On Subjective Dimensions in Halakha (Column 374)

It is commonly thought that Halakha took shape as a system that relies on objective criteria, meaning criteria that apply to any person in the same situation. If the criteria are met, an obligation, prohibition, or exemption takes effect—and this does not depend on which person is involved. In this column I wish to present halakhic rules whose determining criteria are subjective.

Sharpening the Question: Between Norms and Facts

Despite the above, it is clear that there are halakhot that include a subjective element. For example, all the mitzvot of emotion are mitzvot that address our inner life. In that sense, they are subjective. The commandments to love, for instance, are ostensibly subjective, since they command us to love. Love is a subjective feeling. They impose upon us a duty to love, but each person loves in his or her own way, in forms and intensities that are personally relevant.

But these examples are not relevant to our discussion. First, because in Column 22 I pointed out that, at least according to certain approaches, even these mitzvot focus on objective and practical criteria rather than on the heart (they impose duties of action, not duties of feeling). Beyond that, even if the duty addresses our inner life, that does not mean it is a subjective duty. There is a duty to love a person because he is a fellow Jew, because he is a convert, or a duty to love the Holy One, blessed be He. The realization that takes place in the psyche is, of course, subjective in the sense that it takes place within our inner self, but the duty itself is objective and defined by criteria that do not depend on personality. Everyone is obligated to love his fellow or to love God; only the implementation occurs in the psyche. There is no criterion that in some situation one person is obligated and another is not, or that one person negates a positive commandment and another does not. The halakhic criteria of these mitzvot are not subjective. One might perhaps say that every person has his own way to perform these mitzvot (and even that is not certain), but there is no subjective halakha here in the sense I described above.

There are additional halakhic references to the subjective dimension of the person, beyond mitzvot concerning emotion. Some of them are not mitzvot at all but other halakhic rules. For example, intent to accept the commandments is required in the conversion process; intent is required to effect acquisition in transactions and in betrothal; intent to give charity obligates (“in your mouth”—this is charity); and the like. Yet even in all of these halakhot, although the address is indeed our subjective dimension, the halakhic definitions are objective. To acquire, one needs intent to acquire; to convert, one needs intent to accept the commandments, and so forth. Here, too, the criteria are objective; at most, the realization is subjective (in the sense that it occurs within our inner life).

Consider another example: the mitzvah of Torah study. Ostensibly, this mitzvah is a striking exception (see the end of this article). Based on a contradiction between the sugya in Menachot 99 and the sugya in Berakhot 35b, several later authorities wrote that the mitzvah of Torah study itself is defined differently for each individual. A person must dedicate what he can, within his constraints, to Torah study—but each person is required to a different measure and intensity. A working person is different from a full-time learner; a person whose work takes much time is different from one whose work takes less time; a family man is different from a single person; and similarly regarding the rest of a person’s pursuits (to my understanding, it seems there is even consideration of nonessential pursuits, such as hobbies, and the like). Here it appears that we are no longer addressing only the subjective dimension but the very halakhic definition. The halakhic criteria themselves are subjective (varying from person to person).

But this example, too, is still not what I seek. In the mitzvah of Torah study, the definition is objective, but its implementation varies from person to person. Everyone is required to dedicate what he can, and in that sense the definition is entirely general—only what he “can” do varies from one person to another. This can be compared to the duty to tithe, where it is clear that each person has a different quantity of produce from which he tithes. Still, it is undisputed that this is an obligation whose definitions are objective. The same holds for vows and oaths, where a person can shape prohibitions for himself and upon himself, but the definitions are objective: what Reuven vows binds him. The content of a vow can vary from person to person (similar to the tithing example), but the definition is objective.

In any case, when it comes to norms, one could, in principle, conceive of criteria that depend on the person. There are duties upon priests that do not apply to others, or upon men that do not apply to women. Thus, subjectivity in norms is, in principle, possible. By contrast, when we deal with facts, it seems unlikely to find subjective treatment. Facts are, ostensibly, the same facts with respect to all human beings. A clear example of such a halakhic context is the laws of evidence. Evidence deals with facts, and if a certain fact is accepted, it obligates regardless of who the person is.[1] In this column I wish to argue that even on the factual plane there are halakhic contexts defined subjectively.

