Daf Ditty Rosh Hashana 22: Witness Invalidation

“it is not necessary to accept everything as true, one must only accept it as
necessary.'

'A melancholy conclusion,' said K.

'It turns lying into a universal principle.”

― Franz Kafka, The Trial

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MISHNA: The following are unfit to give testimony, as they are considered thieves and robbers:
One who plays with dice [kubbiyya] or other games of chance for money; and those who lend
money with interest; and those who race pigeons and place wagers on the outcome; and
merchants who deal in produce of the Sabbatical Year, which may be eaten, but may not be an
object of commerce; and slaves. This is the principle: Any testimony for which a woman is
unfit, these too are unfit. Although in certain cases a woman’s testimony is accepted, e.g., to
testify to the death of someone’s husband, in the majority of cases her testimony is not valid.

GEMARA: This implies that any testimony for which a woman is fit, these too are fit. Rav
Ashi said: That is to say, one who is regarded as a robber by rabbinic law, i.e., one who illegally
came into possession of money but did not actually steal it from another, is like those mentioned
in the mishna. Although they are generally unfit to give testimony, they are fit to give testimony
to enable a woman to remarry.

MISHNA: With regard to one who saw the new moon but is unable to go to Jerusalem by foot
because he is sick or has difficulty walking, others may bring him on a donkey or even in a bed,
even on Shabbat if necessary. And if the witnesses are concerned that bandits may be lying in
wait for them along the road, they may take clubs or other weapons in their hands, even on
Shabbat.

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And if it was a long journey to Jerusalem, they may take sustenance with them, although it is
ordinarily prohibited to carry on Shabbat, since for a distance of a walk of a night and a day, the
witnesses may desecrate Shabbat and go out to give testimony to determine the start of the
month. This is as it is stated:

‫ ִמְק ָרֵאי‬,‫ד ֵאֶלּה מוֲֹﬠֵדי ְיהָוה‬ 4 These are the appointed seasons of the LORD, even holy
,‫ֹאָתם‬ ‫ִתְּק ְראוּ‬-‫ֲאֶשׁר‬ ,‫ֹקֶדשׁ‬ convocations, which ye shall proclaim in their appointed
.‫ְבּמוֲֹﬠָדם‬ season.
Lev 23:4

“These are the Festivals of the Lord, sacred gatherings, which you shall declare in their
seasons” This teaches that, in all cases, the Festivals must be fixed at their proper times, even if it
entails the transgression of Torah prohibitions.

MISHNA: If the members of the Great Sanhedrin in Jerusalem are not familiar with that one
who saw the new moon, i.e., that he is a valid witness, the members of his local court of twenty-
three send another with him to testify about him.

The mishna adds: Initially, the court would accept testimony to determine the start of the month
from any person, as all are presumed to be qualified witnesses, absent any disqualifying factors.

However, when the Boethusians, a sect whose members had their own opinions with regard to
the establishment of the Festivals, corrupted the process by sending false witnesses to testify
about the new moon, the Sages instituted that they would accept this testimony only from those
men familiar to the Sanhedrin as valid witnesses.

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Summary

Introduction

This mishnah is basically taken word for word from Sanhedrin 3:3. It is brought here again because
the previous mishnah mentioned the possibility that a person would be disqualified from
testifying.1

And these are they which are not qualified [to be witnesses or judges]: A dice player, a
usurer, pigeon racers, or traffickers in Seventh Year produce, and slaves.

There are five categories of people who are disqualified from acting as witnesses or judges: 1) The
first is a dice player, in other words a gambler. Such a person cannot testify since he is known to
be a liar, especially with regards to monetary matters. Another reason is that he doesn’t participate
constructively in building society. 2) A usurer. He is also probably considered to not be trustworthy
in monetary matters. 3) A pigeon racer. Racing pigeons was a form of gambling. 4) Those who
sell produce grown during the Seventh Year. According to Lev. 25:5-7 produce grown in the fields
during the Seventh Year may be eaten by its owners, but it may not be sold. One who therefore
sells Seventh Year produce is engaging in forbidden business practices which according to our
mishnah make him not trustworthy to testify or act as a judge. 5) A slave referring to a slave who
has not been freed.

This is the general rule: any testimony for which a woman is not qualified, they too are not
qualified.

The rules of acceptance of testimony from slaves are the same as those for a woman. Any case
where they did allow the testimony of a woman, such as testimony concerning the death of another
woman’s husband (see Mishnah Yevamot 15:4), they also allowed the testimony of a slave.

Witnesses can prove in court whether or not someone has witnessed the New Moon. Today’s daf
examines those witnesses and the validity of their testimony.2

Introduction

This mishnah lists several different ways in which a person might come to profane Shabbat on his
way to testify that he saw the new moon. The mishnah is adamant a person on his way to Jerusalem
may profane the Shabbat in any way that he needs to in order to ensure that he makes it to Jerusalem
in order to testify.

1https://www.sefaria.org/Rosh_Hashanah.22a.13?lang=bi&p2=Mishnah_Rosh_Hashanah.2.1&lang2=bi&w2=English%20Expla
nation%20of%20Mishnah&lang3=en
2 http://dafyomibeginner.blogspot.com/2014/05/
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If one who has seen the new moon and is not able to walk [to Jerusalem] on foot, he may be
brought on a donkey or even in a litter [on Shabbat].

Here we learn that a person may transgress two prohibitions in order to make it to Jerusalem to
testify: he may ride on a donkey and others may carry him on a litter, which is a violation of
carrying.

If they [the witnesses] are likely to be attacked, they may take sticks [to defend themselves].

They may also carry sticks in order to defend themselves against bandits or highway robbers.

If the distance is great [to Jerusalem], they may take provisions with them, since for as much
as a night and a day’s journey they were allowed to profane Shabbat and go out to testify
concerning the new moon, as it says:

‫ ִמְק ָרֵאי‬,‫ד ֵאֶלּה מוֲֹﬠֵדי ְיהָוה‬ 4 These are the appointed seasons of the LORD, even holy
,‫ֹאָתם‬ ‫ִתְּק ְראוּ‬-‫ֲאֶשׁר‬ ,‫ֹקֶדשׁ‬ convocations, which ye shall proclaim in their appointed
.‫ְבּמוֲֹﬠָדם‬ season.

Lev 23:4

“These are the appointed times of the Lord … which you shall proclaim at their appointed time”

They can also carry food with them on their way to Jerusalem. The witnesses were allowed to
travel for up to an entire night and one day in order to get to Jerusalem, meaning if they saw the
new moon in the evening when Shabbat began, and they were far enough away that they would
have to walk the entire night and all day and then just get there when Shabbat was over, they were
still allowed to go. Of course, if they lived farther away than they couldn’t come because they
wouldn’t make it in time anyway. The rabbis’ adamancy that one must go to Jerusalem to testify
and that one can break Shabbat in order to do so is justified by a midrash. The Torah says that the
appointed times, the festivals, must be proclaimed at their appointed time. This is understood by
the rabbis to mean that it is essential that the court declare the new moon on time so that the
festivals would fall at the correct time. If doing so requires one to profane Shabbat, so be it.

Introduction

As I have written on several occasions, the setting of the calendar was a point of great conflict
between ancient Jewish sects, namely the Pharisees, Essenes, Sadducees and Dead Sea sect (which
may overlap with the Essenes or Sadducees, or perhaps even both). This mishnah alludes to this
strife when it relates that the minim, a generic rabbinic term for sectarians, tried to disrupt the
process by sending false witnesses. It sounds like they wanted to trick the Pharisees into declare
the new month on the wrong date. Even though the sectarians in this mishnah probably used a

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solar calendar, they still wanted to disrupt the Pharisaic/rabbinic calendar. It’s as if they wanted to
say even according to your own system, you’re celebrating on the wrong day.

If they don’t know him [the one who came to testify], they send another with him to testify
concerning [his reliability].

This section expresses the current halakhah (the halakhah that was valid at the time of the
mishnah). When someone was sent to testify concerning the new moon, if this person was not
known to the central court that accepted the testimony, then they would send with him a person
who was known to the court to vouch for the witness’s reliability. Basically, he would tell the court
that the witness was a “kosher yid” and not a sectarian.

Originally testimony concerning the new moon was accepted from anyone. When the minim
disrupted this, it was decreed that testimony should be received only from persons known
[to the court].

This explains the background to the need for a second person to testify as to the reliability of the
witness. Before the sectarians “ruined” it, everyone was trusted to testify. We should note that this
mishnah is probably more “historiographical” than “historical.” That is to say, the mishnah teaches
us how to view history, more than it teaches us what actually happened. The mishnah presents a
pre-minim history in which everyone could trust one another; it was a moment of unity between
all Jews. The minim came and disrupted this unity and now we have to suspect one another.
Obviously a person hearing this mishnah will know how undesirable the minim really are.

One of the major points discussed is whether a family member can testify alongside another family
member. In other circumstances, family members' shared testimony does not count.3 A freed
slave, however, is permitted to share his testimony with his former owner. The juxtapositioning
of these two scenarios is very interesting: is the Gemara suggesting that a freed slave might be
somewhat like a family member? Certainly we know that living together can feel like 'family',
even if the relationships are fraught with power imbalances and indenture.

Another interesting point concerns women. The Gemara actually includes a discussion regarding
whether or not women can act as witnesses to the New Moon in court. It is determined that women
can do whatever they are able to do in other circumstances as witnesses. This opens up questioning
of the first discussion points.

The Gemara takes note of who else cannot be counted as a witness. Those who gamble in a number
of different ways are specifically selected. Why would the rabbis decide that someone who plays

3 http://dafyomibeginner.blogspot.com/2014/05/
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dice should not be a witness when they permit a murderer or someone who desecrates Shabbat to
be fit as a witness? One thought that goes through my mind is the need for money; perhaps when
one loses a bet and owes money that he does not have, it would make sense to journey to Jerusalem
as a witness and avoid collection agents. Another thought is more about morality than practicality.
Perhaps there was some sort of understanding of gamblers as degenerate people. Or maybe there
is another altogether different reason for the rabbis' reasoning.

Rav Avrohom Adler writes:4

RELATIVES TESTIFYING

The Mishna rules that a father and a son that saw the new moon may go to Beis Din; however they
cannot combine to testify together as one set of witnesses. They should both travel to Beis Din
because just in case one of them becomes disqualified from testifying, the other can join a different
witness to form a pair and testify. Rabbi Shimon disagrees and maintains that relatives are eligible
to testify in regard to the new moon. Rabbi Yosi relates an incident where Tovya the doctor saw
the moon together with his son and a freed slave. The kohanim accepted Tovya and his son as
witnesses but disqualified the slave. When they arrived in Beis Din, Tovya and the slave were
accepted as witnesses but not the son. Rabbi Shimon offers Scriptural proof for his opinion that
relatives are permitted to testify regarding the new moon. It is written (Judaica Press) “The Lord
spoke to Moshe and to Aaron in the land of Egypt, saying; This month shall be to you the head of
the months,” – the testimony regarding the new moon is valid through Moshe and Aaron together
even though they were brothers. The Gemora concludes that the halacha is in accordance with
Rabbi Shimon.

INELIGIBLE TO TESTIFY
The Mishna enumerates different types of people that are Rabbinically disqualified from testifying.
One who plays with dice, lends with interest, gambles on dove races, engages in business with
Shemitah produce or slaves are all ineligible to testify. The Mishna offers a rule regarding this that
any testimony where a woman is ineligible to testify, these people are disqualified as well. The
Gemora infers from the Mishna regarding testimony that a woman is eligible to testify, these
people are eligible as well. It would emerge that all those listed in the Mishna will be eligible to
testify in regard to allowing a woman to remarry. There was a leniency that a woman is permitted
to testify that her husband died enabling her to remarry.

ASSISTANCE WITH TRAVELLING

The Mishna states regarding one who saw the moon but is unable to travel to Beis Din; they may
bring him by a donkey or carry him on a bed. This was permitted even on the Shabbos. If they
were wary about an ambush, they were allowed to carry sticks with them to be utilized as weapons.
If the distance to Yerushalayim was extremely far, they would be permitted to take food with them.

4 http://dafnotes.com/wp-content/uploads/2015/10/Rosh_Hashanah_22.pdf
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They were permitted to begin traveling on Shabbos providing that they will reach Beis din before
the end of the Shabbos.

RECOGNIZING THE WITNESS

The Mishna states that if the Beis Din will not recognize the witnesses, the local Beis din will send
along another fellow (one who is recognized) to testify regarding the witness that he is indeed
trustworthy. Originally, Beis Din accepted testimony from any Jew but when the Baysussim (those
that adhered to the Written Torah only and despised the Chachamim) began obstructing the
procedure of sanctifying Rosh Chodesh (by testifying falsely), the Chachamim established that
Beis din will accept testimony only from witnesses that they recognized. The Gemora states that
two witnesses are required to vouch that the testifying witness is trustworthy. It is learned in the
Gemora that one witness is permitted to travel to the Beis Din on Shabbos to confirm that the
testifying witness is honorable even though there might not be a second corroborating witness to
join him.

THE BAYSUSSIM’S PLOY

The Gemora relates how the Baysussim attempted to trick the Beis Din into sanctifying the
incorrect day as Rosh Chodesh. They hired two false witnesses to testify that they saw the moon
on the night of the thirtieth,. They didn’t know that one of the witnesses was not loyal to their
beliefs. They arrived in Beis Din and the Baysusse gave his testimony and left. The second one
testified that he was walking up Maaleh Adumim and he saw the moon crouched between two
rocks, it’s head had the appearance of a calf, it’s ears resembled a young goat, it’s horns were like
a deer’s horns and its tail was between its legs. He continued that when he stared at the moon, he
became shocked and fell backwards. He then showed them the two hundred zuz that he received
in order to testify falsely. He informed Beis Din that when he heard that the Baysussim were
looking to hire false witnesses, he volunteered in order to foil their plot. Beis Din told him that the
two hundred zuz should be his as a present and the one that hired you should be taken out to receive
lashes. It was at this time that the Chachamim instituted to only accept witnesses that were
recognizable to Beis Din

RETROACTIVE ADULTS

The Mishna lists different types of people that are ineligible to testify regarding the sighting of the
new moon. The Minchas Chinuch (4) inquires as to what the halacha would be regarding the ability
of a minor to testify that he saw the new moon. Beis Din does not accept the testimony of a minor,
however, what would be the halacha if the minor would become an adult through his testimony. If
a boy was born on Rosh Chodesh Nissan and thirteen years later wishes to testify that he witnessed
the new moon. At the time of his testimony, he is a minor but if they accept his testimony and
sanctify the day as Rosh Chodesh, it will emerge that retroactively, he is already an adult from the
night before and therefore his testimony can be accepted.

The Minchas Chinuch states that it would be dependent on two answers of Tosfos in Makkos (2).
There is a principle that in order for a testimony to be valid it must be a testimony that has the
ability to be disqualified by making them "eidim zom'min" (conspiring witnesses). "Eidim
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zom'min" means that two witnesses testify regarding a certain incident and another set of witnesses
disqualify that testimony by saying that the first set of witnesses were with them in a different
place at the time that the first set of witnesses claim that the act took place. The first witnesses are
termed "eidim zom'min.” The Torah commands that the second set of witnesses are believed, rather
than the first. In general, they would be punished with the punishment they tried to inflict.

Tosfos discusses if this principle applies also to the witnesses who are testifying that they saw the
new moon. If minors would testify, we would not be capable of making them "eidim zom'min"
since witnesses can only become "eidim zom'min" prior to Beis Din acting on the testimony and
in this case, that would be before Beis Din sanctifies the day to be Rosh Chodesh. At that juncture,
they are still minors and they could not become "eidim zom'min." However, Tosfos cites an
opinion that witnesses testifying on the new moon do not have this requirement and therefore the
minor's testimony can be accepted since retroactively they would be regarded as adults at the time
in which they testified.

HaRav Elyashiv shlita does not understand the Minchas Chinuch at all. He comments that if all
that would be required is for Beis Din to clarify that this day is Rosh Chodesh, perhaps the
clarification can be accomplished through the testimony of minors who retroactively will be adults
if it is Rosh Chodesh. However, that is not the case. Beis Din must listen to testimony, analyze
their words and issue a decision sanctifying the new month. If these witnesses are minors at the
time, Beis Din doesn't even have the ability to listen to them since

RETROACTIVE "KIDUSH HA'CHODESH"

Rav Mordechai Kornfeld writes:5

The Mishnah states that witnesses may desecrate Shabbos in order to travel to Beis Din to testify
that they saw the new moon. However, they may desecrate Shabbos only if they will reach Beis
Din on the day which needs to be declared as the new month (that is, the day that, without their
testimony, would be the thirtieth day of the previous month). If they will arrive only on the
following day, their testimony is of no benefit since the month will have already been declared to
be Me'ubar.

(a) The RAMBAM (Hilchos Kidush ha'Chodesh 3:15-17) writes that even when witnesses arrive
after Beis Din declares the month Me'ubar (and Rosh Chodesh is the day after the witnesses saw
the moon), if they arrive at the end of the first day of the new month their testimony (that they saw
the new moon a day earlier) is accepted; Beis Din is Mekadesh the month retroactively and
establishes Rosh Chodesh on the thirtieth day of the preceding month instead of the thirty-first
day, as it was previously established.

5 https://www.dafyomi.co.il/rhashanah/insites/rh-dt-022.htm
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According to the Rambam's ruling, why does the Mishnah say that witnesses who will not reach
Beis Din within a day of seeing the new moon may not desecrate Shabbos? The Rambam maintains
that Beis Din may declare the new month retroactively, and thus the witnesses should be permitted
to travel to Beis Din on Shabbos since their testimony will be useful.

(b) Another difficulty with the Rambam's opinion is the Mishnah later (25b) which states that if
Beis Din or all of the people saw the new moon in its time but there was not enough time to be
Mekadesh the new month before nightfall, the month is Me'ubar. According to the Rambam, why
should it be Me'ubar? The Beis Din should simply be Mekadesh the previous day as the new month
retroactively.

(c) Moreover, the Rambam seems to contradict his own ruling. He writes (Hilchos Kidush
ha'Chodesh 3:1) that if witnesses saw the new moon but realized that they will not reach Beis Din
in time (before nightfall of the thirtieth day), they should not bother going at all (even if they will
not need to desecrate Shabbos) because their testimony will be of no benefit since Beis Din will
have already made the month Me'ubar. According to the Rambam's other ruling, however, the
witnesses should be required to go to Beis Din because Beis Din can be Mekadesh the new month
retroactively. (RITVA here and 25b)

(a) The LECHEM MISHNEH (3:1) answers all three questions by asserting that even the
Rambam agrees that, mid'Oraisa, Kidush ha'Chodesh cannot be done retroactively but only on the
actual day declared as the new month. Furthermore, mid'Oraisa there is no need to be Mekadesh
the month retroactively even if Beis Din made a mistake because the authority of Beis Din in
establishing the new month is absolute; Beis Din's decision is binding even if Beis Din errs
accidentally, advertently, or because of lack of knowledge (25a). What, then, does the Rambam
mean when he says that if witnesses come later, Beis Din is Mekadesh the month retroactively?
The Rambam maintains that in a case in which witnesses come later and say that they saw the new
moon (so that the preceding month should have been made Mechusar and not Me'ubar), the
Rabanan enacted that Beis Din should accept their testimony in order to prevent people from
mocking the rulings of Beis Din, saying that their calculations of the calendar are inaccurate. Since
there is no reason to correct Beis Din's Kidush ha'Chodesh other than to prevent mockery of Beis
Din, the witnesses who come later may not desecrate Shabbos in order to come. In addition, if
witnesses see the new moon but realize that they will not be able to reach Beis Din in time, there
is no reason for them to travel since Beis Din's declaration (even if incorrect) is perfectly valid.
(The Rabanan have the power to rearrange the calendar even retroactively due to the above-
mentioned rule (25a) that whatever day they declare to be the new month is Halachically the new
month.)

The MINCHAS CHINUCH (4) questions the Lechem Mishneh's answer. The Rambam (Hilchos
Kidush ha'Chodesh 3:18) writes that if witnesses come to Beis Din between Yom Kippur and
before Sukos and say that they saw the new moon in its proper time (and thus the preceding month,
Elul, should have been Mechusar), Beis Din accepts their testimony and establishes the new month
to have occurred one day earlier. Consequently, the first day of Sukos occurs one day earlier. How
can Beis Din change the day of the new month retroactively (by nearly two weeks) and cause all
of the Korbanos that were offered for Rosh Hashanah and Yom Kippur to have been offered on
the wrong days? The Mishnah (30b) says that Beis Din enacted a decree not to accept witnesses
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who arrive after Minchah time, which clearly shows that Beis Din does everything it can in order
to prevent Korbanos from being offered on the wrong day.

(b) The MINCHAS CHINUCH explains that, mid'Oraisa, certainly the testimony of witnesses is
accepted retroactively. However, the rule that the day of the new month is sanctified even when
Beis Din sanctified it in error applies even when Beis Din already pronounced one day as the new
month and later pronounces a different day. The new day which they declare becomes the
beginning of the month with regard to all matters from now on, while until now the new month is
considered to have been the original date. For the rest of the month, the day of the month is counted
from the new declaration. Their declaration is said to be effective "mi'Kan ul'Haba l'Mafrei'a."
Regarding the Mishnah which implies that there is no retroactive Kidush ha'Chodesh, the Minchas
Chinuch explains that the only reason the day of the new month is declared based on the testimony
of witnesses is because of a Mitzvah to be Mekadesh the new month based on the testimony of
witnesses (20a). The Rambam understands that this Mitzvah applies only on the day of the new
moon. After that day, there is no Mitzvah to be Mekadesh the new month based on witnesses.
Consequently, even though Beis Din may re-establish the day of the new month retroactively, by
doing so they uproot the fulfillment of the Mitzvah of Kidush ha'Chodesh based on witnesses.

THE HIRED WITNESS

The Gemara quotes the Tosefta which relates that the Baisusim paid two people 200 Zuz each to
give false testimony in Beis Din that they saw the new moon. One of the hired witnesses decided
to reveal the plot during his testimony. As part of his testimony before Beis Din, he gave a very
strange description of the moon that he saw. He told Beis Din that when he ascended Ma'aleh
Adumim he saw the new moon crouching between two rocks. Its head was like that of a calf and
its ears were like those of a goat. Its horns were like those of a gazelle and its tail was between its
legs. He said he fainted when he saw it, and that if Beis Din does not believe him he has a bundle
of 200 Zuz in his pocket to prove it.

What is the meaning of these metaphors?

The AKEIDAH (#67) explains that "Ma'aleh Adumim" refers to the sovereignty of the nation of
Edom, the controlling power in Eretz Yisrael at the time this incident occurred. He meant to say
that the reason the Baisusim are able to plot against the Jews is because the Chachamim's authority
is so weakened due to the troubles that the Jews face as a result of the tyrannical rulers.

The moon is a symbol of the Jewish people. When the witness said that he saw the moon between
two mountains, he meant that the Jews in Eretz Yisrael were under Roman rule and the Jews
outside of Eretz Yisrael were under the rule of the Yishmaelim (or Parsiyim).

"Its head was like that of a calf" refers to the sin of the Golden Calf, the repercussions of which
still weaken the power of the leaders of the Jewish people.

"It’s horns were like those of a gazelle" refers to the pride ("Keren") of the Jewish people. The
gazelle sheds its horns every year, an allusion to the pride of the Jewish people which has fallen.
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"Its tail was between its legs" indicates that the Jewish people walk among the nations like a
frightened, vulnerable animal.

The witness said, "If you do not believe me" -- that the Baisusim are trying to fool you -- "I have
a bundle of 200 Zuz in my pocket." If you do not believe that I was hired to fabricate testimony
but instead you accept my testimony about the new moon, I will have fulfilled the task for which
I was hired and I will have earned 200 Zuz from the Baisusim.

The MAHARSHA says that the witness was bemoaning the fact that Beis Din no longer is able to
be Mekadesh the new month properly because of all the people who try to impede it. The Gemara
in Sanhedrin (14a) says that the Romans passed a decree which prohibited Semichah, ordination,
and they declared that anyone who receives Semichah will be put to death and the nearest city will
be destroyed. The Gemara relates that Rebbi Yehudah ben Bava "went between two great
mountains and two great cities," so that if the Romans caught him giving Semichah to his students
they would not know which city to destroy and thus they would destroy neither. He gave Semichah
to five Talmidim.

It is to this incident that the witness here alludes. He saw the moon between two mountains, a
reference to the fate of Kidush ha'Chodesh which depended on the heroic act which Rebbi Yehudah
ben Bava did between two mountains (he granted Semichah). Without Semichah, the members of
Beis Din cannot perform Kidush ha'Chodesh.

"Its head was like that of a calf" refers to the leader of the Jewish people, Rebbi Shimon bar Yochai.
The Gemara in Pesachim (112a) says that Rebbi Akiva was unwilling to give Semichah to Rebbi
Shimon bar Yochai because of the Roman decree. In his attempt to persuade Rebbi Akiva to give
him Semichah, Rebbi Shimon compared himself to a young calf that is unable to nurse from its
mother. The witness said that "the head [of the Jewish people] is like a calf" who wanted to eat but
was unable to and did not receive Semichah from Rebbi Akiva.

"Its ears were like that of a kid" means that those who wish to hear words of Torah and to receive
Semichah are unable to do so, and thus they are forced to remain like a young goat, unable to
mature by learning Torah from their teachers or to receive Semichah from them. The witness
expressed the forlorn state of Kidush ha'Chodesh and his unwillingness to falsely testify.

(c) The MAHARSHAM cites in the name of the VILNA GA'ON (Aliyos Eliyahu 13b) that "its
ears were like those of a kid" means as follows. A goat's ears are doubled over and closed (see
Mishnah, Bechoros 40b). The crouching moon refers to the Baisusim who wanted the moon to
appear in the sky in a place where it did not exist. Accordingly, the ears of this imaginary moon
"were like those of a kid," which means that the Baisusim have ears like a goat which are doubled
over and closed in their refusal to listen to the Chachamim.

