Friday, March 21, 2014

Fact-Checking the Torah -- Deuteronomy 19:16-19

So I skipped something. I showed how to impeach a witness: for a bystander to show that the witness was not capable of seeing the crime. What happens to that witness?
That’s where Deuteronomy 19:16-19 comes in.
The key phrase in this section is “as he had thought to do to his brother.” There was a famous controversy about that phrase: if the accused has been convicted and executed, do you execute the false witness? I’ll put you out of your misery: the decision was, no. There are two reasons for that, or maybe three, and one of them is that if the accused has been convicted and executed, then we’re past the “thought” stage. It’s been done. Only if the convict has not yet been executed do you punish the false witness.
The second answer is more subtle and it goes to Mishnah Holy Things Keritot 1:1. This lists the 36 capital crimes in Jewish law. One of them is eating holy things when you aren’t entitled. This includes a person who has been acting as a priest but has no right to.
Why would a man have no right to act as a priest? Isn’t the only requirement being descended from Aaron? Of course, the answer is no. A priest who marries a divorcee or widow disqualifies his sons from acting as priests. The sons are eligible for the death penalty if due process is followed. Which, of course, means there have to be witnesses that the mother was a divorcee or widow.
Now, if the witness testimony is false, and the wife of the priest was neither a divorcee or a widow, the sons are acquitted of eating holy things they had no right to. What do you do to the false witness(es)?
If they are priests, you can’t do to them as they thought to do to their brother. You cannot retroactively make them sons of a priest and a divorcee or widow. Even if they are, you cannot retroactively make them eat of holy things they don’t have a right to. Maybe they never did that; maybe there are no witnesses that they did. You don’t have a time machine. You can’t do to him as he thought to do to his brother.
Jewish law had another great equalizer: flogging. Flogging means being subjected to 40 less one blows, well laid on, with a cat-of-nine-tails minus the knots at the end of the leathers. They were laid on in three goes. The flogee had to be examined by a doctor before it started, and if he was too weak to stand up to it, he was excused. He was examined after the first 13, and if he couldn’t take any more, he was excused. If he fouled himself, he was excused. If he nevertheless died from the flogging, then as an official of the court, the flogger was not charged with murder or manslaughter.
A false witness was flogged.
Now let’s back the train up. Does a person get off scot free the first two times of attempt at a capital crime? Of course not. They go to court the first time to pay whatever damages are possible. They go to trial for the capital crime the third time. In the middle, they get flogged.
One more clue. Since a flogging can end in death, the second time a person attempts to commit a capital crime, the court has to have 23 judges for the first hearing, and on up to 71 if the court can’t decide.
I’m not going to give you an assignment this week because of next week’s subject. You’ll get a bunch of verses then. Plus one more example that “thou shalt not kill” is part of Jewish law.
© Patricia Jo Heil, 2013-2018 All Rights Reserved

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