BET MIDRASH VIRTUALI
of the Rabbinical Assembly in Israel
RABIN MISHNAH STUDY GROUP
εΐΰΕμΜεΜ δΕο δΗχΜΐψεΙαΔιο: ΰΘαΔιε εΐΰΘηΔιε εΗΰΒηΔι ΰΘαΔιε εΗΰΒηΔι ΰΔξΜεΙ εΜαΗςΗμ ΰΒηεΙϊεΙ εΜαΗςΗμ ΰΒηεΙϊ ΰΘαΔιε εΜαΗςΗμ ΰΒηεΙϊ ΰΔξΜεΙ εΜαΗςΗμ ΰΔξΜεΙ εΐηΘξΔιε εΐβΔιρεΙ, δΕο εΜαΐπΕιδΖο εΐηΗϊΐπΕιδΖο, εΐηεΙψΐβεΙ μΐαΗγΜεΙ. ΰΘξΗψ ψΗαΜΔι ιεΙρΕι: ζεΙ ξΔωΡΐπΗϊ ψΗαΜΔι ςΒχΔιαΘΰ; ΰΒαΘμ ξΔωΡΐπΘδ ψΔΰωΡεΙπΘδ, γεΙγεΙ εΜαΖο γΜεΙγεΙ. εΐλΘμ δΘψΘΰεΜι μΐιΘψΐωΡεΙ, εΐλΘμ δΗχΜΘψεΙα μεΙ αΜΐΰεΙϊΘδΜ ωΡΘςΘδ. δΘιΘδ χΘψεΙα εΐπΔϊΐψΗηΕχ, δΒψΕι ζΖδ λΜΘωΡΕψ. ψΗαΜΔι ιΐδεΜγΘδ ΰεΙξΕψ: ΰΒτΔμΜεΜ ξΕϊΘδ αΔϊΜεΙ εΐιΖωΡ μεΙ αΘπΔιν ξΔξΜΖπΜΘδ, δΒψΕι ζΖδ χΘψεΙα:
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.
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.
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 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.
To be continued.