Q&A: Two Questions for Rabbi Michi
Two Questions for Rabbi Michi
Question
Hello Rabbi,
I have two questions that I’ve been wrestling with for quite some time. I would be very grateful if you would answer both of them, even though the connection between them is purely incidental…
A. Even according to the Torah, “By the testimony of two witnesses a matter shall be established,” and the general idea is well understood and accepted even in secular courts. However, there are various disqualifications of testimony in the Torah that are not understood at all — such as the disqualification of written testimony, where a person writes in front of our eyes (and any reasonable person would indeed believe what is written, yet in this law it is not admissible). I do not understand: what room is there to impose decrees when in reality the matter is clear?
[I saw that in Sha’arei Yosher, Gate 7, chapter 1, he wrote that witnesses do not actually clarify the matter, but rather also “give the religious court the authority to enforce the law,” and I did not understand his words.]
B. The medieval authorities (Rishonim) in Ketubot 15b wrote that a gentile does not have a presumption of ownership. What basis is there to distinguish in the laws of ownership between a Jew and a gentile? Ownership is seemingly just a factual concept.
[In Sha’arei Yosher, Gate 5, chapter 15, he wrote that the presumption that whatever is in a person’s possession is his applies only when that possession demonstrates ownership, and since gentiles are generally presumed to be robbers (Sukkah 30a), they do not have a presumption of ownership. But his words are very puzzling — after all, the discussion there in Ketubot is not about an object lying in dispute between two people, but whether the law is that he pays half-damages like a Jew or full damages like a gentile, and it has no connection at all to questions of evidence.]
Answer
A. Written testimony is not a decree but a Torah law. One can try to explain it as a general rule that such testimony is usually problematic, and therefore it was disqualified. Even if there is a case where there is no problem, the rule still applies uniformly.
As for the words of Rabbi Shimon, you certainly cannot understand them in terms of probabilities and reliability of testimony. But within Torah law, this can definitely be understood that way. For example, the disqualification of a wicked person — if it is not based on concern for lying, it appears from this law that we do not want to grant him the status of someone whose words are relied upon in issuing a halakhic ruling.
B. Halakhic ownership is determined by the Torah. Beyond that, there are civil laws, and they depend on social conventions. Neither of these is just a plain fact.
Once a gentile does not have a presumption of ownership, that also affects the laws of damages, since there too ownership is required.