Deriving *Ta‘ama DeKra*: E. What Is “*Gezerat ha-Katuv*”? (Column 719)

With God’s help

Disclaimer: This post was translated from Hebrew using AI (ChatGPT 5 Thinking), so there may be inaccuracies or nuances lost. If something seems unclear, please refer to the Hebrew original or contact us for clarification.

In the previous columns we discussed reasons for the commandments (*ta‘amei ha-mitzvot*) and the notion of *gezerat ha-katuv* (“a decree of Scripture”) through the sugya of conspiring witnesses (*‘edim zomemim*). In the last column we concluded that although some early authorities define the law of hazamah (impeachment of witnesses) as a *gezerat ha-katuv*, it is nevertheless clear that they, too, must agree that, as a matter of fact, the first set of witnesses is lying and the second set is credible; otherwise the Torah could not possibly command us to punish the first set. From here we inferred that the fact that a given law is defined as a *gezerat ha-katuv* does not mean it has no rational basis; as we shall see below, it is not even correct to conclude that its rationale is inaccessible to us. In this column we return to the meaning of the term *gezerat ha-katuv* and its relationship to deriving *ta‘ama de-kra* (the reason implicit in a verse).

What is “*Gezerat ha-Katuv*”?

In the Enẓi (entry “Gezerat ha-Katuv”), the opening definition is: “A statute of the Torah, as opposed to reason.” And indeed this is the common understanding of the term *gezerat ha-katuv*: some laws flow from reason or from a grasp of reality, and some laws flow from a decree of the Torah that stands in opposition to, or at least disconnected from, reason and reality.

But what we have argued thus far suggests a different understanding:[1] the verse is what reveals to us the underlying reason and/or the underlying reality. After the verse teaches us the law of *edim zomemim*, we now know that, in truth, the first set is lying.[2]

Evidence from the Meiri

The Talmud at the beginning of the chapter “Ben Sorer u-Moreh” derives that the law applies only to sons, not to daughters. Both the Bavli and the Yerushalmi say that this is a *gezerat ha-katuv*. And yet several Rishonim provide a rationale for this law. For example, Rambam in Mishneh Torah, Laws of Rebels 7 (and so, too, the Chinukh) writes:

It is a decree of Scripture that only a wayward and rebellious son is stoned; a daughter is not judged by this law, for it is not her way to be drawn after eating and drinking as a man is. As it says, “a wayward and rebellious son”—and not a daughter, not a tumtum, and not an androgynos.

Admittedly, this does not necessarily prove our point, since it is Rambam’s way—and certainly the Chinukh’s—to offer reasons for commandments without claiming that these are the full and ultimate roots of the law.

But the Meiri there (beginning of the chapter, on the first mishnah, s.v. “ve-khen hu doresh”) writes as follows:

That is, a daughter is not judged at all by the law of a wayward and rebellious [child], for the Torah was particular only about one whose way is to be drawn after his desires and sink into them—and this is not [the case] with a daughter, but with a son. For all these matters, although they are a decree of Scripture, are nevertheless drawn to this point. And although at first glance some particulars may appear the opposite of these matters…

The Meiri writes that it is a *gezerat ha-katuv*, yet he adds that it has a rationale (that the Torah is concerned only with one whose way is to be drawn after his appetites). Unlike Rambam and the Chinukh, the Meiri immediately struggles with the following: if there is a rational explanation, why did the Talmuds call this a *gezerat ha-katuv*? From the very question it is clear that, at least for the Meiri, this reason is not merely an ex post “*ta‘ama de-kra*,” but the true and full rationale underlying the law that a daughter is not judged as a wayward and rebellious child. Hence he asks why the Talmuds refer to it as a decree of Scripture.

What is the Meiri’s answer? First he says that all these laws flow from this rationale (“all are drawn to this point”), i.e., it is a correct and true reason and the basis of all the laws of a wayward and rebellious son. In the next passage he apparently seeks to clarify why, nonetheless, this is called a *gezerat ha-katuv*. He explains that at first glance the opposite might seem reasonable: one could argue that the Torah should be more concerned with a daughter, or with one who steals from others and not from his parents (as he later cites from the Yerushalmi). In other words, there is a rationale here, but since other, opposing rationales could also be raised, the Torah writes that this particular rationale (focusing on one whose way is to be drawn after desires) is the decisive one and the basis of all these laws.

