The Torah contains a litany of laws that pertain to every aspect of court procedures in general and testimony in particular. The proper procedure ensures the fair administration of justice, which is the underpinning of a just society. There are many prerequisites to accept witness testimony, and anything short is disqualified.
One of the most fascinating subtopics is about witnesses who present false evidence; then, another set of witnesses testifies that the first set of witnesses were with them elsewhere at the time, and so the original witnesses could not possibly have first-hand knowledge about the case. Under these circumstances, the Torah imposes the punishment that the liars attempted to implicate the innocent man with:
וַעֲשִׂיתֶם לוֹ כַּאֲשֶׁר זָמַם לַעֲשׂוֹת לְאָחִיו וּבִעַרְתָּ הָרָע מִקִּרְבֶּךָ – You shall do to him as he plotted to do to his brother, and purge the wickedness from among yourselves. (19:19)
The Gemara suggests that the court will only carry this out when the court catches the liar before the plot succeeds, not after, because there is no brotherhood in death – כאשר זמם ולא כאשר עשה. If the plot succeeds, there is no punishment.
The Ritva queries that the law of Yibum is about brotherhood, but the whole concept of Yibum only arises to after the death of a brother; he further notes that Nadav and Avihu are referred to as brothers after death as well.
R’ Ezriel Hildesheimer explains that there is an obvious difference between biological and fraternal brotherhood. A biological brother remains so even after death – so it is natural to refer to brotherhood in those instances.
But the law of testimony specifically precludes blood relatives from testifying against each other, so any reference to brotherhood in the context of testimony can only mean the fraternal kind! We are brothers in identity and community, with a shared observance of Torah law and tradition, members of the Jewish People. But when we die, we are no longer bound to the Torah or each other – we move on into the beyond, and the imagery of brotherhood no longer makes sense.
While the interpretation is sound, the law itself is hard to understand. Why is it fair that if the conspiracy succeeds, that they get off scot-free, with no consequences?
R’ Shlomo Farhi explains that there are plenty of times that people don’t get what they deserve, for good and for bad, and sometimes people do get away with it.
But the Torah’s embodiment of punishment isn’t “just dessert” – it’s about restoring balance, and sometimes, the scales just won’t balance, and the consequence will be ineffective.
When the court catches the conspirators in time, the court can punish their wicked intentions by giving them the pain of their attempt, and this squares off their debt.
But when the conspirators succeed, there is no remedy, because they have done something far worse than “only” harming an innocent person. In their success, the witnesses are not the tool that inflicts the harm on the innocent; their testimony exploits and weaponizes the court, it’s sages and the entirely legal system.
The law of conspiring witnesses is not just an interpersonal crime against another, but against the entire system that Judaism builds, and there is no way to make up for that. You can get a sense of the Torah’s indignance at this, because, unusually, it labels this crime as “wicked” – בִעַרְתָּ הָרָע מִקִּרְבֶּךָ.
When someone corrupts the entire legal system, there is no remedy for that, and we leave it to the heavens.