Rationales and Reasons for the Commandments – Lesson 1
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
- Scriptural decree and reasons for the commandments in the Guide for the Perplexed
- The purpose of the commandments and the idea of “a wise and understanding people”
- Authority, worship of God, and Leibowitz
- Greater is one who is commanded and does, and the benefit of the commandment
- Patterns of learning: “only the what and not the why,” novelty, and “you have in it only its novelty”
- Scriptural decree as a narrow category within a world that does have reasons
- The section of conspiring witnesses: the verses and the idea of hazamah
- Contradiction versus hazamah: “you were with us” and the derivations from the verses
- Abaye and Rava: is a conspiring witness disqualified retroactively or only from now on?
- Reasonings of the medieval authorities (Rishonim) to explain hazamah: litigant status, migo, and risk
- Maimonides’ approach: an absolute scriptural decree even in practical Jewish law
- Nachmanides on “if they killed, they are not killed” and providence in judgment
- Open questions going forward: why a verse is needed, and how one can execute on the basis of a scriptural decree
Summary
General Overview
The text opens with an orderly inquiry into the concept of a scriptural decree and its connection to the reasons for the commandments, setting out two ideological approaches already found in Maimonides in the Guide for the Perplexed: one approach seeks for commandments to be beyond understanding in order to emphasize their divinity, while Maimonides holds that all the commandments are meant to benefit the individual and society, and that even the statutes contain wisdom visible even to the nations of the world. The text then focuses the discussion on scriptural decree through the topic of conspiring witnesses, where the Talmud defines the law of hazamah as a novelty and as a scriptural decree, and examines the tension between reasonings that try to explain the law and positions that present it as a novelty not derived from logic. Finally, a particularly sharp difficulty emerges according to Maimonides: how can it be possible to punish, and even execute, on the basis of a scriptural decree, when without the verse we would remain in a situation of two against two and doubt about the truth.
Scriptural Decree and the Reasons for the Commandments in the Guide for the Perplexed
The text defines a scriptural decree as a law that is not understood, a law that has no reason, or at least whose reason we do not understand, and therefore we observe it because Scripture decreed it that way. Maimonides, in Guide for the Perplexed, Part III, chapter 31, describes people who find it difficult to assign a reason to a commandment, and for whom the ideal would be that no commandment or prohibition have any intelligible purpose at all, and he attributes this to a kind of mental “illness” that leads them to think that precisely something with no benefit and no comprehensible rationale proves that it comes from God and not from human thought. Maimonides rejects this view and argues that if a human being acts with purpose, while God would command arbitrarily, with no benefit and no prevention of harm, it would follow that the human being is “more perfect than his maker,” and heaven forbid, the opposite is true.
The Purpose of the Commandments and the Idea of “A Wise and Understanding People”
The text presents Maimonides’ position that the whole intention is to benefit us, in line with the verses “for our good always, to keep us alive as this day” and “surely this great nation is a wise and understanding people,” and concludes that even all the statutes point to wisdom and understanding recognizable to the nations. Maimonides offers a general classification of the purposes of the commandments: establishing true beliefs or removing false beliefs, creating proper order or removing injustice, and training in good character traits and warning against bad ones, all of it depending on three domains: beliefs, character traits, and the conduct of political-social governance. The text emphasizes another innovation attributed to Maimonides, namely that not only are there reasons for the commandments, but people from the outside can understand them as well; against this, it argues that this “doesn’t stand the test of the facts,” and that in practice the reasons for commandments are not unequivocal and are subject to subjectivity and dispute.
Authority, Worship of God, and Leibowitz
The text distinguishes between observing commandments because of their benefit and observing them because of their source of authority, and presents idol worship as a question of who the source of authority is, not of the content of the commands. The text attributes to Leibowitz an extreme position in this direction, and notes that the speaker himself “goes a bit in that direction, but not entirely,” while saying that there are reasons for the commandments, though not necessarily moral reasons. The text raises the difficulty for the view that commandments have no reason, in relation to someone who is not commanded yet performs them, and concludes that according to that approach there is no logic in acts such as performing time-bound positive commandments by someone not obligated, since there is no benefit and no fulfillment of a command.
Greater Is One Who Is Commanded and Does, and the Benefit of the Commandment
The text brings the Talmudic statement, “Greater is one who is commanded and does than one who is not commanded and does,” together with the explanations of Tosafot HaRosh and the Ritva, according to whom one who is commanded and does has two benefits: responding to God’s command and the benefit for whose sake the command was given, whereas one who is not commanded and does receives only the benefit for which the commandment was given, without the added value of fulfilling the command itself. The text uses this to show that on the one hand there is an assumption that commandments have benefit, and on the other hand there is value in the very obedience to the command even if there were no benefit. The text presents the approach of “scriptural decrees” as one that reduces the world of commandment observance to the dimension of obedience alone.
Patterns of Learning: “Only the What and Not the Why,” Novelty, and “You Have in It Only Its Novelty”
The text describes a tendency in the classic Lithuanian yeshiva world to see the study of Jewish law as dealing with the “what” and not the “why,” and brings an anecdote according to which “every verse teaches the opposite of what it says,” through the example of “whatever Sarah tells you, heed her voice.” The text raises the Talmudic tension over whether a novelty in a verse teaches a broad rule or only an exceptional case, and brings the example of deriving “a positive commandment overrides a prohibition” from tzitzit and shaatnez in tractate Yevamot as a point of decision between the two options. The text explains that the intuition as to whether the outcome seems “logical” or “illogical” affects whether to see it as a general rule or an exception, and mentions “why do I need a verse? It is logic” as a case where reasoning can replace a verse, while emphasizing that logic too is subjective and variable.
Scriptural Decree as a Narrow Category Within a World That Has Reasons
The text argues that there is no practical room for a sweeping view that commandments have no reasons, and locates the real focus of uncertainty in those laws that the Talmud itself defines as a scriptural decree. The text brings “I said I would become wise, but it is far from me” and the tradition about things King Solomon did not understand as examples showing that lack of understanding does not prove there is no reason, only that the reason is inaccessible. The text distinguishes between a scriptural decree and a law given to Moses at Sinai, presenting the latter as a law not written in the Torah but transmitted orally, while the question of its reason is separate.
The Section of Conspiring Witnesses: the Verses and the Idea of Hazamah
The text chooses to clarify scriptural decree through the section of hazamah concerning conspiring witnesses in Deuteronomy 19: “and you shall do to him as he plotted to do to his brother,” “and those who remain shall hear and fear,” and “your eye shall not pity.” The text suggests a remark that perhaps from here we derive the principle of testimony that cannot be subjected to hazamah, because hazamah functions as a whip that deters false witnesses. The text formulates the basic difficulty: how can one prove at all that witnesses lied, given that “two are like a hundred,” and any testimony against two witnesses is at most contradiction.
Contradiction versus Hazamah: “You Were with Us” and the Derivations from the Verses
The text presents the Mishnah in Makkot 5: witnesses become conspiring witnesses only when the attack is directed at the witnesses themselves, and distinguishes between the claim that the victim or murderer “was with us” and the claim directed at the witnesses themselves, that “you were with us.” The text brings Rav Adda’s derivation, “until the body of the testimony itself is rendered false,” and the school of Rabbi Ishmael’s derivation, “until the body of the testimony itself is removed,” and explains that the verses point to hazamah in which it becomes clear that the witnesses’ own persons could not have testified about the act. The text sharpens the point that even in hazamah there still seems, at first glance, to be “two against two,” and therefore it requires explanation why this is not considered ordinary contradiction.
Abaye and Rava: Is a Conspiring Witness Disqualified Retroactively or Only from Now On?
The text describes three consequences of hazamah: annulment of the testimony, disqualification of the witnesses for other testimonies, and the punishment of “as he plotted.” The text presents the dispute between Abaye and Rava in tractate Sanhedrin over whether a conspiring witness is disqualified retroactively, from the time of the testimony, or only from now on, from the time of the hazamah, and explains Rava’s reasoning that “conspiring witnesses are a novelty, and you have in it only from the time of its novelty,” as well as the consideration of “because of loss to purchasers.” The text brings Rashi’s explanation that “novelty” means scriptural decree, and formulates the Talmud’s novelty in the phrase “what did you see that you relied on these? Rely on those,” as the difficulty of why to prefer the second set of witnesses.
Reasonings of the Medieval Authorities (Rishonim) to Explain Hazamah: Litigant Status, Migo, and Risk
The text quotes Rav Nissim Gaon in Sefer HaMafte’ach, who distinguishes between contradiction, where the conflict concerns the content of the testimony and so both testimonies are nullified, and hazamah, where the testimony concerns the witnesses themselves, making them like litigants, and therefore their denial is ineffective. The text brings Nachmanides, who notes that this is not a case of “the murdered person comes on his own two feet,” because then “the judges shall inquire well” would not apply, and explains that hazamah is testimony about the witnesses themselves, and they are not believed about themselves, while adding a migo argument that the second set could have disqualified the first by testifying that they desecrated the Sabbath or committed murder. The text also brings the Ran’s derashot, which give preference to the second set because they knowingly take a risk by entering the confrontation, and notes that the Pnei Yehoshua also touches on the direction of migo, alongside the remark that migo becomes complicated if one assumes the second set wants not only to save the defendant but also “to kill the first witnesses.”
