Semicha and Sanhedrin Controversies of the 16th and 21st Centuries

This article will be devoted to an explanation of the various halachic underpinnings of the Sanhedrin, including:

  • What are the roles and responsibilities of the Sanhedrin?
  • What exactly is semicha, and why is it such a central factor in the creation of the Sanhedrin?
  • What attempts have been made in the last hundreds of years to reconvene a Sanhedrin and reestablish semicha?

WHAT IS THE SANHEDRIN?

The Sanhedrin, also called the Beis Din Hagadol, is the final authority on all matters of halacha. Their interpretation of Torah she’be’al peh is authoritative.

Any halachic issue that is questionable and disputed by lower batei din is referred to the Beis Din Hagadol for a binding decision.

The Sanhedrin also fulfills several vital political and administrative roles. It appoints the Jewish king, as well as the judges who serve on the courts of the shevatim and the cities. Each shevet and each city was required to have a Beis Din of 23 that the Sanhedrin appoints. Thus, the Sanhedrin is not only the supreme halacha authority, but it is also, quite literally, the “power behind the throne,” “the power behind the courts,” – and, at the same time, the court of final appeal. It has the final say in all matters, both temporal and spiritual.

There are several other halachos that require the participation or agreement of the Sanhedrin, including a decision to wage war and expanding the halachic boundaries of the Beis HaMikdash or of Yerushalayim (Rambam, Hilchos Sanhedrin 5:1). (We are permitted to eat many holy items, including certain korbanos and maaser sheni, only in halachic Yerushalayim, which has nothing to do with its current municipal boundaries. Expanding the city requires a special procedure that includes participation of the Sanhedrin.)

In addition, several types of adjudication require the participation of the Sanhedrin, including prosecuting a false prophet, and the law of zakein mamrei, an elder who ruled against the Torah she’be’al peh (both taught in parshas Shoftim), the law of a city that went astray (ir hanidachas), the procedure of the and that of eglah arufah (Rambam, Hilchos Sanhedrin 5:1).

The Sanhedrin is also in charge of supervising the Jewish calendar through the appointing of a specially-designated committee. (In the absence of a Sanhedrin or Beis Din Hagadol, Hillel Hanasi established a permanent calendar over 1500 years ago, so that the calendar can continue to exist even though we no longer have a Sanhedrin.)

WHERE AND WHEN DOES THE SANHEDRIN MEET?

The Sanhedrin was open daily in its main headquarters inside the Beis HaMikdash, called the lishkas hagazis. When they are involved in litigation, the entire Sanhedrin, consisting of 71 members,is present. When not in session, there must still always be 23 members of the Sanhedrin in the lishkah.

WHO QUALIFIES TO BE IN THE SANHEDRIN?

There are many technical requirements that all members must meet, but as a basic requirement they must all be superior talmidei chachamim and yirei shamayim (G-d fearing individuals). In addition, all members of the Sanhedrin — and indeed, of all the lower courts — must also receive the special semicha that Moshe bestowed upon Yehoshua, authorizing him to rule on all areas of Jewish law.

DOESN’T EVERY RABBI HAVE SEMICHA?

There are several levels of semicha. The most basic semicha, called yoreh yoreh, authorizes the recipient to rule on matters of kashrus and similar areas. A more advanced level of semicha, called yodin yodin, authorizes its recipient to rule as a dayan on financial matters. A still higher level, no longer obtainable today, is called yatir bechoros, which authorizes its recipient to rule on whether a first-born animal is blemished and therefore inappropriate to offer as a korban (see Sanhedrin 5a). This semicha permits the firstborn animal to be slaughtered and eaten.

There was also a qualitatively different type of semicha that could be obtained from the time of Moshe Rabbeinu until the time of the Gemara. This semicha authorized the recipient to rule on capital and corporal cases (chayavei misas Beis Din and malkus) and to judge kenasos, penalties set by the Torah. Only a Beis Din consisting exclusively of dayanim ordained with this semicha may judge whether a person receives lashes or the death penalty for his actions.

In earlier days, each city and shevet had its own Beis Din of 23 judges, all of whom were possessors of the highest level of semicha. In addition, all 71 members of the Sanhedrin must have this form of semicha.

HOW MANY DAYANIM GIVE OUT SEMICHA?

A single judge who is himself a musmach may grant semicha to as many qualified people as he chooses, although the grantor must be accompanied by two other people, who need not be musmachim themselves. Dovid HaMelech (himself an expert judge and tremendous talmid chacham) once granted 30,000 semichos in one day (Rambam, Hilchos Sanhedrin, 4:7)!! Semicha that was granted to someone who is not an expert in all areas of halacha is not valid (Meiri, Sanhedrin 14a).

This special semicha must be issued within Eretz Yisroel. Thus, even if a talmid chacham is highly qualified, he may not receive semicha unless the grantor of the semicha and the recipient are both in Eretz Yisroel (Sanhedrin 14a). For this reason, most of the Amora’im, the great talmidei chachamim of the times of the Gemara, never received this semicha, because they lived in Bavel, not in Eretz Yisroel.

THE STORY OF RAV YEHUDA BEN BAVA

The Gemara (Sanhedrin 13b) tells us the following fascinating story which took place during the extreme persecutions that followed the failure of the Bar Cochva revolt: The Roman Empire once decreed that issuing semicha was a serious crime, punishable by death for both the grantor and the recipient. Furthermore, they ruled that the town in which the semicha was issued would be destroyed, and the areas near it would be razed.

After the execution of Rabbi Akiva, Rabbi Yehudah ben Bava realized that he was one of the last musmachim (recipients of this special semicha) still alive. If he failed to grant semicha to some young scholars, the semicha would terminate with his own death. He therefore endangered himself and granted semicha to five surviving disciples of Rabbi Akiva: Rabbi Meir, Rabbi Shimon bar Yochai, Rabbi Yehudah ben Ila’i, Rabbi Yosi ben Chalafta, and Rabbi Elazar ben Shamua – basically, to an entire generation of Torah leadership. In order not to endanger anyone else, Rabbi Yehuda ben Bava brought them to a place that was midway between two major cities and between two mountains. Thus, for the Romans to fulfill their decree they would need to level two mountains.

Rabbi Yehudah ben Bava succeeded in his mission, although he paid for it with his life. Because of his supreme sacrifice, the semicha continued among the Jewish people for several more generations.

With the increased persecution of the Jews by the Romans, the Jewish population of Eretz Yisroel dwindled, and with time, ordination through this semicha ended. Thus, no one received the semicha that qualifies someone to judge capital, corporal, or kenasos cases, and this aspect of halachic life came to an end.

CAN SEMICHA BE REINSTITUTED?

The Rambam writes: “It appears to me that if all the chachamim in Eretz Yisroel agree to appoint dayanim and grant them semicha, they have the law of musmachim, and they can judge penalty cases and are authorized to grant semicha to others… a person who received semicha from someone who already has semicha does not require authorization from all of them – he may judge penalty cases for everyone, since he received semicha from Beis Din. However, this matter requires a final decision” (Rambam, Hilchos Sanhedrin 4:11).

