Reasons and Rationales for the Commandments – Lesson 2
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- The reasons for the commandments and scriptural decree in Maimonides
- Conspiring witnesses: the dispute between Abaye and Rava and when disqualification begins
- Maimonides, the Tur, and Rashi: is hazamah a scriptural decree even according to Abaye
- Two against two, contradiction versus hazamah, and what exactly the point of the “novelty” is
- The reasoning for preferring the refuting witnesses and the internal difficulty in it
- Rejecting the understanding of scriptural decree as an “arbitrary ruling” and the interpretive and moral problems with it
- Comparative examples: relatives, warning and punishment, and a true oath
- A local malfunction in an otherwise sensible rule versus a rule that is inherently “unjust”
- A new interpretation of scriptural decree in the case of conspiring witnesses: permission to act on reasoning where the rules of evidence are insufficient
Summary
General overview
The text presents a conceptual framework about the reasons for commandments as against the concept of a scriptural decree, starting from Maimonides’ position in the Guide for the Perplexed that all commandments have a reason, and that denying reasons turns the Holy One, blessed be He, into “worse than His creatures.” From this, it argues that a scriptural decree is not an absence of reason, nor even merely a reason inaccessible to us; rather, sometimes the reasons are accessible, and the question is what nevertheless distinguishes laws that are called by that term. The main example is the law of conspiring witnesses and the Abaye–Rava dispute over when they become disqualified, and the discussion develops into the underlying question whether hazamah can be understood as a case of two against two in which Jewish law “decides” arbitrarily, or whether one must say that there is a factual truth that the first set is lying, but there is only a halakhic-formal barrier to acting on that truth. The proposed conclusion is that the scriptural decree here is not a “reversal of reality,” but a halakhic permission to act on the basis of strong reasoning in a place where the normal rules of Jewish law would not allow capital judgment to be imposed on reasoning alone.
The reasons for the commandments and scriptural decree in Maimonides
Maimonides in the Guide for the Perplexed states that people find it difficult to assign reasons to the commandments because it seems to make the Torah and the Holy One, blessed be He, too human, and he rejects this by arguing that such a position turns the Holy One, blessed be He, into worse than His creatures. Maimonides determines that it is obvious that every commandment has a reason behind it. The concept of a scriptural decree is usually understood as “a matter without a reason,” and the text argues that in principle the very existence of this concept actually supports Maimonides, because it assumes that Torah laws generally do have logic, and only in places where we do not know the logic do we call them that. The central claim is that even in places called scriptural decree there are reasons—not only that they exist, but that they are even accessible to us—and therefore an explanation is needed for why they are still called a scriptural decree.
Conspiring witnesses: the dispute between Abaye and Rava and when disqualification begins
The Talmud in the third chapter of tractate Sanhedrin brings a dispute between Abaye and Rava over whether a conspiring witness is disqualified only from that point onward or retroactively. Abaye rules that the disqualification dates from the testimony that was later refuted, because that is when the lie actually occurred, even though the refutation was clarified only afterward. Rava rules that the disqualification begins from the time of the hazamah, and the Talmud explains this in part by saying that “conspiring witnesses are a novelty, and you apply it only from the moment of its novelty,” and so the novelty is minimized as much as possible. In Jewish law, the ruling follows Abaye, that a conspiring witness is disqualified retroactively.
Maimonides, the Tur, and Rashi: is hazamah a scriptural decree even according to Abaye
Rashi uses the phrase scriptural decree regarding the law of conspiring witnesses, and it seems that according to Rava this is a scriptural decree and therefore its application is narrowed. The text notes that one might expect that since Jewish law follows Abaye, anyone ruling like him would not call the law a scriptural decree; yet Maimonides nevertheless writes that it is a scriptural decree that the Torah believed the testimony of the second set of witnesses. Later authorities note that Maimonides implies that even according to Abaye this is a scriptural decree, and the dispute is only about what one does with that fact: Rava narrows it—“you apply it only from the moment of its novelty”—while Abaye applies the disqualification retroactively once Scripture has decreed that the witnesses are liars. From here the text presents a major dispute between Maimonides and the Tur as to whether, according to Abaye, hazamah is a scriptural decree or a law understandable by logic.
Two against two, contradiction versus hazamah, and what exactly the point of the “novelty” is
The text frames the basic problem by noting that hazamah looks like a case of two against two, since there are two witnesses against two witnesses and the rule is that two are like a hundred; therefore, logically, “what makes you rely on these? rely on those.” In ordinary contradiction, two against two creates a stalemate and neither side is accepted, but in hazamah the Torah determines that the refuting witnesses are accepted and the refuted witnesses are rejected, and this gap between hazamah and contradiction is presented as the point of the scriptural decree. According to Maimonides there is no difficulty because “Scripture decreed it,” while according to the Tur and other medieval authorities (Rishonim), arguments are brought to explain why this is not really two against two.
The reasoning for preferring the refuting witnesses and the internal difficulty in it
The standard reasoning brought in the name of the Tur and other medieval authorities (Rishonim) is that in hazamah the refuting witnesses testify about the first witnesses, while the first witnesses cannot count as two witnesses against that, because they are testifying about themselves; therefore this is not really two against two. An illustration is given: if every such case were treated as two against two even against defendants, then any gang of two or more would be immune from conviction, because whenever two witnesses testified against them, they themselves would count as two against two. So clearly defendants are not given the status of “two witnesses” against outside witnesses. The text then raises a sharp difficulty with this reasoning: in every ordinary testimony, the witnesses are implicitly saying, “we were in such-and-such a place and saw it,” and if that counted as self-testimony invalid because they are interested parties, no testimony could ever be accepted. The answer is that the definition of an interested party is determined by the subject of the court case. In the original testimony, the subject is the murderer, not the witnesses; but once hazamah is introduced, the subject changes to the question whether the witnesses lied, and then their response becomes the testimony of litigants about themselves.
Rejecting the understanding of scriptural decree as an “arbitrary ruling” and the interpretive and moral problems with it
The text sharply attacks an understanding according to which scriptural decree means that in truth this is an evenly balanced doubt as to who is telling the truth, and nevertheless the Torah commands us to believe the second set and kill the first. On the interpretive level, it argues that the Torah itself explains: “the witness is a false witness; he has testified falsely against his brother,” and if there is no real clarification that the first set lied, but only a formal ruling, the language of the verses is unintelligible. It is also argued that Nachmanides explains that the very mechanism of hazamah was created because ordinarily it is impossible to prove that two witnesses are lying, since two are like a hundred; therefore the Torah established a unique track in which it becomes “clarified” that they are liars. On the moral level, it is argued that an arbitrary understanding turns the law into a kind of Kafkaesque story, where witnesses who came to fulfill their duty and truthfully testify about a murder might be executed without prior warning and without having committed any transgression, merely because a scriptural decree prefers one set over another in an otherwise balanced case.
Comparative examples: relatives, warning and punishment, and a true oath
The text brings the invalidation of relatives as a scriptural decree, as appears in the Talmud, in Maimonides, and in the Shulchan Arukh, and stresses that this does not mean we do not believe them, but that we invalidate their testimony even when they are telling the truth. An extreme case is examined in which דווקא the refuting witnesses are relatives, in which case, under the scriptural decree, they would not be accepted and the first set would remain in force, potentially leading even to the execution of a defendant; and the text argues that such a situation is unacceptable, and that any proper judge would not execute anyone that way, at most withdrawing from the case under the rubric of a fraudulent case. An example is also brought from Sefer HaChinukh, commandment 69, concerning the distinction between punishment and warning, and its claim that if there were punishment without warning it would look like a “business transaction.” Likewise, Minchat Chinukh is cited on one who suppresses his prophecy, and a suggestion is raised that there can be a “technical” punishment without a substantive prohibition—a suggestion rejected on the basis of the rule “one does not punish unless one has warned.” There is also mention of the discussion in Temurah 3b according to Rabbeinu Gershom as an initial thought about “let him swear and be flogged” even in the case of a true oath, and that too is rejected, in order to show that in principle there is no place for punishment for fulfilling an obligation without committing any wrongdoing.
