The Humiliation of Slaves and the parameters of "brotherhood" (88A)
Humiliation in the case of a Canaanite Slave
In the mishna on p. 87a the Tannaim disagree whether there is liability for boshet (humiliation) in the case of a slave (the Sages) or not (Rabbi Yehuda). In the Gemara on p. 86a we learned, at least according to the Gemara's first answer, that even though the humiliation suffered by a slave is less than that suffered by a free man, even Rabbi Yehuda agrees that the phenomenon of humiliation exists even in the case of a Canaanite slave, and it is even subject to monetary quantification of the type that is ordinarily made with respect to liability for boshet. Rabbi Yehuda's distinction between a free man and a slave does not relate then to the existence of the injury, but to the right to compensation for the injury. Rabbi Yehuda maintains that this entitlement is unique to a limited group, and our passage on p. 88a explains that even the Sages agree about this limitation – that the Torah imposes liability for boshet only in the case of humiliation caused to someone who is included in Jewish "brotherhood":
What is the reason of Rabbi Yehuda? As Scripture says: "When men quarrel together one with his brother" - the law applies to one who can claim brotherhood and thus excludes a slave who cannot claim brotherhood. And the Sages? They would say that even a slave is a brother in so far as he is subject to commandments.
It is possible to understand that the reference here is to a brother-like connection between the party causing the humiliation and the party suffering the humiliation, which constitutes the foundation of the interpersonal injury that can give rise to liability for boshet. However, from the passage itself and from what appears later, it would seem that we are not dealing here with a connection, but rather with a condition for the definition of the humiliated party himself – only someone who is part of the Jewish brotherhood is entitled to compensation for his humiliation.
This law joins other laws regarding which the Torah sets a high standard of liability with respect to a Jew, e.g., the return of lost property and lending money at interest. In our case, however, there are additional novelties as well. First, we are not dealing with a religious duty, but with monetary liability for an injury. It is clear from the passage that even if we assume that a Jew who injures a non-Jew is liable (as opposed to the case where his property caused the non-Jew damage), and even if we say that a Jew who causes an injury to a non-Jew is liable for shevet (loss of livelihood), ripuy (healing) and tza’ar (pain), he is not liable for boshet.
Second, if we are dealing not with a connection between the party who caused the humiliation and the party who suffered the humiliation, but with the definition of the humiliated party, then a non-Jew who caused humiliation to a Jew should be liable (as opposed to the case of restoring lost property or lending at interest, where there is symmetry).
And third, and this is an important point for our entire passage, were are dealing here – at this stage according to the position of Rabbi Yehuda – with an internal distinction within the community that is obligated in the commandments between different circles. The circle that is relevant for boshet is more restricted than that which exists regarding lost property and usury – "one who can claim brotherhood" (we shall see below that the Tosafot extended this to usury and other realms).
According to the Sages, the brotherhood required is the very obligation – even if only partial – in the commandments. But according to Rabbi Yehuda a slave is not included in this brotherhood. Why not? Some Rishonim explain, with certain differences between them, that the deficiency lies in the fact that the slave has no legal relationships, that his children are not legally related to him (and therefore they are not brothers), or the very fact that he has no relatives. It is possible to understand that we are not dealing here with the foundation of the disqualification, but with a sign that the slave is not a normative person who is capable of establishing a real family and being part of the community (as the Rishonim cite: "a nation that is similar to an ass"). Alternatively, this can be understood as the reason, that the very absence of connection to those surrounding him removes the slave from the category of brotherhood.
Rashi explains that what removes the slave from the category of brotherhood is his prohibition to marry into the community of Israel. Rashi assumes the position that is prevalent among the Rishonim, that this prohibition is by Torah law, in contrast to the position of the Rambam (Hilkhot Issurei Bi'a 12:11) on this point. The Torat Chayyim and the Penei Yehoshua ask ad loc. why then is a mamzer (bastard) not excluded from the payment made for boshet? Surely he too is forbidden by Torah law to marry.
Rabbi J.B. Soloveitchik, in his printed shiurim, proposes that in itself the prohibition to marry does not exclude a person from the category of brotherhood. What excludes a person from the category of brotherhood is only a prohibition to marry that stems from a deficiency in the sanctity of Israel, which applies in the case of a slave, but not in the case of a mamzer. While it is true that a Canaanite slave undergoes a conversion process, according to many understandings his conversion is only partial. The Rambam, for example, implies that the second immersion that a Canaanite slave undergoes at the time of his release from bondage is necessary by Torah law, so that he should be obligated in the commandments like a man. His first immersion obligated him in the commandments like a woman, and his second immersion completes it, so that he has a full obligation.