Maimonides’ Approach: an Absolute Scriptural Decree Even in Practical Jewish Law
The text brings Maimonides in Laws of Testimony, chapter 18, who rules that the Torah’s acceptance of the later witnesses against the earlier ones is a scriptural decree, even if the first are one hundred and the second are two, because “two are like a hundred and a hundred are like two,” and in contradiction we do not follow the majority. The text raises a difficulty: Jewish law is ruled like Abaye, that conspiring witnesses are disqualified retroactively, yet Maimonides still defines the preference for the second group as a scriptural decree, implying that in his view even Abaye agrees that this is a scriptural decree and the dispute is only about what to do with that novelty. The text notes that later authorities suggest this is the straightforward explanation and criticize attempts by the medieval authorities (Rishonim) to ground the law in full reasoning.
Nachmanides on “If They Killed, They Are Not Killed” and Providence in Judgment
The text presents Nachmanides’ comments, who on the one hand speaks of the law of conspiring witnesses as “a decree of the Ruler,” and on the other hand gives a reason for the law that “if they killed, they are not killed,” namely that if the defendant has already been executed, this indicates that he “died because of his own sin,” and that had he been righteous, God would have saved him, and God would not allow righteous judges to shed innocent blood. The text emphasizes that Nachmanides sees this as “a great distinction in the judges of Israel” and as a promise that the Holy One, blessed be He, agrees with their judgment, and links this to the verse “and the two men who have the dispute shall stand before the Lord.” The text comments that this structure creates a kind of retroactive logic in which the court’s act becomes evidence that the verdict was true, and raises theoretical branches such as a third group that subjects the second to hazamah and the implications for clarifying the truth.
Open Questions Going Forward: Why a Verse Is Needed, and How One Can Execute on the Basis of a Scriptural Decree
The text concludes that there is a dispute over how to understand Abaye and Rava with respect to the question of scriptural decree, and that Maimonides’ approach aligns with the view that the entire law is a novelty that, absent the verse, should have looked like a case of two against two, like ordinary contradiction. The text sets two tasks for continuation: to clarify why, if there are various logical explanations, this is still called a scriptural decree and why a verse is needed; and to clarify the sharp difficulty of how it is possible to execute on the basis of a scriptural decree when without the verse we would leave the witnesses in the status of doubtful truth. The text sharpens the point that we are dealing with a person who comes to testify out of halakhic obligation, and that conspiring witnesses do not require prior warning, so the question of how a scriptural decree can turn testimony of doubtful truth into a capital punishment becomes “the thing we need to try to understand.”
Full Transcript
[Rabbi Michael Abraham] We’ll start with a new topic, about reasonings, the reasons for the commandments, and the rationale of the verse. I’ll start with the topic of the rationale of the verse, and then I’ll move to reasonings and other related things. Actually, sorry, let’s start with scriptural decree, not with the rationale of the verse. We’ll start with the concept of scriptural decree, which I once touched on—I don’t remember when—but I want to do it a bit more systematically. The concept of scriptural decree is usually connected, for us, with a law that isn’t understood. A law that has no reason, or at least whose reason we don’t understand, and therefore we say: it is a scriptural decree. Meaning, Scripture decreed this upon us even though we don’t understand. There are two ideological conceptions regarding this matter of scriptural decrees, and the description of them already appears in Maimonides in the Guide for the Perplexed, even though it continues to this day. Maimonides writes as follows in Part III, chapter 31: “Among people there are those for whom it is difficult to assign a reason to one of the commandments.” People who don’t want to find reasons or explanations for the commandments. “And what would be best for them,” as if the very best thing possible, “is that no commandment or prohibition should have any intelligible purpose at all.” Meaning, that there should be no explanation at all for any commandment and for any prohibition. “And what brought them to this is a sickness they find in their souls, which they cannot express and do not know how to state.” He’s already telling you what he thinks of this approach. “It is that they think that if these laws are beneficial in this existence, and that is why we were commanded in them, then they are as if they came from thought and rational reflection. But when there is something for which no purpose at all can be understood, and which brings no benefit, then it is certainly from God, because human thought would not produce such a thing.” He’s saying: what is the ideology behind this approach, the one that doesn’t like giving reasons for commandments, or would prefer there to be no reasons for commandments at all? Because if there’s a reason for a commandment, if the commandment benefits something in this world, then that too could be the result of a human being, something logical that any human being could also have invented, and maybe really did invent. But if there’s something with no logic whatsoever, then it’s probably clear that it’s a divine matter, because people don’t do things like that. And so there is, in fact, an ideology like this that tries to show that the commandments have no reasons. Then Maimonides says the following: “As if these weak-minded people”—again, he’s telling you what he thinks of them—“would have it that man is more perfect than his Maker.” In truth, according to this view, it comes out that the human being is more perfect than the Holy One, blessed be He, than the One who created him. Why? Because “man speaks and acts toward some purpose.” A person doesn’t just do things. He does things for some reason. “And God would not do so? But would command us to do what does not benefit us when done, and forbid us from doing what does not harm us when done?” Meaning, the Holy One, blessed be He, would basically be doing things pointlessly, arbitrarily, without reason. So instead of magnifying the Torah, in some sense, you are diminishing the Holy One, blessed be He. You turn the Holy One, blessed be He, into something worse than His creatures, someone who does things arbitrarily and for no reason. “Heaven forbid. Rather, the matter is the opposite.” And now he states his own view. “The whole intention is to benefit us,” as we explained from the verse, “for our good always, to keep us alive as this day.” And it says, “which when you hear all these statutes, they will say: surely this great nation is a wise and understanding people.” He already explained that even all the statutes point out to all the nations that they are in wisdom and understanding. “For if there were something with no known reason, bringing no benefit and removing no harm, why would one who believes in it or acts upon it be called wise and understanding and of great stature, such that the nations would marvel at it?” They say, “Surely this great nation is a wise and understanding people,” so that means apparently that when the nations see us observing Jewish law, they all understand that there is something wise here. If these things had no reason and no purpose, no benefit, then how would all the nations know that this is “a wise and understanding people”? There’s actually a double novelty here, by the way. Maimonides claims not only that there are reasons for the commandments, but that anyone who sees them will also understand that. That’s another novelty. It’s not just that, in principle, one doesn’t do things for no reason. You could have said that even if we don’t understand the reasons, still the Holy One, blessed be He, does not command things without reason. But here Maimonides says more than that: anyone, even a non-Jew, who looks at people performing these commandments, can understand on his own that this is something wise. Something wise and correct and beneficial and moral, and so on. Therefore, he says, this is proof that there must be a reason, and apparently anyone can also understand it. “And the matter, as we have mentioned, is beyond doubt: every one of these 613 commandments is either for imparting a true belief or removing a false belief, or for establishing a proper order or removing injustice, or for training in good traits or warning against bad traits. Everything depends on three things: beliefs, traits, and the conduct of political governance”—that is, social governance. “And we must not count utterances…” —there he’s already moving into the issue of why, regarding the counting of the commandments. So Maimonides is basically setting out here two approaches to the reasons for the commandments in general. Maimonides says: there is one view, one ideology, that says that really it would be more correct—and that this is in fact the case—that there are no reasons for the commandments at all. Or yes, that there are no reasons for the commandments at all. And why? Because things that are beneficial, human beings could also have arrived at on their own. If the Torah hadn’t been given, we would still eventually have gotten there ourselves. If not, then we’d think a bit more, investigate a bit more, but in the end we’d get there. So in what sense is the Torah divine? Why is revelation from the Holy One, blessed be He, needed? Therefore, people of that view say that clearly the commandments have no reasons, or at least not things that benefit us in this world. By contrast, Maimonides argues that the commandments do benefit us in this world, and the Holy One, blessed be He, does not act pointlessly, and certainly is not worse than His creatures. If He gave us something, it is presumably because it is beneficial. In addition, Maimonides says not only that it is beneficial, but that anyone can understand it too—or at least many people can understand the reason in these matters. This way of thinking, of course, did not stop in the 12th century. It continues to this day. To this day there are people for whom, if something in the Torah is understandable, then it isn’t divine. The Torah is supposed to be something illogical, maybe even something not morally fitting, or not something that could emerge from human judgment. And of course others argue that in the end the commandments are meant for our good, for the good of the world, that there’s some reason why they…
[Speaker B] Isn’t that idol worship? What? Isn’t thinking like that idol worship? Why idol worship?
[Rabbi Michael Abraham] Like believing in an idol—what’s the difference? What’s the difference now? The Holy One, blessed be He, gave us commandments. The Holy One, blessed be He, is to be served. If He decided that we should do things without reason, then we need to obey Him because He wants us to do things without reason. The problem with idol worship is not that it’s without reason, but that the idol has no authority—why are you worshipping it in the first place? Why are you doing what it tells you? Idol worship is doing what it tells you even if it’s beneficial. Of course, if you’re doing it for the benefit, then the fact that an idol said something doesn’t make it idol worship. But if you’re doing it because you need to obey the idol, to worship the idol, then even if there is benefit in it, that’s idol worship. I think the point in idol worship is the question of who the source of authority is, not what the content of the commands is.
[Speaker C] Leibowitz held a view like that.
