The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz
This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.
According to the Me’iri, Masechet Sanhedrin should be placed first in the Order of Nezikin – damages. The logic behind this order is that it seems appropriate to place the rules regulating the appointment and establishment of judges prior to those tractates whose focus is the laws that the judges will apply to different cases. Nevertheless, the accepted order of the tractates has Masechet Sanhedrin following Masechet Bava Batra, whose final Mishnah (see Bava Batra daf, or page, 176) closes with the statement made by Rabbi Yishmael who recommended that anyone who wants to develop his intelligence should study the monetary laws. Thus, the first Mishnah in Masechet Sanhedrin begins with the words dinei mamonot – “the monetary laws.”
As presented in the first Mishnah, there are three types of courts in Jewish law:
- Ordinary courts of three judges whose purview is limited to monetary matters and kenasot – monetary penalties
- Sanhedrin ketana – courts of 23 judges, who ruled on issues of capital crimes
- Sanhedriah gedolah – the supreme court of 71 judges that sat in the Lishkat HaGazit on the Temple This court appointed the various Sanhedriyot ketanot, ruled on questionable cases and was reserved for judging high profile cases like a false prophet, the High Priest or a tribe that was suspected of sinning by committing Avodah Zarah.
The source of the term “Sanhedrin” is from the Greek – συνέδριον – where it means “assembly” or “council” and specifically an important council of judges or leaders. Rav Ovadiah mi-Bartenura offers an alternative source for the word. He suggests that it is an abbreviation for the expression sonei hadrat panim be-din – a group that “despises showing favoritism when in judgment” – one of the laudatory descriptions of the court.
The first Mishnah in Masechet Sanhedrin (2a) taught that for simple cases of monetary matters the appropriate court is made up of three judges. Several sources are offered by the Gemara for this number of judges. According to Rabbi Yonatan, the repeated use of the word elohim in Shemot 22:8 indicates that we need two judges. We do not want to have an even number of judges, since we want to allow court decisions to be made based on a majority ruling, so we add a third judge to the bench.
While this is the accepted ruling, several other opinions are presented in the Gemara-
Rav Ahah brei d’Rav Ika suggests that on a Torah level, one judge would be sufficient to act as a court, based on the passage in Sefer Vayikra (19:15) be-tzedek tishpot amitecha – “you (in the singular) must judge your fellow with righteousness.” He concludes, however that we cannot do this mi-shum yoshvei keranot – because of people who are not involved in commerce and do not know the law. Since we fear that the single person who steps forward to judge may be inappropriate, we insist on three judges. We can then be certain that at least one of them will be a good judge who will influence the others.
Shmuel rules that when two judges act as a court, their ruling is accepted, although they are considered to be a bet din chatzuf – an arrogant court. He apparently accepts Rabbi Yonatan’s teaching that the third judge is appointed in order to avoid an even number, but accepts the ruling of a court that did not follow that rabbinic enactment.
Rabbi disagrees with the basic ruling and requires five judges. Our Gemara concludes that he also accepts Rabbi Yonatan’s teaching, but he differs in how he understands the word elohim. According to Rabbi, since the word elohim is plural and is repeated twice, the basic requirement is to have four judges, and the fifth is added so that there should not be an even number of judges on the court. The Talmud Yerushalmi offers an alternative source for Rabbi. According to the Yerushalmi, Rabbi compares the judges to witnesses – just as there must be two independent witnesses, so there must be two additional judges beyond the basic requirement of three.
As we learned on yesterday’s daf (=page) according to Rabbi Yehuda HaNasi, since the word elohim in Shemot 22:8 is plural and is repeated twice, the basic requirement of a court is to have four judges, and the fifth is added so that there should not be an even number of judges. This stands in contrast with the Mishnah‘s requirement of three judges, which, according to Rabbi Yonatan, we learn from the twice repeated use of the word elohim with an additional judge to avoid a split decision. The Gemara explains that he does not read each of the words elohim as requiring two judges since the word is lacking a vav when it is written in the Torah.
On today’s daf the Gemara brings Rabbi Yitzhak bar Yosi who quotes Rabbi Yochanan as explaining that Rabbi Yehuda HaNasi’s understanding of the passage is based on the fact that he believes yesh em la-mikra – that when interpreting a pasuk we emphasize the way it is read rather than the way it is written. The other position would be yesh em la-masoret – that what is important for interpreting the pasuk is the tradition that we have regarding the way it is written.
