Topics in Chapter 4 of Sanhedrin – Lesson 3 – Rabbi Michael Abraham

This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.

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Set up the ruling, not just reveal it, okay? It is the one that creates the ruling. Yes.

[Speaker C] A litigant’s admission—isn’t that a new obligation? Meaning, he… so that’s… I’m obligated from now on; he doesn’t have to have been obligated from before.

[Rabbi Michael Abraham] That’s the Mahar”i ben Lev and Ketzot, but of course it’s completely untenable. It’s obvious that no… In other words, the Mahar”i ben Lev wants to claim that this is like that self-imposed prohibition—where you have the same dispute there too—whether it’s a vow or a declaration or… completely untenable. In my opinion, even he himself doesn’t mean that, so this… you could give a whole lecture on it. How everybody discusses Ketzot and the Mahar”i ben Lev, while the Mahar”i ben Lev himself doesn’t mean that.

[Speaker C] If you don’t say that, then can you contradict him? If there are witnesses against his admission? No. No. So why not?

[Rabbi Michael Abraham] Fine, you can discuss that. I have a lecture on that too, if you want. I claim that there is… I’ll say it in one sentence: I claim that there is an area in Jewish law that is a subjective area. The area that… whatever pertains to me. In what pertains to me, I am the absolute master. Meaning, what I say is what determines it. Therefore, in self-imposed prohibition, when I determine that something is forbidden to me, that has nothing to do with the objective laws of evidence. In my territory, what I determine is absolute. And in my opinion a litigant’s admission is built on that same thing too. But that is credibility—real credibility—not some hairsplitting about a vow or a declaration or something like that. I have absolute credibility regarding what is happening with respect to me, what is happening on my side. I brought various proofs for this. There is a discussion in the Talmud—it was in Sanhedrin 30—where it brings a case of someone who saw things in a dream. He saw in a dream that his father had left him some money, and that it was hidden in a certain place, and in the dream they tell him: “Look, it’s hidden there.” He searched and didn’t find it; in the dream they tell him: “It’s hidden there, and it is second tithe money. You have to eat it in Jerusalem. You can’t do whatever you want with it.” Okay? He went there, dug, and sure enough, he found exactly the amount they had told him. Now the question is whether he has to be concerned that it really is second tithe? If he had just found it, not because of the dream, there would be no reason to assume that it was second tithe, right? Most money in the world is not second tithe, okay? So now the question is: fine, but you discovered it because of the dream, and that means the dream is apparently reliable, since in fact you found it in the place the dream told you, right? So then the same mouth that permitted is also the mouth that forbade—or the mouth that revealed is also the mouth that forbade—because it also told you that it is second tithe, or that it belongs to so-and-so, right? There are two cases there. So Maimonides rules—and there are many disputes about this among the medieval authorities and later authorities—Maimonides rules that no. No. And not only no, but you can show in Maimonides that this has nothing to do with the reliability of the dream. Even if the dream is reliable, you do not have to give it to so-and-so, and it is not second tithe. Why not? Because there is some kind of… there is some kind of subjective evidence which, even if it is correct—not because it is incorrect—most of the medieval authorities explain that we are concerned that maybe it is not true, and that is why we do not believe it. But in Maimonides you can show that no. Even if it is completely true, clearly true, still, law is something objective. Meaning, you need evidence that can be reconstructed, that can be seen, that can be examined. Okay? The fact that you saw various things in a dream—even if it is true, not because it is false—cannot serve as evidence in court. Meaning, court is supposed to operate objectively. Okay? That is the other side of the coin from what I said earlier.

[Speaker E] And this idea basically paves the way for the role of lawyers even in Jewish law, because we are not really trying to search for the truth; we understand that there is a panel of judges here, and we are in the procedural part, and then the court basically says: bring me, bring me a professional who will find some procedural issue for us here.

[Rabbi Michael Abraham] Okay, you can see it that way too. I’m not sure that that is the necessary proof, because you could say that the lawyer is simply there to create more justice, that’s all. Meaning, you want someone to defend the defendant, for example in a criminal case—it doesn’t matter—someone to defend the defendant in order to make sure that if they convict him, it really is airtight. And if not, then not.

[Speaker E] But in civil law, the goal is ultimately to clarify the truth, and… but here too.

[Rabbi Michael Abraham] In civil cases, 51% is enough, right? That’s a bit different.

[Speaker E] To reach the threshold that was set. Here, with an advocate… that the court basically wants—come, come—so as I said, maybe—

[Rabbi Michael Abraham] Maybe you could interpret it that way, but I’m not sure that that is the meaning. Take the procedure of each side choosing one judge, for example. There there is some such idea: one party chooses one, and the other party chooses one, so the assumption is that each one will somehow represent him—admittedly unconsciously; he is forbidden to represent him consciously because he is a judge, not a lawyer—but unconsciously, the assumption is that he will lean in the direction of that litigant, and the other will lean in the direction of the other litigant, and the third, whom they both chose together, will somehow produce the full truth. And that is better than, say, if you had three where one is biased this way, one is biased that way, and one is objective—it is a more just trial than three unbiased ones. That is a novelty, but I think it is true. My mother always said: if you want to buy a washing machine, always go to the person who sells the other machine and have him explain to you what is bad about this machine. Fine? And then go to the person who sells this machine and have him explain what is good and what is bad about the other machine, and then you’ll know best. Because if each one just praises his own goods, you won’t know anything. Meaning, you need two biases in opposite directions; that is better than two people who are unbiased. You uncover all the aspects, because each one will dig up all the relevant aspects in the direction he is biased toward, okay? Anyway, so… once someone told me—as long as we are talking about this—someone once told me that this whole institution of the rabbinical court advocate is an insult to today’s judges. Right? If Rashba were sitting in judgment, and you told him: I want to be represented by a rabbinical court advocate, he would throw you down the stairs together with your advocate. Because you understand that the purpose of the rabbinical court advocate today is to help the judges. It’s obvious. The judges are liable to miss some halakhic consideration or some relevant legal source or something like that, so if you hire a rabbinical court advocate to represent so-and-so, he’ll dig under the ground and find all the arguments in his favor, and likewise the advocate for the other side. Then all the judges have left to do is weigh the different arguments and decide who is right. But if you bring the two litigants without rabbinical court advocates—assuming the advocates are worth something, which is often not true, but if the advocate really does know the material—if you bring it without an advocate, then who knows? Maybe the judge missed some consideration or some source or something? Soon they’ll terrify him too… “that he terrified him”—that’s really our chapter. Now there is AI. Yes, so today we already have other solutions.

