What Is a 'Scriptural Decree'?[1] (An Analysis of the Law of Conspiring Witnesses)

With God's help

Even Sheleimah VeTzedek – 5771

In honor of my teacher and friend Rabbi Shlomo Marcus, may he live long

Daphna and I came to know Rabbi Shlomo and Anna, of blessed memory, in Yeruham, when they were already well into old age. We were surprised to encounter a fresh and energetic couple, engaged in artistic, intellectual, and other forms of creativity, and through this we were able to understand what 'being eighty and still vigorous' means. To meet a person who tells of people and experiences from the beginning of the twentieth century, in Israel and abroad, from his family and beyond it, and lives all of these now with intensity and clarity, while both his feet stand firmly in the contemporary world, definitely gave us a broad perspective, beyond space and time. It was an illuminating experience for us to meet them again and again, and we learned a great deal from them.

More than anything else, Shlomo has been engaged—and still is, may he live long and well—in repairing the world. Both the world around him and that which is farther away from him ('world,' in both the literal and the full sense). Everything that happens around him is part of him. Everything touches his heart; quite a bit of it angers and upsets him, yet it does not end in anger and paralysis, but also leads to action, clarification, and attempts to repair.

Many of our meetings revolved around questions of Judaism and of thought in general (like Shlomo, I too see no difference between the two), but at the same time, for Shlomo an inseparable part of every such inquiry was translating all of this into practical world-repair. In this sense there is in him a very Jewish blend (as the Sages said: study is great, for it leads to action), despite the universality of his fields of interest and thought, and of the sources from which he draws.

Some of our conversations dealt with the understanding of various laws, and what they tell us about the Torah's conception of reality and of morality and values. At times I thought it would be difficult to convey to him the notion that there are laws that have no reason (at least none known to us), and at times they even seem to contradict moral principles. To my surprise, I discovered that Shlomo lives with a very deep consciousness of the transcendence of the Creator, and of our inability—as belonging to the 'created world,' in his formulation—to understand the Creator.

And yet, with respect to the Torah of the Holy One, blessed be He (if not with respect to Him Himself), the approach is nonetheless supposed to be different. The Torah is the will of the Holy One, blessed be He, and that will appears in our world. As such, it is generally supposed to be interpreted on the basis of our moral values, and on the basis of our human understandings and assumptions. Our discussions were generally conducted from this point of departure.

I therefore found it fitting to dedicate to the volume presented to him an article that deals with this tension between the understandable and the incomprehensible in the Torah, between Jewish law and its reasons and roots. This is done here through an inquiry into the concept of a 'scriptural decree.' The inquiry is conducted with halakhic and meta-halakhic tools, and almost not at all through study of the literature of Jewish thought and the reasons for the commandments, since to the best of my sense, Jewish law is the core and the 'hard kernel' of the Jewish worldview, and any conception of the commandments and their reasons that is detached from Jewish law has no substance (we discussed this methodological assumption quite a bit as well).

I want to wish all of us that Rabbi Shlomo merit many more long years—not less for our sake than for his—out of health and contentment. May he continue in the effort to understand and to repair, to learn and to teach, to preserve and to do.

With great esteem

Mikhi (and Daphna)

A. General Introduction

Introduction

The concept of a 'scriptural decree' already appears in the literature of the Sages, and it continues to be used to this day. In its accepted sense, this term expresses an attitude toward a law that is not understood, and, as we shall see, it also contains within it ways of dealing with such laws. There are different approaches to scriptural decrees and their implications, especially with respect to the extent to which they appear in Jewish law. In this article we will deal with the characterization of a 'scriptural decree' as a legal topic, the meaning of the concept 'scriptural decree,' and the ways of dealing with it.

The point of departure: two principled approaches to the reasons for commandments and laws

A possible point of departure for this matter is found in Maimonides, Guide of the Perplexed, III:31, who writes as follows:

There are among people some who find it burdensome to assign a reason to any commandment among the commandments, and it is best in their eyes that neither a commandment nor a prohibition have any intelligible meaning at all. What brings them to this is a sickness they find in their souls, one they cannot articulate and do not know how to express. It is this: they think that if these laws were beneficial in this world and for this reason we were commanded concerning them, then they would seem to have come from the thought and reflection of an intelligent being. But if there were a matter with no intelligible meaning at all and which brought no benefit, then it would undoubtedly be from God, for human thought would not bring forth such a thing. As though, for these weak-minded people, man were more perfect than his Maker: for man says and does what serves some purpose, whereas God, according to them, does not do so, but commands us to do what does not benefit us and forbids us from doing what would not harm us if done. Far be this from Him, utterly far be it! The matter is the reverse. The whole purpose is to benefit us, as He explained in His statement, 'for our good always, to keep us alive, as it is this day'; and He said, 'who, when they hear all these statutes, will say: surely this great nation is a wise and understanding people.' He has thus made clear that even all the statutes will show all nations that they embody wisdom and understanding. For if there were something whose reason was unknown, which brought no benefit and warded off no harm, why would one who believes in it or practices it be called wise and understanding and of great worth, and why would the nations marvel at this? Rather the matter is undoubtedly as we have said: each of these 613 commandments serves either to impart a true belief, remove a false belief, establish a just social order, remove wrongdoing, train in good character traits, or warn against bad character traits. Everything depends on three matters: beliefs, character traits, and the practices of political society. We need not count verbal statements separately, because the statements the Torah urged us to say or warned us against saying are either included among civic actions, or meant to teach a true belief, or to teach character traits. Therefore these three categories suffice for us in giving a reason for every commandment.

As emerges from the words of Maimonides, there are those who would like to see all the laws of the Torah as scriptural decrees—that is, as matters without a reason, or whose reason is beyond our understanding. In their eyes, this is the glory of the Giver of the Torah, whose ways are higher than our ways. By contrast, there are those who specifically aspire to ground all the laws of the Torah, as far as possible, on the foundations of reason and human rectitude. And in their view, precisely in this lies the glory of the Giver of the Torah: that His laws are righteous and upright. Maimonides himself maintains that all the commandments have good reasons, whether in the realm of beliefs, character traits, or social-political governance.

The two approaches described by Maimonides have further implications, which may touch the very meaning of the concept 'scriptural decree.' Some would say that a 'scriptural decree' is necessarily a law without a reason—either there is no reason at all, or the reason cannot be grasped by us. These apparently belong to the first school. By contrast, adherents of the second school can argue that there are indeed scriptural decrees, but they too have reasons, and we can even understand them, and presumably should also strive to do so. According to the second approach, the question arises: what was the need for this law to be written explicitly in a verse, if it could also have been derived by reasoning? Presumably the need arises because the reasoning alone would not have sufficed to establish the law (either because it is not logically necessary, or because the quantitative threshold is not unambiguous, or because there are conflicting reasons, and the like).

Down to our own day, the dispute continues over how, and to what extent, one should relate to scriptural decrees. Some see their existence as testimony to the loftiness of the Creator's ways and view all the laws of the Torah as such, while others strive to minimize their number as much as possible and to render them more intelligible. This dispute finds expression in the style of study, and even in the attitude to the service of God in general.[2]

All this has been by way of introduction. In this article we will not deal with the ideology that surrounds the different uses of the term 'scriptural decree,' but with the meaning of that term itself. We will not do so from an ideological-philosophical examination, but from an empirical angle. We will begin with an examination of several aspects of the severe topic of conspiring witnesses, and from that discussion broaden the point of view toward the concept of 'scriptural decree' in general. From here, one can in principle return and think about the ideologies that underlie the different conceptions—a matter which, as noted, will not concern us here.

We should note that, following the points to be presented here, what is still required is a careful empirical examination of the occurrences of this term in the literature of the Sages and in the commentators throughout the generations. Only then will it perhaps be possible to formulate more sharply the ideological worldview as well—both with respect to the proper meaning of this concept and with respect to the appropriate frequency of its use.

B. Is hazama a 'scriptural decree'?

Contradiction and hazama

As is well known, the Torah contains two kinds of collision between groups of witnesses: contradiction—where the two groups testify in opposite ways about some event; and hazama—where one group testifies about a certain event, and a second group testifies that the first group was not even at the place of the event.

And this is the language of the verses (Deut. 19:16–21):

If an unjust witness rise up against a man to testify against him with wrongdoing, then the two men who have the dispute shall stand before the Lord, before the priests and the judges who shall be in those days. And the judges shall inquire diligently; and behold, if the witness is a false witness, and has testified falsely against his brother, then you shall do to him as he had plotted to do to his brother; so you shall remove the evil from your midst. And those who remain shall hear and fear, and shall henceforth no longer do any such evil in your midst. And your eye shall not pity: life for life, eye for eye, tooth for tooth, hand for hand, foot for foot.

The Torah deals with a situation in which lying witnesses are discovered in court. In such a case, the court is commanded to do to the lying witnesses exactly what they themselves plotted to do to the litigant: if they plotted to obligate him financially, they themselves must pay. If they plotted to have him flogged, or put to death, they themselves are punished in that very same way.

The problem that arises in the background is that, seemingly, a group of two witnesses can never be found to be lying. If another group of witnesses appears against them, we have only a two-against-two contradiction. Even if the second group numbers one hundred witnesses, the accepted ruling is that their force is equal, for 'two are like a hundred.'

In a case of contradiction it is impossible to determine clearly who is lying, and therefore at most we can disqualify both groups from testimony (this is the dispute between Rav Huna and Rav Hisda in Bava Batra 31b and parallels). In any event, there is no possibility of punishing one of the groups, and certainly not both, as liars. According to Rav Huna, we even leave both groups with their prior presumption of fitness, and allow each of the two groups to testify separately in future cases.

If so, how and where, if at all, can the law of conspiring witnesses be applied? Is there a situation in which we find witnesses who are certainly liars, such that they can be punished under the law of 'as he plotted'?

The Mishnah in Babylonian Talmud, Makkot 5a, addresses this question:

Witnesses are not made conspiring witnesses until they are subjected to hazama with respect to themselves. How so? If they said: 'We testify regarding so-and-so that he killed a person,' and others said to them: 'How can you testify? This victim or this killer was with us that day in such-and-such a place'—these are not conspiring witnesses. But if they said to them: 'How can you testify? You yourselves were with us that day in such-and-such a place'—then these are conspiring witnesses, and they are executed on the basis of the latter testimony.

The Mishnah distinguishes between hazama and contradiction. When the confrontation concerns the content of the testimony, this is a case of contradiction. But when the second group testifies about the first group and says that it could not possibly have seen the events, then this is not a two-against-two contradiction but hazama. In such a case the second group is believed and the first is determined to be lying.

The Gemara there brings a source for this distinction between the two types of collision from the verses above:

Gemara: From where are these matters derived? Rav Adda said, for the verse says: 'and behold, the witness is a false witness; he has testified falsely'—only when the very body of the testimony is rendered false. The school of Rabbi Ishmael taught: 'to testify against him with wrongdoing'—only when the very body of the testimony is overturned.

The exposition is based on the fact that the words 'the witness is a false witness' indicate that the falsehood must be in the witness himself and not in the content of the testimony.[3] From here emerges the above definition of hazama.

Is the law of conspiring witnesses a 'scriptural decree'?

