Rabbi Yirmiyahu Kaganoff
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.)
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.