Dreams in Halakha

In a paper on Midah Tovah for Parashat Miketz (5757), I discussed the place of dreams in Halakha. The aggadic and philosophical literature elaborates on the meaning of dreams. See, for example, Abarbanel on Parashat Miketz (regarding Pharaoh’s dreams) and the Akedat Yitzchak (Gate 29), and Ein Yaakov on the chapter “HaRo’eh” (Berakhot 59b), which expand on these topics. They distinguish between dreams rooted in bodily causes, such as “digestion of food that raises vapors,” or due to an imbalance of temperament from bodily health—these are false dreams “that have no substance.” However, there are dreams that are instruction and communication from Heaven, of which our Sages said (Berakhot 57b): “A dream is one-sixtieth of prophecy.”[2] And in Maharsha’s Hiddushei Aggadot to Berakhot 55b (s.v. “shekol ha-halomot”), regarding the story of Bar Hedya who interpreted dreams according to his will, he wrote that a person has power to act as seems right in his eyes, and the desires of a person dictate the correct interpretation of dreams. He connects this to the verse (Proverbs 22:9): “He who has a good eye will be blessed.”[3] Our concern here, however, is the status of dreams in Halakha.[4]

Excommunication in a Dream

In the sugya in Nedarim 8a–b it is stated:

Rav Yosef said: If they excommunicated him in a dream—he needs ten people to release him; and [this is when] they teach halakha, but if they teach [only] Mishnah and not halakha—[that] not; and if there are none who teach halakha, even [ten] who teach Mishnah and not halakha; and if there are none, let him go and sit at a crossroads and offer greetings to groups of ten, until he chances upon ten who study halakha. Ravina said to Rav Ashi: If he knows who placed him under the ban, may that person release him? He said to him: To place him under a ban they appointed him an agent; to release him they did not appoint him an agent. Rav Acha said to Rav Ashi: [If] they excommunicated him and [then] released him in his dream—what [is the law]? He said to him: Just as grain cannot be without chaff, so a dream cannot be without idle matters.

And the Ran there writes:

“They excommunicated him in a dream—he needs ten people to release him”—for it is possible that he was excommunicated by agency of the Omnipresent; therefore he needs ten to release him, for the Shekhinah is with them.

In other words, excommunication in a dream requires release just like excommunication by ordinary people. The reason is that it is possible the excommunication occurred by agency of the Omnipresent. It would seem here that the dream is a reliable medium, and therefore an excommunication that occurs within it is like a regular excommunication. If the dream were the result of “digestion of food that raises vapors,” there would be no reason to fear its content. Hence it appears that the dream is an objective medium that God Himself uses to convey messages to us. This is a different sphere of reality itself and not merely a subjective matter.

However, from the plain sense of the Gemara it appears this rule applies only out of doubt—i.e., out of concern that perhaps there was substance to that dream. If so, the dream is not a fully ordinary medium, but at most one of doubtful reliability. Apparently, the doubt in question is precisely whether the dream is a natural event produced by bodily processes—then one should disregard its contents—or whether the dream is a medium through which divine messages from above are conveyed—then one should treat its contents as reliable. Indeed, at the end of the sugya, when discussing the case where the ban was released for him in a dream, the Gemara says the release is invalid, because it is impossible for a dream to be without idle matters. It is clear that there is doubt here, so we fear that the excommunication is reliable, and at the same time we suspect that the release is unreliable.

It thus seems we must temper the conclusion above. The dream is indeed another facet of reality, but not a fully reliable one. It contains true elements as well as false ones. From the plain sense of the Gemara and its commentators it appears that both elements are necessarily present. That is, every dream is composed of the two mechanisms we presented above: bodily events serve the Almighty to convey messages, but those messages are hidden and embedded within a subjective complex that prevents us from drawing unequivocal conclusions from dream events.

This rule is codified in Rambam, Hilkhot Talmud Torah 7:12 (and in the Shulchan Aruch, Yoreh De’ah 334:35):[5]

One who was excommunicated in a dream—even if he knows who excommunicated him—requires ten people who study halakhot to release him from his excommunication. If he cannot find [them], he must exert himself after them up to a parasang. If he does not find [ten who study halakhah], those who study Mishnah may release him; if he does not find [them], ten who can read the Torah; if he does not find [them], even ten who cannot read. If he does not find ten in his locale, even three may release him.

