Pisqa’ 190¹

1

“Then the two men who have a dispute shall stand before HASHEM” (Dt.19:17)—

that is, the judges sit, but the litigants stand.²

Another word:

this warns the litigant to present his argument

only after his opposing litigant arrives.³

2

“Shall stand” (Dt.19:17).

The parties are required to stand.

“Two men” (Dt.19:17)—

I might infer only that

[judicial procedures are conducted]

when two men have a dispute.

On what basis do I know that

a man [can initiate legal action] against a woman,

a woman [can initiate legal action] against a man,

and that two women [can initiate legal action] against each other?

The Teaching states:

“Who have a dispute” (Dt.19:17)—

with whomever.

Is it possible to say that

a woman could also be qualified to testify?

“Two (shnei) witnesses” (Dt.19:15) is stated here,

and “Two (shnayim)⁴ witnesses” (Dt.17:6) is stated elsewhere.

Just as the two stated here

specifies male witnesses, rather than women,

[shnei being gendered masculine],

so, the shnayim stated elsewhere

specifies male witnesses, rather than women.

3

“Who have a dispute” (Dt.19:17).

Let the owner of the [damaging] ox

come and stand with his ox

[to signify his responsibility].

“Before HASHEM” (Dt.19:17)—

the litigants may think that

they are standing before flesh and blood.

But in fact, they stand before the All-Present!

“Before the Priests and justices who shall preside in those days” (Dt.19:17).

This is what R. Yose the Galilean taught:

Now, can you imagine that

you would go to a justice

who is not alive in those days?

The point is, seek the rulings of a justice

who is eminently qualified.

If he had been kin to the litigants,

but then severed the connection [e.g., through death],

he is qualified to sit in judgment of them.

And in this connection,

He states:

“Do not wonder why the old days were better than today,

for such a question does not proceed from wisdom” (Ecc.7:10). ⁵

4

“Then the justices shall seek diligently” ( Dt.19:18).

And elsewhere He states:

“And it is reported to you, and you have heard it,

then you shall seek it out diligently” (Dt.17:4).

The repetition of diligently and diligently

permits an analogical inference.⁶

This teaches that

They would probe each witness

with seven investigations.⁷

I might infer that

the examination of testimony

is confined to seven investigations.

On what basis do I know

to include probes as well?

The Teaching states:

“And, indeed, the report is true and well–founded” (Dt.13:15)—

true means the testimony has been investigated,

and well-founded means it has been probed].⁸

5

On what basis do I know that

a witness may admit to perjuring himself?

The Teaching states:

“And the witness indeed offered false testimony” (Dt.19:18).

And on what basis do I know that

a witness may charge his counterpart with perjury?

The same Teaching states:

“And the witness indeed offered false testimony” (Dt.19:18).

Is it possible to say that

[a charge of perjury can be lodged]

as soon as their testimony

has been investigated by the court?

The Teaching states:

“He has charged his brother falsely” ( Dt.19:18).

On this basis⁹ you may conclude that

[this rule applies]

as long as the court

requires their presence for testimony,

but not as soon as their testimony has

been investigated by the court.

On this basis you might teach that

a refuted witness may [still be] refuted

[for giving another false testimony],

even if there are a hundred of them!¹⁰

6

“And you shall do to him as he connived (zamam) to do to his brother” (Dt.19:19).

If [he plotted against his brother’s] wealth,

[then take] his wealth.

If [he plotted to subject his brother to] a judicial lashing,

then [subject him to] a judicial beating.

If [he plotted to subject his brother to] capital punishment,

then punish him.

 

Thus far we have heard about the punishment

meted out to a refuted witness,

but where is the warning against it?

The Teaching states:

“Don’t charge your kinsman with a false accusation” (Ex.20:13).¹¹

“And you shall do to him” (Dt.19:19).

On this basis they taught:

Refuted witnesses are only executed

after the judgment [of their victim] has been completed.

But, indeed, the Sadducees say:

[They are not executed]

unless [the victim of their testimony] is himself executed,

for it is said: “Life for life” (Dt.19:21).¹²

7

R. Yose the Galilean says:

What does the Teaching mean by

“And you shall do to him as he connived to do to his brother” (Dt.19:19)?

For we have found:

among all the executions prescribed in the Torah,

the execution meted out to a man

is the same as that meted out to a woman.

And those who connive against them

share in the same.

However, regarding the daughter of a Priest

[“who has begun to fornicate” (Lv.21:9)],

the execution meted out to the man

is not the same as that meted out to the woman.

For, the execution of the man is by strangulation,

whereas that of the woman is by burning.

But as for the conniving witnesses,

we haven’t heard what is to be done with them!

The Teaching states:

“And you shall do to him as he connived to do to his brother” (Dt.19:19)—

his death shall be by strangulation, like that of his brother,

but not by burning, like that of his sister.