[Rabbi Michael Abraham] Right, exactly. Leibowitz, I think, really expresses that view in a very extreme form. By the way, I also go a bit in that direction, but not entirely. I think there are reasons for the commandments, but they are not necessarily moral reasons—that’s a different discussion. And therefore, as for what Maimonides says, that anyone who sees the commandments can understand their reason—first of all, that just doesn’t stand the test of the facts. It’s simply not true. It’s not like someone sees that I eat this or don’t eat that and immediately understands, “surely this great nation is a wise and understanding people.” Nobody understands why one does…
[Speaker B] Maybe the problem is that the reasons are not unequivocal. It’s subjective. Okay.
[Rabbi Michael Abraham] You—
[Speaker B] You can think one thing, I can think another, about a commandment.
[Rabbi Michael Abraham] You can also fail to understand any reason at all.
[Speaker B] And it’s better with no reason at all than to start arguing over what the correct reason is. No, what’s bad about arguing?
[Rabbi Michael Abraham] What’s bad about arguing?
[Speaker B] I—
[Speaker D] I think what he means is that you need to define what you mean by “reason.” What exactly do you mean when you say a reason? Do you mean personal benefit? You need to explain what the definition of the reason for a commandment is. Okay.
[Rabbi Michael Abraham] So he says: in beliefs, in traits, and in the conduct of political governance. Meaning true beliefs, good traits, and social conduct. For Maimonides, those are all the reasons. Okay. For Maimonides—not necessarily, again, this is the Guide for the Perplexed, and you know, the Guide doesn’t always speak in the same style as the Mishneh Torah—but in the Guide for the Perplexed, you also see that the whole third part is devoted to the reasons for the commandments, and that’s what you see there. And it’s not convincing either, the reasons he gives there in the third part.
[Speaker C] Someone who says the commandments have no reason—then why were they given to us? What? Someone who says there’s no reason, in order to serve—
[Rabbi Michael Abraham] the Holy One, blessed be He—
[Speaker C] and you don’t want—
[Rabbi Michael Abraham] In order to serve the Holy One, blessed be He. The act of service itself—that is your vocation in the world.
[Speaker C] So commandments were just given arbitrarily?
[Rabbi Michael Abraham] That’s the approach of those people, so that—
[Speaker C] so that you would do—
[Speaker B] things—
[Rabbi Michael Abraham] that the Holy One, blessed be He—
[Speaker B] that have no reason, no this and no that… No. No. Like Maimonides says, where reason reaches, it stops there for him. Meaning, you can get to a certain stage—true, they have reasons…
[Rabbi Michael Abraham] No, no, Maimonides says no—the people of that approach claim there are no reasons, and he says there both are reasons and they can be known. Meaning, both things. But they apparently claim there are no reasons, and that’s not…
[Speaker B] But Maimonides doesn’t say you must arrive at those reasons.
[Rabbi Michael Abraham] No, he doesn’t say you must arrive at the reasons—that’s another matter. At least for some of them it’s possible. I don’t know if he says for each and every one, but at least for some. But he says it’s possible. I once mentioned, I think, the Talmudic statement that greater is one who is commanded and does than one who is not commanded and does. And there both Tosafot HaRosh and the Ritva explain why one who is commanded and does is greater. Because when someone fulfills a commandment he is commanded in, there are two benefits. One benefit is that he is responding to the command, meaning that the Holy One, blessed be He, commanded and he fulfills the command. And the second benefit is the benefit for whose sake the command was given. Meaning, that command was given in order to provide us with some benefit. By contrast, someone who fulfills that commandment as one who is not commanded and does—for example women regarding positive commandments that are time-bound, or in general people who are not obligated but do the commandment—they have the benefit for which the commandment was given, but they don’t have that added advantage of fulfilling the command of the Holy One, blessed be He. And therefore greater is one who is commanded and does, because in that case you have both advantages, whereas in one who is not commanded and does there is only the one advantage. But in any case, you see here that on the one hand Tosafot HaRosh and the Ritva assume that of course every commandment has a benefit, and on the other hand they also say that there is something in the very fulfillment of the commandment even if it had no benefit. The very fact that you obey the command of the Holy One, blessed be He—that itself… Now according to the people of the approach Maimonides brings here, that is the only thing there is. That’s all there is. And then, by the way, according to them “greater is one who is commanded and does” is not just greater, but one who is not commanded and does is simply pointless. According to that conception, there is no reason in the world for a woman to observe a time-bound positive commandment, for example. There’s no logic in it. I’m not saying it’s forbidden, but why do it? After all, there’s no benefit from it, and she isn’t responding to a command because she wasn’t commanded. So what’s left—why do it? So this is the conception Maimonides is dealing with. And indeed, yes, it seems to me I once mentioned that there is some tendency in the classic Lithuanian yeshiva world, let’s say, for this to be the view. The view is often that what we are talking about here are scriptural decrees, like Rabbi Chaim who says: we ask only about the what and not about the why. Again, that doesn’t necessarily mean there is no why, only that we have no grasp of the why, at least. I mentioned an anecdote in that context, that in yeshivot the assumption is usually that every verse teaches the opposite of what it says. You know this idea—that if it says, for example… I don’t know… yes, the classic argument: you don’t listen to your wife—heaven forbid, it can happen from time to time. So your wife will surely say: what do you mean? It says, “Whatever Sarah tells you, heed her voice.” Clearly, because in general a person should not listen to his wife, and therefore Abraham needed a special novelty telling him to listen to Sarah. Meaning, the verse telling Abraham to listen to Sarah teaches that ordinarily a person should not listen to his wife, because if the general rule were that a person should listen to his wife, why would you need that verse? And this happens in many, many places. In many places when you find some novelty, they say: ah, if there is a novelty here, then apparently the general rule is not like this, and therefore the verse was needed to tell you that here it is so. Now by the way, in the Talmud itself there are places where it works like that and places where it doesn’t. For example, a positive commandment overrides a prohibition in tractate Yevamot—there there’s a real tension between those two possibilities, because the Talmud derives that a positive commandment overrides a prohibition from tzitzit and shaatnez, that the commandment of tzitzit overrides the prohibition of wool and linen mixed together, and then the question always arises: why not say the opposite? Meaning, that ordinarily a positive commandment does not override a prohibition, and that’s why tzitzit had to be juxtaposed to shaatnez to tell you that here, yes, you should make tzitzit with shaatnez. No—there the Talmud really does not derive it that way. The Talmud says that since tzitzit is juxtaposed to shaatnez, from there we derive the broad, general rule that a positive commandment overrides a prohibition. But there are places where the Talmud itself does say it the other way. So the interesting question is when we say this and when we say that. But in yeshivot the tendency is usually like the method Maimonides presents here. Everything has to be scriptural decrees. Meaning, if something is written, then it is apparently not correct. Not correct in the principled sense, and that’s why the verse had to tell us that here, yes, you should behave this way, even though in principle it isn’t right. Okay? So that’s certainly not always true. But sometimes yes, the Talmud really does this. I think the difference between the two situations—when we do this and when we do that—depends on whether the result seems logical. If the result seems logical to you, then the example that was brought is a general rule. If the result does not seem logical, then when it says this here, you say okay, maybe this is just a scriptural decree for this place; in general there’s no reason to assume my logic doesn’t work. You have in it only its novelty. There is a novelty, and you try to narrow it as much as you can. Although if you take that to the extreme, you’ll see that it works the opposite way. Because if something is very logical, then the question arises: why do we need the verse at all? We would know it without it. And then that would actually imply that the verse is coming to teach that this very logical thing is not the rule. All right? Meaning, if something seems logical after it is written in the verse, then it is reasonable that the verse teaches the general law. If something does not seem logical, then the verse is an exception. If something is very logical—so logical that we wouldn’t need the verse at all, we would know it without it—then the question returns: why do we need the verse? And then again there is room to come back and say that the verse comes to tell us that the general logic is not correct, and only here one must act this way.
[Speaker E] So the case of a positive commandment overriding a prohibition that we learned—is there really usually a reason why a positive commandment should override a prohibition?
[Rabbi Michael Abraham] No, you can discuss that—I don’t know whether we dealt with it once or not—but there is logic to it. I’m not getting into it now. And in fact that’s the Talmud’s question there, I think: is there logic in it or isn’t there logic in it? And from that comes out whether this example of tzitzit and shaatnez is really a paradigm for all places, or an exceptional case. Exactly.
[Speaker D] What does it say? “It is logic.” What? Many times what is it? The Talmud also says, “It is logic.”
[Rabbi Michael Abraham] Yes: “Why do I need a verse? It is logic.”
[Speaker D] Meaning that it’s a reasoning we know. We don’t need a verse. “Why do I need a verse? It is logic.” Since it is totally logical, we go with reason. Right. So? No, I’m saying, just as I said.
[Rabbi Michael Abraham] Meaning, in a place where I know it without the verse, then the question arises: why do I need the verse? And the answer is apparently in order to tell me that the reasoning is not correct.
[Speaker D] Yes, but sometimes they say that even if there is a verse, you can’t talk that way because it goes against reason. “Why do I need a verse? It is logic.”
[Rabbi Michael Abraham] No, that’s not “why do I need a verse? It is logic.” That’s the opposite question. It’s a question of how can you say this? After all, it can’t be true. That’s a different discussion. On the basis of reasoning—well, that would have to be very strong reasoning. Usually I think that comes from another source, a contrary source, from which perhaps a reasoning emerges, but…
[Speaker F] But sometimes logic is… it’s something that was. Yes. It’s very subjective.
