Ketubot, Chapter 2, Lesson 46
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- The initial assumption and conclusion regarding testimony about a captive woman according to Rashi’s version
- One witness in prohibitions versus one witness for an oath
- Testimony about a woman as shifted into the framework of testimony in prohibitions
- Testimony about a captive woman: similarity to testimony about a woman and decisive differences
- Two reasons for being relatively stricter with a captive woman
- Accepting women’s testimony in places designated for women
- Sexual-status matters, personal status, and the distinction between legal and prohibition-based realms
- Self-imposed prohibition and public consequences
- Rabbi versus religious court: halakhic opinion versus legal judgment
- The Shev Shema’teta: Tosafot Rid, Maimonides, and those disqualified for the priesthood
- R. Chaim: rejecting the Shev Shema’teta and returning the disqualification to the category of sexual-status matters
- Practical differences: a woman testifying about another woman, “the mouth that prohibited,” and testimony about captivity versus testimony about purity
Summary
General Overview
The text places the topic of testimony about a captive woman against the background of the treatment of testimony about a woman, and examines whether the testimony here is legal testimony in a sexual-status matter or a factual clarification in the style of “one witness is believed in prohibitions.” It distinguishes between one witness in prohibitions as a clarification that is not formal “testimony” and therefore allows even legally disqualified witnesses, and one witness for an oath, which is real testimony and therefore requires a valid witness. It suggests that in testimony about a woman, the Sages in practice gave up the formal dimension of testimony in order to reach a factual clarification, but in testimony about a captive woman there are signs pointing both ways, especially because the captive woman is not believed about herself without “the mouth that prohibited.” It then explains the distinction between the realms of “prohibition and permission” and the legal sphere of Jewish law (Even HaEzer and Choshen Mishpat), and connects this to the question whether personal status is judged as testimony or as prohibitions. Finally, it presents a dispute among later authorities through the Shev Shema’teta and R. Chaim on Maimonides and Tosafot Rid: whether disqualifications for the priesthood (such as a captive woman, a divorced woman, or a zonah) are established by one witness under the laws of prohibitions, or require two witnesses as a sexual-status matter, from which practical differences follow regarding the credibility of women and other disqualified witnesses in this topic.
The Initial Assumption and Conclusion Regarding Testimony About a Captive Woman According to Rashi’s Version
The text presents an initial assumption according to Rashi’s version, according to which a valid witness should override one disqualified female witness, and the Talmud teaches that he does not override her. The text explains the shift from the initial assumption to the conclusion based on the question of how to understand the testimony of one witness regarding a captive woman: is it formal testimony with rules of disqualification and validity, or a factual clarification that does not depend on the status of the witness? The text points out that according to the possibility that the conclusion turns the matter into a category of prohibitions, a valid witness and a disqualified witness become equivalent.
One Witness in Prohibitions Versus One Witness for an Oath
The text states that with one witness in prohibitions, commentators generally understand that this is not a rule of legal testimony, but the acceptance of information in order to clarify reality, and therefore there is no need for two witnesses and no significance to formal disqualifications such as a relative or a woman. The text explains that with one witness for an oath, the Torah was lenient in the laws of testimony and made do with one witness in order to obligate an oath, but this remains actual testimony, and therefore the witness must be valid, and a woman or a minor cannot obligate an oath. The text presents the practical difference: in one witness for an oath, disqualified witnesses are not accepted, whereas in one witness in prohibitions they are accepted because this is not a matter of “validating disqualified witnesses” but of the absence of any requirement for testimony.
Testimony About a Woman as Shifted into the Framework of Testimony in Prohibitions
The text argues that in testimony about a woman, the Sages were lenient not only regarding the number of witnesses but also in accepting disqualified witnesses, and from this it appears that the move was to waive the formal dimension of the laws of testimony in favor of factual clarification that the husband died. The text notes that testimony to permit a woman is testimony in a sexual-status matter, which by Torah law requires two witnesses, and therefore one must explain why the Sages transformed it into the track of prohibitions, and the validation of all disqualified witnesses is seen as a sign of that. The text defines the result as a conception of “testimony in prohibitions,” in which the main thing is factual knowledge and the ordinary legal criteria have no significance.
Testimony About a Captive Woman: Similarity to Testimony About a Woman and Decisive Differences
The text suggests that regarding testimony about a captive woman one could seemingly make a move similar to testimony about a woman, because disqualified witnesses and women are accepted, and so it appears that the Sages gave up formal laws of testimony and were satisfied with an indication. The text adds that here it is even easier to say this, because by strict law the captive woman has a presumption of purity, and the whole requirement for testimony arises from the higher standard imposed in matters of lineage, which is a rabbinic requirement, and therefore those who imposed the requirement can also be lenient. On the other hand, the text emphasizes that in testimony about a captive woman, the captive herself was not believed about herself without “the mouth that prohibited,” unlike testimony about a woman where the woman is believed to say “my husband died,” and presents this as a question whether laws of testimony still remain here so that a party to the matter cannot testify, or whether there is an external reason, namely suspicion of lying. The text suggests that the simple understanding is that this is an external reason: even when formal requirements were waived, a sufficient factual clarification was still required, and in the case of a captive woman there is no presumption that “she checks carefully before marrying,” so there is more room for concern.
Two Reasons for Being Relatively Stricter with a Captive Woman
The text states that in testimony about a woman there is a presumption that “she checks carefully before marrying,” which does not exist in the case of a captive woman, because if a captive woman marries a priest and it later turns out that she had in fact become impure, the consequences are not like mamzerut, and the marriage still takes effect, so there is no “dramatic risk” that creates precision. The text adds that the social distress in testimony about a woman is more severe, because the woman is an agunah and cannot marry at all, whereas in the case of a captive woman, even if she was defiled she can still marry an Israelite and is only forbidden to a priest, so there is less need to be lenient. At the same time, the text notes that there is also less reason to be stringent with a captive woman, because the stringency is rabbinic on top of a presumption of purity.
Accepting Women’s Testimony in Places Designated for Women
The text cites Terumat HaDeshen and Noda B’Yehuda, who argue that in places designated for women one should accept women’s testimony, so that there will not be situations in which crimes occur with no possibility of punishment, and mentions the example of “the murder in the mikveh.” The text notes that one of them seems to imply that this is rabbinic law as an enactment, while the other argues that this is a Torah-level law based on logic, because it is inconceivable that the Torah would allow crime with no possibility of clarification. The text concludes from the direction that seems simplest that in those cases the laws of testimony still apply and two testimonies are needed with all the rules of testimony, and only the requirement for male witnesses was removed so as to allow a functional enforcement system.
Sexual-Status Matters, Personal Status, and the Distinction Between Legal and Prohibition-Based Realms
The text raises a difficulty in placing the captive woman under the category of sexual-status matters, because a captive woman with respect to a priest involves a prohibition and the marriage still takes effect, and this is not a forbidden-sexual relationship. The text suggests an alternative formulation: the question is not “sexual impropriety” in the sense of the severity of the prohibition, but whether this belongs to the legal realm or the realm of prohibitions, where the legal realm is characterized by a religious court and two witnesses, and the realm of prohibitions is characterized by a rabbi’s ruling and the rule that one witness is believed. The text presents Even HaEzer and Choshen Mishpat as the legal part of Jewish law, parallel to criminal law, civil law, and personal-status law in other legal systems, while Yoreh De’ah and Orach Chayim are the non-legal part. The text suggests a principled criterion: obligations that stem from another person’s right are legal and are judged in religious court, whereas moral-halakhic obligations where the other has no right of claim belong to the non-legal realm, and it brings examples such as charity and interest, along with a discussion of the rights of disabled people and how they become rights by force of law.
Self-Imposed Prohibition and Public Consequences
The text states that self-imposed prohibition is a form of credibility that works only on the person himself and does not carry full social consequences, and therefore it does not make children mamzerim and does not impose a prohibition on others who do not believe him. The text notes that because of the absence of public consequences, such questions may be able to be clarified even before a halakhic authority and not necessarily before a religious court. It illustrates that once a social determination is required regarding Jewish status or personal status, this is seen as something that necessarily belongs in religious court, and mentions conversion as a clear example of a determination of personal status.
Rabbi Versus Religious Court: Halakhic Opinion Versus Legal Judgment
The text describes a case of “annulment of marriage” in which the move was presented as a clarification that the marriage had never been valid in the first place, and not as a legal uprooting, and emphasizes that uprooting a marriage is a legal act that belongs to the great religious court. The text gives another example from a rental dispute in which a student was given a “halakhic opinion” on the basis of a description of the facts, and distinguishes this from a legal judgment that binds the parties and society. The text states that the judgment of a religious court is binding even if a rabbi gave a different halakhic instruction, because the difference is between private halakhic guidance and a legal decision with public force.
The Shev Shema’teta: Tosafot Rid, Maimonides, and Those Disqualified for the Priesthood
The text presents the Shev Shema’teta as a work written by the author of Ketzot HaChoshen in his youth, and tells an anecdote about a 13-year-old boy who made analytical comments in order to illustrate the possibility of genius at a young age. The text quotes Tosafot Rid in Kiddushin, according to whom testimony that a woman was taken captive or that she is divorced, in order to disqualify her from the priesthood, is a sexual-status matter, and brings proof from the sugya of the son of a divorced woman and the son of a chalutzah, where Rabbi Akiva compares their disqualification to a disqualification that depends on two witnesses. Against this, it sets Maimonides in the laws of the Sanhedrin, who rules that “two witnesses are required only at the time of the act, but the prohibition itself can be established by one witness,” and brings the example “this woman is divorced or she is a zonah,” according to which one witness can establish the prohibition for the purpose of lashes after warning and witnesses to the act. The text describes the move of the Shev Shema’teta, which reconciles this by saying that according to Maimonides one witness is believed for certain disqualifications for the priesthood under the laws of prohibitions, and proposes a distinction between a disqualification created “incidentally” and communal disqualifications “by birth,” such as a mamzer, the son of a divorced woman, and the son of a chalutzah, where one witness is not believed and the father’s credibility is needed by virtue of “he shall recognize.”
R. Chaim: Rejecting the Shev Shema’teta and Returning the Disqualification to the Category of Sexual-Status Matters
The text cites R. Chaim’s analysis of Maimonides and the Raavad in the topic of sotah and states that for establishing the status of zonah, one witness is of no help, because everywhere “a sexual-status matter cannot be established by fewer than two,” and testimony about promiscuity and impurity is a legal matter of personal status. The text explains that R. Chaim gives a novel interpretation of the law of lashes “because of zonah,” in that the prohibition established by one witness creates a situation in which the very act of intercourse itself makes the woman a zonah, and therefore the lashes are incurred for that very act of intercourse. The text notes that the straightforward understanding is like R. Chaim, and the Shev Shema’teta is presented as a novelty, but emphasizes that the main discussion concerns testimony about the captivity itself, and not necessarily testimony about her purity after it is already known that she was taken captive.
