Rationales and Reasons for the Commandments – Lecture 3

Table of Contents

• Conspiring witnesses and a scriptural decree in its plain sense
• A scriptural decree that has a rationale, and the dispute between Maimonides and the Tur
• First mechanism: the reasoning exists, but is not sufficient without a verse
• The wayward and rebellious son, Maimonides and Meiri on a scriptural decree with a rationale
• Second mechanism: strong reasoning, but the rules of capital law require testimony
• A third type: contradictory details within the law itself, and the example of the red heifer
• You have in it only its novel aspect, and its implications for conspiring witnesses
• First context: from the time of the refutation or retroactively
• Second context: refutation and contradiction together in the laws of testimony according to Maimonides
• Third context: refutation not in their presence
• The rule that the verdict must be concluded in his presence, and the presence of witnesses

Summary

General overview

The text argues that it is impossible to understand the law of conspiring witnesses as a scriptural decree in the simple sense, because such an interpretation creates a situation of two against two with no evidentiary way to decide between them, and that would lead to executing innocent witnesses who came only to fulfill their halakhic duty, and without prior warning. That is untenable. The text argues that even when one says “a scriptural decree,” one does not mean something with no rationale at all; rather, there is a reason and a line of reasoning that justify preferring the second set of witnesses. The real question is what “a scriptural decree” means if there is a reason. The text presents two mechanisms for understanding a scriptural decree, brings an example from the wayward and rebellious son, analyzes the language of Maimonides and Meiri, and then presents the Ran’s view, according to which even very strong reasoning is still not enough in capital law against the normal rules of evidence. Finally, the text applies the Maimonides–Tur dispute to three contexts involving conspiring witnesses and shows a complex picture with respect to the rule “you have in it only its novel aspect” and the laws of refutation when it is not done in the witnesses’ presence.

Conspiring witnesses and a scriptural decree in its plain sense

The text argues that it cannot be that the Torah commands us to execute innocent witnesses in a case of two against two purely by force of a scriptural decree, because the second set has no inherent advantage over the first. If so, the law would come out as killing people who came to testify as a halakhic obligation. The text emphasizes that conspiring witnesses do not require prior warning, so this cannot be compared to other scriptural decrees such as the execution of Sabbath desecrators, where the warning makes the consequences clear to the offender in advance. The text argues that the verse “and you shall do to him as he intended… he testified falsely against his brother” assumes that the punishment stems from falsehood, and so it is unacceptable to say that the Torah defines falsehood on the basis of a perfectly balanced doubt and imposes the death penalty for such a “falsehood.”

A scriptural decree that has a rationale, and the dispute between Maimonides and the Tur

The text argues that all the explanations given by the medieval authorities (Rishonim) for why the second set is preferred are accepted even by those who call the law a scriptural decree, and from this it follows that a scriptural decree is not necessarily devoid of reason. The text presents the dispute between Maimonides and the Tur regarding the halakhic ruling in accordance with Abaye, that a conspiring witness is disqualified retroactively: Maimonides argues that even Abaye sees this as a scriptural decree, whereas the Tur argues that only Rava sees it that way and Abaye disagrees. The text wants to argue that even according to Maimonides there is still a reason for it, and so it clarifies what “a scriptural decree” means when there is supporting reasoning.

First mechanism: the reasoning exists, but is not sufficient without a verse

The text proposes that “a scriptural decree” means there is a line of reasoning that explains why the second set is preferred, but that reasoning by itself is not strong enough to establish a binding law without the Torah introducing it explicitly in a verse. The text gives an example from the reasoning that the second set has a migo, since they could have disqualified the first witnesses by claiming they were robbers, and explains that even if that reasoning sounds persuasive, it is not clear we would have decided a two-against-two case on that basis without the Torah’s section on refutation. The text distinguishes between a case where “the reasoning is obvious,” such as “why is your blood redder than his,” and a case where the reasoning is not unambiguous, in which case a verse is needed to teach that one may rely on it. The text cites from the Talmud: “It is a novelty; what makes you rely on these? Rely on those,” and concludes that the novelty lies in the very decision to rely on the second set, not only in the punishment of “as he intended.”

The wayward and rebellious son, Maimonides and Meiri on a scriptural decree with a rationale

The text brings the law of the wayward and rebellious son, which does not apply to a daughter, and notes that the Talmud—and even more so the Jerusalem Talmud—defines this as a scriptural decree: “a son and not a daughter.” The text quotes Maimonides in Laws of Rebels, chapter 7, who writes: “It is a scriptural decree that only a wayward and rebellious son is stoned… for it is not her way to be drawn after eating and drinking… a wayward and rebellious son, and not a daughter, nor a tumtum, nor an androgynous person,” and notes that Sefer HaChinukh also gives this rationale. The text quotes Meiri: “That is to say, a daughter is not judged at all under the law of the wayward and rebellious child… and although these are scriptural decrees, they all follow this line of reasoning. And although at first glance some of the details may seem to point in the opposite direction.” It infers that Meiri sees the rationale as a real foundation of the law, and even raises the question why it should be called a scriptural decree if there is an explanation. The text argues that every derashah rests on reasoning, that the derashah needs a “trigger” in the verse but the reasoning determines in which direction to expound it, and that without the derashah the reasoning would not have been strong enough to yield a halakhic conclusion. It cites Shimon HaAmsuni, who could not find what to include in the phrase “You shall fear the Lord your God.”

Second mechanism: strong reasoning, but the rules of capital law require testimony

The text quotes the Ran in his derashot, who writes: “Conspiring witnesses are a novelty, for what makes you rely on these? Rely on those,” and explains that the novelty is that the Torah normally relies only on the testimony of two witnesses, not on what merely appears from the circumstances, and it would even believe “two lowly people” so long as they are not formally disqualified. The text explains that according to the Ran, even if the reasoning favoring the refuting witnesses seems extremely strong, it is still only “evidence” and not “testimony,” and in capital cases one does not punish on the basis of estimation and circumstantial proof, only on testimony. The text quotes Maimonides in Laws of Sanhedrin, chapter 20: “A court does not punish on the basis of estimation, but only according to witnesses with clear sight… even if… the sword is dripping blood… since they did not see him at the moment he struck, the court does not execute… and ‘do not kill the innocent and righteous.’” It contrasts this with the allowance in monetary law to judge on the basis of estimation, as Maimonides writes at the beginning of chapter 24. The text concludes that in the case of conspiring witnesses, a scriptural decree is needed not because the reasoning is weak, but because it departs from the Torah’s usual rules in capital law, which require testimony rather than probability. So the verse limits the normal halakhic rule, and does not merely reinforce a weak argument.

A third type: contradictory details within the law itself, and the example of the red heifer

The text points to another type of scriptural decree in unusual cases where the law itself contains contradictory details, and it brings the derashah about the red heifer, which purifies the impure and makes the pure impure. The text suggests that a structure like this—an inherently strange law—requires a verse in order to be applied, and connects this to questions about novel details such as “as he intended, and not as he did,” for someone who wants to place the law in that framework. The text compares this to the question of scriptural supports and comments that saying a derashah is only a scriptural support requires proof of why it does not truly emerge from the verse; a difficulty alone is not enough. It attributes the tendency to declare things “mere scriptural support” to the loss of the methods of derashah.

