י״ח במרחשון ה׳תשע״ח (November 7, 2017)

Massekhet Makkot: Introduction to the Tractate

Massekhet Makkot is a companion tractate to Massekhet Sanhedrin, and effectively completes it, inasmuch as it also deals with criminal law and the punishments meted out by the Jewish courts. This stands in contrast to the earlier tractates of Seder Nezikin whose focus was on civil law and personal interactions. At the same time, Massekhet Makkot differs from Massekhet Sanhedrin in that Sanhedrin deals mainly with serious crimes that deserve capital punishment, while Makkot discusses other types of crimes whose punishments are less severe.

Aside from capital punishment, there are three types of punishments meted out by the Jewish courts. They are:

  1. Monetary payments
  2. Exile
  3. Lashes

Jewish law does not recognize imprisonment as a punishment, although there are circumstances when a suspect is held so that he will not escape (see, for example, Vayikra 24:12, Bamidbar 15:34).

There are three general topics that are discussed mainly in Massekhet Makkot, even though they appear in other places in the Talmud, as well. These are the laws of eidim zomemin (conspiring witnesses), galut and malkot (lashes). While there is no clear connection between these topics, they are included here as a completion of the laws of punishments that were taught in Massekhet Sanhedrin.

The source for edim zomemin appears in the Torah (Devarim 19:16-21). The main idea is that if witnesses offer testimony against someone that will potentially lead to punishment – a death sentence, lashes or a monetary payment – and another set of witnesses testify and undermine the initial testimony, the first group will receive whatever punishment would have been given to the accused because they conspired to harm the defendant. This ruling is considered to be a ḥiddush – a new, unusual concept taught by the Torah – since other types of contradiction, e.g. witnesses who say that they saw the incident and it happened otherwise, would not lead to this ruling. When there is simply contradiction – two witnesses say that one thing occurred and two witnesses say that they saw something else take place – the court throws out both testimonies, since we do not know which group to believe.  Here, the second set of witnesses testifies that the first set was with them at the time of the crime, meaning that the first set could not have testified truthfully. This renders the first witnesses conspiring witnesses.

The concept of galut is also a unique ruling. According to the Torah (see Bamidbar 35:24-29 and Devarim 19:2-7), a person is sent from his home to one of the six arei miklat – in the event that he killed his fellow accidentally.  It appears that exile accomplishes three things:

  1. It serves as a punishment
  2. It offers some level of atonement
  3. It protects the killer from the go’el ha-dam – the relative who acts as a “blood redeemer” to avenge the death.

The combination of these three purposes makes clear that not every accidental death will lead to the exile of the perpetrator. On occasion, the accident may be something that should have been prevented, and exile will not be an appropriate punishment, nor is it severe enough to offer atonement. Sometimes the accident may be something that could not possibly have been prevented, and there will be no need for punishment or atonement.

Malkot are also clearly mandated in the Torah (see Devarim 25:1-4), although the Torah does not specify who is the  who deserves malkot. The oral tradition of on this matter is clear – someone who intentionally transgresses one of the negative commandments of the Torah is liable to receive lashes. The application of malkot accomplishes three things: punishment, atonement and deterrence. The punishment is severe enough that there is a requirement to examine the person who will be receiving the punishment to ensure that it will not cause permanent damage. Deterrence stems from the fact that aside from the physical pain, the lashes are given publicly in order to embarrass the perpetrator.

In point of fact, this punishment was not given very often, since there are many negative commandments that do not fall into the category of malkot. Furthermore, just as we find with regard to capital punishment, the court does not mete out this punishment unless they are certain beyond any doubt that he performed this crime purposefully and with malice aforethought. Thus we need not only two witnesses to the crime, but we must also know that the perpetrator was warned that the act was forbidden and that he would be punished for doing it.

While Massekhet Makkot focuses on these matters, as in every tractate, other topics are discussed, as well. The tractate includes collections of aggadic material, most of which offer another perspective on these topics – on the reward for the performance of the commandments and how sometimes even things that appear to be negative may hint to the ultimate good in the World-to-Come.

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