[Rabbi Michael Abraham] What—
[Speaker F] What was logical yesterday won’t be logical tomorrow.
[Rabbi Michael Abraham] Right. And even at the same time, different people have different logic. True, and that’s why when there are disagreements, you can argue—but that doesn’t contradict anything. When at a given moment I read the Torah, I’m supposed to think whether this is logical or not logical and draw my conclusions. If you think it’s not logical, you’ll draw different conclusions, and we’ll have a disagreement, as there are many disagreements in Jewish law. But it’s a disagreement. It doesn’t prove anything about the person’s position itself. Yes, like people always say: who told you you’re right—someone else thinks otherwise? As far as I’m concerned that’s not an argument. So what if he thinks otherwise? I weighed what I had to weigh—not because I’m certainly right, but because I weighed what I had to weigh and came to this conclusion. Maybe he’s right and maybe not, but this is my conclusion. If he thinks otherwise, then we’ll argue. But I don’t see it as a challenge to me that someone thinks differently. Fine, I’m speaking right now from the point of view of a specific person. A specific person who approaches this sees logic in it. If he sees logic in it, then as far as he is concerned it’s a rule, a general law. If he doesn’t see logic in it, then as far as he is concerned that verse says something else. Someone else sees the verse differently, so he’ll learn it differently. So this whole issue of the reasons for the commandments—the position Maimonides mentions here is really far from reality. There’s a lot of evidence against it. It’s hard to say such a thing. I don’t think… I don’t know, people always bring this up when they learn the concept of reasons for commandments—they bring all the methods: there are reasons for commandments, there are no reasons for commandments, there are reasons but we can’t know them. All the options; there’s a whole decision tree. But the truth is, I don’t think there’s room for a conception that there are no reasons for commandments. It may appear in various books of thought and so on, but it doesn’t stand up to any test. I don’t think you can say such a thing. The point at which there is room to hesitate is with those laws that are defined as a scriptural decree. Here I’ve really only given background. There are specific laws that the Talmud itself determines are a scriptural decree. In those laws, apparently, that really is the case. In those particular laws, either there is no reason or we cannot arrive at that reason, and therefore it is defined as a scriptural decree. And again—it may be that we cannot arrive at that reason, yes? “I said I will become wise, but it is far from me”—King Solomon. Yes, the midrash says there were three things he didn’t understand. The red heifer and… yes, “three things are too wondrous for me, and four I do not know.” So King Solomon himself also did not understand a few things. But the fact that he did not understand doesn’t mean there is no explanation; it means that even he… all right.
[Speaker B] And what about a law given to Moses at Sinai—is that the same thing? No.
[Rabbi Michael Abraham] A law given to Moses at Sinai is a law that is not written in the Torah, but was transmitted orally. Whether it has a rationale or not is a different discussion. Scriptural decree can be said about verses too. On the contrary, usually it is said about verses. There are those who want to claim that laws given to Moses at Sinai are always a scriptural decree. Always without a reason.
[Speaker B] But it’s not true that every—
[Rabbi Michael Abraham] scriptural decree—is a law given to Moses at Sinai. That is certainly not true. I think the other side isn’t true either. The reverse? What? If the reverse is true? So I’m saying, there are those who want to argue that laws given to Moses at Sinai are always scriptural decrees. But it is certainly not true that scriptural decree is said only about laws given to Moses at Sinai. Meaning, there are verses about which we say that they are scriptural decrees. The red heifer, yes, or these examples, appear in the Torah. So the concept of scriptural decree is at least understood as something regarding which one really can remain with that position that it has no reason, or that the reason is inaccessible to us. So I want to try to examine this topic of scriptural decree, and from that come back afterward to the question of reasons and the reasons for the commandments and the question of reasoning in general. And I want to do it through the section of hazamah, conspiring witnesses. Because there the Talmud itself says that this is a scriptural decree, that it is a novelty. And through it, I think, one can clarify several interesting points through this subject of scriptural decree. So the Torah says in chapter 19 of Deuteronomy: “If a malicious witness rises against a man to testify against him falsely, then the two men who have the dispute shall stand before the Lord, before the priests and the judges who shall be in those days. And the judges shall inquire well, and behold, the witness is a false witness; he testified falsely against his brother. Then you shall do to him as he plotted to do to his brother, and you shall remove the evil from your midst. And those who remain shall hear and fear, and shall no longer continue to do such an evil thing in your midst. And your eye shall not pity: life for life, eye for eye, tooth for tooth, hand for hand, foot for foot.” So here there is some witness who has been found to have lied, a malicious witness. You need to do to him what he plotted to do to the defendant, to the litigant. And not pity him, so that all the people around will understand not to do such things. By the way, I think from this verse—“and those who remain shall hear and fear, and shall no longer continue to do such an evil thing in your midst”—it may be that from here we derive the principle of testimony that you cannot subject to hazamah. Beyond the law of hazamah, there is another rule: every testimony has to be such that in principle it can be subjected to hazamah. If it is testimony that you cannot subject to hazamah, we don’t accept it at all. And I think the idea is that hazamah, as the Torah explains here, is a kind of threat meant to tell people: be careful not to give false testimony, because otherwise there will be a very bad outcome for you. And if that is really so, then we learn from here that every testimony, in order for us to believe it, has to have a whip hanging over it—that it could turn out to be false, and only then can you believe the people who say it. Fine, that’s just a side remark. The Torah is basically speaking about witnesses who were found to be liars in court, and then we need to do to them as they plotted.
[Speaker B] Does hazamah apply in acquittal as well as conviction? For good and for bad? What do you mean? You can be a false witness and say, on the contrary, that this person owes him, and not that he owes him?
[Rabbi Michael Abraham] That’s an interesting question. I think so.
[Speaker B] Is there some Rosh in tractate Makkot on that?
[Rabbi Michael Abraham] Come on—as far as financial liability is concerned, that’s not really a question, because imposing payment—
[Speaker B] that’s an acquittal for the other one.
[Rabbi Michael Abraham] In criminal court, let’s say, if two witnesses come and acquit a defendant, and then they’re subjected to hazamah. Right. So when they’re subjected to hazamah, I don’t actually remember an example of that right now. It’s fairly clear that the law of hazamah would apply there too, but there would be no “as he plotted,” because what they wanted was to acquit. So what “as he plotted” would you do there? Maybe lashes. There would be lashes for “do not bear false witness.” The Talmud says that anywhere “as he plotted” cannot be carried out, they receive lashes for the prohibition.
[Speaker B] But there’s some threshold of liability. Right.
[Rabbi Michael Abraham] When there is liability, the threshold is zero though. When there is liability—if there is no liability, what would you impose on them? In any case, the Torah deals with witnesses who were found to be liars in court. The big question is how that can even happen. How can one ever arrive at the conclusion that witnesses in court lied? On the face of it, what could happen? Another proof could come and show that they lied. But there is no proof that overrides the proof of two witnesses. Even… in terms of witnesses too, after all, the Talmud says—the Mishnah says—that “two are like a hundred.” Meaning, even if one hundred witnesses come against two, that is still only contradiction. And then it is basically unclear—the Talmud itself struggles with this, though it doesn’t formulate it like this, but you can see it in the medieval authorities (Rishonim). The Talmud struggles…
[Speaker B] Why the witness here? What is he, “the murdered person comes on his own two feet”?
[Rabbi Michael Abraham] Wait, I’ll comment on that in a moment. So the Talmud struggles with what exactly is being discussed here. How can there ever be a situation in which two witnesses are found to be liars in court? Any testimony against them can only, at most, contradict them.
[Speaker B] So the Talmud says, “you were with us,” right?
[Rabbi Michael Abraham] What? Okay, in another moment we’ll see. So the Talmud asks how this can be, and the Talmud says that ordinary witnesses who come and contradict the first witnesses—that is, they give opposite testimony in terms of content—that is contradiction. And this passage is not talking about them. Why? Because you can’t determine that they lied. Maybe the other two lied? It’s two against two. You can’t establish that there is a group of false witnesses here. And with two against two, the Amoraim indeed dispute whether both groups retain their presumption of validity or whether both are disqualified. But certainly, certainly, that’s only out of doubt; meaning, you definitely can’t punish them. So this is certainly not talking about contradiction. Therefore the Talmud says: it is talking about refutation. What does that mean? “You were with us.” Meaning, if two witnesses come and testify that so-and-so murdered so-and-so, and two other witnesses come in Haifa on such-and-such a day, and those other two witnesses say: what are you talking about? On that day you were with us in Australia. You couldn’t possibly have seen this thing. So that is refutation, and that’s what the verses are talking about.
[Speaker E] Isn’t that also one against the other? What?
