— the Writ refers to an 'outstanding' member, [mufla] of Beth din;1 'thee' refers to [a matter needing] a counsellor,2 and thus it is said, There is one come out from thee, that imagineth evil against the Lord, a wicked counsellor;3 a thing refers to a [traditional] halachah,' 'in judgement,' this means [a law deduced by] a din;4 between blood and blood, the blood of a niddah, childbirth, and gonorrhoea; 'between ruling and ruling,' whether capital or civil cases, or cases involving flagellation; 'between [leprous] plague spots, and plague spots' — embracing leprosy in man, houses and garments; 'matters' refers to haramim,5 valuations,6 and sanctifications;7 'contentions' refers to the water ordeal of a sotah,8 the beheading of the heifer9 and the purification of a leper;10 'within thy gates' — this refers to the gleanings, forgotten [sheaves] and the corner [of the field;]11 'then thou shalt arise', [that is,] from the sitting of Beth din,12 'and ascend' — this teaches that the Temple was higher than [the rest of] Palestine, and Palestine is [geographically] higher than all other countries' 'into the place', — this teaches that the place is the cause.13
Now, it is correct to say that the Temple was higher than [the rest of] Palestine, since it is written, and thou shalt ascend;14 but whence does he15 learn that Palestine is more elevated than all other countries?16 — From the passage, Therefore, behold the days come, saith the Lord, that they shall no more say, The Lord liveth, which brought up the children of Israel out of the land of Egypt,' But the Lord liveth, which brought up and which led the seed of the house of Israel out of the north country, and from all the countries whither I have driven them;14 and they shall dwell in their own land.17
Our Rabbis taught: A rebellious elder is liable only for a matter the deliberate transgression of which is punished by extinction, whilst the unwitting offence involves a sin offering:18 this is R. Meir's view. R. Judah said: For a matter of which the fundamental principle is Biblical, whilst its interpretation is by the Scribes.19 R. Simeon said: Even for a single detail arising out of the subtle interpretations of the Rabbis.20
What is R. Meir's reason? — He draws an analogy from the use of dabar [matter] in two places: Here it is written, If there arise a dabar [matter] too hard for thee in judgement; and elsewhere it is written, [And if the whole congregation of Israel sin through ignorance,] the matter [dabar] being hidden from the eyes of the assembly:21 just as there [the reference is to] a provision which if deliberately transgressed is punished by extinction, whilst if unwittingly, involves a sin offering, so here too. And R. Judah?22 — [Scripture states:] According to the Torah which they shall teach thee,23 intimating that both the Torah [i.e., the basic law] and their [sc. the Scribes,] teaching [i.e., the interpretation thereof] must be involved. Whilst R. Simeon's reason is: [And thou shalt do according to the sentence,] which they of that place shall shew thee,24 indicating even the smallest nicety.
R. Huna b. Hinena said to Raba, Explain me the above Baraitha25 according to R. Meir.26 Thereupon Raba said to R. Papa. Go forth and explain it to him. [Thus:] If a matter be outstandingly difficult [yippale]: the Writ refers to an outstanding member, [mufla] of Beth din; 'thee', to a [question needing a] counsellor, who knows how to determine the intercalation of years and fixation of months.27 [Now, the rebelliousness of the elder may be in respect of] what we learnt: They testified28 that a leap year may be proclaimed during the whole month of Adar. [This testimony was necessary,] because they [i.e., the other Sages] maintained: Only until Purim. [Hence, if the elder flouted the ruling of the great Beth din] in either direction, he permitted leaven to be eaten on the Passover.29
'"A thing" refers to a [traditional] halachah.' By this is meant the [traditional] halachahs30 of the eleventh [day].31 For it has been stated: As for the tenth day. R. Johanan maintained that it is as the ninth, whilst R. Simeon b. Lakish ruled that it is as the eleventh. R. Johanan maintained that it is as the ninth: Just as [a blood discharge on] the ninth necessitates observation,32 so for an issue on the tenth too observation is required.33 But Resh Lakish ruled that the tenth day is as the eleventh: just as [a blood discharge on] the eleventh does not necessitate observation,34 so on the tenth too no observation is required.35
'"In judgment", — this means [a law deduced by] a din.'
Original footnotes renumbered.
- [H] Mufla generally means the instructing judge, 'a special expert assessor to whom questions of law are referred. (Jast.). Tosaf. supra 16b s.v. [H] states that the mufla was supernumary to the actual Beth din. In this case, however, mufla means 'ordained' (mumhe), in contradiction to talmid, an unordained disciple (Rashi and Tosaf. 16b, ibid.) Cf. Mishnah 86b.
- This is explained below.
- Nah. I, 11.
