Sanhedrin 129
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BET MIDRASH VIRTUALI
of the Rabbinical Assembly in Israel
RABIN MISHNAH STUDY GROUP
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זָקֵן מַמְרֵא עַל פִּי בֵית דִּין, שֶׁנֶאֱמַר "כִּי יִפָּלֵא מִמְּךָ דָבָר לַמִּשְׁפָּט" וְגוֹ'. שְׁלשָׁה בָתֵּי דִינִין הָיוּ שָׁם; אֶחָד יוֹשֵׁב עַל פֶּתַח הַר הַבַּיִת, וְאֶחָד יוֹשֵׁב עַל פֶּתַח הָעֲזָרָה, וְאֶחָד יוֹשֵׁב בְּלִשְׁכַּת הַגָּזִית. בָּאִים לָזֶה שֶׁעַל פֶּתַח הַר הַבַּיִת, וְאוֹמֵר "כָּךְ דָּרַשְׁתִּי וְכָךְ דָּרְשׁוּ חֲבֵרַי, כָּךְ לִמַּדְתִּי וְכָךְ לִמְּדוּ חֲבֵרָי". אִם שָׁמְעוּ אוֹמְרִים לָהֶם; וְאִם לָאו בָּאִין לָהֶן לְאוֹתָן שֶׁעַל פֶּתַח הָעֲזָרָה, וְאוֹמֵר "כָּךְ דָּרַשְׁתִּי וְכָךְ דָרְשׁוּ חֲבֵרַי כָּךְ לִמַדְתִּי וְכָךְ לִמְדוּ חֲבֵרָי". אִם שָׁמְעוּ אוֹמְרִים לָהֶם; וְאִם לָאו, אֵלּוּ וָאֵלּוּ בָּאִים לְבֵית דִּין הַגָּדוֹל שֶׁבְּלִשְׁכַּת הַגָּזִית, שֶׁמִּמֶּנּוּ יוֹצֵאת תּוֹרָה לְכָל יִשְׂרָאֵל, שֶׁנֶּאֱמַר "מִן הַמָּקוֹם הַהוּא אֲשֶׁר יִבְחַר ה'". חָזַר לְעִירוֹ וְשָׁנָה וְלִמֵּד כְּדֶרֶךְ שֶׁהָיָה לָמֵד, פָּטוּר; וְאִם הוֹרָה לַעֲשׂוֹת, חַיָּב, שֶׁנֶּאֱמַר "וְהָאִישׁ אֲשֶׁר יַעֲשֶׂה בְזָדוֹן": אֵינוֹ חַיָּב עַד שֶׁיּוֹרֶה לַעֲשׂוֹת. תַּלְמִיד שֶׁהוֹרָה לַעֲשׂוֹת פָּטוּר – נִמְצָא חֻמְרוֹ קֻלּוֹ:
The insubordinate sage: as it is said, "Should there be a matter in judgment that is beyond your ken" etc. There were there three Batei-Din: one met at the entrance to the Temple Mount, one met at the entrance to the Courtyard, and one met in the Gazit Hall. They would come before the one at the entrance to the Temple Mount and [the accused sage] would say, "This is how I interpreted [the Torah] and this is how my colleagues interpreted it; this is what I taught and this is what they taught." If [the judges] had heard [the Halakhah in this matter] they would say so, otherwise they would come before the Bet-Din that sat at the entrance to the Courtyard; [the accused sage] would say, "This is how I interpreted and this is how my colleagues interpreted; this is what I taught and this is what they taught." If [these judges] had heard [the Halakhah in this matter] they would say so, otherwise they would all come before the Bet-Din that met in the Gazit Hall, from which Torah proceeds to all Israel – as it is said, "… from the place which God shall choose…". If [the accused sage] returns to his town and continues to teach according to his former opinion, he is not culpable; but if he gives practical instruction he is culpable – as it is said, "… the man who shall act brazenly …" – thus he is culpable only when he gives formal instruction to act [in accordance with his own interpretation]. A student who gives practical instruction is not culpable, thus his more severe offence actually eases his situation.