Based on this approach, it may be suggested that the witness' statement that the moon was
crouching between two rocks is an allusion to the Gemara in Berachos (61a) which says that the
Yetzer ha'Ra is like a fly that sits "between the two valves of the heart," and to the Gemara there
(32a) which likens a heart influenced by the Yetzer ha'Ra to a "heart of stone." The Baisusim are

13
dominated by their Yetzer ha'Ra which crouches between the two sides of the heart, and thus their
heart is like stone.

The way they scorn the leadership of the Chachamim resembles the way the people built the
Golden Calf when they insisted on building it against the word of the true leaders.
"Its ears were like those of a gazelle" means that one who trusts them is considered as though he
places his money on the horn of a gazelle, as the Gemara in Kesuvos (107b) mentions. The animal
will certainly run away and take all of the money with it.

"Its tail was between its legs" symbolizes the fear of the Baisusim of being caught by the
Chachamim.

Steinzaltz (OBM) writes:6

Unlike modern courtrooms, where witnesses are asked to swear prior to their testimony in order
to ensure that they will tell the truth, a Jewish courtroom believes that every witness who is called
to testify will tell the truth.

Nevertheless, there are several types of people, enumerated in

the Mishnayot of Masechet Sanhedrin, who cannot testify. Close relatives, for example, cannot
testify, no matter how upstanding and honest we know them to be. There are also people whose
behavior does not allow the court to accept them. Among them are people who have committed
sins that put them in the Biblical category of a rasha – an evil person – who cannot be trusted.

While the people discussed in this Mishnah have not done anything that the Torah forbids,
nevertheless, their participation in activities that show them to be susceptible to the influence of
monetary gain makes us fear that they could be bribed or similarly influenced to change their
testimony.

The Mishnah on our daf teaches that a father and son who witness the new moon should both
come to court, for even though they cannot testify together, if one of them is disqualified from
testifying, the other one will be able to join with someone else who saw the moon and be accepted
with him as witnesses.

Our daf also quotes in full a Mishnah that appears in Masechet Sanhedrin (24b) that lists people
who will not be accepted as witnesses in a Jewish court, because they are involved in monetary
shenanigans that are forbidden by the Sages. These people include dice players, money lenders
who take interest, people who gamble on pigeon races, and those who market produce from
the Sabbatical year. Nevertheless, Rabbi Yehudah teaches: ba-meh devarim amurim – “under
what circumstances is this rule taught” – when this is their livelihood. If a person has another
occupation and participates in these activities only occasionally, then he can still be trusted as a
witness in court.

6 https://www.ou.org/life/torah/masechet_roshhashanah1723/
14
In The Commentators’ Rosh Chodesh (pgs.392-402), Rabbi Yitzchok Sender explains that there
is a basic difference of opinion between Rambam and Ramban regarding who has jurisdiction in
the matter of establishing the calendar year. Rambam is of the opinion that only the Sanhedrin
haGadol or those who have semichah (ordination) and were granted permission to act in this matter
may establish the month or the leap year.7

Ramban holds that all that is necessary to qualify in this area is semichah. Any Beis Din whose
members are ordained can establish the calendar. The proof he brings for his opinion is the verse
which dictates the mitzvah of Kiddush HaChodesh. It reads “‫ לכם הזה החדש‬.“This suggests that the
persons who rule in this area must be as Moshe and Aharon – “like you”– meaning ordained. If
the Torah had demanded the Sanhedrin in order to act, the verse would have read ‫ לך‬- alluding to
Moshe alone, who originally acted as judge and was later succeeded by the seventy-one elders.

Rambam’s thinking is outlined in Sefer HaMitzvos (#153) and Hilchos Kiddush HaChodesh (5:1),
where he writes: “...the sighting of the moon and to establish a leap year to reconcile the calendar
or out of necessity apply to the Sanhedrin in Eretz Yisroel. It is they alone who are authorized, or
a court of judges who have been ordained that holds sessions in Eretz Yisroel and was granted
authority by the Sanhedrin.” Ramban vehemently objects to the contention of Rambam that only
Sanhedrin is qualified in this matter.

It is well known that forty years prior to the destruction of the ‫ בית המקדש‬the Sanhedrin went into
exile, leaving the ‫ לשכת הגזית‬.

If Rambam is correct, how, then, were they able to sanctify the new moon by means of
eyewitnesses, a process, which, according to Rambam himself, lasted until the days of Abaye and
Rava, well after the destruction of the ‫ ( המקדש בית‬ibid., 5:3)?

The classic commentators to Sefer HaMitzvos ( ‫ מגילת אסתר‬and ‫ ) שמח לב‬answer this question. They
suggest that it is only in relation to certain issues that the Sanhedrin is required to be situated in its
designated place in order to function. For example, they had to be in the ‫ הגזית לשכת‬in order to
judge capital punishment. However, they were also recognized outside these confines in many
matters, including sanctification of the month (Kiddush HaChodesh).

One time the Baitusin wanted to deceive the Chachamim [so they] hired two people [as false
witnesses] for four hundred zuz.

7 https://www.dafdigest.org/masechtos/RoshHaShana%20022.pdf
15
In the aforementioned story, one of the hired witnesses exposed the plot and informed the
Chachamim about the ruse. Rashi (1) comments that although the witness did not fulfill his
commitment to testify falsely, nonetheless, Chazal granted him the money through the power
invested in Beis Din to declare property ownerless (‫) הפקר דין בית הפקר‬.

The implication is that had the witness fulfilled his responsibility in the arrangement and testified
falsely the witness would have a legal right to demand payment for the service he provided. In
other words, if Reuven hired Shimon to testify falsely in Beis Din, Shimon has the right to demand
payment for testifying falsely notwithstanding the fact that he was hired to commit a transgression.

Rav Yaakov of Lisa (2), the Nesivos HaMishpat, cites Rashi’s comment as proof to this halachah.
Teshuras Shai (3) also rules like the Nesivos in a case of one who hired a salesman to overcharge
a customer, and he equates the case to one who hires a ‫ זונה‬.One who hires a ‫ זונה‬is responsible to
pay even though the agreement involved a prohibited activity.

Similarly, one who pays a salesman to overcharge a customer must pay the salesman for the job
he performed. Orchos HaMishpatim (4) disagrees with Teshuras Shai’s assertion that the case of
the ‫ זונה‬and the case involving the salesman are comparable. In the case of the ‫ זונה‬,the service is
irreversible; therefore, payment must be made for the service performed.

In contrast, the storeowner who hired the salesman to overcharge the customer is obligated to
reimburse the customer for the amount he was overcharged. As such, there will not be a lasting
benefit that accrues for the storeowner from the transgression that was committed, and there is,
therefore, no obligation to pay. This would be similar, claims Orchos Mishpatim, to one who hired
another to steal property. Certainly, if the stolen property is returned to the legal owner there is no
benefit that remains for the one who hired the thief. Accordingly, he would have no legal obligation
to pay the thief.

Our Daf recounts a story of the honest man who was sent by Divine Providence to foil the plot of
the Baitusim who were trying to fool the Sages.

During the time of the Vilna Gaon, zt”l, a young married woman of one of the best families of
Vilna was inexplicably bereft of her groom. The young man had been sent on a business trip to a

16
distant city, but weeks and months passed with no word. Foul play was suspected, but no
compelling evidence was ever offered to explain his disappearance. Years passed, and the no-
longer young wife returned to her parents’ home, unable to remarry. One day, a man arrived in
Vilna and presented himself to the woman’s family as their long lost son-in-law. The groom had
been quite young when he disappeared long ago, and it was difficult to establish with certainty that
this stranger was really their son-in-law.

He was summoned by the Gaon for questioning and acquitted himself admirably. He had a
reasonable excuse for his long absence, knew everything about the woman and her family, and
could recite his own history to the last detail. Even so, the girl’s parents were not completely
satisfied that the man was who he purported to be. The girl’s father approached the Gaon privately
and expressed his doubts.

The Gaon said, “Host him for now, but do not allow your daughter to be alone with him. Come
back on Friday for further instruction.” All week, the man stayed in the girl’s home. On Friday,
the Gaon told the father, “Tonight, take him to shul, but as soon as you enter, find a pretext to
speak to someone at the back. Wave him ahead and say: Go on to our seats. Then you will know
if he is who he claims to be.”

The father did as instructed, and the man’s treachery was revealed, as he could not identify his old
seat. Afterward, it came to light that the girl’s husband had decided to abandon Judaism along with
his young wife while abroad. The two unscrupulous men had met years later, and this charlatan
was intrigued by the prospect of insinuating himself into a prominent family in Vilna. Thanks to
the astuteness of the Gaon and siyatta d’Shemaya, his plan was foiled!

Rabbi Jeremy Rosen writes:8

The Gemara has already established how to fix each new month in the lunar calendar: The rabbis
required two witnesses to appear before the Sanhedrin (high court) in Jerusalem each month to
confirm that they had seen the new moon and then a new month was declared.

On today’s page, we encounter the first mishnah of the second chapter which teaches that:

Initially, the court would accept testimony to determine the start of the month from any person.
However, when the Boethusians corrupted the process (by sending false witnesses to testify
about the new moon), the sages instituted that they would accept this testimony only from those
who were familiar to them.

Who were the Boethusians and why would they do this? During the Second Temple period, there
were deep divisions in the Jewish community. In particular, there was a strong rivalry between the
ruling priestly class (of which the Boethusians seem to have been one group, though not the
predominant one known as the Sadducees) and the Pharisees (the forerunners of the rabbis, literally
“those who separated.”) They clashed over points of law and also the dates of holidays. Bringing

8
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false witness to the Sanhedrin was a way for the Boethusians to foil the Pharisees and fix the
calendar according to their own preference.

To pull this off, the Gemara explains through a beraita (another early rabbinic teaching), the
witnesses had to be bribed:

The sages taught: What did the Boethusians do? They tried to mislead the sages. They hired two
people for four hundred dinars to give false testimony. One of ours, and one of theirs.

The Boethusians were sneaky. They sent two witnesses who had been bribed to lie about seeing
the new moon, and while one of them was a loyal Boethusian, the other was a Pharisee they
managed to buy. This made it extra difficult for the sages to figure out which testimony to trust.

This was not an isolated incident — there are more stories of calendrical manipulation on our page.
The mishnah we encounter on the second side says that originally the Jews used to light bonfires
to transmit the news of the new month from hilltop to hilltop, across the land, and beyond to the
Diaspora. This was an efficient means of communication — the message could travel literally at
the speed of light. But then, the mishnah continues, the Cutheans began to undermine them by
lighting decoy fires on the wrong day. The Sanhedrin was forced to stop using signal fires and
send out messengers they could rely on.

So who were the Cutheans? And what was the difference between them and the Boethusians?
Normally the Hebrew name Cuti applies to the Samaritans, who like the Sadducees accepted the
Torah but not rabbinic authority, but they have a very different back story. We know about them
from the 2 Kings 17. When the Assyrians conquered the Northern Kingdom of Israel located in
Samaria, they exiled and scattered the conquered people and replaced them with victims from
elsewhere to ensure that they would not be able to reconstitute as a threat. These new inhabitants
of Samaria were plagued by wild animals and assumed it was because they did not worship the
local gods. They asked for priests to come from the south to teach them how to worship the local
God and then coexisted with the Judeans until they too were exiled.

When the Judeans returned under Cyrus, the Samaritans (as they were called) claimed that they
were the rightful Israelites. After years of conflict, the Judeans prevailed, and the Samaritans were
regarded as heretics. By the era of the rabbis, this group claimed that, contra the biblical account,
they were actually the remnants of the northern tribe of Joseph left behind by the Assyrians and
had always been Israelites. Even so, and despite their refusal to accept rabbinic authority, they
were often accepted because they adhered so strictly to biblical laws.

So did the rabbis really tangle with every sect over the calendar? And were all the different sects
really prone to pulling these kinds of pranks to fix the calendar? Not likely. It’s more probable that
something else is going on here.

As Christianity challenged Judaism, the censors were highly sensitive to anything that could be
taken as an insult to them. It is likely that, so as to avoid giving offense they often intentionally
used different names for sectarians to throw the censors off track. Which probably explains why it

18
is so difficult to identify exactly who the rabbis were really referring to in the versions of the texts
that have come down to us.

Rabbi Johnny Solomon writes:

Having discussed some laws relating to testifying about a new moon, the Mishna (Rosh Hashanah
1:8) in our daf (Rosh Hashanah 22a) - paralleling Mishna Sanhedrin 3:3 - informs us that a ‫משחק‬
‫בקוביא‬, meaning ‘someone who plays dice’ but also including those who engage in other games
where money is gambled (see Aruch Hashulchan on Choshen Mishpat 370:5) are disqualified from
serving as witnesses and, as Mishna Sanhedrin adds, also from serving as judges.

Significantly, there is a disagreement elsewhere in Gemara (Sanhedrin 24b) as to the reason for
this disqualification. Rami bar Chama’s opinion is that dice playing involves an “Asmachta” which
is a conditional offer to pay money, made with the conviction that the condition will not come to
pass. When one bets money on dice, an individual genuinely believes that they will win, and hence
if they lose, they give up money they never intended to part with. Therefore, the winner of the bet
is taking money not rightfully theirs and that money is considered ‘Gezel Mid’rabanan’ –
Rabbinically stolen (i.e. though not classified as stealing according to Torah law, this is
nonetheless classified as stealing according to Rabbinic law).

Contrasting this, Rav Sheishet argues that ‫ משחק בקוביא‬is not classified as Asmachta. This is
because when someone gambles, they realize at the outset that there is a chance that they will lose,
and therefore, by nevertheless gambling, they already assume such a risk. Given this, why –
according to Rav Sheishet - is a ‫ משחק בקוביא‬disqualified from testifying and serving as a judge?
He answers that this is because someone who engages in such activity is not involved in ‫יישובו של‬
‫ עולם‬i.e. an activity or a profession making a constructive contribution to society.

It is clear that the Rambam (Hil. Gezeilah V’Aveidah 6:7 & Hil. Eidut 10:4) and the Shulchan
Aruch (Choshen Mishpat 34:16 & 370:2) follow Rami Bar Chama and are of the opinion that
gambling is rabbinically prohibited based on the theft prohibition – and that even when one is
doing the gambling just for fun, a rabbinic prohibition is violated, while later authorities show
sensitivity to the point raised by Rav Sheishet.

Significantly, while there have been those who have noted that the Rema (Choshen Mishpat 207:13
& 370:3) argues that when one has a profession and is merely gambling as a pastime, and in a
situation where both parties agree that whoever wins takes the money, that gambling would then
be permitted, they fail to point out that this does not take into consideration the fact that gambling
is addictive and that, as a result of the fact that it can become an addiction, players can then put
their job, their home and their life at risk. Beyond this, as implied by the Mishna Berura (OC
322:22), while playing with family may be considered acceptable, gamblers are often tempted to
encourage others to gamble as well.

Overall, given that we are discussing witnesses and judges, having witnessed how gambling can
have devastating effects on those who gamble and their families, and having seen how those who
gamble regularly misjudge the risks they think they are taking, I believe that we should all be strict
about ‫ משחק בקוביא‬in all its forms – both in person and online - and that, especially now that we
19
understand the incredible addictive risks of gambling, there should be justification and no place
for gambling in Orthodox communities.

Another Tuviah the Doctor

Jeremy Brown writes:9

In our daf there is the story told about a physician named Tuviah.

‫ א‬,‫ראש השנה כב‬

‫ ְוִקְבּלוּ ַהֹכֲּה ִנים אוֹתוֹ ְוֶאת ְבּנוֹ וָּפְסלוּ ֶאת‬,‫ הוּא וְּבנוֹ ְוַﬠְבדּוֹ ְמשׁוְּחָרר‬,‫ַמֲﬠֶשׂה ְבּטוִֹבָיּה ָהרוֵֹפא ֶשׁ ָרָאה ֶאת ַהֹחֶדשׁ ִבּירוָּשַׁל ִים‬
‫ וָּפְסלוּ ֶאת ְבּנוֹ‬,‫ וְּכֶשָׁבּאוּ ִלְפֵני ֵבּית ִדּין — ִקְבּלוּ אוֹתוֹ ְוֶאת ַﬠְבדּוֹ‬.‫ַﬠְבדּוֹ‬

There was an incident with Tuviah the doctor. When he saw the new moon in Jerusalem, he and
his son and his freed slave all went to testify. The priests accepted him and his son as witnesses
and disqualified his slave, for they ruled stringently that the month may be sanctified only on the
basis of the testimony of those of Jewish lineage. And when they came before the court, they
accepted him and his slave as witnesses and disqualified his son, due to the familial relationship.

The story is told to demonstrate a disagreement over whether a father and son may jointly testify
about having seen the new moon, because ordinarily witnesses must not be related. It also
demonstrates another disagreement over whether a slave may give testimony about the new moon.

1652 map of Metz showing the Germans' Gate (Porte des Allemands)

9
http://www.talmudology.com/
20
But for our purposes we will not focus on either of these issues. Instead we will discuss a namesake
of the Tuviah mentioned in this Mishnah. He was Tuviah Cohen, born in the town of Metz in
northeastern France in 1652, and like the Tuviah in the Mishnah he was a physician “who saw the
new.”

THE OTHER TUVIAH

Portrait of Tuviah Cohen, from his work Ma’aseh Tuviah, Venice, 1708.

This Tuviah Cohen has long been a favorite of historians of science and Judaism. Perhaps this is
because he was a reformer of sorts, ready to sweep away old superstitions and replace them with
scientific knowledge. Perhaps it is because his book, Ma’aseh Tuviah, was “ ... the best-illustrated
21
Hebrew medical work of the pre-modern era,” full of wonderful drawings about astronomy and
anatomy. Perhaps it is because his book is so clearly printed and a pleasure to read in the original.
Or perhaps it is because Cohen was so adamantly opposed to Copernicus that he called him the
“Son of Satan”—which made his the first Hebrew work to attack Copernicus and his heliocentric
system.

In fact, introducing new science was of such importance that it was the motivation behind the name
of Cohen’s book, Ma’aseh Tuviah. Cohen reminded his readers of the Mishnah on Today’s page
of Talmud: “It happened (ma’aseh) to Tuviah the doctor who saw the new [Moon] . . . and the
Bet Din [rabbinic court] accepted his testimony.” Cohen saw himself as another doctor who would
“see the new.

After his father’s untimely death, Tuviah’s mother remarried in 1664 when he was twelve years
old. He studied in a yeshivah in Cracow, and at the age of twenty-six, entered the University of
Frankfurt, where he began to study medicine. Despite being taken under the wing of Fredrick
William, the elector of Brandenburg, and receiving a stipend from him, anti-Jewish sentiment
prevented Cohen from graduating. As a result, he left for the University of Padua, where he
graduated with a degree in medicine in 1683 and soon found employment as a physician in Turkey.
He published his only work, Ma’aseh Tuviah (The Work of Tuviah), in Venice in 1708 and moved
in 1715 to Jerusalem, where he died in 1729.

Front page of the first edition of Ma’aseh Tuviah, Venice 1707.

22
T U V I A H ’ S F A M O U S E N C Y C L O PE D I A

Tuviah painfully remembered one particular area in which he lacked knowledge: the discipline of
astronomy. It was astronomy that the Talmud considered to be the example par excellence of
Jewish wisdom that would be acknowledged by Gentiles. Examining the verse “For this is your
wisdom and understanding among the nations” [Deut. 4:6], the Talmud had concluded that it
referred to “the calculation of the seasons and the constellations,” that is, the ability to create an
accurate calendar and to forecast the positions of the stars and planets. Tuviah was especially
troubled by the taunts that Jews had no proper astronomical understanding, given the pride of place
of astronomy in the Talmud. He recalled his days in the university:

We would undertake long debates with us every day about questions of belief, and would many
times embarrass us asking “where is your wisdom and understanding—it has been taken from
you and given to us!” Although we were knowledgeable in Bible, Talmud and Midrashim, we
were like paupers when we debated them. This is why I became a zealot for the Lord and swore
that before I died I would neither sleep nor rest until I had written a work that included
knowledge and skills...for although we walk in this dark and bitter exile God has been our light
and there are still wise and learned men among us. . . .

He therefore addressed this topic in detail in his encyclopedic Ma’aseh Tuviah.

23
The first depiction of the heliocentric system in Hebrew literature. From Ma’aseh Tuviah, Venice,
1708, 50b.

COPERNICUS IS “THE FIRSTBORN OF SATAN”

Tuviah’s section on astronomy included the first depiction in Hebrew literature of the new(wish)
heliocentric model of the universe, first published by Nicolas Copernicus in 1542. But having
explained the new model (which by then was nearly two centuries old) he rejected it in favor of
the traditional earth centered or geocentric model. And he did so with an unforgettable chapter
title:

Chapter Four.

Bringing all the claims and proofs used by Copernicus and his supporters

showing that the Sun is at rest and the Earth is mobile;

24
and know how to refute him, for he is the First born of Satan.

THE REST OF TUVIAH’S ENCYCLOPEDIA

Besides astronomy, the Tuviah’s encyclopedia contains dozens of other topics, all of which
demonstrate that Tuviah was a product of his time (for how could he be anything other?) Ma’aseh
Tuviah (which you can read and download here) contains a section on Hokmat HaPartzuf, which
today we might recognize as an amalgam of phrenology, physiognomy and palm-reading. Tuviah
defined Hokmat HaPartzuf as “the ability to divine the future, by understanding the form, size and
limbs of the body, the way a person looks, his color, size, nature, intelligence, his spirit whether it
be large or small, and many other qualities like this.” All of these, wrote Tuviah, were reliable
predictors of a person’s future, as was generally accepted in his day. He also described the nature
of giants, which were described in the Bible as Nefilim or Refa’im, and noted that giants (anakim)
were to be found in a number of different climates. For the sake of brevity, he wrote, he would
only describe one event to which he was an eye-witness. In 1694 in Salonika in northern Greece,
workers in a salt mine uncovered the remains of a giant “thirty-three amot in length”. Tuviah
describes seeing two bones of the forearm and one tooth, “which weighed 350 drachmas”, or about
1.5kg. It was most likely that Tuviah had seen fossilized prehistoric remains, which he attributed
to the bones of a giant human.

Tuviah also found no reason to doubt the existence of centaurs, mermaids and sirens, and creatures
who were nourished through an umbilical cord that attached them to the earth. The latter, which
resembled a sheep and which grew from the Boramets tree, were to be found in Africa and although
Tuviah had not personally seen them he relied on new but unnamed works of geography to inform
his own readers of the existence of these fantastic creatures.

In the section on medicine, Tuviah, Like all the physicians of his time, he recommended
bloodletting, and in another he discussed “The French Disease”, which today we call syphilis.
Tuviah described it as being recently introduced from India or the newly discovered America:

In 1496 the great explorer Christopher Columbus returned with his sailors from exploring the
new world, but they began to act immorally with the women of Italy which angered God greatly
and He brought about a great calamity and a great sickness. And the French army which was
then fighting around Naples also became sick, which is why the disease is known today as mal
francese, although it is in fact an Indian or an Italian disease. Some Latin books call it lues
veneris or pudendagra.[1]But I call it the small plague because it attacks women and men. I call
it this for three reasons: First, it is the result of immorality. Second its poison is like that of a
plague. It is spread by a man having intercourse with an infected woman, and in an instant it
spreads throughout the body. Thirdly, it acts just like a plague but a plague kills, and this is not
usually lethal…but rather causes suffering that is worse than death.

There are, Tuviah noted, a number of theories as to the etiology of the French disease. Galen
believed it was from rotting blood and the alchemists thought it was caused by an acidic poison.
“However” he concludes, “it is sufficient for us to know that it is caused by unclean intercourse
[bi’ah teme’ah] that transmits an uncleanliness through contact. This causes God to become angry,
for he abhors immorality.”
25
T U V I A H ’ S F A M O U S I L L U ST R A T I O N

Ma’aseh Tuviah was a work that relied on ancient medical teachings that had never been
challenged, together with a few more recent sources, but all of Tuviah’s choices reflected the
general medical consensus of his time. Perhaps more innovative was Tuviah’s image of the body
as a house, an image that is certainly more well-known than is the book in which it appears. On
the left of the image is a schematic of the torso of a dissected body, and on the right a four-story
house with a roof and chimney. The eyes on the body correspond to the upper windows of the
house, and the shoulders correspond to the roof. The liver and gall bladder were drawn as an oven,
the heart is oddly identified hidden behind a lattice, and the kidneys correspond to a fountain. The
smoking cauldron that appears in the center of the house represents the stomach. The British
medical historian Nigel Allan noted that such analogies were not new. William Harvey had also
described the stomach as the kitchen, and “the furnaces that draw away the phlegm” but this would
not have been known to Tuviah. Even if identifying the workings of the body with the technology
of the era was not unique to Tuviah, this image is nonetheless a striking one, and a perennial
favorite in discussions of pre-modern Jewish medicine. This image did much to suggest a spirit of
innovation in Ma’aseh Tuviah, when in truth the work was far more conservative than innovative.

T U V I A H “ W H O SA W T H E N E W ”

Tuviah saw himself as an iconoclast. This was the motivation behind the name of his book,
Ma’aseh Tuviah, and it was reflected in the titles he gave to some of the sections in his book: A
New Land, or A New House. A careful reading of the text, however, reveals that there was little in
26
Tuviah’s approach to medicine that was new. In fact, much of it contained the ancient classic
teachings of Hippocrates, Aristotle, and Galen, and many of the more “recent” plant remedies that
Tuviah cited were about one hundred and fifty years old by the time that he published them. Even
William Harvey’s discovery of the circulation of the blood could not be considered a novel idea
by the time it was mentioned by Tuviah. Harvey has first published his discovery in Frankfurt in
1628, and by 1650 it had been widely discussed throughout Europe and cited in books published
in Frankfurt, Venice, Leyden, Rotterdam and London. Rene Descartes cited Harvey’s work in
some detail in his Discourse published in 1637. The Pope’s own physician defended the Harverian
hypothesis in 1642, and it was discussed by Italian physicians soon after. In 1650 another graduate
of the medical school at Padua, Paul Slegel, published a book on the circulation and by 1656 at
least thirty-six printed books had mentioned the discovery of the circulation. It is therefore far from
surprising that Tuviah also mentioned William Harvey, and doing so makes his early eighteenth
century textbook up to date, rather than pioneering.