Practical Differences: A Woman Testifying About Another Woman, “The Mouth That Prohibited,” and Testimony About Captivity Versus Testimony About Purity
The text points to a central practical difference: if testimony about captivity falls under the laws of prohibitions, then a woman and other disqualified witnesses can also testify that she was taken captive, and then in a structure of “one woman testifying about another,” the status of “the mouth that prohibited” changes. The text brings the words of the Rosh, according to whom even disqualified witnesses who testify that she was taken captive can undermine “the mouth that prohibited,” even though they are not believed to prohibit her in practice, and presents this as a difficulty against the approach of the Shev Shema’teta. The text concludes by presenting R. David, who develops the topic around the dispute whether testimony about a captive woman is testimony or prohibitions, and cites his difficulty from Tosafot that a woman is not believed to say about another woman that she is impure, because if this were a case of one witness being believed in prohibitions there would have been reason to believe her. The text emphasizes that one must distinguish between testimony about the captivity itself, where they were not lenient, and testimony about the purity of the captive woman, where they were lenient because the stringency is rabbinic, and therefore it is possible that even according to the stricter views regarding the captivity itself, her purity is clarified within the framework of prohibitions.
Full Transcript
[Rabbi Michael Abraham] Okay, let’s begin. We’re in the topic of testimony about a captive woman, with the question of testimony about a woman also in the background: what is the relationship between testimony about a captive woman and testimony about a woman? Last time we saw the Talmud and the different implications in the underlying structure of the Talmud, and among other things I spoke about the initial assumption according to Rashi’s version there, that there was some initial assumption that one valid witness would override one disqualified female witness, and the Talmud teaches us that he doesn’t, that he does not override her. And I said there that it could be that the explanation of the difference between the initial assumption and the conclusion lies in the question of how we understand the testimony of one witness regarding a captive woman. Because one witness appears in Jewish law in several contexts, meaning contexts in which he is believed. One context is one witness in prohibitions, which is a general rule that in prohibitions one witness is believed, whether to remove from an existing presumption or not to remove from an existing presumption. I made a small remark about that once, but we won’t go into it here. And there it is commonly understood by all the commentators that this is not really a law of testimony at all. Meaning, if I go to someone and he tells me, listen, this meat is kosher, then I can eat it because I believe him that this meat is kosher. In other words, I simply have an assessment that the meat is kosher; I have no reason to doubt it, so I eat it. That’s not testimony. Testimony is something with some formal legal status, and in this case it’s not that they were lenient and made do with one witness; rather, what they said is that testimony isn’t needed. So what is needed? An indication that this is the reality. Simply, in order to eat the meat I need to know that it’s kosher. How do I know that it’s kosher? Look at every other area of life—what do you rely on when you receive one kind of information or another? Do the same thing here with regard to prohibitions. So if one witness comes and tells you, and you have no reason to suspect that he’s a liar or anything like that, why wouldn’t you accept it? There isn’t some special law of one witness here. Any other clarification can also be good. If there’s a miggo, if there’s—I don’t know what—a presumption, a majority, anything else, that’s also fine. Meaning, as long as the reality has become clear to me, that’s enough. That’s one side of it. And therefore, of course, all witnesses who are legally disqualified are accepted with regard to prohibitions, because the fact that they are disqualified in the legal sense shouldn’t bother me when I’m asking what the truth is. I’m talking now about disqualified in the formal sense, not disqualified in the sense that they are suspected of lying. If he’s suspected of lying, then I don’t even know what the truth is when he says something. But if he’s formally disqualified—a relative, a woman, I don’t know, all kinds of things like that—that doesn’t bother me. The main thing is that I know what the truth is. So it’s not that they validated disqualified witnesses here; they simply didn’t require testimony in the first place, so disqualification plays no role. It’s not that they were lenient here and validated disqualified witnesses too; rather, disqualification just doesn’t play a role. Meaning, testimony isn’t needed, and therefore disqualification is irrelevant.
[Speaker B] When you say a valid witness, that means that a woman and a minor also can’t obligate an oath?
[Rabbi Michael Abraham] Right. They can’t obligate an oath. No. Okay. Therefore all the laws of testimony apply here except for the law that you need two witnesses. That’s it. Meaning, aside from that, all the laws of testimony apply—a valid witness and everything else that’s needed—only the number two is dropped in the case of an oath. So that’s the antithesis. If testimony in prohibitions is an assessment, testimony for an oath is actual testimony; they were just lenient that one witness is enough. The implication is that disqualified witnesses in the case of an oath are not accepted, while in prohibitions they are accepted. For example, if we take testimony about a woman before we get to testimony about a captive woman—if we take testimony about a woman—then in testimony about a woman they were lenient to accept one witness, but they were also lenient to accept any disqualified witness. Seemingly that means they equated it with the law that one witness is believed in prohibitions, and not that they merely waived the requirement of two witnesses and made do…
[Speaker C] Which maybe even means that in testimony about a woman they were more lenient than with one witness for an oath?
[Rabbi Michael Abraham] And it would still be under the laws of testimony. There’s no indication of that. In principle you could say that, and more than that, it’s maybe even a little called for, because one witness who comes to permit a woman is certainly giving testimony about a sexual-status matter. Meaning, to permit a woman or forbid a woman—that is testimony in a sexual-status matter. A sexual-status matter requires two witnesses, right? So if the Sages were lenient and said okay, you don’t need two, we’ll make do with one, there’s no reason—or at least there needs to be a very good reason—to say that they gave up the laws of testimony altogether and said, okay, let’s treat this like prohibitions. But the very fact that they validated every disqualified witness still seems to me to say that this is not testimony. Yes, they gave up the laws of testimony, not just relaxed the requirement from two to one.
[Speaker D] And the proof is that even originally, the one who held that way did not derive it from testimony but from clarification of what happened.
[Rabbi Michael Abraham] Right, from proof. So therefore with testimony about a woman also, it seems to me that the simple understanding is that we’re dealing here with testimony in prohibitions, even though of course this is a sexual-status matter. But once the Sages were lenient, they said: we are giving up the formal dimension—and we already discussed this—we’re giving up the formal dimension, and all I want is the factual clarification that the husband really died. And therefore this is exactly the definition of prohibitions. All I need is simply to know what the reality is. Nothing formal bothers me, but I do have to know what the reality is. And in that sense testimony about a woman is really a classic example of the Sages waiving—or of the leniency by which the Sages transformed it into testimony in prohibitions. What’s really needed here is testimony in prohibitions. The question is what happens with testimony about a captive woman.
[Speaker D] On the face of it—wait, one second, before that, I have an unrelated question. In places where women’s testimony is accepted—not testimony about a woman—does that work because of one witness, or is it fully valid testimony?
[Rabbi Michael Abraham] What does it mean, what does it mean, “places where women’s testimony is accepted”? In the religious courts today?
[Speaker D] What—
[Rabbi Michael Abraham] What do you mean by women’s testimony being accepted?
[Speaker D] In religious courts, say there was some fight in the street and in the women’s section a woman saw it and testified about it.
[Rabbi Michael Abraham] That—in principle a woman is disqualified from testimony in a case like that. There is Noda B’Yehuda, Terumat HaDeshen, who want to say that in places specifically designated for women, women’s testimony is also accepted. I’m saying, there’s a difference between Terumat HaDeshen and Noda B’Yehuda. Noda B’Yehuda, it seems to me—or one of them, I don’t remember anymore which said what—one of them implies that this is rabbinic law. It’s an enactment, because otherwise in a place designated—yes, we talked about Agatha Christie, right? Murder in the mikveh. Meaning, when someone goes into the mikveh he can do whatever he wants, because all the witnesses there are women. So basically you could carry out a mass slaughter there in full view of all Israel and nobody would be able to do anything to you. So it makes sense that the Sages would enact that in such a situation we also accept women’s testimony. Now, by contrast, the other one—again, either Noda B’Yehuda or Terumat HaDeshen—argues that this is Torah law, but his reasoning is apparently the same reasoning. Namely, that at the Torah level it cannot be that the Torah would allow such a situation to happen, that a person commits a crime and comes out clean. So here too, I’m not sure exactly how to relate to this. Do I say: let’s take the woman as a witness, but we still have laws of testimony here? Or do we actually give up the laws of testimony altogether? There isn’t really much practical difference, because again, let’s say someone entered—take an example. Suppose a man entered the mikveh, and he’s not even a disqualified witness, actually, he’s a valid witness. He entered the mikveh and saw the murder. Okay? Would we accept his testimony as one witness? Or would we accept the testimony of one woman and not two in such a case? It seems to me not. I don’t remember right now exactly what they say there, but it seems to me not. They were lenient to accept women’s testimony, but you still need two, with all the rules of testimony. That’s an indication that we really are dealing here with laws of testimony; they just waived the criterion that the witness has to be a man, because otherwise we wouldn’t be able to receive testimony in such a situation.
[Speaker D] Yes, that’s what I was asking.
[Rabbi Michael Abraham] So there, on the simple level, it seems that the laws of testimony do apply. Okay? But with a captive woman, with testimony about a woman, they were lenient to accept all disqualified witnesses, not just one. So there it seems they already moved it into the territory—into the territory—of one witness being believed in prohibitions. The question is what happens with a captive woman. Seemingly, again, the same move as in testimony about a woman. On the one hand this is a sexual-status matter. You are coming to forbid her to a priest. That’s personal status; personal status belongs to Even HaEzer and basically requires testimony, testimony of two. Only the Sages were lenient. Now, what does it mean that the Sages were lenient? You could discuss whether the Sages were lenient and merely waived the requirement of two and said one is enough. Apparently that’s not what happened here, because in practice they also validated disqualified witnesses and women and so on. Meaning, they gave up completely. And then it makes sense to say that this is like testimony about a woman, like testimony about a woman where they basically transferred it—through a rabbinic enactment—into the framework of one witness being believed in prohibitions. Here it is of course much easier, because here the whole need for testimony is only rabbinic, because after all she has a presumption of purity. And everything they required here, the whole reason they required testimony, is because they imposed a higher standard in matters of lineage, which is a rabbinic requirement. So since that’s the case, the Sages who required it could also be lenient. So they say: from my point of view, what I want is not testimony but simply an indication. Therefore, despite the fact that we are dealing here with a sexual-status matter or with personal status, there is still room to say that this is testimony in prohibitions, because by strict law no testimony is needed here at all. Everything is fine. So therefore you can certainly say that this is testimony in prohibitions.
[Speaker D] You can also learn it from another direction, though, not only in this way, going from the end back to the beginning. Because they were lenient, I can say that. You can also look at it differently. Why should this even be a sexual-status matter? Someone really said this—that the fact that a priest is forbidden to marry a woman of a certain type isn’t in the category of sexual impropriety.