You have in it only its novel aspect, and its implications for conspiring witnesses

The text presents the rule “you have in it only its novel aspect” as a narrowing of a novel law that is not derived from reasoning, or that contradicts general rules, and connects it to the principle of “a matter that left the general rule and was singled out for a novel rule.” The text asks to which kinds of scriptural decree such a narrowing should apply, and argues that if the reasoning is strong and correct once the Torah has determined that the first witnesses lied and the second are truthful, then it is hard to understand why the law’s application should be narrowed. The text says it will apply this rule to conspiring witnesses in three contexts and examine the Maimonides–Tur dispute in light of them.

First context: from the time of the refutation or retroactively

The text notes that the Talmud in Sanhedrin itself says that according to Rava, since conspiring witnesses are a novelty, “you have in it only from the time of its novelty,” and therefore the disqualification takes effect only from the moment of the refutation. The text raises a difficulty in Maimonides’ position, since he rules like Abaye that a conspiring witness is disqualified retroactively and yet still calls it a scriptural decree, and it asks why the narrowing to “from the time of its novelty” is not applied. The text explains that once we determine that the witnesses lied, we are forced to see the lie as dating back to the time of the testimony, and therefore Abaye does not accept Rava’s narrowing even if the matter is still defined as a novelty.

Second context: refutation and contradiction together in the laws of testimony according to Maimonides

The text cites Maimonides in Laws of Testimony, chapter 18, who distinguishes between contradiction in the testimony itself and refutation directed at the witnesses themselves, and rules that when the second witnesses say both “you were with us” and also “none of this happened… this one did not kill…,” it is contradiction and not refutation. The text emphasizes that according to Maimonides, where refutation and contradiction come together, the law treats it as contradiction; pure refutation is only when the second witnesses say they do not know whether the act happened, but only that the first witnesses were with them somewhere else. The text brings the Lechem Mishneh, who explains that Maimonides limits the novelty of refutation to the precise case in which the novelty was stated, and therefore when contradiction is mixed in, this is no longer refutation. The text notes that according to the Tur’s approach, which views the credibility of the refuting witnesses as grounded in reasoning, one could say that refutation and contradiction together should still count as refutation, because once it is proven that the first witnesses lied, their contradiction regarding the act itself is no longer significant.

Third context: refutation not in their presence

The text cites the Talmud in Ketubot that witnesses can be refuted only in their presence, and presents the view of most medieval authorities (Rishonim) that the second set is believed even if we do not carry out “as he intended,” because a person is judged only in his presence. The text quotes Maimonides in Laws of Testimony, chapter 18, law 5, who rules: “Witnesses are refuted only in their presence… and witnesses who were refuted not in their presence—this is contradiction,” and he adds that if the refuting witnesses died before the refutation was carried out in the first witnesses’ presence, there is no testimony here. The text argues that Maimonides explains this as a narrowing of the novelty of refutation to the procedural framework in which it was stated, whereas according to those who see the credibility of the refuting witnesses as based on reasoning, there would be room to distinguish between their credibility and the punishment of “as he intended.” The text notes that one can infer from the Tur as well that he treats refutation not in their presence as contradiction, and it offers an explanation: in a case where “as he intended” does not apply because there is no proceeding against the witnesses themselves, the focus returns to the trial of the murderer alone, and then the claim that the first witnesses are “testifying against themselves” loses its force as a reason for preferring the second set.

The rule that the verdict must be concluded in his presence, and the presence of witnesses

The text concludes by bringing the passage “until he stands before the congregation for judgment,” from which we learn that the verdict may be concluded only in the presence of the litigant. The text presents the dispute between Rav Chisda and Rava over whether witnesses must be present at the time of the verdict in order for the testimony to be testimony “that you are able to refute,” and concludes that the halakhah follows Rava, that the witnesses need not be present at the time of the verdict so long as in principle it is possible to refute them. The text presents this as part of the distinction between the mandatory presence of the litigant and the non-necessary presence of the witnesses, in accordance with the proper understanding of the possibility of refutation.

We’re now dealing with reasons—reasons for the commandments, or reasons and Jewish law—and in that context we spoke about the law of conspiring witnesses. Basically, the bottom line of what I wanted to say is that it’s not possible, not reasonable—and even that is too weak—it is impossible to understand the law of conspiring witnesses as a mere scriptural decree in the simple sense. Because a simple scriptural decree would mean that basically we have two against two here. There are two witnesses against two witnesses, and the second pair has no inherent advantage over the first, but the Torah decreed that we believe the second pair and kill the first pair—say, if this is testimony in a capital case, then kill the first pair. No. It is impossible that the Torah would say to kill innocent witnesses who are doing their duty—even if they are doing exactly what they are supposed to do, they come to testify because Jewish law obligates them to testify, and we kill them. And because conspiring witnesses do not require warning, I explained why this is not like other scriptural decrees where we kill, say, Sabbath desecrators. Because there, when a person desecrates the Sabbath, he knows he is liable for death. Meaning, the witnesses warn him that if he desecrates the Sabbath he is liable for death, and he has to say, yes, and with that understanding I am doing it. So true, maybe on the basis of logic alone I would not have said one should kill Sabbath desecrators, but once the Torah said it, the rules of the game are clear. Meaning, whoever does it knows that this is the result; otherwise we really would not kill him. But with conspiring witnesses it is not like that. Conspiring witnesses do not require warning. And now, if they actually saw the incident, they come to fulfill their duty and testify—and now we kill them as a scriptural decree? There is no such thing. Therefore—what? They did not see the incident. Why not? Because there are witnesses who say they were with them. That is the question. If you say this is a scriptural decree in the simple sense, then that means there is no concern that they did not see the incident—or at least there is a fifty-percent doubt, an even doubt. So how can you kill them on the possibility that they did see the incident and came and testified and fulfilled their duty? How can you kill them? And furthermore, I said there is also a textual problem, because when the Torah says to kill them—“and you shall do to him as he plotted,” “the false witness testified falsely against his brother,” “and you shall do to him as he plotted to do to his brother”—so we kill him because he lied. But now he did not lie? A scriptural decree means, again, there is doubt, right? The scriptural decree says that even though he did not lie, we will regard him as if he did lie, and not only regard him as if he lied but also kill him for having lied? There is no such thing. Meaning, that cannot be. Therefore the claim—my claim—was that all the explanations brought by the medieval authorities (Rishonim), and there are quite a few explanations we saw that the medieval authorities (Rishonim) bring for why the testimony of the second group is superior to that of the first, are accepted even by those who think this is a scriptural decree. And even so they still say it is a scriptural decree. Meaning, a scriptural decree is not a matter without a reason, contrary to what people may commonly think. A scriptural decree also has a reason. That is the point. Then we have to understand: in what sense is it a scriptural decree? How is that different from other laws? We’ll get to that in a moment. But in any case, for our purposes, when we speak about the dispute between Maimonides and the Tur—Maimonides and the Tur disagree regarding the Jewish law, where we rule like Abaye, that a conspiring witness is disqualified retroactively. Meaning, he is disqualified from the time he testified, not from the time he was shown to be a conspiring witness. On the face of it, that means Abaye sees this not as a scriptural decree but as a regular refutation. Maimonides claims no—even Abaye says it is a scriptural decree. The Tur says no—only Rava says it is a scriptural decree, but Abaye disagrees on that point. And what I want to claim now is that even according to Maimonides, this has a reason. Meaning, even Maimonides, who says this is a scriptural decree, basically holds that this thing has a reason. And now I’ll try to explain this idea a bit—what does it mean that something is a scriptural decree if it has a reason? So what is the meaning of that?

