Torah from Our Beit Midrash

This week the daf yomi began tractate Horiyot, which is the last tractate in Seder Nezikin and the smallest tractate in Shas.  It presumably is part of Seder Nezikin as a type of an appendix to tractate Sanhedrin and Makkot, which deal with the power and authority of the Beit Din - to represent the people, the fix the calendar, to judge court cases and to inflict punishment - from monetary fines, to lashes, to the death penalty.  Horiyot deals not with the power and authority of Beit Din, but with its responsibility and potential culpability if it is negligent in its role, and rules incorrectly regarding Biblical prohibitions.  Basing themselves on the verses in Vayikra 4:13-21, the Rabbis understand that if the High Court ruled in error regarding a sin for which one would bring a korban chatat (when done unintentionally), then it must bring a special sin offering if most of the people have sinned as a result of this erroneous ruling.  This sin offering is called par he'elem davar shel tzibbur, the cow brought for a matter that is hidden from the community. 

This tractate, then, dealing as it does with the issues of erroneous ruling, individual sin, and the sin of the court, offers an opportunity to explore the relative responsibilities of the Court and the individual, as well as to reflect on what makes rabbinic interpretation into binding law.

Interestingly, the first topic that the mesekhet takes up is not that of the Court's responsibility, but rather that of the individual's right - under most cases - to rely upon the Court's ruling.  The first mishna states that when an individual relies on the Court's ruling, even if it turns out that the Court was in error and that he sinned, he is exempt from bringing a sin-offering.  This, of course, stands to reason, inasmuch as a lay person is obligated to follow the ruling of the court, based on the verse "And you shall do according to the Law which they shall tell you… You shall not deviate from the matter that they tell you to the right nor to the left." (Deut. 17:10-11).  Interestingly, however, the Gemara states that the mishna is only a minority opinion, and that the Sages say that even in such a case the individual must bring a sin-offering, and this is how Rabbenu Channel and Rambam rule.  This position seems to make no sense, as in such a case the individual has no blame or fault for the sin.  Why, then, must he bring a sin  offering?

To understand this position, it is helpful to consider another, similar ruling in the Talmud.  The Gemara Shabbat (68b) discusses the case of a tinok shenishba, a person who was taken captive by non-Jews when he was an infant, and was raised by them, and thus believes himself to be a non-Jew.  This person will, of course, regularly violate Shabbat, but due to absolutely no fault of his own.   Rebbe Yochanan and Reish Lakish state - as we would expect - that such a person is guiltless, and does not have to bring any sin-offering.  However, Rav and Shmuel both say that he must - when he becomes aware that he is Jewish - bring one sin-offering for all his Shabbat violations, and, again, this is how Rambam rules.  What is the logic here?  Where is his sin?

The answer to these questions lies in understanding that a sin-offering is not (or at least not only) to atone for the sin of the individual, but (also) to cleanse the world of the sin that was committed.  According to the Torah's theology, the commission of sin brings impurity to the world, and - most significantly - to the Temple and the Land of Israel.  This sin, this metaphysical mess, is cleansed through the bringing of the chatat, which is translated (as I have done, above) as "sin-offering," but is actually more accurately translated as "cleansing sacrifice."  Hence, the service of Yom Kippur was not primarily the goat sent to the wilderness to atone for the sins of the People, but rather the sacrifices that were brought into the inner sanctum for the purpose of cleansing the Temple from the impurity of the sins, so that God could continue to dwell among the People.  [For more on this, see Jacob Milgrom, Anchor Bible, Leviticus, pp. 253ff).

Thus, in our two cases, although the individual is faultless, he still did the act - he still made the mess - and therefore, he must clean it up, he must bring the chatat.  If someone knocked over a glass of orange juice by accident, they may be faultless, but it is still their responsibility to clean it up, and it is no different in these cases.   This approach explains why Rambam sometimes refers to a tinok shenishba as a shogeg, an inadvertent but liable sinner, and sometimes as an ones, a guiltless sinner.  Regarding guilt and blame the person is an ones, free from all guilt.  But regarding responsibility for a korban, the person is a shogeg, one who has done the act of the sin willfully and without duress, and thus responsible to bring the chatat.

So much for the position of the Sages.  The position of the mishna, however, is that only someone who actually is at fault is obligated in a chatat and this is not the case regarding a lay person who follows beit din.    However, the mishna does identify one person who should have know better than to follow Beit Din, and who would be considered at fault for his sin, and who thus would have to bring a chatat.  This person is a member of the Court, or a student who is fit to be on the Court, and who has good basis to believe that they are in error.   The Talmud extends this category to include even someone who is not fit for the court, but who has a good basis to believe the Court is in error - he is knowledgeable about the Oral Law or he has good analytic ability to assess their arguments.  Rosh, and implicitly Rambam, further extend this to include anyone who believes the court to be in error.