8

On what basis do I know that

one who shames [his companion]

compensates him with wealth?

It is stated here:

“You shall cut off her hand, show no pity” (Dt.25:12),

and it is stated elsewhere :

“You shall show no pity: life for life” (Dt.19:21).

Just as show no pity stated elsewhere

implies monetary compensation [for loss of a limb],

so, too, show no pity stated here

implies monetary compensation [for being shamed].¹³

R. Judah says:

It is stated here—

“Hand for (be-) hand, foot for foot” (Dt.19:21),

and it is stated elsewhere:

“A hand in return for (takhat) a hand, a foot in return for a foot” (Ex.21:24).

Just as hand and foot stated elsewhere

implies monetary compensation,

so, too, hand and foot stated here

implies monetary compensation.¹⁴

 Yose the Galilean says:

R. Yose the Galilean says:

on what basis do I know that

a man does not go off to war

unless he has hands, feet, eyes and teeth?

The Teaching states:

“You shall show no pity, . . . hand for hand, foot for foot (Dt.19:21),

when you go off to war” (Dt.20:1)—

[a soldier must be physically whole in preparation for combat].¹⁵

9

Said R. Judah:

Under what circumstances

does [the exemption from war] apply?

If the war is obligatory (mitzvah)¹⁶

[for the defense of the Land].

But if the war is imposed (khovah)¹⁷

[as a response to the introduction of a foreign cult],

everyone must go—

even a bride-groom from his bedroom

and a bride from her wedding-canopy.¹⁸

“When you go off to war against your enemies,

should you see horse and chariot” (Dt.20:1)—

when Israel performs

the will of the All-Present,

all the gentile cavalry

is transformed before them

into a single horse,¹⁹

as it is said:

“He threw horse and rider into the sea” (Ex.15:1).²⁰

10

“When you go off to war against your enemies” (Dt.20:1).

The verse specifies an optional war (reshut).²¹

 

“Against your enemies” (Dt.20:1)—

wage war against your enemies,

[but not a gentile nation’s enemies].

 

“Should you see horse and chariot” (Dt.20:1)—

just as they attack you with horse and chariot,

you, too, must attack them with horse and chariot.

Just as they attack you with a large force,

you, too, must attack them with a large force.

 

“Have no fear of them, for HASHEM your God is with you,

Who brought you up from the land of Egypt” (Dt.20:1)—

the One who brought you up from the land of Egypt,

is the very One Who is with you in times of trouble.²²

1. H:210-212; JN2:74-77.
2. Pisqa’ 190.1 is lacking in most versions, and, in the view of F:229, n. 10, is interpolated on the basis of marginalia.
3. // Mechilta Ishmael, kaspa’, 20.
4. So MT. RH and Ish-Shalom have: shnei. Cf. H:460, Pisqa’ 190, n. 1
5. Cf. T. RH. 2:3. A virtually identical parallel to Pisqa’ 190.3 appears at Pisqa’ 153.2.
6. Cf. Pisqa’ot 93.1 ad Dt. 13:15, 149.1 ad Dt. 17:4 and 190.4 ad Dt. 19:18 for important parallels within Sifre itself.
7. =M. San.5:1
8. Cf. M. San.5:2.
9. That is, on the basis of the duplication of language in Dt.19:18 (`eid sheqer ha`eid, sheqer `anah), two rules may be adduced.
10. // M. Mak. 1:5.
11. Mech. ISH, bakhodesh, 8, s.v., harei zeh ‘azhara. The quotation from Ex. 20:13 is unaccountably missing in most versions, and is supplied by F:231, ls.1-2.
12. = M. Mak.1:6.
13. Cf. Mechilta Ishmael, neziqin, 8.
14. Cf. Mechilta Ishmael, neziqin, 8.
15. The point is made by reading Dt.20:1’s “going to war,” as a continuation of Dt.19:21, contrary to the masoretic punctuation.
16. // M. Sotah 8:7. MSS Kaufman and Parma at M. Sotah 8:7 read: hareshut (“optional”). That is, a war waged to expand the borders of the Land beyond those apportioned by God. Cf. Pisqa’ 198.2
17. MSS of M. Sotah 8:7 read: mitzvah (“obligatory”).
18. //M. Sotah 8:7. For text-critical observations, see F:232, n.1, and H:461, Pisqa’ 190, ns.15-17. Cf. the parallel at T. Sotah 7:24.
19. See Pisqa’ 158.1 for a different exegesis of the use of “horse” as a collective noun.
20. //Mechilta Ishmael, shirah, 2.
21. See Pisqa’ot 198-199 for a fuller discussion of optional and obligatory warfare.
22. //Mech ISH, shirah, 2, s.v. weki sus ‘akhad hayah