In the simple conception, there can be—let’s say—the simpler explanation would be that although all the arguments the medieval authorities (Rishonim) bring in favor of the testimony of the second pair are plausible arguments, meaning you can understand the logic, still this is not necessarily a strong enough argument for us to build the law on it. Say, if the Torah had not innovated the law of conspiring witnesses, then true, on my own I might understand that the second witnesses have a migo, because they could have disqualified the first by saying they were robbers, for example—that is one of the arguments. Right? The second witnesses come and expose the first, and is this two against two? No, of course not, because the second witnesses could have disqualified the first as robbers, and then the first could no longer object, because that would be testimony about them. Or various arguments of that sort. So it is an argument, I hear the argument. But would I, on that basis, say that this is not two against two? Would I myself, on my own, derive this without the Torah writing the passage about refutation? Not sure. Meaning, even if I have some logic in something, who says the logic is strong enough to draw halakhic conclusions from it? To tell me that this logic is strong enough to draw the halakhic conclusion from it? And we’ll see an example. After all, we do rely on logic for law—the famous statement from Rava, “Why do you think your blood is redder?” But that is where the logic is clear. Here there is logic, but—it’s where the logic is clear. When the logic is clear, then fine. When the logic is not clear, or not unequivocal, you need a verse to tell you that nevertheless you should rely on it. But once the verse says so, you understand that indeed the second pair is believed. It’s not that the verse says, even though the first pair is not disbelieved, kill them anyway. No. The logic says they are believed. I just would not, on that basis alone, kill the first pair without the verse—not because it is that strong. Or at least it would not have seemed that strong to me. The Torah says nevertheless: true, maybe this logic is not a million-dollar argument, but rely on it. But it is still clear that there is some logic here; it is clear that the Torah is telling me the first pair lied and the second pair spoke the truth. Maybe the novelty is “as he plotted” and not “as he actually did”? No—I already said that in the Talmud itself you see it is not like that, because the Talmud says: it is a novelty—what made you decide to rely on these rather than those? Meaning, the novelty is the very fact that we rely on the second pair and not the first. Not only the punishment of “as he plotted.” That is an additional novelty, but that is a novelty according to everyone. Meaning, here there may be a dispute between Abaye and Rava.

Now look, I’ll read you the wording of the Meiri. There is—meaning, I have meanwhile suggested one mechanism to explain what a scriptural decree is. A scriptural decree means I have logic, but the logic is not something I would rely on strongly enough to derive the halakhic conclusion, so the Torah has to write for me: fine, you may rely on this logic. But once the Torah wrote it, I understand that what underlies this law is the logic that I understand. Meaning, there is logic here. An example: in tractate Sanhedrin, in the chapter of the stubborn and rebellious son, the Talmud says there that the law of the stubborn and rebellious son does not apply to a daughter. There is no stubborn and rebellious daughter, only a stubborn and rebellious son. Now the medieval authorities (Rishonim) bring various things there. Before that, the Talmud in the Babylonian Talmud, and even more so in the Jerusalem Talmud, says that this is a scriptural decree. A scriptural decree: son and not daughter. Maimonides, in Laws of Rebels chapter 7, writes as follows: “It is a scriptural decree that only a stubborn and rebellious son is stoned, but the daughter is not judged by this law, because it is not her way to be drawn after eating and drinking, as it says: ‘a stubborn and rebellious son’—and not a daughter, and not a tumtum and not an androgynous person.” So what does he say there about the stubborn and rebellious son, why is he stoned “on account of his end,” as the Talmud says there? Because he is destined to be drawn after this and become a bandit and rob people, and so on. So Maimonides says: that reason does not apply to a daughter, and therefore the law is son and not daughter. And of course the question arises: but the Talmud said this is a scriptural decree. So what is Maimonides explaining here, when he explains the reason? Why is it son and not daughter? Because it is not the daughter’s way to be drawn after such things. So what is the meaning when the Talmud says it is a scriptural decree?

Now with Maimonides that is not so bad, and the Sefer HaChinukh also repeats this reason. It is not so bad, because you can say fine, he gave some reason here, but it is not really the reason for the law. Many times there is such a situation, where you are just fitting things together—like giving a flavor in the mouth, as some have said. It is a scriptural decree, but there is a hint. Exactly, like what Maimonides writes regarding the shofar. And he writes likewise explicitly at the end of the laws of tsaraat. What? That all the laws of impurity are a scriptural decree. Yes, I remember it in the laws of misuse of sacred property. Tsaraat too—I no longer remember. At the end of the laws of misuse of sacred property he has it. It could be also in the laws of tsaraat. In any case, the Meiri there on the passage writes as follows: “Meaning to say that the daughter is not judged at all under the law of the stubborn and rebellious child, for the Torah was particular only about one whose way is to be drawn after his desires and become immersed in them, and this is not so with a daughter but with a son.” Up to that point, just like Maimonides and like the Sefer HaChinukh, yes, like the other medieval authorities (Rishonim). But then he continues: “And these matters, although they are scriptural decrees, all follow this line of reasoning. Even though at first glance some details may appear to point the other way.”

Now here it is already much stronger than in Maimonides. Because Maimonides just writes something and that’s it. Fine, it’s a scriptural decree, so he gives us some kind of flavor. But the Meiri goes further and asks: if so, why did the Talmud say it is a scriptural decree if we have an explanation? Why is it a scriptural decree? Meaning, the Meiri apparently really takes this as the reason. In Maimonides you could say he is just giving you some homiletic explanation. But the Meiri asks: why did the Talmud say it is a scriptural decree when I have an explanation? If you ask that, it means you understand that this really is the explanation and not just some nice homily. So why indeed? He says that although it is a scriptural decree, they all follow this point. What do you see from here? That even though the Talmud calls it a scriptural decree, what stands behind it is really this logic. So why is it called a scriptural decree? I think it is what I said before. Let’s think. Suppose the Talmud had not expounded “son and not daughter.” Fine. I once said, and I think this will help us later too, that every interpretation is based on logic. There is no interpretation not based on logic. You just need some trigger in the verse in order to make that interpretation. For example: “You shall fear the Lord your God”—to include Torah scholars. So the word “et” comes to include, and that is one of Rabbi Akiva’s interpretive principles, that “et” comes to include. But include what? “You shall fear the Lord your God”—to include traffic police? Why not? Because it is not logical. Meaning, in the end, what do you include? You choose what seems reasonable to you to include, right? And you say: what can be included as similar to the Holy One, blessed be He? I really don’t know anything—“To whom will you liken Me and make Me equal?” It is hard to compare anyone to the Holy One, blessed be He. But if the Torah is already telling me to include something, then Torah scholars are maybe the closest thing I would say. Meaning that there is always some logic involved in interpretation, the logic that says: interpret it this way and not that way.

When we make a verbal analogy, then I compare “lah lah,” like slave and woman, for example. In what respect? Maybe let’s write woman with an ayin like slave? There is a verbal analogy. Of course not. We make comparisons in those respects that seem relevant to us. Logic is always involved in interpretation, always. There is no such thing as interpretation without logic. So why do we need the interpretation? Why not just call it logic? Logic should be enough—why need the interpretation? Because without the interpretation, the logic alone could not stand on its own. Meaning, from the logic alone I would not say it. The interpretation uses the logic, or the logic explains what the interpretation means. But if there were no interpretation, the logic alone would not lead me to derive the law. And conversely, if there were no logic but there were a verbal analogy or an “et” that comes to include, I would not know what to include. Shimon HaAmsuni—we spoke about this once—who interpreted every “et” in the Torah until he reached “You shall fear the Lord your God,” and said: just as I received reward for the interpretation, so I receive reward for withdrawing from it. He did not find what to include. So if he did not find what to include, then he has nothing to include. Without logic you cannot work with interpretive methods. You need to understand what to include and what not.