[Rabbi Michael Abraham] We’ll see in a second. And therefore the Mishnah in Makkot on page 5 says as follows: Witnesses do not become refuted witnesses unless they are refuted in their own persons. How so? If they said: we testify regarding a certain man that he killed a person; and others said to them: how can you testify, since this murdered man or this murderer was with us on that day in such-and-such a place—these are not refuted witnesses. But if they say the murdered man or the murderer was with us in such-and-such a place, that is contradiction. But if they said to them: how can you testify, since you were with us on that day in such-and-such a place—then these are refuted witnesses, and they are executed on that basis. Okay? That is refutation. Where does the Talmud learn this from? From where are these words derived? Rav Adda said: because the verse says, “And behold, the witness is a false witness; he has testified falsely.” Until the body of the testimony itself is shown to be false. In the academy of Rabbi Yishmael it was taught: “to testify rebellion against him”—until the body of the testimony itself is removed. “The witness is a false witness; he has testified falsely against his brother” means until it becomes clear that the body of the witness himself is false, meaning the witness physically wasn’t there but was somewhere else. And therefore they infer from the verses that we are dealing here with refutation. As for the question I raised at the beginning—as I said, the Talmud doesn’t ask it; it comes up among the medieval authorities (Rishonim): how can it ever be that a witness is a liar? After all, any testimony against two witnesses will be at most two against two. So here, seemingly, you have the solution of “the murdered man walked in on his own feet.” Right? Suppose two witnesses come and say that Reuven killed Shimon, and then Shimon comes strolling gently into the religious court. He walks into court. So that’s clear proof that they lied, right? Here it’s not a question of two against two; it’s obvious that they lied. But that can’t be the subject the passage is talking about, because the passage says: “And you shall inquire and investigate thoroughly, and behold, it is true, the matter is established, the witness is a false witness, he testified falsely against his brother.” Meaning that the falsity of the witnesses is the result of the court’s inquiry and investigation. If the murdered man walks in on his own feet, the witnesses’ falsehood doesn’t emerge from the judges’ inquiry and investigation. It simply emerges because the supposedly murdered person turns out to be alive. How can there be a case where, through the court’s clarification, it emerges that the witnesses are liars? That’s what we’re dealing with here. How, and does this in fact solve the problem? Okay, so I inferred from the wording of the verse that this is talking about the body of the testimony itself being false; meaning, when you testify about the witnesses, then indeed the second pair of witnesses is believed, and this is not two against two. It’s not like contradiction. And the question is why. After all, there are still two against two here—it’s two against two. So in principle this too should have been contradiction.
[Speaker B] But two against two here isn’t about the act; they’re not testifying about the act.
[Rabbi Michael Abraham] Right, what are they testifying about? They’re testifying about the question of where they were.
[Speaker B] They’re testifying about them, that they’re unable to testify.
[Rabbi Michael Abraham] So some of the medieval authorities (Rishonim) really do say that—we’ll get to that in a moment. But the question that arises here is: why is this different from contradiction?
[Speaker B] Why? It’s also two against two. What difference does it make whether I testify “you were with us”
[Rabbi Michael Abraham] or whether I testify that the murdered man was with me or the murderer was with me? So as a result of this there is indeed a dispute in tractate Sanhedrin, a dispute between Abaye and Rava, over what… The question is whether a refuted witness is disqualified retroactively or only from now on. According to Abaye, a refuted witness is disqualified retroactively, and according to Rava he is disqualified only from that point forward. What does that mean? When two witnesses come and testify that… they come on Tuesday and testify that on Sunday there was a murder. Meaning Reuven murdered Shimon. The testimony is given on Tuesday. On Thursday, witnesses arrive and refute them. They say: you weren’t there at all; you were with us somewhere else. So they become disqualified as witnesses. Meaning there are basically three consequences to refutation. One consequence is that the judgment is canceled, meaning the testimony of the first pair is not accepted. The second consequence is that the first witnesses are disqualified from testimony, meaning not only is this testimony not accepted, but they become invalid witnesses. And the third consequence is that we do to them what they intended to do. Okay? Of course, if we do to them what they intended and execute them, then it’s not all that relevant that they’re invalid as witnesses, but it could be that they testified, say, in the meantime or something like that. In any event, those are the three consequences.
[Speaker B] The dispute over what they’re disqualified from testifying to—is it testimony that would have been accepted or not?
[Rabbi Michael Abraham] I didn’t understand.
[Speaker B] No, other testimony. Another testimony.
[Rabbi Michael Abraham] They’re disqualified from testifying in some other case. If they come to testify about something else, they’re disqualified. The question is: from when? Are they disqualified from the moment of their statement in court, or from the moment they were refuted? From Tuesday or from Thursday? That’s the dispute between Abaye and Rava. Abaye claims: from Tuesday. A refuted witness is disqualified retroactively. Meaning, the refutation happened on Thursday; the original testimony itself was on Tuesday; the disqualification of the refuted witnesses begins on Tuesday. That’s the logic, right? The logic says Tuesday. Why? Because on Tuesday they lied. So they lied. From the moment they lied—true, it became clear two days later, but it became clear that already on Tuesday they had lied, and therefore they are disqualified. That’s Abaye. Rava says no, he is disqualified only from now on. Only from Thursday.
[Speaker B] Meaning that if they testified on Wednesday about another incident, that remains valid.
[Rabbi Michael Abraham] Yes. Now the Talmud discusses there why—what is Rava’s reason—and it brings two explanations. One explanation is that the law of refuted witnesses is a novelty, and you have in it only from the time the novelty takes effect. Meaning, because the law of refuted witnesses is novel, we narrow the novelty as much as possible, as I also talked about earlier. And the second explanation is because of loss to purchasers. It doesn’t matter if they gave testimony, say, on Wednesday—the purchasers don’t know that the witnesses are invalid, and then various transactions were done, and in the end there would be major disruptions there. Therefore there is such an enactment that only from Thursday are they disqualified, and not before. Still, of course, the claim that this is because of loss to purchasers is not different from the first claim. If these witnesses really are liars, then why validate them because of loss to purchasers? They’re liars. There are no purchasers and no transaction and nothing. Meaning, there is some underlying assumption here that I can accept their testimony; it’s just that I would have had reason to disqualify it, yet I still accept it so that purchasers don’t get into trouble. Okay? So the second explanation too basically assumes in the subtext that these witnesses are in fact supposed to be credible, and certainly the first explanation does. What is the novelty? In the case of refuted witnesses, the novelty is what we discussed earlier. The Talmud says a refuted witness is a novelty: what makes you think to rely on these? Rely on those. Meaning, why do you rely on the second pair of witnesses? Rely on the first pair. It’s two against two. Why do you prefer the second witnesses? Therefore it is a novelty, says the Talmud, and according to Rava you have in it only from the time of the novelty, and therefore they are disqualified only from Thursday. According to Abaye they are disqualified from Tuesday. They are disqualified retroactively. And why? Because very nice, whether it’s a novelty or not a novelty doesn’t matter—but in practical terms, they are liars. If they are liars, they already lied on Tuesday, so from Tuesday they are disqualified.
[Speaker C] It’s not that someone who lies once means he always lies.
[Rabbi Michael Abraham] If he is suspected of lying, he can no longer be accepted as a witness.
[Speaker C] Fine, but maybe Rava’s claim is that maybe yes and maybe no—he’s only suspected.
[Rabbi Michael Abraham] In a case of doubt, the burden of proof is always on the witness. The witness comes to testify in court. If he is a witness about whom there is doubt, we do not accept him. Mere doubt is enough to disqualify him.
[Speaker C] Right, but the doubt arose on…
[Rabbi Michael Abraham] No, the doubt arose on Tuesday. On Thursday it came to our knowledge. But on Tuesday it arose because they made their statement—their testimony—on Tuesday. But on Thursday it became clear to us that the statement of Tuesday might be false. On the side that it is false, it was already false on Tuesday.
[Speaker G] Why not retroactively for their whole lives?
[Rabbi Michael Abraham] Because who says they were liars before? I know from when they lied that they are liars, but that doesn’t mean they were born liars. A person has a presumption of validity. The assumption is like an ox that has become forewarned. With a forewarned ox, by the way, there is the same question. A forewarned ox is after it has gored three times. And it’s not… why not? Because the assumption is that the ox has the status of non-forewarned, and these three times remove it from that status. From when is it forewarned? Or simply—there are disputes among medieval authorities (Rishonim) and later authorities (Acharonim) here; I think we talked about this once. So there is some novelty here; the Talmud says that in principle this is two against two. I’m returning to what I opened with, namely that the simple view is that refutation, like contradiction, is two against two. And by accepting the second witnesses, it’s basically not clear… it’s a scriptural decree. Right? It’s a novelty. Rashi indeed writes: “It is a novelty that two are disqualified by two, when these say ‘you were with us,’ for what makes you see fit to rely on these? Rely on those. It is a scriptural decree. Therefore you have in it only from the time of its novelty onward, from the time he was refuted.” Rashi says “novelty” means a scriptural decree. Now, what does Abaye say? Abaye—this is Rava who says it is a novelty and you have in it only from the time of its novelty. Abaye, who says they are disqualified retroactively, apparently understands that this is not a novelty. Meaning, he understands that they are really disqualified, and like any invalid witness, he is disqualified from the moment his invalidity becomes clear. And in fact several medieval authorities (Rishonim) bring rational explanations for this law of refuted witnesses: why in the case of refuted witnesses there is no law of two against two, why there the second pair has priority. For example, Rav Nissim Gaon writes in Sefer HaMafte’ach—it also appears in the responsa of the Geonim: “The distinction between contradiction and refutation is that in contradiction, the contradiction between the two groups of witnesses falls on the body of the testimony itself, and the law in that case is to nullify both testimonies, since it is not known which of them is true. But in refutation, the law is to execute the refuted witnesses, and the contradiction of Reuven and Shimon is of no use at all, because the testimony is directed at them, and they become in the category of litigants, such that when testimony is given against them, their contradiction is of no use at all against the witnesses testifying against them. Whereas in contradiction between witnesses, it falls only on the body of the testimony; there they remain in the category of witnesses, and therefore both testimonies are nullified.” Several medieval authorities (Rishonim) say this. Rav Nissim Gaon is the first among them, but there are others. The Tur writes something similar. Nachmanides, in one of his explanations, also writes something similar: that basically the first witnesses are testifying about themselves, and the second witnesses are testifying about the first witnesses, and therefore they do not have equal status. Someone who testifies about himself is a litigant; that is a disqualification. A question raised by several later authorities (Acharonim) here is that if that’s so, then you can’t accept any witness in the world. Because every witness in the world testifies about himself. He testifies about himself that he was there, he was at the place of the incident. So—is that refutation? No one refuted him. Two witnesses simply come and say that Reuven killed Shimon. Implicit in their words, of course, they are also saying: and we were there and saw it, right? They testify about themselves. And you told me that when a refuting pair appears, then the first witnesses are not believed because they are testifying about themselves, while the second pair testifies about the first pair. Meaning that a witness who says, “I was in such-and-such a place,” is considered a witness testifying about himself, and we don’t accept that because he is a litigant. So how do we ever accept an ordinary witness? Here too the two are testifying about themselves.
