The Gemara discusses the proper order for counting the opinions of judges. Normally, when a court is about to issue its verdict, the judges begin with the junior judges and proceed upward. The senior judge gives his ruling last. Why? Because if the senior judge were to state his opinion first, the other judges might be reluctant to disagree with him.
Yet we find a seemingly contradictory incident. Rabbi said, “I was sitting in the court of Rabbi,” and when they counted the votes, they began with him, even though he was not the senior judge. This appears to contradict the teaching that one begins with the senior judge.
The answer is that Rabbi’s court was an exceptional case. Whenever they counted the opinions in Rabbi’s court, they began with the other judges rather than with Rabbi because Rabbi was exceptionally humble. Ordinarily, one begins with the senior judge out of respect for him. Rabbi, however, was extremely humble and did not want the other judges to feel that they had to follow him. Therefore, they began with the other judges.
One cannot bring proof from that special case. Rabbi was not the Nasi, although he was the greatest Torah scholar of his generation. Being the Nasi is not the same as being the greatest scholar of the generation. The Gemara therefore returns to its original discussion.
Look at what Rashi adds. The Gemara merely says that someone was sitting in Rabbi’s court, but Rashi tells us what case the court was actually judging. The court, which included Rabbi and the other rabbis, was discussing a case of property seized by a violent non-Jew.
The case was as follows. A non-Jewish extortionist forcibly took property from a Jew. He threatened him, effectively saying, “Give me your property, or I will kill you.” The non-Jew then sold the property to another Jew, usually at a discount, because he had obtained it without paying for it.
The law was that the Jew who purchased the property could keep it, but he had to compensate the person from whom it had originally been taken. Since the non-Jew would normally sell the property at a discount, the purchaser had to pay the original owner the difference between the property’s value and the discounted price. The rabbis were discussing the precise law and the amount that had to be paid.
This was the court in which the junior rabbis gave their opinions first. Since Rabbi was exceptionally humble, there was no concern that beginning with him would cause the other judges to feel pressured. That is why this case does not contradict the general rule.
The Gemara then cites a statement: “From the time of Moses until the time of Rabbi, we did not find Torah and greatness in one place.” Moses was the unique leader of his generation, combining Torah greatness and leadership. After Moses, the next person in whom Torah and greatness were combined was Rabbi Judah the Patriarch.
The statement means that in the generation of Moses, there was no one comparable to Moses in both Torah and leadership, and in Rabbi’s generation, there was no one comparable to Rabbi in both Torah and leadership. These were two exceptional individuals who stood alone in their generations with respect to both Torah and greatness.
The Gemara challenges this. What about Joshua? Joshua possessed Torah and greatness. The answer is that Eleazar, the son of Aaron, was also present and was likewise a great Torah scholar. Thus, Joshua did not stand alone; Torah and greatness were shared by Joshua and Eleazar.
What about Pinchas? After Joshua and Eleazar died, Pinchas was still alive. The answer is that although Pinchas was the leading figure, there were still elders present. He therefore did not stand entirely alone.
What about Samuel? Samuel was present during the reign of Saul. The answer is that Samuel died before Saul, so Saul stood alone only after Samuel’s death. The discussion concerns someone who was alone throughout all the years of his leadership. As long as Samuel was alive, there were two leaders. After Samuel died, Saul had a period of solitary leadership, but that was not the entire period of his reign.
What about David? David had Ira the Jairite. Who was Ira the Jairite? The Mishnah in Moed Katan teaches that Ira would sit on cushions and blankets while teaching the people of Israel, and David placed himself beneath him, as though Ira were David’s teacher. This indicates that Ira was David’s Torah authority.
However, Ira died before David. David therefore stood alone for a certain period of time. The answer remains the same: the statement is referring to someone who was alone throughout all the years of his leadership, not someone who became alone only after another leader had died.
What about Solomon? Solomon had Shimei ben Gera. Shimei was considered the great scholar of the generation and was, in a sense, Solomon’s teacher. The Gemara answers that Solomon later killed Shimei, based on the instructions of his father, David. Once again, the statement refers to someone who possessed Torah and greatness throughout all his years of leadership without another comparable figure alongside him.