Okay. So if I return to the stubborn and rebellious son, it is exactly the same point. Suppose we did not have the interpretation. Then anyone could raise this logic that a daughter is not drawn after things in the same way a son is. Would it then be clear to us as Jewish law that we do not apply the law of the stubborn and rebellious son to a daughter? Of course not. Right, clearly not. I can raise arguments. Maybe I just see a boy who is so kind and so nice and all that—it is clear he is not going to be drawn after this—so maybe with him too I should not apply the law of the stubborn and rebellious son. Meaning, where does this end? Even if this logic is correct, it is not obvious that we would apply it and draw halakhic conclusions from it. So we need the verse or the interpretation to tell me “son and not daughter.” That is the scriptural decree. What does scriptural decree mean? Not that it has no reason, but that the verse is needed for us to apply the law. Once the verse has spoken, then I do understand the reason behind it, but without the verse I would not apply the reason. It is not absolute. There is some probability, so he comes and says okay, because of that probability you don’t do it. But if it were absolute then—exactly. Meaning, if without the verse I would—there is some logic here, but I don’t know if on that basis I would limit the law of the stubborn and rebellious son. So the verse comes and says yes. So there is a combination of the two.

Why? Because if I have logic that women are not drawn after this, then women who are in fact drawn after it should have the same law applied to them, because it is not really a gender issue. No, that is already another question—who says not? That is already a question. The question is whether you go case by case or by gender category. Most legal systems in general, including Jewish law, work with some kinds of rules, some presumptions. Perhaps—I am willing to accept—that if there were a girl whom you did fear, in your estimation, would be drawn after it—rather, if you had clear evidence that she is different—then maybe there would be room to discuss that case. Maybe. But the presumption is a gender-based presumption. The presumption says that with a girl this does not happen. If you bring proof that it does, then yes, and with a boy the reverse. At most. Even that I am not sure they would rule, but I am willing to accept it. What do you mean, the presumption is gender-based? I have a rule that whoever is drawn after it is in the category, and whoever is not, is not. No, that is what is called deriving law from the reason of the verse. No, we do not generally derive law from the reason of the verse, and we’ll get to that later too. But it does explain the definition of the law, that there is a gender difference, although the question how far one goes with the reason is a good question, and I’ll get later in this series to whether we derive law from the reason of the verse.

So basically what the Meiri tells us is that first of all, if there is an interpretation “son and not daughter,” it is obvious that behind it there is some logic. Because otherwise, why exclude daughter and not adult, or son and not—I don’t know—cat? And conversely, usually when the Torah writes “son” it means both son and daughter. Meaning, either “Scripture equated woman to man for all punishments in the Torah.” The simple assumption is that even if it says “man,” it means also woman; it is not meant to exclude. Citizen, perhaps, comes to exclude? There are some places where there may be room to discuss it, but in the simple sense there is no gender distinction in Torah language. Meaning, if it uses masculine language, do I learn that it means specifically male and not female? It uses masculine language because that is how people generally speak about humanity as a whole, so they use the masculine so long as we have not reached today’s academy. Right. In every place where the Talmud says, “Why do I need a verse? It is logical,” the meaning is that the logic is strong enough that you do not need a verse. Correct, yes. So the claim—the claim basically—that the Meiri is making is: if so, why did they decide this means son and not daughter? Why exclude? Obviously because behind this they had some logic as to why not daughter. So why do you need an interpretation? The logic says not daughter. No, you need the interpretation because without it the logic would not be strong enough for us to draw conclusions from it. That, says the Meiri, is the meaning of what the Talmud says: scriptural decree. This logic does exist, but it would not have been strong enough were it not for Scripture supporting it, were it not for Scripture telling us this. So that is one mechanism.

But now let me read you the language of the Ran. In the discourses of the Ran, he writes as follows: “This does not contradict what our rabbis of blessed memory said, that conspiring witnesses are a novelty, for what made you decide to rely on these rather than those? Meaning, that it is not the Torah’s way to rely on what seems likely from the act itself, whether it is true or not, but only on the testimony of two witnesses. For the Torah believed even two utterly insignificant people, so long as they are not disqualified from testifying, just like Moses and Samuel, whom we know would not alter anything even in casual conversation. If so, should we here rely more on the refuting witnesses than on the refuted ones because the words of the refuting witnesses seem more likely to be true? That is a novelty and a departure from the Torah’s way in other places. Nevertheless, the matter is as he wrote.” Here he is saying something else. He says the logic of conspiring witnesses is actually excellent logic, one hundred percent, and nevertheless it is still a scriptural decree. Why? Because if there were no verse, even one-hundred-percent logic would not be enough in capital law. Because the Torah’s rule in capital cases—actually Maimonides says this explicitly—Maimonides writes in the beginning of chapter 24 of Sanhedrin: “A judge may rule in monetary law based on the matters toward which his judgment inclines that they are true, and the matter is firmly fixed in his heart as being so, even though there is no clear proof there. Needless to say, if he himself knows with certainty that the matter is so, he rules according to what he knows.” And so on. This is a famous Maimonides. Maimonides basically says—his source is the Rif—that fundamentally in monetary law you do not need testimonies and you do not need evidence. Whatever the judge thinks, that is what he should do in monetary law. Rules of evidence are for a situation where the judge has no clear position about the law, so then go with evidence and witnesses and all those things. But if he does, then not. In the Rif it says that the enactment of the two academies in our times, when people are dispersed and so on, is that judges no longer do this and must adhere more closely to the rules of evidence unless the case is a fraudulent one. But if not, then they stick to the rules of evidence.

By contrast—if he rules against two witnesses if that is what he feels? On that some commentators on Maimonides disagree, but in my opinion the plain meaning of his words is exactly that. Yes. At the beginning of chapter 20 it says this: “A court does not punish on the basis of estimation but only on the basis of witnesses with clear evidence.” Even if witnesses saw one man pursuing another to kill him and warned him, and then looked away, or he entered a ruin after him and they entered after him and found him slain and writhing, and the sword dripping blood in the hand of the killer—since they did not see him at the moment he struck him, the court does not kill on the basis of this testimony. And about this and the like it says: ‘Do not kill the innocent and the righteous.’” Meaning, Maimonides says that in capital law, unlike monetary law which I just read before, there you need proof consisting of two witnesses only. And even if there were one-hundred-percent evidence, but circumstantial evidence, no. He saw the murder itself—the evidence is circumstantial—and by the way there is such a thing as one-hundred-percent circumstantial evidence, like the example he brings. Here is the example he brings, from the Talmud: you see Reuven chasing Shimon with a knife, okay, to kill him. They go into a ruin and disappear from your sight. Then Reuven comes out with a knife dripping blood. You go into the ruin and you see Shimon dead. Meaning, sitting there with a knife wound and dead. Okay? You still cannot kill Reuven. Because you did not actually see, with your own eyes, Reuven kill Shimon.

What if there is video evidence? I didn’t hear. That is something else—the question is whether video evidence counts like direct sight. About that various contemporary halakhic decisors have written. And in any case it is not two witnesses. No—the two witnesses who watch the video. The video itself is not fit testimony. The witnesses who watch the video—the question is whether that counts like seeing the actual situation itself. About that there are all kinds of debates regarding today’s technological evidence—genetics, video, and all sorts of things like that. Why is that any weaker? Maybe somebody committed suicide there, or something? Certainly, certainly it is stronger than when two witnesses see a murder, because there you can suspect they are lying. Even that is not one hundred percent. Meaning, if you want one hundred percent, of course you never really have that. Meaning, it is not one hundred percent. But it is at the level of certainty of two witnesses, no question. Meaning, there is no reasonable doubt about the killer’s guilt. And I looked around, saw no one else in the ruin, I surveyed the whole place and there was no opening I missed. Yes, that is like waters with visible boundaries. I saw all sides of the ruin and nobody entered. Okay. Still, according to Maimonides, we do not kill. In monetary cases we go by estimation; in capital cases we do not go by estimation.

