

by R. Gidon Rothstein

Blogging R. Lichtenstein, Horayot, Week One: The Nature of the Sanhedrin, the Nature of the People

RA”L’s shiurim on Massechet Horayot, delivered in the post-Pesach zman of 5765/2005, largely deal with the remarkable circumstance that underlies the beginning of the tractate: the Sanhedrin rules erroneously on an issue of great significance, and the majority of the Jewish people follow that ruling. Instead of each of those people having to bring a sacrifice (once the error is realized), the Sanhedrin brings one sacrifice, for them and for the people, a par he’elem davar shel tzibbur, a bull brought when a matter is hidden from the community.

The topic—and this volume of shiurim—is particularly meaningful for me, for a few reasons. Two worth sharing here are: 1) This was the volume of RA”L’s writings I happened to be studying when the terribly sad news of his passing reached me, and gave me the idea for this series, and 2) the Torah’s premise in prescribing such a sacrifice is that the highest body in the land could err, and err in a matter of the highest import (how to keep or not keep Shabbat, what counts as idolatry, what sexual relationships are or are not permitted). Yet that possibility does not affect their still being the highest body of law in the land.

To me, that has continuing contemporary resonance, as the Jewish people moves (slowly or astonishingly quickly, depending on your perspective) to rebuild the institutions of old. While some focus on the failings of the human beings taking up various leadership roles (including rabbinic leadership), this massechet—and, willy-nilly, these shiurim—are, among much else, reminders that halachah never assumed Torah was given to angels or robots, who would observe and uphold it, error and stumble free.

It was given to human beings, tasked with doing their best to fulfill it in the way Hashem gave and commanded it, with full recognition that that might sometimes go wrong, even with the best of intentions. When it does, that doesn’t call into question the institution, it reminds we human beings to redouble our efforts to do better.

One Sanhedrin or Many

To arrive at a situation where a court has to bring an atoning par, bull, three conditions are necessary: a certain court must rule erroneously and the people must follow that ruling. We can analyze each of those: aspects of the court that rules, the nature of the ruling, and the people who followed that ruling. This time, we’ll take up the first and last of those, and next time we’ll hope to analyze the kinds of rulings that can lead to the need for the sacrifice.

Regarding the Sanhedrin, the two aspects of RA”L’s discussion that struck me both exhibit a characteristic I mentioned briefly last time, his interest in seeing where rejected opinions might still have some halachic relevance. The first example is the definition of which court we mean when we speak of a court ruling. Tosafot reads it as the Great Sanhedrin, but RA”L notes that the view of R. Yehudah in a Mishnah on 5a is that even a tribal Sanhedrin could be obligated in this sacrifice, should the majority of that tribe follow their ruling.

We don’t accept R. Yehudah’s view. RA”L points out that there are two ways to take that: either the tribal Sanhedrin has no special status—rejecting R. Yehudah’s view completely—or it does, just not to the level of qualifying to bring that sacrifice. Ramban on the Torah takes the second approach, citing R. Yehudah’s view to explain the Torah’s reference (Devarim 16;18) to establishing judges according to tribes.

RA”L understands Ramban to mean that despite their not being a sufficiently authoritative Sanhedrin that their erroneous rulings, if followed, would obligate such a par, these tribal Sanhedrins did have authority over the tribe, especially for special ordinances or decrees a court can make in order to strengthen or protect observance.

Aside from being a perfect example of RA”L’s alertness to the continuing role of even opinions not accepted in their original form, it reminds us of the diversity of halachic viewpoints and practices Chazal saw as reasonable and acceptable. If each tribe had its own Sanhedrin, whose rulings were authoritative for that tribe (and especially in making special decrees to address particular needs), Torah observance would not have looked the same for all Jews, even in that halcyon time when the tribes were all residing in their places, and the Sanhedrin in Jerusalem was fully functioning.

Whatever the parameters, there would be matters on which tribal Sanhedrins would rule, that would shape each tribe’s practice differently from the others’, where the Great Sanhedrin would see no need to interfere or get involved.

The Two Roles of the Sanhedrin

The other rejected view that occupies RA”L’s time is that of R. Yonatan, who said that if a hundred judges were sitting as a Sanhedrin, their erroneous ruling could not obligate this special par (bull) until and unless it had been unanimous. That view is rejected in the Gemara, which says that a par could be brought even if only the majority supported the ruling (that itself is a problematic claim, since RA”L elsewhere in the volume notes a Tosefta that refers to rulings as having to be unanimous, and a Torat Kohanim that says that if one of the judges told the others they were in error, that would be enough to mean that no par he’elem davar would be brought. We’ll have to leave that aspect of it for another time).