What about Hezekiah, the king of Judah? He had Shebna. We already learned that Shebna’s academy was greater than Hezekiah’s academy. The answer is that Shebna was eventually killed. Therefore, Hezekiah also stood alone only after Shebna’s death, rather than throughout all his years.
What about Ezra? What about Nehemiah son of Hakaliah? Nehemiah was with Ezra, so Ezra did not stand alone.
The Gemara then comes to Rav Ashi. From the time of Rabbi until the time of Rav Ashi, there was no one who possessed both Torah and greatness in the same unique way. Rav Ashi was exceptionally humble. He humbled himself before the other great scholars, and because of that humility, he could be regarded as standing alone even though another great scholar was present. He placed himself beneath the other scholar, so the other scholar did not rival him in the relevant sense.
Thus, the three exceptional figures were Moses, Rabbi Judah the Patriarch, and Rav Ashi. In their respective generations, no comparable individual stood alongside them in both Torah and leadership.
Returning to the original issue: in capital cases, the judges begin with the junior judges. The junior judge gives his opinion first, and the court proceeds upward until the senior judge gives his opinion last.
How do we know this? The Gemara derives it from the wording of the verse, which can be read as a warning not to argue against the great judge. If the senior judge were to say, “The defendant is liable,” at the outset, the other judges might feel unable to disagree. Even if one of the younger judges believed that the defendant should be acquitted, he might not have the courage to oppose the senior judge.
That is why the court begins with the junior judges. They are permitted to disagree with the senior judge, but the court should not place them in a position in which they are forced to oppose him after he has already stated his opinion. They may be embarrassed and may remain silent, even though they are legally entitled to present a different view.
Rashi explains the verse in this way. The verse says that one should not oppose the great judge, but that teaching cannot mean that a judge is literally forbidden to disagree with another judge. We learned that even a student sitting on the court may present a reason to acquit the defendant. Therefore, the verse is teaching us not to arrange the process in a way that will cause the junior judges to feel embarrassed about disagreeing with the senior judge.
This distinction applies specifically to capital cases. In a capital case, there is an obligation to search for grounds to acquit the defendant. If the senior judge gives his opinion first and says that the defendant is liable, the other judges may be embarrassed to disagree with him. As a result, the defendant may not receive the careful consideration required to find a basis for acquittal.
In monetary cases, however, there is no comparable obligation to search for grounds to save one party from liability. Therefore, the senior judge may give his opinion first. If the other judges feel embarrassed and do not disagree, that does not create the same concern. This is the distinction between capital cases and monetary cases.
The Gemara brings another proof from the story of David and Naval. Naval had rebelled against David. David told his men to gird themselves with their swords. The order of the verse indicates that the men girded themselves first and that David did so afterward. This implies that David first had his men consider the case and determine whether Naval was liable to die, and only afterward did David express his own opinion.
Again, we see that the students or junior judges gave their opinions first, followed by the senior judge. The order reflects the principle that the senior judge should not state his view before the others have had an opportunity to form their own opinions.
The Gemara presents another teaching: first, the rabbi teaches the student the law, and afterward the student judges the case. The rabbi may teach the student both sides of the matter. He explains the arguments for liability and the arguments for acquittal, and then the student participates in the judgment.
Even though the student has only just learned the matter from the rabbi, he is still counted as one of the judges. The rabbi has obviously influenced him, and the opinion that the student now expresses may have come directly from the rabbi’s teaching. Nevertheless, if the student says, “I agree with my rabbi,” his opinion is still counted as an independent opinion.
The Gemara raises a question concerning a rabbi and student, or a father and son. In monetary cases, they are counted as two judges. In capital cases, in cases involving lashes, in the sanctification of the new month, and in determining a leap year, a father and son or a rabbi and student are counted as only one opinion.
Rashi explains that in matters of ritual purity and impurity, it is not always necessary to have a fixed number of judges. A single rabbi may rule in such a matter. One may ask a rabbi, and if he does not know, one may consult another rabbi. The issue of counting judges arises only when a minimum number of judges is required.