[Rabbi Michael Abraham] In a moment—I’ll talk about that in just a second. That’s a good question. I’ll get back to it in a moment. It’s commonly thought that personal status is a sexual-status matter, every question of personal status, meaning the laws of what is permitted and forbidden in marriage, everything connected to personal status is called a sexual-status matter, even though clearly she is not a forbidden relative to the priest—it’s only a prohibition, not a forbidden-incest category. But it’s commonly thought to belong to that category; I’ll come back to that in a moment. On the other hand, with testimony about a captive woman, they did not believe the captive woman about herself, unlike testimony about a woman. A woman can say “my husband died” and remarry. The captive woman cannot say “I am pure”—unless of course she has “the mouth that prohibited,” but without “the mouth that prohibited,” she cannot say “I am pure”; they do not believe her. So they accepted testimony from a woman, they accepted testimony from disqualified witnesses, testimony from one witness, but they did not accept her own testimony. Meaning, there is some limitation here. The question is whether this means that some laws of testimony still remain here, so that a litigant or involved party cannot testify about himself, or whether there is some side reason. So as I said last time, the simple understanding is that this is a side reason. Why? Because what really is the difference between testimony about a captive woman and testimony about a woman? I said there are two differences here. One difference is that in testimony about a woman there is the presumption that “she checks carefully before marrying,” and in the case of a captive woman there isn’t. Why not? Because with a captive woman, even if she married a priest and they had children and in the end it turned out that she had not been defiled—well, that’s not such a great disaster. Fine, so she—it’s not a forbidden-incest relationship, the children are not mamzerim. Yes, it’s not such a dramatic risk. The marriage to the priest takes effect; the children are not mamzerim. In other words, it’s not all the horrors that we saw there in the sugya in Yevamot, in the Mishnah in Yevamot.
[Speaker E] And from the outset she doesn’t even have that presumption of “she checks carefully before marrying” at all—she knows what happened; she doesn’t need to investigate the—
[Rabbi Michael Abraham] That—she knows the truth. No, no, it doesn’t matter. Precisely because of “she checks carefully before marrying,” then believe her that the truth is probably that she was not defiled, because if the truth were that she was defiled she wouldn’t take the risk. But there is no risk, or the risk isn’t all that great. Okay? So that’s one side. And the second side of the difference is that the need, or the distress, that forces the Sages to make an enactment is smaller, because in the case of a woman who is an agunah and her husband’s fate is unknown, she cannot marry anyone, which is a severe distress. So here the Sages are willing to go further. By contrast, in the case of a captive woman, even if she was defiled she can still marry an Israelite; she just can’t marry a priest. There isn’t some man she has to leave, there isn’t some very severe limitation on whom she may marry, so it isn’t such a disaster and there is less reason to be lenient. As I said before, on the other hand there is also less reason to be stringent, because she has a presumption of purity and this whole stringency is only a rabbinic requirement. So in short, there are quite substantial differences here between testimony about a woman and testimony about a captive woman, which leaves this as an open question. Meaning, one could have said that testimony about a captive woman is exactly like testimony about a woman: it was turned into one witness being believed in prohibitions. Why is the woman herself not believed about herself? Because even on the level of factual clarification I can’t rely on it when she says she was not defiled, because she isn’t taking much of a risk, so it could be that she’s lying. After all, we saw that we do not give up on factual clarification. Even in testimony about a woman we give up only on formal requirements, but we still want to be sure there is no factual problem. Now here, when the woman testifies about herself that she was not defiled, we definitely still remain in doubt lest there be a factual problem, and therefore we cannot be lenient with her. And that would mean that testimony about a captive woman is also basically just one witness believed in prohibitions; we just have to check each time that the factual problem has really been resolved to our satisfaction. One could also say no, that in testimony about a captive woman this is governed by laws of testimony, with all sorts of leniencies in those laws—that one witness is believed, maybe even a disqualified witness—but as for her about herself, that leniency was not extended. Fine, maybe. I don’t know. You can say it that way, and you can say it the other way.
[Speaker C] But here we’re talking about testimony about a captive woman where there are witnesses that she was taken captive, and that’s not—
[Rabbi Michael Abraham] No, no, I’m talking about testimony that she remained pure. Testimony that she was taken captive—one witness is not enough for that, apparently. We’ll still have to look at that too in a moment. But on the face of it, when they come to forbid her to a priest—but if she comes and says that she is pure, or someone else says that she is pure, then apparently they did believe one witness. Okay? So that’s the background to the issue. Now let’s look a bit—I’m sharing the page. Maybe before I get into the Shema’teta and the sources, just one more comment on what was asked here earlier. What is the motivation at all for associating testimony about a captive woman and testimony about a woman with the category of a sexual-status matter? In testimony about a woman that’s pretty clear—that’s a case of forbidden sexual status.
[Speaker C] If—
[Rabbi Michael Abraham] If her husband is alive, then she is a married woman, so she is actually a forbidden sexual relationship. But why testimony about a captive woman?
[Speaker C] As far as a priest is concerned, that too is—
[Rabbi Michael Abraham] No, but she is not a forbidden sexual relation; it’s just a prohibition where the marriage still takes effect.
[Speaker C] Once there is intercourse, that makes her a zonah.
[Rabbi Michael Abraham] Fine, so what? It still isn’t a forbidden-incest prohibition; it’s just a prohibition. The point is this: maybe in the background of all this we need to remember that prohibitions and the legal world are two separate categories. I already spoke about this in the past—I don’t remember whether this year or in previous years—but prohibitions and the legal category are two different categories. In prohibitions one witness is believed; in the legal category, two witnesses are believed. In prohibitions, the one who rules is a rabbi, not a religious court. In legal matters, the religious court rules. Okay? There are many differences between what happens in the legal world and what happens in the world of prohibition and permission. Even in studying for exams today, there are studies for rabbinic ordination and studies for judgeship. Studies for rabbinic ordination are studies for ruling on prohibition and permission: laws of the Sabbath, forbidden foods—Sabbath, Orach Chayim and Yoreh De’ah. Yes, in other words, festivals, blessings, prayer, Sabbath, forbidden foods, tithes. What?
[Speaker D] Every year they add more material because there are too many test-takers.
[Rabbi Michael Abraham] Okay, I don’t know, I’m not familiar. In any case, Orach Chayim and Yoreh De’ah are what are called studies for ordination. Choshen Mishpat and Even HaEzer are what are called studies for judgeship. There you basically…
[Speaker D] Prohibitions are more between a person and himself.
[Rabbi Michael Abraham] Yes, in a moment I’ll get to what distinguishes them, but that’s called studies for judgeship. Maybe you could call that the legal sphere of Jewish law—Even HaEzer and Choshen Mishpat. What is my indication? Look, say, at other legal systems in the world. Other legal systems in the world do not get into the question of what you do on certain days, what blessings you make and what prayers you say, what you’re allowed to eat and what you’re forbidden to eat. That’s irrelevant. What do they deal with? They deal mainly with two things, or maybe three: criminal law, civil law, and personal status. Right? Personal status means marriage and divorce. Criminal law means theft, murder, injuries to others, loans and so on—sorry, not loans. Loans, agency, contracts, etc.—that’s civil law. Okay? In our language: Choshen Mishpat and Even HaEzer. Right? Who may or may not marry whom, who is married and who is not married—that’s personal status. In Choshen Mishpat it’s monetary law. Why do legal systems deal with those two, while other matters they don’t touch? Because legal systems have before their eyes the obligation to regulate relationships among people in society. That’s what is called public law. Okay? It’s social law. They don’t deal with what I do by myself at home or what I don’t do—do whatever you want. What they do deal with is what affects other members of society. That society has to regulate through law, the legal system, the enforcement system, and so on. So what kinds of things affect others? Monetary law is disputes between people. When I own something, everyone else is forbidden to touch it. Society has to recognize that this thing belongs to me; therefore it’s a legal matter. A couple that gets married—that is of course a matter of personal status—also affects society, because if she is married to me she cannot marry someone else; if she is married to someone else, I may not marry her. We have mutual obligations if we are married; it has significance regarding our children. All those things are status, or social standing, and therefore personal status too is something that every legal system in the world handles in one way or another—of course on a much smaller scale than in Jewish law, but still it is perceived as a social issue, as personal status, and therefore the court deals with it. Okay? The court deals with that and the law deals with that. So in Jewish law too, when we deal with the legal layers, with what appears in other legal systems, that is called the legal part of Jewish law, namely Choshen Mishpat and Even HaEzer. Jewish law has other parts—Yoreh De’ah and Orach Chayim—which are the non-legal parts of Jewish law. Jewish law has things that other legal systems don’t have, namely the halakhic parts, let’s call them that—what in halakhic jargon is called prohibition and permission. Between man and God?
[Speaker C] What? That’s between man and God. And it’s also not only in Jewish law.
[Rabbi Michael Abraham] That’s not entirely precise, because I think I talked about this: in Yoreh De’ah, for example, you find the prohibition of interest and the commandment of charity. Now the prohibition of interest and the commandment of charity are between man and his fellow man, and they also involve money. So why don’t they appear in Choshen Mishpat?
[Speaker C] Do they appear in both or only in—?
[Rabbi Michael Abraham] No, no, only in Yoreh De’ah. Why does it appear in Yoreh De’ah? After all, that’s ostensibly between man and man and it concerns money.
[Speaker E] But it’s not an obligation toward me.
[Rabbi Michael Abraham] Right, it is an obligation on me; it is not his right.
[Speaker E] It’s his right—it’s not the right to—
[Rabbi Michael Abraham] Meaning, the claim is that what appears in Choshen Mishpat, and also in Even HaEzer, are obligations imposed on me whose basis is another person’s right against me. For example, if I borrowed from someone, he has the right that I repay the loan. So I have an obligation to repay it. Obligations imposed on me whose basis is another person’s right—those are legal obligations. Okay? By contrast, obligations I have toward someone else, which are not accompanied by a right that the other person has with respect to me—that is not Choshen Mishpat, not part of the legal sphere. For example, interest and charity are obligations on me to give charity to the poor person or not to take interest from the borrower. Can the poor person sue me in religious court to make me give him charity? If I didn’t give, I failed to fulfill my obligation. No, he cannot sue me. Why not? Because he does not have a right to receive charity from me. I have an obligation to give him, but he does not have a right to receive it from me. Therefore this is part of the halakhic sphere and not the legal sphere. The legal sphere is what happens when your rights are violated and you petition a religious court to protect your rights. But if I don’t fulfill my obligations, that’s none of your grandmother’s business. Even if my obligations are toward you, that makes no difference at all. As long as you don’t have a right, then my obligation toward you is not an obligation that is your concern.
[Speaker F] He has no right because he needs a status—
[Speaker B] Social recognition for that right.
[Rabbi Michael Abraham] Again?
[Speaker B] He needs to be socially recognized in that right.
[Rabbi Michael Abraham] No, there has to be recognition—no, you can socially recognize him as poor, but that doesn’t change anything.
[Speaker F] The Torah simply did not give him a right to claim charity, that’s all.