DISCUSSION
Naomi Koltun-Fromm writes concerning possible implications of the case of the "insubordinate sage":
If the sages were so concerned with authority and majority opinion why did they consistently record minority opinions? Granted the mishnaïc and talmudic discussions are post-temple and in this particular mishnah the sages are discussing the "ideal" age when there was a temple and a supreme court in Jerusalem. Is there any consciousness in the rabbinic writings about their lack of final authority and hence record the minority opinions "just in case"? I respond: I think that the sages of the Mishnaïc period had no "consciousness … about their lack of final authority"; as today's mishnah teaches: they even saw their own legislation as over-riding Torah legislation in some ways! What the sages feared most of all was not their "lack of authority" but of speaking with more than one voice. While they could countenance with supreme collective urbanity the right of all sages to hold a different interpretative opinion – a different understanding of what might be implied in the Written Torah – they demanded that all "members of the club" recognize that once the majority view had been ascertained and legislated that it was binding on all Israel. To phrase their greatest fear differently: they wanted to prevent "Maĥlokot be-Yisra'el" – differences of halakhic practice in Israel. Thus the answer to Naomi's ruminations lies in two specific mishnayot.
Why is the opinion of an individual recorded as well as that of the majority, seeing that halakhah only follows the majority opinion? It is to prevent a situation in which some Bet Din might view with approval the opinion of some individual and rely on it [in its judgment]. For no Bet Din can over-ride the decisions of another unless it is greater in both wisdom and number.
Rabbi Yehudah says: Why is the opinion of an individual recorded as well as that of the majority to no practical purpose? It is so that if one person might say that "thus have I heard [is the law]"
The provision that "no Bet Din can over-ride the decisions of another unless it is greater in both wisdom and number" had the practical implication that it could not be done at all! For one of the unspoken premises of all the collective endeavours of the sages of the Mishnaïc period was that the older a certain tradition was the more valid it was, the earlier the sage the more authoritative. This was because it was axiomatic that the nearer a sage was in time to the origin at Sinai the more authentic his tradition was. (When the Mishnaïc age developed into the age of the Amoraïm this assumption was gradually reversed, and the ultimate view was hilkheta ke-batra'ei, the law follows the most recent sages.)
Obviously the question must arise as to how we have "deteriorated" from such halakhic unanimity to our modern halakhic pluralism. Rambam addresses this issue on his wonderful Introduction to his Compendium of Halakhah, Mishneh Torah. After having listed the chronological sequence of all the great luminaries from "Moses to Rav Ashi" in forty generations and having described the composition of Mishnah and Gemara, he continues:
Thus Ravina and Rav Ashi and their contemporaries were the last of Israel's really great sages, those that handed down the oral tradition, made laws and introduced customs that were accepted by all Israel wherever they resided. Rav Ashi compiled the Gemara (which was completed during the time of his son); with the passing of his Bet Din Israel had become widely dispersed in all countries, reaching the farthest isles. The world became full of discord, highways were ruined by passing armies, and Torah study entered a decline. No longer could Israel convene collectively with thousands and tens of thousands studying in the Yeshivot. Now individuals, those survivors that God summoned in each city and each town, got together to study Torah and to apply themselves to the works of all the sages who truly knew what the correct path was. The decisions of each Bet Din that arose after the Gemara did not reach out to all Israel because of the great distances and the bad communications. Since the Bet Din of any given town consisted of individuals [with no collective nation-wide authority] and since the Supreme Court of Seventy-One had become defunct years before the compilation of the Gemara, the people of one town could not impose their decisions on another. Thus, now, if one of the luminaries taught that a certain judgment is correct but it seems to a later Bet Din that that view does not accurately reflect the judgment of the Gemara, we do not necessarily head either the former of the latter opinion, but whichever seems to us more reasonable.
Granted that this picture is greatly idealized in its details, but the picture it paints has the hallmark of authenticity in its broader canvas.
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