ב"ה
Rambam - 1 Chapter a Day
Sanhedrin veha’Onashin haMesurin lahem - Chapter 11
Sanhedrin veha’Onashin haMesurin lahem - Chapter 11
1What are the differences between cases involving financial matters and cases involving capital punishment? Cases involving financial matters are adjudicated by three judges,1 while cases involving capital punishment are adjudicated by 23.2 In cases involving financial matters, we begin the judgment either with a statement to the defendant’s detriment or his advantage,3 while with regard to cases involving capital punishment, we begin with a statement which points towards acquittal, as we explained, and we don’t begin with one which points toward his conviction.4אמַה בֵּין דִּינֵי מָמוֹנוֹת לְדִינֵי נְפָשׁוֹת? דִּינֵי מָמוֹנוֹת, בִּשְׁלוֹשָׁה; דִּינֵי נְפָשׁוֹת, בְּעֶשְׂרִים וּשְׁלוֹשָׁה. דִּינֵי מָמוֹנוֹת, פּוֹתְחִין בֵּין לִזְכוּת בֵּין לְחוֹבָה; דִּינֵי נְפָשׁוֹת, פּוֹתְחִין לִזְכוּת כְּמוֹ שֶׁבֵּאַרְנוּ, וְאֵין פּוֹתְחִין לְחוֹבָה.
In cases involving financial matters, we make a decision based on a majority of one whether it is to the defendant’s detriment or in his support, while with regard to cases involving capital punishment, we acquit him on the basis of a majority of one, but convict him only when there is a majority of two.5 In cases involving financial matters, we retry a judgment whether doing so is to the defendant’s detriment or his advantage,6 while with regard to cases involving capital punishment, we retry a judgment if it will lead to acquittal, but not if it will lead to conviction, as we explained.7דִּינֵי מָמוֹנוֹת, מַטִּין עַל פִּי עֵד אֶחָד, בֵּין לִזְכוּת בֵּין לְחוֹבָה; וְדִינֵי נְפָשׁוֹת, מַטִּין עַל פִּי עֵד אֶחָד לִזְכוּת, וְעַל פִּי שְׁנַיִם לְחוֹבָה. דִּינֵי מָמוֹנוֹת, מַחֲזִירִין בֵּין לִזְכוּת בֵּין לְחוֹבָה; וְדִינֵי נְפָשׁוֹת, מַחֲזִירִין לִזְכוּת, וְאֵין מַחֲזִירִין לְחוֹבָה כְּמוֹ שֶׁבֵּאַרְנוּ.
In cases involving financial matters, everyone - both the judges or the scholars8 - is entitled to advance any rationale whether it is to the defendant’s detriment or in his support. With regard to cases involving capital punishment, by contrast, everyone - even the students - may advance a rationale leading to acquittal, but only the judges may advance a rationale leading to conviction.9דִּינֵי מָמוֹנוֹת, הַכֹּל רְאוּיִין לְלַמֵּד זְכוּת אוֹ חוֹבָה, בֵּין הַדַּיָּנִים בֵּין הַתַּלְמִידִים; וְדִינֵי נְפָשׁוֹת, הַכֹּל מְלַמְּדִין זְכוּת, וְאַפִלּוּ הַתַּלְמִידִים, וְאֵין מְלַמֵּד חוֹבָה אֶלָא הַדַּיָּנִים.
In cases involving financial matters, a person who advanced a rationale to the defendant’s detriment may change his mind and advance a rationale in his support. Conversely, one who advanced a rationale in the defendant’s support may change his mind and advance a rationale to his detriment.דִּינֵי מָמוֹנוֹת, הַדַּיָּן הַמְּלַמֵּד חוֹבָה חוֹזֵר וּמְלַמֵּד זְכוּת, וְהַמְּלַמֵּד זְכוּת חוֹזֵר וּמְלַמֵּד חוֹבָה.
