עַל־פִּי ׀ שְׁנַיִם עֵדִים אוֹ שְׁלשָׁה עֵדִים יוּמַת הַמֵּת לֹא יוּמַת עַל־פִּי עֵד אֶחָֽד
Shnayim o sh’losha says our holy Torah in D'varim 17:6. Two or three witnesses. We've developed a tendency in the Jewish world to simplify this concept to be the requiring of two witnesses to a crime for a conviction.
But the actual text is not so simplistic. 17:6 in context immediately follows the commandment in 17:5 to stone to death a man or woman who has transgressed by worshipping other gds. Then the Torah tells us that a person shall be put to death only upon the testimony or TWO or THREE witnesses. The text goes on, in 17:7 to require the witnesses to be the first to begin the process of killing the offender.
So what have we got here? First, an acceptance of the death penalty for a specific crime (and one of several that the Torah specifies the death penalty for.) A provision to insure that adequate witnesses to the crime have testified regarding it. Then a requirement for those testifying against the accused to participate and initiate the penalty. What does this add up to?
First off, I have to ask why G”d would create creatures that could so sin against G”d that the only punishment would be death? And what happens to the souls of these people when they are executed? And why create humankind so imperfectly that one might abuse the ability to testify against another?
Those questions I cannot answer. But at least I know that our Torah recognizes our weaknesses and limitations as a species-and thus provides for safeties, checks and balances to help insure justice.
But what kind of justice is this we pursue? One in which we can kill someone for worshipping other gds? If we pursue this kind of justice, how will we thrive in the land that G”d is giving us (D'varim 16:20, the famous 'tzedek, tzedek tirdof" passage) because we may wind up killing off a good percentage of the populace, based on what the prophets later tells us about the behavior of the children of Israel?
There is a lot to be admired in the system of justice our holy Torah gives us. But there is also a great deal to be questioned. Once, at a CAJE conference, I heard a powerful story about a man searching for justice. He searched the world over looking for justice, getting some spurious examples of it along the way from various perspectives. In the end, he discovers the choice was in his own hands and not something one finds by looking for it in others. While Torah may tell us what justice is, I think if we read deeper, we discover the message is that the pursuit of justice really is in our hands. Torah might only be a guide, and we must be careful to not always assume plain meaning in its words.
Ten years ago, when I last wrote about this, our country was conflicted as it struggled to deal with the crisis wrought by hurricane Katrina. Charges were flying fast and furious between some, while others tried to refocus the discussion on what we were doing to help the victims. (Sadly, some were perhaps using that as a tactic to draw attention away from the problems for which they may have been responsible.) If mistakes happened that could have been prevented, justice demands that we investigate, that we "pursue." Yet there is some truth to the concept that at the moment of the disaster is not the time to divert resources into those investigations. At least that made sense in the context of Katrina.
Now we find ourselves in a time of seemingly ongoing problems. We cannot apply the same logic of “now is not the time to investigate” when it comes to Ferguson, Baltimore, Sandy Hook Elementary, and so many other incidents. The blood of the victims cries out to us from the ground. If we listen to it, hopefully, it is not crying “vengeance” but “find a way to stop this.” Justice, from my perspective, is never served by vengeance.
These now all too frequent incidents, especially those perpetrated by police officers against person of color, are sometimes scene by multiple witnesses. The ability for constant citizen sousveillance is making it easier to detect these injustices. I wonder, however, how many incidents go un-witnessed except by the people involved. Is a video camera a witness? It certainly has the appearance of being impartial, however, subtle things like angles, clarity of the video and audio portions, and even sometimes deliberate manipulation can make the camera less reliable. Of course, how is this any different from a human being?
Why "two or three" witnesses? Why not say "two" or "three" or some other number? (I think it's fairly clear why it doesn't say "one." The only time one witness will suffice is when that witness is the One, and all of us may ultimately be judged by that witness.) Two or three people could just as easily conspire to convict an innocent person so I'm not sure this particular check is sufficient enough. I even think one might groups of people willing to conspire against an innocent person, even if they were then required to be the firing squad! So that check too may be insufficient. I'm not sure G”d should have given us the power and authority to kill our own kind so easily.
The implication seems to be that consensus is often part of the process of justice. When those who are judging determine that enough witnesses agree in the basic facts of what happened, justice can be pursued fairly.
We must recall that the Torah is talking about death-penalty cases. Even further, it is likely (though not definitely) talking only about a specific offense of worshipping other gds. It is only through extrapolation that we determine that at least 2 or 3 witnesses are required for conviction in other situations. If we extrapolate further, we must include the following verse which tells us that the witnesses must be willing to carry out the sentence. Imagine if every witness or juror had to become jailer as well. That starts to get messy, and is a caution about extrapolating too much from the Torah (though that has not stopped generations of sages and scholars from doing so, It is, in large part, the bulk of rabbinic law.)
I make no bones about it. I am opposed to the death penalty. In all cases. I want to fix our system of justice and law enforcement, which clearly has gotten out of kilter somewhere along the line. However, despite the certainty of my beliefs, I know that one should never be content with one’s understanding of Torah.
So, this Shabbat, I'm going to think about what the Torah means when it says "two or three witnesses" and when it requires the witnesses to be the first to carry out the death sentence. I don't think the answers are as simple as the literal meanings of the words. Time to turn it and turn it again. And seek to define what the justice I will be pursuing really is.
©2015 (portions ©1999 and 2005) by Adrian A. Durlester
Other Musings on this Parasha:
Shoftim 5774 - Signifying Nothing
Shoftim 5773-Hassagat G'vul Revisited Yet Again
Shoftim 5772 - Quis Custodiet Ipso Custodes
Shoftim 5771 - Hassagat G'vul Revisited
Shoftim 5767 (Redux and Updated 5760/61) From Defective to Greatest
Shof'tim 5766-Hassagut G'vul
Shoftim 5765/5759-Whose Justice?