Parashat Ha’azinu begins (Deuteronomy 32:1) with the invocation of heaven and earth as witnesses to Moshe Rabbenu’s song:

Give ear, O heavens, let me speak;

Let the earth hear the words I utter!

We find elsewhere in Deuteronomy as well that heaven and earth are called to testify to the covenant between God and the children of Israel.

Should you, when you have begotten children and children’s children and are long established in the land, act wickedly and make for yourselves a sculptured image in any likeness, causing the L-RD your God displeasure and vexation, I call heaven and earth this day to witness against you that you shall son perish from the land which you are crossing the Jordan to occupy; you shall not long endure in it, but shall be utterly wiped out (Deut. 4:25-26).

I call heaven and earth to witness against you this day: I have put before you life and death, blessing and curse. Choose life-if you and your offspring would live-(Deut. 30:19).

Gather to me all the elders of your tribes and your officials, that I may speak all these words to them and that I may call heaven and earth to witness against them (Deut. 31:28).

Secular biblical scholars often compare the berit that God established between Himself and the children of Israel to various treaty formulations by other peoples in the Ancient Near East. But they are forced to recognize one important difference. The other peoples invoke their gods as well as heaven and earth as witnesses, whereas in the Torah, only heaven and earth are called. For example, Moshe Weinfeld, in Deuteronomy and the Deuteronomic School (Oxford, 1972), p.62, writes as follows:

“In Hittite, Aramaic , and neo-Assyrian treaties the gods and other mighty forces of nature such as Heaven and Earth are invoked as witnesses and serve as guarantors that punishment will be executed should the treaty be violated. In the biblical covenant, on the other hand, the Deity could not be called upon as a witness, inasmuch as he constituted a party to the covenant, and so only the forces of nature could be invoked for this purpose, (Heaven and Earth, for example, in Deut. 4:26; 30:19; 31:28.).”

I think that this distinction can be formulated in halakhic terms: in our Torah, God Himself is a party, a ba‘al din to the berit that he established with benei Yisrael, and according to Jewish Law, ‘al pi din a ba‘al din cannot be an eid (a witness).

Some years ago, Rabbi Moshe Meiselman, in the midst of an article on another topic (The Rav, Feminism and Public Policy: An Insider’s Overview,” Tradition 33:1 [1998], pp. 1-30, on p. 8) quoted a remarkable interpretation of Maran Ha-Rav Joseph B. Soloveitchik, zatzal on the verses in Psalms (24:1-2) To the L-RD belongs the earth, the contents and the fullness thereof, for He has established it on the seas and made it form on the rivers. R. Meiselman wrote: “The Rav often explained that one cannot blithely say that the world belongs to God. This too must reflect a halakhic principle. Therefore the Psalmist adds for He has established it on the seas and made it form on the rivers. The halakhah that declares that “a workman owns the products of his work” underlies the fact that God owns the world. God’s ownership of the world, in the Rav’s view, is also subject to the rule of halakha. Halakha stands prior to all religious concepts and is the only source for their cognition.”

Following the approach of the Rav, we may say in this case as well that the verses in Sefer Devarim that invoke davka heaven and earth (but not God Himself) as witnesses express a halakhic principle, that a ba‘al din cannot become an eid. Halakhah’s timelessness and priority to our material universe emerges in all its glory.