If a dishonest witness gets up to testify falsely about a man... And the judges investigate thoroughly and discover that the witness is a false witness... then you shall do to him just as he had planned to do to his fellow, and you shall eliminate the evil from Israel.

(Devarim 19:16-19)

But how is it possible to ever *prove* that a witness is testifying falsely? The testimony of two or more witnesses is considered to be the most authoritative evidence in Jewish jurisprudence. There is no stronger proof required for any question of law -- not even the testimony of three or a thousand witnesses. Whenever there is a contradiction between sets of witnesses, both sets are disregarded. Neither group has the power to positively disqualify the testimony of the opposing witnesses, against whom their word stands.

Of course, if the judges themselves personally have some information which impugns the testimony of the witnesses, they can know that the witnesses have lied. However, that cannot be the case in the above verses, because the Torah says that the judges discovered the ploy by "investigating it thoroughly," implying that they were not acting on the basis of some former knowledge that they had. Self-incrimination on the part of the witnesses is also not a possibility, as under Jewish law there is no such thing as recanting one's testimony. A witness is not able to falsify his own testimony. Testimony that has been accepted by the court does not lose its credence if the witnesses "back out." Instead, we just assume that the witnesses got "cold feet".

The Gemara (Makkot 5a) explains, on the basis of textual inference, that the Torah is telling us here that there is indeed a way for a pair of witnesses to disqualify the testimony of a previous pair, proving them to be liars. This unique situation is to be found when a set of witnesses testifies to the fact that the previous witnesses *could not have been present* at the scene of the supposed crime or incident at the time it was committed -- because the two sets were actually *together* in an entirely *different* location at that very moment! It is in this instance only that the Torah prescribes its punishment of "tit for tat" to the first set of witnesses.

This rule seems to be a complete enigma. If the Torah prescribes punishment for perjury when an *attempt* was made to incriminate someone, why should it exempt the perjurer in a case when *actual* harm was done? The Gemara itself admits that this rule seems to run counter to logic, but the rule stands nonetheless, as it is derived exegetically from the Torah's words.

Over the ages the commentators have tried to offer some sort of rationale behind this strange rule. Let us investigate some of the more intriguing of these suggested explanations.

It is clear to any God-fearing person that Hashem does not allow any harm to befall a person unless that person is somehow deserving of that misfortune. If a person is framed by false witnesses and this is proven before any harm befalls him, Hashem has apparently decreed that the defendant is not deserving of the punishment in question. If, however, the evidence absolving the defendant was not brought to the fore until *after* he had already met his punishment, it is apparent that Hashem in His wisdom decreed that this man was deserving of this particular punishment -- even if he was innocent of the particular charge for which he was convicted. Since the punishment was deserved in any event, the witnesses who brought this punishment upon him are not held accountable for their deed, as evil as their deed may have been.

There seems to be a basic flaw in this reasoning, however. The Gemara (Berachot 7b) tells us that sometimes a wicked person is granted success and good fortune, and that in such times even the righteous may suffer at their hands -- as our everyday experience suggests. Should these criminals be absolved on the grounds that all evil is preordained anyway? Perhaps it is in order to avoid this difficulty that the Ramban adds the following point: It is specifically in this case that this line of reasoning is valid. Here, the punishment is not delivered directly by the wicked person, but through the agency of a divinely ordained court of law -- "Hashem Himself stands in the courtrooms of the congregation of God" (Tehillim 82:1). In such a situation we may say that whatever punishment is administered by the *court* indeed represents the will of Hashem.

The Sefer HaChinuch (13th cent. Spain) suggests an answer to Rabbenu Bachya's question. There is a rule in the Gemara (Erchin 6a) which says that after a man has been sentenced to death in court, he is no longer considered to be a living man, in a certain sense. The Gemara tells us that if someone would murder this individual he would not be subject to capital punishment. It is considered as if he had murdered a dead man. With this in mind, the Chinuch deals with Rabbenu Bachya's question. When a man is executed due to the spurious testimony of a set of false witnesses, it is obvious that Hashem had been using those witnesses as a means of carrying out a Divine death sentence. In such a situation, it is considered (retroactively) as if Hashem had already pronounced a death sentence on the defendant from the time that the perjurers began to present their testimony in court. It is, therefore, a "dead man" who they have executed. Thus, the witnesses cannot be punished for causing this execution to take place.

This explanation, however, is also problematic. It accounts only for the absolution from punishment of witnesses who brought about a man's *execution* through false testimony. It does not explain cases which do not involve capital offenses, such as a situation where the defendant was sentenced not to death but to flogging, or to monetary payments, because of the false testimony. Why should the perjurers be exempted in cases where they succeeded in only flogging or causing monetary loss to the defendant?