Thus, the Rambam suggested a method whereby the semicha can be re-created. However, several issues need to be clarified before this project can be implemented:

1. Did the Rambam conclude that this is the halacha, or is it merely a suggestion he is conjecturing? Don’t his final words, “However, this matter requires a final decision,” imply that he was uncertain about his suggestion and that he deferred making a final decision regarding this issue?

2. Assuming, unlike our previous sentence, that the Rambam ruled definitely that semicha can be reinstituted, did he require, literally, all of the Chachamim in Eretz Yisroel to agree, or does a majority suffice? Must the rabbonim be assembled all in one place, or is it sufficient if they are aware of the process and grant their approval?

3. Is the Rambam’s opinion on this subject universally held? And if not, do we rule like him?

THE 16th CENTURY CONTROVERSY– REINTRODUCING SEMICHA

After the Spanish expulsion, many Jews remained in Spain, practicing their Judaism in secret, while publicly appearing to be Christians. Thousands of these Marrano Jews, also often called by the Spanish term conversos or the Hebrew word, anusim, eventually escaped to areas where they could return to the religion of their fathers, yet they were haunted by the transgressions they had committed on Spanish soil. Many were concerned that they would never escape the specter of their more serious aveiros, many of which carried the punishment of kareis. Although they had become true ba’alei teshuvah, they lived in fear of their ultimate day of judgment, when they would have to provide a reckoning for their actions and face the serious consequences.

THE SOLUTION

The Mahari Beirav, Rav of Tzefas in the early sixteenth century, came up with a solution to the problem of these ba’alei teshuvah. He proposed the creation of batei din that could carry out the punishment of malkos, lashes, which releases a person from the punishment of kareis (Mishnah Makos 23a).

There was one serious problem with this proposal. In order to create batei din that can administer these punishments, one must have dayanim who have received a special semicha that can be traced to Moshe Rabbeinu. Since this semicha had terminated over a thousand years before, the Mahari Beirav needed a method of reintroducing the semicha.

TZEFAS, 5298 (1538)

In  5298 (1538), 25 gedolim of Tzefas, at the time the largest Torah community in Eretz Yisroel, granted semicha to the Mahari Beirav, based on the writings of the Rambam (Peirush Hamishnayos, Sanhedrin 1:3; Hilchos Sanhedrin 4:11). He then ordained four people with the new semicha, including Rav Yosef Karo, who had already written his monumental works Kesef Mishneh and Beis Yosef, and later authored the Shulchan Aruch, and Rav Moshe diTrani, the author of several major halacha works, including Beis Elokim, Kiryas Sefer, and Shu’t Mabit. Mahari Beirav also sent a semicha to the Rav of Yerushalayim, Rav Levi ibn Chaviv, known as the Maharalbach, who he assumed would be delighted to receive such a wonderful gift!

The Maharalbach was not happy with the gift and refused to accept the semicha. He took strong issue with their granting semicha, for the following several reasons:

1. The Rambam’s closing words, “This matter requires a final decision,” shows that he was not fully decided on this halacha, and therefore it cannot be relied upon.

2. The Ramban (Sefer Hamitzvos, Aseh 153) disagrees with the Rambam, contending that semicha can not be reinstituted until Moshiach arrives. Thus, since the Rambam was uncertain about this halacha, and the Ramban was certain that there is no such thing, the halacha follows the Ramban.

3. Even if we assume that the Rambam meant this ruling to be definitive, the Tzefas rabbonim had not fulfilled the procedure correctly, since all the gedolim of Eretz Yisroel must be together in one synod. (This opinion is actually mentioned earlier by the Meiri, Sanhedrin 14a.)

Furthermore, the Maharalbach insisted that all the scholars must be involved in the active debate and that all must agree. He also contended that even if someone holds that a majority of gedolim is sufficient, the minority must be aware of the debate and participate in it. He further contended that creating such a synod after the fact would not help, since, once the Tzefas rabbonim had ordained the Mahari Beirav, they now have a bias in their ruling (noge’a bedin), which invalidates their opinion on the subject.

The Maharalbach proved his opinion, that the Rambam’s suggestion was not accepted as normative halacha, from the fact that there had been numerous opportunities for gedolei Yisroel to create semicha, and yet, they refrained from doing so. The Maharalbach concludes that semicha will not exist again until the arrival of Moshiach.

WHAT ABOUT THE MARRANOS?

As for the ba’alei teshuvah that would be left without release from their kareis, the Maharalbach pointed out that if they performed sincere teshuvah, they would be forgiven for their sins, no matter how severe they were. Although it is possible that they may suffer somewhat in this world for these aveiros, despite their teshuvah, they would receive no punishment for their aveiros in the next world (Makos 13b).

On the other hand, the Maharalbach pointed out that he did not understand how semicha could accomplish what Mahari Beirav wanted, anyway, since Beis Din cannot punish someone for violating the Torah, unless several requirements are met, including:

The sinner must receive a warning, immediately prior to his violating the commandment, telling him that he is sinning, explaining to him that what he is planning to do is wrong, and informing him what punishment he will receive if he sins. The sinner must acknowledge that he heard and understood the warning, and then perform the sin, anyway. Furthermore, Beis Din does not punish a sinner unless two adult male Jews witness the entire procedure and then testify in front of Beis Din. Clearly, none of these Marranos had received warning prior to performing the aveiros, and, therefore, they were not punishable with malkus in Beis Din. Thus, how would these ba’alei teshuvah receive the malkus they desire, even if dayanim musmachim exist?

We will continue this article next week.




Eglah Arufah

Photo by Alexander Wallnöfer from FreeImages

Question #1: Which Cities?

What are the requirements for a city to be obligated in eglah
arufah
?

Question #2: Where?

How do we measure to determine the obligation of eglah
arufah
?

Question #3: Why Now?

Why are we discussing this mitzvah this week?

Background

Chazal teach us that the last subject Yaakov and
Yosef had been studying together before Yosef so mysteriously disappeared was
the topic of eglah arufah. This provides opportunity for us to study the
very detailed and difficult laws surrounding the mitzvah of eglah
arufah
. Let us begin with the description of this mitzvah as expressed in
the Torah:

“Should you find, lying in a field, someone slain in the
land that Hashem, your G-d, is giving to you to inherit – and it is unknown who
killed him, your elders, your judges, must leave (their usual location) and
measure the distance from the cities that are near the corpse. The elders of
the closest city bring a calf that has never been worked nor pulled a yoke. The
elders of that city bring this calf down to a ‘hard’ valley that will not be
worked and not planted, and there, in that valley, they decapitate the
calf. Then, the kohanim, who are the sons of Levi, come forward, because
Hashem, your G-d, chose them to serve Him and to bestow blessing in the Name of
Hashem, and by their mouths will be decided all disputes and all matters
germane to nega’im. Subsequently, all the elders of that city that is
nearest the corpse shall wash their hands over the calf that was decapitated in
that valley. They then raise their voices, declaring, ‘Our hands did not shed
this blood, and our eyes did not see. Atone for Your people, Yisroel, whom You,
Hashem, have redeemed, and do not allow innocent blood to be shed among Your
people, Yisroel.’ Thereby, shall this blood be atoned” (Devorim, 21:1-8).