The conclusion is that, indeed, there is a need for a verse—to exclude opposite rationales—but in the end we understand that the true reason for this *gezerat ha-katuv* is that the Torah is concerned with one whose way is to be drawn after his desires. Thus it is a decree of Scripture without which we could not have ruled decisively in favor of this rationale, yet once it is written we do fully understand its reason, and everything flows from this rationale. That is precisely our thesis.

It is interesting to note that the author of Derashot ha-Ran, whose argument we cited in the previous column regarding the credibility of the second set of witnesses, asks (there) how the Gemara can call the credibility of the *mezimim* (the second set) a “novelty” (*chiddush*) if there is a rationale for it?[3] He answers that the credibility of the second set is indeed greater than that of the first, by virtue of the rationale we presented above. However, this difference is insufficient for us to rule on its basis—certainly not in capital cases. Therefore a verse is required to instruct us to rely decisively on the rationale that prefers the second set—even to the point of executing [on that basis]. This is the meaning of *gezerat ha-katuv* in the law of *edim zomemim*. This is essentially the Meiri’s foundation cited above, and we explained similarly regarding Rambam’s view. Below we shall see that the Derashot ha-Ran may mean something slightly different.

Several Types of *Gezerat ha-Katuv*

The Enẓi entry “Gezerat ha-Katuv” notes several types of such decrees. There is a *gezerat ha-katuv* that goes against human reason; a *gezerat ha-katuv* that conflicts with other principles in the Torah itself; and a *gezerat ha-katuv* that seems to contain an internal contradiction among its details (a kind of paradox), such as the Red Heifer that purifies the impure and defiles the pure—specifically, those engaged in purifying become impure.[4]

Up to this point, we understood the decree regarding the credibility of the *mezimim* as a *gezerat ha-katuv* of the first kind (contrary to human reason). From the Ran’s words it appears that he treats it as a *gezerat ha-katuv* of the second kind: a conflict with other principles of the Torah. He writes:

And do not be troubled by what our Sages said, that *edim zomemim* is a novelty—“what did you see that you rely on these, rely on those?”—meaning: it is not the Torah’s way to rely on what appears from the circumstances as to whether they are true or not, but only on the testimony of two witnesses. For the Torah gave credence to two [even if] they are lightweights, so long as they are not disqualified to testify, [making them equal] to Moshe and Shmuel, about whom we know they would not deviate in any matter, even in casual speech.

Therefore, to rely here more on the *mezimim* than on the *muzmamin* [the original witnesses], because the words of the *mezimim* appear more likely to be true—this is a novelty and a departure from the Torah’s general way elsewhere. Nonetheless the arguments indicate as we have written…

The Ran asserts that, generally, the Torah does not allow us to rely on probabilistic assessments of reality—certainly not in capital cases (where estimates and presumptions are not accepted; see Rambam, Sanhedrin chs. 20 and 24 regarding the difference between monetary and capital law).

Thus, it may be that the rationale for the credibility of the *mezimim* is even excellent and complete. We have an excellent reason why the latter witnesses are credible, but in capital cases the Torah does not allow reliance on rationales, however good. The issue, then, is not that the rationale is illogical or unintelligible; the issue is incompatibility with the Torah’s rules of evidence. According to the Ran, this is a *gezerat ha-katuv* of the second kind.

This differs slightly from what we proposed earlier. The earlier direction—akin to the Meiri—saw the verse as strengthening a rationale that could be doubted or opposed by other rationales. Here, we are not concerned with doubts about the rationale itself, but with the fact that, in general, the Torah does not allow reliance on rationales, however sound, in capital cases. The verse is needed to instruct us to rely on a rationale that may be perfectly sound on its own—not to strengthen the rationale itself.

In these two types of *gezerat ha-katuv*, the verse plays a different role. In the first type, the verse reveals that the rationale is correct and decisive and that we may rely upon it. In the second type, the verse reveals that in this context we may rely on rationales at all (in our example). More generally, in this type of *gezerat ha-katuv* the Torah instructs us that we may deviate from the usual halakhic framework it sets elsewhere. In any case, in neither scenario does the classification as a decree of Scripture negate the presence of a rationale; sometimes there is even a full and compelling rationale, as we have seen.

