Makkot מכות

Tractate Makkot complements and completes tractate Sanhedrin. There are some who hold that in the original division of the Mishna into sixty tractates, Makkot was actually part of tractate Sanhedrin. This tractate addresses the punishments imposed by the courts upon one who violates Torah law, while the earlier tractates in Seder Nezikin, or the Order of Damages, whose primary focus is on civil law, deal with different forms of conflict between one person and another. Nevertheless, this tractate appears as an independent entity because tractate Sanhedrin addresses the most severe transgressions, punishable by execution, while tractate Makkot primarily addresses transgressions for which the court imposes other punishments.

In Jewish jurisprudence there are three punishments other than the death penalty: Monetary payment, exile, and lashes. Fundamentally, there is no punishment of incarceration in Torah law, although occasionally the authorities would secure a suspect to prevent him from fleeing (see Leviticus 24:12 and Numbers 15:34; but see also Sanhedrin 81b). Tractate Makkot primarily addresses the practices associated with these forms of punishment.

Discussion in tractate Makkot centers upon three general topics: The halakhot of conspiring witnesses, the halakhot of exile, and the halakhot of lashes. Although these topics appear elsewhere in the Talmud, their most extensive elucidation is here. While they have little in common with each other, they were all included in this tractate because they complete the treatment of the halakhot of punishments that began in tractate Sanhedrin.

The source of the halakhot of conspiring witnesses is explicit in the Torah (Deuteronomy 19:16-21), and some of the halakhot concerning them are explicated in tractate Sanhedrin. The basic halakha of conspiring witnesses is that if witnesses provide testimony in court that creates liability for a person to be executed, to receive lashes, or to remit a monetary payment, and other witnesses testify and undermine the initial testimony, since the first set of witnesses conspired to harm the defendant they receive the same punishment that they sought to have inflicted upon him. The fundamental problem with regard to the issue of conspiring witnesses is the question: How can it be proven that the first set of witnesses do indeed fall into the category of: “The witness is a false witness; he has testified falsely against his brother” (Deuteronomy 19:18)? After all, the testimony of two witnesses, after interrogation, is considered a statement of absolute truth, to the extent that the witnesses themselves are not deemed credible if they claim that they lied in their testimony. Why then is the second set of witnesses deemed more credible than the first? A partial solution to this problem stems from the procedure of rendering witnesses conspiring witnesses, as the only way that the second testimony can prevail over the first is when the second set of witnesses testify: At that time, you, the first set of witnesses, were with us in such and such place. According to that testimony, the first set of witnesses could not possibly have testified truthfully. It must be noted that the Gemara already said: The halakha of conspiring witnesses is a novel matter (Bava Kamma 72b and Sanhedrin 27a), with its own unique set of halakhot, and therefore standard halakhic categories do not necessarily apply to it and it cannot serve as a precedent for other areas. For that reason, the Sages parsed the relevant verses very carefully, deriving halakhot from their precise language, and did not add restrictions or decrees to that which was written in the Torah.

There are two additional matters to address. The first is in a case where it is impossible to fulfill the language of the verse: “And you shall do to him as he conspired to do to his brother” (Deuteronomy 19:19), without imposing a disproportionate punishment upon the witnesses. If it is impossible to impose the punishment of “as he conspired,” why should the conspiring witnesses go unpunished? The second is a more essential question: Why are the conspiring witnesses not punished for violating the prohibition against false testimony that is explicit in the Ten Commandments: “You shall not bear false witness against your neighbor” (Exodus 20:13)? These two problems resolve each other, as in every case where it is impossible to impose the punishment of “as he conspired,” the witnesses are flogged for providing false testimony.

Exile for an unwitting murderer is also a unique halakha from several perspectives. The verses indicate that there are three complementary aspects to exile: It effects atonement for the murderer and for the land; it protects the murderer from the blood redeemer, a relative of the victim who may take it upon himself to kill the murderer; and it is a punishment. Since there are three separate purposes to exile, it follows that not in every case in which a person causes death is he liable to be exiled. This may be because the transgression committed by the murderer is extremely severe and the atonement provided by exile does not suffice; or because it was an incident that transpired due to circumstances beyond his control, for which he is not liable to be exiled, and therefore does not require protection from the blood redeemer.

The examples of transgressions for which one is liable to be exiled that appear in the Torah indicate that the elements of the transgression are clearly defined. They all involve unwitting killing that on the one hand does not involve criminal negligence but on the other hand could have been avoided had the killer exercised appropriate caution.

The atonement aspect of exile in a city of refuge is manifest in the halakha that the unwitting murderer returns from the city of refuge to his home after the death of the High Priest. With regard to the protection aspect, it is prohibited for the blood redeemer to kill the murderer as long as the latter is in the city of refuge and its environs. Finally, the punishment aspect of exile fits the crime: On the one hand the extent of the murderer's sentence is exile to a city of refuge and the means for his physical and spiritual sustenance remain at his disposal, while on the other hand, he may not leave the city of refuge for any reason. He must remain there for the duration of his life and is buried there, unless the High Priest predeceases him. The punishment of lashes is also written explicitly in the Torah, although it is not clear who is the wicked person who is liable to receive lashes. There is a consensus in rabbinic tradition with regard to who is liable to receive lashes: One who intentionally violates a prohibition by Torah law. The punishment of lashes contains the principles of punishment, deterrence, and atonement. The punishment itself is severe and the number of lashes is defined in the Torah. Due to that severity, an individual who is liable to receive lashes must be examined to determine whether his physical condition will enable him to bear them. That the lashes are administered in public, adding humiliation to the physical pain, serves as a deterrent. With regard to atonement, after the transgressor is flogged he reassumes the status of: “Your brother” (Deuteronomy 25:3), and his sin is expiated (see Megilla 7b). This expiation is effective even for people who were convicted of severe transgressions that are punishable by excision from the World-to-Come [karet]. In fact, one of the motivations in historical attempts to restore rabbinic ordination as it existed in talmudic times is the desire to restore the atonement aspect of the lashes.

In practice, the punishment of lashes was not all that common, because, as explained in this tractate, there are several prohibitions whose transgression does not fulfill the precise requirements needed in order to be liable to receive lashes. Moreover, lashes, like the death penalty, are administered only to one about whom it is clear that he sinned intentionally. In order to establish that certainty, not only are two witnesses required but forewarning is required as well. Furthermore, it is explained in this tractate that when one is liable to receive two punishments for performing one transgression, and one of those punishments is lashes, the lashes are superseded by the other punishment. This is the case when the other punishment is the death penalty, and the same is true when in addition to lashes the other punishment is monetary payment.

As stated above, the primary focus of tractate Makkot is the halakhot of conspiring witnesses, the halakhot of exile, and the halakhot of lashes. As is often the case in the Gemara, in the course of discussion other halakhic matters are elucidated, some of which are discussed only here, with regard to the limitations and definitions of various prohibitions for which one is liable to receive lashes. There is also extensive aggadic material in this tractate, most of which addresses the opposite perspective: The reward for mitzvot and the fact that even matters that seem negative can augur the ultimate good that will be in the future.

Tractate Makkot consists of three chapters, each addressing one of the three principal topics it focuses on.

Chapter One discusses the various facets of the halakhot of conspiring witnesses.

Chapter Two defines the acts of murder for which one is liable to be exiled and the manner in which the punishment of exile takes place in practice.

Chapter Three examines the halakhot of lashes, both in terms of ascertaining the types of transgressions for which one receives lashes and by analyzing several specific prohibitions for whose violation one is liable to receive lashes. It also addresses the manner in which the punishment of lashes is administered in practice.