עדים זוממים (ii) The source of Rashi’s d’rasha

In a previous article, I discussed at some length the genesis of the claim that עדים זוממים can only be punished for an intermediate period between the moment when their perjury results in the conviction of their victim (גמר דין) and the actual execution of the sentence. If, so the claim goes, the unfortunate object of their false testimony has already been executed then they may not be punished. Guilty as sin, free as a bird, what a country!

As I demonstrated there at length, the story of this ‘halacha’ is as follows:

• The Mishnah, and all tanaitic sources, contain no mention or hint of such a view. They only specify, rather, that גמר דין is the earliest point at which someone attains the status of an עד זומם and record a more lenient/restrictive Sadducee view according to which the earliest point is the execution of the sentence against the innocent party.
• The Bavli cites the opinion of an anonymous Rabbi who claims that the earliest point according to the Sadducees is actually the end point according to the hachamim. The source contains multiple odd features that strongly indicate either decay or tampering, and the argument it contains for this novel and counter-intuitive position doesn’t make any sense.
• Rif and Behag simply ignore this section of the Bavli and codify the halacha as stated in the Mishnah and other earlier sources.
• Rambam, with some qualification, and Rashi, with no qualification, cite the opinion recorded in the Bavli, in the first case as normative halacha and in the second as the correct interpretation of Devarim 19:19.

There is, however, one more thread of the story that needs to be sewn up. Both Rambam and Rashi cite a d’rasha proving this argument. The d’rasha is based on a diyuk on the words כאשר זמם לעשות ‘as he schemed to do’. The implication, allegedly, is that only he who has ‘schemed’ can be punished as an עד זומם, not one who has successfully executed his scheme.

Footnotes in editions of Rashi and Rambam direct you to the sugya in the Bavli Makot which I analysed before, however, the source there makes no mention of this or any other d’rasha to make its point, instead relying on a sort of kafkaesque anti-inductionist logic. Indeed, by citing this d’rasha, both Rambam and Rashi have done much more than codify a halacha, they have transformed it. In the Bavli it appears as an eccentric application of the principle אין לומדין עונשין מן הדין, but, for centuries, new students have received it as a גזירת הכתוב.

But if this d’rasha doesn’t come from the Bavli, where does it come from? The earliest source that I have managed to locate is a work published from a Syrian manuscript discovered by Martin Buber that he entitled מדרש אגדה. That’s not very impressive, however, because, while the date of this work is unknown, it is certainly medieval, perhaps even post-dating Rashi and the Rambam both.

If an opinion was never recorded until the 11th century and then starts popping up all over the place, it’s a pretty good indication that no-one before then had thought of it. The overwhelming likelihood, therefore, is that the exegesis cited by Rashi was the product of a medieval exegete writing not long before Rashi himself, much like the numerous explanations Rashi cites from Rabi Moshe haDarshan.

That no-one until the middle ages thought to make such a d’rasha is important to appreciate for two reasons. First, if we ignore all considerations of context, logic, and common sense, the d’rasha is actually quite a good one. The words ‘which he schemed to do’, taken on their own, do, indeed, carry with them an inherent implication that the scheme was not carried out. The reason why no tana or amora made such a d’rasha must therefore be taken as an indication that, when it comes to exegesis you are not supposed to ignore all considerations of context, logic, and common sense. If your hiddushim make no sense, it’s not a sign that you have tapped into a superhuman alternative form of logic, it’s a sign that you messed up and need to go back and check your working from the beginning. Ideally, that wouldn’t need pointing out, but we are where we are and it does.

Secondly, for centuries after the Bavli recorded בריבי’s opinion, there was a pasuk ready and waiting to be darshened in support of it and yet no-one took up the opportunity until the 11th century. Why? I believe this is one of many indications of a change in the way the Bavli was conceptualized that happened at the dawn of the era of the Rishonim. It is, of course, true that long before Rashi or Rambam the Bavli was considered the ultimate source of halachic authority by the overwhelming majority of Rabbinic Jewry. This fact is perhaps too easily overlooked by supporters of Torat Eretz Yisrael who are not clear-eyed enough about just how reactionary their programme really is. However, there is a marked difference between saying that the Bavli contains authoritative material and saying that it is, in its entirety and in every individual word, the source of authority, that it is a complete and perfect statement of the oral law. The second view, the one that, without anyone ever quite spelling it out, is the basis of most of contemporary orthodox Judaism, amounts to creating a second Torah out of a text that is almost singularly inappropriate for this role. The proof of this is the striking willingness of its proponents to creatively reinterpret the תורה שבכתב to make it conform to what the Bavli has to say, with blanket disregard for the תורה שבעל פה recorded in all other sources. When time permits, I hope to publish a post looking at a number of test cases that demonstrate the different attitude towards the Bavli, as a text, held by Rif and Rashi respectively.