[Speaker E] So—

[Rabbi Michael Abraham] Rabbinical court advocates will lose their jobs, you mean, even before the lawyers. Okay. Anyway, I’m waiting for the judges to lose their jobs too, not only the rabbinical court advocates. Anyway, so how did we get to all this? Ah, yes—the difference between criminal law and civil law is that in criminal law a person cannot declare himself wicked, while in civil law a litigant’s admission is equivalent to one hundred witnesses. And the point that really creates this difference is that in civil law your goal is to know who is right. Once the truth has been clarified, the obligation exists and stands, because the truth generates the obligation. If you borrowed, you are obligated to repay. If you caused damage, you are obligated to pay. It has nothing to do with the court. The court only deals with clarifying the truth. But once the truth has been clarified, what obligates you is not the court’s ruling; what obligates you is the truth. Okay? And therefore it already obligated you beforehand; maybe you just didn’t know, or you lied, or whatever, and that is why you need the court. You need the court only to expose the truth. In criminal law, the court also tries to expose the truth, to clarify what happened—did you desecrate the Sabbath or not, was there prior warning or not, what witnesses were there—of course they are trying to clarify the truth. But in the end, the sentence is brought into being by the court. It is not that the court reveals it; the court creates it. Because in criminal law—that’s the important point—in criminal law it is not enough to know what the truth is. So what if I know what the truth is? Like today, I know that I desecrated the Sabbath in front of witnesses and after warning; I am still not liable to death. As long as a court has not sentenced me to death, I am not liable to it, even though the truth is completely clear, everybody knows I desecrated the Sabbath in front of witnesses and after warning. It makes no difference; I am still not liable to death. So we see that in criminal law there is an additional component besides clarifying the truth. The court has a constitutive role, okay? Not only a revealing role. You can see this in the difference between two laws in Maimonides. What? What? No, that’s a parenthesis, okay. Wait, one second. Yes. I’ll say one more sentence about that. We discussed this last year, I think, when we studied Makkot, the third chapter of Makkot—when was that? I don’t remember anymore. I think last year. A litigant’s admission—that is, sorry, “a person cannot declare himself wicked”—basically means that your confession is inadmissible, okay? Is that confession also exculpatory? Does it exempt? Meaning: I confessed, and afterward witnesses come that I committed the offense. I confessed that I lent with interest, or yes, I don’t know, I committed some other offense, and now witnesses came—am I liable or not? In the case of a fine, there is the rule that one who admits liability for a fine is exempt. There is a dispute between Rav and Shmuel whether the admission also exempts, and is not merely inadmissible regarding the fine. In the case of a fine, if I come and admit that I owe a fine, I am exempt. I admit that my harmless ox gored your ox; I am exempt from paying. One who admits liability for a fine is exempt. That’s what the Torah says: one who admits liability for a fine is exempt. Now I will suggest an explanation later, but generally we do not interpret the reasons for scriptural laws; that is what the Torah says. In any case, what happens if afterward witnesses come? I came and admitted that my ox—my harmless ox—gored your ox. In principle I am liable for half damages, a fine. But by admission—one who admits liability for a fine is exempt. Now two witnesses come; they saw the goring. Really my harmless ox gored your ox. That is a dispute between Rav and Shmuel: if one admitted liability for a fine and afterward witnesses came, is he still exempt or not? Now the question is why. Why is he exempt if he admitted liability for a fine and afterward witnesses came? Because the way I understood and explained earlier, what does “a person cannot declare himself wicked” mean? It means the admission is inadmissible. We do believe him that it happened, but the admission is inadmissible. Why? Because you cannot convict a person on the basis of evidence that comes from the person himself. You need, as I said earlier, external evidence, right? That is why relatives are not believed, and so on. Fine? But here now you have external evidence—two witnesses came—so what is the problem? No. In the end, the law is that if one admitted liability for a fine and afterward witnesses came, he is exempt. There is a dispute between Rav and Shmuel, but in practical law we rule that he is exempt. What does that mean? The claim is—put in the analytic style—that the admission is not only inadmissible; it exempts. Meaning, once you admitted, you were released from the obligation. Released from the obligation. By the way, this is another proof that the point is not that you are not credible. You are credible that it happened. On the contrary, you are credible that it happened, and nevertheless you are not liable, because you are exempt despite the fact that it happened. Now once you are exempt despite the fact that it happened, then what does it help me that now two witnesses came? Those two witnesses prove that it happened; I knew that beforehand too, because I accept his admission as well—he is credible—so I know the reality. So why should I care that witnesses came afterward? All the witnesses added was that this is what happened; I knew that beforehand too. If the person admitted, as I said, there is no problem with the reliability of his testimony; the problem is admissibility, okay? So what does that mean? That basically I know, so the witnesses added nothing. Why does the admission actually exempt and not merely fail to obligate? That is the meaning. If the admission does not obligate, that means you cannot obligate on the basis of his admission. But witnesses came, so let’s obligate on the basis of the witnesses. When I say that even witnesses who come afterward do not obligate, that means the admission exempts and not merely fails to obligate. There are two laws regarding an admission in the case of a fine. One law is that it is not admissible as an admission—you cannot obligate on that basis. And the second law—there is a dispute between Rav and Shmuel, but in practical law there is also a second law—is that it also exempts. Meaning, if you admitted, you are exempt, that’s it. Now even if two witnesses come, you will not be liable. Why not? In last year’s lectures I argued that this is repentance. He repented when he admitted. Once he repented—notice, we are talking about a punishment. A fine, although it is money, is a monetary punishment, right? It is not a financial obligation. And if you repented, then okay—you do not need to be hit with punishment. In a financial obligation, if you admitted, then of course you are liable. Why? Because you owe him the money—what do you mean? Why should I care? What you have to pay is not a punishment; you simply have to return his money. But in the case of a fine, it is only a punishment on you. If it is a punishment on you and you repented, fine, then you are forgiven. From here you can now ask what happens in the case of “a person cannot declare himself wicked.” A person who admits that he ate pork is liable for lashes, okay? Or he is liable to death, or he desecrated the Sabbath, or committed adultery, or I don’t know what, all sorts of things, or borrowed with interest, lent with interest—so “a person cannot declare himself wicked.” What happens if witnesses come? Does “a person cannot declare himself wicked” only mean inadmissible—that it does not obligate—or does it also exempt? Rashi’s view is very surprising, because all the medieval authorities and the accepted approach say that of course it does not exempt; it is only inadmissible. Rashi’s view in the passage we will see in a moment is that it exempts. It exempts. That means that if you admitted that you borrowed with interest, lent with interest, ate pork, committed adultery, and so on—even if witnesses come afterward, you are exempt, because it exempts. Why? Rashi simply says the same thing as with admission of liability for a fine. It is the same idea. Admission of liability for a fine exempts—it is the same thing as “a person cannot declare himself wicked.” Why? After all, one is monetary and one is criminal. Yes, but it is criminal monetary law. A fine is money, but it is criminal money—it is punishment, okay? And therefore, in a fine, in lashes, and in death, it is not enough that we know what the truth is. It is not the truth that obligates you; the ruling obligates you. Therefore the fact that it is true that you did it—true, it is true; we knew it even after you incriminated yourself, and certainly if witnesses came afterward, okay? But the fact that we know that this is the truth does not yet mean that you are liable. In monetary matters, it is enough to know that this is the truth in order to understand that you are liable. Okay? So, for example, if one admitted liability for a fine and afterward witnesses came—if he saw witnesses approaching, then indeed he will not be exempt, because there is a concern that he ran to confess because he already saw that witnesses were about to arrive. That is one of the indications that, okay, here this is not a confession that is repentance, because he saw witnesses approaching, so this is not genuine repentance and we do not accept it.