“You Have in It Only Its Novelty”

We now come to the practical implications. The primary implication of classifying a given law as a *gezerat ha-katuv* is that we do not treat it in terms of ordinary human reason.[5] In the case of a decree of Scripture, we do not argue on the rational plane about what is logically appropriate; rather, we address it on the interpretive plane: what does the Torah command us to do? The parameters of the law are set by what is written in the verses, not by our reasoning. The classic expression of this approach is the rule: “You have in it only its novelty.” That is, we tend to limit the scope of application of a *gezerat ha-katuv* as much as possible. Wherever unnecessary, we prefer to interpret according to ordinary human reason; only where unavoidable do we say that the Torah innovated that we must deviate from our reason.

In the case of *edim zomemim*, Rava says that the disqualification for testimony—which is a *gezerat ha-katuv*—applies only from the time of hazamah (impeachment). In other words, we limit the disqualification in a way that runs counter to ordinary reason. If, indeed, the witnesses were truly liars, logic would require applying the disqualification from the time they testified, since the lie occurred then and from then on they are wicked. But since their being classified as wicked stems from a decree of Scripture and not from reason, we apply it from the minimal time possible by interpretation.[6]

However, from our discussion so far it emerges that even a law that is a *gezerat ha-katuv* has a rationale behind it. The conspiring witnesses really are liars, and there are good reasons for that. If so, why should we minimize the scope of the law to the bare minimum? If the law is intelligible and has a factual basis, then we should apply it wherever the underlying rationale is relevant; in our case, we should disqualify them from the time they testified.

Indeed, as we saw, at least according to Rambam and the Ran, Abaye also holds that *edim zomemim* is a novelty, yet he applies the disqualification retroactively. Presumably he does so for precisely this reason: it is a novelty that nonetheless has a rationale; therefore there is no basis for minimizing it.

But the difficulty remains regarding Rava. From the premise that this is a novel law (a *gezerat ha-katuv*), Rava infers that we must minimize its scope. Is he unaware of the rationale underlying this law? Does he think we execute witnesses with no rationale? In other words, all the difficulties we have raised thus far reemerge with respect to Rava’s position.

Moreover, Abaye as well—and certainly the halakhic decisors who rule like him—does not deny the general rule that we should minimize the scope of laws derived from *gezerat ha-katuv*. It is reasonable that all agree to the rule “you have in it only its novelty,” which appears explicitly or implicitly in many places in the rabbinic corpus (see below). Is it the case that wherever this rule is applied there is no rationale behind the decree? That cannot be so in Rava’s discussion of executing *edim zomemim*, for all the earlier difficulties would arise again.

Applying “You Have in It Only Its Novelty” to the Two Types of *Gezerat ha-Katuv*

We have distinguished two types of *gezerat ha-katuv*. In the first type—where the decree runs counter to reason—the verse’s role is to sharpen and strengthen the rationale and to exclude contrary rationales. Ultimately, however, the rationale is weak on its own; therefore, even after the decree is given, there remains a novelty. In such a case it is reasonable to limit the scope of the novel law to the bare minimum.

By contrast, in a *gezerat ha-katuv* where the fundamental issue is its conflict with the general rules of Halakhah, while the rationale is sound—such as in the Ran’s understanding of *edim zomemim*—there is no necessity to minimize the scope to the bare minimum.

One could even argue the reverse: specifically in the second case there is room to minimize the departure from the usual halakhic principles as much as possible, whereas when the verse teaches us a rationale there is no point in minimizing the law’s scope—if the rationale is valid, it is valid across all cases equally.

In any event, although it is hard to formulate hard-and-fast rules here, it is clear that various considerations can at times lead us to minimize the law’s scope and at other times lead us to apply it wherever, in our view, the underlying rationale holds (as we saw in the Meiri, who seems quite confident in the rationale behind “son, not daughter,” and therefore says “everything is drawn from it.” It would seem the Meiri would not be inclined to minimize the scope of that law).

Returning now to *edim zomemim*: we saw that Rava minimizes the scope of their disqualification as much as possible, and it appears he understands this decree as a novelty whose underlying rationale is still doubtful (even though it cannot be wholly without rationale, since we execute on its basis, etc.). In such a case, we minimize the novelty as much as possible. Abaye, by contrast, agrees that it is a novelty (at least per Rambam), but does not take that as a reason to minimize the scope of the disqualification: he evidently places full confidence in the rationale behind this law.

