Without Warning
‘But You Were With Us…’
(Makkos 2a)
Our mesechta discusses eidim zomemim, false witnesses who testify to a condition (e.g., that a certain kohen is a ben gerusha or ben chalutza) or an act (e.g., that an individual committed a sin for which he must be banished to galus) and are later contradicted by another set of witnesses who assert they must be lying. For testifying falsely, they receive the very punishment they intended the person they testified against to have received. Of course, they don’t become bnei gerusha or bnei chalutza if they testified that a certain kohen was of that status. Instead, they receive 40 lashes.
He Was Warned
The Gemara (Kesubos 33a) states that although people usually must receive a warning (hasra’ah) to be punished by beis din, eidim zomemim need not. Why? Because they wanted to punish someone whom they never warned. The Rambam (Hilchos Eidus 20:4), in codifying this halacha, adds that even unwitting false witnesses (shogegim) who did not know about the prohibition and penalties of false testimony are punished.
Two Reasons For Warnings
Rabbi Shimon Shkop (Chiddushei Rabbi Shimon Yehudah Hakohen, Kesubos 39) offers two reasons why we cannot punish someone without warning him: a) So that he not be considered shogeg, unaware that he is transgressing a Torah prohibition; b) So that he know his act decrees a punishment on himself (Sanhedrin 41a and Rambam, Hilchos Sanhedrin 12:2; see ibid., that the transgressor must explicitly acknowledge his penalty).
And yet, eidim zomemim can even be put to death without having received a warning because they wanted to do the same to others. The Rambam refers to them as unwitting false witnesses. In effect, in this case we do not recognize the shogeg excuse.
Punished For Their Cruelty
Rabbi Shkop explains that the Rambam assumes that false witnesses are not punished for transgressing but “because of their wickedness, acting against basic human decency. Even though they were not warned and did not know of the Torah prohibition involved, they did know that they were falsely incriminating a person, and that is the main point of their evil…” (see Ketzos Hachoshen, 25, s.k. 8, and Sefer Hamafteiach for other explanations of the Rambam’s ruling).