A local malfunction in an otherwise sensible rule versus a rule that is inherently “unjust”
The text presents a passage in Sanhedrin about a man who had already gone out to be executed and the witnesses retracted and even gave an explanation for their original testimony, yet nevertheless “it is impossible to bring him back, because the decree has already been issued,” using the rule that once a witness has testified, he cannot go back and testify differently. This case is presented as raising a similar difficulty of killing an innocent person because of formal rules, but it is distinguished from conspiring witnesses in that here we are dealing with a rule that is generally sensible and only a local malfunction arose, whereas under the arbitrary understanding of hazamah, the rule itself is seen as inherently irrational because it “prefers” one set over another in a balanced case.
A new interpretation of scriptural decree in the case of conspiring witnesses: permission to act on reasoning where the rules of evidence are insufficient
The text argues that for Maimonides and Rava there is no need to interpret scriptural decree as turning an even doubt into artificial certainty. Rather, it is actually clear that the second set is truly preferable, and that there are real arguments for that; the problem is that arguments are not halakhically sufficient to impose capital sanctions. The text compares this to the fact that even when there is a strong rationale for preferring a hundred over two, Jewish law still says that two are like a hundred, so reasoning alone does not break the formal rules of testimony. Similarly, an idea is brought from places in Tosafot concerning two against two and the migo of the second set, which does not help witnesses, among other reasons because it cannot be that migo should accomplish what even multiple testimonies do not. According to this, the scriptural decree in hazamah is that Scripture permits and obligates us, in this case, to rely on the consideration that marks the first set as liars, even though this rests on the structure of the hazamah claim and not on ordinary decisive testimony. Therefore it is a scriptural decree in the sense of an exception to the ordinary halakhic rules of decision, not in the sense of a decree against reality. The argument concludes that obviously one does not execute a person whom the court itself believes to be innocent, and that all that is called a scriptural decree here is that Jewish law allows hazamah to count as sufficient clarification for action—not as a command to kill despite the absence of any real falsehood.
Full Transcript
[Rabbi Michael Abraham] We’re in the midst of
[Speaker B] ta’ama
[Rabbi Michael Abraham] dikra
[Speaker C] and the reasons for the commandments.
[Rabbi Michael Abraham] I started discussing the question of—maybe before that, just anyone who wanted books should come with me afterward to the car. They’re in the car up here above HaShoreshim.
[Speaker C] Do you have copies?
[Rabbi Michael Abraham] There’s also one full set of books. In any case, we were talking about the concept of scriptural decree. We saw in Maimonides, in the Guide for the Perplexed, that Maimonides says there are people who find it difficult to assign reasons to the commandments, because that somehow turns the Holy One, blessed be He, into something human, and the Torah into something any person could have come up with. And he says that this makes—those people make the Holy One, blessed be He, worse than His creatures, and therefore that’s unreasonable. It’s obvious that behind all the commandments there are some reasons. From there I started discussing the question of what exactly a scriptural decree is. If all the commandments have reasons, then what distinguishes those commandments that we treat as scriptural decrees? Usually we understand a scriptural decree to mean a matter with no reason, yes, some command that has no logic behind it, no rationale, and that puts a bit of a question mark over Maimonides’ position. I’ll just note something—I don’t remember whether I mentioned this last time. In a certain sense, this is actually evidence in Maimonides’ favor, because the fact that certain laws are defined as scriptural decrees means that usually the assumption is that Torah laws do have logic. There are certain laws where we don’t know it, so we call it a scriptural decree. So first of all, on the principled level, the very concept of scriptural decree actually reinforces Maimonides’ position. But even in these exceptional cases that are called scriptural decrees, I want to argue that there too there are reasons. And not only that there are reasons—and I talked about this—the question is whether there are no reasons, or there are reasons but they’re just inaccessible to us. My claim is not only that there are reasons, but that the reasons are even accessible to us. And then of course the question comes up: so why is this called a scriptural decree? What distinguishes these commandments, that specifically they are called scriptural decrees? So that’s the framework of the discussion. After that we started getting into the topic of conspiring witnesses. The Talmud in the third chapter of tractate Sanhedrin brings a dispute between Abaye and Rava regarding a conspiring witness—whether he is disqualified only from now on or retroactively. Yes, say on Monday two witnesses come and testify that Reuven murdered Shimon on Sunday. The day before. On Tuesday two witnesses come and refute the set that testified on Monday. The day after. The dispute between Abaye and Rava is: when are they disqualified? According to Abaye they are disqualified from the time they testified—from Monday. The refuting testimony was on Tuesday, but the testimony that was refuted was given on Monday. From the moment they lied—and they lied on Monday—it was revealed to us on Tuesday, but they lied on Monday. So from the moment they are exposed, they are disqualified. Rava says they are exposed on Tuesday. Meaning that they are disqualified, sorry, from Tuesday—from the moment they were refuted, not from the moment they testified. The logic is obviously with Abaye. That is, they are disqualified because they lied. When did they lie? They lied on Monday. The fact that we didn’t know this until Tuesday doesn’t change the fact that they had already lied on Monday. Once the matter became known to us, they should have been disqualified already from Monday, from the time they lied. So apparently the logic is like Abaye. And the Talmud asks: so why does Rava really say that it’s only from Tuesday? It gives two explanations. One explanation is that conspiring witnesses are a novelty, and you apply it only from the moment of its novelty. Since conspiring witnesses are a novelty—in that we accept the testimony of the refuting witnesses and not that of the refuted ones—and novelties we narrow as much as possible, therefore you apply it only from the moment of its novelty. You reduce it to the minimum possible, from the time the testimony was refuted, not from the time the testimony was originally given. There is another reason there in the Talmud, but I’m not getting into it right now. I said there are medieval authorities (Rishonim) from whom it sounds like the dispute between Abaye and Rava really is over the question whether conspiring witnesses are a scriptural decree or not. Rashi uses the term scriptural decree. According to Rava it’s a scriptural decree, and therefore he narrows this law. According to Abaye it’s not a scriptural decree, and therefore from the moment they lied they are disqualified. In practical Jewish law, we rule here like Abaye. Look, a conspiring witness—whether he is disqualified only from now on or retroactively—in this we rule like Abaye, that he is disqualified retroactively. And therefore we would expect that someone who rules this way, someone who brings this as Jewish law, would not refer to it as a scriptural decree, because in practice we rule like Abaye, and Abaye does not say that it’s a scriptural decree. But Maimonides writes about this that it is a scriptural decree—that the Torah believed the testimony of the second pair of witnesses is a scriptural decree—even though he rules like Abaye that a conspiring witness is disqualified retroactively. So later authorities point out that it’s clear in Maimonides that he understood that even according to Abaye this is a scriptural decree. Abaye does not disagree with Rava on that point. Abaye too agrees that it is a scriptural decree; he just argues with Rava over what to do with the fact that it is a scriptural decree. Rava says: narrow the law—apply it only from the moment of its novelty. Abaye says: no, once Scripture has decreed and the witnesses are liars, then they are liars and are disqualified from the time they testified. But both agree that this is a scriptural decree. So in effect there is a dispute here, let’s say, between the Tur and Maimonides—and it’s not only the Tur, but usually people cite it as a dispute between the Tur and Maimonides—on the question whether conspiring witnesses are a scriptural decree or not. We are speaking, of course, according to Abaye, in practical Jewish law. According to Rava it is so, but the question is what Abaye holds. Maimonides says that Abaye too says this is a scriptural decree. The Tur says no—Abaye says it is not a scriptural decree, Abaye says it is a law that is understandable. What is behind this discussion? Why should this be a scriptural decree? Why should it not be a scriptural decree? So we saw there that first of all the basis of the problem with hazamah is that basically we are dealing here with a case of two against two. There are two witnesses against two witnesses, and in Jewish law two are like a hundred, even if there were a hundred here. Therefore, in principle, it cannot be that two witnesses come and disqualify or refute two other witnesses, because it’s just their word against theirs. So it’s two against two. And that is the basic problem: what makes you rely on these? rely on those. It’s two against two. Therefore the difference between hazamah and contradiction is itself a scriptural decree, because in contradiction, really, when there are two against two, it’s a stalemate: with two against two you can’t accept either side. But in hazamah, the Torah—the Talmud derives from the Torah—that in hazamah the law is different: there we accept the testimony of the refuting witnesses and reject the testimony of the refuted witnesses. That difference—why this isn’t two against two, why this isn’t contradiction—that is the scriptural decree. And that’s what people mean when they say this is a scriptural decree. Fine. So