Sanhedrin 068

Today's shiur is dedicated to our second grandchild and first granddaughter, who was born last Sunday evening.

1:
Our mishnah is very short. Perhaps this is the reason why the recension used in the Babylonian Talmud includes it as part of the previous mishnah – thus making that mishnah even longer than it already is! However, despite the fact that is is short it nevertheless neatly divides up into a Reisha [first section] and a Seifa [last section]. The Reisha is concerned with order of precedence; the Seifa is concerned with competence to judge.

2:
The courts that were presided over by more prominent scholars were also used by the population for purposes that we now associate with lawyers in secular law and rabbis in Jewish law. People would approach the court in order to receive instruction as to how to go about dealing with a certain issue: to ascertain the law before committing the deed. (This process in later Jewish custom became known as She'elot u-Teshuvot ["Questions and Answers" – 'responsa' in quasi professional usage]. From our mishnah it seems that regardless of whether the court was performing the functions of a lawyer (describing the parameters of the law and advising on it) or of a judge (adjudicating cases brought before it) – certain rules of precedence were followed. Our mishnah stipulates that when the discussion among the judges was concerning a case of "impurity or purity" the first scholar to give his opinion was the most prominent; however, in Dinei Nefashot, the order of precedence starts 'from the side' – with the least prominent of the judges. (What the scholastic prominence of a judge had to do with where he sat is part of the next mishnah, so we shall not let it detain us now.)

3:
It could well be that the division of halakhic jurisprudence into the categories suggested by our mishnah actually derives from a verse in the Torah.

Rashi [Western Europe, 11th century CE] explains the verse as indicating "between pure and impure blood, between finding for the defendant and the claimant, between a contagious and a non-contagious skin affliction, or where the scholars cannot reach agreement". On the other hand, Ibn-Ezra [North Africa, 12th century CE] offers, more plausibly and that "between blood and blood" refers to Dinei Nefashot, "between law and law" refers to Dinei Mamonot and so forth. Ramban [Western Europe 13th century CE] offers yet a further explanation – and so with many other commentators, each with his own view. However much they may disagree as to the details, they all seem to agree that the verse is organized in categories of halakhic jurisprudence.

4:
It seems obvious that one of the categories is concerned with adjudicating skin afflictions. (The basis of these laws is to be found in those 'boring' chapters in Leviticus, chapter 12 onwards that deal with epidermic phenomena.) It seems that until quite late times people with skin afflictions would be examined in order that the affliction (rash, scabs and so forth) be categorized according to Torah law as 'pure' or 'impure'. It would seem that there were, indeed, Kohanim [priests] who made a living at this craft! One midrash tells of a certain Kohen who used to examine people's skin afflictions; when he became impoverished he decided to try his luck in the Diaspora (plus ça change plus c'est la meme chôse – the more things change the more they stay the same). Since people were used to calling upon his judgment, he taught his wife the secrets of his craft so that they would not lose income during his absence [Midrash Tanĥumah, Tazria #8].

5:
To return to our mishnah. When discussing matters that were not concerned with Dinei Nefashot the first of the judges to express an opinion was the most prominent; the order of precedence then continued upwards until it reached the least prominent. The reason is fairly obvious. In Dinei Nefashot, if the first to express an opinion was the most prominent, no one speaking after him would find it easy to disagree with him. In Dinei Mamonot and in ritual questions this need not apply.

6:
The Seifa of our mishnah is concerned with judicial competence: who is qualified to sit in judgment. However, the question is not raised as regards legal qualifications, but qualifications of pedigree. In order to understand this issue of pedigree (and on the assumption that most people do not have the time or inclination to look it up in our web archives) I am simply going to repeat a shiur that we had a couple of years ago when studying Tractate Kiddushin.

1:
This mishnah, which is probably idealized to a certain extent, seeks to classify the "Returnees" [Shavei Zion], who returned to Judah from the Babylonian Exile under the leadership of Zerubabel into ten classes of pedigree.