[Speaker B] Always—

[Rabbi Michael Abraham] In repentance there is always an interest. You don’t want to be punished, even by the heavenly court. What difference does it make? You still have an interest. You repent in order not to be punished, right? Does that damage the repentance? It does not damage it. Each of us makes his own calculations. But if in the end he repented, he came to admit, and he did not know there were witnesses against him—if he knew there were witnesses against him, that is not repentance. But if he did not know there were witnesses against him, then he truly repented. The fact that he repented out of fear and not out of love—so what? It is still repentance. Therefore we forgive him. That is the claim. I once heard that from some judge. There used to be weekends on Hebrew law organized by Professor Nahum Rakover. Once he invited me to lead workshops there for judges and lawyers and such on various topics in Jewish law. One time he invited me to lead one of those weekend programs with workshops, and among other things we studied this very topic. Then we discussed admission of liability for a fine followed by witnesses—how could it be, why should he be exempt? So someone there said something, and it was obvious that he did not know the material; he was not a Torah scholar. He said: “Because apparently he admitted, he repented, so they forgive him.” At first I died laughing. Like, okay, that’s a kind of simplistic layman’s explanation, but no—afterward I thought: wait, actually that is a very nice explanation. I think it is a very convincing explanation, and last year I spoke about it at length. People think repentance does not help against punishments administered by an earthly court. In my view repentance helps very much—even to exempt from punishments of an earthly court repentance helps, although there is a Talmudic passage at the beginning of the third chapter of Makkot that seems to imply not, and that was a whole series I gave. Anyway, for our purposes, what I want to say here is that there is a difference between civil law and criminal law. In civil law, what matters is clarification of the truth. In criminal law, it is not enough to clarify the truth; there also has to be some formal legal effect of a ruling. Without that, the obligation is not upon you. This has implications, for example, for the question of what happens if the truth becomes clear to me in the context of monetary law in a way that does not follow the usual procedural order or the regular laws of evidence, but I am convinced that this is the truth. Does that help or not? I mean me as a judge. I as a judge became convinced that Reuven borrowed from Shimon and has to pay him. There is no evidence; the witnesses are disqualified; I don’t know what; the witnesses were shown to be false—whatever you want, fine? But I became convinced that it is true, that the words ring true. Can I rule on that basis? So let’s look. Maimonides at the beginning of chapter 20 of the laws of Sanhedrin: “A court does not punish on the basis of conjecture, but only on the basis of witnesses with clear evidence. Even if witnesses saw him pursuing his fellow, warned him, then lost sight of him, or they entered after him into a ruin, and entered after him, and found him slain and convulsing, with the sword dripping blood in the hand of the killer”—this is a case from the Talmud—“since they did not see him at the moment he struck him, the court does not execute on the basis of this testimony. And concerning this and the like it is said, ‘Do not kill the innocent and the righteous’” (Exodus 23:7). “Righteous” I wouldn’t say, but “Do not kill the innocent and the righteous”—maybe innocent or righteous, meaning innocent, not righteous, okay? Maimonides says here: “A court does not punish on the basis of conjecture.” Punish—it seems that this is not only death but anything. Meaning, Maimonides basically holds that in criminal law circumstantial evidence does not help. Say, this is the Talmudic case. The Talmud brings it, and Tosafot explains it a little differently, but in the plain sense this is the Talmud. You see someone chasing another person with a knife, okay? They go into a ruin. You see them inside; you don’t know what happened there inside. You go in after them, you see that only the two of them were there, there are no other entrances, nothing, and that fellow with the knife—it is dripping blood, the other is stabbed, blood is flowing from him, and he dies, okay? Can you convict the murderer? That is circumstantial evidence, because you did not see the murder itself. But you have to understand: people think circumstantial evidence is weaker. Absolutely not. Circumstantial evidence is not necessarily weaker; it is circumstantial because you did not see it directly, but that says nothing about how strong it is. In this case the evidence is excellent, okay? And nevertheless you do not convict, says Maimonides. What? That is something else—what they will do with him afterward is another matter—but they do not punish him, because this is called punishing on the basis of conjecture. Again, conjecture not because it is uncertain, but because it is conjecture and not direct evidence. You need evidence, not a rational inference, even a logical one, okay? That is called conjecture. Not conjecture—the emphasis is on the judgment of the mind. People think the emphasis is on the estimate; no, the emphasis is on the mind. You cannot punish because it is something from your own reasoning; you need evidence, visual evidence of witnesses, in order to punish, okay? Tosafot, for example, says that if it is certain, then yes, they do punish—disagreeing with Maimonides—but in Maimonides’ view this is how it works. What? “Like a cosmetic stick in its tube”? Yes, that is connected to the same issue, in Makkot there. “And likewise, if two testified concerning him that he worshipped idols—this one saw him worship the sun” and warned him. By the way, the “cosmetic stick in its tube” case is brought regarding capital law, because of the severity of the punishment—because you are killing someone—so there we are not willing to accept even the slightest uncertainty, only direct evidence. Here he is talking about punishments in general. And punishments in general is more far-reaching, because my claim is that it is not because of the severity of the punishment. In other words, it is not that lashes are more severe than monetary liability, and therefore for lashes—but in a fine it is the same. Meaning, it is not because of the severity of the punishment, but because of the type of punishment: it is punishment and not money. And in punishment you need testimony. “By the mouth of two witnesses a matter shall be established” (Deuteronomy 19:15). The witnesses establish the matter; they do not clarify the truth, they establish the matter, okay? And therefore this applies in criminal law. “And likewise, if two testified concerning him that he worshipped idols—this one saw him worship the sun and warned him, and that one saw him worship the moon and warned him—they do not combine, as it is said, ‘Do not kill the innocent and the righteous’ (Exodus 23:7). Since there is some basis to clear him and treat him as righteous, do not kill him.” Okay? So that is at the beginning of chapter 20, which speaks about punishments, about criminal law. At the beginning of chapter 24 of the laws of Sanhedrin, Maimonides sings a somewhat different tune: “A judge may adjudicate monetary cases according to matters toward which his mind inclines that they are true, and the matter is strong in his heart that this is so, even though there is no clear evidence.” Fine? Here circumstantial evidence or some sort of judicial impression is good enough in monetary law. You do not need testimony, right? Obviously this is the antithesis of what he wrote at the beginning of chapter 20. At the beginning of chapter 20 that was criminal law, punishments. Here he is talking about monetary law. In monetary law, informed estimation of the facts is enough. There one does not judge on the basis of such estimation; here he is talking about judging on the basis of such estimation. Now, again, such estimation might be estimation with 100% certainty. I am not entering the question of how much certainty you need; that is a different question. I do not tie Maimonides’ term “conjecture” to the level of certainty. The emphasis is on the mind, not on the estimate. That is… Here you may judge based on your reasoning, not on the basis of eyewitness testimony, okay? Therefore, for example, in my opinion, despite all the discussions in the Talmud, it is obvious that in monetary law if two relatives come, you can extract money. Obviously. Because two relatives are telling the truth. Maimonides himself writes, and the Talmud says, that two related witnesses are telling the truth; there is simply a scriptural decree not to judge on their basis. They are telling the truth. Fine, so I will not judge on their basis; I will judge on the basis of the inference formed in my own mind because of them. Such inference is enough in order to judge.

[Speaker H] What? Yes, yes.

[Rabbi Michael Ab

[Rabbi Michael Abraham] Now he says, how so? This too is a case that appears in the Talmud, with Rava, peace be upon him: if a person became obligated to take an oath in court, and someone tells the judge that he is trusted by him and that his mind relies on his word that this person is suspect with regard to oaths, then the judge may transfer the oath to the opposing party, and he will swear and collect, since the judge relies on this person’s word. Even if it were a woman or a slave who was trusted by him, since the matter seems strong and correct in his heart, he relies on that person and rules accordingly. And needless to say, if he himself knows that this person is suspect, that is even better. Okay? That too came up on that same weekend with Rakover there; we also learned that Talmudic passage. It’s a passage in Ketubot, about Rava, peace be upon him, yes. Rava was judging there. A certain woman came before him; he wanted to administer an oath to her. Fine, someone had a claim against her and he wanted to make her swear. Then his wife came in — the court, after all, was in his house, that’s how it was, that’s the Jewish law — his wife came in and whispered in his ear: Listen, this woman is a pathological liar, don’t believe her, there’s no point making her swear, she’ll swear falsely to you. So he transferred the oath to the other side, and that person swore and collected, okay?