What Does This Have to Do with the Hermeneutic Rule “Something That Was in a General Category and Emerged to Be Judged by a New Matter”?

We have focused on the principle “you have in it only its novelty,” which sets our stance toward *gezerot ha-katuv*. I found this principle (in similar formulations) in eleven places in the rabbinic corpus (per the Bar-Ilan Responsa Project): Bavli Shevuot 25b, Temurah 13b; Yerushalmi Pe’ah 1:4, Terumot 7:1, Pesachim 5:2, Sotah 3:1 and 9:5, Ketubot 3:1, Nazir 1:3; and Bamidbar Rabbah 10 (s.v. “ko ve-henif otam”) and there (s.v. “y kol yemei”).

In ten of the eleven instances, this expression (not always in the exact same words) relates to the hermeneutic rule “something that was in a general category and emerged to be judged by a new matter.” It follows that this rule is the source of the restrictive stance toward a *gezerat ha-katuv*. That is, “you have in it only its novelty” is a consequence of the rule: “Something that was in a general category and emerged to be judged by a new matter—you may not return it to its general category until Scripture explicitly returns it.”

Usually this rule works in the opposite direction: it prevents us from re-including the novelty in the general category—it preserves the exception’s distinctiveness. Here, however, we encounter it used in a sense that leads to restriction: minimizing the exception as much as possible.

Note that in these cases we are speaking specifically about something that departed from a general category—i.e., a *gezerat ha-katuv* of the second type (a decree that contradicts principles operating in similar areas of Halakhah—the general category from which it departed). By contrast, a decree that runs counter to reason did not depart from any general category, so this hermeneutic rule would seemingly not apply. Yet we see that the stance of “you have in it only its novelty” is applied also to such decrees; evidently, the rule can be extended to them as well.

Earlier we floated two possibilities regarding which of the two types of *gezerat ha-katuv* warrants applying “you have in it only its novelty.” We suggested it might be relevant specifically to the first type, and we also offered considerations pointing to its relevance specifically to the second type. The present consideration seems to support the claim that “you have in it only its novelty” mainly governs cases of the second type, since it concerns something that departed from the general category. It is possible that originally the rule was applied to decrees of that type and was later extended to other decrees. This requires separate treatment by surveying all instances of the rule in Hazal; this is not the place.

Different Applications of the Principle of Minimizing the Scope of a *Gezerat ha-Katuv*

We have seen that the principle “you have in it only its novelty” can be applied in different ways to different decrees. Now we will see a more surprising phenomenon: there are cases where the very same posek, in some contexts, minimizes the scope of a given law to the utmost, while in other contexts he himself applies that same law in a scope broader than the minimal necessity.

To consider this with respect to *edim zomemim*, we must return to the Lechem Mishneh cited in the previous column, regarding the dispute between the Tur and Rambam. At first glance, it seems they disagree about whether the disqualification of *edim zomemim* according to Abaye is a novelty (Rambam) or has a rationale (the Tur). The Lechem Mishneh indeed reads the dispute that way. He ties to this their further disagreement about a case that includes both contradiction and hazamah between the two sets. Rambam, Laws of Testimony 18:2, writes:

How so? Witnesses came and said, “We saw that this man killed a person,” or “borrowed a hundred from so-and-so,” on such-and-such a day and in such-and-such a place. After they testified and were examined, two others came and said, “On that day and in that place we were with you and with these witnesses all day, and it is not true that this one killed that one, and it is not true that this one lent to that one”—this is a contradiction. Likewise, if they said to them, “How can you testify thus? This killer—or the victim, or the borrower, or the lender—was with us on that day in another city,” this is contradicted testimony, as if they said, “This one did not kill that one,” or “This one did not lend to that one,” since the person was with us and this did not happen. And so in all similar cases. But if they said to them, “We do not know whether this one killed that one on that day in Jerusalem as you say, or whether he did not kill him; but we testify that you yourselves were with us on that day in Babylonia”—these are *zomemim* and are executed or pay, for the witnesses who made them *zomemim* did not address the substance of the original testimony at all, whether true or false.

Rambam goes out of his way to stress repeatedly that hazamah must appear on its own, without contradiction. It seems that in his view, a case with both hazamah and contradiction counts as contradiction, not hazamah. By contrast, as the Lechem Mishneh notes, the Tur clearly disagrees and treats such a case as full hazamah.