[Speaker B] As long as there’s no claim against him, he isn’t a litigant because he isn’t making a claim. Here, there aren’t two claims standing against each other.
[Rabbi Michael Abraham] He’s not accused, but he testifies—of course there are. The accused claims he wasn’t there.
[Speaker B] An accused person can’t be a witness.
[Rabbi Michael Abraham] Why not? He’s not a witness. He can’t make a claim? Why can’t he? Of course he can make a claim; he just can’t serve as a witness. He claims that they’re liars—what do you mean?
[Speaker C] And now they come and testify about themselves and say: no, we are not liars.
[Rabbi Michael Abraham] Meaning you testify
[Speaker C] about yourself—what do you mean? So he has an interest in the matter, and we don’t accept his words.
[Rabbi Michael Abraham] But they aren’t accused. So what if they aren’t accused? They testify about themselves. They’re not testifying about themselves; they’re testifying to the matter itself.
[Speaker C] Through that, they testify about themselves.
[Rabbi Michael Abraham] Here too, here too they aren’t testifying about themselves. When the second pair comes and says “you were with us,” they say, “that’s not true, we were there.” Which is what they said from the start. Meaning they are saying what they had already said earlier.
[Speaker C] Once new witnesses come, they are testifying about themselves. Why not? Same thing—that’s what I’m saying.
[Rabbi Michael Abraham] Meaning, if you go with that, then in the end it comes out that you can’t accept testimony at all, because in every case of testimony, when a witness comes to court he is also in particular saying that he was there and saw what happened. But then he isn’t accused. Right, here he isn’t accused. Okay, the moment he is accused, he becomes an interested party. Okay, so in fact I think that’s the more precise formulation. I think this is not a difficulty, even though some later authorities—Rav Shmuel and others—go with this, though it’s not entirely clear to me why. The truth is that it isn’t difficult at all. It really isn’t difficult, because the question is not whether you are talking about yourself. That’s not the question—what is the content of your words. The assumption of those later authorities is that if I speak about myself, if the content of my words is myself, then I am not believed. And that is not true. Only where the subject of the judicial discussion in court is me—then I cannot testify; by the way, even if I’m not testifying about myself. I cannot testify about anything connected to the case when I am the litigant, the person whose case is being judged. That is what determines it. So what determines it is not the content of my words—whether I’m talking about myself—but rather what the heading is over the court’s discussion: whose case is being judged here? Now, if we come and testify that Reuven murdered Shimon, whose case is the court dealing with? The murderer’s case, right? Two witnesses come and say: we were there and saw that he murdered. So what if they say they were there? Why do I care? The subject of the discussion is the murderer, not them. But now if two witnesses come and refute them, then now the subject of the discussion has become them. We stopped discussing the murderer. The murderer is now put to the side. Afterward we’ll come back to him. First of all, we open some kind of mini-case, right? Some little proceeding in which we now discuss the witnesses themselves. And now the heading over the discussion is: what is the status of the witnesses? Now when they come and say our status is secure, we are valid witnesses—you cannot make such a claim. You are now the accused here. Meaning, the problem is not who I am talking about; that’s not the point. The problem is: whose case is the court engaged in? That’s the question. Once a second pair comes and accuses you that you weren’t here—that is, that you are a refuted witness—now a refuted witness, “he testified falsely against his brother,” and “you shall do to him as he intended”; he is judged. Now he himself is the accused. Once he himself is the accused, he cannot say, “I,” meaning, “I am not guilty.” He can say it, but it has no force as testimony. And therefore I think this point is not difficult. And Sefer HaMafte’ach indeed claims that this is why the second witnesses have priority over the first witnesses. Which of course raises the question: so what did Rava think? Why does Rava say this is a novelty? It’s obvious that a witness is not believed to testify about himself. What’s the problem? Not so simple. Nachmanides too, in his commentary on those verses, says: “The verse did not explain how one knows that he is a false witness, because when the matter concerns two witnesses testifying to an event, even if a hundred come and contradict them, the falsehood will not be clarified.” And that is the question with which I began. I said the Talmud does not ask it, but the medieval authorities (Rishonim) note it. “And we cannot say that the murdered man came on his own feet,” what you suggested, “because in that case it would not be said, ‘and the judges shall inquire thoroughly.’ Therefore the faithful tradition came and explained that refutation is when they say, ‘But on that day you were with us.’ And the reason is that this testimony is about the bodies of the witnesses, and they are not believed about themselves to say, ‘we did not do so,’ for those latter ones could say about them that they killed a person or desecrated the Sabbath.” Right, this is very interesting. He doesn’t just say that they testify about themselves and that’s it; he adds another reason. He says: after all, the second pair could say that they desecrated the Sabbath or that they killed someone, and they could disqualify them from testimony. They have a migo. A power of
[Speaker C] a migo claim, yes.
[Rabbi Michael Abraham] They basically could have disqualified them from testimony. And obviously, if I testify about them that they desecrated the Sabbath, they can’t say, no, no, we didn’t desecrate the Sabbath. Otherwise, anyone who wants to desecrate the Sabbath should always do it in pairs. If you desecrate the Sabbath, find yourself another partner and desecrate the Sabbath together, and then there’s no problem, because any testimony brought against you, the two of you will contradict it, and then it will never be possible, yes, like the story—I once talked about Agatha Christie’s book, right, “the murder in the mikveh.” Meaning, if someone wants to murder a woman, let him do it in the mikveh, because all the witnesses there are women. It will never be possible to convict him. In other words, there are all kinds of tricks like that. So here too, Nachmanides is basically saying that since they could have disqualified the first pair, therefore they are believed. But notice—this is not exactly the same formulation as Sefer HaMafte’ach. He is not satisfied with saying that they testify about themselves and the second pair testifies about the first pair; he also adds the issue of migo—that we could have disqualified them for Sabbath desecration or robbery, and there certainly the witnesses could not defend themselves; that is agreed by everyone. So here this is an interesting question. It seems he does not fully accept the claim that when a witness testifies about himself, he is not believed. Because it could be, as I said, that according to Rava too we need to explain why this is a novelty, if it is really so simple that a witness who testifies about himself is not believed. Because if this is done in the context of testimony about the murderer—sorry—the first witnesses who testified that Reuven murdered, as part of their words they also testify that they were there and saw it, right? But at that stage their testimony was accepted. Because at that stage the subject of discussion was the murderer. Afterwards two witnesses come and refute them. Fine. Now the discussion about them begins. But when they said “we indeed were in that place,” the first pair, the discussion was still a discussion about the murderer. Why was their testimony admissible? And therefore it could be that Rava says—and even Nachmanides according to Abaye—that it is not so simple that these witnesses are testifying about themselves and are litigants and that the second pair is therefore believed. That’s why Nachmanides adds the issue of migo. Okay? The question is what exactly the migo is doing here, but I’m not going into that now. There are others—the Tur also writes something similar. Yes.
[Speaker E] Migo—doesn’t it have to be a claim that really could be true? Or is it because… because it could be true, because he could lie—just say, because they could have said they desecrated the Sabbath, they could have said they desecrated the Sabbath. What? A claim that I could have lied? I could have lied differently.