Ma’aseh Tuviah is a fascinating read, but it is not something you’d like your physician or science
teacher to be using as a guide book. Still, his book is an insight to the world of an eighteenth
century Jewish physician that is now, thankfully, of historic interest alone.

Infidels and Judaism

27
Rabbi Yirmiyohu Kaganoff writes:10

The Sin or the Sinner?

"Why did Chazal establish a brachah in the Shemoneh Esrei against those who reject Judaism?
Aren’t we supposed to pray that sinners find their way back to Judaism?"

Various Infidels

"What are the differences between the Tzedukim, the Baitusim, the kara’im, and other deviant
groups?"

Antigonus ish Socho, one of our great Torah leaders, was the head of the Sanhedrin towards the
beginning of the second Beis Hamikdash period, in the generation immediately following the
passing of the last of the Anshei Kenesses Ha’Gedolah. Two of his disciples, Tzadok and Baitus,
misunderstood him to say that there is no reward for observing mitzvos (Avos DeRabbi Nosson
5:2). In fact, what Antigonus had said was that one should not observe the Torah for the goal of
receiving its reward, but because we want to serve and fear Hashem (see Avos 1:3).

Unfortunately, Tzadok and Baitus were cunning and charismatic individuals. Soon, each had
amassed his own following of people who accepted them as their religious leaders in place of
Chazal. Although both Tzadok and Baitus had, by now, rejected everything in the Torah, they
understood that if their followers knew this, they would look for other leaders (Rambam,
Commentary to Mishnah, Avos 1:3). As a result, both Tzadok and Baitus pretended to accept the
Written Torah, but they rejected the Oral Torah, thus making them the deciders of what their new
religions would observe. This created two splinter religious sects, called the Tzedukim and the
Baitusim, each named for its founder, which became thorns in the sides of the Torah community
throughout the rest of the period of the second Beis Hamikdash and the Tanna’im. At times, these
groups even became violent in their attacks on halachah-observant Jewry (see Meiri, Rosh
Hashanah 22a).

Although the origins of both groups were similar, they developed dissimilar practices and became
two distinct groups (Tosafos Yom Tov, Menachos 10:3). Some early authorities note that there
was also a divergence in style between the Tzedukim and the Baitusim. Whereas the Baitusim
were brazen in disputing the halachic authorities, the Tzedukim were concerned about what the
rabbonim held (Ritva, Eruvin 69b). The Gemara records instances where they followed rabbinic
practice, even when it differed with what they theoretically held (Yoma 19b; Niddah 33b). The
Baitusim, on the other hand, achieved notoriety for their troublemaking (see, for example, Rosh
Hashanah 22a-b).

10 https://www.yeshiva.co/rabbi/384
28
Baitusi bloopers

Notwithstanding the fact that the Baitusim behaved in a more brazen manner than did the
Tzedukim, Chazal record only three instances where their official practices conflicted with
halachah. They are:

1. The Baitusim held that an individual could donate a korban tamid to be used by the community
for the daily offering in the Beis Hamikdash (Megillas Taanis; Tosafos, Taanis 17b s.v. Meireish).
The halachah is that these offerings, similar to all other required public offerings, must be
purchased from the terumas halishkah, that is, from the half-shekel coins that each adult male Jew
was required to donate annually to the Beis Hamikdash for this purpose.

2. The Baitusim did not want the korban omer to be offered on any day of the week other than
Sunday (Menachos 65a). The halachah is that it is offered on the day that we begin counting the
omer, the second day of Pesach, regardless of which day of the week this transpires.

3. The Baitusim were opposed to the observance of the mitzvah of aravah (Ritva, Sukkah 43b), a
practice performed in the Beis Hamikdash every day of Sukkos (see Mishnah, Sukkah 42b and
Gemara ad locum).

It is significant to note that all three of these divergent practices involved mitzvos performed in
the Beis Hamikdash, and none of them impinges on how a person is required to observe his
individual mitzvos. Thus, although, as we will soon see, the Tzedukim had many practices that
differed from halachah, the more brazen Baitusim had fewer "official" practices that differed from
halachah. I have attempted to find sources to explain the underlying reason for the Baitusim’s
divergences, but I have not, as yet, found an approach I find satisfactory.

Baitusi slackness

This should not be interpreted to mean that the Baitusim were careful about the other laws. Quite
the contrary, they observed all mitzvos that are not taught expressly by the written Torah in a
haphazard way. For example, the Gemara states that one should presume that a Baitusi does not
keep the laws of carrying on Shabbos properly (Eruvin 68b). Similarly, the rishonim state that it
should be assumed that Baitusim do not observe the laws of shechitah (Meiri, Chullin 2a). This
approach is codified in Shulchan Aruch (Yoreh Deah 2:9). But, it appears that these were not
formal practices of the Baitusim; rather, this reflected their attitude towards Torah she’b’al peh,
which they treated with disdain.

29
Sadducee sophistry

On the other hand, the Tzedukim seem to have followed their own code of deviant practices. For
example, they practiced the laws of netilas yadayim differently from the way halachah requires
(Yadayim 4:6). Similarly, they followed different rules germane to some of the laws of family
purity (Niddah 33b), of inheritance (Yalkut Shimoni, Bereishis #140), of damages (Yadayim 4:7),
and of jurisprudence (Sanhedrin 52b; Makkos 5b). They had occasional philosophic or religious
debates with Chazal (Yadayim Chapter 4; Yalkut Shimoni, Devorim #824).

Similar to the Baitusim, the Tzedukim, also attempted to change specific practices of the Beis
Hamikdash. They were opposed to the mitzvah of pouring water on the mizbei’ach on Sukkos
(nissuch hamayim), since it has no explicit source in the written Torah. A more critical deviance
was that they felt that the special offering of the ketores (incense) in the Kodesh Hakodoshim (the
Holy of Holies) on Yom Kippur should be brought differently from the way that the halachah
specifies. In their opinion, the kohein gadol should place the ketores onto the fire in the pan prior
to his entering the Kodesh Hakodoshim, whereas the halachah is that he places it onto the fire after
entering (Yoma 53a).

This deviance of theirs was unusual, because, in this instance, the literal reading of the Torah is
much closer to the halachah than it is to the Tzedukim’s practice (see Commentary of Rav Hirsch,
Vayikra 16:13). To quote Rav Hirsch, "The tradition of the chachamim is in full accordance with
the sense of Scripture; the Sadducean conception, however, entails a most forced reading of
Scripture." We will continue this discussion later.
Another practice in which the Tzedukim diverged from accepted practice concerned some of the
preparations of the parah adumah. In this instance, Chazal went to great lengths to make it
impossible for the Tzedukim’s approach to be observed. Why?

It is strictly forbidden to imply that the halachah is different from what it actually is. Since the
Tzedukim denied the authenticity of Torah, we are required to emphasize the correct halachah. A
great early authority, the Maharshal, proves that teaching a distortion of the Torah is forbidden to
the extent that it is yeihareig ve’al ya’avor, one is required to avoid violating it to the extent that
one is required to give up one’s life, if necessary to avoid such an eventuality (Yam shel Shelomoh,
Bava Kama 4:9; see Shu’t Igros Moshe, Orach Chayim, II:51).

The Kara’im

Whereas the Tzedukim came into prominence during the period of the second Beis Hamikdash
and the era of the Tanna’im, the Kara’im began in the period of the Geonim (the Middle Ages) in
Bavel and the Fertile Crescent region. A prominent Jew named Anan ben David, descended from
the royal family of Dovid Hamelech, was passed over in his bid to become the reish gelusa, or
Exilarch, the political head of the Jewish community, because of concerns about his level of fear
30
of G-d. He then proved that the concerns about him were valid, when he created a new religion
that broke away from Judaism and denied the authenticity of the Torah she’b’al peh. As evidenced
by the efforts expended by Rav Saadiah Gaon and others to combat it, Karaism, at one time, posed
a serious threat to Jewish souls.

Kara’im versus Tzedukim

Both historically and religiously, there is no direct connection between the Tzedukim and the
Kara’im. Both the Tzedukim and the Baitusim had died out centuries before the Kara’im showed
up on the scene. Furthermore, the observances of the Kara’im vary tremendously from those of
both the Tzedukim and the Baitusim. For example, the Tzedukim kept some form of the mitzvah
of netilas yadayim, wore tefillin, and observed the laws of family purity, in a way similar to
halachah. The Kara’im do not observe any of these mitzvos.

We see from the Gemara that someone could be a Tzeduki and yet observe halachah sufficiently
to mislead a person to thinking that he was halachically abiding. Thus, it was necessary, at the time
of the second Beis Hamikdash, to have the kohein gadol take an oath that he would follow halachah
and not the Tzeduki practice, when he was in the Holy of Holies. Anyone familiar with Karaite
practice quickly realizes that there is no way anyone can confuse them with halachically observant
Jews.

Notwithstanding their vast dissimilarities, all three groups shared one common ground. Their
primary motivation was to be free of the authority of the Torah; they decided that the only way to
be one’s own boss was to reject the concept of Torah she’b’al peh. Ultimately, all three ceased to
be factors of any significance for the Jewish people, the Tzedukim and the Baitusim because they
disappeared, and the Kara’im because, with time, the small surviving remnants were not identified
with Jews. Even Hitler did not consider the Kara’im to be Jews and excluded them from his
nefarious final solution.

The Sin or the Sinner?

At this point, let us examine one of our opening questions:

"Why did Chazal establish a brachah in the Shemoneh Esrei against those who reject Judaism?
Aren’t we supposed to pray that sinners find their way back to Judaism?"

Indeed, we seem to find two conflicting passages of Gemara. The first reads:

There were some biryonim, troublemakers, in Rabbi Meir’s neighborhood, who were causing
him considerable distress. To end the situation, Rabbi Meir wanted to pray that they die! His
31
wife, Beruryah, told him: "What do you think? That it is acceptable to do this, as we see from
the verse: ‘Chata’im should cease from the world.’ Does the verse say that chot’im should cease
from the world, which would mean that the sinners, themselves, should be destroyed?
Furthermore, look at the end of the verse, which states u’resha’im od einam, and there will be
no more wicked people. Instead, you should pray that they do teshuvah!" Rabbi Meir prayed
that they do teshuvah, and, indeed, they did! (Brochos 10a).

According to the way Rashi explains this dispute, Rabbi Meir understood that the word Chata’im
should be translated as "the sinners." However, the grammatical form of this word could be
understood to mean "those who cause others to sin." If one translates the verse this way, the way
Beruryah understood the verse, it means that the evil inclination, the yetzer hora, which causes
people to sin, should cease. This passage of Gemara implies that one should not pray that the
evildoers cease to exist, but that they should no longer sin.

On the other hand, we find the following passage of Gemara:

Shimon Hapekoli organized the eighteen brachos (of the Shemoneh Esrei) in the correct order
in the presence of Rabban Gamliel, in Yavneh. Rabban Gamliel then asked the Sages: "Is there
anyone here who is able to establish a brachah against the heretics?" Shmuel Hakatan stood
up and established what is now called the birchas ha’Minim (Brochos 28b).

Here we have a passage of Gemara that teaches that Chazal added a brachah to the Shemoneh
Esrei, specifically requesting that Hashem destroy the evildoers. So, do we rule according to
Beruryah or not?

Two additional questions

We can actually add two other questions to this discussion. One is that the conversation between
Rabbi Meir and Beruryah transpired after Rabban Gamliel and Shmuel Hakatan had added birchas
ha’Minim to the Shemoneh Esrei to destroy the evildoers, yet its existence and the related halachic
discussion is not mentioned as part of the conversation between Rabbi Meir and Beruryah. Why
didn’t Rabbi Meir rally birchas ha’Minim as support for his approach that one may pray that
evildoers die?

An additional question is that, historically, the Tzedukim and Baitusim began early in the period
of the Beis Hamikdash, and both succeeded in annoying the gedolei Yisroel sufficiently that
several takanos were instituted to combat them. For example, as mentioned above, the kohein
gadol was required to recite an oath that he would follow what he had been instructed to do by the
Torah leaders, because there were kohanim gedolim who were suspected of being closet
Tzedukim. And during the preparation of the parah adumah, numerous extra precautions were
32
instituted to combat a practice of the Tzedukim. Also, initially, any witness who claimed to see
the new moon was accepted by Beis Din, until it was revealed that the Baitusim had hired witnesses
to testify falsely about what they saw. Each of these matters required a change in procedures
germane to how mitzvos were observed in the Beis Hamikdash. Obviously, both the Tzedukim
and Baitusim were sources of major exasperation to Chazal.

Yet, we do not find any attempt of Chazal to add a brachah to the tefillah against either the
Tzedukim or the Baitusim. The core prayer, which had been established by the Anshei Keneses
Ha’Gedolah at the beginning of the second Beis Hamikdash, remained. Only in Yavneh,
approximately four hundred years after the tefillah had originally been structured, did Chazal add
a new brachah against evildoers. Why did they wait until this time, rather than establish something
similar to birchas ha’Minim to combat the Tzedukim and the Baitusim?

It seems that, although Chazal needed to be concerned about the deviances of both the Tzedukim
and the Baitusim, they understood that there was no need to make a permanent change in Klal
Yisroel’s prayers. These deviant groups would never pose a long-term hazard to the Jewish people.
And, we see how accurate Chazal were in their assessment, because both groups disappeared long
ago. However, it seems that the concern of the birchas ha’Minim was against the early Christians,
who originally considered themselves part of the Jewish people, and it was based on a realization
that this group would pose a long-term hazard. Remember that during its infancy, Christianity
viewed itself as a branch of Judaism. To this day, Christians have tremendous difficulty explaining
why Jews have so whole-heartedly rejected their religion. This is a tremendous blot on its
reputation. Since Christianity was completely rejected by those who were around at the time this
religion was invented, obviously, it is a forgery.

Against this backdrop, we can explain why Rabbi Meir made no reference to birchas ha’Minim
during his conversation with Beruryah. Rabbi Meir was being vexed by a local group of hooligans.
The birchas ha’Minim is not about such people, but was established to combat a permanent foe.
Indeed, we see from this conversation that, under usual circumstances, one should not pray that an
evil person die.

In conclusion

Above I mentioned the deviant practice espoused by the Tzedukim when they insisted that the
ketores be burnt prior to the kohein gadol’s entering the Holy of Holies. In Rav Hirsch’s
commentary to the Torah, he notes:

"Toras Kohanim informs us of the motive of the Tzedukim to contradict the words of Scripture
here. They openly put forward a plea of ‘etiquette.’ At human banquets, the incense is brought in
already smoking, it is not put on the fire in the presence of the guests. How much more so should
this same mannerly conduct be followed in the presence of G-d! Thus would the ancient Sadducees
bow to the idol of external etiquette – the same idol to which the modern ‘Sadducees’ bow, and in
whose name they break every law at the holiest moments of Divine worship.

33
"Further reflection reveals that the method of offering the ketores that was adopted by the
Tzedukim had been employed, also, by Nadav and Avihu. They, too, brought their disastrous
ketores offering in this manner...

"If this is correct, then we have here. again. what is so very characteristic: the Tzedukim, in their
time, were the disciples of Nadav and Avihu, just as the Karaites later based themselves on all
those whose opinions and teachings were rejected by the Chachmei Yisroel.

"It appears further that this Sadducean doctrine is emblematic of the whole principle of the
Sadducean deviation… for the true kohein gadol is nothing but a servant of the Will of G-d, a
servant who subordinates his own subjective view. To him… only that which is pleasing to G-d is
pleasing to him… The Sadducean kohein, however, turns the altar fire into his fire and makes it
an instrument for his own action… He lights the ketores in a manner that appeals to himself… and
forces it on G-d’s will. That which fits his conception of rei’ach nichoach, G-d, too, will accept.

…Who knows whether this very contrast – which epitomizes the Sadducean principle – is what
led the Sadducees to this doctrine, in blatant contradiction to the sense of Scripture!"

Coercion: Enforcing Performance of Mitzvot

34
Rav Yehoshua Pfeffer writes:11

The book of Vayikra begins with instructions for the korban olah (Elevation Offering): “If one’s
offering is an elevation offering from the cattle, he shall offer an unblemished male; he shall bring
it to the entrance of the Tent of Meeting, voluntarily, before Hashem” (Vayikra 1:3).
On the words “he shall bring it,” Rashi comments that if one does not bring an obligated offering,
we force him to fulfill his obligation. At the same time, Chazal note (Rosh Hashanah 6a) that the
word “voluntarily” indicates that a person may not be coerced into bringing an offering. The
resolution of this contradiction is that the court coerces him until he says that he desires to bring
the offering. Aside from coercing a person to bring his offerings, we also find a general instruction
to enforce the performance of mitzvos. Chazal express this principle in no uncertain terms: “One
who states: I will not build a Sukkah, I will not take a Lulav—we smite him until his soul (almost)
departs.”

In this article we will discuss this principle of coercion for mitzvos. What is the rationale behind
coercing to perform mitzvos? Is there a distinction between coercion of positive and negative
commandments? Who is responsible for coercing others? And is there any value in a coerced act?
These questions, among others, are discussed below.

Rebuke or Collective Responsibility

The obligation to force another Jew to keep mitzvos can be explained in two ways. One rationale,
which emerges from Rashi’s interpretation of the Gemara (Erchin 16b), is that this is derived from
the obligation to admonish a Jew who fails to perform an obligatory mitzvah or commits a sin. The
Gemara states that the prohibition of hating a fellow Jew in one’s heart does not apply to hitting
him, smiting him or cursing him. Rashi (as explained also by the Maharsha) explains that this
refers to smiting a fellow Jew in admonition for not performing his religious obligations: while
one must not hate one’s fellow Jew, it is permitted to smite him in rebuke for sinfulness. We learn
from here that admonishing another person for his wrongdoings can go even as far as hitting him.

According to the Rambam, however, this Gemara is understood differently. The Rambam
understands the instruction concerning hitting another Jew as referring to hitting him even without
purpose. The prohibition of hating another person is restricted to the feeling of hatred in a person’s
heart and does not apply to physical actions—even those committed spitefully (De’os 6:5; of
course, hitting the other person, whether out of spite or not, involves a prohibition, but not the one
against hatred).

Yet, it remains possible that the Rambam agrees that the obligation of tochecha (admonition)
includes coercing a person (even with physical force) to perform a mitzva—only that according to
the Rambam this does not emerge from this teaching of the Gemara. Another way to explain the
principle of coercing performance of mitzvos is arvus: each Jew’s responsibility for all Jews.
As Chikrei Lev (Orach Chaim 1:48) explains, coercing another to perform his mitzvos is an

11 https://dinonline.org/2019/03/14/coercion-enforcing-performance-of-mitzvot/
35
expression of our responsibility for each other. If one fails to do so, he shares the blame for the
sin. This does not, however, necessarily imply that one may coerce by means of physical force.

Positive and Negative Commandments

The principle of coercion in mitzvah observance is mentioned in the Gemara in connection with
positive commandments (mitzvos asei). Chazal state that somebody who refuses to build a Sukkah
or to take the Four Species (both positive commandments) is coerced into doing so. Does this
principle of coercion also apply to negative commandments?

The Haflaah (Kesubos 49b) writes that the duty to coerce applies to both positive and negative
commandments, the latter really being stricter. According to this approach, the Gemara’s apparent
exclusion of negative commandments refers to past transgressions: after a person has transgressed
a negative commandment, there is nothing to coerce. The same idea is expressed by the Minchas
Chinuch (Mitzva 8): There is no difference between positive and negative commandments; the
only distinction is between past and future.

Similarly, Shut Chavas Yair (166) explains that the principle of coercion cannot apply to
negative mitzvos, since we cannot know with certainly that a person will transgress the prohibition.
Even if he begins to sin, he can always stop before the transgression is completed, and perhaps he
will desist after being warned. Once the transgression is completed, it is of course too late to
intervene. An exception to this would be negative commandments that include a positive element,
such as the mitzvah of charity, which is fulfilled by a positive action yet also involves a prohibition
(transgressed through lack of action). In this case, the principle of coercion applies. (This is the
subject matter in Kesubos to which Haflaah refers.)

Indeed, we find that Tosafos in Kesubos (see also Bava Basra 8b) state (according to one
explanation) that we coerce people to give charity specifically because the mitzvah of charity
involves a negative transgression. This principle is also found in Rosh (Bava Kama 3:13), who
discusses protecting a victim chased by an attacker. His ruling is cited in Shulchan Aruch (Choshen
Mishpat 421:13). Thus, we derive that halachically there is an obligation to coerce concerning
negative transgressions.

Coercion: By Beis Din or Privately?

Who is responsible to see that people keep mitzvos? Does the principle of coercion apply only
to beis din, or does it also obligate private individuals? Based on the rationales behind the concept
of coercion, which as mentioned above refer to mutual responsibility (arvus) and/or the obligation
to give rebuke (tochecha), it seems that the concept will apply to all. Yet the Ketzos
Hachoshen (3:1) writes that although an individual has the authority (according to Torah law) to
pass judgment, with regard to coercion only a beis din of three has the authority to enforce the law.
Nesivos HaMishpat disputes this ruling, showing that the Gemara (Bava Kama 28b), which
discusses a master coercing his released slave to end a forbidden relationship, clearly indicates that
the principle applies even to individuals. Ketzos Hachoshen responds to this proof by
distinguishing between the obligation to save another from a transgression, which applies to

36
private individuals, and coercion for positive mitzvos, which applies to beis din alone. Ketzos
Hachoshen also attacks the position adopted by Nesivos HaMishpat, arguing that according to his
view a private individual may coerce a man into writing a get for his wife—a halacha that is against
the Gemara and surely incorrect. In reply, according to the Nesivos HaMishpat, there is perhaps
room to distinguish between coercion of a divorce, which requires a person to declare “I desire”
and implies the will to fulfill the directives of beis din (see below), and coercion of
ordinary mitzvos. At the end of this article we will discuss the practical implications of this
mitzvah.

Until He Declares: “I Desire!”

We began this article with Chazal’s requirement for sacrificial offerings, whereby one is coerced
until he exclaims: “I desire!” The same expression is found in connection with writing a get: Aman
who refuses to divorce his wife is coerced by beis din until he expresses his wish to do so.
According to one authority (Turei Even, Rosh Hashanah 28), one who is coerced to fulfill a regular
mitzvah is also required to explicitly express his desire to do so. However, other authorities,
following the implication of Chazal and rishonim, write that for most mitzvos there is no need for
this expression. How are sacrificial offerings and gittin different from other mitzvos?

Tosafos (Rosh Hashanah 6a) explain that despite the general instruction to coerce fellow Jews
in mitzvah performance, there is a need for a special Torah instruction to do so concerning
sacrificial offerings. The reason for this is that the Torah states explicitly that a person must bring
the offering “voluntarily.” Without a special instruction, we might therefore think that this means
that a person should not be coerced into bringing an offering.

This coercion, therefore, is special. As the Gemara writes, on the one hand, the Torah implies that
a person can be coerced; yet on the other, the Torah teaches that the offering must be brought
voluntarily. The solution to this seeming contradiction is that the person is coerced into declaring
his positive desire to bring the offering: He is coerced, yet he also brings the offering voluntarily.
Other mitzvahs do not have to be performed voluntarily. Therefore, we don’t require a statement,
“I desire”. The question now, however, is how a coerced declaration can be considered voluntary.
Surely the very declaration itself is coerced, and not voluntary?

The answer to this is given by Rambam, in his famous explanation of a forced get. Authorities
(see Zecher Yitzchak 1:23; Avi Ezri, Geirushin 2:20) explain that just as an offering must be
brought voluntarily, so a get must be given voluntarily. Rambam explains how a coerced
declaration also means a voluntary action:

“One who does not wish to divorce his wife, and the law sanctions coercing him to divorce her,
a Jewish beis din, in every time and place, beats him until he declares: I desire. He then writes
the get, and the get is valid. If he is coerced, why is this get valid? The answer is that a
coerced get is only disqualified when a person is coerced into doing something that the Torah
does not obligate him to do… However, somebody whose evil inclination causes him to
transgress a mitzvah or to perform an aveirah, and is beaten until he does that which he is
obligated to do… this is not coercion. Rather, he had coerced himself with his evil thought.
Therefore [even] one who does not wish to divorce his wife, since he wishes to be a part of Israel,
37
[therefore really he] wishes to perform all the mitzvos and distance himself from sin—only that
his evil inclination has forced him. After he has been smitten, weakening his inclination until
he declares: I desire—his divorce is willful.”

According to one understanding (as the Chazon Ish [Even Ha’Ezer 99:1] explains), beating the
unwilling man has the effect of revealing a deeper level of his will, in which every Jew wishes to
fulfill all the directives of the Torah and Sages. This explains why the get is valid, and also why a
coerced offering is willful. An alternative understanding (see Shut Maharitatz no. 83) is that
because the person wishes to be a part of the nation of Israel, and because upkeep of religious
obligation is integral to belonging to the Jewish People, we know that he really wishes to give
the get and may therefore be coerced.

The Value of Coerced Mitzvos

As noted above, for mitzvos other than gittin and offerings there is no need to extract a declaration
of desire from the coerced person. However, in the absence of this declaration, what is the value
of the mitzvah that is finally performed? Is a coerced action, devoid of positive intent to fulfill
the mitzvah, considered a mitzvah act? The Gemara states that a person who is forced to
eat matza fulfills a mitzvah. This ruling is stated in the Rambam (Chametz and Matzah 6:3) and
by the Shulchan Aruch (Orach Chaim 475:4). This appears to confirm that a coerced mitzvah is,
indeed, a fulfilled mitzvah. However, authorities point out the difficulty of this principle:
surely, mitzvos require positive intent? Without positive intent, one does not fulfill the mitzvah at
all!

Dwelling on this question, the Mishnah Berurah (475:34) explains: “Mitzvos require intent… the
more so here, where he does not wish to eat, and surely has no intent of fulfilling
the mitzvah. Nonetheless, commentaries explain that in eating, since he has physical benefit it
is considered as though he had intention.”

