JUDAICA - Wisdom In Torah

the claimant, even if there is no will directing that this be done.
An opposite view appears in the responsum of R. Yosef Colon
(Responsa Maharik, §129; Italy, 15th century), which provides
that a presumption can only be relied upon to determine the
intention of an actor, but cannot be used as proof of the actual
commission of the act or the actor’s identity, regarding which
judges only rely on direct evidence.
Regarding personal status, marriages and divorces, testimony
that an act of divorce or marriage actually took place is
required to confirm its validity; regarding marriage, all authorities
agree that circumstantial evidence is sufficient to prove
commission of the act. However, with respect to divorce, there
is a need for constitutive evidence – supporting witnesses who
witnessed the act of divorce – and the authorities are divided
as to whether circumstantial evidence is sufficient for this.
Rabbenu Tam (Tosafot at Gittin 4a) takes the view that actual
witnesses are necessary and that circumstantial evidence is
insufficient, while R. Alfasi (TB Gittin 47b–48a and Rabbenu
Nissim, ad loc) reasons that circumstantial evidence can take
the place of witnesses who confer validity to the get.
In penal law as well there are disputes about the status
of circumstantial evidence. The accepted view is that capital
cases may not be decided and punishments may not be imposed
except on the basis of clear and direct proofs (see Maimonides,
Yad, Sanhedrin 20:1), and there is a clear distinction
in this context between monetary cases and capital cases (dinei
mamonot and dinei nefashot).
However, the Tosafists (Shevuot 34a) take a different
view, postulating that a person may also be convicted of murder
in reliance on circumstantial evidence, when such evidence
is absolute and incontrovertible – just as the same evidence
would have substantiated the defendant’s liability for
monetary damages had he not actually killed the victim but
only injured him.
According to some authorities, even Maimonides would
agree that the prohibition against reliance on circumstantial
evidence applies exclusively to actual capital cases, but that
in other types of penal cases, such as malkot (lashes), circumstantial
evidence can be relied upon in the same manner as
in dinei mamonot (monetary cases) (Responsum Maharik,
Part 87).
An exception to the rule with regard to capital cases is
that of adultery, in which the basic rule is that circumstantial
evidence is sufficient. The view of the amora Samuel in the
Talmud (Makkot 7a) is that to convict a man and a woman
of adultery, it is sufficient that the witnesses testify that they
appeared to be engaged in an act of adultery, and there is no
requirement that witnesses testify to having witnessed the actual
sexual act. This opinion was accepted as the binding halakhic
rule by most authorities (Yad, Issurei Bi’ah 1:19; Sh. Ar.,
EH 20:1). The main explanation for this divergence from the
strict evidentiary requirements of criminal law, especially in
capital matters, is that the sages considered it unreasonable
to assume that biblical law required witnesses who witnessed
the actual sexual act, both because of the technical difficulty
evidence
and the indecency involved, and they therefore assumed that
under biblical law it was sufficient that there be testimony that
they were seen behaving “like adulterers” (see *Adultery).
LESSENING THE BURDEN OF PROOF IN CRIMINAL LAW –
PUNISHMENT IN DEVIATION FROM THE LAW. Another category
of cases which deviates from the rule that capital cases
may only be decided in reliance upon direct evidence are those
decided in accordance with the doctrine allowing the imposition
of punishment in deviation from the strictures of criminal
and evidentiary law when the exigencies of the times necessitate
such punishment (le-migdar milta, i.e., to provide “a fence
around the words” of Torah). This category was discussed at
length in the Israeli Supreme Court decision in the Nagar case
(Cr.A. 543/79 Nagar v. State of Israel, PD 35(1) 163–170, opinion
of Justice Elon). We will review some of this discussion.
Toward the end of the Tanna’itic era, we read of the establishment
of a principle – followed for many years beforehand –
which constituted a significant change in Jewish criminal law,
with respect to both penal law and the rules of procedure and
evidence in criminal trials:
R. Eleazar b. Jacob stated, “I heard that even without any
Torah [authority for their rulings], beth din may administer
flogging and [death] penalties; not, however, for the purpose
of transgressing the words of the Torah but in order to make a
fence around the Torah” (TB Yevamot 90b; Sanhedrin 46a). In
TJ Yerushalmi, Ḥagigah 2.2, the text is “I heard that they administer
penalties not in accordance with the halakhah and they
administer penalties not in accordance with the Torah” (page
165 of the Nagar decision).
On the basis of this fundamental provision, which enabled the
courts to deviate from the original law of the Torah in criminal
and evidentiary law, in accordance with the needs of the
time and the place, both the courts and the communal leaders
utilized their authority to enact communal regulations
(see *Takkanot):
Detailed legislation by way of regulations which were enacted
during all of the periods against the background of variegated
religious, societal, economic and moral circumstances…. This
legislation granted broad power to determine criminal penalties
and litigation procedures which conformed to the needs
of the time and of society, and was accompanied by a serious
warning not to infringe a person’s stature as a human being, and
his dignity more than necessary. After determining the scope
of this extended authority given to the halakhic authorities in
the area of criminal law Maimonides gives the following summary
of the Sages’ obligation when exercising these powers:
“All these matters are carried out in accordance with what the
judge deems necessary under the exigencies of that time, and
his acts should always be for the sake of heaven and he should
not take a frivolous attitude to human dignity” (Maimonides,
Yad., Sanhedrin, ch. 24., 10) (ibid., pp. 165–66).
Formally, such regulations are defined as “temporary provisions,”
but they have become part of substantive Jewish law in
practice. At various times, Jewish courts throughout the Diaspora
have exercised this authority even in imposing death sentences
without requiring a court of 23, and without the strin-
ENCYCLOPAEDIA JUDAICA, Second Edition, Volume 6 581