Sanhedrin 029

6:
Everyone knows that a "congregation" [Edah] consists of ten competent adults. The number is derived midrashically from a famous – or rather infamous – incident recounted in the Torah. In Numbers [Chapters 13 and 14] Moses dispatches twelve representative, one from each tribe, to scout out the land that Israel is to conquer. As every child knows these scouts returned with a report that glowed in its representation of the country but filled the people with desperation by its description of the inhabitants. Two of the twelve, Joshua and Caleb, presented a 'minority report' that was full of hope and encouragement, but the 'majority report' of the remaining ten scouts was discouraging in the extreme, "And the people wept that night and maligned Moses and Aaron saying… 'If only we had died in the Land of Egypt or even in this desert! Why is God going to bring us to this land only to fall by the sword…? Wouldn't it be better if we were to go back to Egypt?" [Numbers 14:1-3]. At a certain point God asks, rhetorically, "How long must I put up with this wicked congregation [Edah] that is maligning Me?" [Numbers 14:27] The midrash understands God to be referring to the scouts – even though the words could be made to refer to the whole people with greater justification. But only ten of the scouts could be described as 'wicked' for "you must exclude Caleb and Joshua". Thus God has defined the word Edah as consisting of ten people.

7:
Further on in the book of Numbers the Torah enlarges on the judicial treatment of accidental homicide. We have described the procedure that leads to the apprehension of the homicide [see RMSG of March 9th] and how he is arraigned before a court of justice to decide the extent of his culpability. The Torah says that "the congregation [Edah] shall judge" the accused [Numbers 35:24] and one verse later it says that "the congregation [Edah] shall rescue the accused. To the midrash this seems to be implying that the court was to consist of two 'congregations' – one which could condemn the accused and another which could declare him innocent of the charge. This, in turn, requires a court of twenty members – ten for each Edah.

8:
The syntax of Exodus 23:2 is most troublesome, and the understanding of the midrash is not consonant with the interpretation of the verse suggested by the Ta'amei ha-Mikra [the diacritic signs that indicate how the words are to be liturgically chanted]. The midrashic understanding of the verse seems to be: "Do not follow after the majority for bad … tilt for a majority". This is understood as meaning that verdicts must be delivered by a conclusive majority ["tilt for a majority'] but the kind of majority that leads to acquittal must be different from that which leads to condemnation. As we shall see in a later chapter a simple majority (of one) is sufficient to acquit the accused, but a majority of at least two is required to condemn. When you have a court of twenty members in theory they could never bring a verdict: they would have to be at least twenty-one in number in order to be able to return a majority of one (11 against 10) and at least twenty-two in number in order to acquit (12 against 10). So the minimum number of justices for a lesser Sanhedrin would seem to be twenty-two. However, "no court can consist of an even number of justices, so we add one more – and that adds up to twenty-three".

To be continued.

On April 24th you wrote that Only the Court of Seventy-One may appoint the courts [of Twenty-Three] for the tribes… It was this same Supreme Court that authorized the composition of the courts of Twenty-Three, the courts that were authorized to try capital cases, Dinei Nefashot. And on March 6th 1998 you had written: The Sanhedrin jealously guarded this their prerogative and would not permit "Semikhat Zekenim" to be "exported": … This short-sighted policy of the Sanhedrin in Eretz-Israel eventually brought about the complete demise of the true Rabbinate … Thus all rabbis today can, at best, be entitled "Rav" and none are qualified to sit in a Sanhedrin should it ever be reconstituted. Which leads me to ask: have things been arranged so that it is possible to try capital cases? If so, how?

I respond:

Nowadays there is no Sanhedrin qualified to try capital cases, for the reasons I have described: there is no Supreme Sanhedrin to appoint the members of the lesser Sanhedriyot and there are no duly appointed "sages" who could qualify for membership of either kind of body. At least one great sage of the middle ages, Rambam [Maimonides, North Africa, 12th century CE] wrote in his magnum opus, Mishneh Torah [Sanhedrin 4:11], that "if all the Palestinian sages [i.e. rabbis resident in Eretz-Israel – SR] would unanimously agree to appoint and ordain judges, then these new ordinants would possess the full authority of the original ordained judges". Based on this ruling, an attempt was made in 1538 by R. Jacob Berab of Tzefat [Safed] to restore the practice of ordaining [Semikhat Zekenim]. The rest of this response is based on the account given in the Encyclopedia Judaica: