The first mishna in Sanhedrin (2a) discusses the three types of courts that make up the Jewish legal system - courts composed of 3, 23, and 71 members. Each level is assigned different areas of the law about which it is empowered to render decisions. For example, a court of three may judge monetary issues, but not capital cases; a court of twenty-three may judge capital cases, but not issues of national import; the court of seventy-one (Sanhedrin HaGadol) handled national issues such as extending the borders of Jerusalem and judging false prophets.

Our focus in this series will be the Sanhedrin HaGadol. Rambam (Mamrim 1:1) states that "the high court in Jerusalem - they are the essence of the Oral Law, and they are the pillars of teaching (hora’ah), and from them laws and judgment go out to all of Israel." In other words, they are not merely a judicial body, but are also a legislative body, entrusted with the role of being the interpreters of the Oral Law that was given alongside the Written Law. Their power in this area is such that Deuteronomy 17:11 instructs us that we "shall not deviate" from the rulings issued by this court.

The main question that we will deal with this week is what is the nature of this power of the Sanhedrin? (We will deal with the scope next week.) If the law is divinely ordained, to what extent can any human body be said to be the "essence" of it or to have control over it?

To discover the answer to this question, we will take what may seem at first to be a reverse approach. We will look not at the Sanhedrin’s ability to make or to interpret laws, but rather at the outer limit of their ability. This limit is brought out in a situation described in the first pages of the tractate Horayot, namely the case of "Par He’elem Davar shel Tzibbur," loosely described as a cow brought as a sin-offering when the community has sinned through no fault of their own. Leviticus 4 presents a situation where a majority of the population of Israel (what defines a majority is a topic beyond the scope of this particular Chabura) commits a particular sin as a result of the actual law having been concealed from them. How does such a situation come about? As described in Horayot and elsewhere, this is discussing a case where the Sanhedrin errs in a particular ruling, and the populace perform an act that should be forbidden under the assumption that it is now permitted. When Sanhedrin realize their error and revoke their earlier decision, they, and not the individuals who sinned, are the ones responsible for bringing a sin-offering, as they were the ones who caused the people to sin.

At this point, we should pause to point out one of the crucial questions that underlies the entire notion of this "communal sin-offering." If the Sanhedrin really is the essence of the Oral Law, how can we even speak about them in terms of making a mistake? If they define what the law is, it would seem that they can not make a "mistake," as their being able to do so would indicate the existence of a law higher than them with regard to which they err, and would thus militate against their status as being the "essence" of the Oral Law!

Returning to our particular issue, Rambam (Shegagot 12) describes the conditions under which the communal sin-offering is brought. In brief, there are two elements that bring about the requirement of this sacrifice. The first is that a majority of the people act based on the erroneous ruling of the Sanhedrin. The second is that the ruling be issued from the Sanhedrin acting in their full capacity, i.e. the ruling is issued by at least a majority of a fully-present Sanhedrin, that their head is present, and that they state their ruling in terminology that clearly indicates that they are teaching practical law (the nature of this terminology is also a topic beyond the scope of this particular Chabura). The question that arises from these requirements is whose sacrifice is it? This question is debated in the Jerusalem Talmud (Horayot 1:8), where Rav Meir claims that the sacrifice is the responsibility of the Sanhedrin, while Rav Yehuda contends that it is actually the responsibility of the people. There is obviously room for both opinions (and a third view in the Jerusalem Talmud seeks to combine them) - while it is the Sanhedrin who ultimately must offer the sacrifice, they are not held accountable merely for making a faulty ruling, but rather they bring the communal sin-offering only when a majority of the nation acts based on this ruling.

Does this make any sense? The reason that individuals do not have to bring a sin-offering of their own in this case is that they can claim that they were relying on Sanhedrin when they acted, and thus they can not be held personally responsible for their sin. Why should it make a difference if one person makes this claim or if 51 percent of the people make this claim - either way the sinner relied on an erroneous ruling of the Sanhedrin?! To answer this, we have to understand both the Sanhedrin and the popular aspects of this issue.