In the discussion in Sanhedrin 27a it is explained that beyond the punishment of 'as he plotted,' conspiring witnesses are also disqualified from testimony as wicked persons. There Abaye and Rava dispute whether conspiring witnesses are disqualified from testimony from the time they gave their testimony, or only from the time of the hazama. According to Abaye, they are disqualified from the moment they testified, for it is now clarified that they were already wicked then. By contrast, according to Rava they are disqualified only from the time of the hazama. The Gemara offers two explanations of Rava's view (which is the novel one): 1. conspiring witnesses are a novelty, and one has only what was novelized; 2. because of potential loss to purchasers (who would not know of their disqualification and would use them as witnesses). In this matter the law is ruled in accordance with Abaye, and therefore conspiring witnesses are disqualified retroactively, that is, from the time they testified.

At first glance, the dispute between Abaye and Rava concerns whether the disqualification of conspiring witnesses is a novelty or not. According to Abaye, it seems it is not a novelty but an ordinary rule. According to Rava, however, the matter appears to depend on the two formulations cited in the Gemara in explanation of his view.

What is the novelty in the law of conspiring witnesses? Clearly, the reference is not to the special novelty regarding their punishment. That is a novelty according to everyone, but it is not the subject of the discussion. This discussion concerns their disqualification from testimony, not the punishment imposed on them. About that, Rava according to the first formulation claims that it is a novelty. The reason given is as follows:

A conspiring witness is a novelty: why do you see fit to rely on these? Rely on those!

That is, the novelty is that hazama is not treated as a two-against-two contradiction, but rather that the latter witnesses are more believed than the former.[4] And Rashi there links the concept of 'novelty' with the concept of 'scriptural decree':

It is a novelty—that two are disqualified on the basis of two who say, 'You were with us'; for why do you see fit to rely on these? Rely on those! Rather, it is a scriptural decree. Therefore you have only it from the time of the novelty onward, from the time he was subjected to hazama.

All this is Rava's view (in the first formulation). In practice, however, we rule like Abaye, and according to his view there would seemingly be no novelty at all in this law.

And indeed, among the medieval authorities we find in several places a line of reasoning that explains the law of conspiring witnesses and why hazama differs from contradiction. The first to propose such a direction was Rav Nissim Gaon, who wrote in his Sefer HaMafte'ah as follows (see Responsa of the Geonim, Asaf, no. 702, pp. 195–196):

The difference between contradiction and hazama is that in contradiction, the conflict between the two groups of witnesses falls on the body of the testimony… and the rule here is to nullify both testimonies, since we do not know which of them is true. But in hazama… the rule is to execute… and the denial of Reuven and Shimon is of no help at all, because the testimony is directed at them and they have entered the category of litigants; for when testimony is given about them, their contradiction is of no avail against the witnesses who testify about them. In contradiction between witnesses, however, the conflict falls only on the body of the testimony; there they are in the category of witnesses, and therefore both testimonies are nullified.

Nachmanides as well, in his commentary on the above verses, writes the following (Deut. 19:18):

'And the judges shall inquire diligently, and behold, the witness is a false witness'—Scripture did not explain how it is known that he is a false witness, for when the matter depends on two witnesses who testify to an event, even if a hundred come and contradict them it is not established that they testified falsely. Nor can we say that the murdered man came walking on his own feet, for in such a case Scripture would not say, 'and the judges shall inquire diligently.' Therefore the trustworthy tradition came and explained that the hazama is when they say, 'But on such-and-such a day you were with us' (Makkot 5a). And the reason is that this testimony is about the witnesses themselves, and they are not believed about themselves to say, 'We did not do thus,' for the others could say about them that they committed murder or desecrated the Sabbath.

Nachmanides explains the difference between contradiction and hazama by saying that in hazama the second group testifies about the first group itself, whereas the first group is testifying about itself. Such a situation is analogous to a case in which the second group disqualifies the first as robbers, and there the second group is believed according to everyone (as stated explicitly in Sanhedrin 27a, where it is explained that here there is no novelty even according to Rava), because the first group is not believed to testify about itself, since they are litigants.

And so too in the Tur, Hoshen Mishpat sec. 38:

And what is the difference between contradiction and hazama? Contradiction is not in the witnesses themselves, but that they contradict them: these say, 'So-and-so borrowed from so-and-so,' and those say, 'We know he did not borrow, because we were with him all day and saw that he did not borrow.' Hazama, however, concerns the witnesses themselves, for one says, 'At the very time when you say he borrowed, you were with us.' And for this reason the latter are believed, since they testify about the persons of the witnesses, and it is as though they testified about them that they committed murder or desecrated the Sabbath; and they are not believed about themselves to say, 'We did not do such-and-such.' Even if the first group were one hundred, these are believed against them to execute them, whether the hundred testified all at once or whether they testified two after two, and these refuters subjected each and every group to hazama one after another.

The Sefer HaChinukh as well, in commandment 524, cites this reason in the name of one of the Sages as 'some reasoning in the matter.'

Maimonides, however, in Laws of Testimony 18:3, writes as follows:

And this—that the Torah believed the testimony of the latter witnesses against the first witnesses—is a scriptural decree. Even if the first witnesses were one hundred, and two came and subjected them to hazama and said to them, 'We testify that all one hundred of you were with us on such-and-such a day in such-and-such a place,' these are punished on their word, for two are like a hundred and a hundred are like two. Likewise, with two groups of witnesses that contradict one another, we do not follow the majority, but reject them both.

Thus, according to Maimonides, it seems that even Abaye agrees with Rava that the credibility of the second group is a scriptural decree and does not arise from reasoning. According to Maimonides, the dispute between Abaye and Rava concerns only whether, as a consequence, the disqualification should take effect only from that point onward or also retroactively.

The Lechem Mishneh on this law in Maimonides cites the above words of the Tur, who disagrees with Maimonides, and explains that they follow their respective approaches regarding a collision that contains hazama together with contradiction; see there. There are further proofs that Maimonides and the Tur follow their respective approaches (for example, see Maimonides there, Laws of Testimony 18:5, and Rabbi Shmuel Rosovsky's lectures on Makkot, sec. 229), but this is not the place to elaborate.

The comment of the later authorities

Several later authorities (see, for example, Rabbi Shmuel Rosovsky's lectures there, and the thematic section there, sec. 3, and Zikhron Shmuel, sec. 40) noted that the reason offered by Nachmanides and the Tur is very difficult. These medieval authorities assume that the testimony of the first witnesses about themselves is the testimony of interested parties. But so long as the testimony of the first group does not concern themselves, it is not testimony of interested parties. The mere fact that it has implications for them does not turn them into litigants. This assumption could lead to an apparent absurdity. A similar assumption could lead to the conclusion that testimony that they were in some place would also be considered testimony of interested parties, and from this it would follow that we should disqualify witnesses in every testimony in the world, since embedded in their words is always also the statement that they themselves were present at the scene of the event. For example: Reuven and Shimon come and testify that Levi borrowed money from Judah. According to these medieval authorities, we should disqualify their testimony, since included within it is also the claim that they themselves (=the witnesses) were present at the place where the loan was made, and this is testimony of litigants about themselves.[5] It should be emphasized that such a disqualification does not at all require a second group of witnesses to refute the first. The testimony itself should be disqualified on its own, since it is testimony by litigants. This argument apparently points to the untenability of that line of reasoning.

Rabbi Shmuel Rosovsky therefore wrote that it is clear that Nachmanides and the Tur did not mean to say that there is real reasoning here. Clearly, according to everyone this is a scriptural decree and contains no reasoning. These authorities intended only to say that after Scripture innovated that the second group is believed, the legal structure of the matter is that the testimony of the first group is treated like testimony of interested parties, and is therefore disqualified.

And indeed, one can see from Nachmanides' words on the following verse (Deut. 19:19) that he sees the law of conspiring witnesses as a 'decree of the ruler':

'As he plotted'—and not 'as he did'; from here they said: if they killed, they are not killed. This is the language of Rashi from the words of our Rabbis (Makkot 5b). The reason for this is that the judgment of the refuted witnesses is by decree of the Ruler, for they are two against two. Thus, when two come and testify against Reuven that he committed murder, and two others come and subject them to hazama from their testimony, Scripture commanded that they be killed, because by the merit of Reuven, who was innocent and righteous, this came about. Had he been a wicked man deserving death, God would not have saved him from the court, as it says (Ex. 23:7), 'for I will not justify the wicked.' But if Reuven was killed, we consider that all that the first witnesses testified about him was true, for he died through his sin; had he been righteous, the Lord would not have abandoned him to their hand, as Scripture says (Ps. 37:33), 'The Lord will not leave him in his hand, nor condemn him when he is judged.' Moreover, the Lord would not allow the righteous judges who stand before Him to shed innocent blood, for judgment belongs to God, and in the midst of judges He judges. And all this is a great elevation of the judges of Israel, and the promise that the Holy One, blessed be He, agrees with them and is with them in judgment. And this is the meaning of 'and the two men who have the dispute shall stand before the Lord' (verse 17), for before the Lord they stand when they come before the priests and judges, and He will guide them in the path of truth. I have already mentioned some of this in the section Ve'eleh HaMishpatim (Ex. 21:6).

Nachmanides also continues and explains the law of conspiring witnesses on a more metaphysical plane, and on that basis proceeds to explain as well the rule that 'if they already caused him to be killed, they are not killed' (or: 'as he plotted' and not 'as he did'). Again, it seems that he has no rational explanation for the credibility of the second witnesses.

How does this fit with the explanation he himself gives on the previous verse? According to Rabbi Shmuel Rosovsky, this is exactly the point: the law is a scriptural decree, and the legal definition of that decree is the rejection of the credibility of the first witnesses as though they were litigants. There is no real vested interest here, but Scripture decreed that we are to view them as litigants.

Is there really no reasoning?

Rabbi Shmuel Rosovsky's claim does not seem necessary. It is true that every testimony also contains the claim that the witnesses were present at the scene, but it is clear that in this respect they are not interested parties in their own testimony. So long as the subject is the event itself, the fact that a witness is speaking about himself neither adds nor detracts. But when the second group comes to refute them, that very testimony of the first group takes on a different meaning. Now the subject of the discussion is not only the event itself, but also the fitness of the first witnesses. In such a situation, the testimony of the first witnesses about themselves cannot be accepted.[6] For this reason we do not disqualify ordinary witnesses as interested parties merely because they testify that they were in that place. But when another group comes to refute them, the subject of the discussion changes, and now they themselves are part of the subject under discussion. In that case, and only in that case, their testimony becomes testimony by litigants.

Beyond this, other reasons may be suggested for the credibility of the second group. For example, the Penei Yehoshua on Makkot 5a brings a reason to believe the second group on the grounds that if they had wished falsely to save the defendant, they should have disqualified the first witnesses as robbers, or at least contradicted them.[7] The medieval authorities did not bring this particular reasoning, but it is certainly possible that it joins with theirs. Because of this credibility of the second group, the subject of the discussion becomes the fitness of the first group, and therefore its two witnesses become litigants testifying about themselves.

Beyond this, there is another reason that Nachmanides himself brings (see the passage cited in the previous subsection), one that is more metaphysical in character (it is not entirely clear what the relation is between these two reasons in Nachmanides' view).

In Derashot HaRan, in the eleventh homily (p. 197 in the Feldman edition; his words are also cited by Abravanel on Deut. 19:14, who also gives additional reasons for the credibility of the latter group), a rationale is also offered for the law of conspiring witnesses. He writes that the first witnesses relied on the assumption that no one had seen them, and therefore their credibility is lower. By contrast, the refuting witnesses must fear that if they lie, someone may see that they were not in the place they claim, or that the first group was not with them there, for the witnesses of the first group themselves will make the effort to prove this. Therefore the latter witnesses possess greater credibility; see there.