So, returning to the Ran. The Ran says: that is the novelty of the scriptural decree regarding conspiring witnesses. The novelty is not that the logic saying the second pair is believed is not good enough and therefore you need the verse. The logic is excellent, for the sake of the discussion one hundred percent—not really, but for the sake of the discussion let’s say one hundred percent. Rather, even one-hundred-percent logic is not enough in capital law, because the rule in the Torah is that you need testimony. And here this is not testimony, it is logic. Because in terms of testimony, we have two against two. The advantage of the second two over the first two is some logical advantage. So if you ask what is the strength of the proof you have in this matter, the strength of the proof is that logic that gives an advantage to the second witnesses. It is not testimony, because there is testimony on the other side too. The difference between the two sides is a difference of migo, the example I gave before. Okay? So the second witnesses have a migo, because they could have disqualified the first as robbers. So there are two witnesses against two witnesses, and in favor of these two there is also migo. So when you ask yourself what is the evidentiary force supporting these witnesses, the answer is: migo. That is not the force of witnesses, because there are witnesses on the other side too. The difference between the two sides is the migo. Now migo is not enough to kill. To kill, you need witnesses; proof is not enough, even conclusive proof. It does not help—you need witnesses.

The Ran says: that is why we need a scriptural decree for conspiring witnesses. The scriptural decree for conspiring witnesses is not because the logic is weak, but because the logic contradicts the Torah’s regular legal rules. The Torah’s regular legal rules are that in capital law you need testimony and proof is not enough. Here, regarding conspiring witnesses, the Torah decreed that proof is enough, even when it is not witnesses. So notice, this is a different rationale. It says you need a scriptural decree not because the logic is weak and I would not have applied it without the verse because it is weak. I would not have applied it without the verse because even if the logic is excellent, I still could not apply it, because the Torah’s rules say that logic is of no use in evidentiary matters in criminal law, in capital law, yes—in evidentiary matters in capital law. Therefore you need the scriptural decree. This is already a different kind of scriptural decree. It is the type that says the logic can be very strong, but still I would not do it without the verse. Not because the logic is weak and I need the support of the verse. There are also third types, which are really exceptional cases, like the red heifer—“Three are too wondrous for me, and four I do not know.” The midrash applies this to the red heifer, which purifies the impure and renders the pure impure. Meaning, there are certain laws—some people want to say this also about “as he plotted” and not “as he did”—there are laws that contain contradictory details within the law itself. That too is a kind of scriptural decree. Meaning, there is some strange law here. It contains two details, one of which contradicts the other. There too, in order to apply it, you need a verse. You need a verse, even though it may be that each of the laws individually I would understand logically, but they contradict one another. I do not think this is essentially different from the previous case. In the end there are also supports, where there is logic and some support in a verse, but it is not Torah law. Because the logic is not strong enough. Like what I’m saying—and a verse used as mere support is just support. It is not that the verse says it. If the verse said it, then that would be exactly our case. This is just support.

By the way, I once wrote about this. Programmatic logic says that the law is true independently of whether it is written in a verse. Now I also find a hint to it in a verse. I once wrote on this issue that many times Tosafot says, okay, this interpretation is only support, because he has some difficulty or something. That is very problematic, because in order to show that something is only support, you have to show why it does not really emerge from the verse. It is not enough that you have difficulties. What do you mean, you have difficulties? Very nice. But it is written in the verse. Exactly what you are asking—does it follow from the verse? Well, it does follow from the verse. You have difficulties? Then derive some necessary distinctions. But in order to say that something is only support—say you made a verbal analogy or an inclusion from a verse—you have to explain to me why, according to the rules of interpretation, you cannot here make that verbal analogy or inclusion. Then you can tell me it is only support and resolve your difficulties. But having a difficulty is not enough, not enough of an explanation, to conclude that a given interpretation is only support. And somehow Tosafot never really gives such an explanation—or commentators in general. As though: I have a difficulty, so it must be only support. Why? Not because there is no explanation, but because we do not know. Since we have lost the methods of interpretation, we no longer know how interpretations work, and so we also do not know when an interpretation is not unequivocal. And we need to explain that the interpretation is not unequivocal in order to explain that this thing is only support. Therefore Tosafot says: since I have a difficulty, apparently the Sages understood that this was not a full interpretation but only support. But I myself do not really understand why, says Tosafot, because I do not know how interpretations do work, and therefore I also do not know how to point out why here the interpretation is not a full interpretation. Okay?

In any case, for our purposes, here we have a second type of scriptural decree: not that the logic is weak, but that the logic is strong while some other halakhic rule prevents the application of that logic. Therefore you need a scriptural decree that limits the halakhic rule. The novelty in this kind of scriptural decree is not a novelty regarding the logic. I knew the logic even without it, and it is completely strong. The novelty in this scriptural decree is that the halakhic restriction or halakhic rule is itself restricted, okay? As opposed to the first mechanism, where the scriptural decree says the logic is strong enough to rely on. Do you have to find in every place where there is an internal contradiction? No, I said not always an internal contradiction. Internal contradiction is a third type, another type, like the red heifer. Those are special cases that the Sages mention, where there is internal contradiction. I am talking not about a case of internal contradiction but either where it contradicts another Torah principle—not internal contradiction, but yes, it contradicts some halakhic rule—or where the logic itself is not strong enough. Okay?

Now when we have a scriptural decree, as we saw also in the Talmud in Sanhedrin, the rule is: “you only have in it what is novel.” There it says “at the time of its novelty.” You only have in it what is novel. What does that mean? When you have something novel, something against logic, you limit it as much as possible. If there is some specific novelty, then where it was said, it was said, but I will not apply it in additional places where I do not have to apply it. A novelty that goes against logic goes against the general rules of—exactly. Now the question is to which of the two kinds of scriptural decree this rule should apply. This is not a simple question. I can raise arguments in both directions. But you can see that there are places where this is applied and places where it is not, and the question is how far it goes. Because one could say that if the logic is very strong, then what? Once there is a scriptural decree that here the rule contradicting the logic does not apply, then what is the problem? After all, the logic is strong, so why limit it? Once the logic is true, it is true. Say, like with conspiring witnesses. In conspiring witnesses we have reached the conclusion that the first pair lied and the second pair spoke the truth, right? I do not care right now how we got there; the Torah taught it to us. But practically, what came out? The first pair lied and the second pair spoke the truth. So why only from the time of the novelty? Why not from the moment they testified? After all, practically they are liars. I do not care if on my own I would not have known that they are liars, but the Torah told me that they are liars. And once the Torah told me that they are liars, why make that only from the time of the refutation and not from the time of the testimony? Meaning, therefore where there is logic, even if I know it only with the help of the Torah, there is no reason to limit it. Where there is no logic and the Torah tells you nevertheless to rely on this logic, there one can say yes: where the Torah said it, it said it, and elsewhere not. Fine. So here there is room to maneuver between these two kinds of scriptural decree regarding the rule “you only have in it what is novel.”

