Parshat Shof'tim

Friends:

     This week’s parasha, Shof’tim, teaches us the laws about witnesses who conspire to testify falsely against a defendant. “You shall do to him as he conspired to do to his fellow,” the Text instructs (Deuteronomy 19:19). The Rabbis read this in an incredibly literal manner, summarized by Rashi as follows: “As he conspired - and not as he did. From here they said, if he [the accused] is executed, they [the witnesses] are not executed.” That is, if the conspiring witnesses are successful in convincing the court to falsely punish a defendant, they themselves are not punished, even though their testimony was false. They are only punished if they are caught before the punishment of the defendant is completed. Here, the Rabbis actually limitthe window for catching conspiring witnesses to between the time of the guilty verdict and the time when the punishment is executed. If the witnesses are found to have conspired falsely, but outside of that time, they cannot be tried and punished for it. This means that if the conspiring witnesses fully succeed in their plan to have the defendant punished - including via capital punishment - they are rewarded with immunity.

    Traditional commentaries are flabbergasted by this and come up with a number of justifications. Nachmanides (13th Century Spain) suggests that while the witnesses may indeed have testified falsely, the fact that God allowed the accused to be executed must mean that the accused was actually guilty. The witnesses lied, but the punishment was warranted. I find this explanation incredibly difficult to accept, given how easily it can justify any kind of unfair suffering and death. People use such excuses to justify all sorts of personal and global tragedies. This includes Jewish sources that attempt to justify acts of evil by claiming that, while the perpetrators were horrible people, the fact that God still allowed the victims to die is proof that they deserved it. Such rhetoric tends to cause pain to those who loved the deceased more than it helps anyone relate to God.

    Equally difficult for me to accept is the explanation of the Kesef Mishnah (Yosef Karo, 16th Century Turkey and Israel). He explains that conspiring witnesses who are successful in having the accused executed have committed such a heinous crime, death at the hands of people is too good for them. Since, in our tradition, punishment by the court atones for a person’s sins, we do not want these witnesses to gain atonement. Therefore, we leave their punishment in the hands of Heaven. This is unsatisfying to me. It calls into question whether we need courts in the first place, and lets us solely trust God to take care of the world’s evils. Considering that another commandment in this week’s parasha instructs us to set up a court system (Deuteronomy 16:18), this explanation flies in the face of the Torah’s own theology.

    Rabbi Ovadiah of Bartenura (15th Century Italy) brings a third explanation that, unsurprisingly, I also find difficult. However, I think it does explain the thinking behind the Rabbinic interpretation of conspiring witnesses, and I find that it makes Nachmanides’ and Yosef Karo’s commentaries more palatable. Rabbi Ovadiah says that, if the accused is executed and the false witnesses are executed, there would be no end to the matter. It takes two additional witnesses to condemn witnesses who have falsely conspired. If we executed the conspiring witnesses, their families would bring other witnesses to testify against the witnesses who testified against them, claiming that the second set of witnesses were actually the ones conspiring. This will continue with no end. While Rabbi Ovadiah does not say this directly, I think he means that to say that, in order to limit unending feuds of testimony, each court case gets a maximum of one punishment per case. The system is unfair, but that is the limitation of a human system. We try for maximum fairness, but at the end of the day, we have to accept the system’s limitation rather than leave an unending trail of bodies. Fairness should be the goal in solving disputes, but fairness is also an asymptote we can never reach. The Torah’s court system certainly sees fairness as a goal. It explains that conspiring witnesses are punished so harshly in order to prevent others from testifying falsely (Deuteronomy 19:20). But as much as we may strive for fairness, we need to ensure that the quest to get there does not leave too much damage in its wake. Sometimes, no matter how frustrating, it is better to have a limited system than one which becomes an arm for ongoing personal feuds.

    The idea which underlies Rabbi Ovadia’s explanation also helps to explain Nachmanides and Yosef Karo. Both of them create stories that make an unfair part of our legal system more palatable by trusting that, at some point, God will step in. They accept that human legal systems cannot be truly fair. Whether or not God does act, they still both recognize that human systems on their own are limited - and that fairness should not come at the expense of considerable damage.

    While Jewish religious courts no longer have the ability to judge cases outside of monetary and religious status disputes, the principles here apply to person-to-person interactions as well. We should strive for fairness in life, and we should not allow people to report falsely about others. However, our determination for fairness must not come at the expense of an unending cycle of pain. Life is occasionally unfair; as difficult as it may be, sometimes our best bet is to move on. As the High Holidays approach and people who wronged us in the last year show remorse, we should all keep in mind that the goal of the season is not to right wrongs, but to repair relationships. For the person who makes t’shuva, this means laboring to fix those wrongs that they committed. But for those who have been wronged, that can mean accepting that while some things cannot be fixed, forgiveness is better than an unending grudge or quarrel. And even if our wrongs are not righted - even if, in the end, those who hurt us get away with nothing but an apology - we must sometimes accept imperfect justice. Of course, the Torah teaches that there should still be consequences for people who act inappropriately. When possible, such people should attempt to right their wrongs, even when their wrongs are so grievous they cannot be righted. However, the Rabbis understood that perfect fairness is sometimes not worth the human cost. Hopefully, even as we strive for fairness in our courts, communities, and relationships, we can understand this too.

Shabbat Shalom - שבת שלום
Reb Joel