Va-Etchanan

Devarim 3:23-7:11

False Witnessing and the Maintenance of Civil Society

Aryeh Bernstein, 5764

(based on a devar torah for Parashat Yitro)

"Do not bear false witness against your neighbor" - וְלֹא תַעֲנֶה בְרֵעֲךָ עֵד שָׁוְא (5:17).

This, the 9th of the Ten Commandments, somehow seems to get the least attention, mumbled under our breath as we focus on the glitzier ones. What is this commandment about? What is "bearing false witness", anyway? Moreover, what is it doing in the Ten Commandments, and not buried away in some longer law-code-ish part of the Torah?

As we know, this is not our first encounter with the Ten Commandments. We find them first in Parashat Yitro (Shemot chapter 20), in the story of the revelation at Mt. Sinai. Our parashah records Mosheh's review of the Ten Commandments, almost 40 years later. Famously, our parashah's version of the Ten Commandments varies slightly from the version in Yitro. One of these variations is in our commandment: there, in Yitro (20:13), it says, לֹא תַעֲנֶה בְרֵעֲךָ עֵד שָׁקֶר - "שקר" means "lie"; hence, the translation of bearing "false witness", i.e., a lying witness. Our parashah, however, says, וְלֹא תַעֲנֶה בְרֵעֲךָ עֵד שָׁוְא. "שוא" means something like "emptiness" or "worthlessness", so a more precise translation of our verse would be, "Do not bear vain witness against your neighbor," i.e., Do not testify in court with meaningless chatter. The Talmud Yerushalmi lists this variation as one of the Torah's several pairs of statements that were said simultaneously (בְּדִבּוּר אֶחָד נֶאֱמְרו): both variations equally reflect God's word and were miraculously expressed in one breath. We will best understand the meaning of this doubled mitzvah if we begin with the Shemot version, the prohibition on bearing "false" testimony.

The dominant view, established in the Mekhilta, links this commandment with the law of "עֵדים זוממים" - "scheming witnesses", from Parashat Shofetim. There, the Torah teaches the following regarding courtroom procedure: "If one testified as a false witness - if he testified falsely against his fellow - you shall do to him as he schemed to do to his fellow" - "...וְהִנֵּה עֵד שֶׁקֶר הָעֵד שֶׁקֶר עָנָה בְאָחִיו: וַעֲשִׂיתֶם לוֹ כַּאֲשֶׁר זָמַם לַעֲשׂוֹת לְאָחִיו" (Devarim 19:18-19).

The connection between these two mitzvot is that the 9th Commandment is the "אַזְהָרָה" ("warning") for the law of scheming witnesses. Some explanation is in order. Generally, Torah prohibitions carry the punishment of 39 lashes. However, if the Torah specifies a different punishment, such as death, that punishment can be operable only if the Torah elsewhere gives a general "warning" not to commit the prohibition. That is, the Torah will prohibit it once and then, on top of that, will add a note about the different punishment. The reason for this is that if the Torah just said, "If you do X, you shall surely die", you might think that it is acceptable to choose to commit X, provided you don't mind suffering the punishment. No, insist the Sages; such moral calculations are inadmissible, so the Torah must always be clear, providing an independent source forbidding an act and later adding that it has a special punishment. In our case, the 9th Commandment establishes that false testimony is forbidden, and Devarim 19:18-19 (above) informs us that this prohibition in not punished with the usual 39 lashes, but, instead, that false witnesses are punished according to what the innocent party would have suffered had the false witnesses gotten away with their courtroom crime. If they falsely testify that Reuven murdered Leah, then they will be executed, just as Reuven would have been had the witnesses not been caught lying. If they falsely testify that Rachel owes Yehudah $100, then they will be penalized $100, just as Rachel would have been had they not been caught.

That's all definitional background. Now, why is it so important to merit being in the Ten Commandments? In order to think about that, let us draw our attention to an unusual feature of the law of witnessing falsely. Generally, in Halakhah, a person cannot be convicted of a crime unless the witnesses warned him right before he committed it. For example, a person can't be convicted of eating bacon unless you and I first say to him, "Eating bacon is prohibited by the Torah and you will be liable to get lashes." The criminal can be convicted only if he acknowledges this warning ("הַתְרָאָה") and eats it anyway. However, the gemara (Ketubbot 33a) teaches that our mitzvah is an exception - one can be convicted of false testimony even without receiving hatra'ah. Why? Our heroes, Rava and Abaye, disagree over the reason for this exception to a basic principle of legal procedure. Rava offers a technical explanation, that hatra'ah would be logistically impossible in this case. Abaye rejects Rava's explanation as inconclusive. Instead, he argues on logical grounds that hatra'ah cannot be required in this case, as follows. Let's imagine a classic "Scheming Witnesses" case: you and I falsely testify that we witnessed Mosheh kill Miriam. In order to frame him successfully, we will, of course, have to testify that we gave him hatra'ah ahead of time, since no case can be tried in court without hatra'ah. Of course, there wasn't actually any hatra'ah, because our entire story was completely fabricated. Since the law of "Scheming Witnesses" requires that we have done to us what we tried to do to others, Abaye argues that just as we would have had someone killed without that person receiving hatra'ah, we, too, now caught in our lies, have to be killed without hatra'ah.