why are the second two believed after all? According to Maimonides there’s no question: scriptural decree, Scripture decreed it. According to the Tur, the second two are believed because there is a rationale behind it. And Nachmanides too, and the Derashot HaRan—I brought a number of medieval authorities (Rishonim) last time—they raise various arguments on this issue. The accepted argument—the Tur brings it too, and other medieval authorities (Rishonim)—is that the first witnesses are testifying about themselves, and the second witnesses are testifying about the first witnesses, and therefore this is not really two against two. In contradiction, the first two witnesses say, “Reuven murdered,” and the second two say, “Reuven didn’t murder.” Fine, that’s two against two. Neither side has any advantage. But in hazamah, the first two witnesses testify about Reuven that he murdered, and the second two witnesses testify about the first two: we don’t know whether he murdered or not—he may well have murdered—but you couldn’t have seen it because you were with us somewhere else, so you couldn’t have seen it. But we are testifying about you. Since we are testifying about you, you can’t count as two witnesses on that issue, because you are testifying about yourselves, and that is invalid as the testimony of an interested party. So for example, if two witnesses came and testified about a gang of robbers, okay? They testify that this gang of robbers—let’s say—robbed someone. Now basically, if in such a case the gang of robbers says, “It never happened,” and we treat this as two against two, then it follows that any gang of at least two people could never be convicted, because it would always be two against two: we would say they robbed, and they would say they didn’t rob. Meaning, if you want to rob, just find a partner and you’re immune—no problem, nobody can convict you. So obviously that’s not right. If two come and testify that two others robbed, or desecrated the Sabbath, or whatever, the other two do not have the standing of two witnesses on that issue. It won’t be two against two. So the Tur says the same thing here too: essentially the testimony
[Speaker D] It doesn’t matter there
[Rabbi Michael Abraham] conspiring witnesses—it doesn’t matter, two are like a hundred. No, here the two are indeed testifying about one, about the—
[Speaker D] Two testify about one that he was in that place, and another two testify about the second that he was in the place—
[Rabbi Michael Abraham] there, they’re testifying where they were, not where… I didn’t understand. Let’s straighten this out. Two witnesses come and testify that Reuven murdered Shimon. The refuting witnesses say, “You were with us.” The refuting witnesses, not the conspiring ones. The refuting witnesses. What do the conspiring witnesses say? “We were in the other place,” against them. The point is where they were. No, but I discussed this last time. I’ll present the question even more sharply. In fact, in every testimony where two witnesses come and say, “We saw Reuven murder Shimon,” with no hazamah and nothing else, included within that testimony is also the statement, “We were in such-and-such a place and saw it.” If regarding that they are not believed because they are interested parties, then you don’t even need someone to refute them. An interested party isn’t believed even without being refuted. You can’t testify about yourself. If such a thing counts as self-testimony, then no testimony in the Torah could ever be accepted. In other words, every witness who comes and testifies about something is basically saying, “I was there,” and that, after all, I can’t accept. Obviously that’s not true. Why not? Because the question of when you are an interested party is not determined by the content of the testimony. It is determined by the subject of the legal proceeding. In other words, where the subject of the case is whether Reuven murdered Shimon, then the fact that I say I was in the same place and saw it is not testimony of an interested party. I am indeed talking about myself, but I am talking about myself on a point that is not relevant to the subject of the case. The case is about who murdered whom; I am not on trial here. And when that’s the situation, even if I am speaking about myself, I am not considered an interested party. But once witnesses come and refute the first witnesses, the subject of the case changes, because now we are discussing whether the first witnesses lied or conspired. Then when they come and say, “No, no, we didn’t conspire—we were there and we saw it,” that is already the testimony of litigants. In other words, the problem is not only that they are speaking about themselves. The problem is that the subject of the court case is they themselves. And when the subject is they themselves, you can’t testify in a trial that is being conducted about you. The trial is about you. If you come and testify, “I was in such-and-such a place,” when the trial is about the murderer, then fine—that’s exactly what testimony is, you say that you were there and saw it.
[Speaker D] But when another two witnesses come and testify that they weren’t there, then that’s contradiction. So that’s contradiction—the refuting witnesses, the refuting witnesses.
[Rabbi Michael Abraham] So then there’s two against two regarding the first witnesses. So you can’t carry out “as he conspired” on the first witnesses, because there’s two against two about them, and therefore we also won’t execute the murderer, because we’re in doubt whether he murdered or not. That’s all. So in such a case de facto it will be like contradiction. Just like if two ordinary witnesses came and said, “He didn’t murder”—contradiction, not hazamah. Then obviously we wouldn’t do anything to the first witnesses—maybe they’re right, maybe not, it’s contradiction. But we also wouldn’t execute the murderer; meaning, we’re in doubt. So it’s exactly like contradiction, it’s the same thing.
[Speaker E] So what’s the novelty of conspiring witnesses in that, in that approach? I mean, we could have reached the conclusion in a case of conspiring witnesses even without the law of conspiring witnesses—it would just be contradiction, two against two.
[Rabbi Michael Abraham] Because, because—that’s the question, that’s exactly the question we started with. In other words, those who say there is an explanation behind this matter—in what sense, then, is it a scriptural decree? Fine, I’ll get to that. So that’s the picture we saw last time. And quite a few later authorities, when they deal with this question, try to explain the positions of the medieval authorities (Rishonim) who disagree with Maimonides. Basically there’s a problem with the reasoning—this kind of problem or that kind of problem. But Maimonides, as he appears to people, seems straightforward: scriptural decree, and everything is fine. Not to mention that according to Rava, it’s not only Maimonides—everyone agrees that according to Rava this is a scriptural decree. According to Abaye there is a dispute among the medieval authorities (Rishonim); according to Rava it’s a scriptural decree. And I have never understood this matter. You simply cannot say that conspiring witnesses are a scriptural decree. You just can’t—there’s no such thing, it can’t be. Why? Because the view that says conspiring witnesses are a scriptural decree is basically saying this: in principle this case is two against two. There are two against two. The Torah decrees that we should believe the second witnesses and reject the testimony of the first. So that means that if you asked me what the truth is, the truth is: maybe they are right, maybe those are right. In other words, I don’t know who is right, but there is a scriptural decree to kill them. I don’t understand. The truth is that they lied—that’s the only possibility?
[Speaker C] What do you mean? I mean, if it’s not a scriptural decree, then what—that it’s contradiction?
[Rabbi Michael Abraham] Yes, it is a scriptural decree that this should not be treated as contradiction. Someone who says it’s not a scriptural decree says it’s contradiction. So what else?
[Speaker C] What else is there?
[Rabbi Michael Abraham] There isn’t anything else. The Talmud itself says, “What makes you rely on these? rely on those.” Therefore it’s a scriptural decree, because if not for that, what would we say? We would leave it as contradiction. So the situation that comes out here according to Maimonides is completely absurd. It simply can’t be. There’s no such thing. Why? Because what comes out is that here we have two witnesses who, from our point of view, have a presumption of validity. True, a doubt arose about them, but they still have a presumption of validity. There’s a fifty-percent chance they’re telling the truth, and we kill them because there’s a scriptural decree to kill them. That can’t be. It can’t be in any sense—morally and interpretively. Let me start perhaps דווקא with the interpretive level. On the interpretive level, when the Torah speaks about conspiring witnesses, the Torah says: “the witness is a false witness; he has testified falsely against his brother; and you shall do to him as he conspired to do to his brother.” The Torah itself explains that we execute these witnesses because they are falsehood, he is a false witness, and therefore “you shall do to him as he conspired.” What has now been clarified? Not at all—he is not a false witness; he is a truth-telling witness, or at least maybe a truth-telling witness. The scriptural decree is to kill him, though he may be telling the truth. In contradiction, in the end we leave both on their original presumption, so there is a presumption of validity. So the scriptural decree is basically to take someone who is telling the truth, or may be telling the truth, and treat him as a liar. There can be a scriptural decree that tells me to do things I don’t understand, but there cannot be a scriptural decree that says day is night. There is no such scriptural decree. Day is day, even if Scripture commands a thousand times that it is night. You can’t tell me there is a scriptural decree that this person is a liar. At most you can tell me there is a scriptural decree to kill him even though he is not lying. So maybe I understand that—soon we’ll see the moral problem—but
[Speaker D] I’m talking right now about the interpretive problem. In the interpretive sense, how can one understand
[Rabbi Michael Abraham] what the Torah says—“the witness is a false witness; he has testified falsely against his brother”—when in fact this is a scriptural
[Speaker D] decree and the truth is that he did not lie, there is only a scriptural decree to kill him?