In capital cases, twenty-three judges are required. In monetary cases, three judges are required. When a mandatory quorum is needed to begin the case, a father and son or a rabbi and student are not counted as two independent votes in the cases listed by the Gemara.
The Gemara asks why Rabbi said that a rabbi and student are counted as two in monetary cases. It answers that the student may have needed the rabbi to transmit the legal tradition and provide the information, but he did not need the rabbi to provide the reasoning.
There are therefore two types of students. One student needs the rabbi to teach him everything: the information, the legal principles, and the reasoning. Such a student is essentially an extension of the rabbi, and the rabbi and student are counted as one opinion.
Another student receives the transmitted law from the rabbi but is able to develop the reasoning independently. The rabbi tells him, “The law is this way,” and the student can then explain why the law is so, apply it to new situations, and work through the matter on his own. Such a student is not merely a copy of his rabbi’s thinking. He can think independently, and he is therefore counted as a separate judge.
Rashi explains that the rabbi must transmit the tradition that he heard from his own teacher, but the students sitting at the table may each reason independently. If the students can reach their own conclusions and develop their own explanations, they are counted as independent judges.
Otherwise, all seventy judges would have to be considered disqualified from expressing independent opinions, since they all received the law from Moses. Moses taught them the law, but they used their own reasoning to apply it, explain it, and answer questions. Their independent reasoning is what allows them to be counted separately.
Rabbi Abahu teaches that there are ten differences between monetary cases and capital cases. These differences are listed in the Mishnah. There is, however, one special case involving an ox that must be stoned. That case has one rule borrowed from capital cases: it requires a panel of twenty-three judges.
All the other rules of capital cases do not apply to an ox that must be stoned. The only matter that resembles a capital case is the number of judges. The animal is killed because it has killed people and is dangerous, but the other procedural rules of capital cases do not apply.
Why are twenty-three judges required? Rashi explains that if the owner of the ox were being judged, the case would require twenty-three judges. Since the ox is being judged in a matter that affects its owner, the same number of judges is required. One should not conclude, however, that all the other rules of capital cases apply as well.
For example, one does not begin by asking the junior judges for their opinions, nor does one apply the other rules concerning the order of deliberation. The only requirement borrowed from capital cases is the requirement of twenty-three judges.
The Gemara derives this from the verse, “Do not pervert the justice of your poor person in his dispute.” The verse teaches that in the case of a human being, one may not determine liability by a majority of only one vote. If twelve judges say that the defendant is liable and eleven say that he should be acquitted, the defendant cannot be convicted. A majority of two is required for conviction.
For an ox that must be stoned, however, a majority of one is sufficient. If twelve judges say that the ox must be killed and eleven say that it should not be killed, the ox is killed. The verse distinguishes between the justice of a human being and the judgment of an ox.
Once we know that the rule concerning a majority of one does not apply to the ox, we understand that the other special rules of capital cases do not apply either. The only requirement is the initial requirement of twenty-three judges. The ox is judged by twenty-three judges because that is the number required when the owner’s liability is at issue, but the remaining rules do not apply.
The Gemara counts the differences between monetary cases and capital cases. It says that there are ten, although the Mishnah appears to list only nine. The Gemara answers that the Mishnah does list ten, because two matters that appear separate are counted as one.
The Mishnah says that not everyone is eligible to judge a capital case, and it also says that twenty-three judges are required. These are treated as one difference. The judges in a capital case must possess appropriate lineage; for example, a mamzer cannot serve on such a court. At the same time, the court must consist of twenty-three judges, which is the number of a minor Sanhedrin.
Since a minor Sanhedrin must consist of judges with appropriate lineage, stating that twenty-three judges are required and stating that the judges must be eligible are essentially the same matter. That is why the Mishnah appears to list only nine differences, while the Gemara says that there are ten.
The Gemara asks why a mamzer is disqualified from a capital court. It derives this from the verse in which God tells Moses that the elders will stand with him. They must be like Moses in the relevant respect. Just as Moses possessed appropriate lineage, the judges also had to possess appropriate lineage.
