Shoftim – Clarity in Justice 

There is an obscure medrish in the beginning of this week’s Torah portion of Shoftim. It states, “Rebbe Eliezer says, ‘In a place where there is judgement, there isn’t judgement and, in a place, where there is not judgement there is judgement.’ How can this be? Rather Rebbe Eliezer says, ‘If judgement was done down here [on earth], then judgement is not done above [by the Heavenly Court]. And if judgement isn’t done below, judgement will be done above'” (Medrish Rabba Shoftim 5:5).
In the gemara we frequently find what is called a hava amina and a maskana, which is essentially an assumption of what the gemara originally understood (i.e. hava amina) what the rabbinic figure saidThe gemara will then have a question on that assumption, and eventually conclude with an answer (i.e. maskana). However, we don’t find this back and forth as often spelled out in the medrish. So why did the medrish here quote a statement from Rebbe Eliezer, asking what it means, as if they didn’t understand what he was saying, and then restate what he meant?

The Yedei Moshe addresses this conundrum. He begins by explaining the medrish based on a gemara in Makkos 5a, referring to the concept of eidim zomimin, which is a specific type of false witnesses, who are only proven false if two other witnesses come and say “you were with us when this happened,” so the first set of witnesses could not have been there to see the incident, for example if they are testifying about a murder. The gemara there says that if the suspected murderer is executed based on their testimony, then they are not executed. The law by these types of witnesses is that only if they attempted to punish someone, then they get the punishment they attempted to execute; but if the punishment already happened, then they aren’t punished. If that’s the case, then that is what the medrish means when it says, “in place of judgement,” meaning if judgement was already exacted based on their testimony, then “there is no judgment;,” the witnesses aren’t punished with execution. “When there is no judgment ” means the suspect wasn’t executed yet based on their testimony, and so the witnesses are marked for execution [for trying to kill the suspect.] The medrish then asks why this is done against logic [meaning how does it make sense that if the suspect is punished then the false witnesses arent punished but if the suspect who was charged was not punished yet then the false witnesses are punished with the punishment they tried giving the suspect?] To this the medrish answers that what Rebbe Eliezer meant is that if judgement was executed [for the witnesses] down here, then it’s not done On High, but if it was not executed down here, it does not mean that they are overlooked; rather judgement will be met from On High
In summary, the Yedei Moshe explains that originally the medrish was referring to the concept of eidim zomimin, which is discussed later in the parsha, and the medrish says they are punished if the guilty party wasn’t punished yet, and they are not punished if the guilty party already received punishment. The medrish asks, how does it make sense; the witnesses are punished if nothing bad happened to the guilty party, but are not punished if the guilty party was already punished? The medrish answers that what Rebbe Eliezer means is that the witnesses are punished by earthly courts when they were caught before the suspect was punished, because that punishment logically isn’t as severe. But when the suspect was punished, the false witnesses aren’t punished by the earthly court but rather by the Heavenly Court, a much more severe punishment.

Yet the Yedei Moshe doesn’t stop there. He continues and says, “Because it states in The Book of Galanti a correct reason why this is truthfully so, and these are his words: ‘Because it states in Tehillim (82:1) ‘G-D stands in Divine Assembly.’ [Referring to Hashem’s Shechina resting amongst the Jewish High Court (Sanhedrin) while they are in session,] and if the Sanhedrin mistakenly executes someone because of these witnesses, the question is how can that be allowed to happen with Hashem’s Presence right there with them? Rather it must be that the person that was executed because of these witnesses must have deserved execution anyways for some other sin [that the court might not have even known about]. The opposite is also true, if the guilty party was not executed yet based on these witnesses [when they were found to be false] this was a reason from Hashem not to kill him because they were lying witnesses and if so, they deserve to be punished because they tried to kill a kosher and innocent person. If this is so then when the medrish says ‘Rather when Rebbe Eliezer says, if judgement is done below, judgement is not done above’ this means that if this one is killed because of their testimony it must be he was liable to die already, the judgement on these witnesses is not executed above because he was already considered a dead man who they killed. And if judgement was not executed below then judgement is done above meaning that Hashem who knows this person is kosher, therefore he is not killed based on their testimony. Think about it!” (Click here for Hebrew text.)
 At the end of the day, after all the dust settles and all the factors are put into place, the Yedei Moshe understands the medrish to be teaching a lesson about eidim zomimin, that originally Rebbe Eliezer just said if judgement was acted upon then there is no judgment for the witnesses and if it was not acted upon yet then there is judgement for the false witnesses. The medrish felt that does not make sense in logic, for if Hashem’s Holy Prescence, The Shechina, is in the court room how can He allow such a blunder to happen? So, the medrish concludes that it must be that the suspect was deserving execution anyways but there was no way to legally get that done in this world by a court case against him, and therefore Hashem orchestrated that it got done through these false witnesses. That is why the witnesses aren’t liable for punishment but if they are caught to be false before the suspect is punished then they get the punishment for being false witnesses and trying to punish an innocent person.

 We can learn an important lesson from this medrish that especially when it comes to moral conduct one must prove and look into the matter very carefully and not just settle for what seems to be true on a superficial level. For it is true that if Hashem wantsed to set up a statute that false witnesses who are caught as eidim zomimin only receive the punishment they tried giving to the suspect but weren’t successful in doing so, Hashem could do what He wants and that is the rule He decided to make. But if it doesn’t make sense at face value, one has a right to question it and should search for the truth and logic behind the reasoning. This is the lesson of this medrish which goes out of its way and put in great efforts in the fashion of the Talmud to understand what Rebbe Eliezer was teaching us.