By the way, the rule “you only have in it what is novel” is basically the interpretive principle: something that left the general category and was judged with a new feature. Something that left the general category and was judged with a new feature introduces a novelty that does not exist in the general category, and then we limit it. You cannot return it to the general category unless Scripture explicitly returns it to the general category. Because you say that it is exceptional, something special, and it does not testify that the whole category is like this. Fine? That is basically the application of that interpretive rule, but I will not get into that here.

What I want, in order to conclude this part of our discussion, is to apply the rule “you only have in it what is novel” and check how this rule is applied to conspiring witnesses, and there you get some very interesting phenomena. We saw that Maimonides and the Tur disagree—and there are headings, there are other medieval authorities (Rishonim), most of them with the Tur. But this is a dispute among the medieval authorities (Rishonim). Let’s just call it Maimonides and the Tur. According to Abaye, and we rule according to Abaye, that conspiring witnesses are disqualified retroactively—does that count as a scriptural decree? So Maimonides says yes. Or not? I am speaking within Abaye’s view, where the Tur says no. So I would have expected that according to Maimonides we would apply the rule “you only have in it what is novel.” Right? Because it is a novelty, a scriptural decree. And according to the Tur this is logic, so we would interpret it as we always do. Let us try to examine that.

You can examine it in three different contexts, and a very interesting picture emerges. The first context is the very context of the passage in Sanhedrin itself. Is a conspiring witness disqualified retroactively or only from now on? The Talmud itself deals with this. The Talmud itself says that according to Rava, since conspiring witnesses are a novelty, you only have in it what is novel in time. Meaning, he is disqualified only from the moment he was shown to be a conspiring witness, not from the moment he testified. This is basically an application of the rule that we limit novelties as much as possible, meaning we do not expand them beyond what is necessary. Okay? So according to Maimonides now we are in trouble. Why? Because Maimonides rules, as everyone rules like Abaye, that conspiring witnesses are disqualified retroactively. But Maimonides says this is a novelty—so in Abaye’s view? Well, if in Abaye’s view this is a novelty, then why does he not apply here the rule “you only have in it from the time of the novelty”? That is one parameter, one law, where we will have to examine the issue of “you only have in it from the time of the novelty”—when does the disqualification begin? Does it begin from when the witnesses testified or from when the witnesses were shown to be conspiring witnesses?

The second law is Maimonides in Laws of Testimony, chapter 18, law 3. Maimonides says something interesting there. Chapter 18, law 2. “One who testified falsely, and it became known through witnesses that he testified falsely, this is what is called a conspiring witness. It is a positive commandment to do to him as he sought to do by his testimony,” and so on. Law 2: “In what case is this said? With witnesses who were shown to be conspiring witnesses. But two groups of witnesses that contradict one another—there is no testimony here, and neither group is punished. This is contradiction, because we do not know which is the false group. And what is the difference between contradiction and refutation? Contradiction is within the testimony itself.” Meaning: this happened, and this group says yes and the other says no, or something implied by its words indicates that it did not happen. “This is contradiction. But refutation concerns the witnesses themselves,” until the body of the testimony is removed, as the Talmud says. “And refutation concerns the witnesses themselves, and the witnesses who refuted them testify, while the refuting witnesses do not know whether the event occurred or not.” Meaning, the witnesses who refute the first group do not know whether there was a murder or not. It may be that there was, but you were not there. You were with us somewhere else.

How so? Witnesses came and said: we saw this person kill that one, or borrow from that one, on such-and-such a day in such-and-such a place. After they testified and were examined, two other witnesses came and said: on that day and in that place you were with us and with these others all day, and nothing of the sort happened—not this one killed that one, and not this one borrowed from that one. This is contradiction. And similarly, if they said to them: how can you testify so, when this killer or the victim or the borrower or the lender was with us on that day in another province? This is contradictory testimony.” The point is the phrase “not this one killed that one and not this one borrowed from that one.” What does Maimonides mean? Maimonides says: if two witnesses come and testify that Reuven murdered Shimon, and now two other witnesses come and say: I do not know, maybe Reuven murdered Shimon, but you did not see it because you were with us somewhere else at that time—that is refutation. If we say: we do not know where you were, but Reuven did not murder Shimon; we were there too, and Reuven did not murder Shimon—that is contradiction. What happens if we say: both you and the murderer were with us somewhere else? Is that contradiction? Maimonides says yes, that is contradiction. Meaning, where there is both contradiction and refutation together, according to Maimonides that is called contradiction. Right? Let me read it again, look carefully. He says: witnesses came and said, we saw this one kill that one or borrow from that one on such-and-such a day in such-and-such a place, and after they testified and were examined, two others came and said: on that day and in that place you were with us and with these others all day, and nothing of the sort happened—not this one killed that one and not this one borrowed from that one—this is contradiction. And similarly, if they said to them: how can you testify so, this killer or victim or borrower or lender was with us in another place, in another province—this is contradictory testimony. That is like saying: yes, the murderer was with us too, therefore obviously he did not kill. And so too in every similar case. But if they said to them: we do not know whether this one killed that one in that place in Jerusalem as you say, or did not kill him, but we testify that you yourselves were with us on that day in Babylonia—these are conspiring witnesses and they are treated as conspiring witnesses. Where you testify about the witnesses that they were with you in another place, that is conspiring witnesses. But if there is both contradiction and refutation together, then no.

Why don’t they have a migo? What do you mean? They could have refrained from saying the contradictory part; they could have said only the refutation. The second witnesses have a migo even without that—they could have disqualified the first as robbers. Migo for witnesses does not help, for various reasons; the medieval authorities (Rishonim) disagree, but migo for witnesses does not help. They said it helps only in the sense that it is not definitive, not enough. Why? It does not help. Jewish law does not accept testimony by virtue of migo. Only specifically in refutation do we accept the testimony of the refuting group over the refuted group because of the scriptural decree. Why does contradiction interfere? Wow, that is a question. Because as part of contradictory testimony they say nothing—what difference does it make? But what are you saying? If in the end you have refutation and contradiction—if you say that where there is a clash in the form of refutation, the refuting witnesses are right and the refuted ones are wrong, right? Here you have one testimony. In that testimony there is a part that is contradicted, right? So you cannot rely on it. No—the opposite, the opposite. Leave aside the contradicted part. But after all, we are really believed—what do you mean actually? Not in general. In reality. The reality is that once there is a conflict in the form of refutation, we are right and they are not. Now true, alongside that there is also contradiction regarding the content of the testimony, but it is one testimony. So what? Still, you are believed. Part of the testimony is contradicted, so you cannot accept part of the testimony and not the rest. You cannot accept it. Why? Because part is contradicted. So what? But after all I proved that the first witnesses are liars. From the side of refutation I proved they are liars. Now once I proved they are liars, then in the contradiction too I will not accept them. But that is a novelty. Regarding refutation it is a novelty. Ah, exactly. And on that you apply the novelty. Right. So on this the Lechem Mishneh says that Maimonides here is following his own view. Since Maimonides holds that conspiring witnesses are a novelty, and you only have in it what is novel—where was this novelty said? In a case of pure refutation. But if there is also contradiction and refutation together, then not. Some sort of formal logic. Meaning, it is a novelty, so you limit the novelty as much as possible.