The words of this posuk are carefully analyzed in Torah
she’be’al peh. To review: A terrible calamity occurred to the Jewish
nation. A murder has taken place, and, to make matters worse, indications are
that a Jew was the perpetrator. How do we see that it is appears that a Jew was
the murderer? Firstly, the halacha is that if there were non-Jews near
the murder site, no eglah arufah is offered, based on the supposition
that it was a non-Jew who performed the crime (see Sotah 44b, according
to the version quoted by the Rambam; see also Tosafos, Bava Basra
23b s.v. beyosheves, and Minchas Chinuch #530). In addition,
should the victim have fallen near the Jewish country’s borders, no eglah
arufah
is offered, under the assumption that he was murdered by a foreign
intruder (Mishnah, Sotah 44b). Furthermore, in an unfortunate era
when there were gangsters among the Jewish people, no eglah arufah was
offered either, since the assumption is that one of the gangsters performed the
heinous crime, and the eglah arufah is only offered when there is no
knowledge about the perpetrator’s identity (Mishnah, Sotah 47a).

There are several questions relating to these pesukim that
we will discuss. For example, the verse goes to great length to describe the
role of the kohanim in the Jewish people, yet it does not say what
function they perform in the eglah arufah procedure. (The answer to this
question will need to wait until our sequel.) Also, we should note that there
are three different descriptions of elders in the pesukim: At first it
refers to “your elders, your judges,” then it refers to “the elders of that
city,” and lastly it refers to “all the elders of that city.” These seem to be
three different categories of elders. Indeed, we will soon see that this is
exactly the situation.

Should the murderer be apprehended, no eglah arufah
is offered. Since no murderer has yet been caught or suspected, the community
from which it is most likely that the murderer came is required to atone for
itself. This atonement procedure is the fulfillment of the mitzvah of
bringing an eglah arufah, which is counted by the Sefer Hachinuch
as mitzvah number 530. If the procedure of the eglah arufah has
already been performed, and subsequently the murderer is identified in a way
that halacha rules that he be punished, the regular punishment is
carried out (Mishnah Sotah 47a). The purpose of the eglah
arufah
is to atone for the negligence of the community and its leadership,
not for the murderer.

Details, details

There are several different stages involved in fulfilling
the mitzvah of eglah arufah, each of which is performed by a different
group of people. The first step is the responsibility of those who find the
corpse. Contemporary society would expect them to call the police department to
file a criminal report, and the police would contact the coroner’s office to
examine the corpse. However, the halachic instructions are quite
different. Those who find the victim send a notification to the Sanhedrin,
wherever it is headquartered, to send representation to the location of the
fallen individual (Minchas Chinuch #530). The corpse is not moved in the
slightest, and the examination of the crime is performed only by observation.
In order to make sure that the meis has a proper burial place, the halacha requires
that he be buried in the place he was found, a halachic principle called
meis mitzvah koneh mekomo
, which literally means that someone who dies
without next of kin nearby or available to guarantee proper burial has an
automatic legal right to be buried in the place where he was found, unless it
is a place that causes public inconvenience (Eruvin 17a, b). The Gemara
explains that this was one of the ten rules that Yehoshua established when he
led Klal Yisroel into Eretz Yisroel (Bava Kama 81a).

Three groups of elders

Above it was noted that the posuk mentions three
groups of elders:

1. “Your elders, your judges,” who “must leave and measure
the distance from the cities that are near the corpse.” This refers to the Sanhedrin,
the main court of the Jewish people, responsible for the continuity of the Torah
she’be’al peh
and for all regulations regarding the Jewish people. They
send a group of their members from Yerushalayim, or their headquarters, to
oversee the measuring from the fallen victim to the nearby cities to determine
which is closest.

2. “The elders of that city,” who become responsible for
the proceedings once it is determined which city is closest to the victim of the
crime.

3. “All the elders of that city,” which, according to the Rambam,
includes even senior citizens who are not necessarily scholars. The members of
this group are required to wash their hands and to make a declaration of their
innocence.

The arrival of the members of the Sanhedrin

The Rambam rules that we leave the corpse in place
until a representative body of the Sanhedrin arrives. Bearing in mind
that, in his opinion, this could take many weeks until it happens, this seems
very unusual, as we usually bury someone as soon as possible, unless the
dignity due the departed requires that we wait for the arrival of next-of-kin or
a larger turnout at the funeral. Here, the delay will not result in either of
the above; yet, in the Rambam’s opinion, we delay.

How long can this delay be? Allow me to calculate. The mitzvah
of eglah arufah applies anywhere in Eretz Yisroel, including the
large area on the eastern side of the Jordan River (Sifri; Rambam,
Hilchos Rotzei’ach
10:1). We know that the most distant places in Eretz
Yisroel
were fifteen days travel time from Yerushalayim (Mishnah Taanis
10a). Granted that the Mishnah there is calculating the time it takes a family
to travel, we can shave off a few days of travel time, but not much more, since
we know that beis din’s messengers could still take about twelve days to
get to the most distant parts of Eretz Yisroel (Rambam, Hilchos Kiddush
Hachodesh
5:4, 6). Therefore, it could take at least twelve days after the
discovery of the corpse until the locals get a message to the Sanhedrin
to send its representatives. After the Sanhedrin chooses the members for
this mission, if the city is this far removed from Yerushalayim, it could take
at least twelve more days for the delegation to arrive. Thus, we can easily
have a situation in which the corpse has been left for almost thirty days until
burial according to the approach of the Rambam (Minchas Chinuch).

What happens to the corpse during these many weeks of
waiting? All the rules of kovod hameis apply, other than allowing no
delay to bury him. Since he must be left in situ in order not to bias
the measurements, there is a requirement to provide shemirah on the body
by day and by night, firstly for the human honor due him, and secondly to make
sure that animals and insects do not feed on him. Thus, in this situation the
requirement of meis mitzvah requires that people be available to be
shomeir
this meis outdoors, wherever he was found, 24/7, for up to
and perhaps more than thirty days, regardless of the weather conditions! We
should also note that, according to the opinion of Rabbi Eliezer ben Yaakov
that we will soon cite, the wait could be considerably longer.

Several acharonim (Chasdei Dovid, Minchas
Chinuch
) question the Rambam’s ruling that the corpse must be left in
situ
until the representatives of the Sanhedrin arrive. The text of the Tosefta
(Sotah 9:2) implies otherwise: As explained by the Chasdei Dovid,
when the corpse is located, the Tosefta rules that a nearby beis din
sends representatives to mark the exact point from which we are going to
measure. Then, the meis is buried in place, because of the principle of meis
mitzvah koneh mekomo
. The Sanhedrin members, when they arrive,
measure not from the meis himself, who has already been buried, but from
the marker on the gravesite that indicates the pinpointed location from which
they are to measure. The Talmud Yerushalmi (Sotah 9:1) quotes
this Tosefta, yet the Rambam rules otherwise.

Three, five or more?

There is a dispute among tanna’im how many members
of the Sanhedrin are required to come: According to Rabbi Shimon, three
members, and according to Rabbi Yehudah, five (Sotah 44b; Sanhedrin
2a, 14a). The Rambam rules according to Rabbi Yehudah, requiring five
members of the Sanhedrin to come to the site of the murder (Hilchos
Rotzei’ach
9:1).