As noted, the Lechem Mishneh explains that they follow their general approaches. The Tur understands the preference for the latter witnesses over the first as a reasonable rationale, and therefore he will say the same even in a case of hazamah together with contradiction, for the rationale that the first set are parties to the case when they speak about themselves applies here as well. Rambam, by contrast, who treats the credibility of the second set as a decree of Scripture, rules “you have in it only its novelty.” Therefore, the latter set is preferred only in a pure case of hazamah—certainly what the verse speaks of—not in any other scenario. He minimizes the law’s scope, as one should do with a *gezerat ha-katuv*.

On the other hand, it is clear that Rambam rules like Abaye and not like Rava, and according to him—even for Abaye—this is a special novelty, yet the disqualification applies retroactively and not only from the time of hazamah, as Rava holds. Here, then, Rambam does not apply “you have in it only its novelty (from the time of its novelty).” The Tur, for his part, is consistent here as well: he rules like Abaye that it applies retroactively because he holds it is not a novelty but a rationale.

Another implication appears in the sugya of hazamah not in their presence.[7] In Ketubot 20b, if the second set renders the first *zomemim* not in their presence, there is no hazamah, only contradiction. The commentators disagree about the status of such a case: Rashi there implies that it is still not a standard “two versus two.” Even where hazamah is not carried out in their presence and “as you conspired to do” is not applied to them, the first set’s testimony is certainly nullified (and not merely treated as two-against-two). So writes the Rivash (Responsa §266; cited in Beit Yosef, Choshen Mishpat §38). The Rivash further innovates that the first witnesses are themselves disqualified in such a case (and not only that their testimony is dismissed). Many dispute this point (see Shach CM 38:2; and Noda Bi-Yehuda, EH §72).

What these positions share is that even with hazamah not in their presence we have not reverted to an ordinary “two-against-two.” It seems their view follows the Tur (and indeed the Rivash’s rationale matches the Tur), that there is a rationale underlying the preference for the latter witnesses; since that rationale holds even when hazamah is not in their presence (the first set is still testifying about themselves and thus are like parties to the case), the latter remain credible even then.

But Rambam (Laws of Testimony 18:5) states explicitly that when hazamah is not in their presence, this is a standard case of contradiction; their testimony is invalidated only out of doubt. His words:

One renders witnesses *zomemim* only in their presence, and one contradicts witnesses not in their presence; witnesses rendered *zomemim* not in their presence are considered contradicted. Therefore, if the witnesses who rendered them *zomemim* died before they testified in their presence—there is no testimony here, for the sets have contradicted one another.

It is explicit in Rambam that hazamah not in their presence is an ordinary case of contradiction. Seemingly, Rambam is consistent: hazamah is a novelty, and “you have in it only its novelty.” Therefore, wherever the novelty does not clearly apply, we treat it as mere contradiction.

What does the Tur say on this? Examining his language in §38, it appears he, too, sides with Rambam and treats such a case as ordinary contradiction. If so, here the Tur departs from his own general approach and does not apply the underlying rationale; he treats it as contradiction.

What This Means: Mixed Approaches

The upshot is that there are inconsistencies between the Tur and Rambam about whether they apply “you have in it only its novelty” to the decree regarding *edim zomemim*. Here is a summary table (exceptions within each approach are marked with question marks):

The Tur generally adopts the approach that fits the existence of a rationale for preferring the latter witnesses and therefore does not apply “you have in it only its novelty.” The exception is hazamah not in their presence. Rambam, by contrast, usually follows the approach that there is no rationale and this is a decree of Scripture, hence he applies “you have in it only its novelty.” His exception is that hazamah applies retroactively.

Common to both approaches is that we see a mixed application of “you have in it only its novelty”—both for the Tur and for Rambam. We noted above that various considerations can push us either to minimize a decree’s scope or to apply it wherever the underlying rationale holds; here we see that with respect to the very same decree there are aspects where we minimize the scope and, at the same time, aspects where we do not.

How does such a situation arise? If the decree at hand expresses a clear rationale, we should seemingly ignore “you have in it only its novelty” across the board. Conversely, if there is no clear rationale—or it conflicts with general halakhic principles—we should minimize its scope across the board. How can there be mixed stances? Does the same decree have stronger and weaker rationales, each governing a different aspect?[8]

Beyond this, the very existence of disputes about how to treat decrees of Scripture shows that the decisors’ reasoning plays a role in shaping the law even in areas rooted in *gezerat ha-katuv*. This itself hints at the presence of rational dimensions even in the world of decrees of Scripture.