The Tosafot imply that their position in general, that a woman may recite a blessing over a positive time-bound commandment as one who performs a commandment without being commanded to do so, applies also to a Canaanite slave. Rabbi Soloveitchik notes that his grandfather, Rav Chayyim, thought otherwise. A woman has the full sanctity of Israel together with an exemption from certain commandments, but a slave has only partial sanctity of Israel, and therefore he has no connection to the commandments that were not given to him. Rabbi Soloveitchik proposes that the slave's prohibition to marry into Israel also stems from the fact that he does not have the full sanctity of Israel. This is also what is implied by the Rambam (though according to him it is only a rabbinic prohibition: "Slaves that have been immersed for the sake of servitude and accepted the mitzvot in which slaves are obligated, have departed from the category of gentiles, but have yet to enter the category of Jews. For this reason, a maidservant is forbidden to a free Jew." It seems to me that the emphasis, for our purposes, is not on the sanctity, but on the belonging to the "collective of Israel," which makes it difficult to define a slave as a "brother."
Rabbi Soloveitchik's explanation is not free of difficulty. Surely about a mamzer as well it says: "A mamzer shall not enter the congregation of God." Thus there is a deficiency in his belonging to the congregation. See Tosafot Rid, Kiddushin 69a, who explains that for this reason the Torah's prohibition to have sexual relations with a Canaanite slave (which is derived from the verse, "There shall be no male prostitutes of the sons of Israel"; Devarim 23:18), does not apply to a mamzer: "'There shall be no male prostitutes' does not apply to a mamzer, for it is written: 'of the sons of Israel' – the prohibition falling upon a mamzer that bars him from entering the congregation diminishes his belonging to the 'sons of Israel.'" This notwithstanding, there exists a difference between the two, and a slave is only a partial convert, whereas a mamzer is a full Jew.
[We explained above that the requirement of brotherhood for liability for boshet according to Rabbi Yehuda does not relate to the relationship between the person who caused the humiliation and the person who suffered the humiliation, though logically there would have been room for such a requirement. Rather we are dealing with a condition in the definition of the humiliated party who is entitled to compensation. According to this, it would seem that a slave who caused humiliation is liable for boshet, and that following his release from slavery he will be liable to pay. The Rashba, however, writes (above 86b), in the context of the position of Rabbi Yehuda that a blind person is exempt from liability for boshet, that even a slave is exempt from liability for boshet, as part of the derivation of "your eyes, your eyes, from false conspiring witnesses."
If we join this to our passage, there is room to ask whether we are dealing with a law regarding the relationship between the person who caused the humiliation and the person who suffered the humiliation, or that even liability for boshet follows from the special standing of Israel and those who enjoy brotherhood with them. As for the relationship between brotherhood and disqualification from giving testimony that arises from the Rashba, the matter comes up also in our passage, as we shall see below.]
The Other Laws of Brotherhood
The Gemara does not stop with the novel law regarding the need for brotherhood with respect to boshet, but rather it extends it to many other laws, which require various levels of belonging to internal circles among the people of Israel that are set according to various different criteria.
As for a false conspiring witness (eid zomem), the possibility is raised that he is only liable if he had testified against someone who is defined as a brother (and a question arises whether "and you shall remove the evil from your midst," rejects this initial understanding or creates an alternative basis for liability). Regarding the monarchy, it says that there is a special requirement of "from the choice ones among your brothers," and therefore even a convert does not suffice – he has the full sanctity of Israel, but this does not give him the status of "choice." The Tosafot (s.v. dikhetiv) extends this to other laws as well, arguing that according to Rabbi Yehuda there is no liability for kidnapping a slave; fundamentally there is no prohibition to lend him money at interest or to defraud him, only that there is no practical difference, because whatever is acquired by a slave belongs to his master; even with respect to charity, the matter is somewhat cloudy: "there is no obligation to give charity to a slave." I have difficulty with this, but it is possible to understand how they reached their conclusion in light of the passage.