There is a third tanna, Rabbi Eliezer ben Yaakov,
who requires a very large representation of the Jewish people, including the
king, the kohein gadol and the entire Sanhedrin, not just three
or five representatives (Sotah 45a). As I mentioned above, his opinion
could potentially cause an even greater delay until the Sanhedrin arrives
to measure the distance to the nearby cities, since both the king and the kohein
gadol
may have other obligations, and the king could be away on a war or
other affairs of state.

However, Rabbi Eliezer ben Yaakov’s position is not
accepted as normative halacha, evidenced by the fact that the Mishnah,
which discusses this issue in two different places, does not even mention his
opinion. The Rambam, also, does not rule this way, but requires only
five members of the Sanhedrin, unaccompanied by either the king or the kohein
gadol
.

Where is the Sanhedrin?

Until the destruction of the Beis Hamikdosh, the Sanhedrin
was always located either in a special chamber on the grounds of the Beis
Hamikdosh
or somewhere nearby. After the destruction of the Beis Hamikdosh,
the Sanhedrin went through a series of relocations, first to Yavneh, and
then to different places mostly in the Galil, including Shafra’am, Beis
She’arim, Tzipori, Usha and Teveryah (Rosh Hashanah 31). The Minchas
Chinuch
(530) rules that there was a law of eglah arufah during all
these periods. This would indicate that the Mishnah in Sotah 44b,
which states that the Sanhedrin members left from Yerushalayim, is an
old Mishnah dating back to the time of the Beis Hamikdosh and not
from the time of Rabbi Yehudah Hanasi, in whose day the Sanhedrin was
already in Teveryah, the last of its ten relocations.

Next mitzvah: Measuring

There is a mitzvah to measure even when the corpse
is found right outside one city, such that it is completely unnecessary to measure
to determine which city is closest (Sotah 45a; Rambam, Hilchos
Rotzei’ach
9:1).

Since this measurement is a Torah requirement, it must be
done very precisely (Eruvin 58b; Rambam, Hilchos Rotzei’ach 9:4).
Regarding other halachos involving measurement of distance, such as the techum
Shabbos
around a city or village within which one may walk on Shabbos,
we do not measure the elevations of hills around the city, but have various halachically
approved methods of estimating and shortening these distances. In other words,
techum Shabbos
is measured as the crow flies.

These rules do not apply to eglah arufah. In this
instance, the measurements must be exactly how far it would take someone to
walk this distance. In other words, the distance is measured not as the crow
flies, but as the person walks.

Must they measure it themselves?

Are the members of the Sanhedrin themselves required
to measure the distance from the corpse to the nearest city, or is it
sufficient if they supervise the measuring? The Minchas Chinuch rules
that they are not required to perform the actual measurements, but they must
oversee those who are measuring.

There are several unusual laws germane to the mitzvah
of measuring. We measure to the largest cities from which it is likely that the
murderer came. If there are smaller cities nearby, they are ignored (Rambam,
Hilchos Rotzei’ach 9:6, based on Bava Basra 23b). If the nearest
city includes a non-Jewish population, no measurement and no mitzvah of eglah
arufah
are performed (Rambam, Hilchos Rotzei’ach 9:5), and if
the nearest city is Yerushalayim, there is no mitzvah of eglah arufah
(Bava Kama 82b).

Is beis din a liability?

One of the unusual rules is a statement of the Mishnah
that the measurement is done only towards a city that has a beis din (Sotah
44b). This implies that if there are large, populous, completely Jewish
cities near the corpse that do not have a beis din, we do not measure
from the corpse in the direction of that city, but instead, we measure to a
more distant city that has a beis din. The question, raised already by Tosafos
(Bava Basra 23b s.v. bedeleika), is that the lack of a beis
din
does not demonstrate that the murderer was not a resident of that city.
Thus, if our goal is to determine which city most likely produced the murderer,
the farther city should not thereby be required to bring an eglah arufah.
This question has created much literature, but, to the best of my knowledge,
there is no universally accepted approach to answer it.

The measure of a man

From which point on the victim’s body do we measure? The Mishnah
(Sotah 45b) quotes a three-way dispute among tanna’im discussing
exactly from which point on the victim’s body we measure. According to Rabbi
Eliezer, we measure from the navel, which is where he first acquired
nourishment before birth. In Rabbi Akiva’s opinion, we measure from the
nostrils, which is the place from which a person draws his breath. Rabbi
Eliezer ben Yaakov rules we measure from the neck, which he bases on his
understanding of a posuk. The Rambam concludes that we follow
Rabbi Akiva and measure from the nostrils.

According to the above-referenced Tosefta, those who
found the body buried it in situ immediately, but were careful to mark
the exact place where his nostrils were at the moment they found him. The
elevation at which the body was found is also a factor in the measurement. This
means that they needed to measure carefully the height at which they found him,
not only his location on the ground before they buried him.

I will be sending the sequel to this article in two weeks.

Conclusion

The Sefer Hachinuch explains one of the reasons for the mitzvah of eglah arufah is that it teaches communal responsibility. The elders of the Sanhedrin are required to send a representation of either three or five members to personally oversee the measurement from the victim to the nearest city. After they complete their measurement, the city thus indicated must send out all its elders to participate in what can only be described as a very unusual ceremony. Certainly, they cannot declare innocence before Hashem unless they are certain that they provide every wayfarer with adequate security and provisions. Thus, the elders of the city must always be responsible for whatever happens in their city, not only among the residents, but even among the visitors.




Semicha and Sanhedrin Controversies of the 16th to 21st Centuries, Part II

This is the continuation of the article I sent out last week. Although the news story for which this was written is no longer a hot topic, the halachic information is still germane and relates directly to Parshas Ki Seitzei.

In part I of this article, we explained that the Sanhedrin, which is also called the Beis Din Hagadol, is the final authority on all matters of halacha and that the interpretation by its 71 members of Torah shebe’al peh is both exclusive and authoritative. Any halachic issue that is questionable and disputed by a lower beis din is referred to the Beis Din Hagadol for a binding decision. We also noted that the Sanhedrin fulfills several vital political and administrative roles, including the appointment of the Jewish King and the judges who serve on the courts of the tribes (the shevatim) and the cities. Furthermore, many other halachos require the participation or agreement of the Sanhedrin, including a decision to wage war, or any attempt to expand the boundaries of the Beis HaMikdash or of the city of Yerushalayim (Rambam, Hilchos Sanhedrin 5:1). Thus, the Sanhedrin is not only the supreme authority in matters of halacha, but it is also, quite literally, the “power behind the throne,” “the power behind the courts,” – and, at the same time, the court of final appeal. It has the final say in all matters, both worldly and spiritual. The Sanhedrin is also in charge of supervising the Jewish calendar through the appointment of a specially-designated committee. (In the absence of a Sanhedrin or Beis Din Hagadol, Hillel Hanasi established a calendar over 1500 years ago, so that the calendar can continue to exist, even during the interim that there is no Sanhedrin.