With regard to cases involving capital punishment, by contrast, a judge who advanced a rationale for conviction may advance a rationale for acquittal, but a judge who advanced a rationale for acquittal may not change his mind and advance a rationale for conviction. At the time the judgment is being rendered, however, he may vote to be counted among those favoring conviction, as we explained.10דִּינֵי נְפָשׁוֹת, הַמְּלַמֵּד חוֹבָה חוֹזֵר וּמְלַמֵּד זְכוּת, אֲבָל הַמְּלַמֵּד זְכוּת אֵינוֹ יָכוֹל לַחֲזֹר וּלְלַמֵּד חוֹבָה, אֶלָא בִּשְׁעַת גְּמַר דִּין, יֵשׁ לוֹ לַחֲזֹר וּלְהִמָּנוֹת עִם הַמְּחַיְּבִין כְּמוֹ שֶׁבֵּאַרְנוּ.
Cases involving financial matters are adjudicated during the day, but the verdict may be rendered at night.11 Cases involving capital punishment are adjudicated during the day and the verdict must also be rendered during the day.12 The verdict in cases involving financial matters is rendered on that very day, whether it is to the defendant’s detriment or in his support. With regard to cases involving capital punishment, by contrast, a verdict of acquittal is rendered on that very day, but a verdict of conviction is not rendered until the following day.13דִּינֵי מָמוֹנוֹת, דָּנִין בַּיּוֹם וְגוֹמְרִין בַּלַּיְלָה; דִּינֵי נְפָשׁוֹת, דָּנִין בַּיּוֹם וְגוֹמְרִין בַּיּוֹם. דִּינֵי מָמוֹנוֹת, גוֹמְרִין בּוֹ בַּיּוֹם, בֵּין לִזְכוּת בֵּין לְחוֹבָה; דִּינֵי נְפָשׁוֹת, גוֹמְרִין בּוֹ בַּיּוֹם לִזְכוּת, וּבַיּוֹם שֶׁלְּאַחֲרָיו לְחוֹבָה.
2For this reason,14 we do not adjudicate cases involving capital punishment on Fridays, nor on the days preceding festivals. The rationale is that the defendant may be convicted and it is impossible to execute him on the following day,15 but it is forbidden to postpone his execution until after the Sabbath.16 Hence, we imprison him and begin his trial on Sunday.17בלְפִיכָךְ אֵין דָּנִין דִּינֵי נְפָשׁוֹת לֹא עֶרֶב שַׁבָּת וְלֹא עֶרֶב יוֹם טוֹב - שֶׁמָּא יִתְחַיֵּב, וְאִי אֶפְשָׁר לְהָרְגוֹ לְמָחָר, וְאָסוּר לְעַנּוֹת אֶת דִּינוֹ, וּלְהַנִּיחוֹ לְאַחַר הַשַּׁבָּת. אֶלָא אוֹסְרִין אוֹתוֹ עַד אֶחָד בַּשַּׁבָּת, וּמַתְחִילִין בְּדִינוֹ.
3According to Scriptural Law, cases involving financial law can be adjudicated at all times, as Exodus 18:22 states: “They shall judge the people at all times.” According to Rabbinic Law, cases are not adjudicated on Fridays.18גדִּינֵי מָמוֹנוֹת, אַף עַל פִּי שֶׁדָּנִין אוֹתָן בְּכָל יוֹם מִן הַתּוֹרָה, שֶׁנֶּאֱמַר "וְשָׁפְטוּ אֶת הָעָם בְּכָל עֵת" (שמות יח, כב; שמות יח, כו), מִדִּבְרֵיהֶם לָמְדוּ שֶׁאֵין דָּנִין בְּעֶרֶב שַׁבָּת.
4All of the same laws19 that apply to cases involving capital punishment apply also to cases involving lashes20 and exile,21 except that cases involving lashes are adjudicated by three judges.22 None of these distinctions are made with regard to the judgment of an ox that is stoned except for one, that the judgment is adjudicated by 23 judges.23דאֶחָד דִּינֵי נְפָשׁוֹת וְאֶחָד דִּינֵי מַלְקִיּוֹת וְאֶחָד דִּינֵי גָּלוּת - הַדִּינִים הָאֵלּוּ שָׁוִים בָּהֶן, אֶלָא שֶׁהַמַּלְקוּת בִּשְׁלוֹשָׁה. וְאֵין אֶחָד מֵהֶן בְּשׁוֹר הַנִּסְקָל, חוּץ מִדָּבָר אֶחָד: שֶׁדִּינוֹ בְּעֶשְׂרִים וּשְׁלוֹשָׁה.
