Musar for Makkot 10:16

Commandment 196 prohibits sexual relations with one's daughter. This prohibition is not spelled out in the text because it is derived from the prohibition of sexual relations with one's granddaughter, a blood-relation more distant than one's daughter. Our sages have also derived this prohibition from the similarity in expressions used by the Torah (גזרה שוה). This is necessary because we have a rule that one may not punish someone for transgressing a prohibition which is derived merely by application of logic.

One must also take care not to be among the abettors of machloketh so that he not be punished among them when their appointed time comes, as Chazal have stated (Makkoth 5b): "Scripture has punished the abettors of transgressors as the transgressors themselves." And in Midrash Parshath Korach we find: "Come and see how severe is machloketh. For if one abets machloketh, the Holy One Blessed be He destroys his remembrance, as it is written (Numbers 16:35): 'And a fire went forth from the L-rd and consumed the hundred and fifty men, the presenters of the incense.'" And, in Sanhedrin 110a: "Rav said: 'All who persist in machloketh transgress a negative commandment, viz. (Numbers 17:5): "And he shall not be like Korach and like his congregation."' R. Assi said: 'He deserves to contract tzara'ath.'" (And see above, Chapter VI, what is written in the name of Sefer Hakaneh, that sometimes the Holy One Blessed be He transforms the punishment of tzara'ath to poverty, so that he becomes dependent upon others.)

We have a perfect example of the principle of מדה כנגד מדה, that retribution fits the crime, in the legislation about עדים זוממים, false witnesses trying to frame someone. These "witnesses" who testify to something they have not seen must suffer the fate their intended victims would have suffered had it not been that the truth was revealed in time (19,19). People must be judged by applying the same yardstick by which they judge others. The hidden message in this legislation is that when G–d created the universe, He created opposites. Just as He created domains of sanctity, He also created the alternative, i.e. a domain of impurity, קליפה. He who performs good deeds establishes his affinity to the domain of sanctity, whereas he who engages in sinful conduct establishes ties with the domain of impurity. All this is part of the concept: שכר מצוה מצוה, ושכר עברה עברה, that the "reward" of a good deed is another good deed and vice versa (Avot 4,2). The reward is the spiritual impact of the performance of the good deed. When the Torah ties the punishment of such a "witness" to כאשר זמם לעשות, "what he intended to accomplish" instead of to "what he did accomplish," it is to teach us the rule that we are measured by the same yardstick we apply to others. The Rekanati endeavors to explain how our sages dared arrive at the conclusion that if the intention of the עדים זוממים had in fact been accomplished, (i.e. that their victim had already been executed before discovery of the fact that they had not been at the scene of the crime to which they testified), that they then go out scot-free from a human tribunal (Chulin 11). This is what he writes: "I have to explain to you why the sages in Chulin arrived at such a ruling from something the Torah did not actually state. Did they presume to know everything that was in G–d's mind? First of all, let us be clear that the statement in Chulin כאשר זמם ולא כאשר עשה applies only in cases where a death penalty had been administered. If the subject of the testimony was something not involving a possible death penalty the witnesses in question will have to make restitution even if their victim has already been convicted. This is why our sages used as their example the words: הרגו אין נהרגים, "if they have killed they will not be executed." Having said this, know that G–d does not allow miscarriages of justice, i.e. that an innocent person be put to death by a Court. Anyone who has not committed a sin carrying the death penalty will not be convicted by the testimony of false witnesses. If such an accused is executed this merely proves that he was guilty of another sin for which he deserved to die, but that the other sin he was guilty of had not been witnessed, and that therefore no judicial proceedings could have been instituted. In view of this the false witnesses had actually accomplished G–d's purpose when they testified against the accused in question. They had actually merely caused the death of a person who -legally speaking- was already considered "dead" in G–d's books. How could we execute a witness for having caused the execution of someone already legally dead? All of the foregoing is based on our conviction that the Sanhedrin only confirm judgments already made in Heaven, that they are the representatives of the שכינה. If the witnesses were found out before their victim was executed, it is clear in retrospect that they were about to shed innocent blood. Clearly, for such a crime they must face retribution in kind. When judges perceive themselves as agents of G–d, it can be said of them that אלוקים נצב בעדת א-ל, 'G–d stands in the divine assembly'" (Psalms 82,1). Thus far the Rekanati.