The first mitzvah the Jewish people are given as a nation is the sanctification of the new month. This Sicha analyzes the centrality of this commandment and gives a fresh perspective to the concept of testimony.
This week’s Parsha recalls the first commandment that the Israelites received as a nation:
Text 1
G-d spoke to Moshe and to Aharon in the land of Egypt, saying, “This month shall be for you the beginning of the months, it shall be for you the first of the months of the year.”
Shemos 12:1-2
From the above verse, the Sages learn the requirement of establishing a new month. In order to establish the new month, witnesses must see the new moon, come to a Jewish court and give an account of what they saw. According to the Torah, in general, for proper testimony to be in place, it must consist of two witnesses reporting the same evidence. These witnesses may not be relatives.
Concerning the verification of the new moon however, there is a discussion in the Talmud as to whether this scenario is different from all others. There is a rabbinic opinion that believes that although, other testimony is not acceptable by relatives, in this case however, testimony is accepted even if the witnesses are related to one another.
Text 2
If a father and a son have seen the new moon, they should both go to [to Jerusalem], not that they can act as joint witnesses but so that if one of them is disqualified the other may join with some other witness. R. Shimon, however, says that a father and son and all relatives are eligible to testify to the appearance of the new moon.... What is the reason of R. Shimon? — Because it is written, and the Lord spoke unto Moshe and Aharon in the land of Egypt, saying, “This month shall be for you the beginning of months,” which implies, “this testimony shall be valid [when given] by you”. And the Rabbis? — [It implies], this evidence shall be entrusted to you.
Talmud, Rosh HaShana 22a
The reasoning of the opinion of R. Shimon, is his analysis of the verse in which the Almighty told Moshe and Aharon about the sanctification of the new moon. He deduced from its language that this specific testimony is accepted even when the witnesses are relatives. The verse says: “G-d spoke to Moshe and to Aharon in the land of Egypt, saying, “This month shall be for you.” He was essentially telling Moshe and Aharon that they, together, may sanctify the month. This implies concerning all other cases of two brothers (or other relatives saying testimony) that regarding the verification of the new moon, the testimony of two brothers would be acceptable, although it is an unacceptable testimony in any other scenario. The contending opinion views the words, “This month shall be to you,” not as a reference to saying testimony, but to accepting it. G-d was not instructing Moshe and Aharon that they can both be witnesses in regards to sanctifying the new month, rather, He was informing them that testimony regarding a new moon must be accepted in a court.
Uniqueness of this testimony
The opinion of R. Shimon that for this testimony the witnesses may be brothers, is due to the manner in which he interprets the verse. It is understood, however, that the reason the Torah differentiates between the testimony regarding the new moon and all other forms of testimony, is because of the inherent differences of each. Due to this distinction, R. Shimon understands that the testimony for establishing the month should be accepted from relatives, although regarding other matters, relatives are prohibited from saying a joint testimony. In other forms of testimonies, there is a concern that the witnesses may lie. The witnesses’ words establish the veracity of the situation that they claim had occurred. With regards to the new moon however, the testimony is not truly needed to establish the veracity of the events that they are claiming.
Here, the courts already knew on which day the moon was possible to be seen. For, in addition to visual testimony, the Torah also required the Jewish court to perform an actual calculation regarding the exact date that the new moon would appear. Hence, being that the courts were already aware of which day would be possible to see the new moon, the incentive for the witnesses to attest to an untruthful date would be mitigated, and therefore this type of testimony was believed by relatives as well.
Prohibition for relatives
R. Shimon’s opinion though, does not seem to be congruous with the general prohibition of accepting testimony from relatives. The reason that the Torah prohibits relatives from testifying on the same matter is not because they may lie, but rather, “it is (purely) a decree of the King [G-d].” Even when the relatives are completely trustworthy, their testimony is still not valid.
Text 3
The Torah did not disqualify the testimony of relatives because we assume that they love each other, for a relative may not testify either on his relative’s behalf or against his interests. Instead, this is a Scriptural decree. For this reason people who love each other or who hate each other are acceptable as witnesses even though they are not acceptable as judges. For the Scriptural decree disqualifies only relatives as witnesses.
Rambam, Laws of Testimony 13:15
Any other pair of witnesses who may have a pre-existing relationship—such as two people who have a deep love for one another, or individuals who have an animosity toward each other—which would also cause the validity of their testimony to be questionable, are indeed permitted to stand together as witnesses! It is therefore understood that the reason that relatives is not because they may lie but rather it is due to “a decree of the King” that is beyond human comprehension. What then, is the reasoning for R’ Shimon’s view? What is the difference with this scenario, which causes R. Shimon to believe that two relatives can indeed testify, regarding the establishment of the new moon? If the Torah’s prohibition of two family members testifying together is not based on a rational reason, but rather because it is the will of the Almighty, what difference is there in this regard, concerning establishing the new month, which causes the testimony of relatives to indeed be valid?
The essence of testimony
We can understand the reasoning of R. Shimon’s view through prefacing a general explanation of the legal structure of testimony. The essential purpose of testimony according to the Torah is not only to prove information as obtaining the declaration of two witnesses will not necessarily guarantee that the claim is true. Rather, the Torah’s system of testimony is simply a legal fiction. The Torah gives absolute weight to the testimony of the witnesses as if their words had been completely verified.
Text 4
We are commanded to render a [legal] judgment based on the testimony of two witnesses, even though we do not know if they are testifying truthfully or falsely.
Rambam, Principles of the Torah 8:2
The Torah says: “By the mouth of two witnesses...shall the matter be confirmed.” Even though for all intents and purposes the matter has not been verified, the Torah still considers it as if the matter has been confirmed. Being that testimony is not a proof that what the witnesses are saying is true, and we are not accepting their words because they are trustworthy, but only because Torah says that their words should be accepted, the same is true on the opposite end of the spectrum. Even when we do trust the words of two relatives, and do know that they are indeed telling the truth, we still cannot accept their testimony in a court. The strength of testimony that it is considered that the “matter had been confirmed” was not applied to relatives.
R. Shimon believes though, that we only need testimony in the manner in which it is considered that to be confirmed when we cannot confirm the matter ourselves. Being that the Jewish court had already made a mathematical calculation, and the day of the new month is clear from a mathematical calculation, we do not need their testimony to confirm the date of the new month. The testimony of witnesses is merely to verify that not only is this date the beginning of the new moon, but that the moon was seen as well.
The testimony was therefore of a different nature, as it was not meant to establish a fact, but to verify something that had previously been clear. Being that we do not need the classification of testimony to establish a fact, the testimony of witnesses who are related are accepted according to R. Shimon.
Converts
According to the above understanding of the essential difference between the testimony in regards to the new month and other forms of testimony, an additional question concerning R. Shimon’s view can be explained as well. The law is, that although relatives may not testify concerning each other, two brothers who converted may indeed testify concerning the other. The reason for this law is that converts do not have the halachic status of relatives.
Text 5
Converts are not considered as relatives. Even two twin brothers who convert may testify on each other’s behalf. For a convert is considered as a newborn child.
Rambam, Laws of Testimony 13:2
At the exodus from Egypt, the Israelites had the status of proselytes, and therefore Moshe and Aharon, though blood brothers were technically not related.
