Sanhedrin 007

Sherry Fyman:

When you refer to a particular translation as reflecting rabbinic interpretation I would assume that you mean "the consensus that ultimately coalesced on this point." It seems like you're describing a reasonably homogeneous society. What happened before there was this uniformity of understanding? Did the judges in each case feel bound to represent the majority view in their community on how, for example, "clean [of guilt]" was to be interpreted or were they expected to apply their own personal understanding? In your other example, what if a person found himself in a community where 2 of the 3 judges on the panel felt that the verse requiring death to the owner of an goring ox should be taken literally? Also, in cases of accusations of theft, did convictions depend on solely eyewitness testimony?

I respond:

I do not think that there has ever been a "consensus that ultimately coalesced" in the Unwritten Torah [Torah she-b'al-peh]. It's very nature means that the development of Torah is continuous and never-ending – even in our own times. This is surely the very essence of Conservative Judaism's teaching. So even the written Midrashim only reflect the "present state of affairs" as it were, and do not preclude the possibility of later "ĥiddushim" [novellae]. However, it is true to say (and this is possibly what Sherry means to imply) that in many cases the direction which a certain midrash takes has become the accepted course for the later development of Halakhah.

I am not sure that we could describe the society in which the sages of the Tannaitic period lived as being homogeneous – first-century Eretz-Israel, for instance, was a society that was composed of Jews and non-Jews; but even if we count only the Jews, we have Pharisees and Sadducees, Bet Hillel and Bet Shammai, Zealots and the Peace Party (of Rabban Yoĥanan ben-Zakkai) and so forth. And all these differing tensions contributed to the making of Halakhah. (Perhaps it was because of this non homogeneous society that the sages were so tolerant of differing views. Mishnah Yevamot 1:4 states that in matters as important as personal status and matrimonial law, even though Bet Shammai and Bet Hillel differed in the most fundamental aspects, the two groups never ceased to intermarry.)

Thus, in my view, at no stage was there a "before" stage. Always and everywhere, Torah Law requires the judge to use his head. He must know the law and apply it, but in arriving at his understanding of the law in any given situation "the judge can only rely on what his eyes see" [Bava Batra 131a, Sanhedrin 6b]. If Sherry's question is concerned with the determination of the law – development of the Unwritten Torah – and not its application, then please read what I wrote in the Introduction concerning Midrash. (You can download it from our website archives.)

There could never be a situation in which "two or three" judges of a Bet Din shel Hedyotot could deliberate on the imposition of the death penalty since all such cases had to be judged before a Panel of Twenty Three, all of whom had to be judges fully qualified in Torah she-b'al-Peh. We shall discuss this kind of court later in this chapter, and the boundaries and function of testimony later in this tractate.

Art Kamlet:

Suppose the man is too poor to pay any sort of a ransom, any sort of a fine? Does the court assess a very tiny fine and let him work it off? If so, the court would be favoring him in sentencing because he is poor. Is the man compelled to indenture himself to another in order to work off his fine?

I respond:

Justice must always be done. If a fine is what justice requires, a fine must be paid. We dare not make one law for the guilty rich and another law for the guilty poor – even for the best of reasons. The Gemara [Sanhedrin 6b] deals with the question that Art has raised:

David Sieradzki:

Uri Sobel asked: Who brings the charge in the case of a ritual transgression? Can these be tried at all? You answered his second question in detail, but … I didn't see the answer to the first. I'll compound the question. Assuming no public prosecutor, then the only way to have a trial on the charge that someone has violated Shabbat (for example), would be for some private individual to bring charges. But, assuming the charges are true, doesn't that run smack into the prohibition of Lashon Ha-Ra (publicizing truthful, but damaging, information about someone)? Of course if the charges are false, then at least under my understanding of Torah law … wouldn't the person bringing the charges be liable for whatever punishment would have been given to the falsely accused individual? (In this case, the death penalty.)

I respond:

David is quite correct in assuming that all charges must be brought by private citizens. We shall discuss this in detail later on in this tractate. The Torah [Leviticus 5:1] requires anybody who knows that a crime may have been committed to bring the matter before a court, so doing so would not constitute Lashon ha-Ra [calumny]. David is also correct that the penalty for "conspiracy to convict" is also set out in the Torah [Deuteronomy 19:19]: "And you shall do to him what he planned to do to his neighbour".

Shabbat Shalom to everybody.