Thus far we have dealt with excommunication in a dream. From Rashi cited above we saw that he views the dream as a reliable (or doubtfully reliable) medium; therefore release is required. But it is also possible to understand that the requirement of release reflects recognition of the dream’s impact on the dreamer, and not necessarily of its objective reliability as such. If that is the conception, then the dream is indeed entirely subjective, and the halakhot derived from it are not substantive halakhot, but rather measures to address our subjective problems. Now we will see examples in the realms of prohibitions and monetary law that express a real reliability of the dream.

Vow and Excommunication

The first example concerns a vow in a dream. The Ran on the Nedarim sugya writes:

“Just as grain cannot be without chaff”—as it is written (Jeremiah 23), “He that has [My] word, let him speak My word faithfully. What is the straw to the grain?” One must consider whether one who was excommunicated in his dream must observe all the laws of one under a ban. It seems to me that although we say here that one who was excommunicated in his dream requires release, we cannot learn from this that one who vowed in a dream requires release, for here the reason is that we can say he was excommunicated from Heaven, which cannot be said regarding a vow. However, I saw in a responsum of the Rashba (Siman 960) that such a case came before him and he required release.

Ostensibly, according to the logic we presented, there is no place to treat a vow made in a dream, for the vow was made by the person himself, and that certainly does not occur properly in a dream. Indeed, this is the Ran’s view. But the Rashba, whom he cites, holds that even a vow in a dream requires release.

One might think the Rashba holds that God imposed the vow upon the person, and therefore it requires release. That claim entails several halakhic assumptions that are far from simple (can the Almighty impose vows upon us? Perhaps the Nazirite status of Samson is an example), and thus the Ran does not accept it as reasonable. It may be that the Rashba’s intent is that the person in the dream is the one vowing, and it is as if the fully awake person vowed. Here is a third conception of dreams: they are not only divine messages or random products of physiological events, but products of the person’s subconscious thoughts and desires, and as such they express his true will and have halakhic ramifications. This is not a simple conception either, since will is not enough to constitute a vow. One also needs hafla’ah—a decision and a verbal declaration. It seems that speech in a dream is not only an expression of a hidden desire but also of a decision and even of speech itself.

Moreover, it is not clear why the Rashba sees a connection between the rule that excommunication in a dream requires release and the rule that a vow requires release. Excommunication in a dream is a message from God, whereas a vow in a dream is a different mechanism whose reliability does not depend on the dream’s function as a medium for messages from above, but on the person’s will. Even if the conception I described is correct, it is still not clear how one can prove it from the laws of excommunication in a dream.

I once thought to distinguish between the one who excommunicates and the one excommunicated in the dream,[6] namely to assume that the person excommunicated in the dream is not the real person but the figure in the dream; and if the ban takes effect, that means the person in the dream is deemed an authentic expression of the real person, and therefore his excommunication of himself takes effect. According to this, there is room for the Rashba’s inference from the laws of excommunication to the law of vows, since we see from the laws of excommunication that the aims and desires of the person in the dream express the real person’s desires, and thus his vows, too, require release. But all this seems problematic and without source.

Charity

The author of Tzafnat Paneach, in Responsum 200 (also cited in his novellae to Sanhedrin 30a), extends the above rule of the Rashba and rules that if a person vows charity in a dream, that is charity—since it is a vow made in his dream. He refers to the Gemara in Berakhot 55b (see the notes to his novellae there, §189): “R. Yonatan said: A person is shown only what arises from the thoughts of his heart.” That is, he adopts the conception that what a person does in a dream is his own act (expressing his hidden will), as we suggested in explaining the Rashba above. Note that although vows generally require hafla’ah—verbal articulation—to take effect, with respect to charity (as with fasts) there is a rule of “generosity of heart,” whereby firm resolve in the heart also suffices. It seems that the Tzafnat Paneach understands the Rashba’s words in the manner we suggested, that a vow in a dream expresses a person’s true will. One should observe that this appears to run counter to Rema, Yoreh De’ah end of Siman 259, who writes explicitly that in such a case the money is not [deemed] charity, for “the words of dreams neither help nor harm.” The Rema presumably rules like the Ran—that one cannot vow in a dream.[7]

From what has been said thus far it follows that the reliability of the dream, even when it exists, is toward the person himself—both as actor and as subject (vow, excommunication, etc.). What about objective questions? Is the dream a reliable medium in truly objective senses? We must examine this on two planes: (1) with respect to prohibitions that do not depend on a person’s will (unlike a vow or an oath); (2) with respect to the laws of evidence and monetary law, where the ruling and treatment concern other people as well. Both questions are treated in the Sanhedrin sugya, which we shall now examine.

