Parshat Shoftim - 5764

“By the Word of Two Witnesses...” (Devarim 17:6)

An over-arching principle of the Torah is stated in Parashat Shoftim (Devarim 16:20), “Tzedek, Tzedek Tirdof!” “Justice, Justice shall you pursue!” One of the corollaries of this principle for human beings is stated further on in the Parashah, Devarim (17:6), “By the word of two witnesses or three witnesses shall the condemned person be put to death; he shall not be put to death by the word of a single witness.” The concept of the “Eid,” the “Witness,” or rather the “kat,” or “group” of witnesses is put forward by the Torah as the method by which finite Man, with limited sensual acuity, is capable at arriving at an acceptable approximation of the Truth.

In certain areas of the Law, such as Monetary or Civil Law, where two Jews come to “Bais Din,” the Jewish Court, for a “Din Torah,” a resolution of their conflict according to the principles of the Torah, the idea of accepting a group of witnesses is basically unchallenged, it is agreed also that they must be examined carefully for consistency of their testimony. In the case of Ritual Law, where the litigants are the Jew and his Maker, the opinion is accepted that one witness suffices.

In areas of the Torah that involve capital punishment, it is clear from the verse cited above that the Torah theoretically allows the resolution of the matter by means of witnesses. In practical terms, however, we find conflict among the Sages. In Makkos 7a, we find, “A Sanhedrin (Jewish Supreme Court) that executes one individual in a ‘Shemittah’ (a seven-year period) is called ‘violent.’ Rabbi Elazar ben Azariah said that the time period was (not seven, but) seventy years! Rabbi Tarfon and Rabbi Akiva said that if they had been members of the Sanhedrin (even though they were among the greatest of the “Tannaim,” they weren’t on the Sanhedrin because they lived in a time after the destruction of the Second Temple when the Roman suppression of the Jewish Religion was especially harsh, and the Sanhedrin at that time was abolished), no one would have been executed! (They would have accomplished this by cross-examining the witnesses to such detail that it would have been impossible even for truthful witnesses to maintain their consistency) Rabbi Shimon ben Gamliel said that their opinion was very dangerous, and would have multiplied the number of murderers in Israel.”

One thing we see here is the root of the modern controversy concerning capital punishment, with a difference. All sides in the Jewish debate agree that the death penalty is an effective deterrent, while one of the views in the secular debate holds that it would not be a deterrent. The theoretical prescription of capital punishment in certain cases by the Torah seems to confirm that the Author of the Torah believed that it is a strong deterrent. However, that view still allows for three options: Rabbi Shimon ben Gamliel felt that it should be used when necessary. Both the first opinion cited in the Mishnah and Rabbi Elazar ben Azariah believed also that it should be used, but exceedingly infrequently, for fear that a mistake would be made. Rabbi Akiva and Rabbi Tarfon felt that the Torah’s prescription was only theoretical; the danger of mistakenly taking a human life, of destroying an Image of G-d in error, was not within the purview of the human court.

The Ramban and Rabbeinu Bechaye express a profound thought on the question of why the Ten Utterances do not begin “I am the L-rd your G-d Who Created Heaven and Earth,” a cosmic act with implications for the entire universe, but rather “I am the L-rd your G-d Who took you out of the Land of Egypt,” a great miracle no doubt, but not on the scale of the Creation of the Universe. These great “Rishonim” (Torah Sages who lived in Mediaeval times) seem to see this surprising choice as an exception to the rule that human beings cannot rely on their senses for knowledge of Absolute Truth. The Ramban points out (Shemot 20:2) that the Miracles of the Exodus establish the Existence of G-d, the Active Will of G-d, that there was a Creation, the fact that HaShem is Almighty and that He is One. And he concludes his argument, “...for they (our ancestors at Sinai) knew and could testify as to the truth of those Miracles!

Rabbeinu Bechaye (38:1) says, “For this reason, HaShem did not say, “Who Created Heaven and Earth,” because no human being had observed that with his own eyes, and He wanted to bring a proof for them with respect to His G-dliness from something they themselves had seen with their eyes.”

The Torah also emphasizes this idea and says (Devarim 4:35) “You have been shown visual proof to give you certain knowledge that HaShem is the Almighty; there is none beside Him.”

The Torah itself is considered the “testimony of HaShem,” as David says (Tehilim 93:5), “Your testimonies are very trustworthy.”

In Devarim (4:26), “I call Heaven and Earth to bear witness against you...” Moshe calls none other than Heaven and Earth themselves, who have seen it all and cannot be fooled, to bear witness against the Children of Israel.

It is also interesting to note that when the letters spelling “Eid,” witness: “Ayin,” “Dalet” are reversed, they spell the word “Da,” to know, “Dalet,” “Ayin.”

At the end of last week’s Haftarah, in verse Yeshayahu 55:4, we find “Behold I have made him an ‘Eid’ for the nations, a Ruler and Commander for the nations.” This seems to show another connotation of the word “Eid,” or “Witness” - of Majesty and Command. Radak, one of the major Biblical commentators, states that the reference is to the “Mashiach,” the Messianic Redeemer, who will bring warning and ethical reproof to the People of Israel from the Holy One, Blessed is He.

Rabbi Pinchas Frankel

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