[Rabbi Michael Abraham] Then it should have said something else, without “the false witness testified,” and “you shall do to him as he plotted to do to his brother,” without “the false witness testified.” We also saw in the Talmud and in Nachmanides, even more strongly, that the whole idea of conspiring witnesses is that we are really looking for a way to implement the verse that says, “The false witness testified falsely against his brother.” Because in principle, when two witnesses come and testify, there can be no halakhic way to turn them into liars, because what can override two witnesses? That’s why they came up with the whole idea of hazamah. The whole idea of hazamah was created because there is no other conceivable way, aside from the “they were with us” physically that we discussed last time, there is no other conceivable way in which we can prove that two witnesses are lying. What can you bring against them? Bring a hundred witnesses against them? Two are like a hundred. There is no evidence that can overcome two witnesses. Precisely because of that, as Nachmanides at least explains, precisely because of that we define the situation of hazamah as a different kind of situation, apparently one the Torah was talking about, because there it really becomes clear to me that the first witnesses are liars. That is the only way I can determine that two witnesses are liars. So then the whole idea of hazamah is that here the first witnesses really are lying, not that there is a scriptural decree that they are truth-tellers and nevertheless we kill them. Meaning, there is an interpretive problem here in how to read the Torah when it says, “the false witness testified.” Maybe what we really mean is: the scriptural decree is that, according to Maimonides, we believe the second witnesses, and as a result of the fact that we believe the second pair—fine. But I’m asking you: what’s the truth? Not what you believe. I don’t know what you believe. What’s the truth? I’ll bet you: if Elijah comes and tells us whether he murdered or not, what odds are you giving? Fifty-fifty? Or are you betting nine to one? The truth is that they are liars. The truth is that they are liars, but that’s not self-evident because I have two against two. The novelty, the scriptural decree, is that I know they are liars as a result of the decree that I believe the second pair. Not that it’s a decree that changes reality. But is the truth that the first pair are liars? Of course. So why do you think that? It’s two against two. Rather, what? You have some reasoning because of which they are probably liars. The scriptural decree. But a scriptural decree can’t change reality. What is reality? Did the first pair lie or not? It doesn’t change reality; of course they lied. That’s it. So that means there is some reasoning behind this. This scriptural decree is basically just saying: know that in such-and-such a case, usually the first group is probably lying and the second group is speaking the truth. I don’t know the reasoning right now, but there is some reasoning, because otherwise the decree is detached from reality. And by the way, Nachmanides holds this too. After all, if conspiring witnesses came against the conspiring witnesses, then they too would be believed. Right. So where’s the… Right, you could ask that already about the first pair. Two witnesses come and testify that Reuven murdered Shimon, and we accept their testimony. Wait—but if witnesses come and make them conspiring witnesses, then won’t we reject their testimony? No, I’m saying: why do we also believe the witnesses against the conspiring witnesses? So I’m asking: forget that—why go there? I’m asking you already about the first pair. Obviously, as long as the only information I have is that there is one group, I accept them. If it turns out—well, a group can be lying if witnesses come and make them conspiring witnesses. And really, the whole idea is to run a betting pool on all these unresolved cases—when Elijah comes, what are the odds? What will the result be when Elijah comes? You’ll see all the suckers betting not fifty-fifty, you understand? But Rava also says this is a scriptural decree. Not only Maimonides—the Talmud says that Rava said it is a scriptural decree. So what about Rava? Say it’s a scriptural decree? Yes. He raises the question. Maybe the scriptural decree is that the Torah defined them as false witnesses even though there is no logic that would make them more false than the other two. So? So they lied—then it isn’t a scriptural decree, meaning they really lied. Who says they lied? They didn’t lie. So if they didn’t lie, how can you kill them? I don’t know whether yes or no, but the Torah defined them that way. That’s it—that’s the scriptural decree. It defined them as false witnesses. And I’m saying: but that can’t be. I understand that that is one interpretation of the term “scriptural decree.” I understand that that is one interpretation of the term “scriptural decree.” But it can’t be that once they are refuted, then they are simply considered false witnesses. All right, look, maybe I’ll explain something. Look, let’s take a different scriptural decree. I think we talked about this already once: this isn’t contradiction, because these testify about those, and therefore they really are speaking falsely, okay, because there is another pair that testified about them. And maybe the scriptural decree is simply the law concerning conspiring witnesses: that they are conspiring only so long as they have not yet caused the execution. No, but the Talmud itself says that the scriptural decree is “why do you rely on these? rely on those.” That is the scriptural decree. Because you could have said there is a scriptural decree only about the punishment of “as he plotted,” and that it does not apply once they have actually caused the execution, for example, since nowhere do we find that if they caused the execution they are themselves executed. I understand. If they caused execution, they are not executed. But I’m saying: the Talmud itself says why this is a scriptural decree; it doesn’t say that. It says it is “why do you rely on these? rely on those.” Yes, it seems to me at least that the purpose of the scriptural decree is certainly not to interpret what happened. That’s clear. Maybe the purpose is that witnesses should know that they will be killed if conspiring witnesses come. In other words, to frighten the witnesses. Frightening them is fine—but what do you want me to do? They came and testified. The very fact that they know that if conspiring witnesses come—so you kill an innocent person? Not kill an innocent person. You kill. The goal is deterrence. The goal is nice, but you are killing. You could also grab some random person off the street and kill him to frighten everyone else into not messing with you. You do not kill an innocent person even if the goal is legitimate. My problem is not with the goal; I can understand the goal. That’s why from the outset they indeed decreed not only that there is a law of hazamah, but also a rule in all testimony that it has to be testimony that can be made subject to hazamah. There indeed, probably that is the reason. Meaning, there has to be a whip held over the witnesses to ensure that they know they are not allowed to lie here. But I’m saying: what is the price? The price is to harm an innocent person for that? Then I can kill every third person on the street and people will be afraid of me, and then no one will mess with me. You do not kill innocent people. It’s the opposite. That creates deterrence. People won’t want to testify at all because they’re innocent. In a moment—I’ll get to that in a second, right. Let me bring another example of a scriptural decree. Look, there is a scriptural decree about relatives—related witnesses. Right? So when two related witnesses come and testify about something, whether in monetary law or anything else whatsoever, we do not accept their testimony. “Fathers shall not be put to death because of sons”—the Talmud expounds: fathers shall not be put to death through the testimony of sons. Of course that is not the plain meaning of the verse, but that is how the Talmud expounds it. And on this there is a Talmudic passage in Bava Batra, and it is also brought as Jewish law in Maimonides and in the Shulchan Arukh, that the disqualification of relatives is a scriptural decree. Meaning, it is not because we do not believe those relatives. Exactly. It says Moses and Aaron—even though that’s a bad example, because Moses and Aaron, fine, that’s an exceptional case, okay, but in general usually relatives lie. So always, as Maimonides says, the Torah speaks according to the majority. There are exceptional cases; you can’t deal with every individual and give him a separate rule. But the medieval authorities (Rishonim) say no, it’s not only about Moses and Aaron. Moses and Aaron are an exception that teaches the rule. A person is presumed proper. And if two relatives come and testify, as long as they are not testifying about themselves at least, there is no reason to suspect them. At least not a sufficient reason to disqualify them. It is a scriptural decree that they are disqualified. So now here too there is, ostensibly, a similar scriptural decree to conspiring witnesses. There is a scriptural decree by which we basically disqualify the testimony of two people who, in principle, are telling the truth. Think about it: say two brothers come who saw Reuven murder Shimon. Okay? We disqualify their testimony because they are relatives. Now the assumption is that disqualification of relatives is a scriptural decree. Meaning that what they said is actually true. Reuven murdered Shimon, but we will not accept their testimony because there is a scriptural decree not to accept their testimony. Very similar to what happens here. But there is a difference. Here he becomes liable to death, and there not. Exactly. Meaning here in just a second—it doesn’t let us off the hook. In a second, yes. Here we basically only acquit the murderer, right? If there are two witnesses who testified that he murdered, and then two witnesses come who contradict and make them conspiring witnesses—no, contradict them. Fine, even contradict. Contradict, yes. I’ll get to that in a second. Our comfort when we see that law is because in the end the court does nothing. Meaning, the court does not kill the murderer. The court can even punish him extra-legally, put him in a cell. We have ways of dealing with a