The opening mishna of Makkot (2a) begins by asking, “How are witnesses established as conspiring (zomemim)?” Yet, as the Talmudic narrator points out, the first case is a counterexample, how conspiring witnesses unable to receive the exact penalty they intended to mete out instead receive lashes. Now, on a peshat level, we might respond that
say that despite not receiving the precise kaasher zamam penalty, they do receive this penalty for having been established as conspiring, rather than merely false, witnesses. Indeed, Ulla finds a biblical allusion to lashes for conspiring witnesses on 2b.
The Talmudic narrator also notes that a later mishna (Mishna Makkot 1:4, on Makkot 5a) declares that only when other witnesses impugn by saying, “How could you say that, for you were with us on that day in another place,” הֲרֵי אֵלּוּ זוֹמְמִין—“These are conspiring witnesses.” The implication is that only these are conspiring witnesses, while the earlier ones mentioned in the opening mishna are not. This Stammaic question also appears weak—for the contrast in 5a is to the earlier clause in the mishna, where the other witnesses claim they were the purported murderer or victim. The contrast isn’t to the Mishna Makkot 1:1, and the expression וְנִמְצְאוּ זוֹמְמִין is already found in Mishna Makkot 1:2 and 1:3.
The question seems more of a pretext or prompt for the narrator’s answer, that the context (תַּנָּא הָתָם קָאֵי) is a mishna in Sanhedrin 89a, discussing how all conspiring witnesses receive as they intended to inflict, except for those accusing a Kohen’s daughter of infidelity. Therefore, the Tanna moves to discuss other exceptions to conspiring witnesses receiving the exact punishment.
Indeed, the Talmudic narrator often discusses the rationale for the ordering of tractates, first wondering why the Tanna discusses something arbitrary, and then associating it in some way to a preceding text. For instance, see the beginning of Eruvin, Taanit and Brachot, I’d suggest that just as this is the Talmudic narrator’s style, the style of the mishna’s arranger is entirely in sync with diving immediately into a complex topic—rather than first establishing basic principles. Further, the Tanna could define conspiring witnesses (כֵּיצַד הָעֵדִים נַעֲשִׂים זוֹמְמִין), by first exploring valid and invalid edge cases or invalid cases. Sukkah 2a defines the dimensions of a valid sukkah by explaining what’s invalid; Eruvin 2a with alleyway edge-cases and Pesachim 2a with where one needn’t search for chametz.
Which Chapter Precedes?
There seem to be two interrelated disputes regarding the final chapters in Sanhedrin. The first dispute regards ordering. In our printed Bavli (A), each of the four methods of execution are relatively contiguous—with “sekila” introduced mid-chapter chapter 7—an interjection with ben sorer umoreh who receives “sekila” in chapter 8, “sereifa” and “hereg” at the start of 9 and “chenek” in chapter 10. The 11th chelek is extremely aggadic and deals with who has a portion in the world-to-come. The alternative, (B)—in printed Mishnayot/Yerushalmi—swaps chapters 10 and 11, so that next-worldly portions are also an interjection.
A separate but related dispute is whether (C) Makkot is part of Sanhedrin, as some Rishonim write1, so that the last chapter of Sanhedrin is really the third chapter of Makkot or (D) Makkot is a tractate in its own right.
Consider the Kaufmann Mishna manuscript, which follows both (B) and (C). Thus, the final mishna of chapter 11 deals with the conspiring witnesses of the bat Kohen, and the next mishna is Sanhedrin 12:1, about how witnesses are rendered conspiring. Let’s explore who says what, and the merits thereof.
My guess is that Talmudic narrator maintains (B), the flipped order, and (D), a separate Makkot. After all, he’s concerned with transitions/ תַּנָּא הֵיכָא קָאֵי specifically at the start of new tractates, and—while not required—the transition works best from the immediately preceding mishna.
Ending With Rhetorical Flourish
Often, we see homiletic/aggadic flourishes at the close of a Mishnaic tractate, e.g., Mishna Brachot 9:5 on how one must bless on the good and the bad, and serve Hashem with both good and evil inclinations. Then, perhaps the arranger of Mishnayot adopted (A) and (D), with chelek as the 11th and last chapter of Sanhedrin. After all, the chapter contains theological/aggadic material, and the last mishna (Sanhedrin 111b) closes with the elimination of the wicked from this world, along with wrath.
Homiletic flourishes also often appear at the end of a Talmudic tractate. Thus, Ravina/Rav Ashi/late Amoraic redactors of the Talmud (in contrast to the perhaps Savoraic Talmudic narrator above) perhaps also adopt (A) and (D). After all, Sanhedrin 113b closes the chapter with a baraita matching the ideas in the mishna, contrasting evildoers entering and exiting the world with the righteous exiting and entering the world.
While our Yerushalmi swaps our chapters 10 and 11, there is no such homiletic flourish at the end of either chapter. Its chapter 10 does end in aggadic fashion, discussing the parameters of not rebuilding Jericho, but the feel is technical and halachic. Its chapter 11 also ends in technical discussion of the Kohen’s daughter and her conspiring witnesses.
Could this be because neither chapter 10 or 11 ends the tractate? Consider that the last two Mishnayot at the end of Makkot end in homiletic material, culminating in the famous רִבִּי חֲנִינָה בֶּן עֲקַשְׁיָה אוֹמֵר. The Yerushalmi text exists in only one Talmudic manuscript (which Guggenheimer labels G, noting it is referenced in kabbalistic circles as Yerushalmi, also appears in Bereishit Rabba and Yalkut Shimoni). This text also contains a homiletic flourish, analyzing why Hashem is sometimes referred to as Makom. For instance, He is the place of the world but the world is not His place.
The Leiden manuscript of Yerushalmi omits this, noting לא מצאתי ירושלמי בפרק הזה, that he couldn’t find any Yerushalmi material on this last chapter. Yet, the text is related, since Leiden’s mishna has Rabbi Chanania ben Akashya refer to Hashem as “HaMakom,” rather than “HaKadosh.” Perhaps, then, besides (B), the flipped order, the Yerushalmi’s redactor adopted (D)—the extension into Makkot—where the rhetorical flourish ends the tractate.
We’ll end in a teiku (“let it stand unresolved”). May all makkot end and, when Eliyahu HaNavi arrives to restore the Sanhedrin and herald the arrival of Mashiach, he can resolve this question for us, בִּמְהֵרָה בְּיָמֵינוּ אָמֵן.
Rabbi Dr. Joshua Waxman teaches computer science at Stern College for Women, and his research includes programmatically finding scholars and scholastic relationships in the Babylonian Talmud.
1 See Ramban, Devarim 21:13, referring to Yerushalmi Makkot as Sanhedrin; Rashba, Kiddushin 22a, referring to something appearing in our Yerushalmi Makkot, perek 2, as Yerushalmi Sanhedrin; Ralbag on Shemot 21:12 referring to the same second as the 13th perek of Yerushalmi Sanhedrin. Rambam in his “Introduction to the Mishna” notes this position/textual variant and rejects it.
