of the Rabbinical Assembly in Israel


Bet Midrash Virtuali
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The following are considered to be related: father, brother, paternal uncle, maternal uncle, brother-in-law, paternal uncle-by-marriage, maternal uncle-by-marriage, step-father, father-in-law, brother-in-law. In addition to the above are included their natural sons and their sons-in-law. Also one's step-son (but not his increase) -

(Rabbi Yosé says that the above is Rabbi Akiva's mishnah; but the original mishnah read: uncle, cousin, and anyone else in line of succession.) -

- and anyone related to him at the time. Someone who had been related but is not now related is qualified. Rabbi Yehudah says that even his grandsons from his deceased daughter are considered relatives.

EXPLANATIONS (continued):

We now consider, as promised, the absence of women from the list of those eligible to testify. Firstly, we must remind ourselves yet again that there are two kinds of testimony in Halakhic jurisprudence, though both bear the undistinguished terminology of "witness". One kind of testimony is the same as that which we recognize from Western jurisprudence: someone who comes before the court to give corroborative evidence of some kind or another that is pertinent to the case in hand. The other kind of testimony establishes, in fact, that an act has been committed from the legal point of view. For example: the establishing of the fact that Re'uven admitted a debt to Shim'on belongs to the second category, while the colour of the suit he was wearing at the time belongs to the former category. The fact that Re'uven gave Sarah Kiddushin for the purposes of effecting a marriage belongs to the second category, whereas whether Sarah was wearing white at the time belongs to the former. Witnesses in the former category offer circumstantial evidence, while those in the latter category establish the facts of the case. For the purposes of our discussion we are speaking here of witnesses of the second category - those whose evidence establishes the facts of a case: that a murder was committed, that a debt was incurred, that a divorce was effected, and so forth.

Nowhere in the Torah is it explicitly stated that women are not eligible to serve as witnesses to the fact. This is derived from a verse in Parashat Shoftim that we read last Shabbat:

There shall not be a solitary witness against any person for any crime ... or for any sin that a person might commit. A fact [at law] must be established by two witnesses or by three witnesses. When a witness perjures himself, the two men from whom the case derives shall stand before the ... judges that shall be at that time... [Deuteronomy 19:15-17].

My translation tries to present the text as understood by the sages. Anyone reading the Hebrew text with no prior conceptions would naturally assume that "the two men from whom the case derives" are the two litigants. However, for the sages this cannot be the case since, they maintain, the context of the passage is concerned with testimony in general and perjured testimony in particular. They understood "the two men from whom the case derives" to be a reference to the witnesses to the fact (as explained in the previous paragraph), the witnesses without whose testimony there could be no case before the court; so the case really "derives" from them.

The Sages now perform a hermeneutical analysis of the text. (This means they derive a statement that for them is implied in the text and make it explicit. Such a derivation can be done according to several methods; the one employed in our case is called Gezerah Shavah, which might best be translated as "similar terminology". Not any sage was permitted to exercise this particular form of elucidation: each case was deemed to be one handed down orally in a chain that went back to Moses at Sinai. So the sage had to testify that his teacher told him of this Gezerah Shavah that he had heard in his turn from his teacher - and so forth. In our case: the "similar terminology" is the word "two":

The two men - This implies that they must be males; what about a man with a woman or two women? For when the Torah says from whom the case derives it is not that specific, and thus a woman could also be qualified to act as a witness. [No,] the Torah says in verse 15 by two [witnesses] and then in verse 17 it says <the two men. Just as the "two" in verse 17 are obviously male [anashim] to the exclusion of women, so the "two" of verse 15 must be referring to males only to the exclusion of women. [Sifré ad loc].

To our way of thinking this kind of logic seems flimsy to say the least. I do not think that we would be far from the truth if we were to suppose that the Gezerah Shavah comes to justify an already established fact. It was "obvious" to the sages that women could not be expected to testify and expose themselves in so public a place as a court of law: women didn't do that kind of thing and could not be expected to compromise themselves in such a way! This implies that they must be males; what about a man with a woman or two women? For when the Torah says "from whom the case derives" it is not that specific, and thus a woman could also be qualified to act as a witness!!!!! What we read in matter-of-fact tones was expressed by the sages in expostulatory terms: "it can't be serious" terms.

In his massive halakhic compendium Mishneh Torah, Rambam [Moses Maimonides, North Africa, 12th century CE] states quite blankly: "Women are disqualified from testifying by Torah law, since it says "two witnesses" which is grammatically masculine and not feminine" [Hilkhot Edut, 9:2]. A commentator (none other than Yosef Caro, the author of the Shulĥan Arukh) ridicules this line of thinking: it would be very dangerous to assume that every time the Torah uses the grammatical masculine that it intends thereby to exclude women! And he (Caro) falls back on the verse in Psalms [45:14] that has so often be used to create the picture of the retiring matron, remaining demurely within the walls of her husband's home and not daring or wanting to "expose herself in a public place".

But Rambam is on solid ground. Time and again the sages have used this kind of argument to justify the exclusion of women. We first met such a reasoning a couple of years ago when we were studying Kiddushin, when the sages pointed out that the Torah refers to "the sons of Aaron and not the daughters of Aaron" - to exclude priestesses. It would not have been an inconceivable stretch of the imagination to understand the term B'né Aharon as "the children of Aaron"; obviously the sages did not want to. We also saw that the sages excluded women from religious education (and many derivatives therefrom) by understanding the phrase "and you shall teach them carefully to your sons [Deuteronomy 11:19] to imply the exclusion of "your daughters". We have seen that women were excluded from the Minyan according to some authorities, because the term B'né Yisra'el must mean "the sons of Israel" and not "the children of Israel". (One wonders what of Judaism would be left to the observant Jewish woman if this kind of hermeneutics is taken to its logical (or illogical) conclusion.)

To be continued.