We also noted that among the many technical requirements that all members of the Sanhedrin must meet, there is a basic one: they must all be superior talmidei chachamim and G-d fearing individuals. In addition, all members of the Sanhedrin and, indeed, of all the lower courts must also receive the special semicha that Moshe bestowed upon Yehoshua, authorizing him to rule on all areas of Jewish law. We noted that there are several levels of semicha, and that all members of the Sanhedrin are required to have the highest level of semicha –one that authorizes its recipient to rule on capital and corporal cases (chayavei misas beis din and malkus) and to judge kenasos, penalties that the Torah invoked. This semicha can only be given to someone who is an expert in all areas of halacha.

We also studied the question as to whether the semicha can be reintroduced by us, and the controversy that developed in the 16th century about this matter. We noted that the conclusion was that the attempt to reintroduce the semicha then was not accepted on halachic grounds, for several different reasons. One of those reasons  was that the person receiving semicha must be a talmid chacham with the scholarship to rule on any subject in Torah.

How, then, will the Sanhedrin be reestablished?

The Radbaz, gadol hador of that generation, concluded either that Eliyahu HaNavi will issue semicha to others, as the harbinger of Moshiach’s arrival; or, that descendents of shevet Reuven may reappear who have semicha. A third option he suggests is that Moshiach, himself, will grant semicha and thus create a Beis Din Hagadol.

At this point, we continue our discussion:

SEARCHING FOR SEMICHA IN THE 1830’S

In the 1830’s, a leading disciple of the Vilna Gaon who had settled in Yerushalayim, Rav Yisroel of Shklov, made another attempt to restart semicha. Rav Yisroel was interested in organizing a Sanhedrin, but he accepted the ruling of the Maharalbach and the Radbaz that we cannot create semicha by ourselves. Instead, he decided to utilize the suggestion of the Radbaz of receiving semicha from the tribes of Reuven. Rav Yisroel charted out where he thought the Bnei Reuven were probably located, and sent a certain Rav Baruch, as his emissary, to find them (see Sefer Halikutim, in the “Shabsei Frankel” edition of Rambam, Hilchos Sanhedrin 4:11). Unfortunately, Rav Baruch did not succeed in locating the shevet of Reuven, and the plan came to naught.

It should be noted that Rav Yisroel raised the following question: How could the Bnei Reuven have kept the semicha alive, considering the fact that they were outside Eretz Yisroel and the semicha can be granted only in Eretz Yisroel? He answered that since the Bnei Reuven had been distant from the rest of Klal Yisroel before the decision that semicha can be only in Eretz Yisroel had been accepted, there is no reason to assume that they accepted this ruling, and they were probably still issuing semicha!! It is odd that Rav Yisroel assumed that although we paskin that semicha can be given and received only in Eretz Yisroel, he still held that a semicha granted outside Eretz Yisroel is, nonetheless, valid.

Rav Yisroel’s vain search to locate a musmach was an attempt to reintroduce the Sanhedrin, a far more ambitious plan than the Mahari Beirav had considered. Apparently, Rav Yisroel understood from the Gemara (Eruvin 43b) that the Sanhedrin must exist before Eliyahu can appear, a position that almost all poskim reject, as we pointed out above.

NAPOLEON’S SANHEDRIN

In 5567 (1807), Napoleon Bonaparte, Emperor of France, decreed the opening of what he called “The Sanhedrin,” consisting of 71 Jewish leaders, mostly Rabbonim, but including many communal leaders, many not religious.

This group had nothing to do with being a Sanhedrin other than that Napoleon had given them this name. Napoleon presented this group with a list of 12 inquiries to answer, all of which questioned whether the Jews were loyal to the French Empire and its laws, and about the interactions between Jews and non-Jewish Frenchmen. Of course, the “Sanhedrin” had to be very careful how they answered Napoleon’s questions to make sure that they were not guilty of treason. This Sanhedrin met many times in the course of about a year and then disbanded. It was never called into session again.

THE TWENTY-FIRST CENTURY

Those who call their modern organization the “Sanhedrin” base themselves on the Mahari Beirav’s opinion that we can recreate semicha today, based on the acceptance of most of the gedolei Yisroel. On this basis, they claim to have created semicha for one of the well-known poskim in Eretz Yisroel, who subsequently ordained a few others, who have ordained yet others, until they now claim several hundred “musmachim.

I spoke to one of the “dayanim” of the “Sanhedrin” about the procedure used to appoint their musmachim. He told me that the organization mailed letters to every shul and settlement in Israel requesting appointment of a certain well-respected Rav as musmach. They then counted the votes of those who responded and approved of their appointment. Since most of those who responded approved of the appointment, they have ruled that this Rav is now a musmach whose semicha qualifies people to serve on the Sanhedrin! To quote this “dayan,” “those who chose not to respond do not count. We have a majority of those who responded!?!”

Obviously, this system carries absolutely no halachic validity according to any opinion.

When I spoke to the “dayan,” he asked me if I was interested in becoming one of their musmachim. He told me that he would send me the information necessary for an appointment with their committee that approves musmachim. Consequently, I received a letter inviting me to the next meeting of their “Sanhedrin,” and a note that they had asked one of their members about me and, upon that basis, they were preparing a semicha with which to present me at the next meeting of the “Sanhedrin”!! I noted above that the Radbaz ruled that the person receiving semicha must be a talmid chacham with the scholarship to rule on any subject in Torah. Since I do not qualify for semicha on that basis, I am curious what criteria they are applying to determine a minimum standard for semicha. Unfortunately, I think I know the answer.

The group behind this “Sanhedrin” often implies that several different gedolim are behind their activities. This is highly misleading, since these gedolim refuse to be identified with this group’s activities. Any Jewish organization built upon falsehood is doomed to failure, even if it is well intentioned, since the Torah is Toras Emes.

When I spoke to the “dayan,” I told him that I had some questions about the halachic basis for their procedures. He answered that they prefer to reply to questions in writing, and he requested that I send my letters via e-mail. He promised that they would answer all my inquiries quickly. In a subsequent conversation, he told me that he had received my initial inquiry. I sent him two respectful letters, one asking several halachic questions about their procedures, the second asking for verification that some of the gedolim they have quoted have, indeed, endorsed their position. Although I sent each of these requests to them twice, I never received any reply from them.

Moreover, there are some serious issues that this “Sanhedrin” is delegating to itself. If I might quote from a list of their activities:

“Among the many topics the Sanhedrin intends to address are the bridging of the divisions between various communities of Jewish exiles who have returned to Israel; the establishment of authentic techeilet, the biblical blue thread Jews are commanded to wear amongst the fringes attached to four-cornered garments; the definition of the measurement of the ‘amah’ (the biblical cubit); the determination of the exact point of human death, so as to deal with the Jewish ethics of euthanasia; and the issue of agunot — women whose husbands refuse to grant them a divorce.”

I would like to point out that all these issues have been or are being dealt with by Klal Yisroel’s gedolei haposkim. (In other articles, I explained why most gedolei haposkim rejected the suggested sources of the techeiles dye.)