[Rabbi Michael Abraham] Exactly, he is not entitled to it. It’s an obligation on me; it’s not something that is owed to him. Something that is owed to him also creates an obligation on me, but not everything that is an obligation on me also means that it is owed to him. We once talked about the Vilna Gaon— I’m almost certain about the Gra—
[Speaker D] In tort law, right?
[Rabbi Michael Abraham] The Gra in tort law regarding being liable in the heavenly court, yes. The Hashlama and the Meiri say that this is really legal.
[Speaker D] Because it’s prohibition-based and not legal.
[Rabbi Michael Abraham] But the Hashlama and the Meiri argue that it is really legal, that if you don’t pay it you’re a robber. But yes, I think I talked about this in the context of disabled people. The demonstrations by disabled people, where they are supposedly standing up for their rights, so-called—yes? Disabled people have no rights. Society has an obligation, society has an obligation to make sure that people do not suffer too much, that they live at a reasonable standard. But that is a commandment on me; that is Yoreh De’ah, not Choshen Mishpat. You cannot sue me to make me give you charity. Assistance to disabled people is charity.
[Speaker G] Wait, that’s also not for disabled veterans?
[Rabbi Michael Abraham] Again, I can’t hear. What—
[Speaker G] Wait, earlier… I have a question: does this also apply to people who became disabled after being sent to war by some entity?
[Rabbi Michael Abraham] Those are already gray areas—you can discuss them. Let’s say it’s clear that once the law determines that they must be given assistance, then it is owed to them. It becomes a right. But it becomes a right because the law gave them that right. But they cannot demonstrate in order to demand that they be given a right. They can demonstrate—sorry—they cannot claim that a right must be granted to them. Demonstrating is allowed, fine; if they want to change the law, that’s fine. But statements as if “it is owed to us,” as if “what do you mean, how are you infringing our rights”—you have no such rights. As long as the legal system has not given you that right, it does not exist. Okay? Now, you can argue that on the moral level—even before the law established it—if you sent someone to war and he was injured on your behalf, then you have some obligation; he has a right to expect that you will help him. And in that sense perhaps it is a right that exists even before the legislator formally grants it. On the contrary, there is a kind of natural law that says that as a result of this the legislator ought to grant the right, because in essence the right already exists on the moral level. So that is already a gray area. But in the context of ordinary disabled people, not disabled veterans, there of course the disabled person has no right; we have an obligation to help him. True, once the law is enacted, now he already has a right, because we gave it to him. Now if we don’t pay him, he can sue in court for his rights, because once it was given to him, it is his right. Okay? But he cannot sue for rights he doesn’t have. If he doesn’t have them, then he doesn’t have them, so they are not his rights.
[Speaker C] What about the priestly gifts? The owner of the field can decide whom he wants to give them to.
[Rabbi Michael Abraham] Right, that’s a big question regarding priestly gifts, in Bava Metzia, in the passage about someone who fell on a found object and left pe’ah, and there there’s a long discussion about the relationship between the monetary obligation and the prohibition involved in priestly gifts. It’s a very, very complicated question. There are those who want to argue that priestly gifts, or at least some of them, belong to the priestly tribe even beforehand, and all I have is only the right to decide which one of them gets it—what’s the term, it slipped my mind—benefit of discretion. I have discretionary benefit, meaning I can decide which member of the priestly tribe I’ll give it to, and once I have that right, then every member of the priestly tribe would pay me so that I give it to him, because I have the right to give it, so it turns out that right is worth money. And then it comes out that I too have some kind of ownership over the priestly gifts. But there’s a conception here that says that first of all it belongs to the priestly tribe, even if not to a specific priest. Okay? And with priests known to receive gifts regularly, maybe it actually belongs to that particular priest, if there’s a priest I give to regularly, then it already really belongs to him. So in short, priestly gifts are a whole story.
[Speaker D] Also first-fruits in the Sabbatical year—I once heard that if I bring first-fruits, that means I own the land, and in the Sabbatical year there are no first-fruits.
[Rabbi Michael Abraham] But there aren’t, there aren’t first-fruits. There are no first-fruits in the Sabbatical year. Okay. So the claim is that, in short, what I want to say—let’s get back to our topic—now I’ll ask the issue in a different formulation: with the testimony about a captive woman and the testimony of a woman, I’m not going to ask whether this is a sexual-status matter or not, but rather whether this is a legal matter or a prohibition matter. Do you understand the difference? If I ask whether it’s a sexual-status matter—she’s not a forbidden sexual relation; a captive woman who is forbidden to a priest is a prohibition, not a sexual-status prohibition. Okay? But if I ask whether this is a legal matter or a prohibition matter.
[Speaker C] So here you’re saying it’s legal?
[Rabbi Michael Abraham] It’s a legal matter, right. The simple understanding is that it’s a legal matter.
[Speaker C] And what about personal status?
[Rabbi Michael Abraham] It’s personal status, right. It’s a question of marriage and divorce, who is permitted and who is forbidden to whom—that’s personal status, it’s a public matter, and therefore it belongs to the legal aspect or the legal part of Jewish law, not to the prohibitory part of Jewish law. And therefore I would expect…
[Speaker D] What? On the other hand, some of the laws are contingent and receive certain conditions that apply to priests, for example that they’re allowed to eat terumah.
[Rabbi Michael Abraham] No, fine, but that’s their private business. But whether they marry or don’t marry, are married or not married—that’s a public matter. Even in the case of a private individual there’s a difference between whom he is allowed or forbidden to marry and something he is forbidden to eat, even if he isn’t a priest. And still, what he is forbidden to eat is Yoreh De’ah, and whom he is forbidden to marry is Even HaEzer.
[Speaker C] Maybe the very act of saying whether a woman was taken captive, and saying whether she is unmarried or whatever—that’s prohibition law, but the result regarding personal status…
[Rabbi Michael Abraham] We’ll talk about that more when we get to the Sabbatical year and we’ll see more there, but maybe, maybe.
[Speaker H] Testimony about a woman is legal, but captivity is prohibition law. Why would captivity be on the level of…
[Rabbi Michael Abraham] Because what we’re really saying is not just some prohibition. There are implications here: her status affects the children, her status affects marriage and divorce, there is a public interest in what’s happening there. The public has to institutionalize and oversee what happens in the area of marriage and divorce and in the area of personal status. And therefore this is basically a legal matter. So then, for example, when the woman goes and says—the discussion whether she was taken captive or not taken captive—is that done before a rabbi or before a religious court? Before a religious court. Before a religious court, right. Why? A religious court, right. Why shouldn’t she go to a rabbi and ask him whether she is allowed to marry the priest or forbidden to him?
[Speaker D] It’s legal—you need two witnesses here…
[Rabbi Michael Abraham] It’s a legal matter. No, no—you don’t need two witnesses; we saw that you don’t need two witnesses. But to say that she was taken captive—no, to testify that they know she was taken captive. Now she wants to marry, and she says she is pure. All right? So she needs to go to a religious court to permit her to marry. Why a religious court? It’s just a question of prohibition and permission. Is she allowed to marry or forbidden to marry?
[Speaker F] Maybe because a religious court is something that affects society?
[Rabbi Michael Abraham] Right. Once it’s a matter of personal status, then it basically belongs to the legal branch of Jewish law. And therefore the term “a sexual-status matter,” I think, is better translated as the question whether this is a legal issue or a prohibition issue—not the question whether it is a sexual-status matter or not. Whether it is a sexual-status matter or not is only a question of the severity of the prohibition within personal status. Is it a forbidden sexual relation, or only a prohibition? But still, categorically speaking, both of these belong to personal status. And therefore they are clarified in a religious court and not by a private individual.
[Speaker E] And on the other hand, even though part of this is now self-imposed prohibition, which means that if she prohibits herself, then it really is a matter of prohibition and permission.
[Rabbi Michael Abraham] With self-imposed prohibition, it really may be that a rabbi alone can tell her that it’s forbidden. Because it’s only forbidden to her; it isn’t forbidden to someone else. And it has no implications for the children either. Meaning, suppose she says that she is forbidden to someone, that she is a married woman, and nevertheless she married him. Now it’s self-imposed prohibition; we don’t believe her that she is a married woman. Now she married someone and had children. The children are not mamzerim.
[Speaker I] What, really?
[Rabbi Michael Abraham] No, of course not. What she does to herself is only—it’s like a vow, what we saw. Meaning, that credibility applies only to herself. She’s not believed to turn her husband into someone violating a prohibition as well. He thinks she’s permitted. What is it that she placed a prohibition on herself—that’s her problem, not my problem.
[Speaker F] From the standpoint of truth, are they lacking the truth that she really isn’t forbidden?
[Rabbi Michael Abraham] Yes, the legal truth, yes—that she is not forbidden.
[Speaker D] It’s like a person who testifies that he converted without witnesses. So he can testify about himself that he isn’t Jewish, but not about his sons.
[Rabbi Michael Abraham] Yes, right. Therefore it has no—in essence what comes out is that it has no social implications. And then it really becomes some kind of halakhic issue and not a legal issue. So with self-imposed prohibition there is definitely room to discuss it. It may very well be that a halakhic authority could handle it and not only judges in a religious court.
[Speaker D] What about if she goes to a gentile and lives with a gentile?
[Rabbi Michael Abraham] No, there it’s clear that it’s a religious court, that it requires one.
[Speaker D] Why? But their children are Jewish. What effect is there here on…
[Rabbi Michael Abraham] The Jewish people or society? You need to rule that they’re Jewish. What’s the issue? What’s the discussion? The question is whether the children are Jewish.
[Speaker F] And in order to…
[Rabbi Michael Abraham] To determine that the children are Jewish, you need judges. The judges will determine that they are Jewish, fine. But in order to determine whether someone is Jewish or not, that is personal status par excellence. That is certainly a determination for a religious court. Therefore in conversion a religious court has to be present.
[Speaker F] Why? In every ordinary situation—say in our society in Israel—a Jewish man and woman marry, children are born, and there’s no religious court determining their status. Naturally they are Jewish and continue to be Jewish; they don’t need to go to a religious court or anything like that.
[Rabbi Michael Abraham] They don’t need to because the marriage itself was socially registered.
[Speaker F] And suppose a couple, a Jewish couple, a Jewish man and woman, don’t marry through the rabbinate? Their children are still Jewish.
[Rabbi Michael Abraham] Says who? It requires clarification in a religious court. And the religious court may determine that they are Jewish. That’s a question—it’s a question of personal status. Again, regardless of what the religious court will determine. It may be that the religious court will determine that they are Jewish. But the discussion whether they are Jewish or not is a discussion of personal status. A discussion of personal status has to take place in a religious court. I’ll give you another example—someone once pointed this out to me, and it got me thinking. I sat on a religious court that annulled a marriage. I did that twice—annulled a marriage. Now in one of the cases where we annulled the marriage, it was a case where the claim was that the woman had never consented on those terms. Meaning, the man fled abroad the day after the marriage ceremony, never lived with her at all, wasn’t even with her on the first night, and simply disappeared. So we said that she had not consented on those terms, and therefore the marriage was void even without a get. That was the claim. So someone asked me, “Tell me, why did you even sit as a religious court? It’s just a question of prohibition and permission. All you’re asking yourself is whether the marriage was valid or invalid. That’s a halakhic question. Ask a halakhic authority and he’ll tell you the marriage wasn’t…” Suppose there was, say, not enough to disqualify a witness—suppose a disqualified witness is known to be disqualified.
