Monday, August 29, 2011

makom goreim and lo tasur

The Rambam (Sefer haMitzvos 153) holds that kiddush hachodesh was done by either the sanhedrin or a beis din authorized by the sanhedrin; Ramban disagrees. His proof is as follows: We know that the sanhedrin was forced to leave its proper location next to the lishkas hagazis 40 years before the churban. From that point onward capital cases could no longer be judged, as the gemara learns from our parsha, "v'kamta v'alisa el hamakom -- melamed she'hamakom goreim," that beis din could judge such cases only when located in its proper place. Yet, says the Ramban, we know that kiddush hachodesh continued to be done for many years afterwards. QED that the sanhedrin was not necessary for kiddush hachodesh.

What does the din of "makom goreim" with respect to dinei nefashos have to do with kiddush hachodesh? Apparently the Ramban understood that "makom goreim" is a halacha in beis din, not in the particular process of dinei nefashos. When beis din is not located near the lishkas hagazis, they lack their full status and authority. Therefore, kiddush hachodesh, which was done even after the sanhedrin was forced to move, must not require the full authority of beis din hagadol to be carried out.

R' Zolti in his Mishnas Ya'avetz asks: If this is correct, why then according to Ramban is there a chiyuv to obey and not rebel against the sanhedrin even when they were sitting in Yavneh (as the Sifri darshens)? How could there be a chiyuv of "lo tasur... asher yagidu lecha min hamakom ha'hu" if beis din lacks full status/authority when not in lishkas hagzais?

He answers that Ramban follows the view of the Chinuch that lo tasur prohibits not just rebelling against beis din hagadol, but rebelling against any of the gedolei and chachamei hador of any time.
Rambam l'shitaso that there is no diminuation of the chalos shem or status of beis din even if they are not sitting near lishkas hagazis disagrees and learns that lo tasur applies only to the sanhedrin, but not to every beis din or chacham.

It's interesting to compare the approach of R' Zolti, who was a Brisker, with that of another Brisker -- R' Soloveitchik (see Koveitz Ch. Torah). RYBS suggested that there are two roles of sanhedrin: 1) the supreme court; 2) the bearers of the mesorah of klal yisrael as their representatives. Kiddush hachodesh according to the Rambam is not a function of B"D's role as supreme judicial body, which, as Ramban correctly notes, came to a close long before the churban. Rather, it is a function of their role as bearers of the mesorah in their representative capacity. Based on this, there is no reason to align the Rambam against the Chinuch l'shitaso. When the Rambam mentions beis din hagadol in the context of lo tasur, he might be referring to beis din as transmitters of the mesorah of klal yisrael, a role that is fulfilled by the chachamim of each generation.


  1. yashar koach. I just have difficulty with the last line:

    > When the Rambam mentions beis din hagadol in the context of lo tasur, he might be referring to beis din as transmitters of the mesorah of klal yisrael, a role that is fulfilled by the chachamim of each generation.

    I agree "beis din hagadol" for Rambam in that context could very well mean in the role of official transmitters of mesorah. indeed, hilchos Mamrim 1:1 (which is focused on lo tasur) introduces beis din hagadol with such language.

    However, when you add "a role that is fulfilled by the chachamim of each generation," is there a source for that? I think it's more likely that Rambam in the context of lo tasur is only talking about the Sanhedrin, not leading chachamim in every age. For example, in mamrim 1:4, he says "when beis din hagadol was is in existence, there were no [unresolvable] disputes [because ultimately halachic disputes were brought to the beis din hagadol if necessary for resolution] ..." This is beis din hagadol in their role as guardian of mesorah; yet certainly there were unresolved halachic disputes in the Rambam's days and no less so in our times. I think beis din hagadol as a halachic category for Rambam only includes Sanhedrin; whether sanhedrin must sit davka in yerushalayim or not may indeed depend on the nature of their particular function, as you write in the name of Rav Soloveitchik ztz"l. But I don't see a basis to say that contemporary chachamim have formal authority under lo tasur according to Rambam.

  2. Anonymous6:24 PM

    a smartly tau(gh)t piece!

    another's difficulty with the last
    line: R' Soloveitchik's distinction drops quite neatly onto pasuk 17:10-- from "v'asisa" to "Hashem", a supreme court; the remainder, mesorah-- but "lo tasur min" goes squarely on "hadavar asher yagidu lecha"* (same phrase as pasuk 10), rather than "beis din as transmitters"...?
    *[Rambam's 3rd claim on 17:11, in mamrim 1:2, has else to say about this phrase]

    background sound as to why we
    may not "rebel against the sanhedrin Yavneh": just as we don't disrespect a forgetful scholar, menachos 99a, so we mustn't disrespect a diminished sanhedrin

  3. chaim b.7:27 PM

    You are right, the language of the Rambam does point to lo tasur being limited to B"D hagadol. To read it the way I did would stretch that as a bit of a lav davka so that it fits with the Chinuch.

  4. Tal Benschar11:14 AM

    R. Chaim Brisker explained the Rambam, based on the Introduction to the Mishneh Torah, that any beis din that is accepted by all of klal yisroel has the status of a beis din ha gadol, and its psak is binding. That is why the Talmud Bavli is authoritative, and it explains what Ravina v'Rav Ashi sof horaah means.

    You would have to say acc. to R. Chaim (he may have even said thishimself) that ha makom goreim is a tnai in the misah of zakein mamrei, but not a requirement for the issur of lo sasur.

  5. Anonymous9:36 PM

    See Brisker Rav in Kuntres on Kiddush Hachodesh.