Bar-Ilan University's Parashat Hashavua Study Center

Parashat Shofetim 5770/ August 14, 2010

Lectures on the weekly Torah reading by the faculty of Bar- Ilan University in Ramat Gan, Israel. A project of the Faculty of Jewish Studies, Paul and Helene Shulman Basic Jewish Studies Center, and the Office of the Campus Rabbi. Published on the Internet under the sponsorship of Bar-Ilan University's International Center for Jewish Identity. Prepared for Internet Publication by the Computer Center Staff at Bar-Ilan University. Inquiries and comments to: Dr. Isaac Gottlieb, Department of Bible, gottlii@mail.biu.ac.il

 

 

The Laws of Evidence and the Agunah

 

Dr. Yoel Shiloh

 

Ashkelon College

 

This week’s reading says with regard to the laws of evidence:  “A single witness may not validate against a person any guilt or blame for any offense that may be committed:   a case can be valid only on the testimony of two witnesses or more” (Deut. 19:15).  The Sages deduced from this that whenever reference is made to a witness, the intention is two, unless Scripture explicitly says one (Sotah 2b). The Halakhah as well ruled:   “No case may be decided on the testimony of a single witness, neither in civil cases nor criminal cases” (Maimonides, Hilkhot Edut 5.1).

The laws of evidence comprise one of the most complex, circuitous realms of the Halakhah.  Any legal deliberation or public investigation begins with clarification of the facts of the case at hand.  This is true of any area where testimony is required:   criminal law and civil law, legal adjudication or proclamation of a new month, laws of purity and impurity, and family law.  Proper clarification of the facts requires extreme caution, and in order to prevent misjudgment the Halakhah established grave and far-reaching limitations on the court when establishing the facts of the case.  Judges may not rely on the testimony of a single witness, even if it is clear as day that he is telling the truth and describing what indeed took place.

Hence it is amazing that when it comes to releasing an agunah [1] he Sages actually were lenient and consented to make do with a single witness.   Moreover, they went even further in their leniency:  the Sages would release a woman from the state of agunah even on the basis of circumstantial evidence, and would even allow the testimony of a child, a woman, a relative, a concerned party, and even of a non-Jew speaking in good faith.   Even the agunah herself could attest to being a widow if she was the only one who saw her husband killed. [2]   Of course the court has to carefully examine each case in its own right, but the formal requirements for clarifying the facts can be treated with great leniency when it is a matter of freeing an agunah to remarry and rebuild her life.

Leniency in releasing an agunah is not self-evident.  It is an especially grave matter on account of the risk of transgressing the laws against forbidden sexual relations involving a married woman (Lev. 18:20).   If the court were to mistakenly permit a woman to remarry and then, some time later, her first husband were to appear, the woman and her second husband would be guilty (albeit unwittingly) of an illegal union, their children would be bastards, the woman would have to leave her second husband but would be forbidden from returning to her first husband. [3]   All this we write from a dry halakhic standpoint, and of course one cringes at the thought of the tremendous tragedy that would befall all concerned in the event of a mistaken decision.

The Sages in the Talmud describe the long and difficult path which had to be traversed in the talmudic discussion to free the agunah, a process which culminates in the great leniency which we described.   The process began with an “actual case.”   This ancient case is presented in the Talmud (Yevamot 116b), but it leaves more obscure than it clarifies:

It was the time of the wheat harvest, and ten men went out to harvest wheat.   One of them was bitten by a snake and died, and his wife came and told the court.  Having investigated and found it to be as she had said, the court proclaimed:  the woman who said, “My husband is dead,” may remarry; “my husband is dead,” she shall marry levirate marriage.

We know this story to be very early, since in the Mishnah [4] the schools of Shammai and Hillel were divided as to whether they should permit a woman to remarry only in cases that were exactly like the one described, or whether in any case the woman may be permitted to remarry. Further on in the Tannaitic period additional leniencies were granted to release women to remarry.  The Mishnah describes in great detail how the issue was resolved (Yevamot 16.7):

Rabbi Akiva said, “When I went down to Nehardea (in Babylonia) to declare a leap year I met Nehemiah of Beit Dli and he said to me, ‘I have heard that in the land of Israel they do not permit a woman to remarry on the testimony of one witness – save for Rabbi Judah ben Baba – and I replied to him, ‘This is so.’   He said to me, ‘Tell them in my name … I have received a tradition from Rabban Gamaliel the Elder that they may permit a woman to be remarried on the evidence of one witness.’   When I came and related the matter to Rabban Gamaliel he rejoiced at my words and said, ‘We have found a colleague for Rabbi Judah ben Baba.’” 

Arising out of this talk Rabban Gamaliel recollected that some men had been killed at Tel Arza and Rabban Gamaliel the Elder had permitted their wives to be wed again on the testimony of one witness, and they established the rule to allow remarriage on the testimony of one witness, and on the testimony of one witness from another witness, or the testimony of a slave, or a woman, or a bondwoman.  

