Q&A: A Matter, and Not Half a Matter
A Matter, and Not Half a Matter
Question
Hello and blessings. I’ve seen that you wrote several times that there is a separation of powers in a religious court, and therefore a witness cannot become a judge, a litigant is not a witness, and so on. Could this perhaps be used to explain the rule of “a matter, and not half a matter”?
This is a rule about the court, and its meaning is that all the information is supposed to reach the court in a processed form, and it is not the role of the court to process the information that has reached it and combine partial pieces of information into a complete matter.
In the judicial process there is a separation of powers, and processing the information—that is, presenting the details—is not the role of the judges but only of the witnesses. What do you think?
Answer
That may be possible, especially in light of Rabbi Shimon’s words in Gate 7, that the witnesses constitute the ruling and do not merely clarify the facts. But that is certainly not universally accepted. For example, Netivot HaMishpat, section 46, subparagraph 10, and others wrote that if they saw a complete matter, there is no disqualification of “half a matter” in the testimony. That certainly does not fit this explanation. Likewise, in testimony concerning the three-year presumption of ownership, different testimonies do combine (Maimonides, Laws of Testimony 21:7, and in the Tur, section 141). And the Ran on the Rif explained that when each testimony is independently useful for something on its own (for collecting the produce eaten that year), it is considered a complete matter and is therefore accepted. That does not fit your suggestion, because with respect to establishing the presumption itself, the court is still combining the testimonies.
Beyond all that, when a religious court extracts money on the basis of a presumption—for example, that a person does not repay before the due date—they are engaging in a kind of processing and deciding for themselves what the relevant information is. So why shouldn’t they do the same with testimony?
In short, this explanation does not seem plausible.
Discussion on Answer
I forgot to clarify that I was trying to offer an explanation according to Rabbi Akiva.
My point was that a religious court also rules on the basis of a presumption, and according to your approach apparently they should not be doing that either. They are not supposed to be the ones drawing factual conclusions; those should have to be brought before them.
Is there perhaps room to distinguish between the laws of absolute evidence—testimony—where the court does not draw conclusions and leaves that to the witnesses, and a case where there is no absolute evidence—testimony—and the court rules on the basis of other tools, such as presumptions, certainty versus uncertainty, and so on, where the court takes on this role as well?
I don’t see a distinction according to your reasoning.
I really didn’t understand the objection at all. Following a presumption is not factual clarification. The court is not inferring from the presumption that he is the owner of the land, etc. This is legal conduct and a legal presumption, not clarification. The role of the witnesses is factual clarification, and the court does not draw factual conclusions about what reality is, but a presumption is not drawing factual conclusions; it is a legal conclusion.
And how do you know that? First, the court infers that he sat on the land for three years. That is a factual conclusion. Second, the conclusion that the field is his is also factual. Why assume that this is only a halakhic conclusion?
By the same token, you could say that the court should rely on testimony of half a matter by force of the presumption that if there are witnesses, it is probably true.
Hello and blessings. Most of your objections are based on the opinion of the Rabbis, who hold that testimony by three groups regarding a presumption is effective, and the comments of the Netivot also revolve around the opinion of the Rabbis (see Dibrot Moshe, Bava Kamma, section 48, who proves that according to Rabbi Akiva this is certainly a disqualification in the testimony). I didn’t understand your objection regarding the presumption that a person does not repay before the due date, and I would be glad if you could explain it. Thank you very much.