Such a person, says the Gemara (2b), should have known better than listen to the Court and to do this sin.  Why then did he do so?  Because, says the Gemara, he was a toeh bi'mitzvah lishmoa li'Beit din, he believed incorrectly that his obligation to listen to the Court extended even to cases when they have made a mistake.

Now, this statement is quite fascinating.  We are often told exactly this - that one must follow the High Court even if what they say appears to be incorrect.  As Rashi states, on the verse, "Do not swerve to the right or to the left," "Even if they say to you that your right is your left, and your left is your right."   From the Gemara, however, we see that if one is in a position to truly know better, then this is not the case.  In fact, the Sifre from which Rashi derives his statement, is a little more nuanced.  The Sifre says: "Even if it appears in your eyes that they are telling you that your right is your left and your left is your right."  According to the Sifre, then, one could distinguish between cases where there is no question that they are definitely wrong, and one should not follow them, and cases where it appears that they are wrong, but one recognizes that they could be right, and in such cases one is obligated to follow them.  

So much for Rashi and the Sifre.  As to our Gemara, it is also worth noting that the Bavli never quotes this Sifre or any variation of it.  It is thus possible that the Bavli disagrees with it, and understands that one should not follow Beit Din if it appears that they are in error.  Finally, the Yerushalmi on this mishna quotes a braitta that directly contradicts this Sifre. 

"As we taught in a braitta: Perhaps if they told you that your right was your left and your left was your right you should listen to them?  The verse teaches: "To go to the right or to the left" - only when they tell you that your right is your right and your left is your left." 

Thus, implicitly according to the Bavli and explicitly according to the Yerushalmi one - at least one who is fit to be a member of the court - is not to follow Beit Din when he knows that they are in error.

This, however, is a hard conclusion to accept, since such a person  - one who believes the High Court to be in error and follows his own conscience - seems to perfectly describe the zaken mamre who - because he opposes Beit Din's authority, is put to death.  What makes this person different from the zaken mamre, the elder who defies the authority of the court?  Interestingly, the Gemara does not ask this question.  It is first asked, to my knowledge, by the Reshash (R. Shlomo Shterson of Vilna, 1794-1872).  Reshash answers by saying that one only should submit to Beit Din after he has brought his objections to their attention.  The zaken mamre is a member of the court who voiced his objections and was overruled.  In such a case he must listen to them, regardless.  The one, in our mishna, who sins by following them when he knows them to be in error, is one who acts without bringing his objections to the court.  This answer sides heavily with Rashi's approach to "not swerving to the right or to the left."  Once a person is overruled, complete submission is demanded.

Another answer is possible.  The Tosefta (1:4) states: "An individual who rules (against the Court) and does (according to his ruling) is liable (as a zaken mamre) as it says, "And the one who does with an upraised hand…".  This emphasizes a key difference between the zaken mamre and the individual who just follows his conscience.  The zaken mamre sets himself up as an opposing authority, and he does this by giving a ruling in opposition to the Court.  The mishna in Sanhedrin is very clear about this:

"If he returned to his town and taught again as heretofore, he is not liable. But if he gave a practical decision (hora'ah), he is guilty, for it is written, "And the man that will do presumptuously," -he is liable only for a practical ruling."(Mishna Sanhedrin 10:2)

This, then, is exactly the difference.  When one follows his conscience through his actions and inactions (not doing what the Court said was allowed), then he is acting appropriately.  When one sets himself up as a competing authority, when he gives an opposite ruling as the Court, then he is acting brazenly and presumptuously, by aggregating to himself the function of the court, and this threat to the Court's position cannot be tolerated.  Or, as the Gemara puts it in the general context of Horiyot: "The action relates to the people, the ruling (hora'ah) relates to the court."

Finally, it should be noted that the cases where we expect a person to follow his own conscience - the cases when he believes the court to be in error - are cases where the Court has ruled that a certain questionable action is permissible.  In such a case, there is no harm done by following one's own conscience.  The Court, in this case, has allowed an action to be done, but not required it.  By not doing this action, by passively doing nothing,  a person does not obviously challenge the Court's authority.  Moreover, the person is following his conscience and being strict - that is, he is playing it safe.  To follow one's conscience and to be more lenient, or to act in a way that is a clear violation of the Court's ruling, would be another matter altogether.