The Gemara then identifies another difference that was not included in the Mishnah. A capital court may not include an exceptionally old person, someone who is incapable of having children, or someone who has no children. The concern is that a person who has never raised children may lack the natural compassion necessary to search for grounds to acquit a defendant.
One who has children has experience caring for them and showing them mercy. A person who has never had children may be less likely to have that quality of compassion. Since capital cases require the judges to search for grounds to save the defendant, such a person should not sit on the court.
The Gemara adds that a cruel person should not serve on a capital court either. Even if he has ten children, his cruelty disqualifies him. The relevant issue is not merely whether he has children, but whether he possesses the compassion required of a judge in a capital case.
Why is an exceptionally old person disqualified? Rashi explains that an old person may have forgotten what it was like to raise children. When he was younger, he may have cared for his children and shown them mercy, but as he grew older he may have lost that sensitivity. He may therefore become more hardened and less inclined to search for grounds to acquit the defendant.
The same concern applies to someone who has no children, someone who is incapable of having children, and a cruel person. Such individuals may not naturally search for a way to show compassion to the person on trial. This is especially relevant because the Torah requires the judges in a capital case to make every effort to save the defendant.
In monetary cases, however, these restrictions do not apply. An old person, someone without children, or even someone who is otherwise lacking that particular quality of compassion may serve as a judge in a monetary case. That is the tenth difference between monetary cases and capital cases.
The Gemara then states that everyone is eligible to judge monetary cases. It asks what this teaching comes to include. Since we already know that anyone eligible to judge may serve on a monetary court, why does the Mishnah need to state that everyone is eligible?
The Gemara answers that the statement comes to include a convert and a mamzer. Both may judge monetary cases, even though they are not eligible to judge capital cases. The Gemara says that both are needed.
If the Mishnah had taught only that a convert may judge, one might have said that this is because a convert is permitted to marry into the Jewish community. A convert can marry an Israelite, and one might therefore assume that he has the necessary status to judge. A mamzer, by contrast, may not marry into the Jewish community. One might therefore have thought that a mamzer is more severely disqualified and may not judge monetary cases.
Conversely, if the Mishnah had taught only that a mamzer may judge, one might have thought that a mamzer is eligible because he comes from Jewish ancestry. A convert, however, comes from outside the Jewish people, and one might have thought that a convert could not serve as a judge. Therefore, both cases must be stated.
The Gemara also teaches that a judge in a capital case must possess appropriate lineage to the extent that his daughter could marry a priest. The judges must be free of any family blemish that would affect their lineage.
For example, if a man married a divorcee and his daughter thereby became disqualified from marrying a priest, that man would not be eligible to serve on a capital court. The court must consist of judges whose family status is completely appropriate for the level of judgment required in a capital case.
The Gemara asks where this requirement comes from. Perhaps the word “blemish” in the verse refers to a physical blemish rather than a family blemish. Maybe the judges simply had to be physically whole.
Rav Yehuda said in the name of Rav that the verse is understood from the command given to Moses to appoint the elders who would stand with him. They had to be like him in the relevant respect. Just as Moses possessed proper lineage, they too had to possess proper lineage.
The Gemara challenges this derivation. Perhaps the requirement of proper lineage applied only to that generation, when the Divine Presence rested upon the elders and they received prophecy. Who says that every later court must possess the same level of lineage?
Rashi explains that the requirement is not limited to the seventy elders of Moses’ generation. When Jethro advised Moses to appoint judges, he told him to select men who were like him. The smaller courts also had to meet the same standard in the relevant respect.
Thus, even though the judges appointed by Jethro were not the seventy elders who received the Divine Presence in the same way, they still required appropriate lineage. From there we learn that a court of twenty-three judges must consist of judges with appropriate family status.
What does it mean for a judge to possess appropriate lineage? It means that his daughter must be eligible to marry a priest. A person whose daughter is disqualified from marrying a priest has the relevant family blemish and may not serve on a capital court.
A person who married a divorcee provides an example. His daughter would have the status of a woman who may not marry a priest. Although the man himself may otherwise be a proper member of the Jewish community, that family status prevents him from serving on the capital court.