5The laws which pertain to a mesit, a person who entices others to serve false divinities,24 differ from those pertaining to others liable for capital punishment. We hide witnesses to observe his act.25 He does not need a warning26 as must be given to others who are executed.27ההַמֵּסִּית, אֵין דִּינָיו כִּשְׁאָר דִּינֵי נְפָשׁוֹת: מְכַמְּנִין לוֹ הָעֵדִים, וְאֵינוֹ צָרִיךְ הַתְרָאָה כִּשְׁאָר הַנֶּהֱרָגִין.
If he departed from the court after being acquitted, and someone said: “I know a rationale that will lead to his conviction,” he is returned and retried. If he was sentenced to death and someone said: “I know a rationale that will lead to his release,” he is not retried.28 The court does not advance arguments in defense of a mesit.29וְאִם יָצָא מִבֵּית דִּין זַכַּאי, וְאָמַר אֶחָד 'יֵשׁ לִי לְלַמֵּד עָלָיו חוֹבָה' - מַחֲזִירִין אוֹתוֹ; יָצָא חַיָּב, וְאָמַר אֶחָד 'יֵשׁ לִי לְלַמֵּד עָלָיו זְכוּת' - אֵין מַחֲזִירִין אוֹתוֹ. וְאֵין טוֹעֲנִין לַמֵּסִּית.
An elderly person, a eunuch, and a person who does not have sons are placed on the court which judges him,30 so that they will not have mercy on him. For cruelty to those who sway the people after emptiness brings mercy to the world,31 as implied by Deuteronomy 13:19: “so that God will tum away from His fierce anger and grant you mercy.”32וּמוֹשִׁיבִין בְּדִינוֹ סָרִיס וְזָקֵן וּמִי שֶׁאֵין לוֹ בָּנִים, כְּדֵי שֶׁלֹּא יְרַחֲמוּ עָלָיו. שֶׁהָאַכְזָרִיּוּת עַל אֵלּוּ שֶׁמַּטְעִין אֶת הָעָם אַחַר הַהֶבֶל - רַחֲמִים הִיא בָּעוֹלָם, שֶׁנֶּאֱמַר "לְמַעַן יָשׁוּב ה' מֵחֲרוֹן אַפּוֹ וְנָתַן לְךָ רַחֲמִים" (דברים יג, יח).
6With regard to cases involving monetary matters and similarly questions of ritual purity and impurity, the judge of the greatest stature gives his ruling first33 and the other judges hear his ruling. With regard to laws involving capital punishment, we begin from the side.34 The words of the judge of the highest stature are not heard until the end.35ודִּינֵי מָמוֹנוֹת, וְהַטֻּמְאוֹת וְהַטְּהָרוֹת - מַתְחִילִין מִן הַגָּדוֹל שֶׁבַּדַּיָּנִין, וְשׁוֹמְעִין אֶת דְּבָרָיו; וְדִינֵי נְפָשׁוֹת - מַתְחִילִין מִן הַצַּד, וְאֵין שׁוֹמְעִין דִּבְרֵי הַגָּדוֹל אֶלָא בָּאַחֲרוֹנָה.
7With regard to cases involving monetary matters and similarly questions of ritual purity and impurity, a father and his son and a teacher and his student36 are counted as two judges.37 With regard to cases involving capital punishment, lashes, the sanctification of the moon and the declaration of a leap year, a father and his son and a teacher and his student are counted as one.זדִּינֵי מָמוֹנוֹת, וְכֵן הַטֻּמְאוֹת וְהַטְּהָרוֹת - אָב וּבְנוֹ, הָרָב וְתַלְמִידוֹ מוֹנִין אוֹתָן בִּשְׁנַיִם. וְדִינֵי נְפָשׁוֹת, וּמַכּוֹת, וְקִדּוּשׁ הַחֹדֶשׁ, וְעִבּוּר הַשָּׁנָה - אָב וּבְנוֹ, הָרָב וְתַלְמִידוֹ מוֹנִין אוֹתָן בְּאֶחָד.