murderer even where formal law does not allow us to impose the formal halakhic penalty. So there is only one witness, or the warning was not exactly one hundred percent, but if it is clear to us that the man is wicked and murdered, then he is dealt with extra-legally. Meaning, there is no problem in that sense. And therefore here we are not especially troubled by the fact that we do not accept the testimony of relatives, because it only means that formally this is not testimony; by scriptural decree we do not accept it. If there is a murderer here and we are convinced that he really murdered, then we will deal with him in other ways. The question is what happens here, as Shmuel said earlier, when two ordinary witnesses come and testify that Reuven murdered Shimon. And now two related witnesses come and make them conspiring witnesses. In a second we’ll see—conspiring witnesses, I think, is where this really bites. They make them conspiring witnesses. Okay? So if they are made conspiring witnesses by two brothers, then again—after all, disqualification of relatives is a scriptural decree. Right? So basically the relatives are speaking the truth. That’s what Maimonides says. Maimonides says it explicitly. Meaning, the relatives who make them conspiring witnesses are speaking the truth. Okay? So in effect they have made the first pair into conspiring witnesses, and the first pair are liars—that is the truth. But there is a scriptural decree, okay? A scriptural decree, and therefore we do not accept the testimony of the witnesses who made them conspiring witnesses. So what comes out? The testimony of the first pair remains valid, and then we have to kill the murderer. Because there is valid testimony against him that he murdered. And the truth is that he did not murder, because the truth is that the witnesses who made them conspiring witnesses successfully exposed the first pair, meaning the first pair are liars. Those who said he murdered are liars as a matter of truth. It’s just that there is a scriptural decree not to accept that. And the truth is, you have no testimony that he murdered. Yes. Hold onto that point. So now I ask: what will you do now? Here it gets more complicated. Because of a scriptural decree, are we going to kill a person even though our assumption is that he did not murder, or at least we have no indication that he murdered? Are we going to kill him because there is a scriptural decree that we do not accept the testimony of relatives? Usually the issue of relatives does not raise the problem for us because usually when relatives come in the initial testimony, at most the court does nothing or does something extra-legally. But in this case, where I’m talking about the second pair and they are relatives, now we are going to have to kill someone because of this scriptural decree. Because the first pair remains in force, and they said that Reuven murdered. If there is a judge who would do that, I would throw him into the sea. There is no such thing. It is obvious that you would not do such a thing. But I know of no halakhic source that says not to act in such a case. Truly, by scriptural decree, you did not accept the testimony of the relatives, the testimony of the first pair stands, Reuven is considered a murderer, you have to kill him. Yes, yes—by the way, I had conversations with people who told me yes, that’s what should be done. Simply ridiculous. Obviously not. So what you can do, one second, all you can do at most is recuse yourself from the case. There is a law of a fraudulent case, a situation where a judge can say: look, I feel there is something wrong here. Formally, in the evidence I found no problem, but my heart tells me there is something problematic here. I recuse myself from the case; find another judge to adjudicate it. This also appears in the Shulchan Arukh: a fraudulent case. Meaning, a judge can recuse himself from the case. Clearly, in such a situation, that is what the judge should do. But that does not solve the problem. Why does that not solve it? The next judge will have the same problem, and he too will recuse himself. Right. Everyone will recuse themselves. Yes. You will not find a judge who can adjudicate this case. No judge would ever imagine taking a person who is innocent, presumed innocent, with no evidence against him, and killing him because of a scriptural decree. There is no such creature. It simply cannot be such a thing. The man didn’t murder, didn’t do anything, and suddenly you grab him on the street and say: a scriptural decree says we must kill you. You kill him? He wasn’t even warned, he didn’t do anything, nothing. A scriptural decree says to kill you. It just cannot be such a thing. Since a judge can punish, he can also refrain from punishing. Yes. I once wrote something about this. So that is not refraining from punishment extra-legally. Right? That’s what I’m saying. He doesn’t need to recuse himself; he can choose not to punish. That’s what I’m saying. Right. That is basically what he is doing. When he recuses himself, that is basically what he is doing. No, but in such a case, where the law is formally clear—what? He can decide in the case of a murderer: I’m not… I’m saying, I do not know a source for this; I wrote once—I told you, I do not know a source for it, but it is an a fortiori argument. Meaning, if a judge can punish extra-legally, then certainly he can refrain from punishing extra-legally. What’s the difference? After all, if the law says this person may not be killed, then there is a prohibition of murder, the most severe prohibition in the Torah. And judges can kill him despite the prohibition of murder. So to exempt him from the death penalty because something here doesn’t seem right to me—that I can’t do? Seems to me an a fortiori argument. And that is exactly the point of a scriptural decree: either you accept it or you don’t; that’s exactly the idea you don’t understand. Right—that’s a scriptural decree. I claim not so. Exactly for that reason I’m bringing these cases, because I claim not so, and I’ll explain. The point is that a scriptural decree cannot—first of all in the interpretive sense—a scriptural decree cannot take a person who is speaking the truth and say: by scriptural decree, you are a liar. There are no scriptural decrees about reality. There are scriptural decrees about law. You can say: a person desecrated the Sabbath; by scriptural decree, kill him. I don’t understand why; I wouldn’t have done it myself, but Scripture says to kill him. Fine, I understand. But a scriptural decree does not say that Wednesday is the Sabbath. There is no such scriptural decree. Wednesday is Wednesday even if Scripture says so ten times. That is irrelevant; that is the interpretive problem. But beyond that, there is also a moral problem here. The moral problem is—think what happens now with conspiring witnesses. With conspiring witnesses, two witnesses come who saw a murder. Fine? And they testify that Reuven killed Shimon. Now two witnesses come and make them conspiring witnesses. A scriptural decree says to accept the testimony of the second pair and kill the first pair—“you shall do to them as they plotted,” right? Now think of the other side of this, because it is a scriptural decree. So basically, we currently have no indication that the first pair are liars. Fifty-fifty. They are presumed proper. Okay? So now basically, on one side of this doubt, there are two valid witnesses who saw the murder, fulfilled their halakhic obligation, came to court to testify about the murder. Conspiring witnesses, by the way, don’t even require prior warning. The Talmud says so. Conspiring witnesses do not need warning. Okay? So they came to court, saw a murder, came to court, testified about the murder—and we hang them. Can such a thing be? A Sabbath desecrator too—it is a scriptural decree that he is killed. But when a Sabbath desecrator goes to desecrate the Sabbath, he knows that the Torah forbids it. The two witnesses come and warn him. They say: know that if you desecrate the Sabbath, you will incur the death penalty, and he has to accept that upon himself and say yes, and with that in mind I do it. And then, of course, he ought to be exempt by reason of temporary insanity. Meaning, whoever says such a thing, and whoever kills him—I don’t know what to say, the guy is not sane. But there at least I can understand the mechanism. I don’t know why one is killed for desecrating the Sabbath, but the person himself, when he does it, knows that this act carries the death penalty, the witnesses warn him about it, and when he does it he understands that he is taking that risk. So I understand: they kill him because of a scriptural decree. That is a scriptural decree I understand. Not that I understand it, but I can apply it. But with the scriptural decree here, understand what is happening. The person is fulfilling a commandment. He is doing what he is supposed to do—coming to tell the truth in court about what he saw. He is fulfilling the commandment to testify. And they hang him. By scriptural decree. Nothing, no issue at all, he did nothing—after all, on that assumption he is speaking the truth. Can such a thing be? There is no such thing, neither morally nor interpretively. It is not the plain meaning. A scriptural decree. He comes and testifies about someone. Fine, fine. But if the second pair come and reject him. Right. But that’s two. They testified against him. No, no—you are taking me back to the reasoning. I’m telling you: scriptural decree. And whoever says this comes from logic—fine, logic. But whoever says it is a scriptural decree is essentially assuming, on the level of reasoning, that this is two against two. But the Torah said that in such a situation, you should specifically go with the second pair and disqualify the first pair. I am speaking only about that position—that according to Rava this is everyone’s view, and according to Abaye this is Maimonides’ view. Okay? So whoever says this is a scriptural decree is essentially saying that hazamah is, in substance, like two against two. But there is a scriptural decree to accept the second pair and kill the first pair. What does that mean? On the assumption that there really is no indication that they are liars. So basically, there is a fifty percent chance that this is a person who fulfilled his halakhic duty, came to court and testified as he was required to. Nobody gave him any hint, nothing, and they simply take him from there and hang him. This is