of the Rabbinical Assembly in Israel


Bet Midrash Virtuali
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[Cases involving] flogging [are heard by a panel of] three; it was reported in the name of Rabbi Yishma'el [that he was of the opinion that such cases are heard before a panel of] twenty-three. The intercalation of the month [is heard] before three. The intercalation of the year before three - this is the opinion of Rabbi Me'ir; Rabban Shim'on ben-Gamli'el says that they start with three, debate with five and conclude with seven; but if they concluded with three the intercalation is valid.

EXPLANATIONS (continued):

Our mishnah notes that Rabbi Yishma'el disagrees with Tanna Kamma and holds that cases involving flogging should be heard before a panel of twenty-three, as if they were because of a capital crime - as we shall learn later on in this chapter. In the Gemara [Sanhedrin 10a] the Amora Abbayyé explains that Rabbi Yishma'el uses an exegesis that is different from that used by Tanna Kamma. Rabbi Yishma'el uses a method of exegesis called "Gezerah Shavvah". To our modern sensibilities this particular form of inductive reasoning can seem very tenuous - and, indeed, the sages would only permit the use of a Gezerah Shavvah when it had been handed down from time out of memory. It basically involves finding a word that occurs in two different contexts, where its use in the one context illumines its use in another. In Numbers 35:32 we are instructed "not to take a ransom in place of the life of a guilty man condemned to die". In the verse that is the basis of the law of flogging we find the phrase "if the guilty one is deserving of a flogging..." Rabbi Yishma'el uses the term "guilty" that appears in both contexts to infer that just as the former context is about how to judge a capital crime, so is the latter context - and therefore cases involving flogging must be heard before a panel of twenty-three judges. As I said, this kind of reasoning is very tenuous, so it is not surprising that another Amora, Rava, suggests that Rabbi Yishma'el is thinking along different lines, and that he believes that the flogging is a substitute for a death sentence of which the culprit was deserving for having contravened a law of the Torah (as we explained in our last shiur) which sentence is commuted as it were to a flogging.

Tanna Kamma is a term that refers to the unidentified sage with whose opinion Rabbi Yishma'el disagrees. (The term means literally 'the first Tanna'.) According to Rav Huna in the Gemara [Sanhedrin 10a], the reasoning of Tanna Kamma is a little less circuitous. Deuteronomy 25:1 states that the litigants "shall go to trial and they shall judge them". "They" is a plural term and a minimum of plurality is two. However, since we have already established the principle that no Bet Din can consist of an even number of judges, we must add one extra judge onto the minimum of two implied in the Torah text. Almost invariably the halakhah follows Tanna Kamma - as it does in this case as well.

To be continued.


Bayla Singer:

In your shiur of January 28th, on compromises, at one point you say that Rav Huna was a student of Rav's, "and thus must be expected to reflect Rav's teachings." Is it really true that a student must be expected to agree with the content of the teacher's opinions? It has always been my understanding that the best teachers give their students the intellectual tools to use their own minds and make their own decisions; perhaps this is simply a recent development, and the situation was different in the times of Rav and Rav Huna?

I respond:

Yes, it is really true that a student was presumed to be in agreement with what he learned from his teacher. This is because of the very nature of the Unwritten Torah. Students actually lived with their teachers and learned from them by rote what had been passed down from previous generations. Differences could only arise with regards to "ĥiddushim" [novellae], which the student introduced in addition to what he had already learned. Try to think of the material that the teacher passed on to the student as a text book: the student must accept the material in the "text book" as is - otherwise the transmission of the Unwritten Torah would become an impossibility. It was required that the teaching be exclusively oral; each sage could have a written "megillat setarim" [private scroll] in which he jotted down his teachings for his own use, but he could not use this material when teaching, and after his death it "died" with him. Each sage was considered to be a vehicle for the transmission of the tradition as he had received it. Furthermore, a student who presumed to disagree with his teacher would not remain that sage's student for very long! As late as 12th century CE we find Rambam in Cairo, in private correspondence to a student of his in Baghdad, censuring him for having spoken rudely to the Rosh Yeshivah in Baghdad - who was one of Rambam's chief detractors. In his letter Rambam writes that "this is what I require from you if you are my student..." - thus warning his student of the consequences of not following his instructions. In other words, the world will judge me by your behaviour. As far as the case that Bayla raises, it seems to me that Rav Huna may be presumed to have learned from his teacher, Rav, that compromise is to be preferred to strict justice, as taught by Rabbi Yehoshu'a ben-Korĥah. Rav Huna's personal interpretation of that teaching was that he was required to offer the possibility of compromise through his arbitration to the litigants.

Also on January 28th I quoted the Gemara as saying that "Rabbi Eli'ezer, the son of Rabbi Yosé ha-Gelili, says that it is forbidden to effect a compromise, and anyone who does so is a sinner, .... Moses was wont to say 'Let justice pierce the mountain'; but Aaron was peace-loving and pursued peace, trying to effect peace between people... Rabbi Yehoshu'a ben-Korĥah says that it is a mitzvah [a desideratum, a religious duty] to effect a compromise, based on the verse [Zachariah 8:16] 'Judge within your gates Truth and the Justice of Peace'."

Art Kamlet:

Is this the basis for the statement in Pirke Avot that the world rests on three things - Truth, Justice and Peace?

I respond:

Yes it is, and the verse from Zachariah is quoted there as a "proof-text". By the way, one should also read Tractate Avot with an historical eye: at the beginning of Chapter One we find Shim'on ha-Tzaddik (who lived around the middle of the 3rd century BCE) saying that the world - of the sages - rests on three things: on the study of Torah, on the Temple ritual and on the performance of charitable actions. By the time we get to the end of the Chapter - about six centuries later! - the three things upon which the world exists are Truth, Justice and Peace, as Art quoted.

Art continues:

My comment, though, is that Aaron sought peace, tried to make compromises by telling little white lies. My understanding is by hiding the truth, Aaron told one party the other party said good things about them and is sorry for any hurts that were caused, and turned around and said the same to the other party. It seems like a case where truth is sacrificed for peace and I guess justice, rather than justice sacrificed for peace.

I respond:

It is established halakhah that one may tell "white lies" for the sake of peace! The sages, carefully scrutinizing the text of the Torah, find that even God tells "white lies" for the sake of peace! In Genesis 18:12, Sarah laughs at the idea that she will become pregnant because "my husband is too old". In the very next verse, when God reports Sarah's reaction to Abraham, God "handles the truth very carelessly", by telling him that she said "I am too old". And the sages draw the conclusion that God told this "white lie" for the sake of "Shalom Bayit" - harmony between a husband and wife.

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