- Argument based on verbal similarity, and thus the equivalent of gezerah shawah. Rashi points out that din cannot bear its usual meaning here, viz., 'a legal ruling', since that is expressly stated in the verse.
- Herem, pl. haramim, anything devoted to the Lord (Lev. XXVII, 28).
- V. Lev. XXVII, 2 et seqq.
- Of animals, all these are the result of vows expressed by words and hence included in 'words' etc.
- A woman suspected of infidelity (Num. V, 12ff.).
- In expiation of a murder committed by a person unknown (Deut. XXI, 1-9).
- These three are deduced from 'contentions', being the result of such. Sotah and murder obviously so, whilst leprosy, according to the Rabbis, is a punishment for slander, which generally gives rise to strife. — 'Ar. 15b.
- All of which belonged to the poor, of whom it is written, If there be among you a poor man of one of thy brethren within any of thy gates (Deut. XV, 7; cf. also ibid. XIV, 29; XVI, 12). Thus the Baraitha teaches that the dispute between the rebellious elder and the Beth din was in respect of any of these laws enumerated. These are discussed below in detail. In nearly all cases cited these matters were disputed by the Rabbis themselves, but of course the minority had to submit to the majority. The crime of the rebellious elder, for which he was executed, consisted of his giving a practical decision opposed in the final ruling of one of the Botte din (plural of Beth din) in Jerusalem. (On the general question of the minority submitting to the majority. v. Halevy., Doroth ha-Rishonim I, 5 205 seq.)
- Thou shalt arise implies that there was first a formal sitting, where these difficulties arose, viz., at the local Beth din.
- Of the supreme authority of the Great Sanhedrin. The fact that it was situated in the Temple, the religious hub of the nation, imparted to its decisions and powers a weightiness which it would otherwise have lacked.
- Implying that wherever one was in Palestine, he had to ascend, in order to reach the Temple.
- The Tanna.
- Since the passage refers to Palestine only.
- Jer. XXIII, 7f. Thus the journey from all countries to Palestine is termed an ascent.
- I.e., if he gave a practical ruling on a matter in which these are involved.
- V. p. 572. n. 5.
- Lit., 'Scribes'.
- Lev. IV, 13.
- What is his reason?
- Deut. Ibid. 11.
- Ibid. 10.
- Which enumerates all the matters of dispute between the rebellious elder and his Beth din, and includes such things as valuations and haramim.
- I.e., how do all these matters involve extinction and sin offerings?
- V. supra 2a.
- R. Joshua and R. Pappias. ('Ed. VII, 7.) Owing to the development of the Mishnah, of which each Tannah had his own version, a great uncertainty arose as to the exact law. R. Gamaliel in consequence undertook a sifting of the various traditions with the purpose of declaring them authentic or otherwise. The scholars assembled at Jabneh, and attested their various teachings. The collection of these testimonies forms the tractate 'Eduyyoth (J.E. VII, 611).
- Thus: If the Beth din ruled after Purim that the year was to he prolonged by a month (called the second Adar), Passover would commence six weeks after the end of the first Adar. If he disregarded this and gave a practical decision that such intercalation was invalid, Passover would commence four weeks earlier and end three weeks before it even began according to the ruling of the Beth din. Hence those who followed his views would be eating leaven during the Passover fixed by the latter. The same would result if they ruled that a month was not to be intercalated, and he ruled that it was. The deliberate eating of leaven on Passover is punished by extinction, as are all the offences enumerated in the following passage.
- V. note 6 for the explanation of the plural here.
- According to Biblical law, a niddah can cleanse herself when seven days have passed from the beginning of her menstrual flow, provided it ceased on the seventh day before sunset ([H]) During the following eleven days, which are called the beginning days between the menses, she cannot become a niddah again, it being axiomatic that a discharge of blood in that period is not a sign of niddah, but may be symptomatic of gonorrhoea. A discharge on one or two day's within the eleven days renders her unclean, and she is forbidden cohabitation until the evening of the following day (the full details of her position vis a vis her husband, and her uncleanliness in general, are discussed in Nid. 71b ff.), and must wait for the third to see whether another discharge will follow, rendering her a zabah, or not. Should another discharge follow the third day, she becomes unclean as a zabah, and cannot become clean until seven days have passed without any issue at all. Should she, however, discharge on the tenth, eleventh, and twelfth days she is not a zabah, for the twelfth day commences a new period wherein the issue of blood may make her a niddah. (The foregoing is, as mentioned, on the basis of the ancient law, but already in the period of the Talmud itself the law was adopted whereby a single blood issue at any time imposes all the restrictions necessitating for cleanness a period of seven clean days.)
- On the tenth and eleventh days. Since discharges on those days following that of the ninth renders her a zabah.