Abaye's logic strikes me as teetering on the border of brilliant and absurd. It is absurd because, really, let's not get carried away: the Torah just says they get the same punishment they intended to cause. It does not say that every detail of the case has to be replicated. If the person they are framing was wearing brown socks, would we say that they can't be convicted as false witnesses unless they, too, were wearing brown socks!? On the other hand, Abaye is hitting the nail right on the head. Lying in court, claiming falsely to have warned an innocent party, is not a circumstantial detail. To apply all our usual rules to lying witnesses would imply that theirs is a crime like any other, and that our secure and well-rounded justice system has the means to address it. Without a functioning justice system, we would be terrorized by the tyranny of the strong and ruthless. However, all the well-oiled systemic rules that operate the machinery of our justice system mask one massive Achilles' heel: we never know what the truth is in any situation; we totally rely on the social contract in which everyone agrees to believe what other people say. Testifying falsely is not just another of the 365 prohibitions of the Torah. It is the straw that looks like all the others, but really, when you pull it out, the whole house begins to collapse, revealing how fragile it was all along. Sefer haHinnuch explains the law like this (Mitzvah #37):

When it comes to matters of public order and justice, dishonesty is more than a sin. It destroys the framework that makes community possible.

That explains the gravity of Shemot's version of the 9th Commandment - testifying falsely. What about our parashah's version - testifying meaninglessly? Let's take a look at the Rambam, who narrows the scope of the 9th Commandment (Hilkhot Edut 17:1):

For the Rambam, the 9th Commandment does not come to prohibit all false witnessing, but specifically, testifying by hearsay. This is not the case of a liar, but of someone who perceives herself as honest and doing the right thing, reporting as truth what she heard from a totally reputable source. Nevertheless, the Rambam insists, this is false testimony and this is the prohibition brought in the Ten Commandments. In the ways that the social order is fragile that I discussed above, it is threatened not only by malicious lying, but also by citizens taking their personal liberties with the truth - even if those liberties are acceptable commonplace in our daily lives. However, one person may think she is perceptive to another person's honesty, but is really naive to his dishonesty or mistakenness. Those personal assessments have no place in the courtroom, for they are uncontrolled and they, too, can topple the social order without our even being aware enough to protect against them.

If civil society can crumble because of honestly-intentioned hearsay, how more endangered is it by worthless chatter masquerading as testimony. Our parashah refers to one who makes a mockery of the justice system by standing in court, before a defendant whose life or livelihood is at stake, and submitting as "testimony" outlandish statements that anyone can easily recognize as nonsense. Such behavior shakes confidence in the majestic yet fragile palace of the justice system. Mockery is the sine qua non of anarchy.

The last mishnah in the 4th chapter of Sanhedrin teaches that before allowing witnesses in capital cases to testify, the judges would grill them:

The Mishnah drifts from a warning against hearsay testimony to the very value and sustainability of humanity. It does this in order to impress upon the witness-to-be the gravity of the situation - human life rests on his full honesty and compliance. If this defendant dies improperly, you have killed an entire world! More subtly, though, the mishnah says something else. The whole world was created for every individual: it was created for the sake of this defendant, whose life rests in your hands, and it was created for you, as well. When it is your turn to sustain the world, you have to do it as you alone, and not as someone else's mouthpiece, no matter how righteous.

The Ten Commandments lay out the most essential building-blocks for establishing a community of ethical monotheism. Integral to that blueprint is a court system, which is gingerly sustained by the reliability of testimony. Anarchy crouches nearby, ready to pounce at the breakdown exposed by dishonesty. The 9th Commandment charges us to sustain the project of community by not engaging in mockery or judicial dishonesty, even when we think it is justified, and to demand honesty and integrity out of all who step forward in the public arena.

Shabbat Shalom.