[Rabbi Michael Abraham] Migo is always in the sense of a lie. Therefore the latter ones are believed, since they testify about the very persons of the witnesses, and it is as though they testified about them that they killed someone or desecrated the Sabbath, and they are not believed about themselves to say, “we did not do such and such.” Here again, the same reasoning of the Tur. And the Sefer HaChinukh writes… But Maimonides in the Laws of Testimony, chapter 18, writes as follows: “And the fact that the Torah believed the latter witnesses over the first witnesses is a scriptural decree. Even if the first witnesses were a hundred, and two came and refuted them, and said to them: we testify that all hundred of you were with us in such-and-such a place on such-and-such a day—these are punished on their basis. For two are like a hundred and a hundred like two. Two groups of witnesses that contradict one another—we do not follow the majority, but reject both.” So Maimonides remains with the view that this is a scriptural decree. And on the face of it, that is strange, because seemingly this is exactly the dispute between Abaye and Rava: whether this is a scriptural decree or not. Right? Rava says it is a novelty and you have in it only from the time of its novelty, and Abaye says they are disqualified retroactively. So simply, that would seem to be the dispute: whether this is a novelty or not a novelty. And in Jewish law we rule like Abaye, right? This is part of “YA’AL KAGAM”—in the case of a refuted witness, whether he is disqualified retroactively or from now on, here the law follows Abaye. This is from the Talmud’s own tradition; nobody disputes it. The law in this dispute is like Abaye. Therefore the other medieval authorities (Rishonim) who bring a rationale—that makes sense, because Rava says it is a novelty, fine. But as far as Jewish law is concerned, we rule like Abaye, and Abaye holds that this is not a novelty, that it is something straightforward. But Maimonides says as practical law that this is a scriptural decree. And as practical law Maimonides rules like Abaye; he says they are disqualified retroactively, meaning he rules like Abaye. So in what sense is this a scriptural decree? Clearly Maimonides holds that Abaye too says this is a scriptural decree. The dispute between Abaye and Rava is not over whether this is a scriptural decree. Everyone agrees that it is a scriptural decree, right? The only question is what we do with the fact that it is a scriptural decree. Rava says: if it is because this is a scriptural decree, we narrow the law to only from the time of its novelty. Abaye says: what do you mean, scriptural decree or no scriptural decree, in practical terms you’re saying that the first witnesses are liars, so they lied on Tuesday, and therefore they are disqualified from Tuesday. So the dispute is not over whether this is a scriptural decree, but over what it means that it is a scriptural decree—does that require us to narrow the law, or do we say it retroactively? That is according to Maimonides. According to the other medieval authorities (Rishonim), the dispute between Abaye and Rava is over whether this is a scriptural decree or not. According to Maimonides, both agree that it is a scriptural decree. Now several later authorities (Acharonim) say that in fact the simple explanation is Maimonides’ explanation, and they raise difficulties against all the other medieval authorities (Rishonim), against their reasons. I mentioned earlier one of the difficulties: these witnesses are not really testifying about themselves, and so on, and they offer various explanations one way or another. But in the end they conclude that actually none of the medieval authorities (Rishonim) thinks there is a real independent rationale here. It is a scriptural decree, that is clear.
[Speaker B] Even according to… why did you say also Rashi?
[Rabbi Michael Abraham] What? Also Rashi… what about Rashi? You said that one cannot refute…
[Speaker B] No, that’s in the view of
[Rabbi Michael Abraham] Rava, but I’m talking about practical law, in the view of Abaye. “A refuted witness is a novelty”—that is Rava’s explanation, and Rashi says “novelty” means scriptural decree. So that is in the view of Rava. Abaye simply disagrees with him. That is precisely why he says it is disqualified retroactively. So those later authorities say: even the medieval authorities (Rishonim) who find a rationale in Abaye do not mean to say that Abaye thinks this is not a scriptural decree. It is a scriptural decree, but one can give it some kind of reason, one rationale or another. Still, it is a scriptural decree. What, the explanatory framework? What? If you have a rationale, it’s not a scriptural decree.
[Speaker B] What? If you have a rationale…
[Rabbi Michael Abraham] I’ll get to that later. But that’s what these later authorities say. It is not always the case that having a rationale is enough to put a person to death. Meaning, you have to understand: here we are killing people. So the fact that there is some rationale here still isn’t enough for us actually to act on it.
[Speaker H] But a person will say this is two against two. What you have here is two against two.
[Rabbi Michael Abraham] Two against two. Like contradiction—the distinction between contradiction and refutation. Now in fact, the truth is that in Nachmanides himself you can see this. Nachmanides, in the paragraph immediately after the previous one that I read, when he brings this reason, this rationale, then he says… and then he says, “And the reason in this is because the judgment of refuted witnesses is by decree of the Ruler, for they are two and two.” And he is talking about “as he intended” and not “as he did.” Meaning, if they already executed the sentence on the basis of the first witnesses, and only afterward another pair comes and refutes them, then the witnesses are not executed. And what is the reason for that? There is no logic in it—if they caused the accused to be executed on their basis, then all the more they should be liable to punishment. So he says: because the judgment of refuted witnesses is by decree of the Ruler—it is a scriptural decree.
[Speaker B] In the previous paragraph he explained that this detail is a scriptural decree.
[Rabbi Michael Abraham] No, no. He says the punishment of refuted witnesses in general is a scriptural decree; therefore don’t ask about this detail either.
[Speaker B] That’s what I asked.
[Rabbi Michael Abraham] In the previous paragraph he gave a rationale, and here he says the whole law of refuted witnesses is a scriptural decree, and therefore this too is a scriptural decree—that if they already executed, the witnesses are not executed—because the whole law of refuted witnesses is a scriptural decree, the opposite of rationale here. Where I understand both, I brought this as a contradiction. “For they are two and two, and behold, when two come and testify about Reuven that he killed a person, and two others come and refute them from their testimony, Scripture commanded that they be executed, because by the merit of Reuven, who was innocent and righteous in this matter—had he been wicked and deserving of death, God would not have saved him from the hand of the religious court, as it says, ‘For I will not justify the wicked.’ But if Reuven was executed, we will think that all that the first witnesses testified against him was true, because he died for his own sin, and had he been righteous, God would not have left him in their hand, as the verse says, ‘The Lord will not leave him in his hand and will not condemn him when he is judged.’ And furthermore, God would not allow the righteous judges who stand before Him to shed innocent blood, for judgment belongs to God, and in the midst of judges He judges. And all this is a great elevation of the judges of Israel and a promise that the Holy One, blessed be He, agrees with them and with their judicial decision. And this is the meaning of, ‘And the two men who have the dispute shall stand before the Lord’—before the Lord they stand when they come before the priests and the judges, and He will guide them in the way of truth.” What is the reason there?
[Speaker D] He gives a reason.
[Rabbi Michael Abraham] Wait, no—regarding “if they executed, the witnesses are not executed,” he gives a reason. He says that for “if they executed, the witnesses are not executed,” he gives a reason. What is the reason? The reason is that if the refuting witnesses truly arrived in time, then apparently the accused really is innocent. Why? Because otherwise the Holy One, blessed be He, would not have arranged that the refuting witnesses arrive and save him. If they did not succeed in saving him, if he was executed, then apparently he really did deserve it; otherwise the Holy One, blessed be He, would have ensured that they arrived in time. And since that is so, what happened itself proves the truth from within. And it works in reverse. The court rules because of the scriptural decree. Scriptural decree—there is no independent reason to believe the first pair. And the court executes them because the Torah said to execute the refuted witnesses. Once that happened, now we already understand that it was also true.
[Speaker G] No.
[Rabbi Michael Abraham] Not that because it is true the court does this, but because the court does this, that becomes retroactive evidence that it was true.
[Speaker B] But what if
[Speaker G] it was a case of monetary damages and not of executing them?
[Rabbi Michael Abraham] In monetary law, that is actually a major question—whether there are even refuted witnesses in monetary cases at all. That is a question. So why in monetary matters—that’s a different passage.
[Speaker D] But if another pair comes, and what if now they refute the pair that did the refuting? According to Maimonides, Nachmanides. The second pair.
[Rabbi Michael Abraham] A third pair comes and refutes the second. Right, and then what? Then the first witnesses were speaking the truth and he is a murderer. Fine, so they will execute him. They’ll execute him and the second pair. Is he and are they all executed?
[Speaker D] Where is the truth? According to Nachmanides, what is the problem?
[Rabbi Michael Abraham] The truth is with the third pair, because they arrived in time.
[Speaker D] But then the first one was executed for absolutely no reason? Right.
[Rabbi Michael Abraham] Ah, you mean they refuted them after that one had already been executed? Ah, wait—so what are you saying? One pair came, they executed the… sorry, one pair came and testified, they executed him, then a second pair came and refuted the first pair—
[Speaker D] He says refuted witnesses—they can’t execute them anymore.
[Rabbi Michael Abraham] Now here, by the way, the question is because it could be that they would still be considered refuted witnesses, only they would not receive “as he intended,” and in terms of their disqualification they would remain disqualified. That’s a somewhat discussed question among the medieval authorities (Rishonim). Ah, that’s more complicated. And the third pair—the same, all as usual.
[Speaker G] Here the difference is that bureaucracy would have had to celebrate for years before they killed the first one, and then the second pair before they kill the first witnesses.
[Rabbi Michael Abraham] I think it didn’t take years. It’s not like today, where a death sentence takes thirty years.
[Speaker C] That is
[Speaker B] delay of judgment.
[Speaker C] Why should I care if in the end it turns out that this was a true judgment and he was executed because he deserved it, because he was guilty? I’m now looking at the refuted witnesses.
[Rabbi Michael Abraham] No, then apparently they spoke the truth.
[Speaker C] No, I have two witnesses and that’s final.
[Rabbi Michael Abraham] Two witnesses who refute the
[Speaker C] refuted witnesses—that is one hundred percent from our point of view.