- Though unable to become a zabah, she is subject to the law of a woman under observation.
- Both R. Johanan said Resh Lakish agree to this, on the basis of Beth Hillel's ruling in the Mishnah Nid. 72a.
- Thus, in R. Johanan's opinion, there is only one traditional halachah with respect to the eleventh day, viz., that a blood discharge thereon does not necessitate observation, and this is the only thing in which it differs from the preceding ten days. But if there was a discharge on the tenth, observation is necessary on the eleventh just as on the other days. But according to Resh Lakish it differs in two respects: (i) that a discharge thereon necessitate further observation, and (ii) that it does not become an observation day on account of the tenth day's discharge. Hence there were two halachoth for that day. This explains the use of the plural in this passage. Now to revert to the main subject, in the opinion of R. Johanan, if a woman had a discharge on the tenth, cohabitation on the eleventh is Biblically forbidden on pain of extinction, whilst according to Resh Lakish it is prohibited only by a Rabbinical ordinance, not by Biblical law; thus this too conforms to R. Meir's requirements.
Viz., [incest with] one's daughter by an outraged woman. For Raba said, R. Isaac b. Abudimi said unto me: We learn identity of law from the fact that hennah ['they'] occurs in two related passages, and likewise zimmah ['wickedness'].1
"'Between blood and blood" — the blood of a niddah, childbirth, and gonorrhoea'. 'The blood of a niddah', — this enters into the dispute of Akabia b. Mahalalel and the Rabbis. For we learnt: A greenish [discharge of] blood: Akabia b. Mahalalel declares it unclean, and the Sages declare it clean.2
'The blood of childbirth,' — this depends on the dispute between Rab and Levi. For it has been stated: Rab said, It [all] issues from one and the same source,3 the Torah declaring it unclean [during the first fourteen days], and clean [the following sixty six days]. Levi said, It proceeds from two different sources: [at the end of fourteen days] the unclean [source] is closed and the clean one opened: [at the end of eighty days] the source of clean [blood] is closed and that of unclean [blood] opened.4
'And the blood of gonorrhoea [zibah]'. — This enters into the dispute of R. Eliezer and R. Joshua. For we learnt: If a woman was in labour for three days within the eleven,5 then ceased for twenty four hours [lit., 'from time to time' — from an hour on one day to the same on the next]. and then gave birth, she is regarded as a woman bearing with a gonorrhoeic discharge: this is R. Eliezer's opinion. R. Joshua said, [The cessation must be] a night and a day, as the night and day of the Sabbath. The cessation referred to is cessation from labour, not from blood[-discharge].6
'"Between ruling and ruling" — whether they be capital or civil cases, or cases involving flagellation.' Civil cases depend on the dispute between Samuel and R. Abbahu. For Samuel said, If two [judges] gave a [civil] ruling, their action is valid, but that they are dubbed 'an impudent court', whilst R. Abbahu maintained: All agree that their decision is invalid.7
'Capital cases' — in this the dispute of Rabbi and the Rabbis is involved. For it has been taught: Rabbi said, Then thou shalt give life for life8 — this refers to monetary compensation. You say, monetary compensation: but perhaps this is not so, life being literally meant? — 'Giving' is stated below:9 It is also stated above:10 just as the latter refers to money, so the former too.11
'Cases involving flagellation. — This is dependent on the dispute of R. Ishmael and the Rabbis. For we learnt: Flagellation [is imposed by [a court of] three. On the authority of R. Ishmael it was said, by twenty-three.12
'"Between [leprous] plague spots and plague spots", including leprosy in man, houses, and garments. Leprosy in man depends on the dispute of R. Joshua and the Rabbis. For we learnt: If the bright spot preceded the white hair, he is unclean, If the reverse, he is clean.13 [If the order is] in doubt, he is unclean; R. Joshua said, It is as though darkened.14 What does this mean? — Raba15 said, [When the spot is] darkened, he is clean.16
'Leprosy in houses.' — This enters into the dispute of R. Eleazar, son of R. Simeon and the Rabbis. For we learnt: R. Eleazar, son of R. Simeon said: A house never becomes unclean unless a plague spot appears the size of two beans on two stones in two walls, and at the angle of the walls; it must be two beans in length and one in breadth.17 Why so? Because the Bible refers to the 'walls' [of the house]18 and also to the 'wall':19 where is one wall as two? At its angle.20
'Leprosy in garments.' — This depends on the dispute of R. Nathan b. Abtolemos and the Rabbis. For it has been taught: R. Nathan b. Abtolemos said: Whence do we know
Original footnotes renumbered.
- V. supra 51b. From that gezerah shawah we learn that such incest is punishable by extinction, where capital punishment cannot be imposed. Since there is no dispute in this at all, it must be assumed that the rebellious elder denies the validity of this particular gezerah shawah (Tosaf.).