Rabbi Eliezer and Rabbi Joshua say, “They must not allow a woman to be remarried on the evidence of a single witness.”   Rabbi Akiva says, “Neither on the testimony of a woman, nor of a slave nor of a bondwoman, nor of relatives.”   They said to him, “It once happened that certain Levites went to Zoar, the City of Date Palms, and one of them fell ill on the way and they bought him to an inn.  On their return they said to the woman innkeeper, ‘Where is our companion?’   She replied to them, ‘He died and I buried him,’ and they permitted his wife to be wed again.   They answered him, ‘And should not the wife of a priest be considered as trustworthy as a gentile innkeeper?’” He answered them, “She will be deemed trustworthy [when she gives such evidence] as the woman innkeeper.”  The woman innkeeper had brought out to them his staff and his bag and a scroll of the Torah that he had had with him.

This Mishnah presents, atypically, not only the various opinions but also the process of halakhic negotiation of the question.  In the course of discussion, the Mishnah tells of two other cases in which an agunah was permitted to remarry, one anonymous case of men who were killed at Tel Arza, and another about a group of priests, one of whom died at an inn on the way to Jericho.

We can well imagine the heated argument of the rabbis of the Mishnah.  Rabbi Judah ben Baba was inclined to take a lenient interpretation, while Rabbi Eliezer and Rabbi Joshua fervently opposed him, and in the next generation Rabbi Akiva was even more strict, attempting to fortify the faith against what he viewed as an intolerable erosion and leniency.   All the same, Rabbi Akiva had the decency to present the testimony of an elderly Babylonian rabbi, Nehemiah of Beit Dli, who recollected the position that had been taken by Rabban Gamaliel the Elder.   The latter’s position had not been recorded in the tradition of the land of Israel, but after Rabbi Akiva’s testimony Rabban Gamaliel II, grandson of Rabban Gamaliel the elder, recalled the case his grandfather had adjudicated in Tel Arza.  Nevertheless, Rabbi Akiva stood firm in his position, and even the case of the priest who did not return from his trip to Jericho did not convince him to yield the least in this question.  In the end, the ruling was as we mentioned above. [5]

What accounts for the tendency to be lenient in permitting an agunah to remarry? [6]   The Talmud provides an explanation:   “Out of the stringent law that is applied to her in the end, in the beginning one deals leniently with her” (Yevamot 88a).  This explanation itself must be elucidated.   Ostensibly it says that if a woman should marry another man and in the end it turns out that her first husband returns and the second marriage was a mistake, this would be an extremely grave outcome.  Since the Halakhah deals strictly with the wife at the end of the process, one could deal leniently in the beginning.  This is a surprising explanation, since it would seem that to avoid a second marriage which should not have taken place one ought to be even more strict from the outset.

Rashi explains that the woman would fear lest things go wrong and therefore would check thoroughly.  Rashi ostensibly puts the responsibility on the woman to make a thorough investigation herself and not count on the permission which she receives from the court.  Again, this is surprising, for can a woman investigate the facts of whether her husband has been killed better than public institutions?

Were I not in awe of earlier authorities, I would explain it thus:  in any investigation of the facts and taking of evidence there is always the danger of a mistaken decision.  Although the judges may be aided by Heaven, they are nevertheless mortals.  A person knows what his eyes see, but the Lord sees into the heart (ISam.16:7), so a judge must go on the basis of what he sees. Therefore the Halakhah established strict rules of evidence, circumscribing the authority of the judges.   But in the case of permitting an agunah to remarry there is no need for these restrictions.   Simply understanding the ramifications of a mistake on their part and the serious transgressions to which it could lead makes the judges act with extreme caution.  In such a situation one can be lenient and not insist on many formal limitations in the law of evidence.

A personal argument should be added in explaining the lenient approach to permit an agunah to remarry.  Maimonides wrote: “Hence the Sages were lenient in this regard … so that Jewish women not remain agunot” (Hilkhot Gerushin 13.29).   It appears that through the ages there have been many instances in which women have remained agunot, so that this has become no longer a private issue but a public one.   Perhaps due to the great number of such cases and the heartbreak it causes these poor women, the time has come for the rabbis to find halakhic solutions to release women from the state of agunah.

 



[1] The term agunah is used to denote two conditions: 1) a woman whose husband has disappeared. Common sense would say that he is no longer alive and therefore she is a widow, but there is not sufficient halakhic proof that he is gone. Therefore she is considered to be a married woman as long as there is no further proof; 2) a woman whose husband refuses to give her a get (bill of divorce) even though the court has ruled that he should divorce her.  In such a case, the woman is definitely married until she receives a get.   This article only concerns the first case of agunah.

It should be noted further that there are also circumstances in which a man may be said to be agun, i.e., his wife has disappeared and is apparently no longer alive, and therefore reason would say that he is a widower.  The Halakhah generally discusses only the case of the woman who is agunah, not the man who is agun, since releasing a woman from such a state is a grave action, as will be explained in the body of the article, whereas releasing a man is far simpler since it “only” involves nullifying the ban of Rabbenu Gershom against polygamy.

[2] Maimonides, Hilkhot Gerushin, ch. 13.

[3] Mishnah, Yevamot 10.1.

[4] Yevamot 15.2.

[5] Maimonides’ commentary on the Mishnah, loc. sit.:   “The Halakhah follows neither Rabbi Eliezer, nor Rabbi Joshua, nor Rabbi Akiva.   Rather, the law by us is that one may permit marriage on the basis of testimony of the wife, relatives, … second-hand testimony, a woman, a servant, a bond woman …” 

[6] For other explanations, see Maimonides, Hilkhot Gerushin 13.29; Rashi, Tractate Shabbat 145b, s.v.le- edut ishah.”