And indeed the Lechem Mishneh himself infers, in the Tur’s view, that the Tur does not hold like Maimonides on this point. Because they follow their own approaches. The Tur, who holds that this is logic, will say that when there is contradiction and refutation together, that is refutation; it is not contradiction as Maimonides says. Why? Because from the Tur’s point of view this is logic. If those first witnesses really lied and the second are truth-tellers, then what do I care if there is also contradiction here? Bottom line, I proved that the first lied, and once they lied, throw them in the trash. What difference does it make that there is also contradiction? That is the logic. Maimonides says no. Since this is a scriptural decree, you limit it—you say, you only have in it what is novel. According to the Tur one could say this pertains to the person himself and this pertains to the matter itself, and we separate them because this pertains to the person and this to the matter, and that already opens—no, we do not separate; rather, we take the testimony about the matter itself and combine it with the testimony about the person. Two laws. No—in the end we combine them, make it one law. Since on the level of refutation I proved that the first witnesses lied and the second spoke the truth, then also regarding the contradiction I will say the same thing: that the second spoke the truth and the first lied. So you cancel the contradiction regarding the body of the matter. No need. Once they are conspiring witnesses, fine—once the first lied, then the content of what they said is also not accepted. If there were other witnesses there as well as a result? No, no need for that. No change at all.

I wanted to explain the Tur: he says, look, there are two discussions here—one about the persons, the witnesses themselves, and a second about the testimony, about the matter itself. So once there was refutation, then the first lied and the second spoke the truth. Right? Therefore I do not care that together with that there is also contradiction. Okay? Two different matters. Yes—again, I do not agree with that formulation, but it does not matter, we mean the same thing. The claim of the Lechem Mishneh is that he is basically summarizing the whole passage in light of the route we have taken here. And I said that the Lechem Mishneh thinks that Maimonides and the Tur understand Abaye differently. The question is whether Abaye disagrees with Rava over whether this is a scriptural decree or not—that is how the Tur understands it. According to Abaye it is not a scriptural decree. According to Maimonides even Abaye agrees that it is a scriptural decree. And now the Lechem Mishneh says: this is the implication. When there is contradiction and refutation together, Maimonides, who says this is a scriptural decree, limits it. Here this novelty was not said, so I cannot say that the second pair is believed. According to the Tur, since this is logic—that witnesses are not believed concerning themselves—therefore that logic exists here too. All in all, there is refutation here, so what do I care that there is also contradiction? So that is the second plane.

The implication is in the punishment, from the standpoint of the conspiring witnesses. Yes, of course—the big implication is whether this is refutation or contradiction. And also whether it is acquittal due to doubt or acquittal due to certainty. If it is two against two, then we do not kill the murderer either, but it is two against two. Yes—the question is if there is a group of witnesses saying the victim was with us at that time, then that is contradiction. The victim. But the victim and the murderer—it does not matter, it is the same thing. If the victim and the murderer were with us, that is contradiction, because it means the act could not have occurred.

So one context, we said, is from when the disqualification of the conspiring witnesses begins. That is one implication of the question whether this is a novelty. Do we go from the time of the refutation or retroactively from the time they testified? The second implication is what happens when there is contradiction and refutation together. A third implication: there is a Talmudic passage in tractate Ketubot. The Talmud says that witnesses are not refuted except in their presence. You can only refute witnesses in their presence. Meaning, if the refuting group came and refuted the witnesses not in their presence, that is not refutation. The medieval authorities (Rishonim) disagree what “that is not refutation” means. Most of them say: the second group is still believed and the first is not. But we do not do to the first what they plotted. Why? Because you have to judge a person in his presence, right? And if you want to do to him as he plotted, that is a judgment about him, and the testimony has to be given in his presence. But in terms of credibility, even when the refutation is not done in the presence of the refuted witnesses, the second group is believed. Meaning, the idea of refutation exists there too. We limit “as he plotted,” that novelty. This of course sounds like it goes in the direction of logic. It says that once there is logic that the second pair is believed and the first is not, then that logic exists here too. True, we do not do “as he plotted,” because that really is a novelty, “as he plotted.” But the credibility of the second pair over the first is not a novelty; it is logic.

But Maimonides, in law 5 there, in chapter 18 law 5 of Laws of Testimony, says: “Witnesses are not refuted except in their presence, but witnesses may be contradicted not in their presence. And witnesses who were refuted not in their presence—this is contradiction.” It is contradiction. And he brings a practical consequence: therefore if the witnesses who refuted them died before they refuted them in their presence, then there is no testimony here. Because Maimonides implies that the witnesses who refuted them not in their presence could later come and refute them again in their presence. Then there really would be a law of refutation. But if they died in the meantime, then what you have is contradictory testimony, there is no testimony, and that is it. So many later authorities infer from Maimonides—there is some disagreement about this, but many later authorities understand Maimonides this way—that unlike other medieval authorities, the Rivash and others, Maimonides holds that when the refutation is not in the presence of the first witnesses, it has the full status of contradiction. Meaning, the second pair is not more credible than the first. And here too several later authorities explain that the Tur and Maimonides each follow their own view. Maimonides, who says this is a scriptural decree, says: when was this verse, this scriptural decree, innovated? When they refuted them in their presence. That is the procedure; that is how refutation must be done. There the novelty was said. If they refuted them not in their presence, this novelty that the second pair is believed was not said, and therefore they will not be believed. This is contradiction. The Tur, who says this is logic, says fine, there are rules of testimony in one’s presence, so perhaps we do not kill them. But in terms of credibility, the second pair is believed, because the first are testifying about themselves and the second about them—that is the Tur’s logic. So this exists also where I refute them not in their presence. Therefore this third case also expresses the difference between the conception that this is a scriptural decree and the conception that it is logic.

Now look what comes out. Maimonides, who says there is no pure logic here—when contradiction and refutation come together he says this is contradiction. Right? Which is fine; he is limiting the law of refutation. Why then does it apply retroactively, if it is a scriptural decree? After all, you only have in it what is novel. In the Tur’s view it works like this. The Tur says there is logic. Contradiction and refutation together are refutation, which is entirely consistent with the Tur’s view. The fact that it applies retroactively also fits the Tur’s view, right? Because it is logic. So if they lied, they lied from the time they testified. But regarding refutation not in their presence—sorry—and refutation not in their presence, the Tur can be read like Maimonides. The Tur can be read as saying that this is contradiction. Not like the Rivash, who says they are believed but we simply do not do “as he plotted.” No. The Tur, as inferred, holds like Maimonides that refutation not in their presence is actual contradiction. Then with Maimonides I need an explanation why this applies retroactively, even though it is a scriptural decree and we should have limited it. And with the Tur I need the opposite explanation. Since there is logic here, I should not have limited it. So what do I care about refutation not in their presence? Why is that contradiction? The logic of refutation still exists.

With Maimonides the explanation is relatively simple. Because with Maimonides we already spoke about this when I divided between the two kinds of decrees. I said that one can actually say this in either type. In a place where I reached the conclusion that there is logic—the verse innovated it for me, fine, but there is logic—or where the logic is clear but the verse innovated that the conflicting rule does not apply here, I have decided that the first pair lied and the second pair spoke the truth. And I said that there is no other way. Even Maimonides, who says this is a scriptural decree, clearly means that killing the first pair is because they lied. Now how do I know they lied? The Torah told me so. But bottom line, it cannot be otherwise—if I kill them, then clearly I hold that they lied. Now if they lied, when did they lie? They lied from the time they testified. So “you only have in it what is novel” applies when you want to apply the law of refutation in other circumstances that the Torah did not discuss. But here we are talking about the very same law of refutation itself; the question is only when it begins. What do you mean? If you decided that these witnesses lied, there is no logic at all in saying their disqualification starts only from the moment they were refuted. Their disqualification starts from when they testified. When did they lie? They lied when they testified. So that is when they become disqualified. And that itself is the dispute between Abaye and Rava. Rava too uses the language “you only have in it from the time of its novelty,” not just “you only have in it what is novel.” Because this is not exactly the general principle “you only have in it what is novel,” but rather “you only have in it from the time of its novelty.” And Abaye says: I do not accept that. I agree that it is a scriptural decree, but practically, if we kill them, then clearly the Torah is telling us that they lied. If they lied, when did they lie? They lied when they testified, not when they were refuted. So obviously they are disqualified from the time they testified. So in Maimonides this is simple.