The Dream as Evidence in Issur and in Monetary Law

In Sanhedrin 30a we find (the source of these laws is in the Tosefta, Ma’aser Sheni 5; see also Yerushalmi, Ma’aser Sheni 4:4–6):

[…] If one was distressed about money his father left him, and the “master of the dream” came and said to him: “They are such-and-such [an amount], in such-and-such a place, and they are Ma’aser Sheni funds”—this [case] happened, and they said: The words of dreams neither help nor harm.

A man searched and did not know where were the coins his father had left him (it implies he knew such coins existed and knew his father had left them), and the “master of the dream”[8] came and said they are in a certain place, or that they are Ma’aser Sheni funds. In such a case the Gemara rules that the evidence is inadmissible, for the words of dreams neither help nor harm. The implication is that if the coins were indeed found in the place revealed in the dream, they are not considered his—and of course they are not considered Ma’aser Sheni, but ordinary money.

This is codified in Rambam, Hilkhot Ma’aser Sheni 6:6, and in Hilkhot Zechiyah u’Matanah 10:7, and in the Shulchan Aruch, Choshen Mishpat, end of Siman 255. Accordingly, if a person sees in his dream someone revealing to him that Ma’aser Sheni coins of his father are hidden in a certain place, and he indeed finds coins there, he may take them and use them as ordinary money. Likewise, if it is revealed to a person that coins hidden in some place are deposit funds of Reuven deposited with his father, and upon searching coins are indeed found there, that person may take the coins, and there is no proof that they belong to the depositor.

Several later authorities (see Torat Chayim to Sanhedrin there, and Ha’amek She’elah, Parashat Miketz, She’ilta 29, §16; and in fact this is already explicit in the She’iltot there) noted that in the dream scenario here there are strong indications that this dream has substance. It is a case where a man was “distressed” about these coins—i.e., he knows there are Ma’aser Sheni coins and is searching for them—and after the dream revelation he indeed finds the stated amount in that very place. Yet nevertheless the halakha rules that the words of dreams neither help nor harm. Here we have a very clear statement that the dream has no standing in objective halakha, even when it seems manifestly reliable. Why indeed does the dream not constitute evidence in such cases?

At least in these situations, the problem is not the dream’s inherent reliability, for the indicators show it is reliable. But we must recall the rule that a dream cannot be without idle matters. Therefore, even with a dream that is clearly reliable, we fear that some of the particulars involved are incorrect, and thus we cannot rely on all the details. Perhaps the coins are indeed in that place, but the detail that they are Ma’aser Sheni is a corrupted element—the “chaff” mixed into an otherwise reliable dream.

If so, the picture here is the same as we saw above: a dream interweaves elements that are messages from above, but they are wrapped in many random details that are the product of “bodily vapors,” etc., so one cannot know which of the dream’s elements can be relied upon.

What About Doubt in Issur That Should Lead to Stringency?

Note that, as a matter of halakha, we do not even treat this as a doubt that those coins are Ma’aser Sheni. In the monetary context—i.e., in the depositor’s claim against the heir of the deceased depositary—one can say that even where there is doubt we do not give the coins to the depositor, because of the rule: the one who seeks to extract [money] from another bears the burden of proof. But regarding Ma’aser Sheni, the discussion concerns a case of doubtful prohibition, and ostensibly we should be stringent and treat those coins as Ma’aser Sheni, for the general rule is that a doubt in a Torah prohibition is ruled stringently.

It seems, then, that a dream does not even rise to the level of doubt. Anything not demonstrably verified as reliable is assumed to be outright falsehood. Why is that the treatment? As we saw, although there is no dream without idle matters, the indicators here show that there are certainly reliable elements as well. How can one ignore them entirely? I note that above we concluded that a dream has the status of a doubt. If, as we saw here, the content of a dream does not even constitute a doubt of reliability, why does one excommunicated in a dream require release? And why, according to the Rashba, does a vow (and according to the Tzafnat Paneach, charity) in a dream take effect? From the sugya in Nedarim it is clear that a dream has at least the status of a doubt.