Now, the people there really revolted, yes, in the audience there, the jurists. What is this? His wife whispers in his ear and he changes the ruling? What is this, is the court his private courtyard? Things are supposed to be conducted in an orderly way — what do you mean your wife whispers in your ear and that’s that? So I said to them: Tell me, leave aside for a moment what you’re used to thinking — what are you proposing? You’re proposing that he should not listen to his wife? Now, he knows that she speaks the truth, after all; he knows her, right? And she tells him that the woman standing before him is a liar. So what exactly are you proposing? That he should administer an oath to the liar, even though he knows she will swear falsely, and give her money she doesn’t deserve — why? Because you think the whole business has to proceed in an orderly fashion. Does that make sense? Absolutely not.

Rather, the point is, again, how much trust you have in the judge. If you trust the judge, and it’s clear that he’s not going to pull any funny business here, then if he believes his wife, excellent — then he has an excellent source of information, and he knows what the truth is. What happens today is that we don’t trust judges. Not always justifiably, doesn’t matter, but the system is built in such a way that you don’t trust judges. That opens the door to funny business. Tomorrow morning a friend of his will come and tell him, do this, do that — you can’t allow yourself to function that way. Fine, I understand the logic, everything is okay. But we’ve become so used to this that we’ve forgotten that really, why in the world should a judge do something he is sure is wrong — give money to someone who doesn’t deserve it — just because there has to be some formal order in the system? If you have no suspicion about him, assuming you have no suspicion about him, then it is completely logical to act this way. Okay?

If we set aside all the concerns for the moment, then basically what Maimonides is saying here is: the judge should do what seems right to him. He is not subject to procedural rules and the laws of evidence and all kinds of things like that. If he has reached a conclusion about what really happened here, that is how he should rule — in monetary law. As opposed to criminal law, punishments, where no. There you have to go with the laws of evidence. What? Why criminal law not?

[Speaker H] Criminal law not?

[Rabbi Michael Abraham] What’s the simple difference?

[Speaker H] I don’t —

[Rabbi Michael Abraham] You could say that originally there is exactly this concern too about judges, yes, that maybe you worry that he — but I’m not sure that’s the reason. That’s just what the Torah says; I can’t say. There does he say?

[Speaker H] It’s not necessarily a more severe punishment.

[Rabbi Michael Abraham] No, in monetary law for example, what will happen with fines? He doesn’t say that fines are the same; there he says punishments. Fines are also punishments. So fines are not more severe than monetary cases; it’s a punishment and it’s a payment, so what? But in both cases it’s giving money.

[Speaker E] But the expensive price is that in capital law you put so much weight on procedure and not on judgment and estimation.

[Rabbi Michael Abraham] Not capital law — with all punishments, I’m saying, not only capital cases. In capital cases there is “and the congregation shall save” (Numbers 35:25). That is something that stems from the severity of capital law: even if you have some narrow opening, you still do not convict the defendant. But that is specific to capital law. This rule of Maimonides is true for all punishments, not only capital ones. Generally, in criminal law you need testimony.

[Speaker E] Okay, but it seems to me like what we saw here: witnesses come, testify about someone —

[Rabbi Michael Abraham] That he murdered, and afterward the witnesses are shown to be plotting witnesses. Right, you release him. Again, you can put him into the cell.

[Speaker E] But according to this, what the judge ought to do is kill him, because he goes according to the procedure, no? Basically there are two witnesses here who made a person liable; we judge according to — but when does the judge know that he did not desecrate the Sabbath? Why? Because they were shown to be plotting witnesses; after all, they are false witnesses.

[Rabbi Michael Abraham] You’re taking it to the opposite side. Leave it with me — in just a moment, in just a moment we’ll come back to that, if you remind me in case I don’t return to it, okay? One second, because there’s a continuation here. So Maimonides continues, and he says, yes: “Since he found the matter strong and correct in his heart, he relies on him and judges accordingly; and it goes without saying if he himself knows that the person is suspect. Likewise, if a promissory note came before him, and a person he relied upon told him, even some other relative: this debt has been paid — if he relies on his words, he may say to the claimant: you may collect only with an oath.” Okay? In short, the judge can rule according to what appears right in his heart. And that is what he says: “And so too in all similar cases” — I’m skipping to the end — “and so too in all similar cases, where the matter is entrusted only to the heart of the judge, according to what he sees to be the true law. If so, why did the Torah require two witnesses? So that when two witnesses come before the judge, he shall judge according to their testimony, even though he does not know whether they testified truthfully or falsely.”

So what do we keep learning all the time? “By the mouth of two witnesses a matter shall stand” (Deuteronomy 19:15) — that was said about monetary law. In capital law we derive “matter” “matter” from monetary law. The source is specifically monetary law: “By the mouth of two witnesses a matter shall stand,” not capital law. Okay? And specifically in monetary law Maimonides says: no, you don’t specifically need witnesses. In capital cases yes, or with punishments yes, but not in monetary law.

[Speaker D] Why? Isn’t the source monetary law when the judge does not know what happened? So he says: right, also in monetary law “by the mouth of two witnesses a matter shall stand,” but not only —

[Rabbi Michael Abraham] Not only by the mouth of two witnesses a matter shall stand. If you have no position of your own, and no clear conclusion in your heart about what happened here, and then two witnesses come, then rule according to them. But notice something else Maimonides says: that if two witnesses come before the judge, “even though he does not know whether they testified truthfully or falsely.” And if he knows that it’s false? Not if they were formally disproven — if they were formally disproven then obviously. But in his heart, he has an estimate, an inner judgment: these people do not inspire confidence; they are liars. It seems Maimonides says no there too, right? Meaning, not to rely on them. If you have no position of your own and witnesses come, that binds you: by the mouth of two witnesses a matter shall stand. If you do have a position of your own, then do what you think. Really?

But this all — the source is really the Rif. Basically this is an enactment of the two academies. Maimonides in law 2 also brings the continuation of the Rif’s words: “All these matters are according to the essential law. But after courts that were not fit became numerous — and even if they were fit in their deeds, they were not properly wise and discerning — the majority of the courts of Israel agreed not to transfer an oath except on the basis of clear evidence, and not to impair a document and undermine its presumption on the testimony of a woman or of one disqualified. And similarly in all other laws, a judge should not rule on the basis of what his mind relies upon or of what he personally knows, so that no simpleton will say: my heart believes this one and my mind relies on that one. And similarly, property is not taken from orphans except with clear evidence,” and so on. Okay? “Even so, if a trustworthy person testified concerning one of these matters and the judge’s mind inclined that it is true,” he says, “he delays judgment, and does not reject the testimony, and he discusses the matter with the litigants until they admit the witness’s statement, or they reach a compromise, or he withdraws from the case.”

That is the correct situation today. What Maimonides describes in law 1 is the essential law. According to the essential law, in monetary law you do not need testimony. What you need is the judge’s conviction. If the judge has no position, and then two witnesses come, then he rules like them. And if he has a position, for better or worse, then he goes with what he thinks. Okay? What happens after they abolished that law — the enactment of the two academies?

