Introduction to Makkot

Dedicated in honor of Hadran and Rabbanit Michelle

בזכות נשים צדקניות נגאלו ישראל (סוטה יא:)

In Jewish law, there are four types of punishment:

• Capital punishment (covered in Masechet Sanhedrin)
• Monetary payment
• Exile
• Lashes

Note that there is no imprisonment as a form of punishment. Masechet Makkot (literally, “lashes”) consists of three chapters, dealing with three primary topics: eidim zommemim (conspiring witnesses), galut (exile for inadvertent manslaughter) and malkut (lashes, which are the form of punishment for most transgressions).  Some old manuscripts of the Mishnah list this tractate as part of  the preceding one, Sanhedrin, which dealt primarily with laws of judicial procedure. However, Rambam lists this tractate as a separate one, and explains that it follows Sanhedrin because it deals with cases which require court adjudication. 

Eidim Zommemim (conspiring witnesses)

In Devarim 19:16-21, we read:

כִּי־יָקוּם עֵד־חָמָס בְּאִישׁ לַעֲנוֹת בּוֹ סָרָה׃  וְעָמְדוּ שְׁנֵי־הָאֲנָשִׁים אֲשֶׁר־לָהֶם הָרִיב לִפְנֵי ה’ לִפְנֵי הַכֹּהֲנִים וְהַשֹּׁפְטִים אֲשֶׁר יִהְיוּ בַּיָּמִים הָהֵם׃ וְדָרְשׁוּ הַשֹּׁפְטִים הֵיטֵב וְהִנֵּה עֵד־שֶׁקֶר הָעֵד שֶׁקֶר עָנָה בְאָחִיו׃ וַעֲשִׂיתֶם לוֹ כַּאֲשֶׁר זָמַם לַעֲשׂוֹת לְאָחִיו וּבִעַרְתָּ הָרָע מִקִּרְבֶּךָ׃ וְהַנִּשְׁאָרִים יִשְׁמְעוּ וְיִרָאוּ וְלֹא־יֹסִפוּ לַעֲשׂוֹת עוֹד כַּדָּבָר הָרָע הַזֶּה בְּקִרְבֶּךָ׃ וְלֹא תָחוֹס עֵינֶךָ נֶפֶשׁ בְּנֶפֶשׁ עַיִן בְּעַיִן שֵׁן בְּשֵׁן יָד בְּיָד רֶגֶל בְּרָגֶל׃ 

If a false witness rise up against any man to testify against him that which is wrong;  then both the men, between whom is the controversy, shall stand before the Lord, before the priests and the judges, who shall be in those days; and the judges shall make diligent inquiry: and, behold, if the witness is a false witness, and has testified falsely against his brother; then shall you do to him, as he had thought to have done to his brother: so shalt thou put the evil away from among you. And those who remain shall hear, and fear, and shall henceforth commit no more any such evil among you. And thy eye shall not pity; but life for life, eye for eye, tooth for tooth, hand for hand, foot for foot.

False witnesses, who have been discredited through the process known as Hazama are punished by receiving the same punishment that the falsely-accused would have received (וַעֲשִׂיתֶם לוֹ כַּאֲשֶׁר זָמַם לַעֲשׂוֹת), whether it is the death penalty, lashes or a monetary fine or payment (If the punishment can not be reciprocated, they receive lashes).  The process of Hazama is that a second set of witnesses testifies that the first (false) set could not have seen the event they are testifying about because they were not there.  The testimony of the second set has nothing to do with the original event under trial, just with the location of the accusing witnesses.  The Torah states that the impeaching witnesses’ testimony is accepted (after investigation as to their veracity), and the discredited set of witnesses are declared to be zommemim.

There are two main conditions for witnesses to be declared zommemim:

• Their victim has to have been convicted.  If they are found to have testified falsely before the court verdict is handed down, they are not punished as zommemim.
• The intended punishment has not yet been carried out.  If it has, they are not punished as zommemim.

An important implication of the laws of Hazama is that any testimony which is not susceptible to refutation (known as עדות שאי אתה יכול להזמה) is not admissible in a court hearing. For example, as we learned in Sanhedrin 40a, if a witness is unclear about when or where the crime took place, his testimony is inadmissible, since it cannot be refuted.

Testimony which is contradicted by other witnesses (but not regarding the location of the first set of witnesses) is known as hakchasha (contradiction). There is no halachic weight given to the number of witnesses on either “side” of the discussion. As the Gemara states, trei k’meah – two witnesses (the minimum number accepted) are equivalent to one hundred. In this case, the dispute cannot be resolved solely on the basis of testimony.