C. On the very problematic nature of the matter

Is it possible to execute because of a scriptural decree?

The picture that has emerged up to this point, at least according to Rabbi Shmuel Rosovsky, is that by strict logic hazama is considered just like a two-against-two contradiction. From the standpoint of reasoning, with respect to both groups there is doubt whether in actual reality they are speaking the truth or not, exactly as in contradiction. But there is a scriptural decree that despite all this, the second group is to be believed and the first is to be regarded as litigants testifying about themselves, and therefore they are not believed.

In a case of hazama in capital testimony, we even put the conspiring witnesses to death because of their plot to kill an innocent defendant through false testimony. But we must note that all this occurs when, in actual reality, it is not at all necessary that the defendant is indeed innocent and that they are indeed liars. Is it conceivable that we take people who in reality spoke the truth, decide by force of a scriptural decree that they are liars, and kill them for that?

The moral aspect

The question can be focused on the moral aspect: does the Torah require us to kill people who did nothing wrong, merely by force of a scriptural decree?

One should remember that conspiring witnesses do not require forewarning (see Makkot 4b). Both come innocently to testify truthfully, and Jewish law even obligates them to come and testify if they possess relevant information. These two witnesses come and testify, and suddenly, after the hazama—which from the standpoint of reality proves no actual falsehood on their part at all (for in terms of pure logic their actual status is that of a two-against-two stalemate)—we kill them. All this without any forewarning and without any proven guilt.

And from another angle: what were these witnesses supposed to do in order not to be transgressors? They were obligated to come and testify to what they knew, and our assumption is that they did indeed know what they reported in their testimony (for even after the hazama we still regard them as truth-tellers, at least as a matter of doubt). And yet the Torah decrees that we should kill them.

At first glance, one might compare this to Sabbath violators. There too there is a scriptural decree of the Torah to kill people who have done nothing from the standpoint of ordinary human logic. If so, how is our scriptural decree different from other scriptural decrees involving life and death? Why do we assume specifically here that such an instruction of the Torah would be highly problematic morally? Do we always seek reasons for commandments? Many commandments have unknown reasons, and in general the accepted rule is that we do not expound the reason of the verse (see Sanhedrin 21a and parallels).

However, this argument is mistaken, for these two situations are completely different. In Sabbath violation, the person knows that the Torah forbids it and even punishes it by stoning, even if the reason is not known to him or to us (and in law it is also not important). Without that knowledge, we truly do not punish him. He undergoes a process of forewarning and acceptance of the warning, both regarding the transgression and regarding the punishment, and if the process is completed we indeed stone him. By contrast, in our case these witnesses came innocently to testify. They testified truthfully. No transgression was committed by them, and the Torah did not warn them against what they were doing (for in truth they did nothing wrong). More than that: no one warned them, neither about the transgression nor about the punishment. And yet we kill them, just like that.

If so, the conception of conspiring witnesses as a simple scriptural decree is entirely Kafkaesque: the Torah determines of truthful people that they are liars. It then sentences them to death because of their falsehood. And at no stage of this Kafkaesque process is there anything they can do either to defend themselves or to avoid that punishment.

Two examples of 'mechanical' punishment (without guilt)[8]

The author of Sefer HaChinukh writes in commandment 69 (the prohibition of cursing judges and blessing the Divine Name), as follows:

That we not curse judges, as it is said (Ex. 22:27), 'You shall not curse God,' and its meaning is judges, as in (ibid. 22:8) 'whom the judges shall condemn.' Scripture expressed it with the term 'God' so that another prohibition would be included with this prohibition, namely the prohibition of blessing the Name, as our Sages of blessed memory said in the Mekhilta and the Sifrei: the warning against blessing the Name is from the verse 'You shall not curse God.' And what is written elsewhere (Lev. 24:16), 'And he who pronounces the Name of the Lord shall surely be put to death'—that is the punishment. But the warning is from here, because mention of punishment alone does not suffice for us in a commandment without a warning. This is what our Rabbis of blessed memory always say: 'We have heard the punishment; from where do we know the warning?' The matter is that if all that came to us in a matter were not God's restraint, but merely that one who does such-and-such will be punished thus and thus, it would imply that anyone who wished could accept the punishment and ignore the pain involved, transgress the commandment, and not thereby go against the desire of God, blessed be He, and His commandment. The commandment would then become like a kind of purchase and sale: whoever wishes to do such-and-such may pay such-and-such and do it, or may offer his shoulder to bear such-and-such and do it. But that is not the intention of the commandments. Rather, God, for our good, restrained us from these things, and in some of them informed us of the punishment that reaches us in addition to the violation of His will, which is harder than all else. This is what our Rabbis of blessed memory meant everywhere when they said, 'He does not punish unless He first warned'—that God does not inform us of the punishment that comes upon us for violating the commandment unless He first informs us that His will is that we not do the thing for which the punishment comes.

Sefer HaChinukh explains why, in addition to the punishment, a warning verse is also required in the Torah forbidding the act. Had only the punishment appeared, we might have thought that this punishment is not a response to our having acted against the will of God, but a kind of mechanical response. Punishment without sin. There would be a sort of stipulation that whoever performs a certain act receives a punishment in response, but there would be no process of judgment and deterrence, rather something like a law of nature (in the sense of a 'law of action and reaction').

The author of Minchat Chinukh, in commandment 516 sec. 4, suggests explaining in light of this principle Jonah the prophet's flight from God. Seemingly he transgressed the prohibition of withholding prophecy. Minchat Chinukh explains that this prohibition carries a punishment but no warning (it has already been noted there in the notes of the Machon Yerushalayim edition that he erred in this), and therefore Jonah decided to transgress it and bear the punishment. He was not acting against the will of God, and the punishment was merely the result of the stipulation. In the end, Minchat Chinukh rejects this possibility.

Another example is found in the discussion in Temurah 3b, where the Gemara raises the possibility that a person may be legally obligated to swear a true oath, and yet be flogged for doing so (see there in the commentary of Rabbi Gershom on the page, and compare Rashi). Yet there too, in the Gemara's conclusion, this does not exist.

What emerges from these two examples, and in fact already from the words of Sefer HaChinukh above, is that the Torah contains no reality of punishment without sin, in the sense of acting against the will of God. If so, in the case of conspiring witnesses as well, it cannot be said that the witnesses of the first group are punished without any sin they committed, merely because of a scriptural decree. This is not related to the issue of the reasons for the commandments (which we raised above in the context of Sabbath violation). Here it is execution without any transgression at all, and not execution for a transgression without a known reason (as in Sabbath violation).

We are therefore compelled to conclude that the Torah teaches us that they truly lied, and it is for that that they are punished. That is, the conclusion is that there must necessarily be some reasoning at the foundation of the credibility of the refuting group.[9]

The legal-halakhic aspect

Up to this point we have dealt with the moral aspect. However, the more problematic aspect is the legal-halakhic-interpretive one. For the verses explicitly state that conspiring witnesses are punished for the false testimony by means of which they sought to frame an innocent person ('and behold, the witness is a false witness; he has testified falsely against his brother; and you shall do to him as he plotted to do to his brother'). But in practice, according to the approach that this is a scriptural decree without reasoning, they did not lie and he is not necessarily innocent. The question we raise here is not a moral question but an interpretive one. According to the proponents of the 'scriptural decree' approach, how can we interpret the biblical verses that instruct us to punish conspiring witnesses for falsehood?

If the Torah wished to tell us to kill them simply, as with Sabbath violators, it should have told us to kill witnesses who were subjected to hazama (we are not dealing now with the moral problem). But it does not tell us that. It tells us to kill lying witnesses, and because of the difficulty of how witnesses could ever be found to be liars, the Torah hints to us that these are lying witnesses revealed through hazama. Why does the Torah need to 'lie' to us and classify them as liars who die because of their falsehood, when in fact they are not such? If the Torah wanted to kill them just like that, it should simply have told us directly to kill them without any explanation. Presumably, if the Torah defines them as liars, that is because in its eyes they really are liars. If so, there must necessarily be some reasoning here, and it is not merely a simple scriptural decree.

In another formulation: nowhere in the Torah do we find a scriptural decree that transforms reality, that is, that calls black white. And certainly we do not find a scriptural decree that transforms reality into something else and establishes laws, and certainly not punishments, on the basis of that virtual reality. Jewish law does not come and punish the black because it is white.

Comparison to the scriptural decree in the disqualification of relatives as witnesses

As an example to sharpen the problem, let us take the disqualification of relatives. In Encyclopaedia Talmudit, s.v. 'Scriptural Decree,' it is stated that there are scriptural decrees which instruct us to relate to reality in a different way: 'to hold the matter as though it is so in reality, even though from the standpoint of reasoning reality is otherwise.' One example is the disqualification of relatives as witnesses.

The Shulchan Arukh (Hoshen Mishpat sec. 33:10; see also Maimonides, Laws of Testimony 13:15) states this law as follows:

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 for him whether to his advantage or to his disadvantage, and even Moses and Aaron are not fit to testify for one another; rather, it is a scriptural decree.

And its source is in Bava Batra 159a:

And what is the difficulty? Perhaps it is a decree of the King that he is not believed and others are believed, and not because he lies! For if you do not say so, are Moses and Aaron disbelieved concerning their father-in-law because they are not trustworthy? Rather, it is a decree of the King that they not testify for him; so too here, it is a decree of the King that one may not testify about his own handwriting for his father-in-law!

One might have understood this law as referring to the legal plane and not to reality. The Torah decrees that we not accept the testimony of relatives, but it does not say that they are liars. There is a prohibition against using their testimony in order to render judgment concerning their relatives.

But later authorities wrote that this is not so (see Hiddushei HaRim, Hoshen Mishpat there, at length), for in monetary law, if we know the reality, there is no need whatsoever for testimony in order to decide the case. Therefore, if relatives are truth-tellers and the disqualification is only by scriptural decree (as the Gemara says), then we could render judgment even not on the basis of their testimony, even if formally their testimony is invalid. Therefore the author of Hiddushei HaRim wrote that the Torah here decreed that we regard them as liars, that is, that reality itself be changed artificially, and that we rule accordingly.

Seemingly, then, we have here a scriptural decree that changes reality: both with respect to the relatives, whom it determines to be liars, and with respect to the content of the testimony, where we know the reality and yet the Torah decrees that we ignore it. This example appears to contradict our assumption above that in Jewish law there are no scriptural decrees that change reality.

With respect to the witnesses themselves, however, this does not appear similar to the case of hazama. In the case of relatives, we do not accept their testimony, but we impose on them no law or punishment because of that. Therefore there is no real change of reality here. Moreover, they were not supposed to come and testify, and are even forbidden to do so. By contrast, according to the 'scriptural decree' conception of conspiring witnesses, those witnesses were supposed, under Jewish law, to come to court and say what they knew.

As for the content of relatives' testimony, admittedly there does seem to be a change of reality by scriptural decree and even a judgment rendered on that basis: we know that there was a loan, and yet we issue a ruling as though there had not been. Seemingly, this is exactly the picture in hazama according to the conception of 'scriptural decree.'

But the situation is still different, in at least three respects:

1. Here we disqualify monetary testimony, but we do not kill. Even in capital cases we do not accept the testimony, but it is not likely that we would kill on that basis. One could imagine a case in which two witnesses testify that a certain person committed murder, and then two relatives come and contradict them, claiming that he did not murder. In such a situation, the relatives' testimony is disqualified, and we would kill the accused even though we have genuine doubt about his guilt.