[Rabbi Michael Abraham] No, not one hundred percent from our point of view; that’s what Nachmanides said. According to Nachmanides, for example, it comes out—as I said earlier—that if they arrived after they had already executed the accused, then not only do we not execute the first witnesses, we don’t believe them at all. It goes back to being contradiction, because according to his approach it comes out that basically… they spoke the truth. It’s not some scriptural decree that we don’t execute them. It’s a philosophy of something else. That’s Nachmanides; Nachmanides explains the Jewish law in a philosophical way. He was executed because he did something else. No, no, no—Nachmanides says he was executed because of this.
[Speaker I] Meaning, he was executed because of what he did—something else—and there are two witnesses saying he murdered. If there are two witnesses saying he murdered and he also died, then apparently he died because he murdered, not because of something else.
[Rabbi Michael Abraham] There are no mistakes. But it could be that if it’s red on the inside and green
[Speaker I] on the outside and looks like a watermelon, then it’s a watermelon.
[Rabbi Michael Abraham] The second pair is lying. What? Right. Right. To that extent, one could have said that according to Nachmanides we ought to execute the second pair. There is no proof. There is proof that the first pair spoke the truth.
[Speaker B] Not proof. Why not? Proof. It’s not proof in law,
[Rabbi Michael Abraham] because the Holy One, blessed be He, will not punish him unless he deserves it. Again, Nachmanides doesn’t say it, but one could have gone that far. Okay, there is…
[Speaker B] Meaning that according to Nachmanides the second pair doesn’t need to come at all. What? I understand.
[Rabbi Michael Abraham] According to Nachmanides, the second pair
[Speaker B] doesn’t need to come at all. If they already executed him, then our whole answer is pointless. Too bad. Right. Even without Nachmanides they don’t need to come. If we had testimony that the refuted witnesses—that they really lied. If we had, if we had testimony that the refuted witnesses… if we had certainty.
[Speaker C] We’d have certainty that the refuted witnesses—the court would know that the refuted witnesses lied. How would it know?
[Rabbi Michael Abraham] The murdered man would walk in on his own feet.
[Speaker C] The murdered man comes. Okay. Something like that, yes—the testimony comes and the murdered man on his own feet. Even then they don’t do… then there is a problem here. Meaning, they don’t execute them. Because they gave false testimony. Now, we said it became clear that it was true testimony because he was executed. Now if the murdered man comes on his own feet, then it becomes clear that they did lie. Right. Then they execute them. What’s the problem? It became clear that they lied, so then they should execute them.
[Rabbi Michael Abraham] Meaning, the witnesses who testified—when the murdered man comes on his own feet, it becomes clear that they really are refuted witnesses, right?
[Speaker C] So why not—why don’t they execute them?
[Rabbi Michael Abraham] First of all, maybe they do execute them, that’s one thing. Second, according to Nachmanides that probably can’t happen. Right. It can’t happen. I asked what would happen if there were a square circle. There won’t be. Because Nachmanides says that once someone has been executed, it cannot be that he didn’t murder. So in any case there was a murder; it is impossible for the murdered man to come on his own feet.
[Speaker C] It is impossible that they are refuted witnesses.
[Rabbi Michael Abraham] If he comes—no, if they haven’t executed the murderer, then it is possible. The murdered man walks in on his own feet, and that’s always when they haven’t yet executed the murderer. If they already executed the murderer, Nachmanides says, it cannot be that the murdered man comes on his own feet. It’s a hypothetical question. There is no such reality.
[Speaker C] According to what
[Rabbi Michael Abraham] he writes, that is what comes out. Okay, so there are other reasons, by the way, that are brought in this context. There are reasons, for example, that the second witnesses have a migo, as Nachmanides brings here: they could have disqualified the first pair as robbers or Sabbath desecrators.
[Speaker B] There are claims that the first
[Rabbi Michael Abraham] pair—that the second pair is more credible because it takes a bigger risk than the first pair. This is what Derashot HaRan writes, in the eleventh discourse. He says the first pair, when it comes, comes in order to lie. It doesn’t imagine that anyone will catch them. They’ll lie and that’s all. But the second pair already knows that it is coming against the first pair. It understands that there are witnesses here who are now going to defend themselves. And if those witnesses defend themselves, maybe they will look for other witnesses or catch them in a lie, and therefore they should be more afraid. And if they still come, then apparently they really are telling the truth. Therefore Derashot HaRan says that the second pair is more credible than the first pair. Again, you see that this rationale is not exactly a million-dollar rationale, but say that if I have to decide which of the two is more credible, there is room to say that the second pair is more credible. And in Pnei Yehoshua there is also some kind of rationale. Yes, he says that Pnei Yehoshua really talks about the migo. After all, if the second witnesses had wanted to—meaning, the second pair, what do you think, that they are lying for what purpose? In order to save the murderer? They could have disqualified the first pair as robbers. They don’t need to say “you were with us.” So they basically have a migo. But then the question is different, because I would say no—maybe they want to kill the first witnesses. That they would not have managed if they had said that they were disqualified as robbers.
[Speaker B] Even though
[Rabbi Michael Abraham] it could be that perhaps in the case of Sabbath desecration then maybe yes. But if they want also to kill the first witnesses, not only to save the litigant, then the claim is more problematic. That they would not be able to accomplish with the migo claim. Okay? So then what? So therefore they really have no migo?
[Speaker B] So why is it only “you were with us”? What? If they disqualify the first pair—if they disqualify the first pair, then the witnesses are simply invalid.
[Speaker J] Or is it exclusive?
[Rabbi Michael Abraham] What happened there?
[Speaker J] “You were with us.”
[Rabbi Michael Abraham] No, no—that is
[Speaker J] the case of refutation.
[Rabbi Michael Abraham] Exclusive? Only that. So now there is a very interesting point here, because basically we punish the refuting witnesses. We… well, maybe I’ll formulate it differently. The first witnesses are coming to get the litigant executed, right? So I would say that specifically they ought to have priority. Because to say that people lie in order to kill someone—that’s very far-reaching. The second witnesses are only coming to save the litigant, so that the accused should not be executed, right? So overall I would actually say that the first pair has more credibility than the second pair. But after the Torah said that the refuting witnesses are executed—“you shall do to him as he intended to do to his brother”—then regarding them too, the assumption, if they are lying, is that they are lying in order to kill. That equalizes the standing of the two groups of witnesses. And again, you have here a case where the Torah’s law builds itself. Meaning, the Torah determines that there is a punishment, and that also makes clear why it has to be “as he intended.” It has to be the same thing that he intended to do to the other person—that is what will be done to these witnesses. Why? Because then the two groups of witnesses really have exactly the same standing. If these come to extract money, then those too come to extract money; and if these come to kill, then those too come to kill. And therefore you remove from here all the differences between them in terms of what you think they are trying to do, and all that remains are the other rationales. Okay, now—so fine, in short, I’ll stop here and we’ll continue next time. I’ll just summarize: basically there is a dispute between Abaye and Rava. According to most medieval authorities (Rishonim), it seems that the dispute is over whether this is a scriptural decree or not. It’s not clear what it means to say that it’s not a scriptural decree—there is some rationale there, but the later authorities point out that there may be a rationale, but it’s not certain we would have used that rationale even without the verse. And Maimonides’ position is that even according to Abaye this is completely a scriptural decree; there this certainly should really have been two against two, exactly like contradiction. And now what remains are basically two things. First: to understand, if indeed there are all these rationales, then why do we need the verse? Why is it called a scriptural decree? Why do we need the verse? That is really our topic here. But beyond that, what is most troubling in this discussion is the opposite question: how can it be that you kill a person because of a scriptural decree? A person who is telling the truth, and there is a scriptural decree to treat him as a liar and kill him? What does that mean? What kind of thing is that? Meaning, “scriptural decree” basically means that he is telling the truth. Right?
[Speaker C] If not for the verse, the rationale… no, no, no—rather, the scriptural decree helps us understand what the truth is, because it is very reasonable that there is a probability favoring the latter over the former. I’m talking about Maimonides.
[Rabbi Michael Abraham] The other medieval authorities (Rishonim) say that there’s a rationale here, and the scriptural decree expresses that rationale.
[Speaker C] No, no, no, it’s not two extremes. There’s something closer to the middle, and the scriptural decree helps us there.
[Rabbi Michael Abraham] But Maimonides says it’s a scriptural decree without any rationales. The other medieval authorities say there’s a rationale, and even rationales. The Lechem Mishneh also presents this as a dispute between the Tur and Maimonides, with practical differences between their approaches. So I’m saying: if according to Maimonides there’s no rationale here, then it comes out that if not for the scriptural decree, these people are in fact telling the truth. Maybe at least they are possibly truth-tellers. So how can you execute someone by force of a scriptural decree when he is possibly telling the truth? More than that: this is a person who did his halakhic duty. He saw something, he came to testify, he is obligated to come testify. Right? And conspiring witnesses don’t even need prior warning. Meaning, nobody warned him, nothing. He came, saw testimony, fulfilled his duty, went to testify, testified truthfully—and they execute him because of a scriptural decree, because he’s a liar, because it’s false, when he is telling the truth. So how can one understand a scriptural decree of that kind?
[Speaker J] That’s the thing we need to try to understand.