Galut (exile)

If a person kills another person beshogeg (inadvertently), he is subject to galut (exile), as described in Shemot 21:12-12:

מַכֵּה אִישׁ וָמֵת מוֹת יוּמָת׃ וַאֲשֶׁר לֹא צָדָה וְהָאֱלֹהִים אִנָּה לְיָדוֹ וְשַׂמְתִּי לְךָ מָקוֹם אֲשֶׁר יָנוּס שָׁמָּה׃ {ס}   

He that smites a man, so that he die, shall be surely put to death. And if a man did not lie in wait, but God allowed it to happen to him; then I will appoint thee a place to which he shall flee.

These laws are further elaborated in Bamidbar 35 and Devarim 4 and 19.

If the murder is intentional, it is a capital offense.  The murderer can only be executed if there are two witnesses and he was warned  before committing the act that it is forbidden and subject to the death penalty.  If the murder was unintentional, there is no death penalty; however, the killer is still subject to punishment.  The close relative of the victim (known as the goel hadam – redeemer of the blood) is allowed to avenge the death by killing the murderer. There is a debate if the goel hadam is required to avenge the death, or merely has permission to do so. The unintentional murderer is also required to be exiled to a city of refuge (ir miklat), depending on the level of negligence involved.  There are three levels:

• Shogeg (inadvertent): There was some amount of negligence, but it cannot be characterized as gross negligence. In this case, the killer is sentenced to galut and the goel hadam  may avenge the death if the killer is not in an ir miklat.
• Ones (accident):  A situation where the death was totally out of the control of, an unanticipated by, the killer. Once the court makes a determination of ones, the killer is freed, and there is no permission for the goel hadam to act.
• Karov lemezid (almost intentional): A death which occurs as a result of gross negligence with obvious disregard for the victim’s safety. The Torah sees this as a crime too severe to be atoned for by galut, and decrees that the killer will be punished beyedei shamayim (at the hands of Heaven).  The goel hadam may also exact vengeance, and the killer does not have the protection of the ir miklat. This is also the law if an intentional murderer cannot be executed by the court. It should be noted that the sentence of galut  is seen as atoning for the murder.  This is why a karov lemezid is not offered the opportunity for galut– he does not deserve a chance for atonement.

The galut takes place in one of six cities in Israel, known as the arei miklat (plural).  These are located on both sides of the Jordan River, and are equidistant from each other so as to be easily accessible.  On the western side of the Jordan, where the majority of the tribes settled, the cities were Kedesh, Shechem and Chevron.  On the eastern side, where there were 2-1/2 tribes, the cities of Betzer, Ramot and Golan served as arei miklat (Yehoshua 20).  These cities were supervised by the tribe of Levi.  In addition, the 42 cities allocated to the tribe of Levi also served as arei miklat, with some differences (see Makkot 10a and 13a): a refugee had to pay rent in a Levite city, but not in a designated city of refuge, a Levite city only protects someone who flees there intentionally, residents of a Levite city can refuse entry).  There is a requirement to build wide, even roads to the arei miklat, and to clearly mark the way, so that the fugitive can get there as easily as possible.

The term of galut is until the death of the Kohen Gadol who was in office when the sentence was decreed.  The Mishna on daf 11a tells us that the Kohen Gadol’s mother would send the fugitive gifts, so he would not wish for her son’s death.  The reason for the curtailment of exile with the Kohen Gadol’s death is the subject of debate.  The Gemara states that the death of a pious person is a form of atonement, so the crime is expatiated with the death of the Kohen Gadol. Rambam, however, states that the death of an important person is so upsetting to the community that they drop all thoughts of vengeance, and the killer is now safe. 

Malkut (lashes)

According to the Rambam, there are 207 prohibitions for which the punishment is malkut.  In Devarim 25:1-3, we learn:

כִּי־יִהְיֶה רִיב בֵּין אֲנָשִׁים וְנִגְּשׁוּ אֶל־הַמִּשְׁפָּט וּשְׁפָטוּם וְהִצְדִּיקוּ אֶת־הַצַּדִּיק וְהִרְשִׁיעוּ אֶת־הָרָשָׁע׃ וְהָיָה אִם־בִּן הַכּוֹת הָרָשָׁע וְהִפִּילוֹ הַשֹּׁפֵט וְהִכָּהוּ לְפָנָיו כְּדֵי רִשְׁעָתוֹ בְּמִסְפָּר׃ אַרְבָּעִים יַכֶּנּוּ לֹא יֹסִיף פֶּן־יֹסִיף לְהַכֹּתוֹ עַל־אֵלֶּה מַכָּה רַבָּה וְנִקְלָה אָחִיךָ לְעֵינֶיךָ׃

If there be a controversy between men, and they come to judgment, that the judges may judge them; then they shall justify the righteous, and condemn the wicked. And it shall be, if the wicked man be worthy to be beaten, that the judge shall cause him to lie down, and he shall be beaten in his presence, according to his fault, by a certain number. Forty stripes he may give him, and not exceed: lest, if he should exceed, and beat him above these with many stripes, then thy brother shall be thus made vile before thee.