From the perspective of the Sanhedrin, the fault manifests itself mainly as an issue of failed leadership. Seforno (Leviticus 4:13) states that the problem is that the members of Sanhedrin are the "eyes of the nation," and they erred in not being able to clearly see for themselves what the true law was. This idea is echoed by Rav Menachem Rekenati (commandment 51), who holds them accountable for leading others into sin, and by the Sefer HaChinuch (commandment 120), who says that the flaw is that they failed in their task of subjugating the desirous element in man and of elevating the intellectual soul. Based on these statements, we can understand why the Sanhedrin has a responsibility to bring the sacrifice, but we have yet to answer why they are not responsible until a certain portion of the population sins as a result of their ruling.

The relationship between the Sanhedrin and the populace is a strong one, and an understanding of it will lead us to understanding the source of the real power of the Sanhedrin. Based on various sources, we can see that in order for the Sanhedrin to operate at full strength, two general conditions must be met. The first is that the nation must be at a certain level in terms of its overall morality and character. The mishna in Sotah 9:9 tells us of two functions of the Sanhedrin that were stopped due to a decline in the state of the nation: the practice of egla arufah (the method of communal atonement performed when a murdered body was found out in the fields - see Deuteronomy 21:1-9) was stopped when murder became prevalent, and the ceremony of giving the Sotah-water to a woman suspected by her husband of being unfaithful (Numbers 5:11-31) was stopped when adultery became common (there is a third thing mentioned in the mishna, although it is not a particular function of the Sanhedrin, and thus is not relevant to us at this point). The key in these two cases is that the functions of the Sanhedrin were responsive to the actions of the nation. The second condition is what is known as "hamakom goreim," literally that the place causes the Sanhedrin to be able to accomplish something. In particular, the gemara in Sotah 45a, Sanhedrin 14b, Sanhedrin 87a, and Avodah Zara 8b presents two actions (judging capital cases and judging a "rebellious elder") that may be taken by Sanhedrin only when they are operating out of their office on the Temple Mount. Once they were exiled from this location, several years before the destruction of the Temple, they were no longer able to judge such cases.

In both situations, the question is why the Sanhedrin can not operate at full strength if one of these factors is missing. Why does a flaw in the nation as a whole affect their ability to function, and why should their location affect that ability, if in both cases we have no reason to suspect that there is any flaw in the Sanhedrin or its members? The Torah Temimah on Deuteronomy 17:9 provides a path towards the answer. There he comments on the law of the rebellious elder, an individual who is a member of the Sanhedrin who realizes that they have erred and returns to his hometown and teaches law counter to the ruling of the Sanhedrin with which he disagrees. Although he may ultimately be correct in his view, he is forbidden to teach his version of the law, and is put to death by the court of 71 if he persists in his actions. The Torah Temimah notes that he is only held liable if he persists until the point where he teaches against the ruling of the Sanhedrin in their actual office. Only there, he claims, can he be truly rebellious, as it is there that he blemishes both the honor of Torah and of all of Israel. This formulation is very telling about the role of the Sanhedrin. On the one hand, they bear the standard of the "honor of Torah," a phrase that echoes that used by Rambam in referring to them as the "essence of the Oral Law." However, at the same time, they are representing all of Israel, and thus perhaps we can say that if the nation that they "represent" is flawed, then their abilities would be hindered as well.

