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Sanhedrin, 16

SANHEDRIN 16 (21 Tishrei, Hoshana Raba) - dedicated by Gedalyah Jawitz of Wantagh, N.Y., honoring the Yahrtzeit of his father, Yehuda ben Simcha Volf Jawitz.


QUESTION: The Gemara discusses the source for the Halachah that a false prophet, a "Navi Sheker," is judged for death by a court of seventy-one judges. Rebbi Yosi bar'Rebbi Chanina learns that the source is a Gezeirah Shavah from the law of Zaken Mamrei, since the Torah uses mentions the concept of "Hazadah" ("Asher Yazid," "Asher Ya'aseh b'Zadon") with regard to both. Just like the Zaken Mamrei is Chayav Misah only when he rebels against the ruling of the Sanhedrin of seventy-one judges, so, too, the Navi Sheker is judged by a court of seventy-one judges. The Gemara questions this source, asking that the phrase "Asher Ya'aseh b'Zadon" is mentioned only with regard to the obligation to kill the Zaken Mamrei, and the law is that a Zaken Mamrei is judged for death by only twenty-three judges, and not by seventy-one! Hence, we have no source that a Navi Sheker is to be judged by seventy-one, but rather he should be judged by twenty-three based on this Gezeirah Shavah.

Reish Lakish, therefore, says that the source is a different Gezeirah Shavah from the law of Zaken Mamrei. The word "Davar" is mentioned both with regard to the requirement to kill a Navi Sheker, and with regard to the act of rebellion of the Zaken Mamrei (which must take place with a Beis Din of seventy-one judges).

The Gemara asks, though, that if that is the source for the requirement to judge a Navi Sheker with seventy-one judges, then we should also use the other Gezeirah Shavah of "Hazadah" to teach *back* to Zaken Mamrei from Navi Sheker that a Zaken Mamrei must be judged for death by seventy-one judges (and not just by twenty-three)! The Gemara answers that the Tana of our Mishnah learned the Gezeirah Shavah of "Davar," but he did not learn the Gezeirah Shavah of "Hazadah." Why did he learn one Gezeirah Shavah and not the other?

ANSWER: RASHI explains that a Talmid is permitted to expound a Gezeirah Shavah only when that Gezeirah Shavah was passed down to him from his rebbi. He must have a tradition to learn that Gezeirah Shavah. The Tana of our Mishnah had received a tradition only to expound the Gezeirah Shavah of "Davar," but not of "Hazadah." The Tana could not learn a Gezeirah Shavah which he did not receive from his rebbi.

What is the reasoning behind this rule? Why can one Talmid not learn a Gezeirah Shavah from his friend, who learned it from his rebbi? If his friend has such a tradition from Har Sinai through his rebbi, then why may the Talmid of a different rebbi not accept it?

TOSFOS in Shabbos (97a) asks this question. The Gemara there says that Rebbi Akiva learned a certain Gezeirah Shavah, while Rebbi Yehudah differed in opinion because he did not receive from his teachers a tradition to learn such a Gezeirah Shavah. Tosfos asks why does Rebbi Yehudah not receive the tradition for that Gezeirah Shavah from Rebbi Akiva? Tosfos answers that each Tana had a tradition of how many Gezeirah Shavahs there were in the Torah. Since Rebbi Yehudah had already accounted for all of his Gezeirah Shavahs, he could not just add another one to the list. Rebbi Akiva, on the other hand, either had one more Gezeirah Shavah in his number of Gezeirah Shavahs, or he did not have in his count a certain Gezeirah Shavah which Rebbi Yehudah did have in his count (see MAHARAM there).

To further understand the intention of Tosfos, we must analyze the words of Tosfos in Sukah (11b, DH Lekichah). Tosfos there states that even though the Rabanan learn certain Halachos from a Gezeirah Shavah of "Kichah," they do not learn the Gezeirah Shavah which Rebbi Yehudah there learns of "Lekichah." What is Tosfos telling us that we did not already know? We already know from many Gemaras that not all of the Tana'im had the same traditions with regard to Gezeirah Shavahs!