While the text specifies 40 lashes, the Halacha is that the maximum number of lashes imposed in 39 (i.e., up to forty), as discussed on daf 22b. The Rambam explains that the reason only 39  lashes are given is to avoid inadvertently exceeding the number 40.  

In order to understand this punishment, let’s review the different types of transgressions:

• Mitzvat Asei (positive commandment):  There are 248 mitzvot asei in the Torah; these are requirements to perform an action (such as to circumcise your son, put on tefillin, etc.). Some of these actions may be passive, such as forgiving loans in a shemitta year. With the exception of the commandments to perform brit mila and to bring a korban pesach, the Torah does not list a punishment for non-performance of a mitzvat asei. The two exceptions listed above are punished by karet (death at the hands of Heaven).
• Mitzvat Lo Tasei/Lav (negative commandment): There are 365 lavin (plural of lav) in the Torah.  These can be active (do not commit adultery) or passive (don’t own chametz on Pesach).  There are four levels of severity, with concomitant punishments:
  • Violations which incur the mitat bet din (court-imposed death penalty) – for example: adultery, murder, Shabbat labor)
  • Violations which incur karet (Divinely- imposed premature death) – for example, eating on Yom Kippur
  • Violations which incur mita beYedei Shamayim (death at the hands of Heaven) – for example, a non-Kohen who eats Teruma
  • “Ordinary” violations, which are punished by malkut (39 lashes), assuming the violation was committed bemeizid (intentionally ) and after hatra’a (warning), which included both the fact that the act is forbidden and what specific penalty the violator will incur.

If a person is liable to receive two punishments for the same act, and one of them is malklut, the other punishment supersedes the lashes. This applies whether the other punishment is more severe (execution) or less severe (monetary payment).

There are specific categories of prohibitions which are repeatedly mentioned in our masechet:

• Lav sh’ain bo maase (A prohibition which does not involve an action)- passive violation of a negative commandment, such as owning chametz on Pesach. The sinner did not act to remove the chametz, and remained passive.  There is a dispute whether this type of violation incurs malkut.
• Lav she’nitak leassei (A prohibition which can be remedied by the performance of a positive commandment) – the Torah provides a remedy for the violation of a negative commandment.  For example, if someone violates the prohibition of theft, the sin can be remediated by returning the stolen object. In this case, there are no lashes unless the sinner fails to fulfill the positive commandment.
• Lav she’nitan le’azharat bet din (A prohibition which carries with it the warning of a death penalty) – a violation which should in theory be punished with capital punishment. For example, if someone wishes to commit adultery and is warned that the act is punishable by lashes, not that he is liable to execution.  The death penalty cannot be imposed because the warning was incorrect; however, he violated a prohibition which in theory incurs the death penalty. There is a dispute whether or not this case receives lashes.

The malkut procedure: Only a court of three can sentence someone to lashes. A physician was employed by the court to determine if the accused could tolerate 39 lashes; if not, the court would be told how many he could sustain.  The number was then rounded downwards to be a number divisible by three. A wide strip of calf leather with two narrower strips of donkey leather attached was used by the shamash of the court. The accused would stand facing a short pillar, with his arms encircling the pillar. One third of the lashes were administered to his chest, and 2/3 to his back, evenly divided between his right and left shoulders.  During the lashing, the senior judge would read from the reprimand (tochacha) in Parshat Ki Tavo, as well as the verse from Tehillim 78:38 וְהוּא רַחוּם יְכַפֵּר עָוֺן וְלֹא יַשְׁחִית וְהִרְבָּה לְהָשִׁיב אַפּוֹ וְלֹא יָעִיר כָּל חֲמָתוֹ. (But he was full of compassion, forgiving iniquity, and he did not destroy them: often he turned away his anger, not stirring up all his wrath), which contains 13 words and was therefore recited three times, for a total of 39. It’s interesting to note that there are some people who have the custom to be given “light” malkut  on Erev Yom Kippur, striking each other 39 times with a strap while reciting the verse above three times (Shulchan Aruch Orach Chaim 607:6).

There is also a punishment of lashes at the court’s discretion, known as makat mardut (lashes of rebellion).  This is imposed for violation of a Rabbinic degree. Unlike malkut, which can only be imposed by a court with semicha, this punishment can be given by any rabbinic court, even in the Diaspora. There is documentary evidence of this punishment being imposed through the Middle Ages.  There are differing Halachic opinions as to the number of lashes that can be imposed, with the question of if there is a limit at all central to the issue.  These lashes are performed with a stick, and not a strap.