I will not hide the fact that the general message arising from the passage is not clear to me. I know that the people of Israel are a chosen people, and that even within the people of Israel there is an inner circle with a greater level of sanctity, the priestly tribe. But our passage speaks of grading different people with respect to their status as Jews – there are Jews at the basic level, there are second-class Jews who are not "your brothers," and there are high-class Jews – "from the choice ones among your brothers." The justification for this grading and for the various laws that follow from it is not fully clear to me, and I would be grateful to anybody who helps me understand it.
As for the criteria that define belonging to the various circles, mention has been made of family connections, obligation in the commandments, meticulous observance of the commandments, and connection to circumcision.
As for circumcision, the Gemara saw in it a certain weakness in the belonging of a woman, "for she is not fit for circumcision," as opposed to a slave "who is fit for circumcision," and a minor "who is included in circumcision." A minor, of course, is not commanded to perform circumcision, and many Acharonim maintain that a slave as well is not commanded to perform circumcision, but that his master is obligated to circumcise him. Thus we should understand that the point is not that a woman is exempt from the personal obligation to circumcise herself, but that she is excluded from any connection to the commandment.
The Rishonim question this’ as a woman is simply lacking a foreskin. The Tosafot write that some explain that the reference is to the woman's exclusion from the commandment to circumcise her son, but they prove from the passage that this is incorrect. The Shita Mekubetzet cites the view of Rabbeinu Yeshaya, that the derivation is from the fact that a woman is not even commanded to let a drop of blood, something that is technically possible. But this position is also difficult, for the letting of a drop of blood is only performed at the site of circumcision, and somewhere else is not considered the letting of a drop of blood. The most persuasive view is that of the Tosafot: "Even though circumcision is not relevant to her, it is a question." The fact that the Torah chose to connect a commandment that is so fundamental in fashioning Jewish identity to the male organ raises weighty questions, but it is certainly understandable why it is used as a criterion of belonging to the circles discussed in the passage. See the Gemara in Avoda Zara (27a) that cites two sources for the law that a non-Jew is disqualified from performing circumcision, and establishes that the practical difference between them is whether a woman is fit to circumcise: There is a derivation from the words "himol yimol," that only one who belongs to the community of circumcised is fit to perform circumcision, and according to this a woman is fit to perform circumcision, for she "is like one who is circumcised." But there is also a derivation from the words, "But you shall keep my covenant," and according to this a woman is disqualified because the bottom line is that she is not connected to this commandment (see Rav Chayyim on Shas, no. 254).
Disqualification from giving testimony
One of the novel ideas arising from the discussion in our passage is that many of the disqualifications from giving testimony stem from a deficiency in brotherhood, or are at least connected to the circles under discussion.
The Gemara's question: "But again would you now also say that according to the Rabbis, a slave would be fit to give testimony, as it is written: 'And behold, if the witness be a false witness and has testified falsely against his brother'" – implies that a key factor in establishing who is fit to give testimony is the witness's relationship to brotherhood. The Gemara's answer: "That he is disqualified from giving testimony can be learned by means of an a fortiori argument from the law in the case of a woman: for if a woman who is eligible to enter [by marriage] into the congregation [of Israel] is yet ineligible to give testimony, how much more must a slave who is not eligible to enter [by marriage] into the congregation [of Israel] be ineligible to give testimony?" As Rashi notes, a woman's disqualification from giving testimony is not derived from "his brother," but rather from "and the two men shall stand." However, the Gemara thought that one can extend the law by way of a kal va-chomer argument from a woman to a slave, the woman's superiority to a slave being that she can enter into the congregation of Israel to marry. The Gemara refutes this kal va-chomer argument, saying that the woman also has a certain inferiority to a slave in that she is not connected to circumcision. From all this it seems that the scale of brotherhood is an important criterion, and it is possible that it even underlies a woman's disqualification from giving testimony.
Even if this is incorrect with respect to a woman, the impression that rises from the Gemara is that a slave's disqualification from giving testimony is based on the fact that he is not "his brother." See the Rambam:
Slaves are disqualified from offering testimony according to Torah Law, as it is stated (Devarim 19:19) "And you shall do to him as he conspired to do to his brother." Implied is that his brother is like him. Just as his brother is a member of the covenant; so, too, the witness must be a member of the covenant.
