Walking and chewing gum

Is it possible to walk and chew gum at the same time? How about learning two tractates at the same time? We shall see.

I just started studying Masechet Makkot with ALG. This continues the trend of learning short, manageable masechtot (after finishing Sukkah and Rosh Hashanah and starting Megillah). However, the subject matter is a major shift; instead of dealing with a holiday, Makkot deals with criminal justice. ALG learned it once before, in a dream. She owns a copy of Masechet Makkot containing handwritten notes in her own handwriting, but she has no memory of when or where she learned it before. So she gets to see it again for the first time.

Makkot is only three chapters (24 dapim), and some think it was originally part of Masechet Sanhedrin that split off later. Contrary to popular belief, it's not all about makkot (flogging as a punishment for certain offenses, based on Deuteronomy 25:1-3); only the third chapter is. The second chapter is about the accidental killer, who has to flee to a city of refuge (see Numbers 35).

We started by learning all the mishnayot of the first chapter; those will be discussed when we get to them again in the Gemara. It's very appropriate that we started this week, because the first chapter is based on Parshat Shofetim. It deals with the 'edim zomemin (see Deuteronomy 19:16-18): If Homer testifies against Ned, and then Homer's testimony is shown to be false (and as we'll see in a later mishnah, this rule only applies if it is shown that Homer himself couldn't have been there to witness the events, not if merely the content of his testimony is refuted), then Homer is liable to whatever punishment his testimony would have brought upon Ned, from a monetary fine all the way to execution.

The first mishnah cleverly combines the themes of all three chapters. It starts: How do witnesses become zomemin? If Homer says "We testify that Ned is the son of [a kohein and] a divorced woman" or "the son of [a kohein and] a chalutzah" (which would disqualify Ned from priestly service) and then Homer's testimony is invalidated, we don't say "Homer gets the status of a son of a divorced woman / chalutzah"; instead Homer just gets beaten 40 times (the standard catch-all punishment). If Homer says "We testify that Ned [is an accidental killer and] has to be exiled [to the city of refuge]" and his testimony is invalidated, we don't exile Homer to the city of refuge; again, he gets beaten 40 times.

So there you have it: 'edim zomemin, exile to the city of refuge, and makkot all together.

As is common at the very beginning of a masechet, the Gemara's first question is "Who am I? Why am I here?" More specifically, what's with that first question "How do witnesses become zomemin?"? Based on the examples in that mishnah (where Homer doesn't get the punishment he tried to bring upon Ned), the question should be "How do witnesses not become zomemin?"! Aw, snap! Furthermore, we have another mishnah that actually answers the question "How do witnesses become zomemin" -- it's the one about how the witness himself has to be invalidated, not just the content of the testimony. So what's going on here?

The answer is that this is a (sort of) seamless continuation of Sanhedrin. The last mishnah of Sanhedrin (if you're going by the order of standalone Mishnah editions, where Cheilek is chapter 10 and Eilu hein hanechenakin is chapter 11, rather than vice versa as in Talmud editions) says that all zomemin in capital cases get the same type of execution as the crime that they're testifying about, except an adulterous bat kohein (she gets burned; someone who falsely testifies her gets strangled). And (the Gemara now fills in the gap) there are some cases of 'edim zomemin where they don't get this kind of poetic justice at all, but just get makkot. How? Well, if Homer testifies that Ned is the son of a divorced woman....

Now that we've established how we got here, the next question is why? In that first case, why doesn't Homer just become disqualified from the priesthood, as he tried to do to Ned? Because the rule in Deuteronomy 19:19 is "do to him as he schemed to do to his fellow". Do to him, not to his offspring. Being a chalal is hereditary, so if Homer became a chalal, this would be passed on to Bart, Lisa, and Maggie. Ok, so why not disqualify just Homer, and leave his kids out of it? Well, that doesn't work either, because then it wouldn't be "as he schemed to do", since Homer schemed to disqualify Ned along with Rod and Todd, not just Ned.

Bar Pada tries a logical argument to reach the same result: someone who disqualifies others (e.g. a kohein who marries a divorced woman so that his kids are disqualified) is not himself disqualified, so kal vachomer someone who tries to disqualify others (i.e. an 'ed zomeim whose plan is foiled) shouldn't be disqualified himself.

Ravina says nice try, but in that case you unravel the whole system of 'edim zomemin! Someone who successfully testifies to have someone executed isn't executed, therefore you could say that kal vachomer someone who unsuccessfully testifies to have someone executed shouldn't be executed. So get your logic out of here.

And why can't Homer be exiled to the city of refuge? Because Deuteronomy 19:5 says "he shall flee to one of these cities" -- he [the accidental killer], not someone who testifies against him. A similar logical argument is attempted as a supplementary reason, but it gets shot down as well.

Ok, so if the 'ed zomeim can't be exiled, what's the source for him being beaten? Deuteronomy 25:1-2 says "v'hitzdiku et hatzadik v'hirshi'u et harasha'". The 'ed zomeim testified against the tzadik (meaning innocent in this case) that he was a rasha', and then other witnesses came and cleared the name of the one who was originally tzadik, so that the 'ed zomeim now becomes the rasha' (guilty), and is thus subject to makkot.

Well ok, you could do this contortionist reading of Deuteronomy 25, but why not just say that the 'ed zomeim violated "Don't bear false witness" (one of the Ten frickin Commandments), and is thus subject to makkot as the catch-all punishment for violating a negative commandment? Because a lav she'ein bo ma'aseh (a negative commandment that doesn't involve action, and I guess speech doesn't count as action) isn't subject to makkot.

If I may be heretical, I wonder if maybe the Mishnah didn't know this principle about lav she'ein bo ma'aseh, so the Mishnah thought it was just applying the usual catch-all punishment, and it's not until later rabbis came up with that principle that they had to come up with the contortionist reading instead.

A baraita says that there are four things that don't apply to 'edim zomemin: they don't get the status of the son of a divorced woman, they don't get exiled [as in the Mishnah], they don't pay ransom (see Exodus 21:30), and they don't get sold as slaves. Rabbi Akiva adds that they don't pay the penalty if they turn themselves in as perjurers, but only if someone else contradicts their testimony.

And we'll stop there.