The Gemara offers other examples of yesh em la-mikra vs. yesh em la-masoret. For example, in determining the number of parchments and compartments that we need in Tefillin shel rosh (Tefillin placed on one’s head) Rabbi Yishmael says that we derive the four compartments from the four times the word totafot appears in the Torah (twice in Shemot 13:16, Devarim 6:8 and Devarim 11:18). Clearly Rabbi Yishmael rejects yesh em la-mikra – even though totafot is a plural form, we only have four compartments. Rabbi Akiva disagrees on a different point, suggesting that the word totafot actually means four, since the word tot means two in the Kafti language and the word pat means two in the Afriki language.
Scholars have attempted to identify the languages and words that Rabbi Akiva is referring to – e.g. the word aft in Coptic. Nevertheless, no clear determination has been made.
Today’s semikha, or Rabbinic ordination, is a last remaining hint of what was once an institution that connected the recipient to Moshe Rabbeinu standing at Mount Sinai. While at one time the Rabbi received his ordination from his teacher who was part of a chain of tradition, that true semikha was lost with the exile of the Jewish people from Israel.
Common semikha today is called yoreh yoreh, which indicates expertise in Yoreh De’ah, the section of the Shulchan Aruch whose focus is on issur v’heter – what is permissible and what is forbidden – mainly in the realm of kosher food. A higher level semikha is called yadin yadin, which indicates that the student has also shown fluency in Choshen Mishpat, whose focus is on interpersonal and monetary matters.
These terms – yoreh yoreh and yadin yadin – are actually a question and a response, as is clear from a story told on today’s daf.
Our Gemara reports that there was an existing tradition in both Israel and Bavel that someone who wanted to rule as a judge would need to receive permission from the head of the community – the Reish Galuta in Bavel and the Nasi in Israel. Once such permission was granted, even if the judge erred in his decision, he would not be personally responsible for paying for the mistake. The Gemara relates that when Rabbah bar Hannah came from Israel to Bavel his uncle, Rabbi Chiya, presented him to Rabbi Yehuda HaNasi and asked “yoreh?” – can he act as a judge in matters of issur v’heter? Rabbi Yehuda ha-Nasi responded “yoreh!” Rabbi Chiya continued and asked “yadin?” To which Rabbi Yehuda ha-Nasi replied “yadin!”
The Gemara relates that Rabbi Chiya made one further request, one which is no longer in the lexicon of yeshiva students today. He asked “yatir bechorot?” Will he be allowed to rule on questions of a blemish on a first-born animal? Here Rabbi Yehuda ha-Nasi replied “al yatir!” He cannot. The Gemara explains that it was not a lack of knowledge that kept him from receiving this ordination, as Rabbah bar Hannah had spent 18 months living amongst the shepherds in order to learn these laws, rather he knew the material so well that Rabbi Yehuda HaNasi feared that others would come away with incorrect lessons because they would not understand the nuances that led him to make his decisions.
When two litigants come before the court, what is the best approach? Should the judges insist on hearing the case and deciding it based on the straightforward reading of the law, or should they offer arbitration and try to reach some level of agreement and accommodation?
This question is debated in a baraita that is brought on today’s daf.
The baraita opens by teaching that just as an ordinary court decision is made by three judges, so a compromise also must be done by three judges. Once a decision has been made, however, the judges can no longer offer a compromise.
Rabbi Eliezer, the son of Rabbi Yossi ha-Galilee argues that under all circumstances it is forbidden to offer a compromise, and offering a compromise is the equivalent of sinning. He understands the passage in Devarim (1:17) ki ha-mishpat le-elokim hu – to mean that the rendering of justice is a religious obligation, and any attempt to circumvent that is an evil act.
Rabbi Yehoshua ben Korcha rules that it is a mitzvah to offer a compromise to the litigants. Quoting the passage in Zechariah (8:16) that teaches “truth, justice and peace you shall judge in your gates” he asks how justice and peace can be done together. He sees these two values as ones that will contradict each other when placed together in a courtroom. Rather, he suggests, justice and peace can be reconciled by means of a compromise that is fair and leaves both sides feeling vindicated.
It is interesting to note that two different terms are used for compromise in this Gemara. Rabbi Meir who objects to the idea of compromise calls it bitzu’a, while the Chachamim who are open to the use of compromise call it peshara. While peshara simply means a compromise (like the Hebrew word for lukewarm water – mayim poshrim), bitzu’a carries with it negative connotations. The Ramah suggests that its source is the word betza meaning “dishonest gain” since Rabbi Meir views the idea of bitzu’a as taking money that truly belongs to one party and forcing him to share it with the other party. According to the Rosh the word bitzu’a means to break, which indicates something that should be avoided.
In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit www.steinsaltz.org or contact the Aleph Society at 212-840-1166.
The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.