In addition, the Mishnah Berurah mentions that some dispute the ruling of the Shulchan Aruch.
According to these authorities, the halachic principle that mitzvos require intent implies that
somebody who is forced to eat matza does not fulfill the mitzvah. [The Talmudic ruling, in this
light, follows the opinion that the performance of mitzvos does not require positive intent.] If so,
what is the purpose of coercion to fulfill mitzvos? A possible answer to this question arises from
the words of Maharam Chaviv (Yom Teruah, Rosh Hashanah 28a), who writes that if Jews (as
opposed to non-Jews), coerce somebody into eating matza, the coerced individual surely fulfills
the mitzvah. The reason for this is that the intent of the coercing Jews is considered as the intent
of the Jewish person being coerced.

A similar structure to explain the concept of mitzvah coercion is provided by Chazon Ish (printed
at the end of Orach Chaim). He writes that even a mitzvah that is devoid of personal free will is
significant on account of the “collective free will” of Israel. The action is being done out of “Jewish
free will”—if not the free will of the person performing the mitzvah, at least of those coercing him
into performing it. However, other authorities disagree with this analysis (see for instance Shut
Chelkas Yaakov, Orach Chaim 33). Shut Yad Rama (no. 3) writes that the reason we coerce others

38
to perform a mitzvah is in the hope that when he is forced to fulfill his duty, he will have a change
of heart and want to do so.

Another justification for coercion, even if a mitzvah without intent is not a full mitzvah, is the
public good. For the sake of the public good, it is important that the Jewish community in its
entirety upholds Torah law and keeps all the mitzvos. The purpose of the coercion is not just for
the coerced individual, but for the entire community. The personal intention of the coerced
individual is therefore not critical to the coerced act.

From Theory to Practice: Coercion of Mitzvos

There is room to question the practicability of coercion in mitzvos. Surely, giving sweeping
permission to individuals to coerce others to perform mitzvos is an invitation to social chaos, in
which anybody can assume the mantle of religious policeman. Would this not lead to unjustified
violence? Even men of truth and justice make mistakes. How can law enforcement, in terms
of mitzvos, be placed in the hands of every individual? According to Ketzos Hachoshen, as cited
above, this question does not arise, for the individual does not have the right to coerce others
in mitzvos; he can only take action to prevent transgressions.

According to Nesivos HaMishpat, however, which seems to be the simple reading of most
authorities, the question arises in full force. This question is raised by the Yam Shel
Shlomoh (Bava Kama 3:9), who writes that only a person who is “important and extraordinary”
has a right to force the performance of mitzvos. Ordinary people do not have the power of coercion
since this would cause a state of chaos and anarchy if each person takes the law into his own hands.
The power of coercion is given only to a dayan or to a central and important figure, worthy of
taking such action.

The Chazon Ish (ibid.), interpreting the verse (Devarim 5:26). “Would that their hearts should
always fear Me,” writes that Hashem’s intention is that the righteous of each generation should
strive to draw the Jewish nation closer to His Divine service. However, although the ordinary Jew
does not have the power to force others to fulfill mitzvos, the Chazon Ish explains that he certainly
has the right to pray for the spiritual growth and repentance of others. The Divine assistance that
is given for repentance does not clash with the principle of free will, for it is achieved through
prayer of another human being, and is therefore not detached from collective human free will.

We thus end with our own prayer—that our hearts, and the hearts of all Israel should be drawn
closer to Torah and avodah, fulfilling Hashem’s will wholeheartedly, and leaving no need for
coercion in mitzvah performance.

39
 Beit Din Basics
Rabbi Chaim Jachter writes:

Many otherwise knowledgeable Jews find the contemporary workings of financial litigation in
Beit Din to be obscure and even foreign. In this series we will highlight some basic points about
Beit Din that every Jew should find helpful.

In an effort to enhance comprehension, we will present a fictional case and explain how a Beit Din
could resolve such a situation. In order to make matters simpler, we will forego our usual copious
citations to the sources of the issues we discuss. Many sources for these issues appear in the second
volume of my Gray Matter where commercial litigation in Beit Din is discussed at great length.
We will begin our discussion by presenting seven introductory concepts that are essential for
understanding how Batei Din currently function.

Batei Din, Civil Courts and Attorneys

Halacha forbids us to submit financial disputes to a Nochri court for adjudication. Our financial
disputes with our fellow Jews should be resolved “within the family” and according to the rules of
our tradition. We should emphasize that this is entirely in harmony with civil law, as civil courts
are most pleased with alternative dispute resolution.

40
Civil courts are overburdened and the government is delighted to be relieved of the burden of
resolving our disputes. Indeed, civil courts will most often enforce the decisions of Batei Din. It is
sound civil public policy to encourage such arbitration. However, the civil courts will enforce a
Beit Din ruling only if the Beit Din adhered to the civil rules for arbitration. For example, a civil
court will not enforce a Beit Din ruling if the Beit Din did not permit each litigant to be represented
by a licensed attorney of their choice. For this and other reasons, litigants are often represented in
Beit Din by attorneys, even though the Mishnah and Gemara hardly ever describe the presence of
lawyers in a Beit Din.

It is very much in the interest of Halacha for Batei Din to hew closely to the civil procedures for
arbitration since civil courts are currently the only mechanism for enforcement of Piskei Din (Beit
Din rulings). The Torah speaks of the Mitzvah to appoint “Shofetim V’Shoterim”, judges and
policemen to enforce the rulings of the Dayyanim (rabbinic judges). In a Torah society, the Jewish
government appoints Shoterim to enforce the rulings of the Beit Din. In American society, the civil
courts function as our Shoterim. Those who reside in the United States are most fortunate that the
courts are strongly inclined to enforce properly adjudicated Batei Din arbitrations. This is not the
case in other jurisdictions.

The Role of Civil Law in Beit Din

Three Portals One might be rightfully puzzled at the title of this section – after all, a Beit Din is
supposed to rule in accordance with Halacha. What role could civil law have in Beit Din? There
are, however, three portals through which Halacha potentially incorporates civil law. The first is
that in regards to financial matters, Dina D’malchuta Dina, Halacha obligates us to honor the laws
of the jurisdiction in which we reside. However, there is considerable difference of opinion in
regard to the scope of the applicability of this rule. Moreover, Posekim are most reluctant to
eviscerate Halacha by too liberal an application of Dina D’malchuta Dina. Many Dayyanim are
more comfortable with a different portal, Minhag HaMedinah – the common commercial practice
of a particular locale. The Mishnah and Gemara quite often apply Minhag HaMedinah even when
it is not identical to Halachic practice.

Work hours are a classic example (Halacha expects employees to work from dawn to dusk). The
common commercial practice of fewer working hours, overrides the Halacha. It is important to
note that Dina D’malchuta Dina often determines and creates the Minhag HaMedinah. In fact, the
rules and procedures of the Beth Din of America (available at www.bethdin.org) state that its
Dayyanim will incorporate common commercial practice in their rulings “to the fullest extent
permitted by Jewish Law”.

A contemporary example is building codes. A Beit Din will not, for the most part, adjudicate a
dispute between a homeowner and a building contractor based on the standards for buildings
articulated by the Gemara. Instead compliance with contemporary building codes is the basis, for
the most part, of the decision. Indeed, the parties to a building agreement expect contemporary
building codes to serve as the benchmark for proper fulfillment of their contract. Thus, civil
building codes create a Minhag HaMedinah and are incorporated into the Halacha. A more
controversial portal is the contractual agreement for a Beit Din to adjudicate disputes in accordance
with civil law of a specific jurisdiction as of the day of the contract. The Beth Din of America will,
41
generally speaking, honor such agreements. They reason that Halacha follows Rabi Yehuda who
permits structuring financial affairs in any manner provided that it is honest, consensual and does
not violate ritual law (such as the prohibition of Ribbit, charging interest).

Other Batei Din, however, view such agreements as a violation of the prohibition to adjudicate in
civil court. They reason that Halacha forbids submitting both to the authority of a Nochri court and
to Nochri law. The Beth Din of America, however, argues that one submits to the authority of the
civil law only if the contract calls for the Beit Din to rule in accordance with the civil law as of the
date of the adjudication of the future dispute. Indeed, the prenuptial agreement promoted by the
Rabbinical Council of America and the Beth Din of America (and approved by Rav Ovadia Yosef)
offers the option for couples to submit to the jurisdiction of the Beth Din of America for
adjudication of any financial dispute emerging from divorce, based on civil equitable distribution
laws or community property laws. Of course, the agreement calls for the Beit Din to apply these
civil laws as they apply on the day of the signing of the prenuptial agreement. Considering that
Halacha incorporates some aspects of civil law, it is often desirable to select at least one Dayyan
who is expert in the civil law of the specific matter that is being adjudicated by the Beit Din. Some
of the Dayyanim who serve on the Beth Din of America have a law degree.

Shtar Beirurin/Binding Arbitration Agreement

Batei Din require litigants to sign a Shtar Beirurin/binding arbitration agreement before they will
adjudicate a dispute. Without such consent, the Beit Din might not have Halachic jurisdiction over
the parties and the parties might choose to ignore the Beit Din’s rulings. Moreover, a civil court
will not enforce a ruling unless the parties signed a proper binding arbitration agreement. Batei
Din do not enjoy authority in a country that separates state and religion unless the parties
contractually agree to submit to the jurisdiction of a specific Beit Din to settle a specific dispute.
Indeed, refusal to sign a Shtar Beirurin is regarded by Batei Din as tantamount to refusal to
adjudicate the dispute in Beit Din, and one who acts thusly is held in contempt of rabbinic court
(“Mesareiv L’Din”).

Refusal to sign a Shtar Beirurin/binding arbitration agreement is a strong indication that the party
does not intend to respect and honor the Beit Din ruling if it is not rule in his favor. Since the Shtar
Beirurin/binding arbitration agreement is both a Halachic and civil necessity, it must conform both
to Halacha and to civil law. The Beth Din of America Shtar Beirurin is in English, for example.
The aforementioned RCA/BDA prenuptial agreement is written in English and is independent of
the Ketubah and the Tenaim. The composers of the RCA/BDA prenuptial considered the
dissenting opinion in a classic New York civil court five to four ruling in “Avitzur vs. Avitzur”,
upholding the civil enforceability of the Conservative movement’s prenuptial agreement, which
adds a binding arbitration clause to their “Beit Din” written in Aramaic and incorporated to the
traditional Ketubah. The dissent argued that a civil court is not permitted to enforce a “liturgical
document”. In addition to avoiding the Conservative prenuptial’s Halachic flaws, the Orthodox
prenuptial steers clear of this critique thereby enhancing its likelihood of enforceability in civil
court.

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One Dayyan or Three Dayanim

The first Mishnah of Masechet Sanhedrin teaches that a Beit Din of three is required for
adjudication of commercial disputes. However, Halacha permits parties to choose one Dayan to
judge their dispute. As we mentioned earlier, Halacha grants us great flexibility in regard to
financial matters. The advantages to choosing one judge is that the matter can be resolved more
quickly since time is not needed for the judges to agree upon a ruling. Moreover, the expense of
paying more than one Dayyan is avoided. The advantage of a Beit Din of three Dayanim is that
there will be much more grappling with the issues involved. Most likely, a better decision will be
reached since more perspectives are involved at arriving at a decision. Pirkei Avot specifically
advises rabbis to refrain from resolving monetary disputes alone without the benefit of two
additional Dayyanim. It is especially recommended to use a Beit Din of three Dayanim if the matter
is under serious dispute and emotions are running high. In such cases, creating/restoring peaceful
relationships is a major goal of a Din Torah (Beit Din litigation). There is much greater chance of
achieving Shalom there three Dayyanim decide a case. The losing party is much more likely to
reconcile himself to a decision of three experts rather than only one. A rational individual who is
convinced of his stance in a dispute will relent when three respected figures believe otherwise.

Beit Din Kavua vs. Zabla

Halacha offers two basic options of choosing a Beit Din to adjudicate a dispute. One is a sitting
Beit Din (Beit Din Kavua) and the other is a Zabla Beit Din in which each litigant chooses a Dayan
and then the two Dayanim choose a third Dayan. There are advantages and disadvantages to each
type of Beit Din. Some prefer a Zabla because the parties exercise some control over the choice of
Dayanim. Customarily, the two Dayyanim chosen by the parties ascertain that the third Dayan
(Shalish) is acceptable to both litigants. A disadvantage of this type of Beit Din is that sometimes
the Dayanim chosen are not compatible and do not work well together. While each Dayan may be
excellent in his own right, the combination might not work well. Another disadvantage is that a
Zabla Beit Din will, generally speaking, will be more expensive since the Dayyanim serve not only
as the judges but also administrators of the case. Since the Dayyanim must invest more time, their
fees are higher. Visit www.bethdin.org for a list of fees charged by the Beth Din of America, a
Beit Din Kavua. Another advantage of using a Beit Din Kavua is that many Batei Din, such as the
Beth Din of America and the State of Israel rabbinic courts, have published formal rules and
procedures for the Dinei Torah that they adjudicate. An ad hoc Zabla Beit Din does not such rules
and procedures which specifies the rules the Dayyanim will follow. A solution to this problem,
however, is to denote in the Shtar Beirurin/binding arbitration agreement that the Zabla Beit Din
will be following the rules and procedures of a specific Beit Din.

Choice of Law – Din, Pesharah and Pesharah Kerovah L’Din

As surprising as it sounds, there is a choice of law in Beit Din. While every Beit Din judges based
on Jewish Law, Halacha offers three options regarding the methodology of decision making to be
employed by the Beit Din. One option is Din, the strict application of the Halacha. Another is
Pesharah, which can mean either compromise or equity (Batei Din vary in their understanding of
the term Pesharah). The third option is Pesharah Kerovah L’Din which is a blend of Din and
43
Pesharah. While the Beth Din of America used to offer the choice of pure Din in their rules and
procedures, in recent years it offers only either Pesharah or Pesharah Kerovah L’Din. Both the
Gemara and the Shulchan Aruch strongly discourage applying strict Din in practice. In fact, many
Batei Din today regard a litigant who insists on a Din judgment as a Mesareiv L’Din, in contempt
of rabbinic court. Such is the extent of the avoidance of conducting a Din Torah (Beit Din
litigation) in accordance with Din. The preferred method is Pesharah Kerovah L’Din since
Pesharah often appears to be arbitrary. Indeed, Batei Din will apply Pesharah only if the parties
specifically request a pure Pesharah. Pesharah Kerovah L’din is the preferred method of conflict
resolution since on the one hand it hews for the most part to the rules set forth in the Shulchan
Aruch, but it nonetheless offers some flexibility to consider equity and fairness in decision making.
One would think that a plaintiff would prefer Din since this would allow collection of all he is
owed without compromise. However, a plaintiff might prefer Pesharah since the rules of evidence
are somewhat relaxed in such case and therefore it may be easier for him to prove his case to the
Beit Din.

In addition, some Batei Din will not excuse Gerama (indirect damage) if ruling in accordance with
Pesharah unlike pure Halacha which does not obligate one to pay for damage done indirectly.
Thus, there are both potential advantages and disadvantages to both plaintiff and defendant in
regard to choosing either Din, Pesharah or Pesharah Kerovah L’Din. The choice of Din, Pesharah
and Pesharah Kerovah L’Din is spelled out in the Shtar Beirurin/binding arbitration agreement
signed by the litigants appearing before Beit Din. Litigants should also ask the written clarification
for their understanding and application of Pesharah (is it compromise or equity) and Pesharah
Kerovah L’Din (is it inclined more to Pesharah or to Din). The Beth Din of America explains their
standards regarding Pesharah and Pesharah Kerovah L’Din in their rules and procedures, available
at www.bethdin.org. We should clarify that Pesharah is not an extra-Halachic consideration.
Rather it is an integral component of Halacha since the Torah commands us (Devarim 6:18)
“V’asita Hayashar V’Hatov B’eini Hashem Elokecha”, to do the right and the good in the eyes
of Hashem. Rashi explains that this refer to the idea of Pesharah. Thus, when Dayyanim apply
Pesharah Kerovah L’Din or Pesharah they are acting well within their Torah mandate and not
outside the boundaries of Halachic dispute resolution.

Role of your Rabbi

Generally speaking, it is not a good idea for one’s Rav to resolve a monetary dispute. Tensions
often run very high regarding monetary disputes and it is usually preferable for a neutral and
disinterested party or parties to resolve the dispute. Moreover, a Rav is biased towards his
congregants since he presumably has a deep connection with them, thereby rendering him
disqualified to render an unbiased decision regarding a dispute.

Introduction to the Fictional Case

Before we present our model case we need to introduce three basic Halachic concepts. The first is
Hamotzi Meichaveiro Alav HaRa’ayah, the burden of proof rests upon the plaintiff. Witnesses and
documents are classic forms of evidence. E-mail correspondence today is often used as evidence
in contemporary Batei Din. Thus, if one claims that his friend owes him $24,000 and produces no
evidence to that effect, the Beit Din will not award any compensation to the plaintiff. The second
44
concept is Shevu’at Modeh B’Miktzat. In this case, the plaintiff makes a claim and the defendant
admits to part of the claim. Admission is the strongest form of evidence as Hazal teach Hoda’at
Ba’al Din K’Mei’ah Eidim Dami, an admission is the equivalent of a hundred witnesses. However,
if there is no evidence beyond the amount of admission, the Beit Din does not obligate the plaintiff
to pay any more than he has admitted. However, since he has admitted to part of the claim, the
Torah demands an oath from the defendant that he does not owe any more money than that which
he admitted. Thus, for example, if one demands $24,000 from his friend and he admits to $100 of
the claim, the friend is required to pay only $100 since there is no evidence to the amount beyond
that sum. However, he must take an oath that he truly owes no more than $100.

The third concept is called Pidyon Shevuah, the redemption of an oath. As we discussed at length
last year in Kol Torah (archived at www.koltorah.org) the virtually universally accepted among
contemporary Batei Din is to refrain from administering oaths. In a situation where one is obligated
to take one of the three Torah level oaths, Modeh B’miktzat, Shevuat Eid Ehad (where there is one
witness to bolster the plaintiff’s claim) and Shevuat Hashomerim (the oath taken by a watchman
who claims that the item he was guarding was stolen, that he did not take the item) the Beit Din
will impose a Pesharah upon the parties. The Beit Din in issuing such a Pesharah must exercise
good judgment to ensure that a fair and reasonable decision is issued, as we discussed at length
last year.

A Fictional Case

The following dispute was brought to a Beit Din in Northern California in the winter of 2012. Any
resemblance to any individual or event is purely coincidental. A musician hired a website designer
to help sell twelve of his recordings on the internet. The musician engaged the website designer to
perform three tasks – edit the recordings, post them to his website and to add e-commerce
capability to his website. In testimony before the Beit Din, the musician and website designer had
no disagreement about this point. They did, however, sharply disagree about the terms of payment.
Plaintiff (the website designer) claimed he was hired to work for $120 per hour and that he worked
for 200 hours to complete the assigned tasks. Thus, he claimed that he was owed $24,000. The
defendant (the musician) claimed that the agreement was to pay twenty five percent of the proceeds
from the sale of the recordings. Defendant stated that he received a total of $400 for the recordings.
Thus, he claimed that he owed only $100. The terms of payment were not recorded in a document
nor were there any witnesses to testify what the parties agreed to pay.

Our Fictional Case

The following dispute was brought to a Beit Din in Northern California in the winter of 2012. A
musician hired a website designer to help sell twelve of his recordings on the internet. The
musician engaged the website designer to perform three tasks – edit the recordings, post them to
his website and to add e-commerce capability to his website. In testimony before the Beit Din, the
musician and website designer had no disagreement about this point. They did, however, sharply
disagree about the terms of payment. Plaintiff (the website designer) claimed he was hired to work
for $120 per hour and that he worked for 200 hours to complete the assigned tasks. Thus, he
claimed that he was owed $24,000. The defendant (the musician) claimed that the agreement was
to pay twenty five percent of the proceeds from the sale of the recordings. Defendant stated that
45
he received a total of $400 for the recordings. Thus, he claimed that he owed only $100. The terms
of payment were not recorded in a document nor were there any witnesses to testify what the
parties agreed to pay.

Resolution According to Pure Din

If this case were to be resolved according to pure Din, strict Halacha, the Beit Din would obligate
the musician to pay only one hundred dollars. Beit Din would not obligate him to pay any more
money since there is no evidence that he owes anything above this amount. However, Beit Din
would require the musician to take an oath that he owes no more than one hundred dollars (Shevuat
Modeh B’Miktzat). Nonetheless, we noted in our previous issue that pure Din is rarely if ever
applied in contemporary Beit Din.

Resolution According to Pesharah Kerovah L’Din

We also noted last week that Pesharah Kerovah L’Din, a blend of pure Pesharah and Din, is the
preferred method of conflict resolution in Beit Din. In our fictional case, the litigants signed a
Shtar Beirurin/binding arbitration agreement in which they agreed that the Beit Din should
adjudicate their dispute in a manner of Pesharah Kerovah L’Din.

Many Batei Din follow Rav Kook’s recommended course of how to arrive at a ruling in the manner
of Pesharah Kerovah L’Din. The Beit Din first determines how to resolve the matter in accordance
with pure Halacha. Then they consider the equities of the situation. In this situation, the website
designed performed a considerable amount of work for the musician and thus fairness would
dictate that he be paid compensated than a hundred dollars for his efforts. We reemphasize that
which we noted last week, that when Dayyanim apply Pesharah Kerovah L’Din or Pesharah they
are acting well within their Torah mandate and not outside the boundaries of Halachic dispute
resolution. In this case a Beit Din could apply the Halachic manner of resolving of a somewhat
similar, albeit not identical, situation.

The Shach (Hoshen Mishpat 333:44) and Ketzot Hahoshen (331:3) address a situation in which
one hired a professional to perform a task related to his profession but did not specify the wages.
Halacha assumes that professionals do not work for free unless they explicitly state that they are
doing so and thus in the usual situation the professional must be compensated. However, since a
wage was not specified the Shach and Ketzot rule that the employer pays only the lowest amount
paid for such work in the locale in which it was performed. We cannot assume that the employer
would have hired someone to work for the lowest amount paid in his area. We must stress that the
Shach and Ketzot’s case is not identical to the fictional case we are presenting. In our case the
parties specified a wage but disagree as to what was agreed to. Nonetheless, a Beit Din could apply
this somewhat analogous case, since when there is a dispute as to the agreed wage, it is as if no
wage was agreed upon. Moreover, compensating the musician in accordance with the lowest
amount paid for such work in his area is far more equitable than giving him only a hundred dollars
for his time, efforts and talent.

A Beit Din would have to consider in such a case as to what is the “locale” in such a situation.
Such work could have been farmed out to anywhere in the world. For example, the musician could
46
have hired people in parts of the world such as India, where they receive far lower wages than
what is paid in the United States for performance of such tasks. A Beit Din would have to decide
whether the payment should be the minimum paid for such work in Northern California or
anywhere in the world. A Beit Din would rule that the wage is determined by the lowest fee
charged in Northern California since it is clear that musician was interested in hiring someone who
resides locally and not someone who lives on the other side of the globe. There are distinct
advantages to working with someone who lives nearby and it is obvious that the musician was
interested in these advantages since he in fact hired someone who lives close to him. The Beit Din
in our fictional case consulted with no less than five experts and each reported that five thousand
dollars was the minimal amount paid for such work in Northern California.

Thus the Beit Din obligated the musician to pay five thousand dollars in accordance with a blend
of Pesharah and Din. In addition, the Shevuat Modeh B’miktzat which he is obligated to take
according to strict Din, is redeemed in a reasonable and fair manner in accordance with the
contemporary Beit Din practice of Pidyon Shevuah (discussed last week). Interestingly, in our
fictional situation, the musician insisted on taking a Shevuah (oath) to bolster his claim and excuse
him from paying more than one hundred dollars. The Beit Din, however, declined to administer a
Shevuah in accordance with contemporary practice.

Resolution According to Pure Pesharah

If the Beit Din were to have decided this issue based on pure Pesharah the Beit Din might have
awarded compensation to the website designer in accordance with the average wage paid in
Northern California. Thus, had the parties agreed to Pesharah the website designer would have
been granted approximately another thousand dollars. Pesharah Kerovah L’Din, however,
demands from the Beit Din to remain near the bounds of Din which calls for paying only the lowest
wage, in a somewhat similar situation.

Lessons to Learn from the Fictional Case

Had the parties to our fictional Din Torah committed their agreement to writing, the dispute would
not have emerged from their interaction. In fact, the Gemara (Bava Metzia 75b) urges loans to be
issued in writing and before witnesses to avoid problems. Interestingly, a veteran Dayan, Rav
Chaim Cohen, once commented that Dinei Torah usually arise amongst people who are not
organized in their affairs and expose themselves ambiguity created by a lack of clarity in their
business dealings. Carefully clarifying the terms of a business interaction greatly reduces the
likelihood of dispute and the need for litigation. Another lesson is that the litigants in our case
should have settled their dispute amongst themselves without resorting to Beit Din resolution. The
parties in our fictional case were fighting bitterly over this matter and each side hired attorneys to
represent them in Beit Din. In addition, a full Beit Din of three Dayyanim was absolutely necessary
in this hotly contested situation. Had the musician offered to give the website designer seven
thousand five hundred dollars and had the website designer agreed to accept payment of even two
thousand five hundred dollars, they would have each saved money considering the costs of their
lawyers and the costs of the Dayyanim.

47
One wonders what psychological forces drive people to pursue litigation even though they will
save money if they compromise. It is possible that the psychological mistake many people make
is that they seek victory rather than fairness. However, this is usually a counterproductive activity
since in most situations it is in both parties interests to settle their differences amongst themselves
without having to pay lawyers and Dayyanim. One should also consider the psychological costs
of the stress and time that is expended in the course of the pursuit of an intense litigation. The
health benefits of settling a dispute should not be dismissed as trivial.

Conclusion

In our fictional case, the plaintiff acted correctly and went to civil court to confirm the Beit Din’s
award. The civil court, seeing the reasoned decision offered by the Beit Din (see our discussion
of this issue in Gray Matter volume three) and recognizing its fairness, upheld the rabbinic court
award. The parties learned their lessons and took care to record their business transactions in
writing and sought to settle any disputes they had without resorting to litigation.