By extension, we can infer that a non-Jew is certainly not qualified. If slaves who are obligated in certain commandments are disqualified, all the more so is a non-Jew disqualified. (Hilkhot Edut 9:4)
The derivation suggested by the Rambam to disqualify a slave from giving testimony is not spelled out in the Gemara, and neither is the kal va-chomer argument regarding a non-Jew (see the Rambam's commentaries). But the fundamental direction certainly accords with what emerges from the plain sense of our passage: There is a requirement of brotherhood, a slave is disqualified because of it, and there is certainly no room to accept the testimony of a non-Jew. The Rambam takes this line of thought a step further. According to the Rambam, a mentally incompetent person is disqualified from giving testimony, not as one might have expected because he lacks reason, but because he is not obligated in the commandments (ibid. halakha 9)!
This understanding may not be universally accepted. The Tosafot (s.v. yehe) even cite a Rashi in Gittin that trustworthy non-Jews are fit to give testimony. Even if this is not necessarily the view of Rashi, this is the explicit position of Rabbeinu Yakir and the Sefer ha-Chokhma quoted in the Mordechai, Gittin, no. 324. Objections were indeed raised against these Rishonim from our passage, and the simpler and more prevalent view appears to be that of the Rambam.
Sources For the next Shiur – Bava Kama 23
"kinyan peirot ke-kinyan ha-guf dami" (88a-88B)
The next two pages (88a [bottom] until 90a in the mishna) deviate from the issue of injury and deal with a number of weighty issues in the orders of Nashim and Nezikin. For the next shiur, learn the Gemara until 88b, bottom, "ha-ba'al motzi mi-yad ha-lekuchot." The shiur will focus on the disagreement whether or not "kinyan peirot ke-kinyan ha-guf dami" – i.e., whether "kinyan peirot" – the right to usufruct, the right to use and enjoy the profits and advantages of something belonging to another person - are considered akin to "kinyan ha-guf," full-fledged ownership over the property. Our passage centers on the issue whether the owner of the kinyan ha-guf can sell his property to another person. We will also deal with the enactments instituted in Usha connected to this matter. Additional sources:
1. The disagreement between Rabbi Yochanan and Resh Lakish – See also Bava Batra 136a in the mishna and in the Gemara until "peira le-achar mita," and at the end of the page there, "itmar makhar" until 136b, "adifa lei ka mashma lan." Try to explain the different positions and the essence of the disagreement.
2. Rashi, on our passage, s.v. de-lo met; Tosafot Yevamot 36b, s.v. ve-Rabbi; Ri Migash and Chiddushei ha-Ran on the sugya in Bava Batra.
3. Tosafot Yevamot 36b, s.v. kinyan.
 See the words of the Rashba below, where he implies otherwise.
 Rashi, in the reading printed in the margin; Tosafot, s.v. yatza.
 See Shita Mekubetzet later in the passage who cites the words of the Tosafot Rosh in the name of the Maharam Mi-Rotenberg, who asks why they do not prove from a mamzer that the prohibition to marry into Israel does not imply disqualification for giving testimony, and he answers that this argument can easily be refuted: "For a mamzer is obligated in all the commandments." He seems to have in mind, like R. Soloveitchik, that a mamzer’s prohibiton to marry is different from a slave’s prohibition, and that it doesn't reflect a deficiency in the full sanctity of Israel in him.
 Gittin 40a, s.v. kesherabu.
 This is what follows from the matter of a robber, according to the explanation of Tosafot, s.v. ela, as opposed to the Rashba, s.v. ela, who explains that the point regarding a robber is his exclusion from the commandment to judge owing to his disqualification.
 Rabbi Akiva Eiger, ad loc.; Minchat Chinukh, commandment 2; and others.
 I assume that Rabbeinu Yeshaya means that the Torah could have commanded that a woman let a drop of blood from her private parts, and then that would be considered covenantal blood. This stands in contrast to the commandment of circumcision, an activity that has no connection whatsoever to a woman.
 This is the derivation in Shevu'ot 30a. See the Rambam who offers a different derivation: "'According to the testimony of two (shenayim) witnesses.' The verse uses a male form and not a female form" (Hilkhot Edut 9:2).
 Rav Yehuda Amital, ztz"l, proposed an explanation of these views, that it was necessary to validate the testimony of non-Jews in order that they be able to fulfill the commandment of establishing courts in which they are commanded as part of the seven Noachide laws, and in the case of the slaves the Torah left the rationale for disqualification in place. (The matter requires further study, for according to the simple understanding, in order to fulfill the mitzva of establishing courts, there is no need for fitness for testimony according to the laws that apply to Israel, as the Rambam writes in Hilkhot Melakhim 9:14 that even relatives may offer testimony in non-Jewish courts).