8The concept that a father and a son are counted as one or as two applies when one is a member of the Sanhedrin and the other was one of the students attending the court who said: “I can contribute a rationale that will lead to his vindication,” or “...to his being held liable.” We listen to his words and enable him to participate in the debate, and he is counted in the polling of the judges.38חזֶה שֶׁאָנוּ מוֹנִין הָאָב עִם הַבֵּן, בֵּין בְּאֶחָד בֵּין בִּשְׁנַיִם, כְּגוֹן שֶׁהָיָה אֶחָד מֵהֶן בַּסַּנְהֶדְּרִין, וְהַשֵּׁנִי הָיָה מִן הַתַּלְמִידִים שֶׁאָמַר 'יֵשׁ לִי לְלַמֵּד זְכוּת' אוֹ 'חוֹבָה' - שׁוֹמְעִין דְּבָרָיו, וְנוֹשְׂאִין וְנוֹתְנִין עִמּוֹ וְנִמְנִין עִמּוֹ.
9At the time of the final judgment,39 relatives are not included. For judges who are related to each other are not acceptable to rule together, as will be explained.40טוּבִשְׁעַת גְּמַר דִּין, אֵין גּוֹמְרִין אֶת דִּינוֹ בַּקְּרוֹבִים, שֶׁהַדַּיָּנִין הַקְּרוֹבִים פְּסוּלִין לַדִּין, כְּמוֹ שֶׁיִּתְבָּאֵר.
10When a student was wise and understanding41 but is lacking sufficient knowledge of the tradition,42 his master may convey to him the tradition which he requires with regard to these laws and then he may serve as a judge even in cases regarding capital punishment.43יתַּלְמִיד שֶׁהָיָה חָכָם וּמֵבִין, וְהָיָה מְחֻסָּר קַבָּלָה - הֲרֵי רַבּוֹ מוֹסֵר לוֹ הַקַּבָּלָה שֶׁהוּא צָרִיךְ לָהּ בְּדִין זֶה, וְהוּא דָּן עִמּוֹ בְּדִינֵי נְפָשׁוֹת.
11All individuals are acceptable to judge cases involving financial laws, even a convert, provided his mother is a native-born Jewess.44 A convert may judge a fellow convert even if his mother is not a native-born Jewess. Similarly, a mamzer and a person who is blind in one eye45 are acceptable to adjudicate financial disputes. Cases involving capital punishment, however, may be judged only by priests, Levites, and Israelites with lineage acceptable to marry into the priesthood.46 Not one of them may be blind even in one of his eyes, as we explained.47יאהַכֹּל כְּשֵׁרִים לָדוּן דִּינֵי מָמוֹנוֹת, אַפִלּוּ גֵּר - וְהוּא, שֶׁתִּהְיֶה אִמּוֹ מִיִּשְׂרָאֵל. וְגֵר דָּן אֶת חֲבֵרוֹ הַגֵּר, אַף עַל פִּי שֶׁאֵין אִמּוֹ מִיִּשְׂרָאֵל. וְכֵן הַמַּמְזֵר וְהַסוּמָא בְּאַחַת מֵעֵינָיו - כָּשֵׁר לָדוּן דִּינֵי מָמוֹנוֹת. אֲבָל בְּדִינֵי נְפָשׁוֹת - אֵין דָּנִין אוֹתָן אֶלָא כּוֹהֲנִים לְוִיִּם וְיִשְׂרְאֵלִים הַמַּשִּׂיאִין לַכְּהֻנָּה, וְלֹא יִהְיֶה אֶחָד מֵהֶן סוּמָא אַפִלּוּ בְּאַחַת מֵעֵינָיו כְּמוֹ שֶׁבֵּאַרְנוּ.
Footnotes
1.