In fact, there is indeed an opinion that the rule of "If they killed, they are not killed" applies *only* to capital cases. If flogging or money is involved rather than execution, however, there is no absolution from punishment when the defendant's sentence had been carried out (Rambam, Edut 20:2). The Chinuch may, then, be presenting a logical basis for those that maintain this opinion. However, it must be noted that this opinion is rejected by nearly all the other commentators. (As for the Ramban, there may be an entirely different reading in his words that avoids Rabbenu Bachye's objection. However, we shall not deal with that possibility at present.)

Although this is an interesting parallel, the Maharal's explanation still obviously needs much elaboration. Why must a punishment be "deflected," in order for it to be inflicted on the witnesses? After all, there are many other punishments prescribed by the Torah, none of which involve such a "rebounding." Perhaps the words of the Maharal may be understood along the following lines.

There are two different rationales as to why Hashem would prescribe a punishment for sin in His Torah. One reason would be for the benefit of the offender himself -- to "serve notice" to him that he has embarked on a sinful path, and that he should mend his ways, much as a father hits a son in order to teach him a lesson that is for his own good. The other reason for punishment is in order to discourage *others* from following the example of the sinner, much as a teacher sometimes "makes an example" of one student in order to make an impression on the entire class.

The first rationale would seem more acceptable, since the one who is punished is himself the one who benefits from the punishment. This, then, ought to be the reasoning behind most of the punishments of the Torah. The second category, if anything, should be reserved for specific sins which could wreak havoc on society at large, if not kept in check. In such instances, it may be justified to take the drastic measure of making the sinner suffer simply to prevent *others* from following in his evil ways.

There is a rule (Makkot 2b) that the Torah administers no punishment for a sin that does not involve a physical action. If a transgression is committed through a person's inaction (such as not ridding his house of Chametz before Pesach) or through his thoughts or speech, he is not punished by the court. The reason is that a person who allows his body to perform a forbidden physical act, can become accustomed -- even, in a way, "addicted" -- to such behavior. He is, therefore, in need of a physical punishment to prompt him to change his mode of behavior, and prod him back onto the path of life. A sin that does not involve a physical act, however, does not require such a drastic measure, since the body of the sinner has not become "accustomed" to sinning. It is still easy enough for the sinner to stop in his tracks and sin no more.

The sin of perjury is a non-physical act (because "speaking words does not constitute an action" -- see Makkot 4b, Sanhedrin 65b). Hence, a punishment of the first sort discussed above is not in order. Physical punishment is not necessary to in order to enable one to change his ways. (The Maharal himself clarifies this point about the punishment of false witnesses in Be'er HaGolah Ch. 2.) If a physical punishment for perjury is nevertheless prescribed, it must be for the second reason we have mentioned -- in order to illustrate to *others* that crime does not pay. When the reason for punishment is to discourage *others* from following the sinner's ways, we must look not upon how the sin affected the offender himself, but at the amount of harm the sinner has caused to society. The fact that no physical action was involved may affect the level of sin as far as the individual sinner may be concerned, but it does not mitigate the effect that this sin had on the unfortunate defendant.

This point, that the punishment the Torah prescribes for perjurers is intended to teach a lesson to society at large, as opposed to the sinner himself, is in fact borne out by the Torah itself. After delineating the measure-for-measure punishment for perjurers, the Torah concludes, "You shall eliminate the evil from Israel, and those who remain will hear and be afraid, and will refrain from doing such a thing in your midst ever again" (19:19-20). This verse clearly indicates that the punishment of the false witnesses belongs to the second category of punishment, as we have proven above.

We have established that the entire point of the punishment of false witnesses is in order to make a demonstrative statement to others. The point we are trying to teach is that "crime does not pay." When one engages in evil schemes, rather than succeeding in causing harm to others, they are likely to backfire on the schemer himself. "He who digs a trap will fall in it" (Mishlei 26:27). This lesson can only be taught when the scheme that the witnesses planned in order to frame their fellow man can be made to turn around ("rebound") and backfire on the witnesses themselves.

When the witnesses managed to succeed in their evil plan, however, this lesson can no longer be shown by punishing them. Rather than showing the futility of perjury, their punishment will be publicizing that perjurers have indeed succeeded in doing harm. Even if the court were to mete out another punishment to the false witnesses in return for their evil act, this would not undo the wrong that has been done. It will show others that the court *avenges* injustice -- not that an evil plot is liable to *backfire*. Since revenge is itself inherently unjust, we will be adding wrongdoing to what has already been done wrong. People are liable to react saying, "Look, the court too takes revenge!" This will not accomplish our goal, of teaching others that evil plans will not prevail. The harm that has been done cannot be corrected.

For this reason, perhaps, the Torah limits its punishment of perjurers to situations where the punishment of the defendant has not yet been executed.