How Does Beis Din Establish That a Capital Offense was Committed Intentionally?
Provided courtesy of Real Clear Daf
On 40a the Mishna taught that Beis Din does not put an offender to death unless he was warned by the witnesses immediately before the offense was committed. The warning must include the specific death penalty applicable to the crime in question. Without this warning Beis Din cannot be certain that the offender committed the act with full awareness and intent. This conforms with the recurring principal of "והצילו העדה" which sets a very high standard before Beis Din can actually sentence a person to death.
An interesting discussion pertaining to the warning requirement came up on 41a. Rav Chanan there presents a ruling concerning עדים זוממים, conspiring witnesses. The Torah says that if witnesses are discredited in a specific way by other witnesses (they testify that the previous witnesses were with them at the time they claim to have witnessed the crime), we apply to them the very punishment that they sought to bring upon their victim. Rav Chanan rules that if עדים זוממים falsely testified that a woman committed adultery (a capital offense), they are not put to death. Why not? Because the witnesses can claim that all they sought to do with their false testimony was make this woman prohibited to her husband, the other consequence of an act of adultery (i.e. even if the death penalty cannot be applied, an adulteress always becomes prohibited to her husband).
Ostensibly this is a flimsy argument. The witnesses’ argument here sounds like a person who shot someone dead who argues, “I was only trying to startle him with the loud noise; I never intended that he should die from the bullet!”
Maybe Rav Chanan means this: the whole notion of putting עדים זוממים to death is a very unusual kind of halacha. Most punishable sins in the Torah are actions; here they’re being treated as murderers for their words. Therefore, if the עדים זוממים can raise the slightest question about their murderous intention, the novel halacha of “do to them as they conspired to do to their brother” does not apply. We can also add the fact that (in contradistinction to the pretty inevitable physics of a bullet inflicting harm) we have learned about the numerous hurdles that must be overcome before Beis Din can actually apply the death penalty. The argument of the עדים זוממים starts to become a plausible one.
The Gemara then questions how the עדים זוממים could ever claim that they weren’t trying to have this woman killed in light of our Mishna’s requirement that the witnesses themselves warn the offender that the sin is liable to the death penalty! Since their false testimony must have included the claim that they warned her of the death penalty, these false witnesses obviously knew that the acceptance of their testimony would result in her death! The Gemara answers that Rav Chanan was referring to a learned woman who clearly understood the legal ramifications of the sin of adultery. There is a Tannaic dispute about whether a warning is required in such a case. The Gemara explains that Rav Chanan follows the view of R’ Yose B’rebi Yehudah who says no warning is required if the offender is a learned person, hence, we can say that these witnesses never issued a warning here. These עדים זוממים can therefore give the excuse that they weren’t expecting that their false testimony would result in this woman’s death.
The Gemara then points out that if indeed the regular system of עדים זוממים cannot be applied here, then the testimony should not have been accepted to begin with. That is, even before these witnesses were discredited, the court should have thrown out the testimony based on the rule that testimony is only accepted in court if the עדים זוממים system can be applied to it. For example, if the witnesses do not provide the time or location of the crime, since this makes it impossible to discredit the testimony by future witnesses who say, “Hey! You were with us at that time!” the testimony is rejected from the beginning. Here too, since these witnesses will be able to excuse themselves out of the עדים זוממים punishment, the testimony should be rejected right from the outset. The Gemara answers, you’re right! And this was the very conclusion that Rav Chanan wanted us to come to: since the law of עדים זוממים can’t be applied here, the testimony is therefore rejected from the outset.
Can a great leader ever question God’s justice?
It seems from the gemara we learned on 44a that the answer is: yes. The Gemara there quotes a verse from Proverbs (18:23):
“The poor man says supplications and the rich man speaks brazenly.”
The Gemara explains that this verse means to contrast Moshe Rabbeinu’s humbleness with Yehoshua’s brazenness in how these leaders beseeched God. The Gemara then seeks an example which demonstrates Yehoshua’s brazenness. The Gemara initially suggests the example of Yehoshua’s response by the incident of Achan in which the the Jewish army suffered casualties at the battle of Ai as a result of Achan’s illegal plundering of Yericho. Yehoshua threw down the ill-gotten booty before God and declared, “For this we suffered such casualties?!” But the Gemara rejects this example, pointing out that Pinchas (who is not called out for brazenness) did almost the exact same thing in response to the 24,000 people who died during the retributive plague for worshipping the idol, Pe’or. Once Pinchas had completed his bold act of slaying the leading perpetrators (Zimri and Cozbi), he threw their corpses down before God and declared, “Because of these 24,000 have fallen?!”
The Gemara then tries to say that Yehoshua showed particular brazenness when, upon the defeat in the battle with Ai, he exclaimed to God, “Why did you have these people cross the Jordan to deliver us into the hands of the Amorites?!” But this too is rejected because Moshe Rabbeinu (when his initial efforts to redeem the people from Egypt were rebuffed and Pharaoh only intensified the slave labor) also exclaimed to God, “Why have you done evil to this people?”
The Gemara concludes that Yehoshua’s brazenness is seen from other words he used when reacting to the defeat at Ai: “If only we would have settled on the other side of the Jordan!” Yehoshua’s seeming implication here, that it would have been a good idea to disobey Hashem’s command, crossed a line that earned this characterization of brazenness. (It must be noted that we cannot interpret this kind of criticism at face value when discussing a luminary like Yehoshua. In general, the missteps of our great forefathers are much more subtle than meets the eye.)
This Gemara reveals a startling idea: if expressed in the right way, by the right person, with the right intentions, it can be appropriate to cry out against a perceived injustice from Heaven. The above qualifications, though, are critical. The Gemara here is referring to some of the greatest leaders who have ever lived. These people had the wisdom to do this properly, and they surely had crystal clarity of the fundamental truth that, regardless of our lack of comprehension, God’s justice is perfect. Nonetheless it is interesting to contemplate that there apparently is no objection to a great leader who strongly questions the justness with which the Supreme Judge runs this world.