Wait: Art after Kafka

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 Witness 12

Haim Hermann Cohn writes:13

A Witness (Heb. ‫ )ֵﬠד‬is one that has personal knowledge of an event or a fact. The evidence of at
least two witnesses was required for convicting the accused (Num. 35:30; Deut. 17:6; 19:15;
cf. I Kings 21:10, 13). Commercial transactions of importance took place in the presence of
witnesses at the gate of the town (Gen. 23; Ruth 4); when a document was drawn up, it was signed
by witnesses (Jer. 32: 12). The witness of a grave offence, such as enticement to idolatry, was
bound by law to expose the offender; if the penalty for the crime was stoning, the witness was
obliged to throw the first stone (Deut. 13:7ff.; cf. Lev. 24:11; Num. 15:33). False testimony is
banned (Ex. 20:14 [16]; 23:1; Deut. 5:17 [20]; cf. Prov. 6:19; 14:25, et al.). The convicted false
witness bears the penalty that would have been inflicted upon the accused (Deut. 19:16–21; cf.
Sus. 60–62; Jos., Ant. 4:219; Code of Hammurabi, 1–4-Pritchard, Texts, 166).

A curse could be publicly uttered against a witness who withholds testimony (Lev. 5:1; Prov.
29:24; cf. Judg. 17:2). Lasting inanimate objects, such as stones (Gen. 31:48), the moon (Ps.
89:38), or poems can be invoked as witnesses: “Therefore, write down this poem and teach it to
the people of Israel; put it in their mouths, in order that this poem may be my witness against the
people of Israel” (Deut. 31:19; cf. vs 21, 26). The Lord Himself is sometimes called upon as
witness (Gen. 31:50; Mal. 2:14), or as a prosecuting witness (I Sam. 12:5; Jer. 29:23; 49:5; Micah
1:2; Mal. 3:5). By its very existence, Israel is a witness of the fact that God is Redeemer and Lord
of history (Isa. 43:9–10; 44:6–9). There is nothing in biblical law concerning the qualification of
witnesses, but, according to Josephus, the credibility of the witnesses is established by their past
life, while neither women nor slaves were allowed to testify (Jos., Ant. 4:219).

In Jewish Law
Jewish law distinguishes between attesting and testifying witnesses. The former are required to be
present at, and then and there attest, formal legal acts which failing such attestation, are normally
invalid; the latter are required to testify in court, either to an act previously attested by them or to
any fact they have witnessed. The rules on competency (see below) apply to testifying witnesses
only. A document duly attested by at least two attesting witnesses and confirmed by the court (see
Sh. Ar., ḤM 46:7–8) is admitted as evidence and equivalent to oral testimony in civil cases, and
need not be proved by testifying witnesses (Sh. Ar., ḤM 28:12).

The distinction between testifying and attesting witnesses has practical significance also for
purposes of modern Israel law. While the validity of an act governed by Jewish law (e.g., marriage
or divorce) may depend on the competency under Jewish law of the attesting witnesses, which will

12 https://www.jewishvirtuallibrary.org/witness
13 Encyclopaedia Judaica. © 2008

49
have to be determined according to Jewish law, the competency of testifying witnesses, even
concerning acts governed by Jewish law, will always be determined by the law of the court (lex
fori) in which the evidence is taken.

A Witness (Heb. ‫ )ֵﬠד‬is one that has personal knowledge of an event or a fact. The evidence of at
least two witnesses was required for convicting the accused (Num. 35:30; Deut. 17:6; 19:15;
cf. I Kings 21:10, 13). Commercial transactions of importance took place in the presence of
witnesses at the gate of the town (Gen. 23; Ruth 4); when a document was drawn up, it was signed
by witnesses (Jer. 32: 12). The witness of a grave offence, such as enticement to idolatry, was
bound by law to expose the offender; if the penalty for the crime was stoning, the witness was
obliged to throw the first stone (Deut. 13:7ff.; cf. Lev. 24:11; Num. 15:33). False testimony is
banned (Ex. 20:14 [16]; 23:1; Deut. 5:17 [20]; cf. Prov. 6:19; 14:25, et al.). The convicted false
witness bears the penalty that would have been inflicted upon the accused (Deut. 19:16–21; cf.
Sus. 60–62; Jos., Ant. 4:219; Code of Hammurabi, 1–4-Pritchard, Texts, 166).

A Witness (Heb. ‫ )ֵﬠד‬is one that has personal knowledge of an event or a fact. The evidence of at
least two witnesses was required for convicting the accused (Num. 35:30; Deut. 17:6; 19:15;
cf. I Kings 21:10, 13). Commercial transactions of importance took place in the presence of
witnesses at the gate of the town (Gen. 23; Ruth 4); when a document was drawn up, it was signed
by witnesses (Jer. 32: 12). The witness of a grave offence, such as enticement to idolatry, was
bound by law to expose the offender; if the penalty for the crime was stoning, the witness was
obliged to throw the first stone (Deut. 13:7ff.; cf. Lev. 24:11; Num. 15:33). False testimony is
banned (Ex. 20:14 [16]; 23:1; Deut. 5:17 [20]; cf. Prov. 6:19; 14:25, et al.). The convicted false
witness bears the penalty that would have been inflicted upon the accused (Deut. 19:16–21; cf.
Sus. 60–62; Jos., Ant. 4:219; Code of Hammurabi, 1–4-Pritchard, Texts, 166).

THE TWO-WITNESSES RULE

As a general rule, no single witness alone is competent to attest or testify: there must always be at
least two (Deut. 19:15; Sif. Deut. 188; Sot. 2b; Sanh. 30a; Yad, Edut 5:1). The following are some
of several exceptions to the general rule: whenever two testifying witnesses would be sufficient to
prove a claim, one is sufficient to require the defendant to take an *oath that the claim is unfounded
(Shev. 40a; Ket. 87b; BM 3b–4a; Yad, To’en 1:1); thus, in the case of widow claiming on
her ketubbah or the holder of a bill claiming on it, where a single witness has testified that the
claim had already been settled, the interested party will be required to take the oath before being
allowed to recover (Ket. 9:7; Sh. Ar., ḤM 84:5). Conversely, a party who has partly admitted a
claim will be excused from taking the oath if he is corroborated by at least a single witness
(Rema ḤM 87:6; Beit Yosef ḤM 75 n. 3); and the testimony of a single depositary who still held
the deposit was considered sufficient to prove which of the rival claims to a deposit was valid (Git.
64a; Sh. Ar., ḤM 56:1). A woman is allowed to remarry on the testimony of a single witness that
her husband is dead (Yev. 16:7; Eduy. 6:1, 8:5; Ber. 27a; Ket. 22b–23a); and the testimony of a
single witness is normally sufficient in matters of ritual (Git. 2b–3a; Yad, Edut 11:7). In criminal
cases, both witnesses must have witnessed the whole event together (cf. Mak. 1:9), but in civil
cases, testimonies of various witnesses to particular facts, as well as a witness and a document,
may be combined to satisfy the two-witnesses rule (Sh. Ar., ḤM 30:6).
50
COMPETENCY
Maimonides lists ten classes of persons who are not competent to attest or testify, namely: women,
slaves, minors, lunatics, the deaf, the blind, the wicked, the contemptible, relatives, and the
interested parties (Yad, Edut 9:1).

(1) Women

By the method of gezerah shavah (see Interpretation ), it is derived from Scripture that only men can
be competent witnesses. Maimonides gives as the reason for the disqualification of women the fact
that the bible uses the masculine form when speaking of witnesses (Sif. Deut. 190; Shev. 30a; Sh.
Ar., ḤM 35:14; Yad, Edut 9:2), but Joseph Caro questioned the validity of this derivation in view
of the fact that “the whole Torah always uses the masculine form” (Kesef Mishneh to Yad, Edut
9:2). Another reason was suggested in the Talmud: that the place of a woman was in her home and
not in court (Shev. 30a; cf. Git. 46a), as the honor of the king’s daughter was within the house (Ps.
45:14. It is perhaps noteworthy that the Tur (ḤM 35) omits women from the list of incompetent
witnesses).

Women are admitted as competent witnesses in matters within their particular knowledge, for
example, on customs or events in places frequented only by women (Rema ḤM 35:14; Darkhei
Moshe ḤM 35, n. 3; Beit Yosef, ibid., n. 15; Terumat ha-Deshen Resp. no. 353); in matters of their
own and other women’s purity (Ket. 72a; Ket 2:6); for purposes of identification, especially of
other women (Yev. 39b); or in matters outside the realm of strict law (BK 114b). In post-talmudic
times, the evidence of women was often admitted where there were no other witnesses available
(cf. e.g., Resp. Maharam of Rothenburg, ed. Prague, no. 920; Resp. Maharik no. 179), or in matters
not considered important enough to bother male witnesses (Resp. Maharik no. 190; Sefer Kol
Bo no. 116). In Israel, the disqualification of women as witnesses was abolished by the Equality
of Women’s Rights Act, 5711 – 1951.

(2) Slaves

Witnesses must be free Jewish citizens (Benei Ḥorin u-Venei Berit; BK 1:3), excluding both slaves
and non-Jews (BK 15a; Yad, Edut 9:4; Sh. Ar., ḤM 34:19). The evidence of non-Jews is admitted
if secular law so requires (Maggid Mishneh, Malveh 27:1), as well as to attest or identify
documents made in non-Jewish courts, or whenever the court sees no reason to doubt their
objectivity (Tashbeẓ 1:78; Beit Yosef ḤM 34, n. 22; Baḥ ḤM 34:32; Keẓot ha-Ḥoshen 68, n. 1;
Tos. to Git. 9b).

(3) Minors

A person is incompetent as a witness until he reaches the age of 13. Between the ages of 13 and
20, he is competent as a witness with regard to movable property, but in respect of immovable
property he is competent only if he is found to have the necessary understanding and experience
51
(BB 155b; Yad, Edut. 9:8; Sh. Ar., ḤM 35:3). From the age of 20, all disqualification by reason
of age is removed.

(4) Lunatics

In this category are included not only insane persons (for definitions see *Penal Law ), but also
idiots and epileptics (Yad, Edut 9:9–10; Sh. Ar., ḤM 35:8–10).

(5) The Deaf

Both the deaf and the dumb are included in this category. "Despite the fact that their vision may
be excellent and their intelligence perfect, they must testify by word of their mouth, or must hear
the warning which the court administers to them” (see *Practice and Procedure ), and as they
cannot speak or hear, they cannot testify (Yad, Edut 9:11; Sh. Ar., ḤM 35:11).

(6) The Blind

"Despite the fact that they may be able to recognize voices and thus identify people, they are by
Scripture disqualified as witnesses, for it is written, ’whether he hath seen or known’ [Lev. 5:1] –
only one who can see can testify” (Yad, Edut 9:12; Sh. Ar., ḤM 35:12).

(7) The Wicked

According to the Bible, “the wicked” or “the guilty” are unjust witnesses (Ex. 23:1), therefore they
are a priori disqualified. They may be divided into five groups: criminals, swindlers, perjurers,
illiterates, and informers. “Wicked” or “guilty” are epithets attributed to persons who have
committed capital offenses (Num. 35:31) or who are liable to be flogged (Deut. 25:2), hence these
are incompetent witnesses (Yad, Edut 10:2; Sh. Ar., ḤM 34:2). A person who has committed any
other offense or who is liable to any other punishment is also deemed incompetent as a witness,
although not in the Bible (Rema ḤM 34:2). Into the category of swindlers fall thieves and robbers
(Sh. Ar., ḤM 34:7); usurers (ibid., 34:10); tricksters, gamblers, and gamesters (Sanh. 3:3; Sh.
Ar., ḤM 34:16), as well as idlers and vagabonds who are suspected of spending their leisure in
criminal activities (Yad, Edut 10:4; Sh. Ar., ḤM 34:16).

Tax collectors who do not work for a fixed salary, but receive as remuneration a portion of the
moneys collected, are suspected of appropriating more than is due to them, and therefore are
incompetent witnesses (Yad, loc. cit.; Sh. Ar., ḤM 34:14); another reason for their disqualification
was said to be that they were suspected of undue preferences and discriminations in assessing tax
liabilities (Rema ḤM 34:14). Once a witness was found guilty of perjury, he would no longer be a
competent witness, even after he had made good any damage caused by his false testimony (Sanh.
27a; Yad, loc. cit. Sh. Ar., ḤM 34:8).

A man who has no inkling of Bible and Mishnah, nor of civilized standards of conduct (derekh
erez), is presumed to be idle and disorderly (Kid. 1:10) and therefore incompetent as a witness
(Kid. 40b; Yad, Edut 11:1; Sh. Ar., ḤM 34:17). This presumption is rebuttable by evidence that,
52
notwithstanding the man’s illiteracy, his conduct is irreproachable (Yad, Edut 11:2–4; Sh. Ar., loc.
cit.). A fortiori, agnostics (eppikoresim) and heretics, including those who transgress law or ritual
from conviction or malice, are wholly and irrevocably disqualified (Yad, Edut 11:10; Sh.
Ar., ḤM 34:22). Though not technically transgressors of the law, *informers are considered worse
than criminals and hence incompetent (Yad, loc. cit.; Sh. Ar., loc. cit.).

(8) The Contemptible

It is presumed that people who do not conform to the conventions of society, for example, by
eating in the streets (Kid. 40b), or walking around naked while working (BK 86b), or accepting
alms from non-Jews in public (Sanh. 26b), would not shrink from perjuring themselves, and
therefore are incompetent witnesses (Yad, Edut 11:5; Sh. Ar., ḤM 34:18).

(9) Relatives

The biblical injunction that parents shall not be put to death “for” their children, nor children “for”
their parents (Deut. 24:16), was interpreted as prohibiting the testimony of parents against children
and of children against parents (Sif. Deut. 280; Sanh. 27b), and served as the source for the
disqualification of relatives in general (Yad, Edut 13:1). The Mishnah lists as disqualified
relatives: father, brother, uncle, brother-in-law, stepfather, father-in-law, and their sons and sons-
in-law (Sanh. 3:4); the rule was extended to cover nephews and first cousins (Yad, Edut 13:3; Sh.
Ar., ḤM 33:2). Where the relationship is to a woman, the disqualification extends to her husband
(Yad, Edut 13:6; Sh. Ar., ḤM 33:3).

The fact that a disqualified kinsman does not maintain any connection with the party concerned is
irrelevant (Yad, Edut 13:15; Sh. Ar., ḤM 33:10). Witnesses who are related to one another are
incompetent to attest or testify together (Mak. 6a); similarly witnesses related to any of the judges
are incompetent (Sh. Ar., ḤM 33:17). As relatives are incompetent to testify for or against the
party to whom they are related, a fortiori the party himself is incompetent to testify for or against
himself, for “a man is related to himself” (San. 9b–10a; Yev. 25b). But while the incompetency of
the relatives results only in their testimony being inadmissible as evidence, there can be no
“testimony” of a party at all (Piskei ha-Rosh Mak. 13–14; Rosh. Resp. no. 60:1;
Nov. Ramban Mak. 6b; Nov. Ran Sanh. 9b; Resp. Ribash nos. 169 and 195), and everything he
says in court is properly classified as pleading.

(10) The Interested Party

A witness is disqualified where any benefit may accrue to him from his testimony (BB 43a; Yad,
Edut 15:1), as where he has some stake in the outcome of the proceedings (Sh. Ar., ḤM 37:1; Yad,
Edut 15:4). However, the benefit must be present and immediate and not speculative only (Sh.
Ar., ḤM 37:10). The question whether some such direct or indirect benefit may accrue to a witness
is often puzzling: “these things depend on the discretion of the judge and the depth of his
understanding as to what is the gist of the case at issue” (Yad, Edut 16:4; Sh. Ar., ḤM 37:21). It is
a “well-established custom” that where local usages or regulations are in issue townspeople are
competent witnesses, even though they may, as local residents, have some interest in the matter
53
(Rosh, Resp. 5:4; Sh. Ar., ḤM 37:22). The same “custom” would appear to apply to attesting
witnesses who were appointed as such by authority (cf. Sh. Ar., ḤM 33:18). In criminal cases,
there is no disqualifying “interest"; thus, the kinsmen of the murdered man are competent witnesses
against the murderer, those of the assaulted against the assailant, and the victim of an offense
against the accused (Rema ḤM 33:16; Siftei Kohen ḤM 33 n. 16).

DISQUALIFICATION

No witness may say that he is (or was) wicked so as to disqualify himself from attesting or
testifying (Sanh. 9b; Yad, Edut 12:2; Sh. Ar., ḤM 34:25). A party who wishes to disqualify
witnesses of the other party has to prove their incompetency by the evidence of at least two other
competent witnesses (Sanh. 3:1; Yad, Edut 12:1; Sh. Ar. ḤM 34:25). Disqualification as a witness
is not regarded as a penalty, and hence no previous warning is required; but in cases of improper
or contemptible conduct and minor transgressions, it has been suggested that a person should not
be disqualified as a witness unless previously warned that this would happen if he persisted in his
conduct (Yad, loc. cit.; Sh. Ar., ḤM 34:24).

Where a witness attested an act or a document, he cannot testify that he was incompetent to do so
(Ket. 18b & 19b; Yad, Edut 3:7; Sh. Ar., ḤM 46:37). It might be otherwise if his signature could
be identified only by his own testimony: if he could be heard to deny his signature, he ought also
to be heard to say that his signature was worthless (Ket. 2:3; Sh. Ar., ḤM loc. cit.) – always
provided he did not incriminate himself.

Where the court has reason to suspect that a person offered as a witness is incompetent, it may
decline to admit his testimony (Rema ḤM 34:25; Yad, To’en 2:3), and ought to turn him down as
an attesting witness (Sh. Ar., ḤM 92:5 and Siftei Kohen ad loc.). Where a witness has given
evidence, and it subsequently transpires that he was incompetent, his evidence will be regarded as
wrongly admitted and the case be reopened only if the incompetence was derived from Scripture
or had been announced by public proclamation (Sanh. 26b; Yad, Edut 11:6; Sh. Ar., ḤM 34:23).
A person called to attest or testify together with another person whom he knows to be incompetent
as a witness must decline to attest or testify, even though the incompetence of the other is not yet
known or proven to the court (Yad, Edut 10:1; Sh. Ar., ḤM 34:1).

The rationale of this rule appears to be that since the incompetence of any one witness invalidates
the evidence of the whole group of witnesses to which he belongs (Mak. 1:8; Yad, Edut 5:3; Sh.
Ar., ḤM 36:1), if the first man attested or testified notwithstanding the other’s incompetence, the
evidence would be nullified (cf. Siftei Kohen ḤM 34, n. 3). In civil cases, parties may stipulate
that, notwithstanding any incompetence, the evidence of witnesses named shall be accepted and
acted upon by the court (Sanh. 3:2; Yad, Sanhedrin 7:2; Sh. Ar., ḤM 22:1).

Disqualification no longer holds: in the case of criminals, after their punishment is completed
(Yad, Edut 12:4; Sh. Ar., ḤM 34:29); in the case of wicked persons not liable to punishment, when
it is proved to the satisfaction of the court that they have repented and that their conduct is now
irreproachable (ibid.) – there are detailed provisions as to what acts constitute sufficient proof
54
of repentance (Yad, Edut 12:5–10; Sh. Ar., ḤM 34:29–35); and in the case of relatives, after the
relationship or affinity has come to an end (Yad, Edut 14:1; Sh. Ar., ḤM 33:12).

REMUNERATION

As a financial interest in the testimony disqualifies the witness, the stipulation or acceptance of
remuneration for testifying invalidates the evidence (Bek. 4:6). However, where the witness has
returned the fee he received before testifying, his evidence is admissible; the acceptance of
remuneration in itself is not a cause of incompetence, but is visited with the sanction of invalidating
the evidence as a deterrent only (Rema ḤM 34:18). The rule prohibiting remuneration is confined
to testifying witnesses only; attesting witnesses may always be remunerated (ibid.) and there are
express provisions for the remuneration of witnesses attesting divorces (Sh. Ar., EH 130:21). A
man suspected of accepting money for giving evidence is not a credible witness and should never
be believed (Tosef. Bek. 3:8). A man who hires false witnesses to testify for him is answerable
to Heaven, though not himself criminally responsible.14

DUTY TO TESTIFY

Any person able to testify as one who has seen or learned of the matter who does not come forward
to testify is liable to punishment (Lev. 5:1), but the punishment will be meted out to him by God
only (see *Divine Punishment ; BK 55b–56a). While in criminal cases the witness is under
obligation to come forward and testify of his own accord, in civil cases the duty to testify arises
only when the man is summoned to do so (Yad, Edut 1:1; Sh. Ar., ḤM 28:1). Kings are exempt
from the duty to testify (Sanh. 2:2; Yad, Edut 11:9) and though high priests are generally exempt,
they must testify for the king (Yad, Edut 1:3). The duty relates only to matters which the witness
has seen himself, or which he has heard from the mouth of the accused or a party to the action; a
man may not testify to things of which he has no personal knowledge (Rema ḤM 28:1), nor may
he testify on what he has heard other people telling him, however true and trustworthy it may
appear to him (Yad, Edut 17:1,5), and any such testimony is regarded as false (ibid.).

Persons who were ’planted’ and hidden on the premises to overlook a certain act or overhear
certain words are not admitted as witnesses (Yad, Edut 17:3), except in the case of prosecution
against inciters to idolatry (Sanh. 7:10; Sanh. 29a, 67a). A witness whose memory is defective may
be allowed to refresh it by looking at what he had written at the time, or even by listening to the
evidence of other witnesses (Ket. 20b; Yad, Edut 8:2; Sh. Ar., ḤM 28:14; Beit Yosef ḤM 28, n.
13–14), but not by what the party tells him, unless that party is a scholar and not suspected of using
undue influence (Yad, Edut 8:3). Yet the fact that the witness recognizes some contemporary

14
see *Penal Law ; Yad, Edut 17:7; Sh. Ar., ḤM 32:2; Rema ad loc.
55
handwriting as his own does not render the writing admissible in evidence if he does not remember
the facts to which that writing relates (Sh. Ar., ḤM 38:13; cf. Yad, Edut 8:1). There is no
presumption that the passage of time adversely affects any witness’ memory (Sh. Ar., ibid.).

EXAMINATION

The biblical injunction, “thou shalt then inquire and make search and ask diligently” (Deut. 13:15),
was literally interpreted to require testifying witnesses to be subjected to three different kinds of
examination: enquiry (ḥakirah), investigation (derishah), and interrogation (bedikah; Sanh. 40a).
Originally, the rule was held to apply in all cases, both civil and criminal (Sanh. 4:1), but it was
later relaxed to apply in criminal cases only, and possibly in cases of tort, so as not to render the
recovery of debts too cumbersome and thus “shut the doors before borrowers” (Sanh. 3a, 32a; Yev.
122b; Yad, Edut 3:1; Sh. Ar., ḤM 30:1). It is the duty of the court, Maimonides says: “to
interrogate the witnesses and examine them and question them extensively and probe into their
accuracy and refer them back to previous questions so as to make them desist from or change their
testimony if it was in any way faulty; but the court must be very careful lest, by such examination,
’the witness might learn to lie’” (Yad, Edut 1:4 based on Sanh. 32b).

The purpose of the examination is, of course, to find out if the witnesses are truthful and consistent;
even though all potentially untruthful witnesses have already been sifted and excluded by
disqualification, further precautionary rules were deemed necessary to make sure of the witness’
veracity.

Ḥakirah is the examination relating to the time and place at which the event at issue occurred
(Sanh. 5:1; Sanh. 40b). Every examination starts with questions of this kind, which are
indispensable (Nov. Ran. Sanh. 42a). The particular legal importance of this part of the
examination is due to its function as sole cause for allegations of perjury (Yad, Edut 1:5).

Derishah is the examination relating to the substance of the facts at issue: who did it? what did he
do? how did he do it? did you warn him beforehand? etc. (Sanh. 5:1, 40b). Or, in civil cases, how
do you know the defendant is liable to the plaintiff? (Sanh. 3:6). As this line of examination is
likewise indispensable, it is regarded in law as part of the ḥakirah (Yad, Edut 1:4).

Bedikah is a sort of cross-examination relating to accompanying and surrounding circumstances

and not directly touching upon the facts in issue (Yad, Edut 1:6). The more a judge conducts
examinations of this kind the better (Sanh. 5:2), because it leads to the true facts being established
(Deut. 13:15; Sif. Deut. 93, 149; Sanh. 41a). On the other hand, questioning of this kind is
dispensable, and judgment may be given on the testimony of witnesses who have not been so cross-
examined (Nov. Ran Sanh. 40a). The conduct and amount of cross-examinations is at the discretion
of the judges; they ought to insist on it whenever there is the least suspicion of an attempt to
mislead or deceive the court (din merummeh; Shev. 30b–31a; Yad, Sanh. 24:3 and Edut 3:2; Sh.
Ar., ḤM 15:3).

56
Such suspicion may arise, for instance, where several witnesses testify in exactly the same words
– which would not normally happen unless they had learned their testimony by heart (TJ, Sanh.
3:8; Piskei ha-Rosh, Sanh. 3:32; Sh. Ar., ḤM 28:10). In these cases, cross-examination should
concentrate on points on which suspicion arose and not be allowed to spread boundlessly (Nov.
Ran, Sanh. 32b; Ribash, Resp. no. 266; Rema ḤM 15:3). If, notwithstanding all cross-
examination, the witnesses are consistent in their evidence but the judge is not satisfied that they
are telling the truth, he should disqualify himself and let another judge take his place (Shev. 30b–
31a; Sanh. 32b; Yad, Sanh. 24:3; Sh. Ar., ḤM 15:3), or he might even, if satisfied that there had
been an attempt to mislead the court, furnish the innocent party with a certificate in writing to the
effect that no other judge should entertain the suit against him (Rosh, Resp. no. 68:20).

