The "Hint" to Lashes for Zomemim

In Sanhedrin 10a, Rav Huna had a nice derivation for three judges for lashes.

מַכּוֹת בִּשְׁלֹשָׁה כּוּ׳. מְנָהָנֵי מִילֵּי? אָמַר רַב הוּנָא: אָמַר קְרָא ״וּשְׁפָטוּם״ – שְׁנַיִם, וְאֵין בֵּית דִּין שָׁקוּל, מוֹסִיפִין עֲלֵיהֶם עוֹד אֶחָד. הֲרֵי כָּאן שְׁלֹשָׁה.

§ The mishna teaches: Cases concerning one who is accused of violating a prohibition that would render him liable to receive lashes must be judged by three judges. The Gemara asks: From where is this matter derived? Rav Huna says: The verse states: “If there will be a controversy between men, and they come to judgment, and the judges judge them, and they shall justify the just, and they shall condemn the wicked. Then it shall be, if the wicked man deserves to be beaten, that the judge shall cause him to lie down, and to be beaten before his face” (Deuteronomy 25:1–2). When it states: “And the judges judge them,” in the plural, this indicates a minimum of two judges. And since a court may not be composed of an even number of judges, the court adds to them one more, and there are a total of three judges here.

Rav Huna is a second-generation Amora from Sura, but he is continuing in the tradition of earlier Sages, such as Tannaim, in deriving the number of judges for different kinds of cases and penalties.

My first reading of his derasha is that it is extremely targeted, and works on a peshat level. That is, וּשְׁפָטוּם means to judge, and is a plural verb, which would describe an action taken by multiple people. The minimum plural is two, so the most conservative reading thus far is that there must be at least two judges. Then comes the overriding principle of adding a judge to make the number odd. And it is in this context that it mentions bin hakot harasha, that there are cases where a defendant is lashed.

The Talmudic Narrator (who is perhaps post-Amoraic) dislikes this, and objects, then answers its own objection to restore Rav Huna:

אֶלָּא מֵעַתָּה, ״וְהִצְדִּיקוּ״ – שְׁנַיִם, ״וְהִרְשִׁיעוּ״ – שְׁנַיִם, הֲרֵי כָּאן שִׁבְעָה? הָהוּא מִיבְּעֵי לֵיהּ כִּדְעוּלָּא, דְּאָמַר עוּלָּא: רֶמֶז לְעֵדִים זוֹמְמִין מִן הַתּוֹרָה מִנַּיִן?

The Gemara asks: If that is so, that the plural verbs in the verse each indicate two judges, the term: “And they shall justify,” indicates another two, and the term: “And they shall condemn,” indicates another two, so that there are a total of seven here. The Gemara answers: Rav Huna requires that pair of terms in accordance with the opinion of Ulla, as Ulla says: From where in the Torah is there an allusion to the halakha of conspiring witnesses?

I don’t agree to the objection, and I don’t think Rav Huna would either. This reads Rav Huna’s derasha as a counting derasha, like some of the earlier ones, that took repeated instances of lower case elohim, for instance, or yarshiun. Counting derashot are fundamentally midrashic in nature. Meanwhile, Rav Huna was just speaking as a matter of plain peshat!

The Talmudic Narrator fully subscribes to the midrashic system in which the sets of Biblical phrases and the set of Biblical-level laws are one-to-one and onto. As I’ve written elsewhere, I am not convinced that all Tannaim and Amoraim agree to this approach, and I’ve given counterexamples. Regardless, that’s the basis for the objection. Not just that this is a midrashic derivation, but that if we start doing this, we still have these other two plural words. Rav Huna would just say that, as a matter of peshat, yes, those same two judges are continuing to perform their plural actions.

The Talmudic Narrator’s resolution is to use those other two words for a different derasha, namely that of Ulla. Ulla was already mentioned in the snippet above, but let us continue the gemara, which fleshes out Ulla.

רֶמֶז לְעֵדִים זוֹמְמִין?! וְהָא כְּתִיב: ״כַּאֲשֶׁר זָמַם״! אֶלָּא, רֶמֶז לְעֵדִים זוֹמְמִין שֶׁלּוֹקִין מִנַּיִין? דִּכְתִיב: ״וְהִצְדִּיקוּ אֶת הַצַּדִּיק וְהִרְשִׁיעוּ אֶת הָרָשָׁע״.

