Komentarz do Powtórzonego Prawa 19:19

כאשר זמם [THEN SHALL YE DO UNTO HIM] AS HE HAD INTENDED TO HAVE DONE [UNTO HIS BROTHER] — as he had intended to do, but not as he has done! Hence they (the Rabbis) stated that if they (the false witnesses) have already killed (i.e. if by their evidence the defendant has already been executed) they are not put to death (Makkot 5b).

THEN SHALL YE DO UNTO HIM [the refuted witness], AS HE HAD PURPOSED TO DO — “but not as he has done! Deriving from this, the Rabbis have said: If they [the refuted witnesses] have already killed [i.e., if the judgment based on their testimony was executed prior to the refutation] they are not put to death.” This is Rashi’s language quoting from the words of our Rabbis.²⁸³Makkoth 5b. The reason for this is that the law of punishment of plotting witnesses is by the decree of the Ruler, for they are two witnesses against two [even in the case of “refutation” and, logically, we should not believe the second more than the first, were it not that such is the decree of the King]! Now, when two witnesses come and testify against Reuben that he killed a person and then another two come and “refute” [their claim of] having been witnesses, Scripture commanded that [the first pair] be killed for it was due to the merit of Reuben who was innocent and righteous that this affair [of “the refutation”] came to pass. Had Reuben been wicked, liable to a death-penalty, G-d would not have saved him from the hand of the court, as He said, for I will not justify the wicked.²⁸⁴Exodus 23:7. But if Reuben had already been killed we are to consider that whatever the first witnesses testified against him was true, for he died due to his iniquity.²⁸⁵See Ezekiel 18:18. If he were righteous, G-d would not have left him in their hand, just as Scripture says, The Eternal will not leave him in his hand, nor suffer him to be condemned when he is judged.²⁸⁶Psalms 37:33. Moreover, G-d would not allow the righteous judges who stand before Him to spill innocent blood for the judgment is G-d’s,²⁸⁷Above, 1:17. and in the midst of ‘elohim’ (the judges) He judgeth.²⁸⁸Psalms 82:1. Now all this indicates the high degree of the judges in Israel and is a promise that the Holy One, blessed be He, agrees with them and He is with them pronouncing judgment.²⁸⁹II Chronicles 19:6. This is the sense of the verse, And both the men, between whom the controversy is, shall stand before the Eternal,²⁹⁰Verse 17. for it is before G-d that they stand when coming before the priests and the judges and He will lead them in the right way.²⁹¹Genesis 24:48. I have already mentioned this in the section And these are the ordinances.²⁹²Exodus 21:6 (Vol. II, pp. 347-348).

ועשיתם לו כאשר זמם, "and you will do to him in accordance with what he had planned to do." Our sages in Makkot 5 derive from this word that if the party falsely accused had already been executed on the strength of this fabricated testimony, the court cannot execute the witnesses. This seems a problematical exegesis. Perhaps what the Torah wanted here by writing the word כאשר זמם was to incriminate the false witnesses for merely planning to testify falsely even if they had not yet done so before a court? Once the victim of such testimony has been executed the witnesses had become guilty not only of כאשר זמם, "as he [they, as the singular is used by the Torah for a halachically valid witness, i.e. a minimum of two witnesses. Ed.] had planned," but also of כאשר עשה, "as he had done!" In that case one could not use the argument that we do not condemn somebody to be executed based only on a logical argument, i.e. if we execute them even if they did not succeed with their testimony it is only logical that we must execute them if they did succeed with the intention behind their false testimony. In the scenario we presented this principle of אין עונשין מן הדין would not apply and therefore would not stop us from executing these witnesses.