[Speaker C] Now someone comes and says: the marriage took place in the presence of a disqualified witness, therefore it isn’t a marriage.
[Rabbi Michael Abraham] Does it require a religious court to determine that?
[Speaker C] Seemingly not. To disqualify a witness—yes.
[Rabbi Michael Abraham] But if there is a witness…
[Speaker C] Who is known to be disqualified, now…
[Rabbi Michael Abraham] They ask me, “Tell me, is a marriage with a disqualified witness valid or not?”
[Speaker C] So that’s a halakhic question.
[Rabbi Michael Abraham] That’s not a legal determination. This halakhic question can also be asked of a rabbi. So it would seem. The fact is that usually these things are nevertheless done in a religious court and people don’t ask a rabbi. And also what we did—what? Because of the… filling in the picture—you’re canceling a ruling of a religious court here. I’m not canceling any ruling. What ruling? That the marriage was done under the authority of the court, no? Under what authority of the court did they marry? They got married, that’s all. With whatever there is in the court. What, which court was there? There was no court at all. They got married and that was it. There were witnesses, but… There were witnesses here with… Witnesses are not a court. Witnesses are witnesses. I also agree that there was a marriage act. I’m not disputing that there was an act of marriage. I’m only claiming that it wasn’t valid.
[Speaker C] So the point is that…
[Rabbi Michael Abraham] No, it’s not because of lack of consummation. In Jewish law, physical consummation is not a condition for marriage. In other places they annul a marriage if there is no consummation, but in Jewish law that’s not the case. In Jewish law lack of consummation is not a condition for marriage. It may be that if there is no consummation, then the woman had not consented on those terms, and because of that the marriage can be annulled. But not the mere fact that it wasn’t consummated.
[Speaker D] Doesn’t Maimonides say something like that, and therefore a marriage canopy with a menstruating woman according to Maimonides doesn’t take effect?
[Rabbi Michael Abraham] No, that’s a different question. A marriage canopy not fit for intercourse—that’s something else. Not because it wasn’t consummated. After all, later it will be consummated—what’s the problem? She can immerse afterward and everything will be fine. It was only at the time of the canopy that it was not capable of consummation. So what’s the problem? It’s a completely different law. So the point is that the very fact that we are discussing people’s personal status, that itself apparently requires a religious court, even if the question is just an ordinary halakhic question.
[Speaker F] Maybe in order to give it greater force, so that the matter also gets public standing.
[Rabbi Michael Abraham] Fine, maybe, but that may just be reasons behind the verse. But practically speaking, all matters related to the legal sphere are discussed in a religious court. So if, say, a religious court now were to void a marriage retroactively—not annul it like we did, but uproot it. “Whoever marries does so subject to the rabbis,” and there are situations where a religious court uproots the marriage. That is certainly an action that has to be done in a religious court.
[Speaker F] And what’s the difference between annulment and uprooting?
[Rabbi Michael Abraham] Uprooting means that the marriage was valid, and the religious court decides nevertheless to cancel it, for all kinds of reasons. There is such authority in the Great Sanhedrin at least, to do such a cancellation. Okay? That’s called uprooting. Now what we did—we are not the Great Sanhedrin and don’t pretend to be such. What we did was basically a straightforward halakhic ruling. We did not perform a legal act. Uprooting a marriage is a legal act. There was a valid marriage and we are now uprooting it. That certainly requires not only a religious court but the Great Sanhedrin. Okay? What we did was something entirely different. We merely determined, clarified and determined a halakhic fact—that a marriage performed in such-and-such a way is simply invalid. We didn’t cancel anything.
[Speaker F] We simply revealed to her that she had never actually been married.
[Rabbi Michael Abraham] Not that she had been married… Exactly. We revealed to her what she didn’t know: you were never married. So is she permitted to a priest? What?
[Speaker C] Yes, in principle yes. Is she permitted to a priest?
[Rabbi Michael Abraham] In principle yes.
[Speaker C] No get was given here…
[Rabbi Michael Abraham] No get—there isn’t even a trace of a get here; she is permitted to a priest. So many times when they permit things like this they say “except for a priest,” because they are still being somewhat stringent, taking some concern into account, but in principle she is even permitted to a priest. In any event, I’m bringing this as an example so you can see that here, seemingly, we didn’t perform any legal action at all—we didn’t uproot something, we didn’t apply something, we didn’t do any legal act. We merely clarified the legal reality. Seemingly that is the role of a rabbi, not of a judge, not of a religious court. The rabbi has to know what it means. Okay? And maybe I once brought another example of this. I had a student who lived in Yeruham—after we left Yeruham—and this student of mine in Yeruham rented an apartment to some resident of Yeruham. Then some dispute arose over the contract. So they agreed between themselves that he, my student, would ask me, and whatever I said would be acceptable to them. So my student came to me—well, not came to me, he called me on the phone. He said, “Listen, this and this happened, this is the story.” So I told him, “Look, this is not adjudication. I am not sitting in judgment, I haven’t heard the other side, there are no witnesses here, and I do not judge alone, with all my sins—I’m not at that level yet. But what I can tell you is what my halakhic opinion is. Meaning: in a situation like this, do you owe him what he claims, or do you not owe him what he claims? I can tell you what I think Jewish law says. That is not a court ruling. It is a halakhic opinion. That I can do as a halakhic decisor, not only as a judge.”
[Speaker D] But don’t you have to disqualify yourself from that because he’s your student and you have a personal connection?
[Rabbi Michael Abraham] No. What, there’s no problem with that at all.
[Speaker D] If there was agreement on the part of both of them, then there’s no problem.
[Rabbi Michael Abraham] There’s no problem with that at all. In halakhic ruling, a rabbi can rule for his student with no problem at all. And we’re talking here about halakhic ruling, not adjudication. If I were sitting in judgment, I could say maybe he’s my student—although the other fellow knows me too, so I’m not sure how much that…
[Speaker D] But if both of them agree, then even a judge can rule.
[Rabbi Michael Abraham] But the point is that… as far as I’m concerned that’s clear. But I’m saying that here that is exactly the point—that I wasn’t adjudicating at all. Now I told him that he was right—my student. Then I got an angry phone call from the other fellow. But I didn’t issue a legal ruling; I gave halakhic instruction. What I told my student was: if your description of the facts is correct, then in my opinion that is what Jewish law says. If you have a dispute about the facts, then I didn’t say anything. I didn’t claim that the facts he described were the correct facts. You ask me—you, as my student, ask me what to do. You know the facts; I don’t know the facts. Assuming those are the facts, I’m telling you that this is what you need to do. Everything else is your own accounting; the other person owes me nothing. That is not a court ruling. So here is another example of an action taken by a person as a judge versus an action taken by a person as a rabbi, as a halakhic decisor. Okay. Now in the context of personal status, again, if I give her a halakhic opinion that she is not married, then maybe that is fine—something I can do as a rabbi. But do I need to rule that she is not married in a way that permits this for others as well and with all the public implications? That is something else. Suppose that fellow didn’t give the other fellow the right in the rented apartment—what I said he needed to give, or didn’t need to give—and he listened to me and didn’t give it to him. Now the other one sues him in a religious court. And suppose the religious court concludes that I made a mistake, or that the facts weren’t correct—one of the two, doesn’t matter. Okay. Then obviously both of them have to listen to the religious court. What I said carries no weight at all.
[Speaker D] In prohibition law is there enforcement? I didn’t understand. In prohibition law is there also enforcement, or only in…
[Rabbi Michael Abraham] No, this isn’t prohibition law, this isn’t prohibition law—it’s monetary law.
[Speaker D] I’m asking—no, I’m asking whether that’s an additional difference.
[Rabbi Michael Abraham] In prohibition law there is enforcement in the sense that people are compelled, compelled to keep the commandments. Right.
[Speaker D] Not…
[Rabbi Michael Abraham] Not enforcement as punishment.
[Speaker F] If someone desecrates the Sabbath, he would be flogged, he would receive lashes. Right.
[Rabbi Michael Abraham] So the point is that if I had given him a halakhic opinion that he was allowed to do what he was doing, and he went and did it, then from his point of view everything was fine. But that in no way contradicts the fact that the other party can sue him in a religious court, and the religious court can decide that I was mistaken or that the facts are not as they were presented to me, rule differently, and both of them are obligated to obey the religious court. As long as the religious court had not ruled, he was perfectly fine in doing it, because he received a halakhic opinion from me, and to the best of his understanding that is what Jewish law required of him, and that’s fine. But that is not a court ruling in the sense that it binds society as a whole. And only a religious court can do that. Therefore, if the other one had sued him and a ruling had been issued, that is what would bind both of them—and me too, of course. Okay, because with a religious court that is exactly the difference between a halakhic opinion and a court ruling. So if I return to our topic—let’s leave that aside, close the parentheses. I return to our topic. Basically, it seems to me that the simple understanding is that the distinction is not between a sexual-status matter and monetary matters on the one hand versus everything else, but rather between legal matters and prohibition-and-permission matters. Between Choshen Mishpat and Even HaEzer on the one hand, and Yoreh De’ah and Orach Chayim on the other. Rabbinate and judging, if you like. Okay. And therefore the simple inclination is to think that testimony of a woman, testimony of a captive woman, and all these areas—this is not prohibition testimony. It is testimony because it belongs to the legal part of Jewish law. It is testimony in every sense, with certain leniencies. The Sages were lenient and did not require all the usual laws of testimony. But as I said earlier, once they emptied the laws of testimony entirely of content, then de facto at least, it basically became testimony in matters of prohibition and permission. Because in the end, after they’ve already said that even a disqualified witness is valid and so on, then what practical difference is left? Maybe the only practical difference is that this has to be done in a religious court and not before a rabbi. Yes, maybe that is the only practical difference. And that is apparently, at least from the plain sense of the Talmud—although it’s not necessary, one could say that maybe the Talmud spoke about a religious court but this could also have been done before a rabbi, I don’t know. But from the plain sense of the Talmud it seems that the Talmud understands that these cases are always brought to a religious court. So still, you see there’s some legal flavor here; it’s not a purely prohibitory matter. And no wonder, then, that the later authorities (Acharonim) really disagreed about this issue. Let’s look at the Shev Shema’teta. Shev Shema’teta, for those who don’t know, is a work by the author of Ketzot HaChoshen from his youth. He wrote it at age thirteen, just so you understand what we’re talking about. It’s unbelievable. He wrote it at age thirteen, though before publication he revised it a bit. He said—revised it a bit.
[Speaker F] There were no phones and televisions, so they were able to study Torah.
