לזכות ידי"נ הרה"ג ר' מאיר זאב שטיינמץ שליט"א וכל בני ביתו!
The gemara in Sanhedrin [5a] says as follows:
Said Rav: Whosoever wishes to decide monetary cases by himself and be free from liability in case of an erroneous decision, should obtain sanction from the Resh Galusa, And so said Shmuel.
It is clear that an authorization held from the Resh Galusa 'here' [in Bavel] holds good 'here' — And one from the Israeli authority 'there' [in Israel] is valid 'there' — Likewise, the authorization received 'here' is valid 'there', because the authority in Babylon is designated 'scepter' — but that of Israel, 'lawgiver' [denoting a lower rank] — as it has been taught: The scepter shall not depart from Judah, this refers to the Exilarchs of Babylon who rule over Israel with scepters and a lawgiver … this refers to the descendants of Hillel [in Israel] who teach the Torah in public.
Is, however, a permission given 'there' valid 'here'? Come and hear! Rabbah b. Chana gave an erroneous judgment [in Bavel]. He then came before R' Chiyya, who said to him: If both parties accepted you as their judge, you are not liable to make restitution; otherwise you must indemnify them. Now — Rabbah b. Chana did hold permission [but from the Israeli authority]. Hence we infer that the Israeli authorization does not hold good for Bavel.
Now this gemara is puzzling!! We see that the Resh Galusa can give permission in both Israel and Bavel as opposed to the Nasi who can only give permission in Israel because the Resh Galusa has the higher rank of שבט to the Nasi's מחוקק. If that is true then how can the Nasi give permission even in Israel when he is outranked by the Resh Galusa?
Rashi [ד"ה רודים] writes that the Resh Galusa gets his power from the kings of Persia. In Shulchan Aruch [חו"מ ד' י"א] it says based on the Rivash that the רשות given by the Gentile king is effective even today. This is like what Rashi writes that they received their power from the kings of Persia. The Tumim [סק"ו] asks how then is the רשות of the Resh Galusa effective in Israel when the Persians weren't ruling in Israel and instead the Romans were??
We have to say that Rashi will agree that the Resh Galusa is a king in his own right and has the power to give רשות to judge. He was just bothered the question we asked - if the Resh Galusa outranks the Nasi, then how can the Nasi give רשות?? So Rashi explained that with respect to the basic position of authority of מלכות ישראל the Resh Galusa and Nasi are equal. Just that in Bavel the Resh Galusa has an added element of authority insofar as he was empowered by the Persian kings and therefore the רשות given by the Nasi is not effective in Bavel because the Resh Galusa also ruled by dint of the authority granted by the Persian kings. From this the Rivash derived that power given by the Gentile kingdom is effective. Otherwise, we shouldn't care whether the Gentile kings give רשות and then there would be no preference for the Resh Galusa over the Nasi! [עי' שו"ת דבר אברהם ח"א סי' א' אות ה].
However, from the gemara in Horiyos that is talking about the Nasi Rebbi bringing a שעירה [that is brought by a non king and not a שעיר brought by a king] because he is not the "top gun" who has only Hashem above him due to the Resh Galusa who is above him, we see that even in Israel the Resh Galusa is preferable. If they were equal then he would bring a שעיר like the מלכי בית דוד. Yet we know that the Persian kings didn't rule in Israel as the Tumim asked, so we must say that even from the perspective of מלכות ישראל the Resh Galusa is preferable [this seems to differ from the approach of the gemara in Sanhedrin which holds that as far as מלכות ישראל is concerned the Nasi and Resh Galusa are equal] and when the gemara says from the term שבט that the Resh Galusa is more of an authority [and therefore Rebbi brings a שעירה like a regular person], it is not because of the Persian kings' permission, because that wouldn't bear on whether he brings a שעיר or שעירה. And since the extra power granted by the word שבט is effective insofar as that the רשות of the נשיא is not effective in Bavel, it will also be effective in Israel where the Resh Galusa is also called שבט [with regard to מלכות ישראל and not only because of the power granted by the Persian Kings].
So according to the gemara in Sanhedrin the extra power of the Resh Galusa is granted by the Persian kings and doesn't bear on מלכות ישראל where the Nasi is equal to the Resh Galusa [and that is why his רשות to judge is effective in Israel]. But according to the gemara in Horiyos, the extra power of the Resh Galusa isn't derived from the word שבט meaning empowered by the Persian kings but by the word שבט meaning a stronger מלכות ישראל based on which a Nasi should not be able to give רשות in Israel either!!!
WOOOWWWWW!!!!!
And we are NOT DONE!! Bl"n Bs"D!!