[Speaker D] Now —

[Rabbi Michael Abraham] Now you can no longer go according to your own judgment. What you still can do, though, if doubts arise in you — two witnesses come, and doubts about them arise in you — then start running them around, ask questions, investigate the litigants beyond what is required in the ordinary examination and inquiry, check from here and from there, drive them crazy, propose compromises, don’t let them breathe, and in the end either they will compromise, and if that doesn’t work, you can also withdraw from the case. That is what is called a fraudulent case. The judge feels that this case is fraudulent. Meaning, according to ordinary procedure I should have ruled this way, but my feeling is that something smells bad here. I can’t put my finger on it, I can’t prove it, but something smells bad. The judge has the right to withdraw from the case. He can say: okay, I can’t convict on the basis of my own judgment, because today that law no longer exists, but I can withdraw. Fine, let another judge come; if you convince him, all right, but I’m not willing to rule this way. My conscience troubles me, yes, I’m not at peace with it.

[Speaker I] Can he justify? In both directions, this judge? Certainly.

[Rabbi Michael Abraham] Yes, yes, he can withdraw from the case. That is what is called a fraudulent case; it also appears in the Shulchan Aruch. Meaning, that is always an option available to a judge. That is what he says. And from where do we know, says law 3 there, that if a judge knows that a case before him is fraudulent, he should not say: I will decide it and let the responsibility hang on the witnesses’ necks? Scripture says: “Keep far from a false matter” (Exodus 23:7). Meaning, he is forbidden to decide the case if he feels it is fraudulent. Not that he is allowed to withdraw — he is obligated to withdraw. Meaning, you are forbidden to rule and say: what can I do, witnesses came, the Torah said “by the mouth of two witnesses a matter shall stand,” I have saved my own soul, meaning I ruled according to the witnesses. No. If you reached the conclusion that this case is fraudulent, withdraw. You cannot say: let the responsibility hang on the witnesses’ necks, and the like.

What should he do? He should examine and investigate it thoroughly, with the kind of examination and inquiry used in capital cases. If it appears to him that there is no fraud in it, he decides the case according to the testimony. But if his heart troubles him that there is fraud in it, or his mind does not rely on the words of the witnesses, even though he cannot disqualify them, or if his mind inclines that in this case there is a deceitful litigant, a cunning person who coached the witnesses, even though they are valid and innocently testified — and that is the reason — or if from the overall circumstances it seems to him that there are other hidden matters there that they do not want to reveal, in all these cases and the like, he is forbidden to decide that case. Not that he may withdraw; he must not fail to withdraw. He is obligated to withdraw. Rather, he should remove himself from this case, and let it be judged by someone whose heart is at peace about it. Then someone else may come and indeed be convinced by them — perfectly fine, everything is okay. But if you are not convinced, then withdraw. “And let it be judged by one whose heart is whole in the matter, for these things are entrusted to the heart, and Scripture says: ‘for the judgment is God’s’” (Deuteronomy 1:17). Okay?

So we have quite a complex situation here. In principle, in monetary law, the original law is that what determines things is only what the truth is. And if the truth became clear to you in a way that is not according to the ordinary laws of evidence — without witnesses or whatever it may be, doesn’t matter — if that is the truth, then that is the law. Which fits very well with what we discussed earlier: that in monetary law, the law is a result of reality, not a result of the judicial ruling. The entire role of the judge is only to uncover what the reality was, that’s all. Once you uncovered what the reality was, that is what determines that Reuven owes Shimon. By contrast, in criminal law, it is not like that; there you need the ruling. Okay? Where there is a judicial ruling, there you cannot judge by your own estimate and intuition. Why? Because your estimate only says that this was the reality. So what if this was the reality? It is not enough to say that this was the reality; you also need some formal process to take place in court in order to give validity to the ruling you issue. Without that, your ruling does not exist. The fact that there was such a reality is not enough for that.

[Speaker E] The same instruction in law?

[Rabbi Michael Abraham] Meaning, in criminal law, even if the reality became clear to you — that so-and-so murdered, or desecrated the Sabbath with witnesses and warning, or whatever it may be — then ostensibly he is liable to death. No. He is liable to death only by virtue of the court’s ruling. Therefore, it is not enough that the reality became clear; the formal procedure that takes place in court is a condition for the validity of the judicial ruling. Meaning, the process does not exist only to clarify the truth. In monetary law the purpose of the process is only to clarify the truth. In capital law the purpose of the process is to constitute the ruling; that is, without the ruling, there is no liability. Okay? And therefore there are formal requirements, because it needs to be a judicial ruling, and a judicial ruling has to meet all kinds of requirements, as the Torah demands. In monetary law there are no such requirements. If it has become clear to you that this is the truth, then he is liable, because he borrowed. What do I care now what did or did not take place formally? Okay?

That is why I argue that in the case of relatives, in answer to what was asked — if relatives come and testify that Reuven owes Shimon money, then as a judge in monetary law I would obligate Reuven to pay Shimon. Since the relatives — the assumption is that they speak the truth. The Torah disqualified them by a textual decree, but they do speak the truth, and since they speak the truth, let’s say I accept that. If I don’t accept that, then maybe my conscience troubles me; but suppose I do accept that principle. Then I tell him to pay. Meaning — but is it not forbidden to rely on them? After all, there is a textual decree not to rely on related witnesses. Correct. There is a textual decree not to rely on related witnesses; I did not rely on them. I relied on my own judgment and estimation. My estimate was formed by the witnesses — so what? But bottom line, now I know that this is the truth, and that is enough to rule. Okay?

I once wrote about this, I think in “Two Doubts.” We are so used to thinking that related witnesses are disqualified by a textual decree even though what they say is true — but that is not a trivial statement. Meaning, when two — think about criminal law — when two relatives come and testify that Reuven desecrated the Sabbath in the presence of witnesses and after warning, okay? We exempt him, right? Because by the mouth of two witnesses — but these witnesses are relatives, or relatives of the defendant, it doesn’t matter; either way they are disqualified. So if they testify that Reuven murdered or desecrated the Sabbath in the presence of witnesses and after warning, then he is liable to death, but if they are relatives then no, right? Because we disqualify them. But the truth is that he did desecrate the Sabbath, right? That is the truth. Okay? Fine, we do not kill him even though he desecrated the Sabbath, because in order to kill him you need a judicial ruling. And we are very used to that, yes?

Plotting witnesses. We say: it is a textual decree regarding plotting witnesses; really it is two against two, but it is a textual decree that the latter two are believed and the first two are disqualified. And it is very nice to think that it is a textual decree, and then I say that despite the fact that there are two witnesses who testified that he murdered, I do not kill him. Why not? Because even without that I would not kill him. There are two witnesses here and two witnesses here contradicting them, right? So there is at least a doubt. But the question is: why do we kill the witnesses? “As he plotted” (Deuteronomy 19:19) — those I kill.

Now what will you tell me? That if the disproving witnesses, say, if the disproving witnesses are relatives, okay, what do I do with the plotting witnesses? After all, as far as the truth is concerned, what is the truth? That the latter two are the truthful ones and not the first ones. But they are relatives, so there is a textual decree not to accept their testimony. So what do I do? Then I do not accept their testimony, right? If I do not accept their testimony —

[Speaker G] Then the first witnesses I —

[Rabbi Michael Abraham] Do not kill, okay? What about the defendant? The first witnesses were not disqualified, right?