The Approach of the Tashbetz and Others: Distinguishing Between Doubt in Monetary Law and Doubt in Issur

The Tashbetz (II, Siman 128) discusses at length the status of dreams. In general, he distinguishes between true dreams transmitted to us by an angel and false dreams transmitted by a demon. He then again distinguishes between dreams sent from above and dreams that are the result of vapors from bodily processes, etc. His conclusion is that a dream is indeed a matter of doubt.

From here he derives that in practice we must distinguish between how we treat a dream in monetary law and how we treat it in prohibitions: in issur we should be stringent, for a doubt in a Torah prohibition is ruled stringently; therefore, excommunication requires release (and if released in the dream it is ineffective). In monetary law, by contrast, we do not extract [money] based on a doubt. So rules as well the author of Yad Malakhi (Klalei HaDinim, rule 167). Regarding Ma’aser Sheni, which ostensibly is a matter of issur, the Tashbetz claims it is a monetary question (not an issur question), and therefore here, too, the halakha requires us to leave the money in its prior status, as it was presumed before the dream. So writes the Ran in his comments to the Sanhedrin sugya—because with Ma’aser Sheni one is removing the funds from private possession to the possession of the Most High.[9]

It is thus clear that according to the Tashbetz, if we are dealing with coins that were hidden and we knew nothing about them, and the “master of the dream” told us that they are Ma’aser Sheni funds, we should be stringent and treat them as Ma’aser Sheni—for there was no prior presumption regarding them (see below for the Rambam’s view of this). The Tashbetz apparently understands that the Gemara deals with a dream that testified about coins in one’s possession, not about hidden coins.[10]

The View of Rambam

But in the Rambam’s view, this cannot be said, for he brings this halakha in Hilkhot Ma’aser Sheni 6:6, and writes as follows:

If they said to him in a dream, “The Ma’aser Sheni of your father that you are seeking is in such-and-such a place”—even though he found there what was told him, it is not Ma’aser [Sheni]; the words of dreams neither help nor harm.

Rambam emphasizes that we have an indication that the dream spoke truth (for after he searched for the coins he found them exactly where the “master of the dream” said they were hidden), and even so the words of dreams neither help nor harm. That is, the “master of the dream” also revealed the place of concealment, and still the coins are deemed ordinary. This is not as the Tashbetz stated. This is also implied from his reasoning (and, indeed, from the Gemara’s own reasoning): we are not dealing with a doubt established on the basis of a presumption, but that the words of dreams have no standing at all. They do not even create a doubt.

Similarly in Hilkhot Zechiyah u’Matanah 10:7, Rambam writes:

If one was distressed about money his father left him and did not know where he hid it, and they said to him in a dream, “They are such-and-such [an amount], in such-and-such a place, and they belong to such-and-such a person, and they are Ma’aser Sheni”—and he found them in the place stated and in the number stated—this occurred, and the Sages said: The words of dreams neither help nor harm.

Thus, in both places we are dealing with coins that were not in his possession but were revealed to him as a result of the dream. In such a case it is difficult to see how any prior presumption could apply to them. I note that the author of Yad Malakhi (Klalei HaDinim, 167), who essentially views dreams as the Tashbetz did, proves from Horayot 13b that even in issur the words of dreams have no standing (see at length in Shdei Chemed, Klalei HaDaled, §45). This accords with the Rambam’s view regarding Ma’aser Sheni.

Therefore, the conclusion that suggests itself is that—at least according to Rambam (and from the plain sense of the Gemara)—dreams have no halakhic standing whatsoever, neither in issur nor in monetary law, and do not even suffice to create a doubt. The Perishah (end of Siman 255) writes similarly. He notes that the Tur omits the case of Ma’aser Sheni, and it seems he learns like the Mordechai, who distinguishes between monetary law and issur; but he writes that Rambam likens Ma’aser Sheni to a deposit. In his words:

It is implied from the Mordechai that only with Ma’aser and charity funds is the law thus, not with a deposit, for that involves robbery of others. [But] in brackets there he [adds]: Yet Rambam, chapter 10 of Zechiyah, also wrote the same regarding deposit funds—as our master [the Tur] wrote.

