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The Qualifications of Witnesses, Lawrence H. Schiffman, Sectarian Law in the Dead Sea Scrolls, Scholars Press, Chicago 1983.

The Dead Sea Scrolls
1. The Law of Witnesses

The judges spoken of in the last chapter were not the only personae involved in the judicial process. While it was important to ensure that members of the judiciary met the requirements of the law, it was equally crucial that witnesses conformed to the rigid qualifications of the sectarian law. These qualifications are intended to ensure the reliability of the witness and include the requirement of membership in the sectarian community. The primary text for our inquiry will be CDC 9-23–10-3-

ואל יקובל עוד לשופטים להמית על פיהו אשר לא מלאו ימיו לעבור על הפקודים ירא את אל אל יאמן איש על רעהו לעד עובר דבר מן המצוה ביד רמה עד זכו לשוב

Let no witness/1/ be accepted by/2/ the judges to put (someone) to death by his testimony,/3/ whose days/4/ are not sufficient/5/ to pass among the mustered/6/ (and who is not)/7/ God-fearing./8/ Let no man be trusted/9/ against/10/ his neighbor as a witness, who violates any of the commandment(s)/11/ intentionally,/12/ until (his deeds) have been purified/13/ (sufficiently for him) to return./14/

The first part of this passage provides that in capital cases no one below the age of mustering and who is not “God-fearing” may serve as a witness. The second part of the text requires that no one who intentionally violates any of the commandments be accepted as a witness until his repentance is complete. Each of these aspects requires extensive clarification in order to understand the attitude of the sect towards the qualifications of witnesses. The scholarly controversy regarding the testimony of women at Qumran will also be treated in this chapter.

2. Minimum Age of Witnesses

In view of the fact that the manuscript reads ‘od, “still,” and that the first part of the law mentions judges, it might be proposed that the text deals with the requirements for judges. Understood in this way, the translation would read- “Let there not be accepted any more as judges to put (someone) to death by his sentence. . . .”

This interpretation is not plausible, however. First, the law of judges is explicitly stated elsewhere in this document, and it is not characteristic of this text to repeat itself in such matters. Second, the law immediately preceding this one is the extensive law of testimony (CDC 9-17–22), and the second part of this passage also deals with witnesses. It would be hard to believe that a short passage regarding judges would have been sandwiched between material relating to witnesses. Third, the age of mustering mentioned here differs from the age elsewhere (CDC 10-6–9) established for judges. Even more telling, it is lower than that established for judges (age twenty-five) in CDC 10-6–9, a passage which applies to both capital and non-capital cases. Finally, in such a view it becomes difficult to integrate the word ‘od. At best, this statement would then have to be understood as an emendation to a previous law that had once allowed younger judges. Now, however, they would henceforth be prohibited—a strange statement, to say the least. It is therefore certain that this law deals with the ages of witnesses and that it must be emended accordingly.

The first requirement of the witness in capital cases is that he will have passed the age of mustering. Use of the phrase la-‘avor ‘al ha-pequdim proves unquestionably that the age being described is twenty, for this phrase in the Pentateuch always refers to age twenty (Ex. 30-14; 38-26)./15/ Twenty was the minimum age for military service in biblical times, according to Scriptural reports./16/ The sect did not envision military service to begin until twenty-five, and, indeed, this was the minimum age for service in the judiciary./17/ Even when the sect, by a somewhat farfetched exegesis, transformed the minimum age into twenty-five, they avoided using the clause la-‘avor ‘al ha-pequdim in this connection, since it could denote no age other than twenty./18/

That twenty is intended in CDC 9-23–10-3 is confirmed in 1QSa 1-9f-

ו[בן] עשרים שנ[ה יעבור על ה]פקודים לבוא בגורל בתוך משפ[ח]תו ליחד בע[דת] קודש

And when he is twenty year[s old he shall pass among the mu]stered to enter into full status/19/ along with/20/ his fam[il]y,/21/ to join/22/ the holy congre[gation.]/23/

But this passage confirming the age of twenty as the age of mustering raises another question. What was the mustering for if not for military purposes? There can be no question that the sect saw itself as preparing—or better, in a state of perpetual preparedness—for the final eschatological battle. For this reason, much of its organizational structure is built along military lines. Yet in the law before us, the sect’s “peacetime” organization differed from its military structure. Even though twenty-five was established as the minimum age for military service, the traditional twenty was retained as the minimum age for full-fledged membership in the sect. The rights of testimony, voting in the sectarian assembly, and, as will be seen below, marriage were conferred with the attainment of this age. Mustering, then, referred to the system of governance and authority which the sect maintained in the present, pre-eschatological age.