[Speaker E] Now —

[Speaker G] I have witnesses that he murdered.

[Rabbi Michael Abraham] Do I kill him? Of course not. Anyone who would kill him, I would immediately remove him from judgeship. Of course you do not kill him. Why not? What? The Torah said not to accept the testimony of relatives. We are very used to that because it always goes in the direction of exemption. When you do not accept the testimony of relatives, fine, so I did not punish someone who deserves death. But here, to kill someone whom I know is innocent? There is no such thing. That simply cannot be imagined, okay? If the related witnesses come in order to exempt someone, I am not going to convict him because they are relatives. In most cases, related witnesses come to convict, and then I exempt him because they are relatives. So with that we can live, okay?

In any case, for our purposes, what we see in Maimonides is that — wait, there was your question here, Shmuel? That was the answer, right? I’m not even sure that’s what you asked, but I happened to aim at it — yes, okay. So yes, that is basically the conclusion. And for our purposes, what this means is that in monetary law the goal is to clarify the truth, whereas in capital law the goal is to constitute a ruling. We do clarify the truth, but that is not the whole role of the court. The court clarifies the truth and then, on top of that, constitutes a ruling, okay?

But there are two reservations here. One reservation is that even so, the court does have a status even in monetary law. Looking at monetary law, you might say the court has no status. The whole question is only what really happened, so what difference does the court make? All the formal matters — whether they have ordination, whether they do not have ordination, a court of three, or four, or seventeen, or minus two — what difference does it make? In the end, if the truth has become clear, then the truth has become clear, so no formalism should be needed. So why are there court laws in monetary law at all?

The answer is because the court has coercive power. Okay? When we come to court, it means I do not want to pay, okay? So the court reached the conclusion that I am obligated to pay, okay? Now, if it were only reality — reality says that I am obligated to pay, but I do not want to pay — fine, the Holy One, blessed be He, will settle accounts with me. No. The court has coercive power. Once the court has clarified that I am obligated to pay, then that reality obligates me. Now I cannot say: I think — I disagree with you about the facts. You are great Torah scholars, but in your assessment of the facts you were mistaken. No, I did not borrow. You say that I borrowed? Not true, I did not borrow. Okay? There is no such thing. The court has coercive power. When the court determines that you borrowed, you have to pay. So the court has significance even in monetary law. It is not that the court has no significance in monetary law; it has significance there too.

More than that: Rabbi Shimon Shkop, in Gate 7 of Sha’arei Yosher, chapter 1 — worth looking at, it’s an interesting discussion — wants to prove there from various places that witnesses have a share in creating the validity of the judicial ruling, even in monetary law. In capital law we already saw that you need witnesses, because without them the ruling has no validity. The fact that the judges were convinced that you murdered is not enough. Meaning, there has to be testimony. But he argues that this is true even in monetary law.

Now that is very strange, because after all, according to the essential law we do not need witnesses at all. So how can it be that the witnesses give validity to the ruling? So the claim — I think what he wants to say — is that you need validity for the ruling in the sense that it will be enforceable. Since the court can now coerce by virtue of it, the ruling has significance even in monetary law. If I am obligated because I borrowed, so what? I say I did not borrow — who is going to force me? Okay? Even if I am lying, it does not matter, but who will determine that I am lying? Who determines what reality is? The court is the body authorized to determine what reality is. So after the court determines that I borrowed, then true, my obligation to pay is because I borrowed, not because the court determined it. But after the court determines it, I can no longer deny that I borrowed. In that sense, the court has authority; the court’s determination has significance, and this is created on the basis of the witnesses. Meaning, without valid testimony, the court does not have the power to impose the ruling. That is what Rabbi Shimon Shkop argues.

In light of Maimonides here, it seems to me that this must be qualified. That is where you rule on the basis of witnesses. But if you rule on the basis of your own impression, then not. After all, in that case you do not need witnesses at all, and this is of course a fully valid ruling. Meaning, the defendant or whoever is found liable will have to pay, even though this is only by virtue of the judges’ estimation and judgment.

When you rule on the basis of witnesses — if you have no position of your own, and two witnesses come to you and you rule according to them — there the ruling draws its validity from the testimony. Meaning, the testimony is not only the proof — Rabbi Shimon Shkop’s proofs there are meant to show that the testimony did not merely clarify the facts for the court, but that the testimony also gave the ruling its validity, and that the witnesses join with the judges in creating the validity of the ruling.

[Speaker E] That’s very characteristic of Rabbi Shimon Shkop, this kind of thinking, the ontological mode. He spreads it over many areas, also in acquisition, that there is some kind of something beyond — every sort of —

[Rabbi Michael Abraham] A sort of meta-entity, metaphysical, yes, right, yes. And that is his claim, and he has all sorts of proofs for it there; you can look in chapter 7, Gate 7, chapter 1.

Okay, so that is regarding the difference in court between monetary law and capital law. And I said that the root of the matter is really the question: what is the role of the ruling, what is the role of the court in the ruling? In monetary law, seemingly, it is only to clarify the truth and afterward to give it enforceable force, but fundamentally only to clarify the truth. What obligates you to pay is the truth, not the ruling. In capital law, the ruling is what obligates you.

Now here is the practical implication. The Talmud in Makkot 5a says as follows: “And Rava said: if two came and said, ‘On the first day of the week so-and-so killed a person,’ and then two came and said, ‘You were with us on the first day of the week, but rather on the second day of the week so-and-so killed the person’ — and not only that, even if they said, ‘On the eve of the Sabbath so-and-so killed the person,’ they are executed, because at the time when they testified, the man was not yet subject to execution.” What does that mean? A first pair of witnesses comes and says: Reuven killed Shimon on Sunday. Okay? This entire proceeding is taking place on Thursday, okay? Two witnesses come and say: Reuven murdered on Sunday. Then two witnesses come and disprove them: you were with us on Sunday, so first of all you are plotting witnesses, okay? But it is true that so-and-so killed the person. When?

[Speaker I] On Monday, yes.

[Rabbi Michael Abraham] On Monday. On Sunday they went on a joint trip with the first pair, and on Monday they happened to be there and so-and-so killed the person on Monday. Okay? So what happens now with the first witnesses? They were disproven, and they wanted to make him liable to death. So we should kill them, right? “As he plotted.” We do not kill them. Why not? “Because at the time when they testified, the man was not yet —”

He is a dead man already.” What does that mean? Excuse me, they are executed, yes, they are executed! Why? “Because at the time they testified, the man was not yet liable to death.”