In an even more extreme scenario, the second group of relatives comes and subjects the first group to hazama. Now we know with certainty that the first witnesses are liars (on the basis of the logic of hazama), and yet we would execute the accused on the basis of their testimony.[10] It seems very likely that in such a case the court would withdraw from the case, and would not render a death sentence on the basis of the scriptural decree that relatives are invalid witnesses.

As stated, it seems that the moral problem would not exist here either, because it is quite clear that we would not kill the accused in such cases, if only because of the law of a suspicious case. And it seems that even in monetary law, what Hiddushei HaRim says—that we must ignore the testimony of relatives—is not necessary. There too, perhaps, the court could withdraw from the case on the ground that it is suspicious.

2. The Torah has a reason why it wants to disqualify the testimony of relatives and to treat them as though they were liars. That reason is not that they are liars, but some external reason because of which the Torah does not want us to rely on the testimony of relatives (learned from the verse 'Parents shall not be put to death because of children'—in the matter of testimony by sons). Therefore, in the case of relatives the Torah is not telling us that they are liars and therefore should not be believed, but simply not to accept their testimony (and for that reason it also does not punish them). By contrast, in the case of conspiring witnesses, the reason the Torah itself writes is that they are lying. Had there been another reason, the Torah should have told us to kill them for that reason, and not create falsehood ex nihilo and suspend the punishment on their lying. Hence, even if the moral argument may perhaps exist as well in the case of relatives, the interpretive problem certainly does not.
3. It is important to emphasize another decisive difference between the problematic nature of the scriptural decree regarding conspiring witnesses and that of the scriptural decree regarding relatives. In the case of conspiring witnesses, the disqualification of the first witnesses is the central novelty of the Torah. This is not a unique case; the problem lies in the very law itself. The law itself has no logic. By contrast, the disqualification of relatives does not in itself lead to moral catastrophes and has its own logic (whether or not we understand it fully). At times an exceptional situation may arise in which this acceptable and reasonable principle leads to a local problem. Therefore the difficulty is less severe in the case of relatives, since a legal system cannot be perfect and cover all cases (among other things, that is what the law of a suspicious case is for). But with conspiring witnesses, this is not an accidental 'bug' in the system. Here the system seems fundamentally distorted. In other words: here we would have to invoke the law of a suspicious case in every single instance of hazama, and not only in some particular situation. This is not an exceptional case but the normal one. It is impossible that the Torah consistently expects us to invoke the law of a suspicious case so as not to kill innocent people. In the next subsection we will bring an illustration of this distinction.

The son of Shimon ben Shetah: execution on procedural grounds

We find in the Talmud an example of a case in which a person was indeed killed for a wrong he did not commit, because of a purely procedural reason. There are several versions (with important differences between them) of this incident. The Babylonian Talmud, Sanhedrin 44b, states as follows:

Our Rabbis taught: There was an incident involving a man who was being led out to be executed. He said: If I am guilty of this sin, let my death not be an atonement for all my sins; but if I am not guilty of this sin, let my death be an atonement for all my sins, while the court and all Israel are cleared, but the witnesses shall never be forgiven. And when the Sages heard of the matter, they said: To bring him back is impossible, for a decree has already been decreed. Rather, let him be executed, and let the burden hang on the neck of the witnesses. — Is that not obvious? Do they have such power? — No, it is needed where the witnesses retracted. — And if they retracted, what of it? Once a witness has testified, he may not retract and testify again! — No, it is needed even though they gave a reason for their words, like that incident where they wanted to cover things up.

The case is of a man who was being led out to execution and proclaimed his innocence. The witnesses retracted just before the punishment was carried out (and even gave an explanation that would account for the falsehood in their first testimony), but the Sages did not cancel the verdict, for according to the law a witness cannot retract his testimony. The Sages decided to kill him, and the burden would rest on the neck of the witnesses.

Rashi there says that the condemned man was the son of Shimon ben Shetah, and that the false testimony was a result of Shimon ben Shetah's well-known execution of the eighty witches (see also Jerusalem Talmud, Hagigah ch. 2, and elsewhere). This case is also brought in Jerusalem Talmud, Sanhedrin 6:3, and in Tosefta Sanhedrin ch. 9, among other places.

Seemingly, we are dealing here with the execution of a person who did not sin, on merely procedural grounds. Such a decision stands in contradiction to our assumption that one does not execute a person when the court is certain he is not guilty of the transgression that is the basis of the punishment.

It should be noted, however, that in some of the sources it is not explicit that the witnesses retracted (see, for example, the Tosefta), and then it is easier to understand. In that case, it is a matter of suspicion that the verdict was mistaken, not certainty. There would still have been room to cancel the judgment because of the law of a suspicious case, but in any event this is not in frontal contradiction to what we have said here.

Now, in the Babylonian Talmud, in the Tosefta, and in Rashi just mentioned, it is explained that the Sages decided that by law they could not cancel the punishment because of the rule that a witness cannot retract. By contrast, in Jerusalem Talmud, Sanhedrin 6:3, it is explained that the court did want to retract, but the son of Shimon ben Shetah himself requested that the erroneous sentence be carried out. There it says:

Shimon ben Shetah's hands were hot. A band of scoffers came and said: Let us devise a plan; we will testify against his son and kill him. They testified against him, and his sentence was concluded for execution. As he was being taken out to be killed, they said to him: Master, we are liars. His father wanted to bring him back. He said to him: Father, if you seek deliverance to come through you, make me like a threshold.

This is a case of a 'Socratic' character, in which the condemned man himself requests the carrying out of the sentence and himself prevents his rescue. Why indeed does he do this? It seems that his goal is the preservation of the rule of Jewish law (very much parallel to the well-known description of Socrates in prison, in Plato's dialogue Crito). After Shimon ben Shetah executes eighty witches, he wants to show that there is no favoritism in the law, and that his deed was a salvation. The son is willing to sacrifice himself for that purpose. The conclusion from here is that in fact, according to the strict law, he indeed should not have been put to death, and the execution was beyond the letter of the law. If so, this is not contrary to our above assumption.[11]

It is interesting to note that in Babylonian Talmud, Makkot 5b, it is stated that Yehudah ben Tabbai, the colleague of Shimon ben Shetah (see Avot 1:8, Jerusalem Talmud, Hagigah ch. 2, and elsewhere), killed a conspiring witness who had been refuted on his own, merely to uproot from the hearts of the Sadducees their claim that a conspiring witness is killed only if the verdict was carried out. Shimon ben Shetah told him that he had shed innocent blood, for the law is that the witnesses are not punished until both of them are refuted. He accepted upon himself to judge only in the presence of Shimon ben Shetah so that he would supervise him and prevent error.

Here too, seemingly, one is dealing with the execution of someone innocent for external reasons (to uproot the Sadducean view). But it is important to note that here we are dealing with a witness who was subjected to hazama, and therefore his execution was not wholly unjustified. Had there been another witness with him, he certainly would have been liable to death. Beyond that, here according to all opinions there is not even any novelty in the credibility of the second group, since they are two witnesses testifying against one witness (in Sanhedrin 27a it is stated explicitly that there is no novelty at all when a single witness is subjected to hazama). If so, the punishment would indeed have been fitting, and what prevents its normal application is only a scriptural limitation. Moreover, here we are dealing with punishment beyond the letter of the law (as in the previous case according to the version of the Jerusalem Talmud), and not with the establishment of an unjustified law as part of Jewish law. If so, this case too is not in frontal contradiction to our assumption.

Even if we say that they did kill the son of Shimon ben Shetah without any guilt, only for procedural reasons (and not only as a one-time punishment outside the strict law, in light of his own request), there is still an important difference between that case and our present one, and its basis is the reasoning presented in the previous subsection: the case of the son of Shimon ben Shetah is an exceptional one. The procedural rule that does not allow witnesses to retract their testimony is generally sensible and clear (for such a possibility would open the door to several severe problems). Admittedly, at times it may create an exceptional situation in which an innocent person is executed. Theoretically, perhaps, in such a case the Sages might decide to insist on preserving the procedure, even at the price of a human life (though it is difficult to understand why they would not withdraw from the judgment by force of the law of a suspicious case, were it not for the explanation that there was here a unique interest, as in the Jerusalem Talmud's formulation). By contrast, according to the 'scriptural decree' approach regarding the law of conspiring witnesses, the case of conspiring witnesses is entirely arbitrary procedure, with no justification in any situation. This is not an exceptional case. In the case of conspiring witnesses we would kill innocent people in every instance. So why establish such an arbitrary procedural rule? Such a situation is impossible, as we saw at the end of the previous subsection.

The principled difficulty and the difficulty in the position of the commentators mentioned above

Up to this point we have described a substantive difficulty with respect to the approach that views conspiring witnesses as a scriptural decree. It is impossible that the Torah decrees that we must treat refuted witnesses as liars even though in reality they are not such, and at the same time imposes on them the death penalty because of their falsehood.

But this difficulty need not trouble us, for as we have seen there are various lines of reasoning that explain the logic of the credibility of the latter witnesses. The problem lies with the later authorities (such as Rabbi Shmuel Rosovsky). They saw fit to note that the reasoning of the Tur and Nachmanides is incorrect, and therefore they claim that according to everyone this is a scriptural decree. Their assumption is that the view of the Tur and his school is the more problematic one. Yet none of them bothers to point out that it is precisely the position of Maimonides that is more problematic, for according to him there is a death penalty imposed on innocent human beings on the basis of a scriptural decree that redefines reality. They should have noted that precisely Maimonides, who says that this is a scriptural decree, cannot mean that there is no reasoning here—not that the Tur and Nachmanides, who say there is reasoning, must really mean that it is a scriptural decree.

Moreover, even if there were another line of reasoning, not that of the Tur and Nachmanides, there still would be no necessity to say that this is a scriptural decree. It appears from the words of the later authorities that in their view there is no reasoning at all in this law, and in reality this is truly a two-against-two case. In their view, the disqualification and refutation of the first witnesses is a scriptural decree in the full sense of a matter without a reason. There is an overlooking of the fact that one cannot execute witnesses for falsehood and plotting when we are at least in balanced doubt as to whether they are speaking the truth (and according to Rav Huna it would even be proper to leave both groups with their presumption of fitness).

A possible solution: divine guarantee

It would have been possible to say that the Holy One, blessed be He, guarantees that whenever a case of conspiring witnesses arises, the second group will always be speaking the truth and the first will be the lying group. That is, although there is no natural legal logic to assume that the first group are liars, and in that sense there is indeed a scriptural decree here, the Torah guarantees us that in practice they really are the true liars. Thus an unjust judgment will not emerge from our hands, and indeed we are killing the liars. This consideration resembles the metaphysical consideration brought above by Nachmanides, according to which the Holy One assists the judges in bringing justice to light and prevents them from erring in judgment. Something like this is also found in the midrash in Babylonian Talmud, Makkot 10b, about an accidental killer who goes to exile: the Holy One causes them both to come to one inn, where the killer was liable to exile and the person killed had been liable to death. That is, divine providence guarantees that the true judgment will emerge.

But even this is not a genuine solution. First, how would the Holy One prevent the free choice of wicked people who choose to testify second and subject a truthful group of witnesses to hazama? A person has free choice even to sin.[12] Second, arguments of this kind can be made when the procedure itself has logic, but we are troubled by special situations in which an error might emerge from our hands, and perhaps we may kill innocents. There the Holy One can say to us that He guarantees that if we acted properly, no error will emerge from our hands. But the procedure itself must have a basic logic of its own, and the divine guarantee merely 'plugs holes.' In our case, however, the procedure itself lacks logic. With the same degree of logic we might have left the situation as a two-against-two stalemate, as we do in contradiction, and the Holy One would guarantee that no mishap would come of it. The Torah decrees that we kill conspiring witnesses, but according to this explanation there is no reason for that. There is only an after-the-fact guarantee that no mishap will result.