2:
Historical note: … the first Bet Mikdash was destroyed in the summer of the year 587 BCE and there was a general transportation of the Judean population to Babylon by the conquerors, representing King Nebuchadrezzar. Perhaps less than 10% of the original population were actually left on Judean soil, and they were of the very lowest echelons of the socio-economic hierarchy. In Babylon the exiles seem to have maintained themselves in separate social groups and to have maintained to a very large extent their ethnic identity. Some 50 years later, in late September and early October of the year 536 BCE, the Persian war-lord, Cyrus, conquered Babylon in a lightening campaign and found himself master of an Empire that stretched from the Mediterranean seaboard to Afghanistan. Realizing that he simply did not have the logistical or technical means of maintaining control over so large an area by force, he posed not as conqueror but as the Liberator of all the subject peoples from the Babylonian yoke: all groups of exiles were free to return home. Life in Babylon could not have been bad since only a minority of the exiles actually returned to Judah under the leadership of Zerubabel (a legitimate claimant to the Davidic throne) and Joshua (the legitimate High Priest).

3:
In the society that these "Returnees" established in Judah, the "in people" were those who had been through the experience of Exile; the "out people" [Am ha-Aretz] were the indigenous population that had stayed put. In all historical probability it is this social dichotomy that our present mishnah [Kiddushin 4:1] seeks to reflect and perpetuate – though we must recall that the mishnah dates from a period some seven hundred years after Shivat Zion.

4:

• Kohen: a man who was a member of the priestly clan that traced its descent back to Aaron, Moses' brother, the first High Priest.
• Levi: a man who was a member of the tribe of Levi but who was not a member of the priestly clan within that tribe.
• Israel: a Jew of impeccable pedigree who was not a Kohen or a Levi.
• Ĥallal: The son of a Kohen and a woman who was prohibited to him because he was a Kohen (for instance, she was a divorcée). Ĥallalim ceased to enjoy priestly status in perpetuum, but no other disability applied. (Daughters of such a union were also, of course, '&292;allalot', but that had even less practical meaning.)
• Proselyte: a non-Jew who had embraced Judaism.
• Ĥarur: A manumitted Canaanite slave.
• Mamzer: a person who was born of parents who were prohibited from marrying each other by Torah law. For this reason translations such as "bastard" and "illegitimate" are misleading. In western law a bastard is a person whose parents did not happen to be married at the time of his birth. A Mamzer [or Mamzeret] is a person whose parents were prohibited by Torah law from marrying at the time of conception; the parents could not have married even if they had wanted to. The main cause of mamzerut is adultery by the woman. The non-adulterous union of a Kohen with a woman otherwise prohibited to him, does not cause mamzerut. (Many Conservative rabbis today consider the restrictions on the marriageability of a Kohen to be obsolete, and they have substantial halakhic reasons to support their opinion. In any case, this has nothing to do with mamzerut.)
• Natin [one 'given']: a person who traced descent back to the Canaanite inhabitants of the town of Gibeon. According to the biblical book of Joshua [9:1-27] the Gibeonites secured a non-aggression assurance from the Israelites by deceit and subterfuge. Joshua was true to his word, but the Gibeonites (a village a few miles north of Jerusalem) were 'given' [va-yitnem] to the Israelites as "woodchoppers and water-drawers". According to the Gemara [Yevamot 79a] Joshua decreed that they should not be permitted to intermarry with the rest of the Israelite nation, and King David later [9th century BCE] confirmed this decree.
• Shetuki, Assufi: These terms will be defined as part of the discussion on Mishnah 2.

5:
"Priests, Levites and Israelites" – Jews of presumed pure Jewish pedigree – "may freely intermarry" – i.e. even in a case where some law specifically prohibits the marriage (such as a Kohen to a divorcée), if contracted the marriage is valid.

"Levites, Israelites, Ĥallalim, Proselytes and Ĥarurim may freely intermarry" – i.e. Kohanim are prohibited from marrying Ĥallaliot, Proselytes and Manumitted Canaanite servants. To all intents and purposes there are no restrictions on Levites as such.

"Ĥarurim, Mamzerim, Netinim, Shetukim and Assufim may freely intermarry" – we note the fact that the Manumitted Canaanite servant belongs in two categories, and may freely marry almost anyone except a Kohen.

6:
From the purely historical point of view, I think we should see these categories as intended to preserve intact the social rank and pedigree of the "Returnees"…