In the following sections we will suggest possible explanations for each approach. Our goal is merely to make room in the ear for the possibility of such “mixed” treatments. The illustrations will highlight the rich potential of ways to approach laws that are ostensibly “non-rational,” i.e., decrees of Scripture, and how the posek’s reasoning has a place even in deciding such issues.

A Possible Explanation of Rambam’s Approach

As noted, Rambam holds that the credibility of the latter witnesses is a decree of Scripture. Yet, as we have seen, it cannot be that in his view there is no rationale behind this decree; otherwise we could not execute *zomemim*. The question is: what is the status of the rationale, and how does it affect application of “you have in it only its novelty”?

We have seen that Rambam is consistent: most implications show that he treats the latter set’s credibility as a decree of Scripture. If so, the rationale is not very strong to him—or at least not sufficiently intelligible to shape the law on its basis. For this reason he presents the law as a decree and therefore applies “you have in it only its novelty” almost across the board.

We still must explain why, regarding the start time of the disqualification, he follows Abaye that it applies retroactively. In other words: how, according to Rambam, does Abaye differ from Rava?

A first hint is that Rava’s phrasing here is not the usual rabbinic phrase “you have in it only its novelty” (or similar).[9] Rava uses slightly different words: “you have in it only from the time of its novelty.” This seems a somewhat different principle; it is not the standard “you have in it only its novelty.”

The explanation is that Abaye contends: granted, this is a novelty; therefore we should minimize interpretively (we said that decrees are handled primarily with interpretive tools, less with purely rational ones) the scope of the novelty as much as possible. We should apply it only in those scenarios that are clearly those the Torah innovated. This is the core interpretive task with respect to a decree: to identify the scenarios about which it is clear the Torah is speaking.

However, with respect to the timeline, minimizing or expanding is not an interpretive question. No one claims, textually, that the Torah says the disqualification it speaks of applies only from the time of hazamah onward. The Torah innovated that the first set are liars, and once that is innovated there is no reason to distinguish between the time of testimony and the time of hazamah. Here the existence of a rationale plays a role: Rambam, too, must agree that there is a rationale—that in reality the first set indeed lied (and not that we execute them despite their having told the truth, as in a naïve conception of a decree). If so, there is no interpretive reason to limit the disqualification to the period from hazamah onward. If in fact they lied, then from the time they testified they are liars and disqualified. This is precisely Abaye’s claim against Rava, as understood by Rambam. Hence Rambam, who rules like Abaye, disqualifies them retroactively. In short: a non-interpretive limitation cannot be applied to a decree that does, in fact, rest on a rationale.

This consideration is so forceful that it is difficult to understand why Rava himself does not agree. Why, in his view, can we distinguish between the times? Clearly, Rava takes an extra step: not an interpretive move but a legal constriction. He rules that although the Torah determined that the first set are liars, we nevertheless do not apply that to their disqualification except from the time of hazamah onward. This is an artificial limitation, and it is not entirely clear how it can be made. Thus Rambam’s ruling like Abaye is straightforward—so much so that it is, in fact, Rava’s view that requires explanation.[10]

A Possible Explanation of the Tur’s Approach

Let us now try to understand the Tur. His starting point is that there is a sound rationale underlying the disqualification of the first set; therefore, although there is a decree, he chooses to present the law as grounded in rationale (unlike Rambam).

As the table shows, in most respects the Tur follows his approach and rules in line with that rationale: namely, that the first set is not credible because they are parties to a case about themselves. The exception is hazamah not in their presence, where the Tur departs from his usual approach and treats it as ordinary contradiction. In such a case, it seems his rationale would still apply—and yet he chooses to minimize the scope of the novelty. Why the departure?

To understand this, we must return to the sugya in Ketubot. Why, indeed, does the Gemara assume that hazamah must be in their presence? Rashi (20a s.v. “ve-k’shem”) explains:

“Just as one does not render witnesses *zomemim* except in their presence”—for they come in order to obligate them so as to punish them, either capital or monetary, and the Torah said, “The owner of the ox shall be present at his trial” (Bava Kamma 112b).