[Rabbi Michael Abraham] Yes, so by the way, I think I once told you that I once met a child that age. I met a child that age in Bnei Brak; he had read a pamphlet I wrote on the law of migo—I once gave you that pamphlet in one of the previous years. He read it and came with all kinds of comments on my pamphlet, and I was shaken. Wow. Suddenly I understood that all those stories told about the great figures of old might actually be true. And this boy was a grandson of Rabbi Ades from Jerusalem. Exceptionally knowledgeable and fluent—he simply spoke to me in yeshiva language too, and with knowledge that was just unbelievable. I had never seen such a phenomenon in my life, not even something approaching such a phenomenon. The guy—I don’t know what became of him today—he used to wander around, not in yeshivot at all. He would talk with people in learning; he dealt with it because everything happening in the yeshivot at his age, in elementary religious school and in yeshiva at his age, was beneath him.
[Speaker I] So they sent him to an advanced yeshiva…
[Rabbi Michael Abraham] And so on, but the boy was some kind of independent bird, and he would talk with people and with rabbis and learn here and there and come up with novel ideas and all kinds of things. I don’t know what became of him today—I’m dying to know, actually; I should check. Thirteen years old? He was thirteen then, yes. And they told me it had started earlier too; I met him at age thirteen or something like that, but already at age eleven you could more or less see it—or ten, eleven. It’s unbelievable. You’re simply talking with a seasoned, super-talented rosh yeshiva of fifty or sixty. That’s what was there. Amazing, amazing. In any event, the Shev Shema’teta is also testimony to this. He wrote it at age thirteen. Okay.
[Speaker I] How old is that? Two hundred and… but that one you can maybe be a little less certain about.
[Rabbi Michael Abraham] Yes. And you can wonder which parts were revised later and which were not, but still, the work in its basic form was written at age thirteen. However many revisions he later inserted, it’s still amazing—could a thirteen-year-old child even write the skeleton of such a work?
[Speaker F] Not only that, also to understand all these worldly things, marriage and who knows what.
[Rabbi Michael Abraham] Yes, yes, of course, it takes maturity too, not just study time; it takes intellectual maturity. It’s unbelievable. And the Shev Shema’teta is considered a challenge for analytic scholars. Shev Shema’teta is the book on which the greatest analytic scholars hone themselves. Shev Shema’teta, Sha’arei Yosher—yes, these are the classic analytic works that the greatest scholars sharpen themselves on and study and are tested on. These are the biggest challenges. It’s amazing, really, it’s hard to grasp. All right. “The Tosafot Rid wrote in the chapter ‘HaOmer’ regarding ‘my wife committed adultery’ based on one witness, that Rava said: this is a sexual-status matter, and no sexual-status matter can be established by fewer than two.” Right? If his wife committed adultery, one witness comes and tells the man, “Your wife committed adultery.” Rava said: you are not obligated to believe him; no sexual-status matter can be established by fewer than two. By the way, if he himself believes the witness, then he really does need to distance himself from the woman; it’s like self-imposed prohibition—not exactly self-imposed prohibition, because he didn’t see it himself, but he believes the one witness. Okay. In any event, legally it doesn’t hold; you need two witnesses. “And this is his language”—this is the Talmud, the Tosafot Rid writes as follows: “And one who testifies about a woman that she was taken captive, or that she is divorced, and wants to disqualify her from marrying a priest—this is a sexual-status matter, as is proven in our passage.” End quote. To explain and clarify his proof—it seems that we say there, there in the Talmud in Kiddushin, Rav said: “How do I know this? As we learned: there was an incident involving a divorced woman from Diskia in Yavneh. Rabbi Tarfon said: it may be compared to one who stands and serves on the altar, and it becomes known that he is the son of a divorced woman or the son of a chalutzah—his service is valid. Rabbi Akiva said: it may be compared to one who stands and serves on the altar, and it becomes known that he has a physical blemish—his service is invalid. Rabbi Tarfon said: you compared him to one with a blemish, and I compared him to the son of a divorced woman or the son of a chalutzah; let us see to which he is more similar. Rabbi Akiva began to argue: a ritual bath can be invalidated by one person, and one with a blemish can be invalidated by one person; but that is not so for the son of a divorced woman or the son of a chalutzah, whose invalidation requires two.” All right? So what is he saying, basically? “And it is clear that to disqualify a son of a divorced woman or a son of a chalutzah from the priesthood is a sexual-status matter and requires two.” What is he saying here? A son of a divorced woman or a son of a chalutzah is forbidden to a priest; the son of a chalutzah is altogether only rabbinic, and the son of a divorced woman is Torah-level but only a prohibition, not a forbidden sexual relation, and still testimony that someone is a son of a divorced woman or a son of a chalutzah is considered a sexual-status matter and requires two. Why? As I said in the introduction, because it belongs to the legal part; it is personal status, and in personal status you need two witnesses. Okay? That’s what we see here. And Maimonides…
[Speaker H] Why is the son of a divorced woman—why does the son of a divorced woman need… why is that considered sexual-status matter?
[Rabbi Michael Abraham] A son of a divorced woman for a priest is a chalal. Ah, okay. After she was divorced she had… defective, defective. And Maimonides wrote in chapter 16 of the Laws of Sanhedrin, law 6, and this is his language: “Two witnesses are required only at the time of the act, but the prohibition itself may be established by one witness.” A very famous Maimonides. “How so? If one witness says: this is forbidden fat, these fruits are produce from a vineyard mixture, this woman is divorced or a zonah, and he ate or had relations in the presence of witnesses after having been warned, he is flogged, even though the essence of the prohibition was established by one witness.” End quote. So someone comes and says: this meat is pork—one witness. Now I come to eat this meat; one witness is believed in matters of prohibition, so I am in fact forbidden to eat this pork. Now I come to eat this meat; two witnesses come and tell me: look, if you eat this pork you’ll be liable for lashes, and I say yes, and with that understanding I do it and eat the pork. Maimonides says I am liable for lashes. Now how can this be, asks Maimonides? After all, regarding the fact that it is…
[Speaker C] Pork, there is only one witness.
[Rabbi Michael Abraham] And in order to make me liable for lashes you need testimony of two witnesses. The strength of a chain is only as strong as its weakest link. To make me liable for lashes, you need several things. You need to establish that it was pork, you need to establish that I ate it, and you need to establish that I knew it was pork when I ate it and that there were witnesses, right? Regarding the fact that it was pork, there is only one witness who is believed in matters of prohibition. Right. And for lashes you need two witnesses. So to forbid the pork to me, one witness is enough—but who says that if I ate the pork I get lashes? After all, lashes require two witnesses. Maimonides says I do get lashes. The fact that one witness in matters of prohibition is believed to say that this thing is pork turns this thing now into pork for all purposes, so that if I eat it I also get lashes, because the prohibition has been established by one witness. Once it is established, if I violate it I am liable for lashes. That is what Maimonides claims. So the Shema’teta says: “Since it is proven from the Talmud that the invalidation of a son of a divorced woman or a son of a chalutzah requires two, we are forced to say that disqualifications from the priesthood are considered a sexual-status matter.” What does he mean to say here? One might have said that the disqualification of a son of a divorced woman or a son of a chalutzah is established by one witness, but you need testimony only when I marry them, then you need testimony in order to make me liable—for lashes, say, or something like that. But if Maimonides says that their very disqualification has to be established by two, even though according to Maimonides the prohibition itself may be established by one witness—even a prohibition for which one is later flogged—but the establishment of the prohibition as a prohibition is enough for the one witness, then why do you need two for a son of a divorced woman? Proof that this is a sexual-status matter and not ordinary prohibition law. All right? That’s what he wants to say. “And as is proven in the Tosafot Rid, that one who testifies about a woman that she was taken captive”—and for his purposes, captive woman, divorced woman, and chalutzah are all the same—“or that she is divorced or a chalutzah, to disqualify her from the priesthood, requires two and is a sexual-status matter. And if so, how could Maimonides write that concerning a divorced woman or a zonah, one witness is believed to forbid her to a priest?” Maimonides writes that concerning a divorced woman and a zonah, one witness is believed to forbid her to a priest. That is the Maimonides I brought you from earlier. “Therefore it seems to me, in my humble opinion, that Maimonides holds”—yes, here—“that one who testifies about a woman that she was taken captive is not testifying about a sexual-status matter. For even one who says ‘this woman is a zonah,’ one witness is believed to disqualify her from the priesthood. And one who testifies about a woman that she was taken captive is like one who testifies ‘this woman is a zonah,’ and even where there is an established presumption of permissibility, one witness is believed against a presumption.” Yes, after all, the captive woman has a presumption of permissibility, right?
[Speaker E] Right?
[Rabbi Michael Abraham] So one view holds that even in matters of prohibition one witness is not believed to overturn a presumption. The Shema’teta says: but here he is believed. Why? Because he testifies only about the prohibition. According to Maimonides—I continue reading—“even where there is an established presumption of permissibility, one witness is believed against a presumption according to Maimonides, according to what the Shakh wrote in Yoreh De’ah, section 127, regarding his view; see there.” What does that mean? He is claiming that Maimonides’ view is that one witness is believed in matters of prohibition even against a presumption—that is a dispute among the medieval authorities (Rishonim). We’ve already seen this: some medieval authorities say that to overturn a presumption you need two witnesses, and that it is like a sexual-status matter in all prohibitions as well. But Maimonides’ view is not that; rather, a sexual-status matter is a sexual-status matter, and in ordinary prohibitions one witness is believed even if he overturns a presumption. The Shema’teta says: if so, then here too, one witness who says she was taken captive—even though he comes to remove her from her presumption of permissibility—is believed, because one witness is believed in matters of prohibition even against a presumption. Fine. So now the question is: then what is this… the designation applies to her prohibition, to what she has become.
