And you should to do him as he planned to do to his brother and you should uproot evil from your midst. (Devarim 19/19)
I once spoke to a boy who was struggling with yiddishkeit (and life) and he mocked his rebbes who taught him that the yetzer hora was a little man inside of him that made him do bad things. He felt that they lied to him and because of this they lost credibility in his eyes. I explained to him that a rebbe cannot explain to young children the true abstract explanation so they explained it to him in a way that a young boy can understand it. The question is, “Did they lie to him or not?”
Not so simple. HaRav Dessler (Michtav M’Eliyahu 1 pg. 94) defines truth as words “that cause good and brings people to go in Hashem’s path.” In most cases, this is when there is an accurate and exact reporting of an event. But this isn’t always the case. The true definition of truth is words that cause good and brings people to go in Hashem’s path—even if this means to falsely report something or to omit details of an event it is truth. HaRav Dessler stipulates, however, that only a person who is completely free from his yetzer hora can use such a method, which leaves it as a practical option only for a few great tzaddikim.
We have an example of this in this week’s parsha.
Our parsha speaks of a case that two witnesses testified against a certain person. After that, two other witnesses came before beis din and testified that the first set of witnesses are invalid because at the time of the event on which they testified, they were in a different place and it is impossible that they witnessed that event. (aid zomaim)
Our pasuk teaches that beis din accepts the testimony of the second set of aidim and the first set of witnesses are punished by beis din by doing to them exactly what they planned to do to the defendant. If they testified that he should be put to death, they are put to death. If they testified that the defendant owes someone money, they must pay that amount of money to the defendant.
Rashi quotes the Gemara that these witnesses are punished only if beis din did not yet punish the defendant. However, if the second set of witnesses didn’t testify against the first set of aidim until after the defendant was already punished, they are exempt from the punishment that they planned to be carried out on the defendant.
Rashi writes that this halacha is learned from the wording of the pasuk, “And you should to do him as he planned to do to his brother,” which implies that he only planned to have the defendant punished but he was not yet punished.
Zera Shimshon asks in the name of the sefer Liviyas Chain, that although this din is mentioned in Chazal, like Rashi writes, the Mishna derives it from a different pasuk than the pasuk Rashi quotes! It is written in the Mishna (Mesechta Makkos 5a) “…. the tzaddukim contended that the zomamim were put to death only after the accused was put to death, like it is written in Chumash, “a soul for soul.” The Chachamim retorted that this cannot be right because it is written in Chumash you shall do to him what he planned to do his brother. The words “his brother” imply that his brother is still alive because after he is dead, he is not considered to be his brother anymore.
Zera Shimshon asks, how can we reconcile Rashi who derives it from the words “And you should to do him as he planned to do to his brother,” which implies, and not as he did, with the Chachamim in the Mishna who derive this din from the words “his brother” which implies that his brother is still living?
Zera Shimshon answers with the following logic.
In truth, both the phrases “his brother” and “as he planned” imply that the accused was not yet punished and the implication of the words “his brother” is even stronger than the implication of “as he planned.” Rashi quoted the weaker proof as the source because Chazal learn a different halacha from the words “his brother.”
The death penalty for the daughter of a kohen who is unfaithful to her husband is that she is put to death my pouring hot molten lead (seraifa) in her mouth, and the man with whom she was unfaithful is put to death by strangulation (chennek).
From the words “his brother,” Chazal learn that in such a case, if two aidim testify that the two aidim who testified against this lady were in a different place at the time of the aveira then the first set of aidim do not killed by seraifa, like they planned to do to her since she is their sister and not their brother, but they get chennek.
According to this, explains Zera Shimshon, the Chachamim in the Mishna knew that the tzaddukim don’t agree with the din that aidim zommamim of the married daughter of a kohen are put to death by chennek, therefore they reasoned that in the minds of the tzaddukim, the words “his brother” are a more convincing argument than quoting the real source, “as he planned.” However, in truth, they also agree that we learn it from the words, “as he planned.”
In short, Rashi wrote the true source of this halacha and the Chachamim in the Mishna only quoted the pasuk “his brother” to convince the tzaddukim to back down from their false position.
As we saw from HaRav Dessler, this is not considered that the Chachamim lied to the tzaddukim, since the Chachamim’s only intent was to “cause good and bring people to go in Hashem’s path.”