By the same logic, the Torah could have commanded us to fire into the air on the main street every hour on the hour, and guaranteed that no one who did not deserve it would be harmed. Clearly there is no logic in such a command, because the basic command itself is devoid of logic. The divine guarantee can come at stage two, after the basic logic, but it cannot serve as a substitute for such logic. Only if there were some logic to such shooting could the Torah then come and tell us that it guarantees that no innocent person will be harmed.[13]

D. Is a scriptural decree necessarily an incomprehensible law?

The solution: a scriptural decree with reason and logic

The required conclusion is therefore the opposite of that suggested by the later authorities mentioned above: not only do the Tur and Nachmanides indeed hold that the foundation of the law is logical reasoning, but Maimonides too, who apparently speaks of a scriptural decree, must agree that there is reasoning here. In other words, according to all views, even in actual reality it is clear that the first group are the liars and the second group is certainly the credible one. As we have seen, this cannot be a scriptural decree detached from actual reality.

To this we should add the words of Maimonides cited at the opening of the article (Guide of the Perplexed III:31), according to which every law has reasons that relate to character, beliefs, or social-political governance. If so, it is very likely that in his view as well, conspiring witnesses are not executed just like that. Presumably, according to his view this scriptural decree (and perhaps all of them) ought to have a clear human rationale.

If so, why does Maimonides speak of a scriptural decree? Let us recall that even in Nachmanides' commentary we saw above that he mentions a 'decree of the ruler' immediately after giving the rationale. Rabbi Shmuel Rosovsky understood from this that the whole foundation is scriptural decree. But according to what we have said, the picture is the opposite: the whole foundation is the reasoning. The scriptural decree merely reveals the reasoning. So too, perhaps, Maimonides' view should be understood.

Is there at all such a meaning to the term 'scriptural decree'? Here we are brought back to the question posed at the opening of our discussion: if there is a rationale for the law, why is a verse needed? Alternatively: why do we call such a law a 'scriptural decree' at all?

What is a 'scriptural decree'?

In Encyclopaedia Talmudit, s.v. 'Scriptural Decree,' the opening definition is: 'a statute of the Torah, as opposed to logic.' And that is indeed the common understanding of the term 'scriptural decree.' There are laws that arise from reasoning, or from a conception of reality, and there are laws that arise from a decree of the Torah contrary to, or at least detached from, reason and reality.

But from our discussion thus far a different understanding emerges:[14] it is the verse that reveals the reasoning and the reality to us. After the verse teaches us the law of conspiring witnesses, we now know that they truly are liars.[15]

Proof from the words of the Meiri

At the beginning of the chapter dealing with the stubborn and rebellious son, the Gemara expounds that the law of the stubborn and rebellious son applies only to sons and not to daughters. Both the Babylonian and Jerusalem Talmud say of this that it is a scriptural decree. And yet several medieval authorities gave a reason for this law. For example, Maimonides in ch. 7 of the Laws of Rebels writes (and so too Sefer HaChinukh):

It is a scriptural decree that only a stubborn and rebellious son is stoned; but the daughter is not judged under this law, for it is not her way to be drawn after eating and drinking like a man. As it is said, 'a stubborn and rebellious son' (Deut. 21:18)—and not a daughter, nor a tumtum, nor an androgynous person.

Of course, this does not necessarily provide proof for our claim, since it is the way of Maimonides—and certainly of Sefer HaChinukh—to offer reasons for commandments that do not claim to be the true and full root of the law.

But the Meiri, in the discussion of the stubborn and rebellious son (at the opening of the chapter on that subject, on the first Mishnah, s.v. 'And so he expounds'), writes as follows:

That is, the daughter is not judged at all under the law of the stubborn and rebellious one, for the Torah was concerned only with 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 although these matters are all scriptural decrees, they all follow this rationale. And although at first glance, in some of the details, the opposite may appear…

The Meiri writes that this is a scriptural decree, and yet he adds that it has a reason (that the Torah is concerned only with one whose way is to be drawn after his desires). Unlike Maimonides and Sefer HaChinukh, immediately afterward the Meiri asks: if this is a scriptural decree, why do they say so if there is a reasonable rationale? It follows from the very difficulty that at least the Meiri apparently means that this reason is not merely the reason of the verse, but indeed the true and full reasoning at the basis of the law that the judgment of the stubborn and rebellious child does not apply to a daughter. He therefore asks why the two Talmuds refer to this as a scriptural decree.

What is the Meiri's answer to this question? First, he says that all these laws derive from this rationale ('all of them are drawn after this matter'), meaning that this is a correct and true rationale and it is the basis for all the laws of the stubborn and rebellious son. In the continuation, his goal seems to be to clarify why this is nevertheless called a 'scriptural decree.' He explains that at first glance the opposite of this rationale might seem more plausible, for there is reasoning to be stricter precisely regarding a daughter, and precisely regarding one who steals from others and not from his parents (as he cites later from the Jerusalem Talmud). In other words, there is reasoning here, but other and contrary lines of reasoning could also have arisen. Therefore the Torah writes that precisely this rationale—that one is concerned with a person whose way is to be drawn after desires—is the decisive one, and the basis for all these laws.

The conclusion is that a verse is indeed needed here, in order to reject opposite lines of reasoning, but in the end we understand that the true reason for the scriptural decree is that the Torah is concerned with one whose way is to be drawn after his desires. If so, this is a scriptural decree without which we could not have decided clearly in favor of that rationale, but at least after it is written we fully understand its reason, and everything follows from this rationale. And that is precisely our point.

It is interesting to note that the author of Derashot HaRan, whose reasoning concerning the credibility of the refuting witnesses we cited above, himself asks (there) how the Gemara can say that the credibility of the refuting witnesses is a 'novelty' if there is reasoning for it.[16] He answers that the credibility of the latter pair is indeed greater than that of the first pair, by force of the reasoning we cited above. But that difference is not sufficient to decide on its basis, certainly not in capital law. Therefore a verse in the Torah is needed to instruct us to rely decisively on the reasoning that gives priority to the second group, and even to kill on that basis. This is the meaning of the scriptural decree in the law of the credibility of the refuting witnesses. This is exactly the principle of the Meiri that we have cited here, and it is how we explained above Maimonides' view regarding the credibility of the refuting witnesses. Below we will see that the intention of the author of Derashot HaRan is probably somewhat different.

Several types of scriptural decree

In Encyclopaedia Talmudit, s.v. 'Scriptural Decree,' it is explained that there are several kinds of scriptural decrees. There is a scriptural decree that runs against human reasoning and logic. There is a scriptural decree that runs against other principles within the Torah itself. And there is a scriptural decree that consists in a contradiction among the details of the law in which the novelty itself appears (a kind of paradox, as with the red heifer, which purifies the impure and renders the pure impure, and especially since the impurity falls specifically upon the one engaged in purification).[17]

Up to this point we understood the scriptural decree regarding the credibility of the refuting witnesses as a decree of the first type (against human logic). But from the words of the Ran it emerges that he understands it as a decree of the second type: a contradiction to other principles of the Torah. Thus he writes:

And this does not contradict what our Sages said, that conspiring witnesses are a novelty, for 'why do you see fit to rely on these? rely on those.' That is to say, it is not the way of the Torah to rely on what appears from the deed itself as to whether it is true or not, but only on the testimony of two witnesses, for the Torah believed even two of the lightest people in the world, so long as they are not disqualified from testifying, just as it would believe Moses and Samuel, whom we know would not alter anything even in casual conversation.

If so, that we should rely here more on the refuting witnesses than on the refuted, because the words of the refuting witnesses appear more likely to be true—this is a novelty and a departure from the Torah's way in other places. Nevertheless, the facts do indicate as we have written…

The Ran establishes that ordinarily the Torah does not allow us to rely on conjectural reasoning about reality, certainly not in cases of capital punishment (there, estimation is of no use; see Maimonides, beginning of chs. 20 and 24 of the Laws of Sanhedrin, on the distinction in this regard between monetary and capital cases).

If so, the reasoning in favor of the credibility of the refuting witnesses may be an excellent and fully adequate one. We may have an excellent reason why the latter witnesses are believed, but in capital law one may not rely on reasoning, however good. Thus the problem is not lack of fit with our logic, or the fact that the rationale is unintelligible. The problem is the lack of fit with the Torah's ordinary laws of evidence. As stated, according to the Ran this is a scriptural decree of the second type.

This explanation is somewhat different from what we proposed above. The previous direction we proposed, in a manner similar to the Meiri, saw the role of the verse as strengthening the reasoning, since doubts, reservations, or contrary lines of reasoning could have been raised against it. Now we are not hanging matters on doubts about the reasoning itself, but on the fact that the Torah is not prepared at all to rely on reasoning—however good—with respect to capital law. The verse is needed to instruct us to rely on reasoning, which may be excellent in itself, not to strengthen the reasoning as such.

In both of these types of scriptural decree, the verse has a different role. In the first type, the verse reveals to us that the reasoning is correct and decisive, and that it may be relied upon. In the second type, the verse reveals to us that in the case under discussion we are also permitted to rely on reasoning at all (in our example). More generally, in this type of scriptural decree the Torah instructs us that we may depart from the regular halakhic framework that it establishes in other cases. In any event, in both cases the fact that we are dealing with a scriptural decree does not negate the existence of reasoning, and, as we have seen here, at times even perfectly complete reasoning.

E. Application: 'You have only its novelty,' or: the hermeneutic rule 'A matter that was included in a general category and emerged to be judged by a new rule'

'You have only its novelty'

We now come to the implications of these points. The principal implication of classifying some law as a 'scriptural decree' is that it is not handled in terms of ordinary human logic.[18] In the case of a scriptural decree, we do not ask on the logical plane what is reasonable to do, but on the interpretive plane what the Torah commands us to do. The contours of the law are determined by what is written in the verses and not by our own logic. The clearest expression of such an approach is the rule: 'you have only its novelty.' That is, we tend to narrow the scope of a scriptural decree as much as possible. Wherever there is no necessity, we incline to interpret according to ordinary human logic. Only where we have no choice do we say that the Torah introduced that we must depart from our own logic.

In the case of conspiring witnesses, Rava says that the disqualification from testimony, being a scriptural decree, takes effect only from the time of the hazama. That is, we constrict the disqualification in a way that runs against ordinary human logic. If the witnesses were truly liars, logic would require applying the disqualification from the time they testified, since that is when the lie occurred, and therefore from then on they are wicked. But because their classification as wicked is the result of a scriptural decree and not of reasoning, we apply it for the minimal time possible from an interpretive standpoint.[19]

Yet from the discussion we have conducted until now it emerges that even a law that is a scriptural decree has logic behind it. The conspiring witnesses are indeed liars, and there are good reasons for that. If so, why narrow the scope of the law to the minimum? If the law is understandable and has a basis in reality, it would seem that we should apply it in every domain in which the rationale behind it is relevant. And in the case of conspiring witnesses, we ought to have disqualified them from the time they testified.

And indeed, as we have seen, at least according to Maimonides and the Ran, Abaye too holds that conspiring witnesses are a novelty, and yet he applies the disqualification retroactively. Seemingly, he does so precisely for that reason. It is a novelty that has reasoning behind it, and therefore there is no room to narrow the law.

