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Sanhedrin, 36

1) THE HUMILITY OF REBBI

QUESTION: The Mishnah (32a) states that in cases of monetary matters and cases of questions of Tum'ah and Taharah, the first judge to present his argument must be the greatest one present. The Gemara asks why the Beis Din of Rebbi did not follow this practice, as Rav attested that he spoke first in Rebbi's Beis Din in cases of monetary matters. The Gemara answers that in the Beis Din of Rebbi, all judgements started in such a fashion. RASHI explains (as does TOSFOS in Gitin) that Rebbi was exceedingly humble and did not want to speak first.

Rashi in Gitin (59a) apparently contradicts his explanation here. In Gitin, Rashi explains that Rebbi's conduct was based on Rebbi's view that the verse, "Lo Sa'aneh Al Riv" (Shemos 23:2) -- which teaches that one should not argue with a greater judge (based on the spelling of the word "Riv" as "Rav" in the verse) -- also applies to monetary matters. Why does Rashi give a different explanation for why Rebbi did not speak up first in monetary matters that were judged in his court?

ANSWER: The ARUCH LA'NER explains the statements of Rashi. Rashi in Gitin gives two opinions regarding the status of Rav in the Beis Din of Rebbi. The first opinion says that he was an average member of the Beis Din. Rashi then writes, "And I have heard that he was the smallest in stature." If Rashi here in Sanhedrin is following the second opinion that he writes in Gitin, then he could not say that Rebbi's conduct was due to his modesty. Although one may forego his own honor out of modesty, one may not forego the honor of others! If Rebbi told Rav to be the first one to speak in Beis Din, and Rav was the smallest in stature, then Rebbi was slighting the honor of every other judge on the court by having Rav speak up first! Therefore, Rashi in Gitin explains that the reason why Rebbi had Rav speak first was because of the Derashah from the verse of "Lo Sa'aneh."

In contrast, Rashi here in Sanhedrin is explaining according to the opinion that Rav was an average (or better than average) member of the Beis Din. Accordingly, having Rav speak first would not fulfill the Derashah of "Lo Sa'aneh Al Rav," because the younger members of the Beis Din would still be afraid to argue against a senior member (i.e. Rav) of Beis Din. Therefore, it must be that Rebbi had Rav speak first out of his humility.

How, though, could Rebbi act in such a way? While humility certainly is a noble trait, if acting in a humble way conflicts with the Halachah, then one must act in accordance with the Halachah! The Halachah states that a Nasi is not permitted to forfeit his honor even out of humility. How, then, could Rebbi forego his honor due to his humility?

The KOS HA'YESHU'OS answers that the reason why a Nasi is not permitted to forfeit his honor is so that no one will rise up and challenge his authority, creating dissension and conflict among the people. When, however, it is clear and obvious to the entire nation that one person is greater than everyone else, there is no reason to insist that that person not forego his honor out of humility. Since Rebbi was universally recognized as the greatest sage and leader, he was able to forego his honor and let others speak before him.

The Kos ha'Yeshu'os continues and says that this is why the Gemara, after answering that in the Beis Din of Rebbi all judgements started with the arguments of the younger judges, adds the statement regarding Rebbi being similar to Moshe Rabeinu in having unequaled Torah knowledge and leadership in a single person (the simple reason is that both statements were said by the same person). The Gemara is teaching that Rebbi was permitted to forego his honor (and let lesser judges speak first) because of his unequaled, unrivaled greatness.

Why, though, does the Gemara add that after Rebbi, there was no one like him who served as a leader to the Jewish people in both Torah scholarship and national leadership until Rav Ashi? What is the significance in that these three great sages merited unequaled Torah knowledge and leadership?

The TORAS CHAIM points out that the Gemara is indicating to us the unique qualities of the people who redacted or conveyed the three most fundamental and basic treatises of Torah -- the Chumash, the Mishnah, and the Gemara. Everyone knows that Moshe Rabeinu was the leader of the Jews both spiritually and physically. The Gemara is showing that both Rebbi and Rav Ashi had the available resources and powers to assemble all of the scholars of their time in order to compile the Mishnah and Gemara, respectively. This has important implications, for it shows that they had absolute mastery of the entirety of Torah and worldly wisdom. Consequently, if something was excluded from the Mishnah or Gemara, we may assume that it was not due to lack of knowledge but rather because it was deemed not important enough to be included. (Y. Montrose)

36b

QUESTION: The Gemara infers from the statement of the Mishnah (32a), "ha'Kol Kesherim la'Dun," that there is someone who may serve a judge even though we would have thought that he may not serve as a judge. The Gemara suggests that perhaps the Mishnah is referring to a Mamzer, but it rejects this suggestion because we learn from a different Mishnah (Nidah 59b) that a Mamzer may serve as a judge for monetary matters. The Gemara then says that our Mishnah is teaching that a Ger, convert, may serve as a judge.