Subjective Dimensions of Halakha

Yet the question regarding excommunication remains: if according to the Rambam dreams have no standing at all, neither in issur nor in monetary matters, then why is it necessary to release one who was excommunicated in a dream? As we noted above, Rambam himself rules thus in Hilkhot Talmud Torah. It seems, then, that Rambam does not distinguish between monetary law and issur, but another distinction applies—between excommunication in a dream and testimony in a dream about Ma’aser Sheni or a deposit. What accounts for this distinction? How is excommunication different from Ma’aser Sheni, which is also a matter of issur?[11]

It seems that excommunication is an exceptional case, for its consequences concern only the dreamer himself. In such a case the dream has standing—at least out of doubt—so the person must be concerned about what occurred in his dream. By contrast, in any matter that concerns others—not necessarily monetary (for example, the fact that the coins are Ma’aser Sheni concerns others halakhically as well, since there are things others are forbidden to do with those coins)—the dream has no standing at all, not even as a doubt. The reason is not lack of reliability in the dream (for, objectively, we saw its status is that of a doubt, and this is also evident from Rambam’s ruling about excommunication in a dream). The reason is that in the objective dimension of Halakha—its public domain—dreams have no standing. Dreams, even if highly reliable, by their very definition belong only to Halakha’s subjective dimension. The novelty is that even when the dream is reliable and makes clear statements about reality, we do not heed it. That is the meaning of the rule: “The words of dreams neither help nor harm.”[12]

Another interesting implication of this is warning (hatra’ah) that a person receives in his dream. Ostensibly this is a personal matter, and therefore the dream has halakhic standing and the warning would be valid. On the other hand, it seems a court could not act upon it (there, too, he would not be believed to say he received a warning, both because a single witness is not believed in this and because he renders himself wicked). And what about heavenly punishments? It is not clear whether warning is required for heavenly punishments (for warning was given only to distinguish between inadvertent and deliberate transgression, and the Almighty knows what is in a person’s heart), but some views hold it is. Assuming so, it seems that warning in a dream would be valid, since it concerns only the person himself. Indeed, in Kli Chemdah, Parashat Vayera, §4, this topic is discussed at length (see there why warning would be required for heavenly punishments at all), and he explains that the warning is invalid only because a dream necessarily includes idle elements. In our terms: the dream is valid in the subjective dimension, but even there its standing is doubtful. For excommunication, a doubtful status suffices to be stringent; for warning, a definite warning is required, not a doubtful one.[13]

Further Halakhic Examples: Admission of a Litigant and “Shavya Anafshei”

Above we saw subjective dimensions in Halakha in the contexts of vows and oaths and the like. All these are essentially different from what we saw in Rambam’s view regarding dreams. In the law of dreams we saw that the dream has subjective standing even where its objective reliability exists. Although we are dealing with a fact, we do not take it into account in the public–objective sphere. One might analogize this to the rule of shavya anafshei chatichah de’issura, whereby a person is believed to testify about something so long as the consequences are only for himself. A woman who comes and testifies that she is a married woman is not believed regarding others (for she is a single witness and a woman), but regarding herself we treat it as an issur—she herself becomes forbidden to marry by virtue of that testimony. Ostensibly, whether she is married is a factual question. If we have concluded she is not married, why should she herself be forbidden by virtue of her testimony? And if she is believed that she is married, why should we not believe her regarding other implications that concern others? Later authorities have dealt with this question, but let us first raise a similar question arising from the credibility of a litigant’s admission.

When a person testifies against himself, he is believed like one hundred witnesses (see Kiddushin 65b and parallels). For example, if a person says he owes so-and-so 100 shekels, he is believed like one hundred witnesses. What does “like one hundred witnesses” mean? In Halakha, one hundred have no advantage over two (two are like one hundred). It seems the Gemara intends that he is indeed more believed than two witnesses (and even more than one hundred). Thus, for example, if there are two witnesses against his admission (they say he does not owe), he nevertheless must pay the sum he admitted to. But there is a limitation on the credibility of a litigant’s admission. When it is “to the detriment of others” (chav le’acheirinei; see Ketubot 19a and parallels), meaning his admission has consequences that obligate other people, he is not believed. Again, the same difficulty arises: if factually he is believed that he borrowed, why not accept his testimony with all its consequences? And if he is not believed, why is he himself obligated to pay?