The Gemara interrupts with a question: An allusion to the halakha of conspiring witnesses? But it is written explicitly: “Then you shall do to him as he had planned to do to his brother” (Deuteronomy 19:19). Why would there be a need for an allusion? Rather, Ulla meant: From where in the Torah is there an allusion to the halakha that conspiring witnesses are flogged? Ulla answers: As it is written: “And they shall justify the just, and they shall condemn the wicked. Then it shall be, if the wicked man deserves to be beaten, that the judge shall cause him to lie down, and to be beaten before his face.”

מִשּׁוּם דְּ״הִצְדִּיקוּ אֶת הַצַּדִּיק וְהִרְשִׁיעוּ אֶת הָרָשָׁע״, ״וְהָיָה אִם בִּן הַכּוֹת הָרָשָׁע״? אֶלָּא, עֵדִים שֶׁהִרְשִׁיעוּ אֶת הַצַּדִּיק, וַאֲתוֹ עֵדֵי אַחֲרִינֵי וְהִצְדִּיקוּ אֶת הַצַּדִּיק דְּמֵעִיקָּרָא, וְשַׁוִּינְהוּ לְהָנָךְ רְשָׁעִים, ״וְהָיָה אִם בִּן הַכּוֹת הָרָשָׁע״.

The Gemara explains the derivation: Due to the fact that the terms in the verse: “They shall justify the just, and they shall condemn the wicked” indicate a financial dispute in which one party is vindicated and the other is required to pay, does it follow that, as the verse continues: “Then it shall be, if the wicked man deserves to be beaten”? Why would the verdict’s being rendered in the other party’s favor mean that the losing party is flogged? Rather, the verse must be discussing the witnesses and not the litigants. If conspiring witnesses condemned the just one, and other witnesses came and justified the one who was really the just one from the beginning and rendered these conspiring witnesses wicked, then, as the verse continues: “Then it shall be, if the wicked man deserves to be beaten, that the judge shall cause him to lie down, and to be beaten before his face.” This indicates that the witnesses are subject to lashes.

The Talmudic Narrator is correct in the initial reframing, that Ulla isn’t trying to find a remez to conspiring witnesses, but to the lashes that they get. After that brief clarifying interjection, the rest is a continuation of Ulla’s words.

Now, a remez / allusion is IMHO not the same as a real derasha. Even if the Talmudic Narrator assumes so. It is an extremely creative rereading of the Biblical section in a comprehensive manner, rather than targeting just those words. And as a remez, it might be an asmachta, albeit to a law that is still Biblical.

Then, we get the Talmudic Narrator’s objection, but I’m not sure where he said it, as we’ll see momentarily. Thus, the gemara continues:

וְתִיפּוֹק לֵיהּ מִ״לֹּא תַעֲנֶה״! מִשּׁוּם דְּהָוֵה לֵיהּ לָאו שֶׁאֵין בּוֹ מַעֲשֶׂה, וְכׇל לָאו שֶׁאֵין בּוֹ מַעֲשֶׂה אֵין לוֹקִין עָלָיו.

The Gemara asks: Why does this halakha require a specific derivation? But since there is a principle that one is subject to lashes for violating any prohibition, why not derive this punishment from the prohibition: “You shall not testify as a false witness against your neighbor” (Exodus 20:13)? The Gemara answers: That verse is insufficient, because it is a prohibition that does not involve an action, but only speech, and with regard to any prohibition that does not involve an action, one is not flogged for it.

If we get it from this other verse of לֹּא תַעֲנֶה, then these two other words are not needed for Ulla, and it resumes the problem to Rav Huna. That’s one way of reading it. Alternatively, it is an attack on Ulla, why should he have this derasha?!

Though I would say that Ulla is fine getting the core derivation from elsewhere, even as it may be not targeted towards conspiring witnesses alone. He is going for this wonderful creative remez rereading, not for actual derivation.

The Narrator answers that it is because mere speech is not an act, so there should be no lashes for it. See Tosafot on the daf who grapple with that. There’s a dispute between Rabbi Yochanan and Reish Lakish whether speech acts count as action.

Regardless, this isn’t the primary sugya of Ulla’s derivation or remez. We can find that in Makkot 2b, where Ulla does the same start, gets interrupted by the reframing question, continues, then is challenged by the Talmudic Narrator about לֹּא תַעֲנֶה, and ends with the mention of לָאו שֶׁאֵין בּוֹ מַעֲשֶׂה. That’s the primary sugya, and this question and answer were dragged along with it. So indeed, it is a question on Ulla, not Rav Huna, who doesn’t appear in that sugya.