[Speaker C] Wait, but then the son—it’s talking about her son, one second…
[Rabbi Michael Abraham] “But a son of a divorced woman and a son of a chalutzah, since his disqualification is inherent in his person, and he is among those disqualified from the priesthood—and since he is among those disqualified from the priesthood, that is why it requires two. Just as to testify about someone that he is a mamzer certainly requires two in order to disqualify him from the congregation of Israel. For the father, who is believed to say ‘this son of mine is a mamzer,’ is derived from the verse ‘he shall recognize.’” Meaning, one witness alone is not enough to render someone a mamzer; you need two. The father’s credibility requires a verse as a source for his being believed. Meaning, an ordinary one witness is not believed to disqualify him from the congregation of Israel. “And likewise to testify that he is a son of a divorced woman or a chalutzah—from the verse ‘he shall recognize,’ as stated in the chapter Asarah Yuchasin. If so, it is proven that this does not fall under the rule that one witness is believed in matters of prohibition. For they only said that one witness is believed in matters of prohibition when testifying about something that came into being incidentally”—like testifying “this woman became divorced or a zonah”; that is like saying “your wine was used for idolatrous libation,” something happened. “But to testify about lineage disqualifications that are congenital”—that is, to testify that someone is a mamzer or a son of a divorced woman or a chalutzah, who is a chalal by birth, and to disqualify him from the priestly congregation or the congregation of Israel—“in this, one witness is not believed, only the father, from the verse ‘he shall recognize him to others,’ as stated in the chapter Asarah Yuchasin.” The distinction here is not entirely clear. His basic claim is that testifying about the person himself—that is one witness in matters of prohibition. Testifying about someone who derives from someone else—that is already testifying that there is some phenomenon that is a derivative of another phenomenon; that is already a matter of personal status. Because testimony about the original event is testimony about an incident that occurred. To speak about the incident that occurred, even one witness can testify. But to change a person’s status, to change a person’s personal status—for that you need two. Now what does it mean to testify that someone is a mamzer? He assumes that this requires two witnesses, not one. Why? I can testify about the event that happened—even one witness can testify. Afterwards, regarding the son who is a mamzer, you need two. No, with mamzer status already for the mamzer himself he requires two. So the line here is not entirely clear, and I don’t want to get into it because it’s not our topic. But what he basically wants to claim is that according to Maimonides, testifying that a woman is a captive or a zonah is indeed one witness in matters of prohibition. It’s not personal status. It becomes personal status when it starts becoming hereditary. Therefore a son of a divorced woman or a son of a chalutzah—which really is already hereditary—there you need two witnesses. Regarding a zonah or a captive woman, it is one witness. It may…
[Speaker D] Be that he relates to it like an object? Like—it’s a mamzer.
[Rabbi Michael Abraham] It’s a person who is an object, yes. The person is the object here. Yes.
[Speaker D] He sees this as an object. It’s like saying about this meat that it is kosher or non-kosher. Right. Whereas here some act happened that a person did, and as a result the situation changed. Exactly.
[Rabbi Michael Abraham] Changed, changed—what happened is that a prohibition took effect with respect to someone else, not that a different status took effect on me. Meaning, a zonah and a captive woman are not a status; a zonah and a captive woman are an event that happened, and therefore as a result a priest is forbidden to marry them. But it is not a status. A divorced woman and a chalutzah—that is a status; the proof is that even their son receives that status.
[Speaker D] But they’re testifying that there was a divorce—that also…
[Rabbi Michael Abraham] That’s why I said that in his wording it isn’t entirely clear. It seems to me that this is what he means. Because to testify that there was a divorce is essentially to testify that she is divorced, but to testify that she is divorced is to change her legal status. Whereas to testify about a zonah or a captive woman changes the laws pertaining to her, but does not change her own status. It’s not in the object itself. Regarding the son, it does change. No—it changes, it imposes a prohibition on the priest to marry her, but it doesn’t turn her into a different kind of person. It is in the person and not in the object. She is “defiled” to the priest—that’s only a mode of expression. It means the priest is forbidden to marry her. That is a prohibition on the person of the priest. It is not in the object-status of the woman. You’ll tell me this is objectifying women here, but we are treating the person here as the object. By the way, there is also objectification of men too. The man too is an object in the case of a nazir, according to at least some views. In this specific case, what is a zonah as opposed to a captive woman?
[Speaker F] I didn’t understand.
[Speaker F] What is zonah here in our case?
[Rabbi Michael Abraham] What’s the definition of a zonah? Someone who had some Torah-level forbidden sexual relation. Any prohibition? Big question.
[Speaker D] Someone who had relations with someone forbidden to her, right?
[Rabbi Michael Abraham] Yes, someone who had relations with someone forbidden to her—or maybe with a gentile. There are major disputes about this. Major disputes, and a lot of it is rabbinic, by the way. A lot of it is rabbinic. For example, a female convert is considered like a zonah to a priest according to most views, but it isn’t clear whether that is rabbinic; there are views that disagree. It’s very unclear—the definition of zonah is a rather vague category. So I don’t want to get into that here. It doesn’t matter, but there is some kind of prohibition like that.
[Speaker F] But when she had relations—relations willingly, or also under coercion?
[Rabbi Michael Abraham] Also under coercion, at least in the case of a married woman also under coercion. As for—no, here—for example with a captive woman, if she was defiled by a gentile against her will, she is also forbidden. Yes, also under coercion.
[Speaker F] To a priest—I’m talking about to a priest. Yes. So here there’s no difference between a captive woman and a zonah for our purposes.
[Rabbi Michael Abraham] No, no—a captive woman is a type of zonah. It’s a type. Again, the word zonah today has a negative connotation in modern Hebrew, but it’s not…
[Speaker F] No, it’s not a negative connotation…
[Rabbi Michael Abraham] It’s a status. She isn’t guilty of anything, but the priest is forbidden to marry her. That’s not—the point is precisely that no accusation is being made against her. It reminds me of a discussion we had in the previous class or the one before, I don’t remember. No one is blaming her, she isn’t guilty of anything, but practically speaking it defiles the priest; he cannot marry her. By the way, that expression itself already shows you that this is a little bit object-like. As though—she’s not guilty of anything, so what? Yet what? That’s the situation, it’s a reality. No, but he argues that it’s not; it’s in the person and not in the object. I continue reading: “However, I find it difficult according to Maimonides’ view, that one who testifies about a woman that she is a zonah or divorced is believed because it is a matter of prohibition and one witness is believed in matters of prohibition, from what we learned in the chapter ‘HaOmer: I married off my daughter’…” Fine, he has some difficulty on that Talmudic passage—not important for the moment, let’s ignore that.
[Speaker E] Wait, why is he including divorced here too? What? He’s including divorced here too?
[Rabbi Michael Abraham] Where? Yes. Regarding the divorced woman herself. “One who testifies about a woman that she is a zonah or divorced”—that is testifying about the woman herself. When you testify about a son of a divorced woman, that is already testifying about a status. That’s what I said—that with him the boundary here isn’t sharp. It’s not clear whether testimony about the divorced woman herself—after all, seemingly that too creates status, because the son is the indication—but it seems from him that no, regarding the divorced woman herself, not only regarding her son. No, but…
[Speaker E] We said that divorced status isn’t just prohibition, so one witness shouldn’t help.
[Rabbi Michael Abraham] I said that that is how I would understand what he is saying, but in his words it’s very unclear, because he makes it depend on whether it’s about the divorced woman or about her son. And I would make it depend on whether it is a divorced woman or a zonah—that a zonah is not a status and a divorced woman is a status. So with him, I’m saying, the seam here is not clear. Maybe that’s one part he didn’t revise from age thirteen—or maybe I’m the one who needs revision, I don’t know. But really here it’s not entirely clear to me what he means. Now of course one has to remember that with testimony about the purity of a captive woman, the situation is a little different, because the whole need for testimony there is only rabbinic. Therefore all the categorical discussions—there is a difference between testifying that she was taken captive and testifying that she was purified or defiled afterward. It could be that this is altogether a matter of prohibition for all views. One should not necessarily infer from here to our case. That’s an important point, because Rav David makes some leaps here on this issue, I think, and one has to be careful about it. In any event, as against the… what is the question, what’s the difference?
[Speaker E] We said they were lenient in… no…
[Rabbi Michael Abraham] With testimony that she was taken captive, that’s something else. With testimony that she was taken captive, they were not lenient.
[Speaker E] That’s what…
[Rabbi Michael Abraham] What I’m saying is this: the discussion here is not testimony about her purity; it’s testimony about the fact that she was taken captive. That’s the discussion in the Shev Shma’teta. One witness comes and says, “A woman was taken captive.” If this is a matter of prohibitions, then one witness is enough, not because they were lenient. Strictly speaking they were not lenient there; after all, in the Talmud this is actually a stringency, not a leniency. They were lenient in allowing testimony that she is pure—that’s where the leniency is. But regarding testimony that she was taken captive, one witness is trusted in matters of prohibition. And according to Rabbi Chaim, in order to testify that she was taken captive you need two witnesses, because this is a matter of personal status in the realm of sexual prohibitions. Okay? So I said that even if I accept that there is a dispute regarding testimony that she was taken captive, testimony that she is pure may, according to everyone, be testimony in matters of prohibition. And Rav David assumes not like that; he applies this dispute to the testimony about purity as well, but I’m not sure he’s right. Because as I said, this is all already a rabbinic stringency and leniency, two levels up. Once you testified that she was taken captive, okay, now there is a rabbinic stringency that she becomes forbidden to a kohen. Now one witness comes, even a disqualified one, and testifies that she is pure. Here the Sages were lenient and accepted even a disqualified witness and all that, okay?
[Speaker D] But in that case, not because it’s a prohibition, but because they were lenient with a captive woman.
[Rabbi Michael Abraham] That’s exactly what I’m saying. Therefore, even someone who says that testimony about a captive woman is a matter of personal status and requires two witnesses—that doesn’t mean that testimony that the captive woman is pure is also a matter of personal status. It could be a matter of prohibitions.
[Speaker E] Wait, but as a fundamental question—maybe it’s connected to what we already said, but maybe it’s still not sharp enough for me—when I say that one witness is believed in matters of prohibition, is that part of the laws of testimony? No, right? So it’s really difficult, because even when a religious court comes, let’s say, to determine whether the woman was taken captive or not—
[Rabbi Michael Abraham] Why do you need testimony that this meat is pork when you’re going to forbid it? That too is a fact. Why is that fact not established by two witnesses? Because facts of prohibition are clarified by assessments, not by formal testimony. And one witness is another kind of assessment.
[Speaker F] Maybe it’s something else—maybe it’s connected to an action a person performs, where testimony is required, and for bare facts you don’t need it.
[Rabbi Michael Abraham] No, that’s testimony for the existence of the matter in bills of divorce and betrothal only; that’s not relevant to us. There the testimony is constitutive—you need two witnesses for the act to be valid, not in order to testify about it. Okay? So in any case, Rabbi Chaim says as follows. Again, without getting into all the details: one who warned his wife, and she secluded herself, and then one witness came and testified that she had become defiled, and her husband was a kohen, and afterward he had relations with her—he is flogged on account of her as a zonah. That’s also what the Shma’teta mentioned, right? That one witness is enough to turn her into a zonah, even though the testimony is fundamentally only by one witness; she has already acquired the status of a zonah, the prohibition has been established by one witness. And in the glosses—the Ra’avad, right?—”That is not so, for he is flogged not because of zonah but because of defilement. For every case of coercion established by one witness is not called zonah, only defilement.” Yes? Testimony that she was defiled—so he is flogged, but not because of zonah. Meaning, she became defiled, so the testimony is good enough for the fact that she became defiled, but that testimony is not strong enough to turn her into a zonah for a kohen, because the Ra’avad claims that for that you need two witnesses. Again, without getting into all the details, because you can really dig into this a lot.