In order to make such a claim, we have to understand to what extent they stand in the place of the people. Are they "representatives," charged with taking Hashem’s law and interpreting it for the nation? If this is the case, it may yet be difficult to claim that their powers depend on the people. While there certainly is some degree of a connection, it is a loose connection at best. On the other hand, perhaps their link to the people is one of a much closer nature - not that they exist somewhat above the people, but rather that they function in a role that in reality belongs to the entire populace, and in theory the entire populace could perform the same tasks performed by the Sanhedrin. This idea arises out of a seemingly negligible difference between two laws of Rambam. In Melachim 5:6, Rambam describes the process of conquering lands for the purpose of annexing them to Israel. He states that "all lands conquered by Israel with a king by the authorization of the court (Sanhedrin) are considered to be a popular conquest." In a completely different context, in Terumot 1:2, Rambam also discusses the borders of the land (here it is with regard to which land’s produce will be obligated to have the priestly gifts brought from it). Here he states "the land of Israel mentioned in the Torah are the lands conquered by a king of Israel or a prophet (in the era before the kingdom was established, the prophet effectively served in the role of "king") with consent of a majority of the people." Seemingly, the Sanhedrin and the people are interchangeable! Perhaps we can suggest based on this that the general population has certain powers when it functions as a whole (shades of Federalist ideas), and they endow the Sanhedrin with that power (practically speaking, it is easier to allow a body of 71 to set policy than to try to get a national consensus).

Two points made by Rav Yoseif Dov Soloveitchik in an article printed in Kovetz Chiddushei Torah will help to bolster this notion. First, the Rav asks about a peculiar law pertaining to the sanctifying of the new month (kiddush ha-chodesh). The basic law is that no new month could be declared during the time of the Temple until Sanhedrin confirmed the sighting of the new moon by reliable witnesses and then declared the new month. Interestingly, this law is classified (see Tosefta Sanhedrin 2:6) as one that is subject to the notion of "ein gozrin gezeirah al ha-tzibbur elah im kein rov ha-tzibbur yecholin la’amod bo," which means that Sanhedrin may not make any decree for the people unless it is such that a majority of the people will be able to uphold it. Why is the sanctifying of a new month subject to this condition - why would people have a problem changing their calendars? Perhaps what is important is the general idea that is involved. As the power of the Sanhedrin is wholly dependent on that of the people, they can never do anything that would indicate that they are going "over the heads" of the people.

The second point made by Rav Soloveitchik refers back to the first mishna in Sanhedrin cited at the outset of this Chabura. If one looks at Rambam’s Laws of Sanhedrin 5:1, they will notice that there are powers of Sanhedrin that are listed there that are not found in the mishna. These powers are the power to appoint a king, the ability to designate a person as a rebellious elder, the power to perform the Sotah ceremony, and the power to perform the egla arufah ceremony. Why are these not included in the mishna? The Rav points out that these specific acts are unique in that they are not dependent on the consent of a majority of the population. We may easily suggest that the mishna discusses the Sanhedrin only insofar as it functions in lieu of the people, and thus these instances were omitted. However, what do we do with these cases? If the Sanhedrin is a functionary of the people, how can it have powers that the people do not have a say in? The answer to this question flows from our earlier notion of the Sanhedrin, that of the "eyes" of the people. While a major role of the Sanhedrin is to operate in a role that in actuality belongs to the masses, once they assume that responsibility they receive the charge of being the caretakers of the nation’s political and moral well-being. As such, they are given additional powers that stem from this task. They are entrusted to appoint a king, whose role is to serve as an intermediary between the people and Hashem (a notion that is apparent from a careful reading of Deuteronomy 12 and a majority of the books of Samuel and Kings). On the other side of the coin, they are given the power to convict a rebellious elder, i.e. an individual who challenges their own stabilizing authority. Finally, they are entrusted to perform both the Sotah and the egla arufah ceremonies, ceremonies whose continued existence is dependent on the moral level of the nation and are designed to preserve the special holiness of the Jewish nation.

Recall our earlier question, that of how we can ever speak of the Sanhedrin in terms of making a mistake if they are the essence of the Oral Law. Our premise in asking such a question was that they were endowed with some form of absolute authority over that law. What we have done so far is to show that their authority is actually not absolute, but rather depends, to a certain extent, on the nation as a whole. Our goal for next week will be to understand just how far their authority does extend and at what point their powers fall short.


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