R. Yonatan’s idea had two parts, though, that there could be a hundred judges, and the need for unanimity. Even once the second is rejected, the first remains an issue. A Mishnah in Sanhedrin had spoken of adding judges when a court couldn’t come to a decision, but had capped that at seventy-one, as had Rambam in Laws of Sanhedrin 9;3.

Mishneh Le-Melech suggested R. Yonatan was discussing a case where the Sanhedrin wrongly convened with a hundred judges. Despite it having been wrong, R. Yonatan held the extra judges became part of the court, such that their agreement was necessary before the rulings could be seen as an error of the entire community. [Mishneh Le-Melech casually assumes that the highest court in the land might make the basic error of allowing more judges on the court than were appropriate. To me, that’s stunning and fascinating].

RA”L spends much of the rest of the shiur reviewing a suggestion of R. Soloveitchik’s, z”l, but we only have space to lay out the one ramification for our current discussion. The Rav pointed out that the Sanhedrin performs two different functions: 1) Governmental/ceremonial ones, as representatives of the Jewish people, such as adding another month of Adar when necessary, expanding the courtyard of the Temple, appointing a king, and going out to war. 2) Ensuring the transmission of the Oral Law, making halachic rulings for the entire people.

We generally assume both tasks are functions of the same court, but the Rav suggested (in a yahrzeit shiur, written up in the second volume of Shiurim Le-Zekher Abba Mari Z”l, as R. Daniel Wolf points out in his notes to the Horayot volume) that there might be differences between the two courts. For our case, he suggested that the limit to seventy-one applied to the governmental/ceremonial functions of the Sanhedrin, but not the Torah/halachah one. Perhaps in that one, more than seventy-one judges could sit.

Displaying the independent-mindedness I wrote about last time, RA”L notes that despite the brilliance of the suggestion (there are many other applications where it fits interestingly and well), it does not seem to fit Rambam’s view. In another context, Rambam discussed how one Sanhedrin could be larger than another (one of the requirements for that later Sanhedrin being able to rule differently than an earlier one). He ruled, in Hilchot Mamrim (Laws of Rebellious Elders) 2;2 that that cannot be a matter of actual judges, since all such Sanhedrins have seventy-one. And the context is the Torah/halachah function the Rav identified.

RA”L then offers a way to partially apply the idea, that in their Torah/halachah function, the Sanhedrin could have more than seventy-one judges for the discussion phase. While we rule that they wouldn’t vote, R. Yonatan had thought they voted and had to be unanimous.

There is, as always, much more to be said on this issue, but so far, RA”L has shown us that the Sanhedrin was both national and tribal, and (as the Rav taught us) that it served a governmental/ ceremonial function as well as a Torah/halachah function.

The Jewish People That Counts

There are fewer complications when it comes to defining who counts as the Jewish people (to say that the majority of the people followed the Sanhedrin’s ruling, triggering the halachot of bringing the par he’elem davar shel tzibbur).

On Horayot 3a, R. Yose had noted (without opposing views) that I Melachim 8;65 referred to “all of Israel, a great congregation” and then gave the borders whence they came. As R. Yose noted, their geographic origins don’t seem important; he deduces that that tells us that these are who are considered the kahal, the congregation of Israel.

This is a comment of his we saw before, since it appeared in an article in Minchat Aviv, the first volume we discussed in this series. (Showing that this was a Gemara RA”L focused on both early in his career and late, suggesting it reverberated frequently in his mind).

Two ramifications of that fact were that semicha, the original ordination that qualified a judge to rule on all sorts of halachic cases (not the more limited set of cases that are amenable to judging in today’s batei din, halachic courts) had to be conferred in Israel, and the new month generally had to be declared in Israel (before we had to switch to a fixed calendar).

In that last context, he quoted a responsum of Avnei Nezer, who explains the need to declare the new month in Israel as a function of Israel’s being where the Jewish people are united as one person (an idea Avnei Nezer sources to Maharal, who had said that that was why the Jewish people did not become responsible for enforcing public observance until after they crossed the Jordan—it was their being in the Land of Israel proper that united them as a people and made them responsible for each other). Only once they are united in that way could the Sanhedrin—representatives of the nation—perform this function.

Lastly, RA”L comments on the fact that halachah nowhere clearly defines how permanent a residence in Israel counts to be included in the people for this question. The references to “people of the Land of Israel,” “inhabitants of the Land of Israel,” etc. show that it does not include those who happen to be there, but does not get more specific than that. Whatever the full answer, to be considered part of the community of Israel (for this issue, anyway) must include a connection to the Land more substantive than presence.

It’s a mix of a court making an error and a specific people following it. The kinds of rulings that can lead to this are what I hope to consider next time.