The age of mustering is once again encountered in CDC 15-5f. where it is stated-

והבא בברית לכל ישראל לחוק עולם את בניהם אשר יגיעו לעבור על הפקודים בשבועת הברית יקימו עליהם

And as to anyone who enters/24/ the covenant from among all Israel, as an eternal ordinance,/25/ their sons who reach the age of passing among the mustered shall take upon themselves/26/ the oath of the covenant./27/

This passage discusses the transition from the status of the child of a sectarian to that of an independent sectarian. At the age of twenty, which is known to be that at which mustering occurred, the sons of the members of the sect could themselves become members with full privileges, provided they swore the oath of the covenant in which they took upon themselves the obligation to follow both the sectarian interpretation of the Torah and the various ordinances of the group.
The question might arise as to whether this passage refers only to males, as it has been translated here, or to females as well. It will be seen below that the context of the passage quoted from the Serekh Ha-‘Edah certainly favors understanding this law as referring only to males. Further, the mustering of the Pentateuch applied only to males,/28/ and it is most probable that this was the case at Qumran as well.

What was the position of women? It appears that the status of women in the sect (on which more will be said below) was determined only insofar as their husbands took on membership. Women whose husbands were part of the sect, and girls whose fathers were members, were considered members by virtue of this status.

Indeed, the same was the ruling of biblical law regarding the priest and his family, as to whether they could eat of the various priestly dues. The Torah specified (Num. 18-11f. and 18-25–32) that the household of the priest could share in the eating of the priestly dues (terumot). Further, even the slaves of a priest were to eat of these dues. But when a priest’s daughter married a non-priest, her rights to these offerings ceased. If she were childless and, due to the death of her husband or divorce, she returned to live in her father’s house, she again could partake of the terumot (Lev. 22-10–14).

Comparison to the laws of terumot is especially relevant since it is known that the sect, like the Pharisaic havurah, endeavored to fulfill the purity laws relating to the eating of terumah by the priests even in eating their regular, everyday victuals. Tannaitic halakhah regarding the havurah also dealt with the question of family members. It was only the male head of the household who became a haver, and the rest of his family derived their status in turn from him. Once a man had accepted his obligations as a haver before the members of the havurah, probably represented by a court of three of its members, he then could represent the havurah in “swearing in” his family./29/ On the other hand, if children were born to him once he had joined, they automatically received the status of haver./30/ If a haver married the daughter of an ‘am ha-’ares, however, she had to undertake her new status before the havurah (or its three representatives)./3l/ The only essential difference between this practice and that of the sect is that in the case of minors coming of age, the sect required an oath, whereas the havurah of tannaitic sources required public acceptance of the regulations of the haverim.

The phrase be-tokh mishpahto in our passage from 1QSa 1-9f. is susceptible to two interpretations. The first is that the twenty-year-old, still not married and not yet constituting an independent household, remains under the authority of his family, even when he attains independence within the sect, until such time as he should marry. After all, 1QSa 1-10f. (which will be discussed below) prescribes twenty as the minimum age for beginning family life.

Another possibility—and one which appears more attractive—is that from twenty, since it is expected that the young man will soon marry, he (and his family) will attain full status in the sect. The text would then be emphasizing that just as he, as the child of a (perhaps first-generation) sectarian, had automatically been able to join the sect without the need to pass through the novitiate, so the same privilege would be accorded to his family. Further, if he were to marry a woman whose family was not of the sect, she would automatically be granted the appropriate status upon their marriage. The parallels in biblical and tannaitic sources to this interpretation have already been treated.
J. Liver/32/ has noted that according to 4Q Ordinances 2-6–9 it was at the time of passing his first mustering that the now mature sectarian would give the half sheqel, as a once in a lifetime offering-

כסף ה[ע]רכים אשר נתנו איש כפר נפשו מחצית [השקל תרומה לאדני] רק [פעם] אחת יתננו כל ימיו

As to the money of valuation which they gave, each as an atonement for himself, a half sheqel as an offering to the Lord, he shall give it only once in his entire lifetime.

While this passage could take us far afield in relation to the biblical exegesis behind it, it should be noted that the sect understood Ex. 30-11–16 to refer only to the first mustering at age twenty. Only the first time did the male have to offer the half sheqel.

3. The Age of Twenty in Jewish Sources

L. Ginzberg has argued that the minimum age of twenty for witnesses in capital cases is a reflection of early Jewish law according to which the age of legal majority was twenty, not thirteen as in later Jewish practice./33/ Whether this is correct or not, it is certainly true that the age of twenty plays a major role in Jewish legal sources.

Tannaitic halakhah assumed that majority took place at puberty. According to the House of Hillel, puberty was assumed to take place between the twelfth birthday and the twentieth for females and between the thirteenth and the twentieth for males. The House of Shammai took eighteen as the maximum. Rabbi Eliezer suggested a compromise, namely that eighteen be accepted for females and twenty for males./34/ Rabbi Judah the Prince is said to have accepted eighteen as the maximum./35/ To the tannaim, then, all laws involving active observance had to be undertaken at the age of thirteen and one day for boys and twelve and one day for girls./36/ This would ensure that no adult (beyond puberty) who was obligated to observe the commandments would delay beyond the required point.