DISPROOF

Where two sets of witnesses contradict each other on a matter material to the issue, i.e., under
either ḥakirah or derishah as distinguished from bedikah (Yad, Edut 2:1), the evidence of either
set is insufficient in law to establish the facts at issue. The reason is that there is no knowing which
of the two groups of witnesses is testifying to the truth and which is lying (Yad, Edut 18:2, 22:1;
Sh. Ar., ḤM 31:1). Where, however, there are inconsistencies or contradictions within the
evidence of one set of witnesses and none within the other, the evidence of the consistent group
will have to be accepted – the other being dismissed as untruthful because inconsistent. After a
fact has been established judicially on the strength of the testimony of two (or more) consistent
witnesses, the findings of fact will not necessarily be affected by contradictory witnesses coming
forward after judgment (TJ, Yev. 15:5), but the court may always reopen a case where fresh
evidence becomes available (see *Practice and Procedure ).

Contradictions on matters not material to the issue will not normally affect the admissibility of the
testimony (Sanh. 41a; Nov. Ran ad loc.), though the court may reject the testimony as unreliable
because of contradictions on immaterial points (Yad, Edut 2:2). It seems that in civil cases,
contradictions must always relate to matters material to the issue in order to warrant their rejection
as insufficient (Sanh. 30b; Yad, Edut 3:2; Sh. Ar., ḤM 30:2). Where one witness positively
testifies to a fact material to the issue, and the other testifies that the fact is unknown to him, the
testimony of the former is deemed to be contradicted; where the fact testified to is not material to
the issue, the ignorance of the second witness does not amount to contradiction (Yad, Edut 2:1).
As there is no knowing whether the contradicting or contradicted evidence is true, neither will be
regarded as perjury. While evidence of perjury must be given in the presence of the perjured
witnesses, evidence contradicting previously given testimony may be given in the absence of the
former witnesses (Ket. 19b–20a; Yad, Edut 18:5).

Where the evidence of witnesses to the effect that a man is “wicked” and hence incompetent to
testify is contradicted by other evidence, even though the first evidence is insufficient in law to
disqualify him, the man will not be admitted as a witness because of the doubts arising on his
credibility (Yad, Edut 12:3); but there is a strong dissent holding that every man is to be presumed
competent until proven otherwise by valid and conclusive evidence (Tos. to Ket. 26b S.V. Anan;
Shitah Mekubbeẓet Ket. 26b).

57
Further Aspects

In contrast to Western legal systems, in which the litigant has the right to testify, Jewish law
distinguishes between litigants and witnesses, and the laws governing the plaintiff and the
defendant are distinct from the laws of testimony. Research has thus far illuminated the foundation
and legal rationale for the distinction between a litigant – who may plead his/her own case but not
testify – and a witness, who testifies for another (Hefetz, Mikkumah shel Edut ba-Mishpat ha-Ivri).
In modern times, jurists have proposed anchoring the principle that “A litigant cannot be a witness”
in the Israeli laws of evidence.15

Certain scholars have attempted to characterize testimony as a special means of proving matters
and deciding a case. The institution of testimony (the set of witnesses) is a quasi-judicial one for
the determination of facts, similar to the jury in Anglo-American law. Qualification for testimony
is determined by competency requirements that are fundamentally similar to those for membership
in the judiciary.16

A person’s classification as a witness and his belonging to a set of witnesses turns on the question
of whether the witnesses’ function is to witness a particular act or to testify in court (this distinction
is largely similar to that between constitutive witnesses, eidei kiyyum, and testifying
witnesses, eidei ra’ayah). Witnesses appearing in court officially receive that status at the stage at
which the court administers the admonishment (Mishnah, Sanh. 3:6; 4:5). However, the criterion
differs regarding witnesses who observe an event for the purposes of attesting to it. One scholar
(Radzyner, Hatra’ah be-Edim u-Teḥilat Edut) suggested that Rabba’s statement in the Talmud,
“Did you come to observe an event or to testify?” refers to a case in which the witnesses were
summoned in advance to witness a certain act (Makk. 6a).

According to this understanding, in all cases in which the witnesses are called upon to attest to an
event, or to sign a document, when a question of their legal competency arises the purpose of their
coming must be ascertained. If a relative or legally incompetent person states that he came to
testify, the contract is disqualified. The first stage in defining the summoned witnesses as a set of
witnesses begins from the moment they intended to attest to the event, and not just to observe it.

TESTIMONY RECORDED IN LEGAL DOCUMENTS (SHETAR)

15
Draft Bill for Amendment to Testimony in Civil Cases, by Dr. S. Ginnosar and Dr. Y. Kister
16
Hefetz, Mikkumah shel Edut; Ettinger, The Role of Witnesses
58
A central rule regarding the validity of signed documents as admissible evidence is the dictum of
Resh Lakish, that “signatures of witnesses to a document are as reliable as if their evidence had
been investigated in the bet din.” The accepted interpretation of this dictum is that this refers to
biblical law, which makes a substantive distinction between attesting to a document and other
forms of testimony (including the affidavit). In most forms of testimony one cannot waive the
requirement that witnesses be interrogated by the court, whereas documents can be accepted as
evidence without the court conducting any enquiry pertaining to the witnesses who signed it. On
the other hand, one of the scholars17 demonstrated that certain 12th-century rishonim (e.g., Maim.,
Edut 3:4; R. Simḥah of Speyer, cited in Mordekhai on Kiddushin, pt. 569–570) had another
conception, whose sources are found as early as the works of the geonim (see Rav Sherira Gaon,
cited in Sefer ha-Terumot, Pt. 13, sec. 1:3), and which is also consistent with the simple meaning
of the talmudic sources. According to this conception, the biblical conditions for the admissibility
of testimony do not distinguish between attesting to a document and other forms of testimony.

Under biblical law all forms of testimony must be given by witnesses in court, thus enabling their
examination and interrogation by the court, in accordance with the talmudic rule. “By biblical law,
both monetary and capital cases require inquiry and investigation” (Sanh. 32a); the admissibility
of written testimony was the result of a rabbinic enactment, “so as not to close the door to
borrowers” (Maim., ibid). Nevertheless, even according to the latter view, written testimony is
valid even under biblical law in cases of ritual matters (issur) and especially regarding a get,
because these as distinct from capital and monetary cases, do not need to be clarified by the court.18

This is likewise the conception evinced by Maimonides’ comments on examination and

interrogation of the testimony that frees a woman from the bonds of aginut, regarding which he
writes that the Sages allowed a woman to remarry on the basis of testimony that the husband had
died, “even on the basis of a written document, and without examination and interrogation.”

The reason for this is that “the Torah insists upon testimony by two witnesses and the other rules
concerning testimony only in those matters, the truth of which cannot be ascertained except out
of the mouths of witnesses and by their testimony, as, for example, when they testify that A has
slain B or has made a loan to B. But in matters that can be ascertained through means other
than the testimony of the particular witness, where he cannot clear himself if he is exposed as a
false witness, as when he has testified that so-and-so is dead, the Torah does not so insist,
because in such cases it is uncommon for a witness to testify to a falsehood” (Yad, Gerushin
13:29).

In explaining this ruling, one of the scholars focused on the basic distinction between matters
requiring a court ruling, such as capital and civil cases, regarding which the stringent rules of
testimony are applied, and ritual matters, including the release of an agunah, in which the matters
permitted or prohibited are applicable by themselves, irrespective of the court ruling.19

17
Sinai, The Geonic and Maimonidean Approach to Testimony Recorded in Legal Documents
18
Maim., Yad, Gerushin 7:24; cf. Sinai’s interpretation, ibid., p. 126
19
Sinai, Investigation of Agunah Witnesses, 360–364
59
THE TWO WITNESS RULE

One of the scholars showed that the rule “by two witnesses shall a matter be established” should
not be regarded as an all-inclusive and rigid rule and that, in fact, the courts rely as a matter of
course on less than two witnesses, as well as on circumstantial evidence.20

In one of the decisions of the Israeli Supreme Court, Justice Silberg relied on the concept that
testimony of one witness is sufficient to compel an oath by the opposing litigant, in support of the
view that testimony of one witness is only considered as contested if it was rejected by opposing
testimony.21

COMPETENCY

In any case of hearing testimony, courts operating on the basis of Jewish law are required to
determine the competency of the witnesses, and in many cases are unable to accept the testimony
of incompetent witnesses. Nonetheless, one of the foremost rabbinical judges, who subsequently
served as chief rabbi of Israel, stressed that

It goes without saying that the bet din is authorized to hear the truth from any person, in any form,
to form an impression. Even where the witnesses are incompetent under halakhic principles, their
testimony may aid them in drawing conclusions based on common sense presumptions (umdana)
or as proof of an objective reality. In many cases, the court is empowered to use its discretion to
rule in reliance on other forms of proof and common sense conclusions, even in the absence of
valid testimony. (Rav A. Bakshi-Doron, “Kabbalat Edim be-Bet ha-Din,” in: Torah she-be-al Peh,
22 (1981), 81–88, 84).

A comprehensive study by Hayyim Hefetz dealt with the status of circumstantial evidence
(Hefetz, Ra’ayot Nesibatiot; on matters of evidence and presumption, see *Evidence ). The
difference between testimony proffered by competent witnesses as opposed to that of incompetent
witnesses has been explained by one scholar (Ettinger, The Role of Witnesses) as being based on a
fundamental distinction between testimony and credibility. This distinction is manifested in the
willingness to accept testimony of incompetent witnesses (such as testimony for an agunah, that
her husband died), even though they are not considered as “witnesses” in the formal sense, though
their testimony is relied upon.

20
H.S. Hefetz, “According to Two Witnesses?: Circumstantial Evidence in the Bet Din in Practice” (Hebrew), Takdim, 2 (1989),
59–84. See also *Evidence
21
CA 88/49 Rosen v. Biali, 5 PD 72, 73, 78–80
60
Women

The Scriptural source for the disqualification of women
disputed. This substantiates the theory forwarded by
disqualification of women as witnesses was an accepted
attempted to establish its biblical source even though it
(Ettinger, Isha Ke-Ed be-Dinei Mamonot, p. 245).
as witnesses is both amorphous and
one scholar, who stated that the
rule among the talmudic sages, who
was not of explicit scriptural origin

One scholar suggested that the historical reason for disqualification of women as witnesses was
based, not on a supposed lack of intelligence, nor on a lack of understanding of the imperative of
telling the truth, but rather because, inasmuch as women are not accustomed to dealings in the
marketplace, they are not used to earning a living or dealing with public affairs. Their lack of
understanding of the ways of the world and the marketplace, a skill acquired by virtue of practical
encounter and dealings with other people, renders them unequipped to understand the actions of
others and hence to testify regarding their actions (S. Albeck, Ha-Ra’ayot be-Dinei ha-Talmud,
Ramat Gan, 1987, p. 97).

Both of these positions served to explain the legal, as opposed to the historical, reason for a
woman’s disqualification as a witness: is it owing to her lack of reliability (for she is liable to
withdraw her testimony “having been tempted or out of fear"; see Tosefta Ket. 3:3, ed. Lieberman;
Maim., Yad, Gerushin 13.29); or is the disqualification a “scriptural edict” (gezerat ha-katuv), and
not based upon unreliability (Resp. Rashba, attributed to Naḥmanides, no. 128). The practical
difference between the two approaches is crucial, as demonstrated by one of the scholars
(Ettinger, ibid., 249–50). If the disqualification is substantively based on the woman’s lack of
reliability, there could at least theoretically be a change in the law. Such a change would be affected
by way of interpretation, assuming that the factual-social reality had changed, to the extent of
eliminating any presumption of a difference of any nature between men and woman in terms of
their reliability for testimony. On the other hand, if the disqualification is a formal one, the
tendency would be to limit the scope of the prohibition, and to waive it under certain
circumstances, in the same way as when the law is altered directly by force of an enactment.

The more lenient approach to acceptance of a woman’s testimony is usually found in

the Ashkenazi tradition, whereas the tendency of Spanish medieval scholars is to totally ban
women as witnesses. It may be presumed that this dispute reflects differences in the status of
women in the two parallel Jewish societies of that time. Scholars of that period have shown that
Jewish women enjoyed a better status in Ashkenazi society than in Sephardi society, and that as
such the Ashkenazi authorities did not hesitate to limit the scope of the prohibition on women as
witnesses (Ettinger, ibid. 255).

Two chief rabbis of Israel commented on the issue of accepting women’s testimony in our times,
as follows: Rav Ouziel argued that a woman was disqualified as a witness because she was liable
to lack precision in her testimony due to her lack of experience in commercial-market affairs.
Based on this reasoning he infers that in all matters with which they are familiar, we may rely on
their testimony, and that the community is therefore empowered to enact regulations to validate a
woman’s testimony in contemporary times (Resp. Mishpatei Uziel, ḤM no. 20). In this context, a
significant step was taken by Rabbi Herzog, as indicated in his decisions given when serving on
61
the Rabbinical Court of Appeals in 1948 (collection of decisions of the Chief Rabbinate, ed. Z.
Warhaftig, 1985, p.11). Rav Herzog states that the rabbinical judge has discretion to evaluate the
testimonies, and if he deems that the witnesses are telling the truth, he is even entitled to accept a
woman’s testimony.
The Wicked

The Talmud discusses the question of how to characterize a “wicked” person who is disqualified
as a witness (Sanh. 27b). According to Rava, only the “wicked who robs” is disqualified – in other
words, a person who transgressed an offense of a monetary nature. According to Abbaye, any
“wicked” person is disqualified. The halakhah was codified in accordance with the latter view.
Their dispute may quite possibly turn on the reason for disqualifying the wicked person for
testimony. According to Abbaye, for whom the disqualification also applies to strictly religious
offenses, its source lies in a Scriptural edict. Rava, however, who limits the disqualification to the
financially wicked, apparently sees its source as being the unreliability of the witness who is a
criminal (this interpretation is suggested by Nimmukei Yosef on Rif, ad loc. 5b of the
Rif, S.V. itmar). From Maimonides Mishnah Commentary, in Sanhedrin 3:3, one scholar22
inferred that a distinction must be made between one who violates prohibitions concerning
monetary matters (ḥamsan), and one who transgresses non-monetary offences.

With respect to the latter the prohibition derives from a Scriptural edict, whereas for the former
there is a substantive rational reason – namely, the fear of perjury. A similar approach is taken
by Keẓot ha-Ḥoshen, 52:1). This is also the approach evidenced in the comments of Justice H.
Cohn regarding suspected tax evaders, of whom he writes that “This renders them suspect of
perjury, for just as they do not recoil from obfuscations and lies in order to evade tax [or another
kind of breach of the law], they will similarly not shy away from obfuscation and lies in order to
win their case. This is the obvious rationale of the Torah in its disqualification of wicked persons
as witnesses, inter alia ’those who take money that is not theirs’ (in the language of
Maimonides, Edut 10.4)”.23

It is suggested in the research literature that one view the disqualification of the wicked – even if
they had not committed monetary offenses – as part of the overall approach of the Torah, and not
just as a specific “Scriptural edict” (Sinai, ibid., 298). There are numerous commandments in the
Torah in respect of which the “wicked” are not considered as belonging to the community of Israel
(Yad, Gezelah va-Avedah 11:2; Mamrim 5:12; Evel 1:10; Edut 11:1). On this basis, we may
reasonably surmise that, with respect to testimony, the biblical innovation was that all wicked
persons are disqualified for testimony, and as such they are subsumed within the general system
of witnesses who are excluded from the Community of Israel. Conceivably, one could add that
proffering testimony is regarded as a religious duty, in which not all can partake.

The reason for disqualifying the wicked for testimony has important legal ramifications in our
times, regarding the issue of the competence of witnesses who are not religiously observant. In a
1948 judgment, Chief Rabbi Herzog wrote (Collection of Decisions of the Chief Rabbinate, ed. Z.
Warhaftig, 1985, p. 137) that the offender’s disqualification is rooted in his unreliability only, for
22
Sinai, Be’ur Shitat ha-Rambam be-Inyan Kashrutam shel Resha’im le-Edut
23
CA 41/75 Nili v Shlomi, 30 (2) PD 3, 6–7
62
which reason “one must have taken into consideration that in a time… and place where… non-
observance is widespread… this kind of offense will not necessarily impugn the reliability of the
witnesses.” Consequently, in his view, “If it is clear to the Court that this person [i.e., who does
not live a traditional religious life] is not likely to perjure himself for personal benefit, then he may
be accepted as a valid witness."

Another legal ramification of the rationale for disqualifying the wicked for testimony that emerges
from Maimonides’ Mishnah Commentary (ibid.) relates to the possibility of the wicked person
regaining the status of competent witnesses. As indicated by one of the scholars (Sinai, ibid., 300–
308), Maimonides’ view is that, with respect to those who committed monetary offenses, their
return to the status of legitimate witnesses is contingent upon their allaying our fears that they may
perjure themselves for monetary gain. Accordingly, they must abandon “the path of the sinners,”
and their repentance must be unequivocal. The criterion for such repentance is that they be placed
in a situation that invites the commission of the offense that they were accustomed to committing,
yet despite having the opportunity of committing the offense, they desisted. This would constitute
irrefutable proof of the sincerity of their repentance, that they had freed themselves of their lust
for money, and thus we need no longer fear their return to the path of sin. Nonetheless, the recovery
of their status as competent witnesses may still be contingent upon the particular circumstances
and nature of the crime (Yad, Edut 12).

Persons guilty of non-monetary transgressions only regain competence as witnesses after receiving
the punishment of flagellation (Yad, Edut 12.4). The reason, as indicated in Maimonides’ Mishnah
Commentary (ibid.), is that those subject to flagellation return to competence even without
repentance, because their initial disqualification is not rooted in the fear that they will lie, but
derives rather from the Scriptural edict: “Put not thy hand with the wicked to be an unrighteous
witness.” Hence, having received lashes, they are once again regarded as “thy brother” and regain
their competence, even in the absence of repentance (Sinai, ibid., 309–310).

Incidentally, in one of the judgments of the Israeli Supreme Court, Deputy President Menachem
Elon wrote that “based on the overarching principle of ’after receiving lashes – he is like your
brother’ (Mishnah, Makkot 3:15), Jewish law prescribed a series of rules intended to rehabilitate
the criminal who served his sentence, and thus preserve his rights as a human being, as your brother
and as your neighbor” (ALA 18/84 Karmi v. State Prosecutor, 44 (1) PD 353, 375), and also
receives expression in the Crime Register and Rehabilitation of Offenders Law, 1981, which is
based on the principles of Jewish law (see judgment, ibid; Elon, Ha-Mishpat ha-Ivri, pp. 1434–
1435)
In another Supreme Court judgment, Justice Silberg alluded to the concept taken from Jewish law
in responsa of the aḥaronim: to wit, that a person disqualified as a witness due to the offense
committed as a result of and in connection with his testimony, is only disqualified after completing
his testimony. (CA 238/53 Cohen v. Attorney General, 4 PD 4, 30–31).

The Interested Party

63
A fascinating question that arose in modern times relates to the status in Jewish law of a witness
who turns state’s evidence (i.e., one offered immunity from punishment for his own crimes in
return for testifying against another criminal). The various problems posed by a conviction resting
on the testimony of a person who turned state’s evidence is a classic example of the “interested
party” and of one who “receives benefit for testifying.” All of these issues are dealt with in a
comprehensive study (E. Shochetman, Eduto shel Ed Medinah le-Or ha-Mishpat ha-Ivri). In terms
of being “an interested party,” the author argues that such a person should be disqualified as
witness, because the consideration given him for his testimony is given by one party (the
prosecution – District/State attorney), because he is under pressure for his testimony to be
consistent with that given to the police during his preliminary interrogation, and because it must
conform with the prosecutor’s anticipations. Another problem is the granting of immunity against
criminal prosecution in return for giving testimony, which constitutes the granting of benefit to the
witness in return for his testimony. This is in direct contravention of the commandment to give
evidence gratuitously, and under Mishnaic law, such testimony is invalid (Mishnah, Bekhorot,
4:6). The halakhah in this matter is in accordance with the view of Rema (ḤM 34:18). On this
basis, the author concludes that even in terms of the law of “he who receives benefit for testifying,”
the state’s witness should be disqualified. On the other hand, Shochetman suggests that the institute
of “states evidence” might be validated by the enactment of a regulation allowing the court
discretionary power to deviate from regular laws of evidence, in an attempt to provide a halakhic
solution for situations in which an offender whose guilt is clear may still escape punishment
altogether.

DISQUALIFICATION

A comprehensive study concerning the prohibition against self-incrimination in Jewish law was
conducted by A. Kirschenbaum (The Criminal Confession in Jewish Law), some of the main
aspects of which will be discussed below. The talmudic principle that invalidates a person’s
confession to a criminal offense is without parallel in any of other legal system, whether in the
ancient world, in the medieval period, or in modern times. Jewish law determined that no person
could be convicted on the basis of his own confession, both with respect to considering the
confessor as “wicked,” his disqualification as a witness, and with regard to punishment. The author
of the above study distinguished between the theoretical halakhic rule, which totally denies the
admissibility of a criminal confession, and practical halakhah, which was prepared to accept it, as
dictated by the exigencies of the period. However, even when an admission was accepted, the
original halakhah left its imprint, and whenever the exigencies of the period did not compel
deviation from the classical halakhah – i.e., the vast majority of cases – the courts would abide by
the classical position of Jewish law. It should be noted that the Israeli Supreme Court also gave
expression to the classical position of Jewish law (see e.g. Justice Elon, Cr.A. 543/79 Nagar v.
State of Israel, 35 (1) 113). Over the last few years there has been growing support for deviation
from the principle of admitting a confession of an accused. In fact, in one of the judgments, Justice
Dalia Dorner expressed a lone opinion that drew inspiration from Jewish Law, as a system in which
human experience led to the creation of a rule that disqualifies the admission of the accused.24

24
FH 4342/97 State of Israel v. Al-Abid, 51 (1) PD 736, par. 3 of judgment
64
DUTY TO TESTIFY

The religious duty to testify exists even when the witness is not called upon to testify by the
interested party, for conceivably the litigant may not even be aware of the existence of that witness.
In a decision given by the Tel Aviv Rabbinical Court, File 15453/5745, the court ruled that in view
of this halakhic duty, “the claim of immunity is not accepted (i.e., in accordance with Section 90
of the Chamber of Advocates Law, 5721 – 1961), because that claim contradicts the biblical
command ’If he does not utter it, then he shall bear his iniquity’ (Lev 5:1)."

Unlike the accepted rule in many legal systems, under Jewish law there is no automatic swearing
of a witness to tell the truth. However, “Should the court perceive a need dictated by the times, to
impose an oath on them so that they shall say the truth – it may do so” (Rema, ḤM 28:2). The
halakhic position was adopted in Israeli law in the Rules of Evidence Amendment (Warning of
Witnesses and Abolition of Oath) Law, 5740 – 1980, which provides that “Notwithstanding
anything provided in any other law, a witness about to testify in any judicial or quasi-judicial
proceeding shall not be sworn” (Section 1). Nonetheless, the court was conferred discretion to
swear in a witness “Where the court has reason to believe that swearing a witness may assist in
discovering the truth.” However, under those circumstances “the witness may, after stating that he
does so for reasons of religion or conscience, make an affirmation rather than taking an oath, unless
the court is satisfied that he does not invoke those reasons in good faith.” Even where the witness
does not make an oath, the court must warn him that he must tell the whole truth, and nothing but
the truth, and that he will be liable for the penalties prescribed by law if he fails to do so (Section
2). The procedure for warning witnesses is further expanded in *Practice and Procedure .

A highly instructive innovation pertaining to secret monitoring appears in a judgment of Justice

Menachem Elon (FH 9/83 Military Court of Appeals v. Vaknin, 43 (2) PD 837, 857–859), where
it states that “under special circumstances secret monitoring is a mitzvah, as when needed in order
to create evidence in a case of serious criminal activity (incitement and enticement), in which case
’witnesses are hidden behind a partition’ (Mishnah, Sanh. 7:10) and it is permitted in order to
create evidence with respect to any kind of criminality” (see Rabbi Joseph Babad, Minḥat Ḥinukh,
§462). Justice Elon’s comments were cited approvingly by Rav S. Dikhovsky, “Ha’azanat Seter,”
in: Teḥumin, 11 (1990), 299–332, at 302–3.

In another interesting decision of Justice Türkel, a precedential rule was crystallized in a matter
yet to be addressed by Israeli case law. The question concerned a judge giving testimony at the
witness stand (LCA 3202/03 State of Israel v. Yosef), 58 (3) PD 541, at par.10 of judgment).
Justice Türkel relied on the sources of Jewish law regarding the retaining of the dignity of
the dayyan, in addition to the sources dealing with the possibility of taking testimony from a
learned scholar in his home, in deference to his revered status (Maim., Yad, Edut 1:2). Justice
Türkel drew an analogy from these sources to the immediate question of the judge as a witness.

65
EXAMINATION

In a court procedure conducted in accordance with Jewish law, the judge is charged with the
examination of witnesses, and in principle the litigants and their attorneys do not have the
possibility of examining the witnesses. (Regarding court’s intervention in the judicial proceedings,
see *Practice and Procedure .) In this context, the Rules of Procedure of the Rabbinical Courts of
Israel establish a new and interesting arrangement. Regulation 89 (Section 1) states that: “The
witness presents the testimony and is then examined by the Bet Din. After that, he can be examined
by the party that summoned him, and then by the opposing party.” The principal examination is
inquisitorial, conducted by the Bet Din itself, and followed by examinations conducted by both
parties (examination in chief, and cross-examination).

Insofar as the examination of witnesses by the litigants is purely for purposes of promoting the Bet
Din’s examination, the Bet Din has broad discretion in the examination of witnesses, and is even
empowered to deviate from this format where circumstances necessitate it. Section 3 of the
aforementioned regulation states “the Bet Din is permitted to ask further questions at all times, and
to allow the litigants or any one of them to do so.” Regulation 90 provides: “The Bet Din is
permitted to disallow any question presented to a witness and to terminate the questioning of a
witness by the litigants, if the Bet Din suspects that the question may mislead or prompt the witness
to lie, or if the Bet Din deems the question superfluous, insulting or intimidating.” A similar
arrangement (to that provided in said Regulation 90) was established by the Israeli legislator in the
Amendment of Procedure (Examination of Witnesses) Law, 5718 – 1957.

