Parashat Shoftim (5760)

With God’s help, on the eve of the holy Sabbath of Parashat Shoftim, 5760

The Metaphysical Foundation of the Laws of Testimony in Jewish Law

Our portion deals with the appointment of judges, and with the characteristics of a proper legal system. The judicial system

is a cornerstone of the world of Jewish law, and therefore Jewish law also strictly forbids recourse

to any other legal system. This is also one of the reasons for the severe conflicts surrounding the judicial system

in the State of Israel, which does not operate in accordance with the directives of Jewish law. We will illustrate one particular, symptomatic aspect of

the difference between these systems.

One of the rules that appears in our portion is: “By the testimony of two witnesses or three witnesses the condemned person shall be put to death,”

that is, a requirement that the truth be established (at least in certain cases) only on the basis of two witnesses.

At first glance, this is a requirement that concerns the level of verification required. The legal rule in Jewish law says: “Two are like a hundred,”

meaning that one hundred witnesses are no better than two (this rule is derived from the repetition in our portion: “two

witnesses or three witnesses”; see Rashi ad loc.). We see that according to Jewish law, two witnesses

constitute the maximal level of verification.

However, in Jewish law witnesses are not regarded only as an instrument for legal clarification. For example, the Torah disqualifies

relatives from testifying and judging in a case involving their relatives. At first glance, this law is derived from the concern that such witnesses

will not tell the truth and will slant their description of reality in favor of their relatives. However, as can be shown

from the Talmud, this conception is incorrect in Jewish law. Therefore the Shulchan Arukh writes in the section Choshen Mishpat

(33:10):

“The fact that the Torah disqualified the testimony of relatives is not because they are presumed to love one another, for they are disqualified

from testifying concerning him whether to his benefit or to his detriment, and even Moses and Aaron are not fit to testify for one another.

Rather, it is a Scriptural decree.”

We see that the disqualification of relatives from testifying regarding their relatives is not due to a concern that they will lie, but rather to a “Scriptural

decree,” that is, it is a law of the Torah that has no simple explanation within our conceptual framework.

The Shulchan Arukh brings two proofs for this assertion: 1. Relatives are disqualified from testifying even to the detriment

of their relatives, although in that direction there is no special concern that they will lie, and perhaps even the opposite: at first glance,

they are more credible than others when it comes to “incriminating” their relatives. 2. Moses our Teacher and his brother Aaron the Priest,

two supremely righteous men, regarding whom there is certainly not the slightest suspicion that they would lie even for the benefit of their relatives, are nevertheless disqualified

from testifying in a case involving their relatives.

From a civil-law perspective, one might have thought that even the extensions of the disqualification of relatives (even

to their detriment, and even with respect to Moses and Aaron) are ultimately intended to prevent false testimony. At first glance, these are

procedural rules whose basis indeed lies in a true and rational reason, but, as sometimes happens, their scope

is broader than their rationale, so that we do not fail in borderline cases. The Shulchan Arukh and Maimonides certainly did not understand it

that way. Their view is that in Jewish law, at the biblical level (= by Torah law), the rules always reflect something

real. Formal procedural safeguards are added solely by the Sages. Here we see something

symptomatic of the system of Jewish law: it cannot be understood as a merely legal system, even when

one is dealing with its ostensibly “legal” parts. The reason for this

is that at the foundation of Jewish law, even in its “legal” parts, there stands a deeper spiritual layer.

If testimony were only a tool for clarifying the truth, then we would accept the testimony of Moses

and Aaron, and it is clear that we would accept the testimony of relatives to the detriment of their relatives. It appears, then, that testimony

is assessed according to additional parameters, beyond the clarification of truth. It should be noted

that other rules of legal clarification in Jewish law have similar characteristics.

Perhaps the disqualification of relatives from testimony and adjudication can be understood as an extension of the rule: “A person cannot make

himself wicked.” A person’s testimony about himself cannot serve as a basis for a legal ruling concerning himself.[1] A person’s

relatives are, in a sense, an extension of his own self, and therefore their testimony, like his own testimony,

cannot serve as a basis for legal rulings to be applied to him.[2] Underlying the disqualification of relatives is

a metaphysical principle: a person cannot change himself from within himself. A change in something

can be brought about only by a factor external to it.[3] Just as “a prisoner cannot free himself from prison,”

so too a person cannot put himself into prison.

We have briefly seen a characteristic example of the difference between civil conceptions and the religious-legal conception of

a judicial system. The foundation of the difference (both the specific one underlying the disqualification of relatives, and the general one in the conception

of the judicial system as based upon a metaphysical layer) lies in the principle that a person needs an external factor

in order to change himself.

Have a peaceful Sabbath.

This may be consigned to respectful disposal in any synagogue or yeshiva. Comments and responses will be welcomed.

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[1] Variations of this rule exist in civil legal systems as well, but it appears

that their rationale there is different.

[2] The terminology in the Talmud seemingly points to the opposite conception: “A person

is related to himself, and a person cannot make

himself wicked.” At first glance, it seems that the disqualification of a person regarding himself is derived from the disqualification of relatives from testifying

about him, and not vice versa. For our purposes this makes no difference: both are derived from a single overarching principle, that judgments

imposed upon a person must be based on a factor external to him. It seems that the verse in the Torah from which

the disqualification of relatives is learned points to a conception of this kind: “Fathers

shall not be put to death because of sons”—that is, fathers by the testimony of sons.

[3] This point is very important in other contexts as well. For example, the prohibition against a person marrying

his relatives. According to what we have said, this appears to be a way

of creating development and diversity in his offspring. If the father and mother are from the same

family, the offspring cannot be essentially different, and the development of the family,

and of humanity as a whole, is prevented. This point also bears on the question of the source of moral values

(and others): is it human (from within us),

or divine (external to us, at least in certain respects). In my view, the correction

and moral transformation of a person also require an “Archimedean” point located outside him.

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