Rashi explains that the requirement that hazamah be in their presence stems from the general rule that when testimony is accepted about someone, he must be present.

Now we can understand the Tur well. We saw that his rationale is that when the second set comes, the subject of the hearing becomes the first set (and not only the original event—which even if merely contradicted can no longer be decided), thus making them parties to the case. Those who disagree would apparently argue that since the first set’s testimony was given about an event, then even if it is later used to rule on the status of those witnesses themselves, it is still not testimony about parties to the case.

If so, specifically the Tur, who sees this as testimony about them as parties, must require that hazamah be in their presence. If hazamah is not in their presence, then no testimony was ever accepted about them as parties; there is only contradiction regarding the event. Therefore, according to the Tur, if hazamah is not in their presence, we are left with mere contradiction about the event. This is not a formal constriction of the decree’s scope but the opposite: it is a direct consequence of his own rationale.

We can now see why he treats such a case as ordinary contradiction: not because of a formal minimization but because his rationale truly does not apply there. The conclusion is that the Tur and Rambam ostensibly reach the same ruling but for different reasons: the Tur as an application of his rationale; Rambam as a restriction of the decree’s scope—“you have in it only its novelty”—regarding the credibility of the second set.

Summary

In these columns we have dealt with the concept of *gezerat ha-katuv*. We identified three principal types: laws that conflict with reason; laws that conflict with other halakhic principles; and laws that contain internal tensions among their details. We examined *gezerot ha-katuv* through the case of disqualifying *edim zomemim*. Rambam appears to classify hazamah under the first type, whereas the author of Derashot ha-Ran puts it under the second. The third type also appears in this context in the rule “if they executed, the *zomemim* are not executed,” which seems to be an internal contradiction within the hazamah laws.

In general, we saw that the early authorities treat hazamah as a decree of Scripture (already the Gemara does so, at least in Rava), yet we presented several reasons that clearly indicate that, despite this, there must also be good, reasoned grounds behind such a law. As we explained, it is morally and interpretively impossible that the Torah would command executing people as liars when they told the truth.

We distinguished different situations of decrees of Scripture and saw that each can lead to a different application of the principle “you have in it only its novelty” (which itself, as we saw, is apparently a particular application of the hermeneutic rule “something that emerged to be judged by a new matter”). Sometimes we minimize the scope of the novel law; sometimes we apply it across the entire domain where its underlying rationale is relevant. Regarding *edim zomemim*, we saw that the Rishonim shape the law in a mixed fashion: some aspects are shaped by “you have in it only its novelty,” others as if there were an ordinary rationale. There is a formal constriction that applies only to decrees without rationale; for decrees with rationale, constriction will be purely interpretive.

As for hazamah itself, the conclusion is that it is not a *gezerat ha-katuv* in the sense of a law with no reason (*hilcheta belo ta‘ama*). But the position of those later authorities who assume the opposite requires reflection: what did they think? How can they reconcile themselves to executing an innocent person in such an absurd fashion? Is it possible that they, too, really mean *gezerat ha-katuv* in the sense proposed here (i.e., a law innovated by a verse but with a rationale at its foundation)? Their words do not appear to suggest this, for if they saw a rationale here, it is not clear why they would define it as a decree of Scripture. Moreover, they remark that even the Tur must concede that it is a decree, but they do not note that surely Rambam must concede that there is a rationale.

I would add that it is hard to believe we would find such an approach in an actual court expected to rule in practice. Would judges execute someone innocent and soothe themselves by saying “it is a decree of Scripture”? There is almost no doubt that for one reason or another (at least by applying “suspicion of a fraudulent case”) they would find a way to avoid it. If the judges were not convinced that the first set truly lied, they would not execute them. Is there a gap here between theoretical learning in the study hall and practical ruling in court (cf. “Had we been on the Sanhedrin, no one would ever be executed”—see end of Makkot, and in column 351)? Is this symptomatic of theoretical study in general? Perhaps this is as it should be (a similar difference exists today between academic “legal scholars” and practicing jurists): the theoreticians of Halakhah articulate the decree and its implications, while judges apply it with due consideration for common sense and reality.

Back to *Ta‘ama de-Kra*: Several Reflections

In the first columns of this series we discussed deriving *ta‘ama de-kra*. Let me now revisit our conclusions about *gezerat ha-katuv* in light of what we saw there.

