


  1. Ramban "1)... and 2)...", no and yes.

    "Hashem has an active hand in ensuring

    [1)] beis din does not err." on the contrary, whenever beis din accepts zomimim as true, Hashem cries out, 'My children have defeated Me; My children have defeated Me.'

    [2)] the innocent are not punished unjustly." where both* zomimim are type [Shemos] 20:13d, they will [as a rule] "get off scott free", since both are only >responding<, >ta'aneh<, to the accused (maybe he'd wronged both severely in the past; or maybe both suspect the accused due to compelling circumstantial factors).

    where both zomimim are [Shemos] type 23:1b, they will [as a rule] be found out, disqualified by subsequent testimony...

    *or even just one [is a type 20:13d] -- says Shimon ben Shatach, Makos 5b, both zomimim must be guilty [of 23:1b] for there to be punishment...

  2. "if the zomimim are discovered before the verdict is rendered they will be punished as zomimim" After; or before the punishment is carried out. Either would work.