Here, to be sure, there seems to be a good explanation. A person’s credibility to obligate himself is based on the logical assumption that a person does not lie in order to obligate himself. People lie to gain, not to lose. But when he harms others, there is concern he is lying in order to harm them (like any litigant or witness suspected of lying for gain). But this cannot resolve the difficulty, for an admission that harms others is an admission that, first and foremost, obligates himself—only that it also has ramifications for others. If it obligates him, then clearly he is not lying. If so, from our perspective this is reliable testimony; why then should we not accept it regarding others as well?[14]

Admission of a Litigant and “Shavya Anafshei” as Subjective Halakhot

I wish to propose an explanation to these difficulties in terms of subjective halakha. The person is indeed believed in his admission, and he is also believed to obligate himself in issurim (for a person does not lie to harm himself; this is true as well of the shavya anafshei rule). But as we saw with dreams, there are certain sources from which—even if we extract reliable facts—we use them only with respect to the person himself and not with respect to the objective world. A fact drawn from a dream, from the person’s own admission, or from his taking an issur upon himself is accepted only regarding himself. It has subjective force. Not because the source is unreliable or the fact is untrue, but by definition it belongs to the subjective sphere. Halakha does not allow us to use such sources in the public–objective domain.

In Column 306, I explained the credibility of a litigant’s admission according to Mahari Beirav in a similar manner. It is commonly understood from his words that, because of the difficulties I described, he argues that a litigant’s admission is not credibility but a vow: the person vows to give money to so-and-so and is not believed that he owes him. That formulation, as stated, is certainly incorrect. It cannot be said, for he certainly did not intend to vow; there is no vow without intent to vow. In addition, that interpretation of his words faces unanswerable difficulties. I therefore suggested there that his intent is that, because a person can vow to give the money, he can also accept credibility (this is credibility by virtue of “it is within his power”—be-yado). Here I add and explain further: the credibility truly exists even according to Mahari Beirav, but because it is founded on the person’s own ability to do something (“be-yado”), it grants him credibility only with respect to himself. It is subjective credibility, and only in that sense he compared it to a vow.

A similar discussion arises concerning the rule of shavya anafshei (see, for example, Ketzot HaChoshen 34:4, who also likens it to a litigant’s admission). There, too, due to the same problems, some view it as a kind of vow rather than credibility—but the difficulties with that interpretation are similar. It is clear that a woman who says she is a married woman did not intend to vow an issur upon herself, but to testify; therefore, one cannot say it obligates her as a vow. It is clearly credibility, yet it does not apply to others. My contention is that it is indeed credibility, but it belongs to the subjective sphere. Only facts based on the testimony of objective witnesses are accepted in court. Facts extracted from the statements of the litigants themselves have only subjective force.

Beyond resolving the difficulties that arise against the view that does not see this as credibility, there are further implications. For example, the principle that when it is “to the detriment of others” there is no credibility does not stem from the concern that he lies to harm others (as is commonly explained), but simply because the credibility exists only with respect to himself. Theoretically, even if there were a case where the testimony concerns others but does not actually harm them, it may still be that there would be no credibility. Beyond that, it seems there is certainly reason to be stringent and not marry that woman, even though with respect to me she has no credibility that she is a married woman. The fact is that she is a married woman—only that, halakhically, I am not required to accept that fact. But clearly, if in reality she is married, it is appropriate to refrain from relations or from marrying her. It may even be a halakhic obligation to be stringent, since with respect to me her statement at least creates a doubt that she is a married woman. I do not accept it as testimony, but it creates a state of doubt (for it is credibility, and thus, even for me, reality is as she says).

This is somewhat similar to the disqualification of testimony by relatives. There, too, it emerges from the Gemara and the poskim that the issue is not concern for their reliability but a scriptural decree. If so, when two relatives come and testify about something, reality is indeed as they say—but we are not obligated to accept it as such, because it is based on the testimony of relatives. If two relatives come and testify that a woman is married, I am under no obligation to accept their testimony. Is it reasonable that I could now marry her? The testimony of relatives is reliable; there is only a scriptural decree not to accept it. If so, in reality she is married, and therefore it follows that I ought (or at least have reason) to be stringent. Indeed, I have already noted that the disqualification of a person to testify and judge in his own case (the disqualification of a party to the case) is a particular instance of the disqualification of relatives (as emerges from Responsa Ritva, Siman 52).[15]

[1] Of course, different halakhic contexts require evidence of different kinds and strengths (one witness or two, a migo to extract, etc.), but that relates to the difference between halakhic truth and factual truth. If there is clear factual truth, it will be recognized as such and will obligate in every context (there are those who disagree, but this is my view).