Recently, the group has gotten involved in several really serious issues. Apparently, they are exploring the location of the mizbeiach, the possibility of offering korban Pesach, and of appointing a king from the descendants of Dovid Hamelech. One of their meetings was, apparently, conducted on the Har Habayis itself! (Please note that most poskim prohibit ascending the Har Habayis.) The discussion about bringing korbanos is a well-trodden halachic discourse and, here also, all gedolei poskim have ruled that we cannot offer korbanos now. (Again, I refer the reader to an article on this subject that is available on this site.)

Based on what I have seen about this “Sanhedrin,” I pose the following questions to the reader:

Are the members of this “Sanhedrin” qualified to make decisions that affect Klal Yisroel? Are they qualified to make any halachic decisions at all? Is this not an attempt at arrogating halachic decisions from the Gedolei Yisroel and the Gedolei Haposkim? Are these the people who should be determining Klal Yisroel’s agenda? Doesn’t this organization cheapen the kedusha that the word Sanhedrin implies? Isn’t this organization an insult to anyone with Torah sensitivities?

The Gedolei Yisroel could organize a Sanhedrin today, if they considered it halachically acceptable. Clearly, they are of the opinion that the halachic foundation for such a move does not exist or, alternatively, that Klal Yisroel will not benefit from its creation.

We should all daven with more kavanah when reciting the bracha Hoshiva shofeteinu kivarishonah, “Return our judges like the ones we had originally,” as a result of Teka bishofar gadol licheiruseinu, “Blow the Great Shofar that will free us.”




Semicha and Sanhedrin Controversies of the 16th to 21st Centuries, Part I

This article was written a number of years ago. Although the news story for which it was written is no longer a hot topic, the halachic background included is still very germane and relates directly to Parshas Shoftim.

The Anglo-Jewish press has been carrying occasional coverage of a group in Eretz Yisroel that calls itself “The Sanhedrin,” a group of 71 rabbis convened in Teverya claiming that they had the semicha necessary to create a Sanhedrin as specified by the Rambam. The group chose Teverya because the original Sanhedrin last met there. The “semicha” that they received was based on a semicha granted to one well-known talmid chacham who had received semicha from “many prominent rabbis.” In the opinion of those organizing this “Sanhedrin,” this talmid chacham is now considered to have received semicha as handed down from Moshe Rabbeinu, and, therefore, he is now qualified to give this level of semicha to the others. The goal of the group is to have a body of rabbis who convene and issue rulings on pressing issues relevant to Klal Yisroel. The issues that the group plans to discuss and rule upon are: how to unify Jewish practice across the spectrum, to determine and reestablish halachic techeiles, to define the measure of an amah, to find ways to deal with agunos, to determine precisely the point of human death, so as to deal with issues of euthanasia, and to find a way to offer the Korban Pesach once again.

This group’s claims have generated some serious halachic issues pertaining to what the poskim have written about how the semicha and the Sanhedrin will be reestablished.

This article will be devoted to an explanation of the various halachic underpinnings of the Sanhedrin, including:

What are the roles and responsibilities of the Sanhedrin?

What exactly is semicha, and why is it such a central factor in the creation of the Sanhedrin?

What attempts have been made throughout history to reconvene a Sanhedrin and reestablish semicha?

Does this new organization fulfill its title?

WHAT IS THE SANHEDRIN?

The Sanhedrin, also called the Beis Din Hagadol, is the final authority on all matters of halacha. Their interpretation of Torah shebe’al peh is authoritative.

Any halachic issue that is questionable and disputed by the lower batei din is referred to the Beis din Hagadol for a binding decision.

The Sanhedrin also fulfills several vital political and administrative roles. It appoints the Jewish King, as well as the judges who serve on the courts of the tribes (the shevatim) and the cities. Each shevet and each city was required to have a beis din of 23 that the Sanhedrin appoints. Thus, the Sanhedrin is not only the supreme halachic authority but it is also, quite literally, the “power behind the throne,” “the power behind the courts,” and, at the same time, the court of final appeal. It has the final say in all matters, both worldly and spiritual.

Many other halachos require the participation or agreement of the Sanhedrin, including a decision to wage war and expanding the boundaries of the Beis HaMikdash or of Yerushalayim (Rambam, Hilchos Sanhedrin 5:1). (We are permitted to eat many holy items, including certain korbanos and maaser sheini, only in halachic Yerushalayim, which has nothing to do with its current municipal boundaries. Expanding the city requires a special procedure that includes participation of the Sanhedrin.)

In addition, several types of adjudication require the participation of the Sanhedrin, including the laws of eglah arufah, and prosecuting a false prophet, a city that went astray (ir hanidachas), a sotah, and a zakein mamrei, an elder who ruled against the Torah shebe’al peh (Rambam, Hilchos Sanhedrin 5:1).

The Sanhedrin is also in charge of supervising the Jewish calendar, through the appointment of a specially-designated committee. (In the absence of a Sanhedrin or Beis din Hagadol, Hillel Hanasi established a calendar over 1500 years ago, so that the calendar can continue to exist even during the interim that there is no Sanhedrin.)

WHERE AND WHEN DOES THE SANHEDRIN MEET?

The Sanhedrin was open daily in its main headquarters, called the lishkas hagazis, inside the Beis HaMikdash. When they are involved in litigation, the entire Sanhedrin is present. When not in session, there must still always be 23 members of the Sanhedrin in the lishkah.

WHO QUALIFIES TO BE IN THE SANHEDRIN?

There are many technical requirements that all members must meet, but as a basic requirement, they must all be superior talmidei chachamim and yirei shamayim (G-d fearing individuals). In addition, all members of the Sanhedrin, and indeed, of all the lower courts, must also receive the special semicha that Moshe bestowed upon Yehoshua, authorizing him to rule on all areas of Jewish law.

DOESN’T EVERY RABBI HAVE SEMICHA?

There are several levels of semicha. The most basic semicha, called yoreh yoreh, authorizes the recipient to rule on matters of kashrus and similar areas. A more advanced level of semicha, called yodin yodin, authorizes its recipient to rule as a dayan on financial matters. A higher level, no longer obtainable today, is called yatir bechoros and authorizes its recipient to rule on whether a first-born animal is blemished and no longer appropriate to offer as a korban (see Sanhedrin 5a).

There was also a qualitative different type of semicha that could be obtained from the time of Moshe Rabbeinu until the time of the Gemara. This semicha authorized the recipient to rule on capital and corporal cases (chayavei misas beis din and malkus) and to judge kenasos, penalties that the Torah mandates. Only a beis din consisting exclusively of dayanim ordained with this semicha may judge whether a person receives lashes or the death penalty for his actions.

In earlier days, each city and shevet had its own beis din of 23 judges, all of whom were possessors of the highest level of semicha. In addition, all 71 members of the Sanhedrin must have this form of semicha.

HOW MANY DAYANIM GIVE OUT SEMICHA?

The highest level of semicha may be granted by a single judge who is, himself, a musmach of this level, although the grantor must be accompanied by two other people, who need not be musmachim themselves. He may grant semicha to as many qualified people as he chooses, The Gemara records that Dovid HaMelech (himself an expert judge and tremendous talmid chacham) once granted 30,000 semichos in one day!! However, semicha given by anyone is valid only when it is granted to someone who is an expert in all areas of halacha. Semicha given to a person who is not expert in all areas of halacha is not valid (Meiri, Sanhedrin 14a).

