Without Warning
‘… But You Were With Us…’
(Makkos 2a)
Our mesechta discusses many aspects of eidim zomemim, false witnesses who testify to a condition (i.e., that a certain individual presenting himself as a Kohen is a ben gerusha or ben chalutza, that he is the son of a divorced woman or a woman who received chalitza and subsequently married his father – and as such he is unfit for the priesthood) or an act (i.e., that an individual committed a sin for which one must be banished to galus) and later they are contradicted by another set of witnesses who assert that the witnesses testified falsely as to the accuracy of the alleged condition or the alleged act. The false witnesses are liable for the very punishment they intended to have meted out against the person about whom they testified.
Lashes
Of course, in the instance of a false accusation of ben gerusha or ben chalutza, where it is impossible for them to become a ben gerusha or a ben chalutza since they are not sons of a Kohen, they each receive 40 lashes. At the beginning of Makkos, we should cite the explanation of Rabbi Shimon Shkop, zt”l, about this halacha.
He Was Warned
The Gemara (Kesubos 33a) cites the uniqueness of eidim zomemim. Normally a beis din does not punish a person unless he was warned before his act (hasra’ah) that he is about to transgress a prohibition of the Torah and will be punished accordingly. However, false witnesses are punished without such warning, as the Gemara (ibid.) explains, since they wanted to punish someone whom they never warned. Rambam (Hilchos Edus, 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 can not punish someone without warning him: a) He should not be considered shogeg, unaware that he is transgressing a Torah prohibition. We see this from R. Yosi (Makkos 6b) regarding a sonei – a foe who is never considered a shogeg (see Rashi ad. loc.); b) He should know that by his act he decrees a punishment on himself (Sanhedrin 41a and Rambam, Hilchos Sanhedrin 12:2; see ibid., that the transgressor must explicitly acknowledge his penalty). Apparently, as difficult as the Gemara’s explanation is that we do not have to warn false witnesses because they wanted to punish a person who was not warned, we can punish the witnesses even though they were not warned and did not know that they could be punished with death. Rambam goes even further and refers to them as unwitting false witnesses – shogegim. In effect, in this case we do not recognize the shogeg excuse – and they are nevertheless to be punished without warning.
Punished For Their Cruelty
Rabbi Shkop explains that 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 they did not know of the prohibition of the Torah, 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 for Rambam’s ruling).