- Nid. 19a. Now, if the rebellious elder rules as the former, he involves her in an offence of niddah, which is punished by extinction. E.g., if after two days of this greenish discharge there was a one-day normal red-blooded flow. Now a niddah had to wait a minimum of seven days from the beginning of her menstruous flow of blood (v. p. 577, n. 2). On the view of Akabiah b. Mahalalel, but not of the Rabbis, the greenish discharge is regarded as blood and the two days of greenish discharge are counted as part of the seven. Hence by following the former she becomes clean, and cohabits two days earlier than warranted by the latter, according to which she is still a niddah.
- I.e., the blood discharge within eighty days after childbirth. V. Lev. XII, 1-5.
- In Nid. 35b it is explained that they differ practically if there is a continuous issue from the end of the fourteenth into the beginning of the fifteenth, or from the eightieth into the eighty-first day. According to Rab, notwithstanding this, the blood of the fifteenth is clean, and that of the eighty first unclean. Since Levi however maintains that normally there are two different sources, there should be a definite break between the two, in the absence of which the blood of the fifteenth is unclean, whilst that of the eighty first is clean. Thus a rebellious elder, by flouting the ruling of the Beth din either way causes the injunction of niddah to be violated.
- V. p. 577, n. 2.
- Nid. 36b. As was stated on p. 577 n. 2, if a woman has blood discharges on three days within the eleven between the menses, she becomes a zabah. If however, this is caused by labour pangs, she is not a zabah, providing however, that her travail continues until giving birth. But if three days of labour and discharge are succeeded by one day free from pain, and then she gives birth, the interruption proves that the issue of the first three days was not the result of labour, but of gonorrhoea, and hence she is a zabah, and subject to the laws thereof, which supersede those of childbirth, the issue during the sixty-six days (v. p. 578) being considered unclean. Now, R. Eliezer and R. Joshua differ as to the meaning, of 'one day'. R. Eliezer maintains that it means a day of 24 hours; but R. Joshua holds that it is a calendar day. i.e., a night and a day. E.g., if she was free from pain from 12 noon on one day to 12 noon on the next, according to R. Eliezer she is a zabah. But on the view of R. Joshua, since she had suffered on the same day. viz., until 12 noon it is not a complete day of cessation, and hence she is not a zabah. As a zabah, cohabitation may be forbidden her on pain of extinction when for mere confinement it would be permitted.
- Extinction may be involved therein in the following way: — If as a result of their decision money was withdrawn from A to B, on Samuel's view, it rightfully belongs to B: on R. Abbahu's, it does not. Now if B married a woman with this money as kiddushin, according to Samuel the marriage is valid, and cohabitation with another man is punishable by death or extinction in the absence of witnesses; but according to R. Abbahu, the kiddushin is invalid, for if one marries a woman with money or goods not belonging to him, his act is null. Hence, if the Beth din accepted Samuel's view, whilst the rebellious elder accepted R. Abbahu's, he declares a married woman free to others. Now further, if another man C also married the same woman, in Samuel's opinion the second marriage is invalid, and if B subsequently died, she is a free woman. But on R. Abbahu's view, this second marriage is valid, since the first was null. Hence, if the Beth din ruled as R. Abbahu, and the rebellious elder as Samuel, he declares her free from C, when in reality she is married to him.
- Ex. XXI, 23.
- Viz., in the verse under discussion.
- Viz., If … no mischief follow … he shall pay (lit., 'give') as the judges determine, Ibid, 22.
- V. supra 79a. If one intended killing one person but killed another instead, Rabbi maintains that he must make monetary compensation to the heirs, whilst the Rabbis rule that he is financially exempt. Hence, if the heirs seized the money, according to Rabbi, it belongs to them, according to the Sages it does not. — Extinction is then involved as explained p. 579. n. 3.
- V. supra 2a. Hence, in his view, if a court of three had him flagellated, they acted ultra vires, and must compensate him. If he seized this compensation money, on R. Ishmael's view, it belongs to him, on the Rabbis', it does not. Extinction is then involved as in p. 579, n. 3.
- V. Lev. XIII, 2ff.
- Neg. IV, 11.
- Var. lec. Rabbah.
- Thus R. Joshua maintains that if the order is doubtful, he is clean, and consequently permitted to enter the Sanctuary, whilst on the view of the Rabbis, he is forbidden on pain of extinction.
- Neg. XII, 3.
- Lev. XIV, 37, 39.
- Ibid. 37.
- But according to the Rabbis it is unclean even if the leprous outbreak is not at the angle, and renders anyone who enters unclean too. V. supra note 3.