the most Kafkaesque story I can imagine. And it cannot be such a thing. There is a story in the Talmud: a single witness who testified about something, and in the end he got lashes. “Tuvia sinned and Zigud gets lashed.” He cried out: he sinned and I get lashed? “Tuvia sinned and Zigud gets lashed.” It’s something like that. He is speaking the truth. He is speaking the truth, fine. But the question is what we think. The question is what we think. Meaning, it could be that the court errs; I have no problem with the court erring. But does the court itself know that this is just a scriptural decree? So the court knows that the reality is two against two. Then I do not understand the thing. In a moment I’ll bring a case that is even closer, one that challenges this claim more sharply. Before we continue: the whole story of hazamah is that the witnesses who make them conspiring witnesses are after the first witnesses—they want to get them, right? I don’t care who is guilty; I care about the witnesses who are being exposed. Them, them, them—that’s who they want to nail. Who says? You suspect them. But they are presumed proper. Who says? Why? After all, that’s true of any two witnesses. Maybe they’re after him; they want to kill him. But they know this is in court; they know that if they are found to be conspiring witnesses they will be killed. In a murder case too, two witnesses who testify that he murdered know that in the end he will be hanged. Who says that’s the truth? Maybe they’re after him; who says that’s the truth? So here too that’s the truth. I’ll say again: if it’s a scriptural decree, then you are right; and if it is logic, then that is the truth. You don’t need to prove motive as in a murder case. Why? I think in civil law you have to show motive. No, all right, so what? No, if you have clear evidence you do not need any motive. Motive—even… what? In civil law, only for motive. What does “civil law” mean? If criminal… criminal what? If there are two witnesses that Reuven murdered Shimon, do you need motive? I don’t think so at all. No, family… no, motive is something else. You need intent. Intent—of course, you need to know that he murdered. That’s warning; in Jewish law too you need warning. Of course they intended it, even if there is no motive. Fine. In any event, motive is an evidentiary rule when there are no witnesses, or an aid to police investigating—follow the motive. Also in rulings, intent. Fine. In any event, I am saying there is a problem here both interpretively and morally. So in short, such a thing cannot be. There is no such thing. I want to bring perhaps two examples where maybe we do see something like this kind of conception after all. In Sefer HaChinukh, commandment 69, this is the prohibition of cursing judges—what is called “blessing the Name,” meaning not to curse judges, as it says, “You shall not curse God,” and its interpretation is judges, like “whom the judges shall condemn.” “Elohim” in the Torah means judges, many times. And Scripture expressed it with the term “God” so that this prohibition would also include another prohibition, namely the prohibition of cursing the blessed Name, as our sages said in the Mekhilta and Sifrei. And of course “blessing the Name” is an expression of euphemism. He asks there: why do you derive the prohibition of cursing God from “You shall not curse God,” which speaks about judges, when there is an explicit verse elsewhere: “Whoever pronounces the Name shall surely be put to death”? What’s the problem? Why do you need to learn it from here? That there is the punishment, but the warning is from here. Meaning, there we do not learn that it is forbidden; we only learn that whoever does it is liable to death. The warning—the verse that establishes the prohibition—is here. Because the mention of punishment in the commandment is not sufficient without a warning. And this is what our rabbis of blessed memory say everywhere: we have heard the punishment; from where do we know the warning? Yes, everywhere in the Talmud—or in many places in the Talmud—they ask: we found the punishment; from where do we know the warning? And it says, “Whoever pronounces the Name shall surely be put to death”—what’s the problem? Why do you need another warning? It says they kill him. No—if they kill him, you still need a warning. You can already see why this is relevant to us. And the matter is, now the Chinukh explains why you really need a warning: because if the divine prevention came to us only in the form “whoever does such-and-such will be punished thus-and-so,” the implication would be that anyone who wishes may choose to accept the punishment and not be concerned about the suffering involved in transgressing the commandment, and in this he would not be acting against the will of God and His commandment. Then the commandment would become something like a transaction, like buying and selling. Meaning, whoever wants to do such-and-such can pay this or that and do it, or agree to bear such-and-such and do it. But that is not the intent of the commandments. Rather, God withheld us from these things for our good, and informed us in some of them of the punishment that reaches us besides the fact that one has violated His will—which is harder than everything. And this is what they said everywhere: He does not punish unless He first warned. Meaning, God does not inform us of the punishment that comes upon us for violating a commandment unless He first informed us that His will is that we not do the thing for which the punishment comes. All right? Meaning, the Chinukh says this: why do the sages always ask, “We heard the punishment; from where do we know the warning?” Why isn’t it enough that the Torah writes a punishment? If the Torah writes a punishment, I understand that the act is wrong and one should punish him, that’s all. Why do I need a separate verse giving me the warning, the prohibition, in addition to the punishment? So the Chinukh says: because without a verse of warning, we would think this is like what he calls a transaction. Like a condition rather than a sanction. Meaning, we would think a person can desecrate the Sabbath and be stoned, but there is no problem—he has not violated the divine will. It is just some sort of price, exactly a condition: if you want, desecrate the Sabbath and afterward you will be stoned; if you don’t want, don’t desecrate the Sabbath. Everything is fine, everyone is fine as far as the Holy One is concerned. There is simply a condition that whoever does such-and-such must suffer such-and-such. That is what we would think if there were no warning verse, if it only said “he shall surely die.” Therefore a warning is needed to tell you that there is something wrong in the act itself too—you are violating the will of God. It is not merely some technical condition that you are punished. Let me say parenthetically: this explanation is very problematic. This explanation is very problematic. Think about it: it says, “Whoever pronounces the Name shall surely be put to death.” Now we have some assumption saying that punishment is not technical, it is essential. Right? So if we already have that assumption, why do we need a verse? That assumption itself already says that if there is “he shall surely die,” then apparently the act is also problematic. So the verse that establishes the punishment already teaches us the problem, that there is a transgression here. Exactly. The problem that there is a transgression. What will you say—that we have no such assumption, and this is only some novelty? Really not. There are cases where yes and cases where no. In a place where there is a warning, we understand that it is also a problematic act. In a place where there is punishment without warning, then really we will understand that it is just technical, like a transaction, buying and selling. That cannot be true, because then the Talmud itself should not ask, “We heard the punishment; from where do we know the warning?” What bothers you? You heard the punishment, and there is no warning—why? Because here it is just a condition and not a sanction for a transgression. Rather what? The Talmud assumes that there cannot be such a thing, and that whenever a punishment is given it is because the act is problematic, not by accident—always. So if you know it is always so, then it is enough to write the punishment verse and I already know that the act is problematic. Yes. That circularity. Therefore this explanation is problematic. Fine. But in any case, in Minchat Chinukh, where he discusses the commandments dealing with a prophet, among other things there appears there in one of the commandments—this is not counted separately—the case of suppressing one’s prophecy. A prophet who received a prophecy and does not say it to the public, like Jonah, who was sent to prophesy to Nineveh and did not go. That is suppressing one’s prophecy. The Talmud says one who suppresses his prophecy is lashed. Tosafot asks: but we did not find a warning for this, so how can he be lashed? So Tosafot says no, this is only the neglect of a positive commandment, not a prohibition. I don’t know—maybe disciplinary lashes. But Minchat Chinukh suggests the following. He says: we really did not find a warning regarding suppressing one’s prophecy, and therefore, in light of this Chinukh, says Minchat Chinukh, it may be that with suppressing one’s prophecy, this is one of those transgressions where the punishment is only technical and not essential, because we found only the punishment—that he is lashed—but no warning. And if there is no warning, then, as the Chinukh explained here, that basically means the act in itself is not problematic. If you want, do it; if you don’t want, don’t do it. Just know that there is a price if you do not do it. And he explains that according to this we can perhaps understand Jonah. Jonah was a prophet. Right? He behaved like a child, running away from the Holy One. The Holy One sends him to prophesy to Nineveh, and the Jew takes a ship and runs away from the Holy One. It is childish behavior, really, but still—a prophet. Rather what? He says: no, Jonah clearly knew the price, but he understood that this was not against the will of God because there is no warning here, there is only the punishment, and he was willing to accept the punishment. Meaning, he refused to prophesy. But Minchat Chinukh ultimately says: that cannot be. There is no such thing. Precisely because of this consideration—that the Talmud asks everywhere, “We