The Weekly Daf
Rabbi Shmuel Wise, Maggid Shiur of RealClearDaf.com
How do we know that a סנהדרין קטנה (Lower Sanhedrin), the type of court used to judge capital cases, needs 23 judges?
As our mishnah (2a) explained, it takes a few steps to arrive at the number 23. The first source the mishnah cites is from this week’s second sedra, Masei, where the Torah discusses the case of someone who inadvertently killed a person. The Torah there mentions two expressions in reference to the beis din that tries the case: “ושפטו העדה” “The convention (of judges) shall judge,” and “והצילו העדה” “The convention of judges shall save.” Chazal understand these expressions as referring to the two possible verdicts that the court may reach: either to judge, i.e. condemn, or to save, namely, acquit.
Now the word עדה implies a group of ten. How do we know? From the fact that the Torah in Parshas Shelach refers to the ten evil spies with this term, עדה (As an aside, the Gemara in Megillah 23b also uses עדה to derive the halachic requirement of 10 men for a minyan. It is fascinating that the required number for these central halachos of religious life, the sanhedrin and a quorum for prayers, are derived from these 10 men who go down in infamy for the grave sin they committed!). So the Torah is saying that the court in question (the סנהדרין קטנה required to judge a capital case) must be comprised of enough judges that can have 10 saying, “guilty,” and 10 saying, “innocent,” bringing us to 20 judges.
The next step is the pasuk in Mishpatim which teaches the fundamental principle of “majority rules.” Ironically, the pasuk there opens with the directive of, “do not follow the majority for evil.” The mishnah remarks that apparently the Torah is teaching that if the court is split, we do not hand down a guilty verdict based on majority, rather, we only condemn if that is the unanimous opinion of the court. But since the Torah qualifies with, “for evil,” it’s clear that we do follow majority to acquit. However the end of the pasuk forces us to re-evaluate this reading. The pasuk there goes on to teach that we do follow majority, which apparently is saying that to acquit, we do follow majority. But this cannot be the meaning because then it would be redundant: we already understood from the pasuk’s earlier language that majority is followed to acquit. Must be, that the pasuk from beginning to end is referring to using a majority to condemn and the Torah means: sometimes we follow majority to condemn, sometimes we do not. More specifically, a minimal majority of just one judge is not enough to condemn, but a larger majority of two or more judges is enough to condemn (and to acquit, a majority of one judge is enough).
In light of this new information (i.e. that the court can condemn with a majority of 2), we deduce that this court must have enough judges to have a majority of two over the 10 “והצילו העדה” judges who have decided to acquit, meaning, 22 judges (10 saying innocent, and 12 saying guilty). The final step is the principle that “we don’t convene a court with an even number judges.” This is because if there is an even number of judges, the court could end being evenly split which would contravene the Torah’s indication (“follow the majority”) that there always be a majority opinion. Therefore, we must add one more judge, bringing us to the total of 23 judges.
Now on 3b we learned the opinion of R’ Yoshiyah who disagrees with the above rule when it comes to monetary cases and asserts that a court may have an even number of judges for monetary cases. Tosfos there wonders how R’ Yoshiyah can assert this in light of the aforementioned pasuk that clearly presumes the system of “majority rules.” We just explained that a court with an even number of judges could undermine the majority system if it is evenly split! Tosfos offers a fascinating answer: the way the Torah expresses the command not to follow majority to condemn is, “do not follow majority for evil.” Tosfos argues (for R’ Yoshiyah) that this wording can only be referring to a capital case where clearly the verdict to condemn is bad for the defendant. The Torah can’t be referring to a monetary dispute where by definition the ruling will be bad for one litigant and good for the other litigant. So clearly, when the Torah built “majority rules” into the system, it did so specifically for capital, not monetary cases (This is only R’ Yoshiya’s view. R’ Yoshiya’s disputants would probably retort that “for evil” is applicable even to monetary cases if this phrase is understood in the sense of liability, i.e. the Torah discusses following the majority opinion that finds this defendant liable. Invariably, there will be only be one liable party.).
What do judges, childbirth, sacrifices, Sukkos, corpse blood, pilgrims, and cheeseburgers all have in common?
As we learned on 4a-4b, all of these are subjects are relevant to the raging Talmudic debate as to whether we go by the pronounced (מקרא) or written (מסרת) form of words in the Torah. For example, on the issue of how many judges are needed for monetary cases, the pronounced form (“ירשיעון”) indicates another two judges, but the written form (“ירשיען”) is deficient, indicating only one judge. Rebbi asserts that the Torah means two judges as indicated by the pronounced form and the rabbanan say that only one judge is indicated (see further for their reason). The Gemara then notes many other tannaim who also say that we go by the pronounced version.
Now most of the tannaim cited have disputants (e.g. the Rabbanan of Rebbi) who argue with these different laws derived from the pronounced reading in each case, which seems to suggest that there’s a whole team of Sages that goes by the written form. The Gemara questions how this is possible in light of a baraisa that discusses the pasuk that forbids the cooking of a kid goat in the חלב of its mother. The baraisa wonders: maybe the Torah here means that we are not to cook (or eat) a goat in its mother’s fat, since the word חלב, as written, can be read chei-lev, “fat” (a notion that would surely put deep-fry lovers into a depression). It is well known that in fact the only prohibition here is not to cook meat in milk, as per the traditional pronunciation of cha-leiv imo (“cha-leiv” is the way to pronounce chalov, “milk,” when read along with the word it is attached to, “imo,” its mother in the phrase, “milk of its mother”). From the fact that apparently the written form of the word (which allows the reading of “fat”) is disregarded, the baraisa deduces that only the pronounced form counts. Based on this baraisa, the Gemara concedes that there cannot be a legitimate position that goes by the written form. The Gemara then goes to great lengths to try and understand all of the cited disputants in a manner that avoids anyone questioning the undebatable view that we always go by the pronounced form. (The Gemara later retreats from this assertion; see further.)
On its surface, the Gemara’s proof (that prompted a whole new understanding of the named tannaim) seems incomprehensible. Consider: when we get up to the passuk in the Torah that says, “thou shalt not cook a kid goat in its mother’s חלב,” the question automatically arises: what is meant by חלב – is it chalov, milk, or perhaps, chei-lev, fat? So obviously the meaning of the word here will depend upon the way Tradition dictates to read the word. This is not a question of “choosing” between the pronounced or written form, but rather, a question of how to read an ambiguous word in the Torah!
But perhaps that’s exactly the point. That is, perhaps the Gemara’s proof from חלב is: here we have a situation where the only way to understand what the Torah means is from the way tradition dictates it be pronounced. This shows us that the way we pronounce the words is integral to understanding the Torah, and thus when presented with a theoretical choice between the pronounced vs. the written form, we can only follow the pronounced form.
In the end, though, the Gemara concludes that this proof is not compelling. For perhaps, in theory, we would actually interpret חלב in accordance with the written form and interpret the Torah to be forbidding meat cooked in fat. But the Torah gives us a specific indication otherwise by using the language of “do not cook the kid in its mother’s חלב.” For heating up meat in fat would be called frying, not cooking. All deep-fry lovers can now breathe a sigh of relief.