What about the Tur? In the Tur there is something interesting. The Tur says this is logic. Right—the logic is that the second pair testifies about the persons of the first pair, while the first pair testifies about themselves. Therefore the second pair has an advantage over the first. The Tur’s major innovation is that this logic is the basis for the credibility of the second pair over the first. It is not just a requirement to judge the first in their presence. If the problem is that, then the second pair is also testifying about themselves—that they were not elsewhere. No—I already discussed that last time. That is not true. Because when they are not the subject of the case, that is not considered testimony about oneself. Otherwise every two witnesses who come and say “Reuven killed Shimon” are also testifying about themselves that they were in that place. Then how is any testimony accepted at all? Fine?

The Tur’s claim is this: why does refutation have to be in their presence, and refutation not in their presence is ineffective? People usually think this is because when you judge people, they must be present. You are judging them. And then indeed you get the view of most medieval authorities that says you cannot kill them, you cannot do to them as they plotted, if the testimony about them was not given in their presence. That is a general rule in testimony: you cannot judge a person not in his presence. According to the Tur it is not like that. According to the Tur you need refutation in their presence in order for the logic that gives credibility to the second pair to exist. Because if it is not in their presence, then they are not the subject of the discussion. But if they are not the subject of the discussion, then the whole credibility of the second pair also disappears. After all, the credibility of the second pair is based on the fact that the subject of the case is the first witnesses and I am testifying about them. Now if it is not in their presence, that means they are not the subject of the case. Then as for “as he plotted,” certainly they are exempt—everyone agrees. The Tur says fine, but if they are not the subject of the case, then what have we returned to? We returned to the discussion about the murderer. But from the standpoint of the discussion about the murderer, they can testify about themselves. When the discussion is not about them but about the murderer, there is no problem with a person testifying about himself. What is this? One second. Like I said, that is not an answer. What difference does it make whether they are here or not here? I’ll explain. Let’s try to understand the difference. It is a big difference. When two witnesses come—what I said before—and testify that Reuven killed Shimon. Not the same thing. Wait. When two witnesses come and testify that Reuven killed Shimon, okay? There is not yet any refutation or anything. They are also testifying that they were in that place, right? But that is incidental, because the subject is Reuven and Shimon. The subject is not them. No problem.

Now two witnesses come and refute them. Fine? But not in their presence. Now when they refute them not in their presence, there is no law of “as he plotted.” That is agreed by everyone. Okay? The Tur says there will also be no special credibility. That is the Tur’s innovation. But there is no “as he plotted.” Meaning, the discussion is not about them. Nothing can be done against them by force. So the discussion is not about them. Then within what framework is this discussion taking place? This discussion is only about the murderer, not about them. But if the discussion is about the murderer, then what advantage do the second witnesses have over the first? The second witnesses say they were not there, and the first say they were there—but they are not the subject. When you are not the subject and you testify about yourself that you were in that place, that is not testimony about yourself. As in any ordinary testimony. That is exactly the point. Therefore the Tur says: even though there is logic here, here I do limit it. And that limitation is not because of “you only have in it what is novel.” Here the limitation is intrinsic to the matter itself. If all the logic is because I am testifying about myself, but if everyone agrees that “as he plotted” will not be done here, then I am no longer testifying about myself. The whole discussion is whether the murderer murdered or not. So the discussion is about him.

Why according to the Tur do the refuted witnesses need to be here? So as I said—even without the Tur, if the refuting witnesses do not do this in the presence of the refuted witnesses, then we do not kill the refuted witnesses. You agree with that? That is what is written. Right. No, that is Jewish procedural law, yes? Meaning, you cannot convict a person not in his presence, right? Good. That is agreed. Once that is agreed, the Tur says, then that means that now when the refuting witnesses come, whose trial is taking place here? The trial of the refuted witnesses, or the murderer’s? Of the refuted witnesses? Of the murderer. Not of the refuted witnesses. Because for the refuted witnesses there is simply no practical consequence. With regard to the refuted witnesses we are not going to do to them as they plotted. That is simply not at stake. The only question—wait—the only question is whether they told the truth or not regarding the murder. The discussion is the murder. Now if the discussion is the murder, then my testifying that I was there is not called testimony about myself. That is the whole idea of the Tur. The whole idea of the Tur is that only when I become the subject of the discussion does my testifying that I was in that place become testimony about myself. But if the subject of the discussion is the murderer, then so what? In every testimony I testify that I was there; that is no problem. So the Tur says: if the refutation is not in their presence, and you already agree that as to them there will be no practical consequence, we do not kill them—that is agreed by the other medieval authorities too—then, says the Tur, if so, we are back to the question only of whether the murderer murdered or not. So we have a dispute over whether the murderer murdered or not. The discussion is about him. There is no discussion about the refuted witnesses.

So if that is the case, the refuted witnesses can testify that they were there—it is two against two. The witnesses who make the others into refuted witnesses do not know; they were not at the event, they know nothing about the murder. Therefore they cannot belong to the murder testimony. No, they can belong. Because they testify that the first witnesses did not see the murder. That is relevant to the murder. We will not kill the murderer because of that. It is not connected. On the contrary. That is the point. At the basis of refutation this is a rule from the laws of evidence in the murder case. Sorry, you have to decide whether they belong to the murder case or not. In any event they do not directly belong. So I’ll explain again. They do belong to the murder case—not because they saw the murder, but because they undermine one of the pieces of evidence against the murderer. If I undermine one of the pieces of evidence against the murderer, am I related to the murderer’s trial? That is all. I do not have to see that there was no murder in order to say that you were not there. That is ordinary refutation. Of course. We are talking about ordinary refutation. Right. What I understood is that you explained to me at length that these are two different things. Here the discussion is about the murderer and here it is about the witnesses. Right. It is now about the murderer. Once it is not in their presence, it is about the murderer. Once it is in their presence, it is about the witnesses. Because they are not present, the whole subject of the case flips? Obviously. If they were present, then the subject of the testimony would also be them—both the murderer and them. Both them. But when they are not here, then the subject of the case is only the murderer. Fine.

Let’s see the Talmud. The Talmud says: from where do we know that a verdict may be completed only in the person’s presence? Scripture says: “until he stands before the congregation for judgment.” Now the Talmud asks whether this law also applies to the witnesses. It says: “And the two men who have the dispute shall stand before the Lord.” Rav Chisda says: witnesses must be present at the time of the verdict. Why? So that they be subject to refutation. If they are not present in court when the verdict is issued, it is impossible to refute them and apply to them “as he plotted,” and this is considered testimony that cannot be refuted. But Rava disagrees. Rava says there is no need for the witnesses to be present at the time of the verdict. Why? Because testimony that can be refuted means that there is, in principle, a possibility of refuting them. If they exist in the world and can be brought, that is enough. They do not have to be physically standing there at that moment. Therefore, according to Rava, the verdict is completed even if the witnesses went out to the marketplace. The Jewish law is ruled like Rava, that the witnesses do not have to be present at the time of the verdict—unlike the litigant himself, who must be present. And this is what is clarified here: when the witnesses are not present, the discussion focuses on the murderer and not on the witnesses.