There we saw that when we have a natural sense of a law’s reason (System-1 intuition), we may use it to determine its parameters. We do not derive *ta‘ama de-kra* when we do not have such a sense and require conceptualization and System-2 reasoning. There are cases where we can conceptualize our direct intuitions—this is certainly not out of bounds. We do not derive *ta‘ama de-kra* only where we lack any direct intuition and instead propose a technical-formal explanation (as with taking a widow’s pledge, where R. Shimon proposes that the reason is that it gives her a bad name among the neighbors). In such places we try to establish the parameters without recourse to the reason: the “what” without the “why.” That can be done only with textual-interpretive considerations, not with purposive interpretation.

Where does *gezerat ha-katuv* fit? Evidently, it concerns cases where we lack a direct understanding of the law’s reason (either because of reason, or because of conflicting general halakhic principles, as we have seen), but once the law is stated we can understand its reason. That is, even after we articulate the reason, our understanding is insufficient on its own to explain it; we need the verse in order to apply the rationale. In the sugya of *edim zomemim*, we see that the Rishonim derive many halakhic conclusions from the law’s reason and parameters; different conceptions lead to different halakhic outcomes. In other words, we are, in effect, even deriving *ta‘ama de-kra* for laws that are decrees of Scripture—surprising, if we take the decree to be a law without a reason. But we saw that it is not entirely so. Sometimes the considerations are conceptual definitions or technical constrictions of scope; neither kind constitutes deriving *ta‘ama de-kra*. In fact, it is specifically Rava’s position that threatens the concept of *gezerat ha-katuv*, since he constricts the law along the time axis—and, as we have seen, this is not grounded in textual or conceptual considerations.

[1] I saw this cited in the name of R. Gedaliah Nadler, in Be-Torato shel R. Gedaliah, by R. Yitzhak Shilat, Yeshivat Shilat, Ma’aleh Adumim 2004. See there the chapter “Sources of Halakhah,” §3, and the chapter “Following the Majority,” §6, etc. As is known, this is a foundation of R. G.N.’s thought.

[2] In contrast to testimony by relatives, where even according to the conclusion the testimony is not false; there is merely a prohibition against relying on it and issuing judgment on its basis. There, too, there is likely a good reason for the prohibition even if, in fact, the testimony is true. As noted above, in the case of *edim zomemim* the Torah commands executing the witnesses as liars; therefore it is clear the Torah treats them as liars and does not suffice with imposing a legal ban on accepting their testimony.

[3] It follows from his words that Abaye does not dispute that this is a novelty, as Rambam holds (and not as the Lechem Mishneh reads the Tur).

[4] The decree to carry out “as he schemed” only when the sentence has not yet been executed (“as he schemed”—and not “as he did”; or, “if they executed, the *zomemim* are not executed”) is likely a decree of this kind.

[5] The Enẓi, entry “Gezerat ha-Katuv,” writes:

In a matter that is a decree of Scripture, when we are in doubt about some detail of the law, we do not rule on the basis of reason and rationale…

[6] It may be that a consideration of loss to purchasers (*pesida de-lokuchot*) joins here; without it we might have followed Abaye with respect to them. On this reading, the first approach to Rava’s view agrees with the second. The rule “you have in it only from the time of its novelty” is a tool to reach more reasonable results. Likewise, the consideration of loss to purchasers uproots a Torah law out of concern for purchasers while ignoring the loss to the other side. Perhaps this, too, rests on the notion that there is no real concern of lying here, only a decree. If so, then the second approach also agrees with the first, and the practical differences cited in the sugya require explanation; this is not the place.

[7] See R. Shmuel Rozovsky in the sources cited above.

[8] Note that if we were to say that regarding implementing the penalty of “as he schemed” a certain posek acts one way, and regarding disqualification for testimony he acts another—we could understand that. But all the aspects discussed here concern disqualification for testimony, which ostensibly rests on the same rationale; only the implications differ.

[9] See above in the discussion of the hermeneutic rule “something that emerged to be judged by a new matter.”

[10] Perhaps the key lies in the earlier note that there may be an external consideration—such as loss to purchasers (even if it seems to be a Torah-level consideration)—that leads Rava to constrict the novelty of the *zomemim* disqualification; only by virtue of that does he adopt his artificial constriction. This is not the place to elaborate.