heard the punishment; from where do we know the warning?” So the Talmud assumes that there is no such thing as punishment without warning. And it is not what I said earlier. It’s not that the Chinukh says, look, there are two kinds of punishments. There are punishments that come as sanctions for transgression, and punishments that come as technical prices, like the buying and selling he calls it here. If there is a warning, it’s one type; if there is no warning, it’s the other type. If that were true, the Talmud should not ask everywhere, “We heard the punishment; from where do we know the warning?” When the Talmud asks, that means it assumes there is no second category; rather, punishments are always sanctions for transgression. And if that’s so, then also in suppressing one’s prophecy, of course this cannot be. That is one example. A second example is in tractate Temurah 3b, and this depends on a dispute among the medieval authorities (Rishonim) how to interpret the Talmud—Rashi and Rabbeinu Gershom there. But according to Rabbeinu Gershom at least, the Talmud raises there the possibility that a person could swear a true oath and get lashes. He is liable, say, as a guardian, to swear the guardian’s oath, and he gets lashes. He swears and gets lashes. Not lashes for a false oath or vain oath, but lashes because there are lashes for taking an oath, even a true oath. There too, the person is not only doing something permitted—not only is there nothing wrong with it—he is doing what he is obligated to do. The Torah imposes on him the duty to swear as a guardian. But the oath comes with its own breakage, like buying and selling. You are liable for lashes even though you actually committed no transgression. But there too it only arises as an initial possibility in the Talmud, and even that only according to Rabbeinu Gershom, and it is rejected. In the end the Talmud says there are no lashes for a true oath; lashes are for a false oath, so there are no lashes for a true oath. Meaning, in both those places you can maybe see some initial thought where one is punished by scriptural decree even though there is no transgression at all; rather the punishment is without warning. In one case, maybe he knew he was doing something wrong—but in the second case, he actually did a commandment. Suppressing prophecy, he did not do a commandment; he maybe simply did not commit a transgression if there is no warning. But in the case of one who swears truthfully where he is obligated to do so, he did a commandment. And this is the same sort of thing—really just like the conspiring witnesses I am speaking about here. Because according to the conception of scriptural decree, those witnesses fulfilled their halakhic duty, came to court, testified about an event they saw, and now they are hanged. And this one who swore—a scriptural decree. What scriptural decree? That he swore and gets lashes? In what cases there? Anyone who swears a true oath. Yes, someone who swears—an oath, invoking the divine Name—you get lashes. So the point is that in both places, at most there is some initial possibility of such a conception, and even that is unclear, disputed, but it is certainly rejected. There is no such thing. Meaning, it cannot be that you take a person who did nothing—on the contrary, he did his halakhic duty—without any warning, nothing, and simply kill him because there is a scriptural decree to kill him. There is no such creature; it cannot be. Therefore it is clear that we are not talking here about a scriptural decree in the substantive sense. Let me perhaps bring one more example. There is a Talmudic passage in tractate Sanhedrin: Our rabbis taught: there was an incident involving a man who was taken out to be executed. He had been found guilty by the court and was taken out to execution, or he was walking on the way to the place of stoning. He said: if there is guilt in me, let my death not atone for all my sins; and if there is no guilt in me, let my death atone for all my sins. Meaning, he continued to claim innocence even while they were taking him to the place of stoning. And may the court and all Israel be clean, but the witnesses shall never be forgiven. Meaning, you will be clean, but the witnesses I do not forgive. Meaning, if they really lied, then there is no forgiveness. And when the sages heard of the matter they said: to return him we cannot, because the decree has already been issued. Rather, let him be executed, and let the blame hang on the neck of the witnesses. Meaning, they nevertheless kill him. The Talmud asks: that is obvious. What do you mean? Why should we believe him? Everyone says, I didn’t do it. Is there any criminal who says, I did it? So what was the initial thought that they should not execute him? The Talmud answers: it is needed for the case where the witnesses retracted. The witnesses, after hearing this, recanted. They said: we lied. They got scared that they would never be forgiven, so they got scared. But what does it help if they recanted? There is a rule in testimony: once a witness has testified, he cannot retract. Once he has testified, he cannot return and testify differently. So what is the question then? Obviously he has to be killed, because once he has testified, he cannot return and testify differently. The Talmud answers: it is needed even though they gave a reason for their statement, as in those cases. Even when witnesses recant, they can give an explanation for why they said the opposite earlier, and then perhaps they can indeed retract. Fine. So here it teaches us that even when they give an explanation for their statement, and then they really are believed, nevertheless they kill him. Because this is really strange. The witnesses say they lied. They give an explanation for their statement. Meaning, they explain to us why they lied earlier, and they convince the court that they really did lie earlier—that they did not… Sometimes there can be a situation where witnesses retract when they see what is about to happen. You see that because of your testimony someone is about to die here, so suddenly: wait, wait, wait, I don’t want that on my head. Even though he was speaking the truth, such a thing can happen. I don’t want it—am I crazy? I don’t want it. I retract; I lied. Fine. But here they gave an explanation for their statement; they explained and convinced the court that they really did lie earlier. It is not that they are just shrinking back now. Okay? So the court basically knows that right now they are about to kill an innocent person, right? And the Talmud says: obvious—once he testified, he cannot return and testify differently. There are these or those formal rules, even though they gave an explanation for their statement. So the novelty is that even though they gave an explanation for their statement, they kill him. How can that be? This is exactly the same case. Meaning, we take a person whom we know is actually innocent, but there is a scriptural decree—once he testified, he cannot return and testify differently—therefore the testimony of the witnesses remains valid, and therefore we kill him. By scriptural decree, even though we know he is innocent. It is exactly the same case. The truth is that Rashi there says this was the son of Shimon ben Shetach, by the way, and there were those eighty witches whom Shimon ben Shetach had killed in Ashkelon—it doesn’t matter, that relates to the matter. But in the Tosefta, for example, it is not told that the witnesses recanted, and then it is easier. But here in the Babylonian Talmud it says that the witnesses recanted. And in the Jerusalem Talmud too, in Sanhedrin chapter 6, it says that the court wanted to retract, and the son of Shimon ben Shetach persuaded them to execute him, to execute himself and not retract—a Socratic move. He says: I am sacrificing myself to strengthen the rule-of-law system, the halakhic enforcement system. And then what? I understand. Fine. You can argue with him, but that is how it is described in the Jerusalem Talmud. Not important. No, why should the fact that he said that change anything? The judges know that they… No, clearly. But now it is like Tzelofchad in the famous midrash that Tosafot cites in Bava Batra, right? That Tzelofchad came to show the Jewish people that even though a decree had been issued against them in the wilderness, the obligations of the commandments still applied to them. So what did he do? He desecrated the Sabbath so that he would incur the death penalty and they would kill him, and then all Israel would see that one is still liable to death for desecrating the Sabbath. What a righteous Tzelofchad. Fine. And they still killed him, but… That’s the stick-gatherer. The stick-gatherer, yes. So I’m saying, there is room to say that the court accepted his claim. Maybe it saw that there was some undermining of the rule of law there, with the eighty witches and all the rest, and therefore decided to kill someone in a Socratic way. Meaning, basically to accept his proposal, his request, and kill him even though he did not deserve it. That already takes us out of our discussion. Because our discussion says: leave aside Socratic considerations—that is a different discussion. I’m talking about the question of what actually happens in the normal conduct of Jewish law. When the court is convinced that the person is innocent, but there is some scriptural decree in reality, or some halakhic scriptural decree that does not allow it to act accordingly, do I have to kill him? Not in order to educate the public, not Socratic issues, but for real—what does Jewish law actually require of me? That you do not see in the Jerusalem Talmud. In the Babylonian Talmud perhaps you do. In the Babylonian Talmud perhaps you do. But there is a difference; even according to the Babylonian Talmud there is a difference. Because in that case we are dealing with a rule that is, in principle, a sensible rule. The rule that once he testified, he cannot return and testify differently. Witnesses sometimes recoil, sometimes retract; you need to know that once you come and testify, that is your testimony. You will not be able afterward to change it, you will not be able afterward to do anything. The rule in general is a sensible rule. What happens is that in this particular situation a problem arose. In this particular situation a problem arose, even though the rule is generally sensible. In hazamah, the rule is not sensible. In hazamah it is always insoluble. Whenever two witnesses come and