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Aspaqlaria: Parshas Shoftim 5755

In this week's parashah we are given an important rule on the nature of eidim (witnesses). "Al pi shnayim eidim o shloshah eidim" (17:6) and then again, "al pi shnayim eidim o al pi shloshah eidim yakum davar - by the words of two witnesses or three witnesses the matter shall be established".

Why must it write "or three witnesses"? If two witnesses are sufficient, then of course we would believe three. Why does the Torah use the extra phrase?

The Gemara Makos (quoted by Rashi 17:6) concludes that the extra words teach us that if more than two eidim were to arrive, they are still to be treated as one kat (set). That means that all would have to be proven to be lying in order for any could get punished. Another, somewhat stranger, conclusion is that as a single kat they have no more credibility than any other kat. In the terminology normally used, "trei k'mei'ah", two witnesses have the same credibility as even 100. If a case comes to court, and two witnesses testify on behalf of one side and a hundred on behalf of the other, beis din (court) gives equal weight to each testimony. Why?

Perhaps if we take a detour, and try to understand another case where halachah tells us to ignore the majority, we can understand this case as well.

In Chullin 95a, the Gemara brings a case usually referred to as the "teishah chaniyos" (9 stores). There is a town with ten butcher shops. 9 of them sell properly shechted (slaughtered) meat, and one does not. If a person buys meat, but then we lose track where it was bought, the meat is forbidden. If, however, the meat was found on the street, it may be treated as kosher.

The reason is because there are two rules for resolving doubt (in the absence of evidence) in the Gemara. The first says: Kol diparish meirubah parish - whatever separates itself [from the group], [can be assumed to be] separated from the majority. When in doubt, follow the majority. The other is: Kol kavu'ah kimechtza al mechtza dami - All [doubts related to] things that are established are as though they were 1/2 and 1/2. A doubt is an unknown, and we live it unresolved - with no consideration of majority.

The bought meat is kavuah (established), so we can not play the odds. We must wonder if this might be from the 10th store. The found meat, however, we can assume came from the majority, and therefor we may treat it as kosher.

What distinguishes kavuah from parish (separated from a mixture)? Tosfos on Zevachim 72b ("Ela amar Rava"), write "kavuah only applies to a thing that is known". R. Akiva Eiger (Sh'eilos Utshuvos Ch. 136) distinguishes between rules for determining what actually happened from rules that determine how to act when we can't resolve what happened. What separates kavuah, where majority is ignored, and parish, where majority does determine halachah, is the distinction between whether you are trying to resolve a doubt that doubt arose in the halachah of the object, or you need to determine a sure halachah for an object whose reality is in doubt. Halachah only allows us to take the probability into account in the second case, where halachah is being determined in the absence of a known reality.

In our case, that of two opposing testimonies, we are dealing with the first kind of doubt. Whichever witnesses are telling the truth know the state of the situation. In the absence of the mistaken witnesses we would have been able to pronounce halachah on the true situation.

The Shev Shma'atsa (Shma'atsa 6, Ch. 22) says about cases where each side presents witnesses in its support, "Since we have two [eidim] and two [eidim] in all cases our safek is an equal safek, even where we have a majority."

The reason why trei kmei'ah, two witnesses have the same credibility as 100, is because in this kind of doubt halachah never permits us to follow majority.

The fact that the halachah is different for a case where the underlying reality was known (kavuah) vs. one where it is not known is connected to another underlying principle in the nature of halachah.

Here in the United States, around the 1980s, it became more common to have concern about the bugs on the vegetables we eat. Any bug that is large enough to be seen by the naked eye may not be eaten. However, you need not use a magnifying glass or microscope to find tiny insects.

This is because that halachah deals with the human experience, not with objective reality.

My Rebbe, R. Dovid Lifshitz zt"l, used a similar idea to explain a different problem. The Gemara explains that maggots found inside a piece of meat are kosher. (I presume the case is where someone ate them accidentally, and now wants to know if a sacrifice is in order.) The reason given is that they were born from the meat, an idea known in the history of science as "spontaneous generation". Therefor, halachah treats the maggots identically to the meat.

Spontaneous generation has since been disproven. Maggots come from microscopic eggs. Now that we know that the underlying science is wrong, does this means that the halachic ruling is also wrong?

Rav Dovid taught that the halachic ruling is still correct. The microscopic eggs and maggot larvae are not within the realm of human experience. The only cause for the current presence of maggots that we can see is the meat. In terms of human experience, the meat is the source of the maggots.

Back to the case of someone finding meat in a city where most of the butchers are kosher, the meat does have some underlying reality -- it did either come from one of the kosher shops, or from the non-kosher one. However, since that reality is not kavuah, it is not within the realm of human experience, halachah is not affected by that, and majority holds sway. When the reality is within human experience, we are obligated to play safe.

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