But the difficulty remains in force with respect to Rava. Rava infers from the assumption that this is a novel law (=a scriptural decree) an obligation to narrow its scope. Is he not aware of the reasoning at the basis of this law? Does Rava really think that we kill the witnesses without any reasoning? Put differently: all the difficulties we raised above remain valid with respect to Rava's view.

Beyond this, even Abaye—and certainly the decisors who rule in accordance with him—does not disagree with the general rule that the scope of a law derived from a scriptural decree should be narrowed. Presumably everyone would agree to the rule that one has only its novelty, a rule stated explicitly or implicitly in many places in the literature of the Sages (see below). Must we say that in all the places where this rule is applied there is no reasoning at all behind the scriptural decree? In Rava's view, which speaks of executing conspiring witnesses, that is certainly impossible, since all the difficulties we have raised would then reappear.

Application of the principle 'you have only its novelty' with respect to the two kinds of scriptural decree

We saw above that one must distinguish between two types of scriptural decree. With regard to a scriptural decree that stands against reasoning, we saw that the role of the verse is to sharpen and strengthen the reasoning and to exclude contrary reasoning. In the end, the reasoning is indeed weak on its own, and therefore even after the scriptural decree has been introduced, there remains a novelty here. In such a state of affairs it is indeed reasonable to narrow the scope of the novel law to the minimum possible.

By contrast, in a scriptural decree whose fundamental problem is that it contradicts the ordinary rules of Jewish law, while its reasoning is otherwise logical—as in the Ran's understanding of the law of conspiring witnesses—there is no necessity at all to narrow the scope of the law to the minimum.

There is a completely opposite possibility: precisely in the second case there is room to minimize the departure from ordinary halakhic principles to the minimum possible, whereas when the verse teaches us a rationale, there is no point in narrowing the scope of the law, since if the rationale is valid then its validity should extend equally to all similar cases.

In any event, although it is difficult to formulate fixed laws and general principles in this matter, it seems clear that there can be different considerations which, in some cases, lead us to narrow the scope of the law, while in other cases instruct us to apply it wherever, in our judgment, the reasoning behind it is relevant (as we saw in the Meiri, who appears fairly confident about the rationale behind the law of 'a son and not a daughter,' and therefore says that everything follows from it. It would seem that the Meiri would not tend to narrow the scope of that law).

Let us now return to the case of conspiring witnesses. We have seen that Rava narrows the scope of their disqualification as much as possible, and it appears that he understands that we are dealing here with a novel scriptural decree whose underlying reasoning is still doubtful (though it cannot be entirely devoid of reasoning, for we kill on its basis, for all the considerations raised above), and is not unambiguous. In such a situation one should minimize the novelty as much as possible. By contrast, Abaye also agrees that we have here a novel scriptural decree (at least according to Maimonides), but in his view that is no reason to narrow the scope of the disqualification of conspiring witnesses. He apparently places confidence in the reasoning behind this law.

What all this has to do with the hermeneutic rule 'A matter that was included in a general category and emerged to be judged by a new rule'

We have been discussing the principle 'you have only its novelty,' which governs our treatment of scriptural decrees. We find this principle (in similar formulations) in eleven places in the literature of the Sages in the Bar-Ilan Responsa Project: Babylonian Talmud, Shevuot 25b; Temurah 13b; and Jerusalem Talmud, Pe'ah 1:4; Terumot 7:1; Pesahim 5:2; Sotah 3:1 and 9:5; Ketubot 3:1; Nazir 1:3; and Bamidbar Rabbah, parashah 10 s.v. 'and he shall wave them,' and there s.v. 'all the days.'

In ten out of those eleven places, this expression (which does not appear in exactly the same wording) refers to the hermeneutic rule: 'A matter that was included in a general category and emerged to be judged by a new rule.' It follows that this hermeneutic rule is responsible for the narrowing mode of treating scriptural decrees. That is, 'you have only its novelty' is merely an implication of the hermeneutic rule: 'A matter that was included in a general category and emerged to be judged by a new rule—you cannot return it to its general category until Scripture explicitly returns it.'

Usually, this rule operates precisely in the opposite direction: it does not allow us to re-include the novelty within the general category, meaning that it preserves its exceptional status. Here, however, we encounter it in the opposite sense: narrowing the exceptional status as much as possible.

It should be noted that in these cases we are dealing precisely with a matter that emerged from some general category, that is, with a scriptural decree of the second type (a decree that contradicts principles that apply in analogous places in Jewish law—and those analogous places are the general category from which it emerged). By contrast, a scriptural decree that stands against logic and reason did not emerge from any general category, and therefore this hermeneutic rule would seem not to address it. Here, however, we see that the treatment expressed by 'you have only its novelty' applies to such scriptural decrees as well; that is, this hermeneutic rule is applicable to them too.

Admittedly, above we raised two possibilities regarding the question of which of the two types of scriptural decree should be subject to the principle 'you have only its novelty.' We raised the possibility that it is relevant precisely to a scriptural decree of the first type, and we also raised considerations in favor of its being relevant precisely to a scriptural decree of the second type. The present consideration appears to strengthen the claim that the practice of 'you have only its novelty' applies primarily in situations of scriptural decrees of the second type, for it concerns a matter that emerged from a general category. It may be that originally this rule was applied precisely to scriptural decrees of that type, and only afterward was extended to other types of scriptural decree. This topic requires separate treatment through an examination of the full set of occurrences of this rule in the literature of the Sages, and this is not the place to elaborate.

Different applications of the principle of narrowing the scope of a scriptural decree

We saw above that the principle 'you have only its novelty' can be applied in different ways to different scriptural decrees. We will now see an even more surprising phenomenon: there are situations in which, in some cases, a certain decisor narrows the scope of the law as much as possible, while in other cases that very same decisor applies that same law in a domain wider than the minimum necessary.

In order to examine this phenomenon with respect to conspiring witnesses, we must return to the words of the Lechem Mishneh cited above, regarding the dispute between the Tur and Maimonides. As noted, at first glance it seems that the Tur and Maimonides disagree on whether the disqualification of conspiring witnesses according to Abaye is a novelty (Maimonides) or whether there is reasoning behind it (the Tur). This is also how the Lechem Mishneh understood the dispute. He ties this dispute to another dispute between them regarding a situation in which between the two groups there is contradiction together with hazama. Maimonides, in Laws of Testimony 18:2, writes as follows:

How so? Witnesses came and said: 'We saw this one kill a person,' or, 'he borrowed a maneh from so-and-so on such-and-such a day in such-and-such a place.' And 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 people all day, and none of this happened—this one did not kill, and this one did not borrow.' This is contradiction. Likewise, if they said to them: 'How can you testify thus, when this killer or this victim or this borrower or lender was with us on that day in another province?' this is contradicted testimony, for this is like saying: 'This one did not kill that one and this one did not borrow from that one, for they were with us and this event did not occur,' and so too anything similar. 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 did not kill him; but we testify that you yourselves were with us on that day in Babylonia,' then these are conspiring witnesses and are executed or pay, since the witnesses who subjected them to hazama paid no attention at all to the substance of the testimony, whether it was true or false.

Maimonides takes pains to emphasize several times that hazama must appear on its own, without contradiction. A situation of hazama and contradiction together is treated as contradiction, not as hazama. By contrast, as the Lechem Mishneh writes there, it is clear from the Tur that he disagrees with Maimonides and treats such a case as full hazama.

As noted, the Lechem Mishneh explains that here too they follow their respective approaches. The Tur understands the law that the latter witnesses are believed against the former as a logical principle, and therefore it is clear that he will say the same even in a case where hazama and contradiction appear together. For it is obvious that the reasoning that the first witnesses are litigants when speaking about themselves applies in that case as well. By contrast, Maimonides, who sees the credibility of the second group as a scriptural decree, rules that one has only its novelty. Therefore, in his view, the credibility of the latter witnesses exists only in the pure case of hazama alone, for that is certainly what the Torah spoke about, and not in any other situation. He narrows the scope of the law to the minimum, as is appropriate for a scriptural decree.

On the other hand, it is clear that Maimonides rules in the fundamental dispute in accordance with Abaye and not with Rava, and according to his view, even though this too is a special novelty of scriptural decree according to Abaye, the disqualification applies retroactively and not only from the time of the hazama, as Rava held. If so, here Maimonides in practice does not apply the principle 'you have only it from the time of its novelty.' The Tur, by contrast, follows his approach here as well, for he rules like Abaye that this is not a novelty, and therefore it applies retroactively.

A further implication of these approaches can be seen in the discussion of hazama not in the witnesses' presence.[20] In the discussion in Ketubot 20b, it is stated that if the second group subjected the first to hazama not in their presence, this is not hazama but contradiction. The commentators disagreed in understanding this rule: from Rashi there it appears that the situation is still not one of a two-against-two stalemate. Even in hazama not in their presence, although the law of 'as he plotted' is not applied to the refuted group, the testimony of the first witnesses is still certainly nullified (and not merely reduced to a two-against-two stalemate). So too in the Rivash, responsum 266 (cited by the Beit Yosef, Hoshen Mishpat sec. 38). The Rivash further innovated that the first witnesses are also disqualified in such a case (and not only is their testimony void and not accepted). But many disagreed with him on this point (see Shakh, sec. 38 subsec. 2, and Noda B'Yehuda, Even Ha-Ezer, sec. 72).

The common denominator between them is that they understand that even in hazama not in their presence we have not returned to a mere two-against-two situation. Presumably their approach is that of the Tur (and in fact, in the Rivash the reasoning of the Tur appears explicitly), namely, that there is reasoning at the basis of the credibility of the latter witnesses, and since that reasoning exists even in the case of hazama not in their presence (for the first group is still testifying about itself and is therefore like litigants), the latter witnesses are believed there as well.

But in Maimonides, Laws of Testimony 18:5, it appears explicitly that when they subjected the witnesses to hazama not in their presence this is literally a case of a two-against-two contradiction, and their testimony is disqualified only out of doubt. His language there is:

Witnesses are subjected to hazama only in their presence, but they may be contradicted not in their presence. And witnesses who were subjected to hazama not in their presence are merely contradicted. Therefore, if the witnesses who would have subjected them to hazama died before doing so in their presence, there is no testimony here, for these contradicted those.

It appears explicitly from Maimonides' wording that when hazama is carried out not in the presence of the refuted group, this is a regular case of contradiction. Apparently Maimonides follows his own approach: hazama is a novelty, and one has only its novelty. Therefore, in every situation in which that novelty was not stated, we are dealing only with contradiction.

And what is the view of the Tur on this matter? When one examines his wording in sec. 38, it appears that he holds exactly like Maimonides, that such a case is like ordinary contradiction. If so, it seems that here the Tur deviates from his own approach, and does adopt the principle 'you have only its novelty.'

The meaning of the matter: mixed approaches

The rule that emerges from our discussion is that there are tensions both in the Tur and in Maimonides with respect to the question whether they adopt the approach of 'you have only its novelty' regarding the scriptural decree of conspiring witnesses. We may now summarize this in a table (the exceptional case in each position is marked with question marks):

Issue/position	Maimonides	Tur
Is there a rationale?	No	Yes
Hazama and contradiction	Contradiction	Hazama
Hazama not in their presence	Contradiction	Contradiction ????
Does it apply retroactively?	Yes ????	Yes

The Tur generally adopts the position appropriate to the existence of a rationale at the basis of the credibility of the latter witnesses, and therefore he does not apply 'you have only its novelty.' The exception is hazama not in their presence. Maimonides, by contrast, generally follows the position that there is no rationale and this is a scriptural decree, and therefore he applies the principle that one has only its novelty. The exception is that the law of hazama applies retroactively.