The Rishonim ask that this Gemara seems to contradict the Gemara in Yevamos (45b). The Gemara there says that Rava appointed Rav Mari bar Rachel to a position of authority because his mother was Jewish. This implies that had his mother not been Jewish, he would not have been suitable for such a position. Furthermore, the Gemara in Yevamos later (102a) states that a Ger is permitted to judge his fellow Ger, implying that he may *not* judge any other Jew!

ANSWERS:

(a) RASHI explains that the Gemara here is discussing monetary matters. A Ger is permitted to judge monetary matters, but not matters of Dinei Nefashos, cases of corporal punishment. If his mother was Jewish, then he may judge even cases of Dinei Nefashos. The Gemara in Yevamos (102a) is referring to cases of Dinei Nefashos when it says that a Ger may judge only a fellow Ger.

The RAN questions Rashi's explanation from the Gemara in Sotah (41b). The Gemara there states that Agripas (Agrippa, the last king of Israel, grandson of King Herod, who was a pious and benevolent king) wept when he read that a genuine Jewish king must originate "mi'Kerev Achecha" and cannot be a Ger as the verse states, "From among your brothers you shall set over yourself a king, you may not put over you a foreigner who is not your brother" (Devarim 17:15). The people consoled him by saying, "Do not fear, you are our brother." The Gemara states that at that moment, it was decreed that they should be punished. According to Rashi, why should they be punished? The people were correct, as his mother was indeed Jewish!

Rashi there explains that the reason why they were punished was not because he was a Ger whose mother was not Jewish, but because his father was a slave and therefore he was unworthy of the throne.

The Ran argues with this explanation and says that praising someone inappropriately (but not in violation of the Torah) should not be a reason to punish the people with destruction. The Ran therefore suggests a different reason for why the people were punished for praising Agripas. He explains that even though a person born to a Jewish mother is considered Jewish, there is a stricter standard for a king; in order to be a king, one's father must also have been Jewish. The Ran brings proof to this from a Tosefta. In addition, he explains that this is apparent from the verse requiring a king to be "from among your brothers," whereas with regard to other positions of authority the Torah states merely not to appoint a "foreigner."

The Ran questions Rashi's explanation -- that a Ger may judge another Ger even for Dinei Nefashos -- from the Gemara that says that the judges on a court of twenty-three who judge a case of Dinei Nefashos must be free of any familial blemish, thus excluding a Ger! The Ran suggests that perhaps when the entire court is comprised of twenty-three Gerim, then they may judge their fellow Ger in a case of Dinei Nefashos.

(b) The Ran quotes RABEINU DAVID who answers that when our Gemara says that a Ger may serve as a judge (implying even for an ordinary Jew), it is referring to serving as a judge only on occasion and not holding a set position. In contrast, the the Gemara in Yevamos (45b) which says that one may be appointed to a position of authority only when his mother is Jewish is referring to being appointed to an established, set position as judge. (To judge cases involving another Ger (as in Yevamos 102a), a Ger *may* be appointed to a set position as judge.)

(c) TOSFOS explains that when our Gemara says that a Ger may serve as a judge, it means that he may judge his fellow Ger in monetary matters, and it is consistent with the Gemara in Yevamos. According to Tosfos, a Ger is never allowed to judge matters of life and death. The RIF, RAV ACHAI GA'ON, and the RASHBA concur with Tosfos.

(d) The RIVA suggests that the Halachah taught in Yevamos that a Ger may not be appointed as a judge applies only when there are greater scholars among the Jewish people. When, however, a Ger is the greatest Halachic authority, then he is allowed to be a judge and he may judge *any* type of case, even cases of Dinei Nefashos. He proves this from the fact that Shemayah and Avtalyon were appointed as the Nasi and Av Beis Din, respectively, even though they were converts. (However, the TOSFOS YOM TOV in Avos (1:10) refutes this proof, quoting the MAHARAL who says that Shemayah and Avtalyon were not actually converts themselves, but rather they came from a gropeople who were descended from ancestors who converted.) (Y. Montrose)