[Speaker G] On the day

[Rabbi Michael Abraham] On Sunday, meaning: on Thursday, when they testified about this person that he was liable to death, okay? That he was liable to death as of Sunday. Now they were exposed as conspiring witnesses, okay? “On Sunday you were with us,” and now we say that on Monday he committed the murder. Okay? So that means that in fact, on Sunday, when they wanted to make him liable to death, okay? On Sunday, when they wanted to make him liable to death, he was not yet liable to death; he murdered on Monday. On Sunday he was not yet liable to death, right? Since he was not liable to death and they came to make him liable to death and were exposed, then they themselves are liable to death. If he had been liable to death even without them, and they came to make him liable to death, then they did not come to kill him, because in any case he was already a dead man, so they too are not executed under “as he plotted,” but here he was not yet liable to death. And now the Talmud says: “And not only that, but even if they said, ‘On the eve of the Sabbath so-and-so killed a person.'” Even if the witnesses exposing them said that this person killed on Friday and not on Monday, before Sunday, even then on Sunday he still was not yet liable to death. Why? After all, on Friday he had already murdered. There had not yet been a verdict. Since there had not yet been a verdict, the act was on Friday, right? But there had not yet been a verdict; as long as there had not yet been a verdict, he was not liable to death. So if you now came to make him liable to death, even though this was after the actual murder he committed, since he was not yet liable to death, you came to impose death on someone who was not yet a person liable to death, and therefore they do to you “as he plotted” and execute you. Right, now the Talmud asks: What is it teaching us? We already learned that, and so on. So they say: It was necessary only for the case of when the verdict had already been issued. Two came and said: “On Sunday the verdict of so-and-so was issued,” and two came and said: “On Sunday you were with us; rather, on Friday the verdict of so-and-so was issued.” And not only that, but even if they said: “On Monday the verdict of so-and-so was issued”—these witnesses are not executed, because at the time they testified, the man was already liable to death. Here it is already more subtle. What are they saying here? Here the testimony is not about the fact that he murdered; the testimony is about the fact that he was convicted in court for murder. What the witnesses saw was the conviction, not the murder, okay? So they say as follows: the first witnesses say that he killed on… “his verdict was issued,” meaning that he was convicted on Sunday. Then two came and said to them: “On Sunday you were with us; on Friday his verdict was issued.” Yes. Now what does that mean? If his verdict was issued on Friday, that means he was liable to death, right? On Friday. By the time we got to Sunday he was already a man liable to death. Now these witnesses came and said: “On Sunday he was sentenced to death,” and they lied; it is not true that he was sentenced to death on Sunday. Fine, but they were exposed, yet they did not come to kill him, because in any case he was already a man liable to death, therefore they are exempt. Okay? And likewise regarding fines. Regarding fines too, the same thing. As with capital cases, so too with fines. What do we see from here? That liability to punishment is not a result of the act, because the act had already happened on Friday, and he still was not considered a person liable to death. But if the conviction was on Friday, then by Sunday he was already a person liable to death. Why? Because his liability to death is created by the conviction, not by the murder. The implication is: what happens in monetary law in such a case? The law will be different, right? That is what they discuss regarding a thief who slaughtered. Two came and said: “On Sunday he stole, slaughtered, and sold,” and two came and said: “On Sunday you were with us; rather, on Monday he stole, slaughtered, and sold”—they pay. And not only that, but even if they said: “On Friday he stole, slaughtered, and sold,” they pay, because at the time they testified, the man was not yet liable for payment. Okay? So we see that even regarding a fine, in the case of slaughtering and selling, the same applies to the fine as well. Okay? Because he was not yet a person liable for payment. This is not only in capital cases, but also in fines. Meaning that in all laws of punishment, the final verdict is what imposes the law, not the act itself. What about the principal? The principal, no—there he would be liable, because once it is already known that he had stolen earlier, then he is liable, okay? Therefore this applies only to the double payment, or to the fourfold and fivefold payments. Yes. By contrast, if two came and said: “On Sunday he stole, slaughtered, sold, and his verdict was issued,” and two came and said: “On Sunday you were with us; rather, on Friday he stole, slaughtered, and his verdict was issued,” and not only that, but even if they said: “On Sunday he stole, slaughtered, and sold, and on Monday his verdict was issued”—they do not pay. Why? Because once his verdict has been issued, there is already liability. Okay? So Tosafot there on the spot says: “At the time they testified, he was not yet liable to death.” The commentary explains—look at Rashi’s language—the commentary explains: why was he not yet a person liable to death at the time the witnesses testified? The witnesses testified on Sunday, okay? Since it was on Sunday, he was not yet a person liable to death, even though he murdered on Friday. How did I explain that before? Because there had not yet been a verdict, and therefore he was not yet a person liable to death. Rashi does not say that. He says: because if he had confessed, he would have been exempt. Because in fact he could have confessed to this murder and thereby been exempt. Okay? It is not that he was not liable to death, but that he had the option of exempting himself from that liability because he could have confessed. So first of all, we see from this Rashi—and this is an enormous novelty, everyone cries out about it, an enormous novelty—that there is an exemption for confession, even in a capital case. In court-imposed punishments, someone who confesses is exempt from punishment; repentance helps with punishments imposed by the court. Okay? That is what we see from this Rashi. Tosafot says: “And this does not appear correct, for we do not find this; if so, then all those liable to death by the court could confess and exempt themselves.” Right? What does that mean? Where do we find that confession exempts in capital offenses? In fines there is a rule that one who confesses to a fine is exempt, but why in the world would that apply to those liable to death by the court? That is not admissible—but it does not exempt. Okay?

[Speaker F] That is not according to the law. But is there someone who says that if witnesses then came afterward, he would still be liable even though he confessed? Fine, so that is something else.