What is common to both approaches is that here we see a mixed application of the principle 'you have only its novelty,' both according to the Tur and according to Maimonides. We saw above that different considerations may arise with respect to scriptural decrees as to whether to narrow their scope or not, but here we see that with respect to the very same scriptural decree there are aspects in which we narrow the scope and at the same time aspects in which we do not narrow it.

How does such a situation arise? Seemingly, if the scriptural decree in question expresses an intelligible rationale, then we ought to ignore the principle 'you have only its novelty' in all respects. By contrast, if there is no clear rationale here, or if the decree runs against general halakhic principles, then we ought to narrow the scope in all respects. How can mixed treatments be logically possible? Does the same scriptural decree have rationales that are more and less intelligible, each governing a different aspect?[21]

Beyond this, from the very existence of disputes regarding the treatment of scriptural decrees one can already see that the reasoning of the decisors plays a part in shaping the law even in discussions whose foundation is a scriptural decree. That itself hints at the existence of dimensions of reasoning even in the world of 'scriptural decrees.'

In the following subsections we will try to suggest possible explanations for the two positions. Our purpose is only to make plausible the existence and possibility of such mixed approaches. The examples will emphasize the potential richness of the ways of relating to laws that are apparently 'not understood,' that is, scriptural decrees, and how the decisor's reasoning has a place even in halakhic decision-making in such areas.

A possible explanation of Maimonides' approach

As noted, Maimonides holds that the credibility of the latter witnesses is a scriptural decree. Yet as we have seen, it cannot be that in his view there is no rationale behind this decree, for otherwise the conspiring witnesses could not be put to death. The question is what the status of that rationale is, and how it is weighed and influences the application of the principle 'you have only its novelty.'

We have seen that Maimonides follows his own approach, and from almost all the implications it emerges that he treats the credibility of the latter group as a scriptural decree. If so, it seems that in his eyes the reasoning is not so strong, or at least not entirely transparent (that is, the laws cannot be shaped on the basis of the reasoning that we understand in this case). For that reason Maimonides chooses to present this law as a scriptural decree, even though we have seen that according to him too there must undoubtedly be a rationale at the root of the law. Therefore he applies the principle 'you have only its novelty' in almost full measure.

We are left, then, to explain why with regard to the beginning of the disqualification he rules like Abaye, that it applies retroactively. Put differently: we must explain how, according to Maimonides, Abaye disputes with Rava.

A first hint is that the expression used by Rava is not the usual formulation in the literature of the Sages: 'you have only its novelty' (or similar wording).[22] Rava here uses a slightly different expression: 'you have only it from the time of its novelty.' It seems that this is a somewhat different principle, and that here we are not dealing with the ordinary rule of 'you have only its novelty.'

The explanation is that Abaye argues that although this is indeed a novelty, and therefore one should narrow interpretively (we said that scriptural decrees are handled mainly with interpretive tools and less with logical ones) its scope as much as possible, we should apply this law only in those situations about which it is clear that the Torah introduced its novelty. This is the main interpretive act that we must perform with respect to a scriptural decree: to identify the cases regarding which it is clear that the Torah was speaking.

But with respect to the axis of time, it is clear that narrowing or broadening is not an interpretive question. No one claims, from the standpoint of interpretation of the verses, that the Torah says the disqualification it is discussing takes effect only from the time of the hazama onward. The Torah introduced that the first group is lying, and once that is introduced there is no basis to distinguish between the time of the testimony and the time of the hazama. Here the existence of a rationale enters: the reason is that Maimonides also agrees that there is a rationale behind the disqualification—namely, that in reality it is clear that the first group indeed lied (and not that we kill them despite the fact that they spoke the truth, as in the naive understanding of the concept 'scriptural decree'). If so, there is no interpretive reason to narrow the scope of the disqualification only to the period from the hazama onward. If in fact they lied, then from the time they testified they were liars and disqualified. That is precisely what Abaye argues against Rava according to Maimonides. Therefore Maimonides, who rules like Abaye, disqualifies the first group retroactively. Hence, a non-interpretive narrowing cannot play a role with respect to a scriptural decree that has reasoning behind it.

All the other narrowings of the scope of the disqualification of conspiring witnesses that we listed in the table above concern only different situations. For example, when the hazama occurred not in their presence, one can say that the Torah was not speaking about that. Or when there was hazama and at the same time contradiction, one can raise an interpretive claim that the Torah did not speak about that either. By contrast, it is clearly impossible to say that the Torah was not speaking about the period between the testimony and the hazama. That would be a narrowing within the very same case, not a different case. In the same case of hazama, Rava proposes to narrow the disqualification only to the time of the hazama. But that, as noted, is not an interpretive proposal. The Torah did not address the time-axis at all, and if they are liars—and Maimonides must agree that in practice the first group is lying—there is no room whatsoever to distinguish between these times.

This reasoning is so clear that it is difficult to understand why Rava himself does not agree to it. Why, in his view, can one really distinguish between the times? Clearly Rava takes a further step. He takes a step that is not interpretive, but a halakhic narrowing. He rules that although the Torah established that the first group is lying, nevertheless he does not apply this to their disqualification except from the time of the hazama onward. This is an artificial narrowing, and it is not entirely clear how one can do it at all. Therefore Maimonides' ruling like Abaye is clear, to the point that precisely Rava's view is what requires explanation.[23]

A possible explanation of the Tur's approach

We will now try to understand the approach of the Tur. The point of departure is that the Tur maintains that there is a good rationale at the basis of the disqualification of the first group, and therefore, although this is a scriptural decree, he chooses to present the law as based on reasoning (unlike Maimonides).

As may be seen from the table, in most respects the Tur follows his own approach, ruling in accordance with that rationale—namely, that the first group is not believed because they are litigants in testifying about themselves. The exceptional case is precisely the law of hazama not in their presence, where the Tur departs from his usual pattern and treats it as a case of ordinary contradiction. In such a situation it would seem that his rationale still exists, and nevertheless he chooses to narrow the scope of the novelty of the disqualification of the first witnesses and the credibility of the latter. Why does he deviate there from his own approach?

To understand this, we must return to the discussion in Ketubot. Why does the Gemara assume that hazama must take place specifically in their presence? Rashi there (20a, s.v. 'And just as') explains as follows:

And just as witnesses are subjected to hazama only in their presence—for they come to obligate them so as to punish them, whether with life or money, and the Torah said: 'and warning was given to its owner'—let the owner of the ox come and stand over his ox (Bava Kamma 112b).

Rashi explains that the rule that hazama must be done specifically in their presence derives from the general rule that when testimony is accepted concerning someone, that person must be present.

Now we can understand the approach of the Tur very well. We saw that the basis of his reasoning is that when the second group comes, the subject of the discussion becomes the first group (and not only the event itself, which even in mere contradiction can no longer be resolved), and therefore they become litigants. By contrast, those who disagree with him apparently hold that since the testimony of the first group was initially given concerning the event, then even if afterward it is used with respect to their own fitness, it still is not considered testimony by litigants.

If so, precisely the Tur, who sees this testimony as testimony about them as litigants, since they are the subject of the testimony, must bring in here the rule that the hazama must be in their presence. If the hazama is not done in their presence, then no testimony was received about them as litigants, but only contradiction regarding the event. Therefore, according to the Tur, if the hazama was not done in their presence, what remains is only contradiction about the event. If so, this is not a formal narrowing of the scope of a scriptural decree, but the opposite: it is a direct implication of his own reasoning.

We can now understand why he treats such a case as ordinary contradiction: not because of narrowing the scope of the law of hazama, but because his rationale does not exist in such a case. The conclusion is that there is no act here of narrowing the scope of the law—meaning a ruling that stands contrary to his general doctrine—but the opposite: this is an application and implication of his very own reasoning. It is a direct continuation of the Tur's conception.

By contrast, Maimonides, who rejects the Tur's reasoning (apparently for Rabbi Shmuel Rosovsky's reason—that this is not testimony by litigants), or at least does not regard it as decisive, does not see the latter witnesses' testimony as testimony about the first witnesses. Therefore what remains is the question whether to narrow the scriptural decree or not, and here Maimonides follows his own approach and adopts a policy of narrowing the scope of a scriptural decree to the minimum possible.

The conclusion is that the Tur and Maimonides seemingly rule the same law, but each for a different reason: according to the Tur, this is an application of his reasoning; according to Maimonides, this is a narrowing of the scope of the scriptural decree concerning the credibility of the second group, in accordance with the rule 'you have only its novelty.'

F. Summary and questions

In this article we have addressed the question of the meaning of a 'scriptural decree.' We presented three main types of scriptural decree: laws that run contrary to reason; laws that run contrary to other halakhic principles; and laws that contain internal contradictions among their details.

We examined the issue of scriptural decrees through the case of the disqualification of conspiring witnesses from testimony. The law of hazama was apparently classified by Maimonides as belonging to the first type, whereas the author of Derashot HaRan classified it under the second type. The third type also appears in the context of hazama, in the rule that 'if they already caused him to be killed, they are not killed,' which is apparently an internal contradiction among the details of the law of hazama.

In general, we have seen that the medieval authorities relate to the law of hazama as a scriptural decree (the Gemara already does so, at least according to Rava), and we have identified several reasons that clearly indicate that this law must also have good reasons and justifications in logic. As we explained, it cannot be that the Torah morally and interpretively commands us to execute truthful people for the sin of falsehood.

Maimonides, who explicitly declares (Guide of the Perplexed III:31; see the citation at the beginning of the article) that every law must have rational justifications, ought to hold that there are no scriptural decrees wholly devoid of reason. Yet with respect to conspiring witnesses he himself is taken as the proponent of the position that hazama is a scriptural decree without reason. This consideration, together with the broader considerations in the discussion of hazama, led us to the conclusion that it is clear that even according to Maimonides there is a rational justification for this law. We explained the need for the verse by the need to strengthen the reasoning and exclude contrary lines of reasoning.

We distinguished among the various kinds of scriptural decree and saw that each type can lead to a different implementation of the principle 'you have only its novelty' (which, as we saw, itself apparently constitutes a certain application of the hermeneutic rule 'a matter that emerged to be judged by a new rule'). Sometimes we narrow the scope of the novel law, and sometimes we apply it wherever the reasoning that underlies it is relevant. In the context of conspiring witnesses we saw that the medieval authorities shape the law in a mixed way: some aspects are shaped by the approach of 'you have only its novelty,' while other aspects are shaped as though there were an ordinary rationale here. There is a formal narrowing, and it is applicable only to a scriptural decree that has no reasoning behind it. With respect to a scriptural decree that does have reasoning behind it, the narrowing will be interpretive in character only.

We saw that the later authorities (such as Rabbi Shmuel Rosovsky and the Lechem Mishneh) tend to explain the views of the medieval authorities more in the direction of scriptural decree and less as based on reasoning. We pointed out that this approach is highly problematic, since it cannot be, morally and interpretively, that we execute innocent people for being liars.