This highest level of semicha must be issued within Eretz Yisroel. Thus, even if a talmid chacham is highly qualified, he may not receive semicha unless the grantor of the semicha and the recipient are both in Eretz Yisroel (Sanhedrin 14a). For this reason, most of the Amora’im, the great talmidei chachamim of the times of the Gemara, never received this semicha, because they lived in Bavel and not in Eretz Yisroel.

THE STORY OF RAV YEHUDA BEN BAVA

The Gemara (Sanhedrin 13b) tells us the following fascinating story: The Roman Empire once decreed that issuing semicha was a serious crime, punishable by death for both the grantor and the recipient. Furthermore, they ruled that the town in which the semicha was issued would be destroyed, and the areas near it would be razed.

Rabbi Yehudah ben Bava realized that he was one of the last musmachim (recipients of this special semicha) alive after the execution of Rabbi Akiva, and that if he failed to grant semicha to some young scholars, the semicha would terminate. He therefore endangered himself and granted semicha to five surviving disciples of Rabbi Akiva: Rabbi Meir (the author of the original draft of the Mishnah), Rabbi Shimon (ben Yochai, author of the Zohar), Rabbi Yehudah (ben Ila’i), Rabbi Yosi (ben Chalafta) and Rabbi Elazar ben Shamua – basically, to an entire generation of Torah leadership. In order not to endanger anyone else, Rabbi Yehuda ben Bava brought them to a place that was midway between two major cities and was between two mountains. Thus, for the Romans to fulfill their decree, they would need to level two mountains.

Rabbi Yehudah ben Bava succeeded in this mission, although he paid for it with his life. Because of his supreme sacrifice, the semicha continued among the Jewish people for several more generations.

With the increased persecution of the Jews by the Romans, the Jewish population of Eretz Yisroel decreased considerably, and with time, ordination through this semicha ended. Thus, no one received the semicha that qualifies someone to judge capital, corporal, or kenasos cases, and this aspect of halachic life came to an end.

CAN SEMICHA BE REINSTITUTED?

The Rambam writes: “It appears to me that if all the chachamim in Eretz Yisroel agree to appoint dayanim and grant them semicha, they have the law of musmachim and they can judge penalty cases and are authorized to grant semicha to others… If someone received semicha from someone who already has semicha, then he does not require authorization from all of them – he may judge penalty cases for everyone, since he received semicha from beis din. However, this matter requires a final decision” (Rambam, Hilchos Sanhedrin 4:11).

Thus, the Rambam suggested a method whereby the semicha can be re-created. However, several issues need to be clarified before this project can be implemented:

  1. Did the Rambam rule this as a final decision or was it merely conjecture? What did he mean when he wrote in his closing words, “However, this matter requires a final decision”? Did he mean that he was uncertain about his suggestion, or was he referring to a different aspect of his comments?
  2. Assuming that the Rambam meant to rule definitely that semicha can be re-instituted, did he mean, literally, that this process requires all of the chachamim in Eretz Yisroel to agree, or does a majority suffice? Must the rabbonim involved all meet in one place, or is it sufficient if they are aware of the process and approve?
  3. Is the Rambam’s opinion on this subject universally held? And if not, do we rule like him?

THE 16th CENTURY CONTROVERSY- REINTRODUCING SEMICHA

After the Spanish expulsion, many Jews remained in Spain, practicing their Judaism in secret, while publicly appearing to be Christians. Thousands of these secret Jews eventually escaped to areas where they could return to the religion of their fathers, yet they were haunted by the sins that they had committed in their previous lives. Many were concerned that they would never escape the specter of their more serious aveiros, some of which carried the punishment of kareis. Although they had become true baalei tshuvah, they lived in fear of their ultimate day of judgment, when they would have to give a reckoning for their actions and face the serious consequences.

THE SOLUTION

The Mahari Beirav, Rav of Tzefas in the early sixteenth century, came up with an original solution to the problem. He proposed the creation of batei din that would carry out the punishment of malkos, lashes, which releases someone from the punishment of kareis (Mishnah Makos 23a).

There was one serious problem with this proposal. In order to create batei din that can exact these punishments, one must have dayanim who have received the special semicha that can be traced to Moshe Rabbeinu. Since this semicha had terminated over a thousand years before, the Mahari Beirav needed a different approach.

TZEFAS, 5298 (1538)

In 5298 (1538), based on the writings of the Rambam (Peirush Hamishnayos, Sanhedrin 1:3; Hilchos Sanhedrin 4:11), 25 gedolim of Tzefas, at the time the largest Torah community in Eretz Yisroel, granted semicha to the Mahari Beirav. He then ordained four people with the new semicha, including Rav Yosef Karo, who had already written his monumental works Kesef Mishneh and Beis Yosef, and later authored the Shulchan Aruch, and Rav Moshe deTrani, the author of several major halachic works, including Beis Elokim, Kiryas Sefer, and Shu’t Mabit. Mahari Beirav also sent a semicha to the Rav of Yerushalayim, Rav Levi ibn Chaviv, known as the Maharalbach, who he assumed would be delighted to receive such a wonderful gift!

The Maharalbach was not happy with the gift and returned it. He took strong issue with their conferring semicha, for the following reasons:

  1. The Rambam’s closing words, “This matter requires a final decision,” show that he was not fully decided on this halacha, and therefore it cannot be relied upon.
  2. The Ramban (Sefer Hamitzvos, Aseh 153) disagrees with the Rambam, contending that semicha can not be reinstituted until Moshiach arrives. Thus, since the Rambam was uncertain about this halacha, and the Ramban was certain that there is no such thing, the halacha follows the Ramban.
  3. Even if we assume that the Rambam meant his ruling to be definitive, the Tzefas rabbonim had not fulfilled the procedure correctly, since all the gedolim of Eretz Yisroel must be together, in one synod. (This opinion is actually mentioned earlier by the Meiri, Sanhedrin 14a.)

Furthermore, Maharalbach is insistent that all the scholars must be involved in the active debate, and that all must agree. Furthermore, he argued that even if someone contends that a majority of gedolim is sufficient, the minority must be aware of the debate and participate in it. He further contended that creating such a synod now would not help either, since once the Tzefas rabbonim had ordained the Mahari Beirav, they now have a bias in their ruling (noge’ah bedin), which invalidates their opinion on the subject.

Maharalbach proved his opinion that the Rambam’s suggestion was not accepted as normative halacha from the fact that there had been numerous opportunities for gedolei Yisroel to create semicha , and yet, they refrained. Maharalbach concludes that semicha will not exist again until the arrival of Moshiach.

WHAT ABOUT THE CRYPTO-JEWS?

As for the baalei teshuvah that would be left without release from their kareis, the Maharalbach pointed out that if they performed sincere teshuvah, they would be forgiven for their sins, no matter how severe they were. Although it is possible that they may experience some suffering in this world for these aveiros despite their teshuvah, they would receive no punishment for their aveiros in the next world (Makos 13b).