Structure of the Massechet:

The final discussion in the masechet (24b) describes Rabbi Akiva and his comrades:

שׁוּב פַּעַם אַחַת הָיוּ עוֹלִין לִירוּשָׁלַיִם, כֵּיוָן שֶׁהִגִּיעוּ לְהַר הַצּוֹפִים קָרְעוּ בִּגְדֵיהֶם, כֵּיוָן שֶׁהִגִּיעוּ לְהַר הַבַּיִת רָאוּ שׁוּעָל שֶׁיָּצָא מִבֵּית קׇדְשֵׁי הַקֳּדָשִׁים, הִתְחִילוּ הֵן בּוֹכִין וְרַבִּי עֲקִיבָא מְצַחֵק. אָמְרוּ לוֹ: מִפְּנֵי מָה אַתָּה מְצַחֵק? אָמַר לָהֶם: מִפְּנֵי מָה אַתֶּם בּוֹכִים? אָמְרוּ לוֹ: מָקוֹם שֶׁכָּתוּב בּוֹ ״וְהַזָּר הַקָּרֵב יוּמָת״, וְעַכְשָׁיו שׁוּעָלִים הִלְּכוּ בּוֹ, וְלֹא נִבְכֶּה?! אָמַר לָהֶן: לְכָךְ אֲנִי מְצַחֵק, דִּכְתִיב: ״וְאָעִידָה לִּי עֵדִים נֶאֱמָנִים אֵת אוּרִיָּה הַכֹּהֵן וְאֶת זְכַרְיָה בֶּן יְבֶרֶכְיָהוּ״ – וְכִי מָה עִנְיַן אוּרִיָּה אֵצֶל זְכַרְיָה? אוּרִיָּה בְּמִקְדָּשׁ רִאשׁוֹן, וּזְכַרְיָה בְּמִקְדָּשׁ שֵׁנִי! אֶלָּא: תָּלָה הַכָּתוּב נְבוּאָתוֹ שֶׁל זְכַרְיָה בִּנְבוּאָתוֹ שֶׁל אוּרִיָּה. בְּאוּרִיָּה כְּתִיב ״לָכֵן בִּגְלַלְכֶם צִיּוֹן שָׂדֶה תֵחָרֵשׁ״, בִּזְכַרְיָה כְּתִיב ״עוֹד יֵשְׁבוּ זְקֵנִים וּזְקֵנוֹת בִּרְחֹבוֹת יְרוּשָׁלִָם״. עַד שֶׁלֹּא נִתְקַיְּימָה נְבוּאָתוֹ שֶׁל אוּרִיָּה הָיִיתִי מִתְיָירֵא שֶׁלֹּא תִּתְקַיֵּים נְבוּאָתוֹ שֶׁל זְכַרְיָה, עַכְשָׁיו שֶׁנִּתְקַיְּימָה נְבוּאָתוֹ שֶׁל אוּרִיָּה – בְּיָדוּעַ שֶׁנְּבוּאָתוֹ שֶׁל זְכַרְיָה מִתְקַיֶּימֶת. בַּלָּשׁוֹן הַזֶּה אָמְרוּ לוֹ: עֲקִיבָא נִיחַמְתָּנוּ, עֲקִיבָא נִיחַמְתָּנוּ.

On another occasion they were ascending to Jerusalem. When they arrived at Mount Scopus, they rent their garments (in mourning). When they arrived at the Temple Mount, they saw a fox that emerged from the site of the Holy of Holies. They began weeping, and Rabbi Akiva was laughing. They said to him: Why are you laughing? He said to them: Why are you weeping? They said to him: This is the place concerning which it is written: “And the non-priest who approaches shall die” (Numbers 1:51), and now foxes walk in it; and shall we not weep? He said to them: That is why I am laughing, as it is written,: “And I will take to Me faithful witnesses to attest: Uriah the priest, and Zechariah the son of Jeberechiah” (Isaiah 8:2). Now what is the connection between Uriah and Zechariah? Uriah prophesied during the First Temple period, and Zechariah prophesied during the Second Temple period. Rather, the verse established that fulfillment of the prophecy of Zechariah is dependent on fulfillment of the prophecy of Uriah. In the prophecy of Uriah it is written: “Therefore, for your sake Zion shall be plowed as a field, (and Jerusalem shall become rubble, and the Temple Mount as the high places of a forest)” (Micah 3:12). In the prophecy of Zechariah it is written: “There shall yet be elderly men and elderly women sitting in the streets of Jerusalem” (Zechariah 8:4). Until the prophecy of Uriah was fulfilled I was afraid that the prophecy of Zechariah would not be fulfilled. Now that the prophecy of Uriah was fulfilled, it is evident that the prophecy of Zechariah remains valid. They said to him, employing this formulation: Akiva, you have comforted us; Akiva, you have comforted us.

May we all merit the ultimate Nechama of the final redemption!