It seems that Tosfos is telling us that the process of handing down a Gezeirah Shavah from rebbi to student did not involve handing down an entire Derashah with the specific Halachos learned from the Gezeirah Shavah. Rather, what was passed down was that a specific terminology can be used for a Gezeirah Shavah, while the Halachos for which it can be used were *not* taught. Consequently, when a Talmid saw that the Torah uses such terminology in two places, and it seems to be indicating a connection, that Talmid would then derive a Halachah through the Gezeirah Shavah on his own. Tosfos now points out that we should not think that these terminologies are flexible. Even though the Rabanan learn a Gezeirah Shavah with the phrase "Kichah," they never received a tradition to learn the terminology "Lekichah" as a Gezeirah Shavah. Therefore, they cannot learn Rebbi Yehudah's Gezeirah Shavah (based on ARUCH LA'NER; see RASHASH for further analysis).

This, too, seems to be the intention of Tosfos in Shabbos. Each Tana had a tradition of how many terminologies one could use to learn a Gezeirah Shavah. Once they had this tradition, they could never add a different terminology.

(b) The MARGOLIYOS HA'YAM, however, questions this answer of Tosfos from the Gemara in Pesachim (66a). The Gemara there states that the B'nei Beseirah did not want to accept a Gezeirah Shavah from Hillel until he exclaimed that he had heard it directly from his teachers, Shemayah and Avtalyon. Why, though, did this change their minds? According to the explanation of Tosfos, how could the B'nei Beseirah now accept the Gezeirah Shavah of Hillel if *they* did not have such a tradition? He answers by quoting many early sources that teach that there is another type of Gezeirah Shavah. This type is used when one is certain that something is true but does not have an explicit source (see NIMUKEI YOSEF, Bava Kama, beginning of Perek 8). Alternatively, it is a different type of Derashah which is in the format of a Gezeirah Shavah format (HAFLA'AH). Therefore, the B'nei Beseirah thought that Hillel's Gezeirah Shavah was this second type of Gezeirah Shavah. When he told them that it was a genuine, standard Gezeirah Shavah, they then agreed to accept it. The Margoliyos ha'Yam states that this is the case as well in our Gemara and in other Gemaras. One Tana does not accept a Gezeirah Shavah because he suspects that it might be the weaker form of Gezeirah Shavah, which he does not have to accept. However, if he is told by the disputing Tana that his rebbi explicitly taught it as a genuine Gezeirah Shavah (as in the incident with Hillel), then the Tana would accept it. (Y. Montrose)


OPINIONS: The Beraisa states that a set of judges (Shoftim) and enforcers (Shotrim) must be appointed not only for all of the Jewish people and for every tribe, but for every city as well. Rebbi Yehudah states that "one is appointed over all of them, as it states 'Titen Licha' (Devarim 16:18)." To what exactly is Rebbi Yehudah referring?
(a) RASHI states that Rebbi Yehudah is referring to the Great Sanhedrin of seventy-one judges who are "appointed over all" of the other courts. The RAN explains further that the Great Sanhedrin is in charge of appointing all of the other courts. Rebbi Yehudah derives this from the fact that the word "Titen" is written in the singular form, implying a single body that is to oversee the appointments of all of the other courts. The Ran notes that according to Rashi, Rebbi Yehudah is adding information to, and not arguing with, the Tana Kama. RABEINU YONAH concurs with Rashi.

(b) TOSFOS questions Rashi's explanation. The Sifra quotes Rebbi Yehudah as well, and in the Sifra his statement is not even associated with the Tana Kama's opinion that judges are to be appointed in every tribe and in every city, which implies that Rebbi Yehudah's statement is not relevant to the Tana Kama's.

Tosfos therefore quotes another opinion which explains that Rebbi Yehudah is referring to the Nasi who oversees the Sanhedrin. This is also the opinion of the Ran himself.

(c) TOSFOS himself suggests that Rebbi Yehudah is referring to an Av Beis Din (who is not included in the number of judges of the Sanhedrin) who is to be in charge of the Sanhedrin.

(d) The YAD RAMAH explains that Rebbi Yehudah is saying that there should be one Beis Din that is the chief Beis Din in charge of adjudicating the disputes that arise in all of the tribes. He also explains that Rebbi Yehudah is saying that the only thing the law requires is that there should be one primary, supreme court. It is, of course, a Mitzvah to establish more courts, but the Torah does not require it. (Y. Montrose)

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