And in truth, from the words of Maimonides in chapter 18 of the laws of forbidden sexual relations, it appears like the Ra’avad. This is his wording: “Any woman about whom her husband was jealous and she secluded herself and did not drink”—that is, she did not drink the bitter waters of the sotah—”is forbidden to a kohen because she is a possible zonah, whether she herself did not want to drink, or whether there was testimony there that prevented her from drinking; since she did not drink, in any case she is forbidden to the priesthood out of doubt.” So it is explicit that even where she does not drink because of testimony—that is, there is testimony of defilement—even then she is forbidden to the priesthood only out of doubt. So what do we see? That the prohibition of zonah requires two witnesses. Because if you have only one witness, that works for defilement, but it does not work for promiscuity. But here he rules explicitly that he is flogged on account of her because of zonah, so how can that be?
And it seems that in truth Maimonides also agrees with the Ra’avad that one witness testifying to defilement does not help regarding zonah. Zonah requires two witnesses—against the Shma’teta. Right? This is not a matter of prohibitions; it’s a matter of personal status in the sexual realm. And the reason is that everywhere, a matter of personal status in this area cannot be established by fewer than two, and he is not believed at all to say that she committed adultery and became defiled. Isn’t that a matter of personal status? What I said before: when he calls it a matter of personal status, he means a legal-personal-status issue. That’s what he means. It’s a legal matter, a matter of personal status, so you need two witnesses. So why here does one witness help? Because she herself—that is, because this very act of intercourse itself turned her into that. Right? That’s his novelty here, but it’s less important for our purposes. His claim is this, and the fact that Maimonides rules here—I’m reading just the end—”And the fact that Maimonides rules here that he is flogged because of zonah is because, since she is at any rate forbidden to him on account of the prohibition of defilement, and for that one witness is believed, then automatically, when he has relations with her, she becomes a zonah through this very act of intercourse itself, as Maimonides rules there in chapter 18, that any woman who had intercourse with someone whom she is forbidden to marry becomes a zonah. Therefore he is properly flogged because of zonah for this act of intercourse, since through it she became a zonah, and his intercourse is intercourse with a zonah.”
That’s a very great novelty: that in this very act of intercourse the woman becomes a zonah, and now I’m flogged for intercourse with a zonah in this very same act of intercourse. Usually it doesn’t work like that. Usually the intercourse turns her into a zonah, and then once she has the status of a zonah, if someone has relations with her, he can be flogged. But this is a major novelty in order to reconcile Maimonides with his own view. In any case, according to his approach—without getting into all the details, because these really are complicated passages—we see that he disagrees with the Shma’teta, and in his view testimony about a zonah is not testimony in matters of prohibition; it is a matter of personal status. And actually that’s the simple intuition; the Shma’teta is the innovative view.
But again I say: all of this is only regarding testimony that she was taken captive. But if one witness now comes and says that she was pure despite having been taken captive—here the Sages were lenient, as with testimony about a woman, and they accepted even testimony from one who is disqualified, okay? In that situation it could be that everyone agrees that one witness is believed in matters of prohibition. By the way, this one witness who is believed to say that she was taken captive—if this really comes from the rule of one witness in matters of prohibition, then it could be any witness, even a disqualified one, even a woman, as in matters of prohibition. That’s a very major practical implication of what the Shma’teta says. Okay? Maimonides nowhere says this explicitly. Maimonides says that one witness is believed, but he doesn’t say that any witness is believed to say that she was taken captive. Let’s say in our sugya, with two women, and I testify about the other one that she was taken captive. Am I considered a witness about her? According to the Shma’teta, yes. And then for the second woman there is no “the mouth that prohibited is the mouth that permitted,” because there is testimony of one witness.
[Speaker F] The Mishnah says—the Mishnah says that one woman testifies about the other that she was taken captive and is pure, and they believe her, right? So why do they believe her? Only about the purity?
[Rabbi Michael Abraham] Because she has “the mouth that prohibited is the mouth that permitted.” Again, she has “the mouth that prohibited is the mouth that permitted.” But if I claim that she was taken captive—
[Speaker F] The woman—woman A testifies about woman B—there’s no “mouth that prohibited.” There is!
[Rabbi Michael Abraham] For whom? For the woman who is testifying. She prohibited the second woman and then permitted her.
[Speaker F] “The mouth that prohibited” also applies to someone else? Of course.
[Speaker C] But you can ask that with regard to the captive woman.
[Rabbi Michael Abraham] The one about whom they testified—what she says is worth nothing. What she says is worth nothing. When the woman testifies about herself that she is pure, that is not accepted—we saw that. It is not accepted. So I’m saying again: it comes out from this that a woman—or any one witness who is disqualified—can testify about another woman that she was taken captive. Right? That is according to the Shma’teta. According to Rabbi Chaim, no. Now, still, according to the Rosh that we saw in the previous lesson, it could be that even though the woman is not believed to say that she was taken captive, the second woman no longer has “the mouth that prohibited” now. Remember? When I said that even if disqualified witnesses come and say that she was taken captive, and she says, “I was taken captive, but I am pure,” the Rosh says she does not have “the mouth that prohibited.” Even though the disqualified witnesses are not believed. Okay? By the way, that itself is evidence against the Shma’teta.
[Speaker D] Because it’s basically a prohibition.
[Rabbi Michael Abraham] Because the Rosh shows that if there are two disqualified witnesses who testify that she was taken captive, then she is not believed—but they are also not believed that she is a captive. Why not? According to the Shma’teta, one witness is believed in matters of prohibition, right? So even one disqualified witness should be believed, and certainly two. So the Rosh says no. But on the other hand the Rosh says: still, it is enough to knock out “the mouth that prohibited.” That part remains true. Okay?
Now basically, in principle, this dispute is where he takes—or even earlier—what I said in the previous lesson, the initial assumption and the conclusion of the Talmud according to the second version in Rashi. The initial assumption was that a valid witness would override a disqualified witness. That initial assumption says that really we have laws of testimony here, it’s just that they were lenient to accept even a disqualified witness. But still, a valid witness is obviously better. That’s the conception that these are laws of testimony, only with leniency. The Talmud teaches us that a valid witness is equal to a disqualified witness according to the alternative version in Rashi, the second textual version. And then in the conclusion, this really is a matter of prohibitions, and in matters of prohibition there is no difference between a valid witness and a disqualified witness. By the way, according to those who do not have Rashi’s reading, it could be that they also won’t accept Rashi’s law, and in truth they will hold that a valid witness does override a disqualified witness, because this really is a matter of testimony. And that may be Rabbi Chaim. Rabbi Chaim says that testimony concerning a captive woman is a matter of personal status and they did not waive the laws of testimony in this context. Okay? But at least from Rashi it seems that in the conclusion, that was the initial assumption, but the conclusion is that this is a matter of prohibitions. Lighter. Yes. And again, you have to remember: this is testimony about purity. Testimony about purity—this whole issue is only a rabbinic stringency, and it is not the same thing as testimony that she was taken captive. Not necessarily the same thing as testimony that she was taken captive.
Now for our purposes—and this is what matters now regarding Rav Dovid—I’ll maybe start reading him now, though I don’t really have much time, so what I’ll just say is that Rav Dovid’s whole discussion basically takes place under this dispute between the Shma’teta and Rabbi Chaim: is this testimony or not testimony? And from that he starts, for example—let’s just take the beginning so you can see the kind of things he does with it. “As for the reason that she is not believed to say about her friend that she is defiled.” That’s what I noted earlier: a woman is not believed to say about her friend that she is defiled. Tosafot—”and I and my friend are defiled”—teaches us that she is not believed regarding her friend where there are no witnesses, and her friend is permitted on the basis of her own statement. There is here “the mouth that prohibited is the mouth that permitted.” Why? Because she says about her friend that she is defiled, but she is not believed, right? And there are no witnesses regarding the defilement. So the friend, who says, “True, I was taken captive, but I remained pure,” has “the mouth that prohibited.” Okay? And at first glance this is difficult. If we say that Tosafot holds like Maimonides, that one witness is believed to say about a woman that she is a zonah, then why is she not believed to say as well about her friend that she is defiled? How is this different from any one witness who is believed to say that she is a zonah and defiled? Right, our exact discussion. If we are dealing here with—yes, this is not testimony of sotah-defilement of course—zonah and defiled are the same in our context. So the point is that if Tosafot holds like Maimonides that one witness is believed in matters of prohibition, then why does Tosafot claim that the woman is not believed to testify about her friend that she became defiled? That’s basically what I noted earlier about the Rosh. Right? She is not believed to testify about her friend—why not? After all, one witness is believed in matters of prohibition, and one witness includes a woman and a disqualified witness as well—that’s really the question.
And then he raises various possibilities: perhaps we are speaking here of a simultaneous case, where when she says about her friend that she is defiled, the friend says she is pure. That would make it one witness contradicted, and automatically she remains permitted by virtue of her own presumption of fitness. That’s a separate topic. But in the conclusion he says at the end: “It does indeed seem more from Tosafot that they hold that she does not have the status of a witness at all to say about her friend, ‘she is defiled,’ and not only because of the contradiction.” In the conclusion it seems like Rabbi Chaim. I said that the tendency of the later authorities is to learn like Rabbi Chaim: that we are dealing here with personal status, and therefore it is a matter of personal status and requires two witnesses. And again, the continuation of his discussion is all the same thing around this dispute between the Shma’teta and Rabbi Chaim: is it testimony or is it only a leniency? There are all sorts of implications that Rav David derives from this. And again, you constantly have to pay attention that we are talking about testimony regarding her purity, not testimony regarding the captivity. Testimony regarding her purity—it could very well be that this is not a matter of personal status according to everyone, and then this whole story never even starts. In the first difficulty we just read on Tosafot, it really is talking about testimony that she was taken captive. But—
[Speaker D] If there is testimony that she is defiled, then yes, you need two witnesses.
[Rabbi Michael Abraham] Correct. That’s why that’s what he says here. So why is she not valid as one witness? Because you need two witnesses.
[Speaker D] That’s what he says.
[Rabbi Michael Abraham] But in testimony about purity—in testimony about purity there the Sages were lenient, because the whole business is a rabbinic stringency. If she actually became defiled, then she is forbidden to a kohen by Torah law, if it is known that she became defiled. That is testimony in every sense. But if I don’t know that she became defiled, rather I merely suspect it because a captive woman is presumed defiled until proven otherwise, then this whole concern may be only a matter of prohibitions; it may fall under the category of prohibitions. And one cannot infer from the discussion of the Shma’teta and Rabbi Chaim to the case of testimony about her purity. So the first difficulty Rav David raises, which deals with the credibility that she became defiled or the credibility that she was taken captive—there it really is connected to the dispute between the Shma’teta and Rabbi Chaim. But the next things he does regarding testimony about her purity—I’m not sure about that. There it could be that even Rabbi Chaim would agree that it is like testimony in matters of prohibition. Like testimony about a woman, like testimony in matters of prohibition, like anything else—because the Sages are the source that demanded the testimony, so they can also waive all the formal conditions of testimony and make do with an assessment.
Okay, I’ll stop here, because the rest really is just details—you can look at it afterward. I just want to hear from you a little, in the few minutes we have left, just a bit.