Welcome to Tractate Makkot. In the previous tractate, Sanhedrin, the rabbis addressed the most severe transgressions in Jewish law — those punishable by execution. Tractate Makkot, which is thought by many to have originally been part of Tractate Sanhedrin and which forms its natural complement, deals primarily with transgressions that incur other, less severe punishments.
Makkot is relatively short: It has three chapters devoted to three primary discussions. The first deals with the laws of conspiring witnesses, those who knowingly testify falsely to frame an innocent person. Such witnesses are subsequently punished with the same penalty that would have been assigned to the wrongly accused — if that’s possible (more on this below). The second chapter deals with accidental killings, for which a unique punishment is prescribed by the Torah: The killer flees to a designated city of refuge where they remain, in exile but safe from blood avengers, until the high priest’s death affects atonement for their crime. The third chapter deals directly with makkot, lashes, which the rabbis agree are the designated punishment for anyone who knowingly violates Torah law, provided they were forewarned by witnesses.
Sometimes, the mishnah at the beginning of a tractate will offer a framework for the ensuing material. Not so in Makkot, where the opening mishnah instead assumes the reader is familiar with the basic laws surrounding conspiring witnesses and instead addresses a problematic case. So let’s review the relevant passage in the Torah before turning to the mishnah. Deuteronomy 19:15 states that a minimum of two witnesses are required to convict someone of a crime and then pivots to the specter of malicious false testimony:
If someone appears against another party to testify maliciously and gives incriminating yet false testimony, the two parties to the dispute shall appear before God, before the priests or magistrates in authority at the time, and the magistrates shall make a thorough investigation. If the one who testified is a false witness, having testified falsely against a fellow Israelite, you shall do to the one as the one schemed to do to the other. Thus you will sweep out evil from your midst; others will hear and be afraid, and such evil things will not again be done in your midst. Nor must you show pity: a life for a life, an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot. (Deuteronomy 19:16–21)
The punishment for falsely testifying is unyielding: Whatever the innocent party would have suffered if wrongly convicted, that is what the false witness must now bear. This is not just a punishment but also a deterrent. The harshness, while unpleasant to contemplate, has a certain logic: The entire justice system — and with it likely the society at large — collapses if witnesses cannot be trusted to give honest testimony. This is why not giving false testimony makes God’s top ten list.
The principle of retributive justice — an eye for an eye, a tooth for a tooth — goes by the Latin name lex talionis. We encountered a discussion about it in Tractate Ketubot, where the rabbis interpret the principle non-literally: They designated certain monetary fines as equivalent to the price of a hand, foot, eye and so forth. In the opening mishnah of today’s daf, we are given another case in which it makes no sense to apply the principle literally:
How are witnesses rendered conspiring witnesses? This applies in a case where two witnesses came before the court and said: “We testify with regard to so-and-so (who is a priest) that he is the son of a divorced woman or the son of a halutzah.” If a second set of witnesses testifies in court and renders the first set conspiring witnesses, one does not say with regard to each of the conspiring witnesses: This witness shall be rendered the son of a divorced woman or the son of a halutzah in his stead. Rather, he receives 40 lashes.
The conspiring witnesses, in this example, accuse a priest of being the son of a divorcee — which would render him unfit for his job. Likewise, if he is the son of a halutzah — a woman whose husband died childless and (according to the laws of levirate marriage) was therefore designated to marry her brother-in-law but elected not to — he is also unfit to serve as a priest. By giving this false testimony, the witnesses aimed to rob the priest of his role. According to the principle in Deuteronomy, we would expect the punishment to be that the witnesses themselves are then designated as sons of divorced women or halutzahs. But this is an illogical punishment. Not only is it bizarre to designate a person the son of a divorced woman if his mother is not in fact divorced, being given that status has no meaningful impact if the person is not a priest. This punishment just doesn’t work as intended. Instead, the mishnah states, these conspiring witnesses are punished with lashes.
Like monetary fines, lashes are a non-specific punishment that can be marshalled in cases where it really makes no sense to apply the principle of lex talionis. We will become much more familiar with their application as we journey through this tractate. Welcome to Makkot.
Read all of Makkot 2 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on April 10, 2025. If you are interested in receiving the newsletter, sign up here.
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