See Chapter 2, Halachah 10.
2.
See Chapter 5, Halachah 3.
3.
For since there are two litigants involved, what is to the detriment of one is to the advantage of the other.
4.
Chapter 10, Halachah 7.
5.
See Chapter 8, Halachah 1.
6.
If a court realizes that it made an error, the judgment is rescinded and a new judgment is rendered. See Chapter 6.
7.
Chapter 10, Halachah 9.
8.
Who sit and observe the court.
9.
See Chapter 10, Halachah 8.
10.
Chapter 10, Halachah 2.
11.
See Chapter 3, Halachah 4.
12.
Sanhedrin 34b derives this concept based on Numbers 25:4: “Hang them before God before the sun.”
13.
If the court sees that the judges desire to convict the defendant, a final judgment is not rendered. Instead, the judges debate the matter throughout the entire night in the hope of finding a basis for acquittal. On the following day, they gather together and they are polled again (Sanhedrin 32a, 35a, see Chapter 12, Halachah 3).
14.
I.e., because two successive sittings of the court might be necessary.
15.
For doing so involves the transgression of one of the Torah’s commandments. As stated in Hilchot Shabbat 24:7, one of the 613 mitzvot of the Torah is not to execute a guilty person on the Sabbath.
16.
For once a person is convicted, he should be executed immediately. It is considered as agonizing to allow him to live with the sword of death hanging over him.
17.
From this ruling, we can see that ordinarily a person was not imprisoned before his trial began. Instead, he would be arrested and tried on that very same day.
18.
To enable the litigants and the judges to carry out their preparations for the Sabbath [P’nei Moshe (Jerusalem Talmud, Sanhedrin 4:6)]. Alternatively, a judgment must be made patiently, with peace of mind, and that would be difficult on Friday because of the necessary Sabbath preparations (Sefer Me’irat Einayim 5:3). See also Chapter 25, Halachah 9.
The Shulchan Aruch (Choshen Mishpat 5:2) writes that it is also forbidden to hold court on the day preceding a festival. The Ramah quotes opinions which maintain that in the present age, judgments may be rendered on Fridays and on the days preceding festivals.
As mentioned in Hilchot Shabbat 23:14, although one would be allowed to hold court and render a judgment on the Sabbath or a festival itself according to Scriptural Law, our Sages forbade doing so as a safeguard, lest one write.
19.
I.e., all the distinctions mentioned in Halachah 1 between cases involving financial matters and cases involving capital punishment.
20.
The punishment granted for the violation of one of the Torah’s prohibition that involves a deed, and is not punishable by execution. See Chapters 18 and 19. See also Chapter 16, Halachah 1, which draws an equation between lashes and execution.
21.
The punishment given for accidental murder. See Hilchot Rotzeach, chs. 5 and 6.
22.
And not 23 as is the case with regard to laws involving capital punishment.
23.
On the basis of Exodus 21:19, Sanhedrin 2a states that an ox is condemned to death in the same manner as its master, i.e., by a court of 23 judges. See Chapter 5, Halachah 2.
24.
See Deuteronomy 13:2-12 and Hilchot Avodat Kochavim, Chapter 5, where the laws governing such a transgressor are explained.
25.
I.e., the person who he has been enticed should inform the court. Together they contrive a plan so that the mesit will make his statements in the presence of witnesses who can see and hear him even though he cannot see them. See Hilchot Avodat Kochavim 5:3.
26.
The person whom he seeks to proselytize should, however, tell him: “How can we forsake our God in heaven and serve stone and wood?” (ibid.). As Tosafot, Sanhedrin 8b, explains, this statement impresses the mesit with the severity of his actions. If the mesit does not repeat his statements after receiving this warning, he is not executed.
27.
See Chapter 12, Halachah 2, which states that, to be executed for other transgressions, a person must receive a warning from two witnesses and acknowledge that warning.
28.
This is the direct opposite of the laws that apply with regard to others tried for sins punishable by execution, as stated in Chapter 10, Halachah 9. The rationale for these stringencies is that Deuteronomy 13:9 states: “Do not have pity and do not cover up for him.”