In the Israeli Supreme Court, Justice Menachem Elon relied on the procedures for examining
witnesses in Jewish law to indicate the importance of the cross-examination (Cr.A. Hag’ Yichyeh
v. State of Israel, 45 (5) PD 221, 264–265.)

In the vast majority of civil suits and personal status suits, the Bet Din is not required to conduct a
rigorous, punctilious examination of the witnesses, the like of which is mandatory in criminal
cases, and the degree of its intervention (which for the most part did not consist of
professional dayyanim) in the examination of witnesses was minimal. The following alternative
grounds for leniency with regard to procedural strictures relating to competency of
the dayanim and examination of witnesses were invoked by the Sages: “in order not to lock the
door on borrowers” (Sanh. 32b); “in order to lock the door on perpetrators of injustice” (Piskei
Ha-Rosh, to Sanh. 81.1); and “public policy” or “to distance tortfeasors” (Ha-Meiri, in Bet Ha-
Beḥirah on Sanh. 3b, at p. 6 (Ralbag ed.)).

These reasons are applicable both with respect to matters involving financial loss and, in effect, in
most civil matters, as well as in matters concerning personal status. As shown by one of the
scholars (Sinai, The Court’s Intervention in Litigation According to Jewish Law, p. 249), the
position adopted by halakhic authorities was that strict compliance with the two aforementioned
limitations would severely impair the efficiency of the judicial system, precisely concerning those
issues with which the rabbinical courts are frequently engaged on a daily basis.

This position relied inter alia on the explicit talmudic testimony that in regular matters involving
monetary loss, lenience was permitted and matters were heard even before non-professional judges
66
so that suits could be heard by lay judges who were not experts in the secrets of examination and
investigation. This in turn engendered a parallel policy of leniency regarding the extent to which
the dayyanim were involved in the process of examining witnesses, and the abrogation of the
obligation to conduct a punctilious examination and investigation in those fields (i.e., monetary,
personal status). The result was the conducting of an efficient hearing in every-day matters.
Moreover, even in the realm of personal law, the accepted approach is that the Bet Din does not
conduct a rigorous, meticulous examination of the witnesses (Yeb. 122b). A number of
explanations have been offered to explain this tendency: the purpose and role of the witnesses and
of the Bet Din in matters of personal status as distinct from capital and civil matters; or the
tendency towards lenience that characterizes the laws of the agunah; or against the background of
“takkanat ha-lovim” (so that lenders will not be deterred from loaning).25

With regard to reliance on written records, it should be added that in a recent ruling of the District
Court in Jerusalem (CF (Jer) 4177/02 Ashkenazi v. Gandin, (unpublished) par. 6; delivered in
2005) Judge Yosef Shapira accepted the testimony of the defendant-doctor in a medical negligence
suit, to the effect that the plaintiff had never actually visited her clinic. His acceptance of this
testimony was based inter alia on the presumption that had the plaintiff actually visited her clinic,
she would presumably have examined him at the time and recorded his particulars in his patient
card, in view of his being a new patient. This factual determination was based on Jewish law,
which permits reliance on records in booklets or the computer, in accordance with
the halakhah codified in the Shulḥan Arukh (ḤM 91.5).

An interesting example of reliance on the Jewish law regarding examination of witnesses appeared
in a recent decision of District Court Judge Pilpel (CF (TA) 2070/00 Avidan v. Avidan (Tak-Dis
2005 (2), 5676, 5681). The case concerned a suspicion of fraudulent signature on a deed, in the
context of the English legal doctrine of “non-est factum.” In her decision, Judge Pilpel wrote that,
“this subject and the decision thereon were already discussed in ancient times by the
Babylonian geonim” (see Oẓar ha-Geonim le-Ketubbot, 183, pp. 92–93). The geonim were asked
about the validity of a deed when it was known that the witnesses signed thereon were illiterate.
They responded that such a situation is “a total farce” and would sow suspicion in any reasonable
person’s heart, and accordingly the nature of the signature demands examination.26

Regarding fraudulent claims see *Practice and Procedure .

DISPROOF

In one of the first decisions of the Israeli Supreme Court it was ruled (per Justice Simha Assaf) on
the basis of the Talmud (Sanh. 41a) that a distinction must be made between a conflict that involves
the core of a given matter and one regarding trivial conditions. The distinction is explained as

25
Sinai, Ḥakirat Edei Hagannah – Le-Hithavvutan shel Tefisot Mishpatiyyot
26
Dr. Y. Sinai, “The Geonic and Maimonidean Approach to Testimony Recorded in Legal Documents (Shetar)” in: Dinei Israel,
22 (2003), 111
67
follows: “If one of the witnesses was not precise in the details of his testimony, this does not
perjure his entire testimony. It is precisely the perjured witnesses, who have carefully coordinated
their testimonies, who are more able to submit perfect testimony, without any contradictions.
Truthful witnesses, on the other hand, may contradict one another, and even contradict themselves
in unimportant details, especially in those pertaining to peripheral aspects of the event, because
they were not in a relaxed state of mind, and they were shocked by the confusion and pandemonium
that resulted from the event”.27 Justice Assaf’s contention was that contradictory witnesses should
not necessarily be disqualified where the contradiction relates to non-substantive matters. In
another Israeli Supreme Court judgment, he found additional support for this contention in the
words of Rav (TJ Sanh. 4:1, 22a), who when hearing witnesses whose testimony was substantially
similar, to the extent of their using the same words, he suspected them of being false witnesses
who had coordinated their testimony, and he would investigate and examine them. However if
their testimony was not couched in precisely the same wording, each of them describing the event
using different words, then he would only investigate to ensure that their testimony provided a
sufficiently accurate description of the event so as to be relied upon.

Justice Assaf offered a further justification for this rule stating that, “Just as no two prophets
prophesize in the same style, then a fortiori two laymen.28

In another judgment of the Israel Supreme Court, Justice Silberg invoked the principle whereby
“testimony that cannot be refuted is not valid” in an interesting manner, as the basis of the
requirement for corroborating evidence in sexual offenses. Justice Silberg justified the need for
external corroborative evidence in addition to the testimony of the complainant as follows: “Since
the testimony of the complainant is almost always ’testimony that cannot be refuted’ given that it
concerns intimate matters that occurred behind closed doors, where noone can see, and hence there
are no witnesses for the defense who can help the innocent person who is under suspicion”.29

BIBLIOGRAPHY
Z. Frankel, Der gerichtliche Beweis nach mosaisch-talmudischem Rechte (1846); N. Hirsch, in: Jeschurun, 12 (1865/66), 80–88,
109–22, 147–65, 249–58, 382–94 (Germ.); I. Tonelis Handl, Die Zulaessigkeit zur Zeugenaussage und zur Eidesablegung nach
mosaisch-rabbinischem Rechte (1866; Hebr. and Germ.); L. Loew, in: Ben Chananja, 9 (1866), Suppl; repr. in his: Gesammelte
Schriften, 3 (1893), 335–45; M. Bloch, Die Civilprocess-Ordnung nach mosaisch-rabbinischem Rechte (1882), 43–53; I.S.
Zuri, Mishpat ha-Tahmud, 7 (1921), 43–53; Gulak, Yesodei, 2 (1922), 28, 30, 134ff.; 4 (1922), 150–63; idem, Oẓar, 305–11; S.
Kaatz, in: Jeschurun, 15 (1928), 89–98, 179–87 (Germ.); Z. Karl, in: Ha-Mishpat ha-Ivri, 3 (1928), 89–127; A. Gulak, in: Tarbiz,
12 (1940/41), 181–9; Z. Karl, in: Ha-Peraklit, 5 (1948), 81–85; ET, 1 (19513), 88–90, 117–9, 225f.; 2 (1949), 14f., 60, 65, 137,
247, 252f., 300f.; 3 (1951), 160f., 378f.; 5 (1953), 46–51, 337–43, 381–5, 517–22, 528f.; 6 (1954), 199f.; 7 (1956), 290–5, 383–5,
638–64; 8 (1957), 352f., 429–131; 9 (1959), 64–103, 729–46; 11 (1965), 242; A. Weiss, Seder ha-Diyyun (1957), 86–124, 206–
54; J. Cohen, in: Ha-Torah ve-ha-Medinah, 11–13 (1959/62), 517–40; S. Atlas, in: Sefer Yovel… Abraham Weiss (1964), 73–90;
H. Jaeger, in: Recueils de la Société Jean Bodin, 16 (1965), 415–594; Elon, Mafte’aḥ, 206–18; G. Holzer, in: Sinai, 67 (1970), 94–
112. ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri, (1988), 424–34, 497–504, 596–97, 816–18, 1341–42, 1424–34;
idem, Jewish Law: History, Sources, Principles, 397–99, 607–9, 1697–1707; M. Elon, B. Auerbach, D. Hazin, M Sykes, Jewish
Law ("Batei ha-Din"), in: Torah she-be-al Peh, 22 (1981), 81–88; S. Dikhovsky, “Ha’azanat Seter,” in: Teḥumin, 11 (1990), 299–
312; S. Ettinger, “Ishah ke-Ed be-Dinei Mamonot be-Mishpat ha-Ivri,” in: Dinei Yisrael, 20–21 (2000–2001), 241–67; S. Ettinger,
“The Role of Witnesses in Jewish Law,” in: Dinei Yisrael, 22 (5763), 7–37; H.S. Hefetz, “Mekoman shel Raa’yot Nesibatiot ba-
Mishpat ha-Ivri,” in: Mishpatim 1 (1968), 67ff.; idem, “Mekomah shel Edut ba-Mishpat ha-Ivri,” in: Dinei Yisrael, 9 (1978–1980),

27
Cr.A. 3/48 Katz-Cohen v. Attorney General, 2 PD 681, 686–687
28
Resp. Zikhron Yehudah, by R. Judah ben Asher, no. 72)” (Cr.A. Suleiman v. Attorney General, 6 PD 824, 826
29
(Cr.A. Saadia v. Attorney General, 16 PD 1860, 1862Yuval Sinai (2nd ed.)

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51–84; idem, “Al pi Shenei Edim Yakum Davar – Ha-Omnam? Ra’ayot Nesibatiot be-Vet ha-Din – Halakhah Le-Ma’aseh,”
in: Takdim, 2 (1989), 59–84; A. Kirschenbaum, The Criminal Confession in Jewish Law (Heb., 2005); N. Neriah, “Edut shel mi
she-Eino Mekayyem Torah u-Miẓvot,” in: Teḥumin, 13 (1992–1993), 417–21; J.A. Polak, “Some Social and Societal Implications
of Law of Witnesses,” in: Jewish Law Association Studies, 4 (1990), 55–68; A. Radzyner, “Hatra’ah be-Edim u-Teḥilat Edut,”
in: Dinei Yisrael, 20–21 (2000–1), 515–51; E. Shochetman, “Eduto shel Ed Medinah le-Or ha-Mishpat ha-Ivri,” in: Mishpatim, 11
(1981), 139–73; Y. Sinai, “Bi’ur Shitat ha-Rambam be-Inyan Kashrutam shel Resha’im le-Edut,” in: Ma’agal, 12 (1998), 289–
310; idem, “Ḥakirat Edei Agunah – Le-Hithavvutan shel Tefisot Mishpatiyyot,” in: Shenaton ha-Mishpat ha-Ivri, 22 (2001–3),
329–68; idem, “The Geonic and Maimonidean Approach to Testimony Recorded in Legal Documents (Shetar),” in: Dinei
Yisrael, 22 (Heb., 2003), 111–49; idem, The Court’s Intervention in Litigation According to Jewish Law (Heb., 2003), 188–282.

The Law Above the Law: Benjamin and Kafka

Vicente Ordóñez writes:30

1Those who try to critically examine the law and the normative systems that challenge their
symbolic authority may find, by virtue of a dialectical displacement, that it is the law itself that

30 https://journals.openedition.org/trans/3881
69
stands beyond its borders, remaining itself as law: just as there is a point in the curve in which the
sense of its curvature changes, the law has the capacity to turn around, suspend the current legal
order and impose an arbitrary and exceptional metanormative order.

2In the western legal systems of common law this figure is called ‘state of exception’. First of all,
I am going to analyze Walter Benjamin’s concept of ‘state of exception’ from a historical-
philosophical perspective. Why precisely Benjamin? Because Benjamin studies the profound
meaning of ‘state of exception’ in several of his works, although especially in the last essay he was
able to write and complete: the eighteen theses and two fragments contained in On the Concept of
History. Furthermore, in this oracular work Benjamin anticipates topics and problems that are
inextricably linked with topics and problems of our most immediate reality. That is why I will try
to connect his reflections with at least one event that is currently happening: the exceptional
situation that, in normative terms, is lived in the refugee camps.

3Nevertheless, it is in literature and, specifically, in Kafka’s work, where some of the most radical
reflections on the metanormative character of the law can be found. I use the adjective ‘radical’
because in The Process and in The Castle, but also in the short stories "In the Penal Colony", "The
Problem of Our Laws" or "The Great Wall of China", as well as in some passages of his diaries
and reports for the Workers’ Accident Insurance Company for the Kingdom of Bohemia, one
glimpses the root, origin and foundation of that exceptional disposal by which legality goes beyond
its boundaries. To examine, therefore, Kafka’s thinking regarding the rule of law, that self-
replicating organism of customary norms, rules, laws and precepts, codes, provisions, exemptions,
articles or constitutions, will be the second movement of a work in which I propose to critically
think the internal structure of normativity.

1. State of emergency: Walter Benjamin

4Like an underwater cable connecting vast areas that have been temporarily cut off, ‘state of
emergency’ permeates Walter Benjamin’s reflections, from Origin of the German Trauerspiel, a
work submitted in 1925 to the University of Frankfurt in order to get his Habilitation, to the last
of his great texts, On the Concept of History, written shortly before his death on the Franco-
Spanish border in September 1940. These reflections are built upon a fragment of the
aforementioned essay, perhaps the most complete synthesis of his thought. In thesis number VIII
Benjamin writes:

the tradition of the oppressed teaches us that the "state of emergency" in which we live is not
the exception but the rule. We must attain to a conception of history that accords with this
insight. Then we will clearly see that it is our task to bring about a real state of emergency, and
this will improve our position in the struggle against fascism1.

5This paragraph is like a funnel, squeezing the central ideas of Benjamin’s philosophy of history
— a discipline he uses to interpret the present time not as something neutral and objective, but as
the result of a set of forces that tend towards the realization of an uncertain future, catastrophic or
triumphant depending on whether the action of the actors intervening in a particular historical
moment is capable of blowing up the power structures projected by the ruling class.

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6Why did Benjamin state that the tradition of the oppressed warns us that the state of exception is
the rule? Because he thought Europe’s turmoil in the interwar period was perceived to be normal?
Benjamin showed that the state of emergency is all-time winners’ rule — the Reichstag arson
attack and von Hindenburg’s emergency decree to suspend civil liberties and pursue German
communists is the visible tip of an iceberg deeply immersed in the icy waters of history.

7The oppressed or Unterdrückten2, pushed towards the bottomless depths of the abyss, constitute,
like those anonymous multitudes of Juan Genovés, the porous substance that shapes the empty
time of history’s victors. It is they, the oppressed in an absolute sense, defeated again and again by
barbarism and unreason, who live in a state of permanent exception. But who were the winners
when Benjamin writes his theses? First of all, the alliance of the powerful Central European
industry with fascists regimes3. Indeed, the process of technical industrialization, which reaches
its peak with the mass production of corpses in the gas chambers and death camps, not only
preserves property relations, but does so through brute force (die offene Gewalt)4. Second, legal
power: the monopoly of administrated violence (die verwaltetete Gewalt) is in the hands of the
Nobles of the Robe that dominate, master and control outside and beyond the law5.

8This system of legal relations left the oppressed ones orphaned. Why? Because the left, in fighting
fascism from a progressive position, had bitten the bullet: neither social democracy nor state
communism understood that in order to stop the advance of the NSDAP "the lighted fuse must be
cut"6. For Benjamin there was no doubt: fascism is not the atavistic residue of an archaic society
mystified and mythicized, but the last stage of progress. Paradoxically, the ideology of progress is
retro-progressive: the alliance between industry and legal doctrine causes an unparalleled social,
juridical and moral setback. What to do in a situation in which any hint of organization of the
oppressed seemed doomed to failure?

a) Real ‘state of emergency’

9For Benjamin, the most urgent task was a twofold one. In the first place, reality might not be
falsified, that is, the oppressed ones should be aware of the military capacity of fascism. This
would have helped them to understand the problems related to their historical development as a
class. In the second place, thus, the oppressed might know their place in history in order to
recognize the hysteria that dominated everything. This would be the second unavoidable task that
Benjamin proposed as a means to fight in better conditions against "the forces of darkness"7 and
to establish der wirkliche Ausnahmezustand — the real state of emergency —. Now, what are the
differences, if any, between the state of emergency in which the oppressed were stuck in time and
the ‘real’ state of emergency? Is it possible to speak, not of a state, but of states of emergency?

10The concept of ‘state of emergency’ was coined by the Crown Jurist of the Third Reich, Carl
Schmitt, in his work Political Theology (1922): "Souverän ist, wer über den Ausnahmezustand
entscheidet". Many puzzles of Schmitt interpretation, including the so-called "Carl Schmitt
Question"8, take this claim as a starting axiom: sovereign is he or she who decides any kind of
severe economic or political disturbance that requires the application of extraordinary measures.
A state of emergency need not have an existing order as a reference point because the violation of

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a law may be excused by necessity (necessitas non habet legem). Necessity exempts from law and
justify individuals in doing, as a means to obtain their goals, what is forbidden thereby.

11Much of what Schmitt has written about sovereignty is already to be found in Jean Bodin. Bodin
conceived the concept of sovereignty as a supreme, perpetual, and indivisible power, marked by
the ability to make law without the consent of any other9. The sovereign was the sole judge of
divine and natural law; he or she could tax without consent in emergencies; and could decide that
contracts were no longer operative when, in his or her view, a subject had ceased to benefit from
them. In this regard, Schmitt highlighted that the exception reveals the essence of the state’s
authority: "authority proves that to produce law it need not be based on law"10. When Benjamin,
who studied Schmitt’s work in depth11, asserts that the state of emergency is a precept (Regel)
among the oppressed, did he refer to a legal system that, emptied of all legal content, is imposed
on civil society through force? Probably. The Decree of the Reich President for the Protection of
the People and the State, extended indefinitely in the Enabling Act of 1933, represented the
synthesis of that state of exception to which I refer in the first place: civil liberties were suspended
by virtue of an arbitrary law that the sovereign, represented in the person of the chancellor, applied
to his whim. The constitution, therefore, was submitted to a process of normative epoché but, in
order not to lead to pure chaos, an arbitrary legality was implemented to allow the authorities to
act according to the desires of the Führer.

12The ‘real’ state of emergency has a very different meaning. First, the historical subject is not
represented by the sovereign, but by his antagonist. It is, in fact, the oppressed class in struggle
who must rise up in order to subvert status quo. Korsch and Lukács critical sieve is looming in
Benjamin’s Marxist interpretation. For Marx, the time of social revolution was the result of the
conflict between the material productive forces of society and the existing relations of production
within the framework of which they have operated hitherto12. Social conflict includes "the violent
overthrow of the existing order of society by the oppressed class"13. The revolutionary self-
liberation of the working class through its conscious action necessarily entailed a transformation
of the economic-social processes of life. Previously, however, the productive forces might be
aware that in their struggle they fight not only against an external enemy, but above all against the
devastating effects that the capitalist system of production has on their own class consciousness.
That is why the proletariat, says Lukács, "only perfects itself by annihilating and transcending
itself, by creating the classless society through the successful conclusion of its own class
struggle"14.

13Benjamin had these ideas in mind when he developed his notion of the ‘real state of emergency’.
However, his reflections — due to the precise historical moment in which he writes his theses —
did in fact differ from theirs. Just as the pendulum that measured the oscillations of the old
seismographs has ceased to be useful, Benjamin suspects that the political arsenal of the left would
need a strong dialectical counterweight. It was urgent, on the one hand, to open up the semantic
field of the subject of social transformation: it was that plural subject, indefinite and without
qualities, it was the oppressed ones who had to become a class for themselves. And who belonged
to the oppressed? Not only the proletariat15, but those who have been systematically stigmatized,
the nameless and faceless people, the human waste which history is made of: from the Jewish
people through the Spartacist League, right up to Blanqui, the martyrs of the Paris Commune or
those who integrated the Zapatista uprising of the 1990s. On the other hand, Benjamin considered

72
that the total subversion understood as a radical transformation of the economic-social process of
life was not enough: a "historical apocatastasis"16 is needed, a restoration of all things by whose
logic the entire past is to be brought into the present. As Michael Löwy pointed out, this utopian
state of emergency "is prefigured in all rebellions and uprisings that interrupt, even momentarily,
the triumphal courtship of the powerful"17. Is there still a need, then, for a theory of history that
allows the oppressed to subvert the status quo and unmask different ways of domination?

b) Refugee camps

14By working on Benjamin’s state of emergency one could not help but wonder whether there is
a direct cause-and-effect relationship between the oppressed ones and those who are living in over-
crowded refugee camps around the world. Do we have a new incarnation of the oppressed in the
refugees? Does international law impose a kind of state of emergency in the camps? Does the
project of ‘regional disembarkation platforms’ outside the European Union proposed by European
Council President Donald Tusk reproduce the authoritarian policies implemented less than a
century ago? After the tortuous experience of the short twentieth century, on the margins of the
continent spreads fascist concentrationary regime.

15The situation at the camps is particularly worrying and requires urgent attention. Global refugee
numbers are at their highest: 22 million people crammed into camps where they are subjected to
inhuman and unacceptable living conditions for survival18. This ghost population is deprived of
fundamental rights such as the right to adequate housing, the right to work or freedom of residence
and movement. Indeed, in refugee camps, managed by sovereign humanitarian organizations
(mainly UNHCR, the controversial UN agency in charge of protecting refugees and those
displaced by conflict, natural disasters and so on), a complex regulatory system has been
implemented: the administration of the refugees depends on a normative regulation that in its legal
form adopts dangerous exceptions. See for instance art. 9 of the 1951 Refugee Convention:

nothing in this Convention shall prevent a Contracting State, in time of war or other grave and
exceptional circumstances, from taking provisionally measures which it considers to be essential
to the national security in the case of a particular person, pending a determination by the
Contracting State that that person is in fact a refugee and that the continuance of such measures is
necessary in his case in the interests of national security (emphasis added)19.

16As is the case with Benjamin’s state of emergency, the legal dispossession of the refugees is
based on an international legal regime that include metanormative clauses by which the rights and
freedoms may be suspended in the name of law. Plus, since international law does not represent a
limit to the power exercised by humanitarian organizations, normative arbitrariness is embodied
as real possibility of camps policy. It is against the hegemony of this international legal regime
that, from and with Benjamin, I want to give the fire alarm.

2. Above the law: Franz Kafka

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17The legal concept of ‘state of emergency’ is foreign to Kafka. However, in some of his writings
he describes a metanormative structure that indirectly refers to Benjamin’s state of emergency20:
i) as the arbitrary application of the law for their own purposes; ii) as the target of the oppressed
when they try to overthrow dispossession and escape from the coercive apparatus of the law. In
any case Kafka suggests, beyond Benjamin, a third hermeneutical path: iii) a formal legal system
in which the law stands above itself, not because of the will of a sovereign or State, but rather of
the labyrinthine depths of bureaucracy.

a) The great legal organism

18The first lines of The Trial are perhaps the best synthesis of the metanormativity of the law in
its first sense: "jemand mußte Josef K. verleumdet haben, denn ohne daß er etwas Böses getan
hätte, wurde er eines Morgens verhaftet"21. An analysis of this proposition shows the following:
Joseph K., who has not committed any crime, is nevertheless arrested because a legal investigation
has been initiated against him. The start of a court trial presupposes a) anonymous allegation, b)
legal complaint, c) successful application to the court and d) initiation of administrative
proceedings. As Pascale Casanova emphasized, this is intended to humiliate him and to damage
his reputation22.

19The first thing that strikes me is Joseph K.’s innocence: he has done nothing wrong (Böse),
anything that can render him liable to prosecution. Nevertheless, proceedings are subsequently
instituted against him and he is arrested. Contrary to what one might suppose, the arrest is neither
followed by an administrative order, nor does it carry a prison sentence, nor does it even take place
in an official agency. It is exceptional: he is arrested in his home and interrogated there.

20K. believes that those who have initiated judicial proceedings against him simply wanted to
defame him, to deprecate and slandering him. The practice of the wilful false accusation shows
justice instrumentalization and its arbitrariness, and can be traced back to the time of the ancient
Rome. In imperial Rome, denunciations by informers were admitted and rewarded. According to
Suetonius, at the time of Tiberius special rewards were voted for the prosecutors, the information
of any person was taken, and all offences were capital. The informer, an anonymous agent,
informed the magistrate of a crime by means of inscriptio23.

21It is not, however, Rome, but the inquisitorial trials of the Holy Inquisition that bear a certain
resemblance to the trial against K. The inquisitorial procedure was initiated either by prosecution
before the court, or ex officio by the judge. The first action taken by the inquisitors was that of
appointing a delegate-commissary who thoroughly registered the domiciles of the accused and
who, moreover, had the power to seize their goods and belongings. Thus, the indictment initiated
the proceedings as such. It should be noted that any person could accuse another: it was enough to
make the accusation before authorities taking as witness two persons who were "honest and
religious"24. The denunciations were anonymous, and the defendants had no way of knowing the
identities of their accusers. There is one final parallel that I want to emphasize: the entire process
was undertaken with the utmost secrecy, as much for the public as for the accused —tellingly, the
accused were not informed about the accusations that were levied against them25.