[2] See also Margaliyot HaYam, Sanhedrin 30a, §7, and the Tashbetz cited below, who wrote similarly. By contrast, see Sefer Chassidim (ed. R. Margaliyot), §444.

[3] See also Responsa Rashba I, Siman 408; examine there carefully.

[4] For comprehensive surveys, see Shdei Chemed—Klallim, system 4, rule 45; Divrei Yatziv, Yoreh De’ah, Siman 122; Margaliyot HaYam, Sanhedrin 30a, §7; Pardes Yosef, Parashat Miketz; Kli Chemdah, Parashat Vayera, §4, and the sources cited there.

[5] Rema there disagrees with the possibility of permitting with three.

[6] See my discussions of Ron Aharoni’s distinction between the human being as subject and as object, discussed in Columns 157–158, 367, and elsewhere.

[7] Note that the Rema ostensibly does not address whether there is hafla’ah here. But if we pay attention, he is not dealing with one who vowed in a dream, but with one who was told in a dream that some funds had already been pledged in the past to charity (and there, there was hafla’ah). In that situation, the sole question is the dream’s reliability, and on that he says that a dream cannot be without idle matters.

[8] See Margaliyot HaYam there, §7, who cites several interpretations of “the master of the dream”: the minister in charge of dreams, or the person concerned (and in Tashbetz II, Siman 128, he raises the possibility that it was someone else who dreamt, and he is called “the master of the dream”).

[9] See the discussion in Kli Chemdah, Parashat Vayera, §4.

[10] In Responsa Divrei Yatziv, Yoreh De’ah, Siman 122, he elaborates on the law of dreams, scrutinizes the language of the early authorities, and shows, for each, how the case is situated (some set it in various doubtful circumstances; others set it in situations where the coins had a prior presumption). His conclusion is that the matter remains in doubt. He proves this as well from the Tur (Choshen Mishpat, end of Siman 255) and the Mordechai (Bava Batra, ch. 1, end of Siman 458), and it seems he learned thus even in Rambam. Likewise, Kli Chemdah (Parashat Vayera, §4) explains the Rashba’s responsum cited above in the Ran.

[11] The author of Shivat Tzion, Siman 52, explains that with excommunication in a dream we are concerned even for a remote matter, for chamira sakanta mei-issura (danger is more severe than prohibition). He explains that excommunication is not an obligation upon the community but an expression of an indictment that exists against him in Heaven; therefore, he requires release.

[12] One implication of our analysis is that excommunication in a dream does not obligate the public to treat him as excommunicated; it only obligates him to observe the laws of one under a ban (similar to mourning; see Rambam, Hilkhot Talmud Torah, ch. 7). The excommunication requires release only to free the person himself from his obligations, but society is not at all meant to act based on what arises in an individual’s dream—even concerning that very dreamer himself. We stress that the community’s exemption from the practices of excommunication toward the dreamer does not stem from his lack of credibility to testify about the excommunication that appeared in his dream, for in matters of issur even a single witness is valid, and even if he is a party to the case. The exemption stems from the fact that even if his testimony is true, excommunication in Reuven’s dream does not concern—certainly does not obligate—the actions and attitudes of Shimon, even Shimon’s attitudes toward Reuven (the dreamer) himself. This also emerges from Shivat Tzion, Siman 52, who explains that with excommunication in a dream we are concerned even for a remote matter, for chamira sakanta mei-issura. He assumes there that excommunication is not an obligation upon the community but an expression of an indictment in Heaven; therefore, release is required.

[13] One might note the rule that warning by a demon (murtar min pi shed) is, in practice, valid warning (see Bavli, Makkot 6b). See this at the end of the aforementioned Kli Chemdah.

[14] Some have wished to explain that when it harms others there is concern he wishes to take revenge on them and is thus willing to suffer himself in order to make others suffer—like “let me die with the Philistines.” But this explanation is forced.

[15] See all this in my Migo Monograph.