29.
Instead, he must offer his own defense. In contrast, in other instances, the court and even the students observing the court (see Chapter 10, Halachah 8) are encouraged to offer defenses.
30.
Although because of their tendency to cruelty, they are not fit to judge other cases involving capital punishment, as stated in Chapter 2, Halachah 3.
31.
Compare also to the Guide to the Perplexed, Vol. II, Ch. 39, which states: “Mercy to the cruel is cruelty to the merciful.”
32.
Although this verse is stated with regard to an ir hanidachat, a city that was led astray, i.e., after idol worship, its motivating rationale also applies with regard to a mesit.
33.
This is an act of deference and respect for that judge. Nevertheless, if that judge desires, as an expression of humility, he may forgo this token of respect. Sanhedrin 36a relates that this was the practice of Rabbi Yehudah HaNasi who began by asking the judges of the lowest stature (Radbaz).
34.
As stated in Chapter 1, Halachah 3, the judges are seated in a semi-circle and the judges of the highest stature are seated in the center. Beginning from the side means asking the judge of the lowest stature to state his opinion first.
35.
As stated in Chapter 10, Halachah 6, we fear that otherwise, the judges of lesser stature will be intimidated and will fear to contradict the opinions of the judge of greater stature.
36.
The Shulchan Aruch (Choshen Mishpat 18:5) interprets this as referring to an instance where the student relies on the teacher and has not developed sufficient independent thinking processes to consider the laws abstractly and apply them to different situations on his own. See also Halachah 10.
37.
The Rambam’s ruling is based on Sanhedrin 36a. His version of that text was apparently different from the standard printed text. The standard printed version includes cases involving financial laws in the same category as cases involving capital punishment. For this reason, the Ra’avad objects to the Rambam’s ruling.
Rashi explains that with regard to rulings concerning ritual purity, it is not necessary that a question be judged by any minimum amount of judges. Hence, every person’s opinion is counted equally. With regard to cases involving capital punishment and the other types of judgment mentioned, the Torah requires a specific number of judges at the outset. This implies that every judge is important and hence, a father and a son may not be counted together.
According to Rabbinic Law, there is no minimum amount of judges necessary to adjudicate questions of financial law. Hence the version of Sanhedrin possessed by the Rambam places these laws together with the laws of ritual purity.
38.
I.e., he is given the status of a member of the court. He participates in the debate and he is counted in the reckoning of the opinions of the judges (Kessef Mishneh).
39.
According to the Rambam, this refers to the pronouncement of the verdict: “So-and-so, you are liable,” or “So-and-so, you are vindicated” (Kessef Mishneh). The Ra’avad differs and maintains that this refers to the polling of the judges. Hence he objects to the Rambam’s statements.
40.
See Hilchot Edut 16:5.
41.
And thus capable of developing insightful rationales.
42.
I.e., the laws received from the previous generation regarding a particular issue.
Sanhedrin 36b cites as an example Rav Kahaneh and Rav Assi who were students of Rav. They were highly intelligent and capable of reasoning with the greatest sages of the age. They lacked, however, the knowledge of certain laws. Rav would convey these laws to them and they would participate as full members of the court.
43.
I.e., the students are then considered as judges in their own right, independent of their teacher.
Rashi explains the rationale for this ruling. Ultimately, the entire Jewish people received the body of Torah knowledge from Moses. What difference does it make on which level of the chain a person is? What is significant is that they can assimilate the knowledge and apply it to the particulars of a given situation.
44.
See Chapter 2, Halachah 9, where this concept is explained at length.
45.
If, however, he is blind in both eyes, he is not acceptable to serve as a judge at all (ibid.).
46.
Implied is that for four generations, we know that the person’s lineage is acceptable.
47.
Chapter 2, Halachah 9.
Rabbi Eliyahu Touger is a noted author and translator, widely published for his works on Chassidut and Maimonides.
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Vowelized Hebrew text courtesy Torat Emet under CC 2.5 license.
The text on this page contains sacred literature. Please do not deface or discard.