make the first pair conspiring witnesses, if you say “scriptural decree,” that means the Torah basically established as a rule that whenever the first pair are in fact equal to the second pair in terms of reality, still prefer the second pair and kill the first pair. This is not an accidental malfunction in a sensible rule. It is a rule that is entirely a malfunction. Do you understand? That is much more problematic. In general you can tell me that if there is a sensible rule, sometimes the legal system does not bring justice to light, because it is trying to do something general, and there are cases where that doesn’t work. I can understand: nevertheless I want to preserve the system, so I act according to the rules, let’s say. Even that is problematic, but let’s say. But where the rule itself that we established is an irrational rule, then why did you establish it? Meaning, if there is a sensible rule, there is no question why I established it; there is only a problem in a particular case—what do I do when it clashes with justice? Fine. Sometimes you tell me there is no choice; the reliability or certainty of the judicial system is more important. But here you established the rule itself unjustly. You take two groups of witnesses that are evenly balanced and say: kill the first and believe the second. This is not a particular case where we run into a problem with a sensible rule. The rule itself is not sensible. Therefore I say that here, even according to the Babylonian Talmud—which is also problematic—even according to the Babylonian Talmud, we still have not reached the problem of conspiring witnesses. Now, the point that must be understood, and I think the various arguments raised by the other medieval authorities (Rishonim) were also known to Maimonides—he too understood that there are reasons to believe the second group more than the first group, and Maimonides also understood that one cannot say this is merely a scriptural decree. He understood those lines of reasoning. But apparently from his point of view it was not enough, for various reasons. It was not enough. For example, let me give you an example: someone here asked earlier—I no longer remember who—why is this a scriptural decree at all if indeed the second pair, as I said, the second pair testify about the first pair and the first pair testify about themselves. Right? And that is like two witnesses who come and testify about two other people that they are robbers, where no one would imagine that the two robbers could create a two-against-two situation. Now, on the face of it, here it is exactly the same thing. How can you, after such a strong argument, still say it is a scriptural decree? The answer is that it is not true. Why? Because the testimony of the first witnesses was given in a proceeding in which they themselves were not the subject. When they came and testified, they testified that Reuven murdered Shimon, and then they said they were in that place. Afterward a second pair comes and makes them conspiring witnesses. Now they become the subject of the proceeding. When you are the subject of the proceeding, you cannot give testimony—you are litigants. But our testimony, when it was given, was given before we were litigants. It was within the framework of the first proceeding. There it is completely admissible testimony. When two witnesses come in an ordinary proceeding and say, we were in that place and we saw it—that is always accepted, right? That is accepted testimony. Therefore, within the ordinary categories of a litigant, this is not really similar to disqualifying two others for robbery, by saying they are robbers. Even if one accepts the Tur’s reasoning, one must understand that this is not such a simple argument. And the point is, I think, that this is what happens with all the arguments. All the arguments that the medieval authorities (Rishonim) bring are correct arguments. There is a reason to prefer the second group over the first group. But that reason is not sufficient halakhically were it not for the scriptural decree to prefer it. Meaning, the scriptural decree does not say that in truth the first and second pairs are of the same standing. Not true. It is clear to everyone that the second pair have a higher standing. But the scriptural decree basically says: without the scriptural decree, I would say that the fact that there is a rationale in favor of the second witnesses still does not mean that I would believe them. There is also reason to prefer a hundred witnesses over two, and still the Jewish law says two are like a hundred. Two versus a hundred is an equal situation. Meaning, logic is not enough; you need testimony. So when you have, say—you know, in several places in Tosafot, in several places in the Talmud, they ask: when there is a contradictory two-against-two situation, why not believe the second testimony, those who came after the first ones, on the basis of migo—that they could have disqualified the first two for robbery? Two witnesses come and say Reuven desecrated the Sabbath; two other witnesses come and say Reuven did not desecrate the Sabbath. That is contradiction, not hazamah. Okay? The second witnesses, if they had wanted to cause Reuven to lose, they could have disqualified the first pair for robbery. They could have said that the first witnesses are robbers, and then this would not be contradiction; they would be believed. If they had said that the first two witnesses are robbers—disqualified. Disqualified, yes. And then what comes out is that the second witnesses have a migo. So why don’t we believe them? There is a whole dispute among various later authorities (Acharonim) how exactly to explain this; really it begins already with the medieval authorities (Rishonim). One common opinion that appears in some places is that migo does not help witnesses. Why does migo not help witnesses? One possibility—there are many possibilities, but one interests me here—is this: think about if two more witnesses had come to support these witnesses; that would not help, right? Two are like a hundred. Two against four does not help. So will migo do what two witnesses cannot do? There is two against two, and in favor of the second pair there is migo. Okay, so there are two witnesses and migo against two witnesses. But two witnesses plus ninety-eight witnesses cannot beat two witnesses, so two witnesses plus migo can? Now what does that mean? It does not mean that two witnesses plus migo are really no more credible than the first two witnesses. They do have migo; it is really a valid consideration. But it is not enough. The rules of Jewish law say it is not enough. I think that what is written here in Maimonides’ “scriptural decree,” and in Rava according to all views, is not a scriptural decree that says this is not the truth. Meaning, it is obvious that the first and second pairs are basically two against two and neither is more right than the other. The scriptural decree does not mean that. It is obvious that the second pair are right—that is the truth. But truth is not always enough in Jewish law. With relatives too, what they say is true, and Jewish law says not to accept their testimony. Therefore I would have thought that since what the second witnesses have in their favor is only some rationale, you do not put a person to death on the basis of rationale alone. Logic, with all due respect—you need two witnesses; “a matter shall stand by two witnesses.” So halakhically I would not rely on that rationale. Then the verse comes, the scriptural decree, and says: rely on that rationale. And what about the moral consideration? And what about the moral consideration? How does that solve the moral problem? It solves it completely. The moral consideration assumed that the truth is that they are innocent. You are not relying—no, I am relying. You are not relying because halakhically it is just a scriptural decree; you are not relying. Not halakhically. Factually—like relatives. Relatives testify to the truth and I do not accept their testimony. That I am willing to accept. There is no such scriptural decree. As long as everyone knows, and it is transparent, and there is warning, and not some Kafkaesque story where someone comes to do a commandment and is hanged. There are scriptural decrees; there are many things I do not understand. As long as I know and know how to play, what the rules of the game are, fine. Okay, so that is the claim, and it solves the problem completely. My claim is that in this case, “scriptural decree”—and we will see there are several kinds of scriptural decrees; I really need to finish—in this case, “scriptural decree” does not mean that the truth is otherwise and the Torah says nevertheless act this way. “Scriptural decree” means: this is the truth; I knew that even without the decree, otherwise it would not happen even with the decree. It is obvious that this is the truth. Rather what? There are halakhic rules that tell me not to act even though I know this is the truth. The scriptural decree comes and says: no, not in this specific case. In this case you may act on the basis of reasoning, and not despite the fact that this is not formal testimony but only rationale, whereas usually you need testimony—here there is testimony. No, that does not matter. But you are saying: even though you are always forbidden to rely on one, the scriptural decree says that in this case, yes, rely on it. Fine. I’m saying: the question is whether this is despite the fact that there is a halakhic problem in believing the second pair or not believing them, because it is only a rationale? Yes, right. So in this case, “scriptural decree” does not mean to do the opposite of factual truth. Obviously we do not kill an innocent person; there is no such creature. Clearly, in our estimation he is not innocent. Again, there can always be mistakes, but I mean that in our estimation he is certainly not innocent. When we kill him, he is guilty. It is just that we would not have killed him, without the scriptural decree, because of halakhic rules. The scriptural decree says: here those halakhic rules do not apply. And what about relatives who make them conspiring witnesses? They are relatives, and then because of a scriptural decree we do not accept their testimony, and we kill the one about whom the first witnesses testified, when in truth he probably did not… I said—that is why there we recuse ourselves; we do not kill him. Obviously. Anyone who kills him, in my view, is not a judge. Okay, we.