On the other hand, the Maharalbach pointed out that he did not understand how semicha could accomplish what Mahari Beirav wanted, anyway, since beis din cannot punish someone for violating the Torah, unless several requirements are met, including:

The sinner must receive a warning immediately prior to his violating the commandment telling him that he is sinning, explaining to him that what he is planning to do is wrong, and what punishment he will receive if he sins. The sinner must acknowledge that he heard and understood the warning and then performed the sin anyway. Furthermore, beis din does not punish a sinner unless two adult male Jews witness the entire procedure and then testify in front of beis din. (Of course, consequently, this means that cases in which Beis Din punishes for violating a Torah mitzvah are quite rare.) Clearly, none of these crypto-Jews had received warning prior to performing the aveiros, and therefore they are not required to suffer malkus in beis din. Thus, how would these baalei teshuvah receive the malkus they desire, even if dayanim musmachim exist?

RESPONSE FROM TZEFAS

The Mahari Beirav responded to the Maharalbach’s arguments. As far as the punishment of malkus is concerned, the Mahari Beirav held that if someone voluntarily asks for malkus for his sin in the presence of an authorized beis din, the punishment is carried out, even though there were no warnings and no witnesses. Thus, the creation of a beis din of musmachim facilitates the atonement of these people.

As far as semicha is concerned, Mahari Beirav did not accept the Maharalbach’s criticism that his semicha program was invalid. Mahari Beirav explained that the Rambam’s ruling is definitive, not theoretical or suggestive, and he questions whether the Ramban disputes this opinion. Even if the Ramban does question it, the Mahari Beirav contends that the halacha follows the Rambam. Furthermore, the Mahari Beirav contends that a simple majority of gedolim living in Eretz Yisroel is sufficient to create semicha, since the halacha in all other cases of jurisprudence is that we follow the majority. Thus, since all the gedolim of Tzefas, who were a majority of the gedolim in Eretz Yisroel at the time, had appointed him as dayan, the semicha could be renewed on this basis. In addition, the Mahari Beirav contends that correspondence with the other gedolei Yisroel is a sufficient method to determine whether a majority favor renewing semicha, and that it is not necessary for all the gedolim to attend a meeting together for this purpose.

A lengthy correspondence ensued between the Maharalbach and the rabbonim of Tzefas, which is referred to as the Kuntros Hasemicha, and is appended to the end of the Shu’t Maharalbach.

Incidentally, the dispute between Maharalbach and Mahari Beirav as to whether the gedolim can reinstitute semicha dates back to the Rishonim. The Meiri (to Sanhedrin 14a) rules that semicha can be reintroduced by having all the gedolei Yisroel of Eretz Yisroel gather together and appoint someone to be a dayan. However, he rules that the gedolim must meet together in one group for this ruling, which precludes the Mahari Beirav’s method. The Rashba (Bava Kamma 36b) also cites Rambam’s opinion, although he rules the opposite, that renewal of semicha must await the arrival of Moshiach, following the opinion of the Ramban, as explained by Maharalbach. In addition, the Ritva and the Nemukei Yosef (both at end of Yevamos) state that semicha must await the arrival of the era of Moshiach.

Evidence to support the Mahari Beirav’s opinion, if not his method, can be drawn from the Gemara (Eruvin 43b), that states that Eliyahu will declare his arrival as the harbinger of Moshiach by coming to the Beis Din Hagadol. This Gemara implies that the Beis din Hagadol will precede the arrival of Eliyahu, and not the other way around (see Maharatz Chayes ad loc.). However, the Ritva and the Nemukei Yosef appear to hold that there will be no Sanhedrin until Moshiach comes.

THE RADBAZ GETS INVOLVED

Both sides appealed to the Radbaz, the acknowledged gadol hador, who lived in Egypt at the time, for a ruling. (The Radbaz later moved to Eretz Yisroel, but at the time of this dispute, he was outside of Eretz Yisroel and, therefore, had not been involved in the initial debate and discussion.)

The Radbaz ruled like the Maharalbach that the semicha was invalid, believing that the Rambam, himself, was not certain that semicha could be reinstituted by agreement of the Chachamim in Eretz Yisroel. Furthermore, universal acceptance of the semicha would be necessary, even according to Rambam’s approach. In addition, Radbaz felt that the person receiving semicha must be a talmid chacham with the scholarship to rule on any subject in Torah. He did not believe that his generation had any talmidei chachomim in this league.

HOW, THEN, WILL THE SANHEDRIN BE REESTABLISHED?

The Radbaz does discuss an issue: if we cannot create a new semicha, how, then, will we have a semicha in the future? As mentioned above, semicha is necessary to create a Sanhedrin, and the Sanhedrin is necessary to appoint the Jewish King and judges, and for many other community activities. Radbaz presents three methods whereby semicha can be re-established:

  1. Eliyahu HaNavi, who is a musmach (see Rambam, Introduction to Mishneh Torah), will issue semicha to others, when he arrives as the harbinger of Moshiach’s arrival. (Some poskim raise a question with this approach, pointing out that the Gemara [Eruvin 43b] reports that Eliyahu will announce to the Sanhedrin that his arrival is the harbinger of Moshiach. However, how could this happen if Eliyahu must first create the beis din? [Maharatz Chayes ad loc.] Many answers can be given to this question, but will have to be left for discussion another time.)
  2. Descendants of shevet Reuven who have semicha may reappear. Just because we are unaware of anyone with semicha, does not mean that members of other shevatim, who have been separated from us since before the time of the Churban, do not have semicha. (This approach creates a question. If semicha can only be given in Eretz Yisroel, how could members of these shevatim receive semicha, when we know that they were exiled from Eretz Yisroel? See below for an answer to this question.)
  3. Moshiach himself will grant semicha and thus create a Beis din Hagadol. Radbaz does not explain where Moshiach himself gets his authorization to grant semicha.

As noted above, Radbaz contends that no one in our generation qualifies in learning and yiras Shamayim to qualify. Specifically, he states that only someone who is qualified to paskin on any area of the Torah qualifies for this special semicha.

RESULTS OF THE TZEFAS SEMICHA

The Mahari Beirav passed away three years after the semicha project began. Although Rav Yosef Karo had received this semicha and actually ordained Rav Moshe Alshich (author of the Alshich commentary to Tanach), by all indications he never utilized the semicha in any other way. Nowhere does he refer to a renewal of semicha, and, furthermore, numerous places in Shulchan Aruch would be written differently, had its author assumed that a beis din of semuchim existed today. In all of these places, Rav Yosef Karo assumes that no beis din exists today that is authorized to rule on the laws of penalties and punishments. This is even more intriguing in light of the fact that, in his commentary Beis Yosef (Choshen Mishpat 295), he records as definitive halacha the Rambam’s opinion that semicha can be renewed.

Although Rav Moshe Alshich ordained Rav Chayim Vital (Birkei Yosef, Choshen Mishpat 1:7), who was renowned as the primary disciple of the Ari, z”l, the semicha trail appears to end at this point. There is no indication of anyone continuing the semicha project after this time. From all indications, we can assume that the psak of the Maharalbach and Radbaz, that we should not introduce semicha on our own, was accepted. Thus, the issue was left for the next two hundred years. We will continue our discussion on this topic in part II of this article.