On the other hand, the Rabbis believed that some did not reach puberty until twenty. Hence, it was not possible to be entirely certain of majority until twenty. Indeed, Rabbi Judah the Prince required a minimum age of twenty for partaking of sacrifices (qodshe mizbeah), serving as precentor, and reciting the priestly blessing. This ruling is suggested by Ezra 3-8 which specifies that Levitical service was to begin at twenty./37/ Several amoraic passages state that the heavenly court does not punish anyone below the age of twenty./38/ Since below that age it is possible that physical majority has not been reached, the heavenly court gives the benefit of the doubt./39/

The Book of Jubilees 49-17 understands the obligation of eating the paschal lamb to begin at age twenty. C. Tchernowitz/40/ explains that the author was no doubt guided here by the use of ’ish in Ex. 12-4 which he understood to refer only to one above twenty, basing himself on biblical precedent. Indeed, a somewhat damaged but still legible passage in TS 17-8 likewise fixes the start of the obligation to eat of the paschal lamb at twenty years of age. Rabbinic law,/41/ however, allowed a child to eat of the paschal lamb as soon as he could eat the required minimum./42/

Tannaitic tradition in B. Hullin 24b reports that the priests in the Temple imposed their own requirement that officiating priests be at least twenty years old. Such a practice may lie behind 2 Chron. 31-17. At the same time, it is known from Ant. 15, 3, 3 (51) and War 1, 22, 2 (437) that Aristobulus III was appointed by Herod as high priest at the age of seventeen.

Ginzberg and Rabin cite P. Sanhedrin 4-7 (ed. Krot. 4-9, 22b) which states that judges in capital cases must be at least twenty years old./43/ Yet this statement sheds little light on the requirements for witnesses. Due to the juxtaposition of the discussion of the disqualification of witnesses and judges in M. Sanhedrin 3-1, it could conceivably be possible to construct an analogy between the ages of judges and witnesses in Rabbinic tradition. However, such an analogy cannot be sustained for the Qumran materials, wherein there is evidence that the required age of judges was at least twenty-five./44/

The context in the Palestinian Talmud shows that the concern of the amoraim was to exclude one who fails to attain sexual maturity. Since at twenty one still might be unsure of sexual maturity (majority), such an age requirement is proposed. This amoraic statement specifically indicates that money matters (dine mamonot) are not covered by it.

Two statements of Anan ben David have been taken by Ginzberg to indicate that Anan understood the age of majority to be twenty./45/ In one passage Anan says that one who enters a synagogue inebriated and is above twenty is “guilty of a capital crime.”/46/ Most probably this simply refers to his being guilty of an offense deserving death at the hands of Heaven, which, we have seen in the Talmudic view as well, begins only upon the age of twenty, when it can be assumed with certainty that physical majority has been reached.

It is also stated by Anan that contact with an unclean animal does not render a person impure unless he is at least twenty years old./47/ The actual nature of this contact is eating,/48/ as can be seen from Lev. 11-40 which Anan is here interpreting. The reason for the age of twenty is clear. Again, from this age maturity can be assumed, and, hence, responsibility for this offense. It is therefore not surprising that later Karaites do not adopt the view of Anan,/49/ as he never intended it as a definition of legal majority, only as the age for which a person was held responsible for his offense.

Philo adapts a series of three seven-year periods in which maturity gradually takes place. By seven a child has recognized reason and speech, by fourteen reproductive power, and by twenty-one completes his growth./50/ This clearly Hellenistic typology is simply too general to be understood as having any legal ramifications.

4. Moral Qualifications for Witnesses

The second qualification for a witness in a capital matter is that he be yare’ ’et ’el, “God-fearing.” While this term seems at best to be ambiguous, it specifies an exact requirement. In CDC 20-15–22 there appears a pesher-like passage which is based on Mal. 3-16–19. The phrase yir’e ’adonai in that passage is transformed, in order to avoid the use of the Tetragrammaton,/51/ into yir’e [’el]. From the context it is clear that the God-fearers of the Zadokite Fragments are the members of the sect./52/ If so, the second requirement of our passage is that the witness in capital matters be a member of the sect.

An important consideration is whether or not non-members of the sect would have been accepted as witnesses in monetary matters. Although there is no way of solving this problem on the basis of this passage, the strict regulations limiting financial contact between the sectarians and other Jews of Palestine/53/ make it doubtful that non-members of the sect could be accepted as witnesses in such cases. If so, why does this passage specify that witnesses in capital matters must be members of the sect? Such a provision would seem to imply that the testimony of non-members was accepted in financial matters. This contradiction is best resolved by the assumption that those who were in the various stages of the novitiate were permitted to serve as witnesses in financial matters, while only those who had been accepted as full-fledged members of the sect might testify in capital matters.

Pages 55-60

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