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22Victim of anonymous allegation, K.’s summary execution after a trial in which any hint of
legality is suspended reveals the existence of a transcendent and exceptional normative apparatus.
Kafka refers to it as der große Gerichtsorganismus, i.e.: a comprehensive legal system make up of
organs and legislative instruments with autonomous capability: the essential thing was not to
attract attention, to stay calm, however much it went against the grain, to try to understand that
this great legal organism remained eternally in balance, so to speak. If, of your own volition, you
changed something at the place you occupied, you would be cutting the ground from under your
own feet and might well fall, whilst the great organism could easily find a replacement for the
minor disruption at some other part—everything was interconnected—and remained unchanged,
assuming it did not, as was in fact likely, become even more self-enclosed, even more vigilant,
even more severe, even more malevolent26.

23The law is, in Kafka, a certain kind of organism — an assertion that should not be understood
in a strictly metaphorical sense: the law behaves as a complex biological structure that interacts
with its environment, of which it is nourished, with which it is related and by which it is
reproduced. Kafka emphasized through the lawyer Huld that in front of this huge organism one
remains in suspense. There are only two possibilities: on the one hand, to adapt oneself to law
organs and to accept things as they are; on the other hand, to establish personal relations with high
officials. There is absolutely nothing else that could be done? Are submission and bribery the only
two existing poles? Does not claim K. that he belongs to a free country in which everywhere was
at peace and laws were decent and were upheld?

Certainly. What actually happens is that K. questions the mechanism that shapes the rule of law,
and the mechanism shows itself as it is, i.e., as an all-encompassing, retractable device capable of
recomposing, reconfiguring and defending itself. In The Castle this idea is underlined by the
county mayor: and now I come to a particular feature of our official mechanism. When an affair
has been under consideration for a very long time, and even before assessment of it is complete, it
can happen that something occurs to settle it, like a sudden flash of lightning at some unforeseeable
point, and you can’t pinpoint it later. The case is thus brought to an arbitrary, if usually quite
correct, conclusion. It’s as if the official mechanism could no longer stand up to the tension and
the years of attrition caused by the same factor, which in itself may be slight, and has made the
decision of its own accord with no need for the officials to take a hand27.

24The bureaucratic apparatus of the castle rests upon an unpredictable and arbitrary authority,
coercive and partial. The most astonishing thing about it, once again, is its autonomy (aus sich
selbst heraus). Also "In the Penal Colony", the officer sets in motion a singular apparatus — bed,
signer and harrow — that works completely alone and acts by itself (arbeitet die Maschine noch
und wirkt für sich). This kind of organized totality shows, on the one hand, that the human pieces
that make up its structure must conform to its designs; on the other hand, that the problem of
infinity regression in law is unsolvable: the current legality is based on a theological legality that,
in turn, refers to an unfathomable prehistoric legality. This is otherwise Benjamin’s interpretation:
legal authorities are "far beyond the time of the Laws of the Twelve Tables. They refer to a
prehistoric world over which a first triumph was written law. And while here written law is in the
books of laws, yet secretly, and based on these, the prehistoric world exercises its dominion even
more unlimitedly"28. Benjamin feels the laminar structure of the law in Kafka, a law devoid of
centre, without starting point that allows us to specify where the general principles of law begin

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and end, namely, the general normative enunciations that, despite not having been formally
integrated into particular legal systems, abstractly collect the content of the law itself as a whole
and consolidate the development of a hierarchical and authoritarian bureaucratic apparatus.

25Kafka is therefore suggesting that legal systems rest on an autonomous and abstract law. This
conception of legality, if not identified, does approach the way in which Benjamin understands the
state of permanent exception: an alienating metanormative system that underpins law’s
arbitrariness and deprives, in its development, the most disadvantaged people29.

b) Dominance and submission

26The short story "Zur Frage der Gesetze" deals narratively with a certain area of the law linked
to Benjamin’s ‘state of emergency’ and ‘real state of emergency’. Kafka stated that

laws are not generally known: they are kept secret by the small group of nobles who rule

27and dominate (berherrschen) the people. It is an extremely painful thing, the narrator stressed,
to be ruled by laws that one does not know. However, it is in the absolute ignorance of the law
that, in Kafka’s opinion, lies nobility superiority. Unlike Hegel and Heidegger, for whom the
tension between domination and servitude (Herrschaft und Knechtschaft) based on slave’s fear of
the death allows the nobles’ suppression of the slaves’ autonomy, Kafka argues that the power of
the nobles emanate from the interpretation and the enforcement of the law. Indeed, der Adel steht
außerhalb des Gesetzes, i.e., "the nobles stand above the laws"30. Its function, Kafka suggests, is
simply to design a normative punishment apparatus, assemble it and activate it: like Aristotle’s
unmoved mover or prime mover, the nobles limit themselves to setting justice in motion without
its movement influencing them at all.

28Just as Benjamin believed that the alliance between economic and legal power reified the
oppressed, Kafka understood that the nobles rule the people through an unknown legal system that
strengthened dispossession. Notwithstanding, people suspected that this normative apparatus is
articulated from a set of mysterious laws (Schein-Gesetze) that can only be presupposed.
According to tradition, they exist and have been entrusted to the nobles in secret and must be kept
that way. Is secrecy an indication of the misleading content of the laws? To accept laws’ deception,
does it mean to admit that they are based on illusion? Kafka finally reveals the enigma: codes and
constitutions, laws and decrees are nothing but dead letter.

29At this point Kafka emphasized that the time will have come when the law itself will belong to
the people, and the nobility will vanish (das Gesetz nun dem Volk gehört und der Adel
verschwindert). Kafka’s assertion is closely linked with Benjamin’s messianic-marxist argument,
namely: if and only the oppressed are able to rise up against the metanormative structure that
paralyzes them, they will reach the true state of exception, i.e., a classless society in which
dominance and submission will have completely disappeared. Kafka pointed out, however, that
the possibility of placing the law at people’s service involved an unsolvable paradox: nobles are
not only the personification of the law, they are their most visible manifestation, and therefore any
attempt to respect the law and abolish nobility is doomed to failure. Therefore, Kafka momentarily

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opens the door of hope to the oppressed whom Benjamin summons in anguish: there is a glimpse
of the possibility of altering current law and democratizing justice. However, the leaf of that door
closes immediately due to the interconnection between law and nobility, two edges that are perhaps
nothing more than segments of the same legal plane.

c) Bureaucratic phantasmagoria

30A third hermeneutical possibility can be inferred from Kafka’s writings against Benjamin’s
interpretation of the concept of ‘state of emergency’: neither is the sovereign the one that ensures
pariahs’ dispossession, nor is it the alliance between the status quo and fascism. Kafka presents a
rambling administrative system organized according to a strict distribution of spheres of
competence, regulated by rules that establish an apparently rational order in which written records
guarantee the truth and where detailed regulation, rigidity and strict hierarchization of functions
replace the direct and vertical domination of the sovereign. Kafka, using a disturbing image, refers
to it as the red tape chains’ of tormented mankind31.

31Whereas in The Trial, the legal provisions are transferred to a cluster of investigating judges,
subordinate civil servants, heads of cabinet, justice employees, officials, ordinances and
executioners who, in turn, depend on a network of articles, secret files and codes that embody the
space of law, in The Castle — synthesis of the administered world to which Horkheimer points to
— power, authority or the state are presented as "an enormous living organisation" (eine große
lebendige Organisation) made up of gentlemen, officials, assistants, communication secretaries,
clerks and messengers entangled in a bureaucratic web of protocols, official and semi-official acts,
bureaux, barriers, control offices, formalities, summonses or nocturnal interrogations.

In both cases, the functioning of the legal and administrative system rests on endless written work
that reminds, once again, the Supreme Council of the Inquisition. Henry Kamen noted that “the
outside world may have been kept uninformed, but internally the flow of information was almost
impeccable. The administrative and secretarial apparatus of the tribunal took care to set down
on paper even the most trifling business”32. In Kafka’s bureaucratic universe everything leaves a
written imprint. "‘There’s been a lot of writing here,’ said K., looking at the files from a distance.
‘Yes, a bad habit’ (…). And the gentleman buried himself in the files and began writing"33.
Kafka saw the official writing as a register that allows to define magnitudes, to compute objects
and beings and to quantify infinitesimal, namely: writing equals phenomena and facts, and
phenomena, therefore, acquire the ontological status of realities as long as they are filed, identified,
processed. By whom? Initially by tireless officials who work around the clock. However, these
officials depend, in turn, on unreachable supervising authorities (Kontrollbehörden). The mayor
sums up the situation for K.: the whole bureaucratic apparatus of the castle is reduced to those
authorities of which no one else knows anything.

32The dissolution of the individual in the administrative paperwork is due to the quantification
and obsessive engraving of everything that happens. ‘Engrave’ or ‘count’ belong to the same
semantic field as ‘write’. In most Indo-European languages ‘write’ originally means "carve,
scratch, cut". Derived from Proto-Germanic writan ‘write’ means "tear, scratch". ‘Count’, from
Latin computare, derives from PIE root *pau "to cut, strike, stamp." ‘Engrave’, from Proto-
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Germanic *grabanan ("to dig, delve"), derives from PIE root *ghrebh- (2) "to dig, to scratch, to
scrape."

33The etymological analysis highlights "the violent influence of every passing moment"34 to
which the land surveyor K. points to. Whether it is the mark left on the record when writing on its
surface, or the incision with which data are recorded in a file, writing must always overcome the
resistance of the object on which one makes one’s mark. This fact is the result of the will of a being
who wants something to be a sign of something else. In The Castle — a nature morte which
preclude any hope of regeneration, as Sebald noted35 — the will that wants something to be a sign
of something else is the will of an official who interprets any human sign as a thing and therefore
seeks to equate them. The equation that the official makes, however, is only possible on condition
that the thing is forced to remain contained in the space of representation. The operation by which
every human trait is computed and reduced to a graphic engraved on paper shows the discouraging
atmosphere and the violence of the bureaucratic nightmare36.

34The violence of bureaucratic writing and computation thoroughness, however, give way to the
"the disorganized and exorbitantly large number of files"37 because even the most irrelevant detail
must be recorded: in the castle "you are always being watched"38, says Olga. The administration
of the castle, like Bentham’s panoptic, scrupulously studies the lives of its subjects, produces
unembraceable columns of files and extends the mesh of anonymous power to all areas of
existence. The bureaucratic apparatus, as the authoritarian figure of the father, nullifies the
emancipatory struggle in its unifying deployment39.

35The story "The Great Wall of China" extends the bureaucratic argument by focusing in the
strong hierarchical administrative apparatus that imposes an absolute and irrational normativity.
Kafka explained that the construction of the wall follows a system of building in sections. This
building strategy, he added, generates confusion and anxiety among people:

It is possible that these very considerations, which militated against the building of the wall at all,
were not left out of account by the high command when the system of piecemeal construction was
decided on. We—and here I speak in the name of many people—did not really know ourselves
until we had carefully scrutinized the decrees of the high command, when we discovered that
without the high command neither our book learning nor our human understanding would have
sufficed for the humble tasks which we performed in the great whole. In the office of the
command—where it was and who sat there no one whom I have asked knew then or knows now—
in that office one may be certain that all human thoughts and desires revolved in a circle, and all
human aims and fulfillments in a countercircle. And through the window the reflected splendors
of divine worlds fell on the hands of the leaders as they traced their plans40.

36In this fragment some of the considerations to which I have previously drawn attention to are
repeated: secret; indecipherable character of the decisions of those who have enforcement
capacity; non-identifiable centre, i.e., failure to reach the office of the command due to an
administrative topology based on ubiquity; transcendent and arbitrary character of bureaucracy, in
this story under the sinister form of a notion of leadership (Führerschaft) that anticipates the
identification between people and Führer that will take place after Kafka’s death. Perhaps
resignation, only go on, losing one’s way even more (weiter gehen, weiter sich verirren), would

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be the only genuine possibility before the hypertrophy of a bureaucratic apparatus that submits and
disciplines thanks to an administrative system with no vanishing points.

Conclusions

37Benjamin’s and Kafka’s texts are never exhausted in the interpretable. Benjamin’s philosophy
and Kafka’s narrative, like the crystals that are randomly grouped together in a kaleidoscope, give
rise to the formation of capricious and almost infinite figures, and each time one looks out through
their brocade, one is apprehended in their multicoloured nets. At some point, their work resembles
that of the poets Osip Mandelstam and Paul Celan — and not only because no interpretation could
exhaust them: like their poetic work, Benjamin and Kafka’s reflections are like messages in a bottle
(Flaschenpost) thrown in the hope that somewhere they will reach mainland, heading towards
readers with whom their authors will no longer be able to dialogue.

NOTES

1
W. Benjamin, Über den Begriff der Geschichte, in Werke und Nachlaß: Kritische Ausgabe. Berlin: Suhrkamp, 2010, p. 97: "Die
Tradition der Unterdrückten belehrt uns darüber, daß der >Ausnahmezustand<, in dem wir leben, die Regel ist. Wir müssen zu
einem Begriff der Geschichte kommen, der dem entspricht. Dann wird uns als unsere Aufgabe die Herbeiführung des wirklichen
Ausnahmezustands vor Augen stehen; und dadurch wird unsere Position im Kampf gegen den Faschismus sich verbessern. Dessen
Chance besteht nicht zuletzt darin, daß die Gegner ihm im Namen des Fortschritts als einer historischen Norm begegnen".

2
In Dora Benjamin's typographical manuscript, Benjamin uses the term Unterlegenen, the vanquished, those who have been ground
down as a result of the terrible conditions of history. In any case, both concepts belong to the same semantic field: people repeatedly
torn asunder by the space of power. W. Benjamin, op. cit., p. 87.

3
We can only trust, he writes ironically in 1929, in the IG Farben and the peaceful perfection of the Reich's air force, the Luftwaffe.
W. Benjamin, "Der Sürrealismus", in Literarische und ästhetische Essays. GS II, 1, Frankfurt: Suhrkamp, 1977, p. 308.

4
W. Benjamin, Das Kunstwerk im Zeitalter seiner technischen Reproduzierbarkeit (Erste Fassung). GS I, 2 Frankfurt: Suhrkamp,
1991, p. 442.

5
W. Benjamin, "Zur Kritik der Gewalt", en GS II / 1, Frankfurt: Suhrkamp, 1991, p. 203. It seems as if being inspired by Kafka.
Cfr. F. Kafka, "Zur Frage der Gesetze", in Nachgelassene Schriften und Fragmente II: Kritische Ausgabe. Frankfurt: S. Fischer,
1992, p. 270.

6
W. Benjamin, Einbahnstraße, in GS IV, 1. Frankfurt: Suhrkamp, 1991, p. 122.

7
W. Benjamin – G. Scholem, Briefwechsel. Frankfurt: Suhrkamp, 1980, p. 316.

8
See for instance A. Carrino, "Carl Schmitt and European Juridical Science", in The Challenge of Carl Schmitt (ed. C. Mouffe).
London: Verso, 199, p. 190.

9
Jean Bodin, Les six livres de la République. Paris : Librairie générale française, 1993, p. 160 : "la première marque du prince
souverain, c'est la puissance de donner loi à tous en général, et à chacun en particulier".

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10
C. Schmitt, Politische Theologie. Vier Kapitel zur Lehre von der Souveränität. Berlín: Duncker & Humbldt, 2004, p. 19: "Die
Autorität beweist, daß sie, um Recht zu schaffen, nicht Recht zu haben braucht". On the concept of decision, cfr. C. Krockow, Die
Entscheidung. Eine Untersuchung Über Ernst Jünger, Carl Schmitt, Martin Heidegger. Frankfurt: Campus Verlag, 1990, passim.

11
Benjamin made clear the influence that Schmitt's concept of 'state of emergency' has had on his reflections in a letter dated
December 9, 1930, addressed to Schmitt: "Sie werden sehr schnell bemerken, wieviel das Buch in seiner Darstellung der Lehre
von der Souveränität im 17. Jahrhundert Ihnen verdankt", i.e.: "you will very quickly recognize how much my book is indebted to
you for its presentation of the doctrine of sovereignty in the seventeenth century". W. Benjamin, Gesammelte Schriften, GS I, 1.
Berlin: Suhrkamp, 1974, p. 887.

12
K. Marx, A Contribution to the Critique of Political Economy. Moscow: Progress Publishers, 1977. Available at
https://www.marxists.org/archive/marx/works/1859/critique-pol-economy/preface.htm

13
K. Korch, Karl Marx. New York: Russell & Russell, III, 3. Available at https://www.marxists.org/archive/korsch/1938/karl-
marx/index.htm

14
G. Lukács, History and Class Consciousness: Studies in Marxist Dialectics (trans. R. Livingstone). Cambridge: MIT, 1971, p.
80.

15
W. Benjamin, Das Passagen-Werk, GS V, 1. Frankfurt: Suhrkamp, p. 460: "Für den materialistischen Dialektiker ist die
Diskontinuität die regulative Idee der Tradition von den herrschenden Klassen (also in erster Linie von der Bourgeoisie), die
Kontinuität die regulative Idee der Tradition von den Unterdrückten (also in erster Linie vom Proletariat) ".

16
ibid., p. 573. As Enzo Traverso pointed out, the restitution to the original condition must, moreover, "save the vanquished from
oblivion". E. Traverso, La historia desgarrada. Ensayo sobre Auschwitz y los intelectuales. Barcelona: Herder, 2001, p. 72.

17
M. Löwy, Walter Benjamin: aviso de incendio. Una lectura de las tesis Sobre el concepto de historia. Buenos Aires: FCE, 2005,
p. 100.

18
However, the number of displaced people by violence is far higher: 63 million. Cfr. A. Betts y P. Collier, Refuge: Transforming
a Broken Refugee System. Londres: Penguin, 2017, p. 38.

19
See also articles 17, 26, 32 or 33 of the Geneva Convention and article VII of the 1967 Protocol relating to the Status of Refugees.

20
See Isolde Schiffermüller interpretation of the Ausnahmezustand concept in the context of The Trial. In I. Schiffermüller, Franz
Kafkas Gesten: Studien zur Entstellung der menschlichen Sprache. Tubinga: Francke Verlag, 2011, pp. 128-133.

21
F. Kafka, Der Prozeß. Frankfurt: Fischer, 1962, I, p. 3.

22
P. Casanova, Kafka en colère. París: Seuil, 2008, p. 405: "l’arrestation, dans sa forme apparemment indécise, n’est rien d’autre
que l’instauration d’une coupure entre ceux qui sont accuses et les autres. Elle n’est que le début d’un long processus qui aura pour
résultat, au bout du compte, une longe humiliation".

23
Suetonius, The Lives of the Twelve Caesars. III, LXI: "a poet was charged with abusing Agamemnon; and a historian, for calling
Brutus and Cassius "the last of the Romans." The two authors were immediately called to account, and their writings suppressed".

24
E. Fernández, La Inquisición. Procesos y autos de fe en el Antiguo Régimen. Madrid: Sanz y Torres, 2018, p. 54.

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25
H. Kamen, The Spanish Inquisition: A Historical Revision. London: Yale University Press, 2014, p. 269.

26
F. Kafka, The Trial (trans. M. Mitchell). Oxford: Oxford University Press, 2009, p. 86.

27
F. Kafka, The Castle (trans. A. Bell). Oxford: Oxford University Press, 2009, p. 63.

28
W. Benjamin, Sobre Kafka. Textos, discusiones, apuntes. Buenos Aires: Eterna Cadencia, 2014, p. 30.

29
I agree with Michael Löwy that the analogy between the metanormative arguments in Kafka and the 'state of emergency' may
blur what in Kafka is the true 'exception': "l'écrasement de l’individu par les appareils d’État, au mépris de ses droits, est la règle".
M. Löwy, Franz Kafka rêveur insoumis. Paris: Stock, 2004, p. 89.

30
F. Kafka, "Zur Frage der Gesetze", en Nachgelassene Schriften und Fragmente II: Kritische Ausgabe. Frankfurt: S. Fischer,
1992, p. 270.

31
G. Janouch, Conversations with Kafka (trans. G. Rees). Derek Verschoyle: London, 1953, p. 71.

32
H. Kamen, op. cit., p. 270.

33
F. Kafka, The Castle, p. 98.

34
ibid. p. 25 (my translation: die Gewalt der unmerklichen Einflüsse jedes Augenblicks).

35
W.G. Sebald, "The Undiscovere'd Country: The Death Motif in Kafka’s Castle". Journal of European Studies, 1972, 2, 22-34, p.
23.

36
Maurice Blanchot wrote that in Kafka the bureaucracy does not possess a self-evident negative meaning: "to his friend Oskar
Baum Kafka writes the following, which demands reflection: 'To judge by myself, the bureaucracy is closer to the original human
nature than any other social institution' (June 1922, the time of The Castle)". M. Blanchot, De Kafka a Kafka. Mexico: FCE, 1991,
168. Probably, as José González pointed out, Kafka's perception of bureaucracy changes with time. In J.M. González García, La
máquina burocrática. Afinidades electivas entre Max Weber y Kafka. Madrid: Visor, 1989, pp. 84-90. However, in Kafka's stories
and writings resonates the echo of the gigantic apparatus of bureaucracy and the rational systematization of all statutes regulating
life; i.e., resonates the echo of Alfred Weber. Cfr. A. Weber, "Der Beamte", in Die neue Rundschau, 21 Berlin, 1910, pp. 1321-
1339.

37
F. Kafka, op. cit. p. 65.

38
ibid., p. 154.

39
F. Kafka, "Brief a den Vater", in Nachgelassene Schriften und Fragmente II: Kritische Ausgabe. Frankfurt: S. Fischer, 1992, p.
212

40
F. Kafka, "The Great Wall of China", in The Great Wall of China and Other Pieces (trans. W and E. Muir). London: Secker and
Warburg, 1946, p. 86.

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 Franz Kafka’s Before the Law

Kayla Leung writes: 31

Many have tried to interpret “Before the Law” and many have failed. However, to their credit, it
is not because they have not read closely enough into detail, but because Franz Kafka crafted his
parable in such a way that a definite meaning cannot be derived from it. In “Before the Law,”
Kafka purposely designs the parable to be ambiguous with the intent of inviting readers, who
attempt to grasp the meaning, to an endless reading and rereading of the parable. He does this in
order to draw us into the position of the man in the parable so that we can better experience the
futility in our persistent human nature of trying to find meaning in parables and examine our way
of thinking and approaching parables through making connections between the vehicle and the
tenor.

“Before the Law” is most commonly interpreted as either a critique of an impenetrable legal system
or of the man and his inability to be proactive and make his own decision to cross the gate. Both
of these interpretations can account for many of the metaphors in the parable, but never the entire
metaphorical system. There always seems to parts that just do not quite fit no matter how plausible
the interpretation appears to be. We are constantly in search of connections between the vehicle
and the tenor, asking ourselves, “What does the gate, but the lack of a physical barrier convey? If
the doorkeeper is the vehicle, what is the tenor?” Even when we settle on a potentially plausible

31 https://itspossiblelab.com/2016/05/16/kafkas-before-the-law/
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interpretation of the parable, it is not evidently clear why one interpretation is the more likely than
the other because Kafka simply chooses not to give us enough information to gain certain
knowledge. “Before the Law” is constructed in such a way that it appears to have an underlying
meaning and moral message, but one that always eludes the reader simply because there is actually
no real meaning. What would have happened if the man had gone through the gate? Would the
doorkeeper have stopped him, or would he simply go through? Kafka never tells us. In rereading
this parable and reevaluating our interpretations we must question the textual evidence or the
deliberate lack thereof. He purposely intends it to be that there is no one reading that can be pinned
down and argued for over all other readings and does so because it is the most effective vehicle to
encourage skepticism and communicate the idea that there does not necessarily have to be meaning
in parables.

This uncertainty of the meaning behind “Before the Law” also allows Kafka to play with our
frustration and desire to discover the meaning of the parable, and to similarly put us in the same
position as the man in the parable. The experience of the man in the parable, seeking access to
something that is hidden or nonexistent, is meant to parallel the very real experience of the
reader. By interpreting “Before the Law” as a parable written to have no meaning, we suddenly
seem to find the metaphorical system and the meaning behind it. The Law, covered in a veil of
mystery, represents the meaning of parables themselves. It is not clear why the man travels to and
seeks admittance to the law. Like many things in the parable, we are not told. He just does. The
man from the country represents us as readers. Similarly, we naturally want to gain an
understanding of the parable.

However, understanding parables is not as simple as reading it and arriving at the meaning
instantly. We have psychological obstacles in our way, whether this be our feeling of intimidation

83
of the parable or fear of interpreting it incorrectly and waiting for someone to tell us how to
approach it, Kafka specifically writes to emphasize the lack of a physical barrier, describing the
doorkeeper as only standing to the side and not directly in front of the gate. Most importantly, in
the last scene, Kafka discourages our persistent and unwavering motivation to find meaning in
parables, where we see ourselves, represented as the man in the parable who ends up wasting his
life trying to gain access to the law. Not only does he end up dying, but also dies without the
knowledge of what lies beyond the gate. Thus, according to Kafka, we should give up trying to
understand the parable lest we end up having, metaphorically, the same fate as the man in the
parable.

However, the paradoxical nature of this interpretation is that if we had not tried to understand the
parable in the first place, we would have never understood his argument. Furthermore, if we had
not acknowledged that his parable had no meaning, we would not have found the most plausible
interpretation of “Before the Law”, that it is a parable examining the way in which we try to
interpret parables. It appears that we have been drawn into a never-ending cycle of circular logic
because we cannot support the uninterpretable nature of the parable with an interpretation of the
parable. The absurdity of the parable itself seems to even have the capability to disable our ability
to prove that his parable is a parable on the absurdity of parables, and this is precisely the point.

This reveals that even when we make potentially accurate statements about the nature of this
parable we still cannot completely pin down the meaning. Kafka has constructed a world in
“Before the Law” that is so incredibly absurd that we cannot know with certainty what the man
should or should not have done. This then becomes the tenor, the experience of absurdity, of not
knowing, and the entire parable itself becomes the vehicle for the tenor. Even now, we cannot
escape this paradoxical interpretation that Kafka has brought us to. However, had he not placed us
into the same position as the man in the parable to really and truly experience the futility of trying
to find meaning in parables, we would not be capable of grasping the purpose of “Before the Law,”
which is exactly to demonstrate the whole conundrum of endless rethinking and reevaluating that
the reader can never exhaust because there exists no tangible meaning or metaphorical connection
within the parable, and thus we should not expect to find it in the first place.

84