As for the law of hazama itself, the conclusion is that it is indeed not a scriptural decree in the sense of a law without a reason. But the position of the later authorities requires examination: what did they think? How do they reconcile themselves with the fact that one puts an innocent person to death in such an absurd manner? Is it possible that they too really intend the concept 'scriptural decree' in the sense proposed here (that is, a law introduced by a verse, but one that has reasoning at its basis)? Their words do not seem to indicate that, for if they indeed saw reasoning here, it is not clear why they would need to define it as a scriptural decree. Moreover, they saw fit to note that the Tur too must hold that this is a scriptural decree, but they do not note that Maimonides too must necessarily hold that there is reasoning here.

We should note that it is difficult to believe that we would find such an approach in an actual court that is supposed to judge the case in practice. Would judges really put to death a person they knew was innocent and calm themselves with the thought that this is a scriptural decree? There is almost no doubt that for one reason or another (=the law of a suspicious case) they would find a way to avoid it. If the judges were not truly convinced that the first group had in fact lied, they would not execute it. Is there here a difference between conceptual study in the study hall and legal ruling in court (in the sense of had we been in the Sanhedrin, no person would ever have been executed—see the end of the first chapter of Makkot)? Is this symptomatic of theoretical study in general? Or perhaps it is in fact right that matters be conducted this way (a similar difference exists in the contemporary legal world between academics and practicing jurists): the theoreticians of Jewish law establish the scriptural decree and its consequences, while the judges apply it with due regard for common sense and reality. This requires further thought throughout.

[1] Certain points that arise in this article were raised in a discussion held on the internet forum 'Stop Here, Think.' My thanks to the participants there.

[2] As a general matter, it seems correct to generalize and say that the Haredi study hall is usually closer to the first, more dogmatic school, whereas the modern study hall is closer to the second school. As we will mention below, Rabbi Gedaliah Nadel, of blessed memory, was exceptional in the Haredi landscape in this respect as well.

[3] It is possible that this is based on the superfluity of the word 'witness.'

[4] And from here it follows that the punishment imposed on them is also a novelty, but a derivative one.

[5] It is strained to hang this on the rule of splitting the statement—i.e., that we would not believe them that they were in that place, but only that they saw the act (for the former is a consequence of the latter). Moreover, the credibility of the testimony should then depend on the dispute whether one does or does not split the statement (see the discussion in Sanhedrin 9a).

[6] One can also relate to this as a kind of split credibility: they are believed to say that they were in that place for purposes of testimony about the event, but not believed to say this for purposes of opposing testimony that subjects them to hazama.

[7] The possibility that perhaps they want to kill the first witnesses (and therefore it would not help them to disqualify them as robbers or merely contradict them) is not relevant, since we are dealing here with their credibility under the strict law even before the Torah established the law of 'as he plotted.' This is like migo: before we grant credibility to the present claim, we make a comparative calculation between the quality of the present claim and that of alternative, stronger claims. The calculation is made on the assumption that we have not yet established the law of credibility of migo.

Admittedly, one may discuss what effect this very determination will have. For even with migo there is the well-known question of the Illui of Maitchet: one who knows of the credibility of migo will prefer to make the 'weaker' claim. But here too, as there, we do not take this into account (and on this matter see Rabbi Yair Aton, 'Migo as Estimation,' Meisharim 1).

[8] I saw both of these examples years ago in a short article by Rabbi David Landau, rosh yeshiva of Slobodka, Bnei Brak, in some memorial volume, and I no longer remember where.

[9] This is, of course, a proof that there must be some reasoning, but it is not itself a source for that reasoning. Above we brought several possibilities for explaining rationally the credibility of the second group.

[10] There is much room to discuss whether we really would not believe relatives in such a case. At least regarding women, the view of the author of Terumat HaDeshen is well known (see also Rema, Hoshen Mishpat end of sec. 35, and Noda B'Yehuda, second edition, sec. 58) that in incidental testimony, where one cannot use valid witnesses because the available witnesses are simply whoever happened to be there, even women are valid witnesses. The disqualification of women exists only in testimony arranged in advance, where the Torah instructs us to summon only valid witnesses. From the opening wording of the Rema there, it would appear that the same applies to all disqualified witnesses.

Admittedly, the Rema there implies that this is a rabbinic rule from an early enactment, but in Terumat HaDeshen and in Noda B'Yehuda there it appears that it has a Torah-level dimension; see there carefully. See further in Noda B'Yehuda there his dispute with the questioner as to whether this validation was said in every situation where valid witnesses are impossible, or only in situations where this is inherently the case (such as a women's bathhouse or the women's section of a synagogue).

In any event, according to our approach here, the entire difficulty from relatives falls away from the outset. A distortion of justice cannot emerge from the disqualification of relatives, for in a place of distorted justice the disqualification itself does not apply.

[11] It should be noted that some connect the saying of Shimon ben Shetah in Avot (1:9) to this case:

Shimon ben Shetah says: Examine the witnesses extensively, and be careful with your words lest from them they learn to lie.

[12] Not for nothing does the midrash about the accidental killer deal with accidental homicide, where the killer did not choose to do it, but rather 'God caused it to come to his hand.' In such a case this is a divine act, and therefore there is also a divine guarantee that everything is calculated according to divine justice. But with intentional murder there is no such guarantee, for a person has the ability to choose to murder someone, even if that person is innocent. Here, even if the victim is innocent, the Holy One is not a guarantor that he will not die, for there is free choice to sin. So too explicitly in Rabbenu Hananel on Hagigah 5a regarding 'there is one swept away without justice,' which he explains as referring to an intentional murderer (see Rabbi Mordechai Goodman, 'Is There One Swept Away Without Judgment?' Tzohar 11, summer 2002).

[13] There is a line of reasoning similar to that of divine guarantee which would specifically instruct us to believe the first witnesses more than the latter, at least in capital law (and perhaps not only there). This is a general type of reasoning that can justify a scriptural decree by saying that such decrees 'build themselves.' That is, the legal determination itself turns the situation into one in which the result will emerge justified.

In our case the reasoning would be this: if the first witnesses are lying, they do so in order to kill someone. Such a situation is certainly possible (and there have indeed been such cases), but even so, a priori it is highly implausible that someone would lie in order to kill an innocent person (especially if he is not known as that person's enemy). By contrast, if the latter witnesses are lying, they are doing so in order to save the defendant. It is possible that someone would do that even though the defendant deserves death, simply in order to save his life (even for moral reasons: he opposes capital punishment; he does not trust the court to have examined the matter well; he suspects that the first witnesses lied or erred; and so on). Therefore their presumption of fitness is impaired much less in such a case, for the lie is more plausible and far less criminal.

But all this is true only before we determine the credibility of the second witnesses, and along with it the punishment of 'as he plotted.' Once we determine that the latter are believed and impose that punishment, the situation is completely balanced: now the latter are in exactly the same position as the former. If they are lying, they are doing so in order to kill the first witnesses, and not merely to save the defendant. As stated, it is implausible that a person would lie in order to kill an innocent person. If so, the situation is now exactly balanced.

It should be noted that the punishment of 'as he plotted' now acquires a deeper meaning. It is necessary to impose on the conspiring witnesses the same punishment that would have fallen on the defendant, so that the likelihood of falsehood by the latter witnesses will be exactly equal to the likelihood of falsehood by the former. Now it really is a true two-against-two situation, and now there is room to take into account all the other considerations.

If so, the punishment of 'as he plotted' is self-building. It itself causes the law to be more reasonable and justified (or at least less unjustified).

It should further be noted that after the verdict has been carried out, the situation changes. Obviously the latter witnesses will not save the defendant, for he is already dead. Therefore the chance that they are lying is smaller, since that lie is of no use. It is therefore more likely that they are speaking the truth. This strengthens the Gemara's question why 'as he plotted' should not also be applied after the verdict has already been carried out.

In any event, after we determine that no punishment is imposed on conspiring witnesses in such a case, the chance that the latter witnesses are lying increases, for they can no longer bring about the death of the former witnesses. What reason is there to lie at all? To clear the defendant's name after his death, and all this without paying the severe price of the death of the first group. If so, once again the Torah's law is self-building.

There is no need to remark that none of these considerations can serve as the rationale for the law of 'as he plotted,' or for the rule that we do not apply 'as he did.' All these are after-the-fact justifications of the type: if we determine it this way, it will also come out right. But the opposite determination is also possible, and it too would come out right. Therefore the situation remains balanced, and one must look for an external reason why we chose to establish the law precisely this way. An after-the-fact justification cannot be the justification for the law; it can only calm the conscience where there is an external justification that contains 'holes.' In this sense, this kind of reasoning resembles the reasoning of divine guarantee.

The meaning of the argument presented here is that in any case, at least after the halakhic determination and decision that was reached by reasoning, there is here a consideration that stabilizes it so that it emerges more reasonable. In that way one can calm the conscience regarding the 'holes' in the reasoning at the basis of the law (or the cases in which that reasoning does not operate).

[14] I also saw this cited in the name of Rabbi Gedaliah Nadel, in the book BeTorato shel Rabbi Gedalia, Rabbi Yitzhak Shilat, Shilat Publishing, Ma'ale Adumim 2004. See there in the chapter 'Sources of Jewish Law' sec. 3, and in the chapter 'Following the Majority' sec. 6 and elsewhere. As is known, this is one of the foundational principles of Rabbi Gedaliah's teaching.

[15] This is unlike testimony by relatives, where even in the final analysis the testimony is not false, and there is only a prohibition against relying on it and rendering judgment on its basis. There, apparently, there is also a good reason for this prohibition, even if in practice the testimony is true. As we noted above, in the case of conspiring witnesses the Torah commands us to kill the witnesses as liars, and therefore it is clear that it views them as liars and does not suffice with merely imposing a legal prohibition on accepting their testimony.

[16] It follows from his words that even Abaye does not disagree that this is a novelty, in accordance with Maimonides (and not like the Lechem Mishneh in his understanding of the Tur).

[17] The scriptural decree to apply the punishment of 'as he plotted' only when the verdict has not yet been carried out ('as he plotted'—and not 'as he did,' or: if they already caused him to be killed, they are not killed) is apparently a scriptural decree of this type.

[18] In Encyclopaedia Talmudit, s.v. 'Scriptural Decree,' it states:

A matter that is a scriptural decree—when we are in doubt regarding it in one of the laws, we do not judge the matter by reasoning and rationale…

[19] It is possible that the consideration of loss to purchasers joins here, such that without it we would treat them in accordance with Abaye. According to this, the first formulation explaining Rava's view agrees with the second formulation. The rule 'you have only it from the time of its novelty' would then be a device for reaching more reasonable outcomes. For then the consideration of loss to purchasers also uproots Torah law out of concern for purchasers, while disregarding the expected loss to the other side. This too may perhaps be based on the fact that there is no real concern for falsehood here but only a scriptural decree. But according to this, the second formulation too would agree with the first, and the practical differences brought in the discussion require explanation; this is not the place to elaborate.

[20] See Rabbi Shmuel Rosovsky in the sources cited above.

[21] It should be noted that if we had said that with respect to applying the punishment of 'as he plotted' a certain decisor behaves one way, whereas with respect to disqualification from testimony he behaves another way, that would have been understandable. But all the aspects discussed here concern disqualification from testimony, and this is apparently based on the same rationale, only the implications are different.

[22] See above in the discussion of the hermeneutic rule 'a matter that emerged to be judged by a new rule.'

[23] It is possible that the key to the puzzle lies in what we noted above, that there may be some external consideration, such as loss to purchasers (even though it appears to be a Torah-level consideration), that leads Rava to want to narrow the novelty of the disqualification of conspiring witnesses. Only on that basis does he adopt his artificial narrowing. This requires more extended treatment.