[Rabbi Michael Abraham] But that is not according to the law. Correct. “And it seems preferable to explain…” Again, even according to his own view, after all, he could have confessed and exempted himself. It is true that if witnesses had then come afterward, that is something else, but he could have confessed and exempted himself. So it can still be that he was not a person liable to death. “And it seems preferable to explain that ‘he was not liable to death’ means before his verdict had been issued, because perhaps witnesses would not come.” Because if it is before the verdict had been issued, who knows—maybe witnesses would not come. And if witnesses did come, maybe their testimony would not stand, because perhaps they would contradict each other in the examinations and interrogations. Furthermore, it is forbidden to execute him until the verdict has been issued, and once his verdict has been issued he is certainly liable, since witnesses have already come, their testimony has been accepted, and one who seeks to kill him is exempt.” Okay? The same thing in the next Tosafot; it also says this: “And so too regarding a fine—but certainly not regarding money, for when they testify on Sunday, ‘He stole,’ and two come and say that in truth he stole yesterday, ‘On Sunday you were with us,’ certainly they do not pay money, because at that time the man was already liable”—with respect to the principal, with respect to the money, okay? So Tosafot is essentially saying that maybe witnesses would not come; that is the problem. Okay, so Rabbi Akiva Eger asks about this there in the margin of the Talmud: “I am astonished! Why did they need this? Why not explain simply that in monetary law, even if there are no witnesses at all, but he himself says, ‘No, rather, I borrowed on Friday,’ or ‘on Sunday,’ nevertheless there is no law of exposed witnesses, because they testified about someone already liable, for even though without witnesses the court could not obligate him, nevertheless he himself, who knows the truth, is liable and is obligated to pay. This is not so in the case of a fine, for in plain truth he is not obligated to pay, and as long as the court has not obligated him, he is not obligated at all—see Tosafot in Ketubot and elsewhere. And so too in capital law, where by his own knowledge of the truth that he killed, he is not yet liable to death, and there is no obligation upon him at all to execute himself, and the obligation exists only by virtue of the court’s ruling—and this distinction seems correct and clear.” This is very strange, because this Rabbi Akiva Eger is always brought as the source for the idea that in punishments the verdict constitutes them, whereas in monetary law it does not—but neither Rashi nor Tosafot explains it this way here. Neither of them explains it this way. Rashi ties it to the possibility that witnesses may not come; Tosafot says maybe they would not convict them, or something like that. But I think that in Rashi, when he says maybe witnesses would not come, that is what he means. If witnesses do not come, they will not convict him; that basically means it depends on the court’s ruling. He is only giving an explanation of why the liability to punishment depends on the ruling, perhaps. So it could be that Rashi is not necessarily against Rabbi Akiva Eger, but Tosafot does seem to be, since he needed a different explanation. In any case, it is pretty clear that Rabbi Akiva Eger is right. That is what he says: “the distinction seems correct and clear.” Meaning, what Tosafot said—I do not know, it needs further analysis. But for our purposes it is clear that there is a difference in law between criminal law and civil law: in criminal law, the ruling constitutes the law, whereas in civil law, reality constitutes the law; the ruling merely reveals the reality, okay? That is also what we saw in Maimonides and in other places. Just one anecdote to finish—I will not go on; just one more minute… regarding the renewal of ordination. You know that in the sixteenth century there was a major controversy about renewing ordination in Safed. The five students of Mahari Beirav decided to rely on the words of Maimonides, who on his own reasoning said that it seemed to him… Maimonides writes that if ordination has to come by direct transmission from one ordained person to another all the way back to Moses our teacher, then now that ordination has ceased, how will it ever be renewed when the Messiah comes? Elijah, or whoever comes. Okay? How will it be renewed? After all, we have no ordained people who can ordain someone else anew. So he says that therefore it seems to him by reasoning that if there is agreement of all the sages of Israel, they can renew ordination—create it out of nothing. After the expulsion from Spain… that is in Safed. Yes. A little later, yes. So in the sixteenth century there, Mahari Beirav in Safed was considered the greatest of the sages there, and his five students decided that they wanted to rely on this Maimonides and ordain Mahari Beirav. They ordained him, and he in turn ordained them. Among those five students was Rabbi Yosef Karo. Yosef Karo was ordained. Okay? Now, you will not find in the Shulchan Aruch or in the Beit Yosef anything about ordination. He himself was ordained. You will not find it. In one place in the Beit Yosef he writes: “Nowadays there are no ordained judges,” and therefore we do not judge this kind of case or that kind of case. Even though he himself was ordained. What is the issue here? There was a very large controversy opposite the sages of Jerusalem. Maharalbach, who headed the sages of Jerusalem—at the end of his responsa, the final section is a pamphlet on ordination. And that is the documentation we have of the whole argument; even the position of the sages of Safed is basically learned from his pamphlet. He brings all the arguments for and against, and he came out against it. He did not agree; the sages of Jerusalem did not agree. And this dispute continued. The sages of Safed did ordain, but the fact is that apparently they too ultimately accepted the claim of the sages of Jerusalem, and therefore even the Shulchan Aruch himself, who was ordained, as I said, says that there are no ordained judges nowadays. By the way, the ordination continued even after him. It continued for another generation or two and then somehow evaporated. But it did continue for two or three generations; this ordination did not stop immediately. But they apparently backed away from it. Now there was a very interesting argument there. Once I collected a few examples of this: a claim such that the very existence of someone making it defeats it. You do not need to think he is right; it is enough that he makes the claim. There are a few such cases in Jewish law. Here Maharalbach said to them: Look, Maimonides says that with the agreement of all the sages of Israel, it is possible to renew ordination. Now, I do not agree to rely on this Maimonides. So now we have a dispute whether Maimonides is right or not, correct? Fine—but you think Maimonides is right, very good. But I too am one of the sages of Israel. So even according to your own position, you cannot renew ordination, because according to your view you need the agreement of all the sages of Israel. The sages of Jerusalem do not agree, and we too are part of the sages of Israel. So even if we did not persuade you that we are right, the very fact that we say otherwise means that you cannot ordain. There are several examples of this in Jewish law. The mere fact that you say something—whether or not you convinced me—undermines my claim. It is possible—never mind, I will not bring examples here. How could Maimonides, who said this, have imagined that all the sages of Israel would agree to such a thing?

[Speaker B] They are scattered, there is exile—how do you even reach…

[Rabbi Michael Abraham] If they agree, they agree, and if not, then not. Why does he need to think in advance that it will happen?

[Speaker B] No, how could such a reality ever exist? No, maybe it will not. Maybe it will not—so what?

[Rabbi Michael Abraham] But if it does, he says that if it does, then that agreement is valid. You know, we also discuss the law of the stubborn and rebellious son—how could that ever happen? It never was and never will be. Fine, but that is the law. If such a thing happens, that is the law. Ah, well, in the days of the Messiah it is indeed supposed to happen, but he will already have gathered the exiles, and then everything is fine. And even today we know that it is possible to create contact; there is communication between exiles even if they are far apart. There were connections even in the distant past. Agreement as such—even when they are perhaps close together, there is even less chance they will reach agreement than when they are far apart. Distance is not the problematic factor.

[Speaker B] When did ordination cease? What? When did ordination cease?

[Rabbi Michael Abraham] Ordination had already ceased in the period of the Tannaim, the regular ordination. Yehuda ben Bava ordained five students, and then it ended. But in practice there were ordained people even until the time of Maimonides. In Babylonia there were still ordained people. The question is exactly what the meaning of that ordination was; it is not entirely clear. There were ordained people in the Land of Israel; there were ordained people in Babylonia. Until the eleventh, even twelfth century, there were still ordained people. In Babylonia, and in the Land of Israel it ended a bit earlier. It seems to me that even in the period of Saadia Gaon there were still ordained people also in the Land of Israel. There was a controversy over the calendar in the time of Saadia Gaon. Who decides—do the sages of Egypt, the sages of Babylonia, or the sages of the Land of Israel? In any event, for our purposes, why am I bringing this up? It is just an interesting historical episode, but for our purposes, people are less familiar with this: in Maharalbach’s responsa there, he explains why the sages of Safed really wanted to renew ordination.

[Speaker G] The forced converts.

[Rabbi Michael Abraham] What? They wanted to flog those who had converted out, yes—among the forced converts, someone who had changed his religion—in order to atone for him. Meaning, after all, we have no court; we cannot decree lashes because we do not have ordained judges, right? Now those forced converts want to repent, so they are liable to lashes. If they are liable to lashes and were not flogged, then their repentance is not complete. They have not been released from excision. After all, those liable to excision who are flogged are released from their excision. If they incurred excision and were not flogged, then they are not released from their excision. In order to release them from their excision, they wanted to establish a court that would sentence them to lashes. So the question arises—yes, and there is a very interesting discussion around this issue—so Maharalbach asks: then what happened with everyone liable to excision from then on? Does repentance not help? What, because we have no Temple—really, not because we have no Temple, but because we have no ordained judges—so we have no solution for everyone liable to excision, and they will be cut off forever? That is not reasonable. Interesting question. So why not really—what is going on here? But never mind, that is his claim. But what does that mean, really? Fine—so flog him. Why do you need to renew ordination for that? Flog him—forty lashes. What difference does it make whether you renewed ordination or not? The suffering will atone for him and everything will be fine. If you are not a court, it is not lashes. That is exactly what we discussed here. The ruling of the court constitutes the obligation of lashes. If you just beat him, that is worth nothing. If he is liable to lashes and was flogged, then he is released from his excision and has repented. Yes, but a court can flog not according to the formal law—that is another whole topic—but I am saying that here their entire purpose was to establish a court so that it could impose lashes, because if you are not a court of ordained judges, then there is no punishment of lashes! The ruling of the court constitutes the obligation of punishment. And the assumption is that if it is not the formal punishment of lashes, but you are merely flogging him, then suffering by itself does not atone. He needs to be punished with the formal punishment of lashes by a court of ordained judges. Okay? Which in practice gives expression—perhaps even an extreme expression—to our conclusion here, that the ruling of the court actually constitutes the liability to punishment. Good. That is the end of his words.