Monday, January 25, 2010

lo te'hey shemiya gedolah m're'iya and kiddush hachodesh

Last week we touched on the concept of lo te’hey shemiya gedolah m’reiya (Rosh HaShana 25b). If beis din sees the new moon, they can declare rosh chodesh without witnesses coming forward – hearing about an event from a witness cannot be greater proof than personal observation. Yesh lachkor: does this mean that observation substitutes for testimony, i.e. it is as if those dayanim who saw the new moon have testified, or does this mean that when the moon is directly observed by dayanim no testimony is needed? Rashi seems to take the latter view, as he writes that lo te’hey shemiya gedolah m’reiya works because witnesses are not required for beis din to declare rosh chodesh -- Hashem told Moshe to declare Rosh Chodesh based on his personal observation, ka'zeh re'eh v'kadesh, without witnesses. The implication of Rashi is that if we were dealing with an area of halacha that required proof in the form of witnesses, lo te’hey shemiya gedolah m’reiya would not apply. Tosfos disagrees, as we find the concept of lo te’hey shemiya gedolah m’reiya applied even where beis din sees someone commit murder. How can Rashi cite the special din of ka’zeh re’eh v’kadesh told to Moshe in the context of Kiddush hachodesh as the source for lo te’hey shemiya gedolah m’reiya when the concept appears in other places as well?

The process of kiddush hachodesh as described in the Torah involves beis din declaring rosh chodesh based on witnesses’ testimony or beis din’s own observation of the new moon’s appearance. Our present calendar, however, is based on calculations of when the moon will appear -- we have no beis din which declares rosh chodesh and no witnesses coming forward to testify. What gives our calendar validity? Ramban in his comments to Sefer haMitzvos (153) explains that when Hillel II formalized the cheshbon/calculations that would predict all future roshei chodesh, his beis din in effect did a kiddush hachodesh for all those future events. Rambam disagrees and writes that it is the observance of rosh chodesh by the Jewish community, meaning the community in Eretz Yisrael (an important aside: the Rambam tells us that there will always be a remnant of the Jewish people in Eretz Yisrael), which effectively makes it rosh chodesh. According to the Rambam, if rosh chodesh is a function of observance by the people, what are we to make of all the halachos describing beis din’s role in vetting witnesses and declaring rosh chodesh?

R’ Soloveitchik in an essay in Koveitz Ch. Torah distinguished between two roles of beis din. We are familiar with the role of beis din acting as a judicial body, but beis din also serves a secondary role as the representatives of klal yisrael. Where halachos call for a consensus of the people, this consensus is not measured by popular vote, but is reflected in the action of beis din (sanhedin in particular). The halachos of rosh chodesh that speak of a declaration by beis din in concert with the nasi being present reflects this role. Rosh chodesh is established by the people; beis din is simply their representative.

Based on this analysis of the Rambam, I think we can perhaps suggest an explanation of why Rashi cites a pasuk to justify lo te’hey shemiya gedolah m’reiya in the context of kiddush hachodesh. True, lo te’hey shemiya gedolah m’reiya applies in other contexts, even in capital cases, but in those other areas the substitution of beis din’s own observation for witnesses’ testimony is part and parcel of the judicial process of establishing the facts of the case and deciding on a verdict. Rashi felt compelled to cite a pasuk to justify lo te’hey shemiya gedolah m’reiya, allowing private observation in place of public testimony, even in the context of kiddush hachodesh, where beis din serves not as judges, but as representatives.
(See Moadim u'Zmanim vol 1 for a different explanation of Rashi).


  1. Anonymous1:45 AM

    any rayah that rashi holds like the rambam?

  2. No, other than the fact that the sevara provides a neat explanation. Another Rashi that we discussed before which also fits:

  3. I don't underfstand what you are saying.

    How does the gezeiras hakasuv imply that beis din is acting as sheluchim of klal yisroel?

  4. I'm saying that if you work with the assumption that B"D is functioning in a new role as shluchim and not in their standard role it explains why you need a new gezeiras hakasuv for lo tehey shemiya... and you can't just generalize from dinei nefashos (when b"d is doing their usual thing).

  5. Just for the record, R' Shternbruch answers that when it comes to kiddush hachodesh we already know that the moon is supposed to appear; the eidim are there simply as a means of kiyum hadavar. When it comes to a question of murder, we need eidim for birur.

    You can use PC's idea from the comments on last post and put it this way: the appearance of the moon is just a siman, but the testimony of witnesses to murder is the sibas hachiyuv.

  6. ChaimB..

    Why should beis din not be part of klal yisroel? When there is no beis din according to the rambam the reason the chodesh is mekudash is becuase this is the collective deah of klal yisroel. So when there is a beis din, the beis din are not sheluchim of klal yisroel - they are the representative deah of klal yisroel.

    However they are also part of klal yisroel, so if they saw the new moon meheichi teisi that you should still need hagadas edus where 'klal yisroel' relate the information to beis din so that you could say that beis din are acting on their behalf?

    pc :-)

  7. >>>they are the representative deah of klal yisroel.

    This is what I meant. C.M. used the term shluchim so I followed suit in my reply, but I think he also means the same idea.

    >>>if they saw the new moon meheichi teisi that you should still need hagadas edus where 'klal yisroel' relate the information to beis din

    You are assuming lo te'hey shemiya = relating information when the chiddush could be that B"D can act without a need for eidus.

  8. You are saying that it is possible that there would be a requirement for hagadas edus with kiddush hachodesh even if generally you do not need hagadas edus. The reason being since beis din are the representatives of the deah of klal yisroel they need to receive the information from klal yisroel and then act on it.

    My point is that beis din are a part of klal yisroel and therefore there is no more reason to require hagadas edus in the case of kiddush hachodesh than in any other case.

    pc :-)