Rebbe,
Today's Daf tells us that R. Yehudah Ben Tabbai did Teshuvah for having killed one Ed Zomem. He also accepted on himself never to Pasken without R. Shimon b. Shetach present.
It can not be the case that R. Yehudah didn't know the Halachah stating that one Ed can not be become Huzam. Both Edim have to be Muzam. He was an Av Bet Din, (I think), an early Tanna and one of the zuggot. If he didn't know the Halachah another Dayan from the Bet Din of 23 needed to give capital punishment would know it.
He himself says that it was l'Hotzi mi'Liban of the Tzedukkim. That sounds like Hora'as sha'ah to me. Shimon Ben Shetach knew about Hora'at sha'ah. He killed 80 witches in Ashkelon in one day when normally Bet Din doesn't kill more than one in a day. (dafsach mir)
So why, exactly, would R. Yehuda ben Tabbai have gone to such lengths and prostrate himself on the Ed's Kever while crying as well as not posken alone?
B'kavod,
Sam Kosofsky
Sam Kosofsky, Flushing (Hillcrest) NY, USA
Sam, it is great to hear from you again after such a long time!
(1) From the way the Rishonim explain this Gemara it is clear that they understand that R. Yehudah made a mistake but there are different ways of interpreting exactly what happened.
(2) Incidentally, we find sometimes in Yiddishkeit that our great leaders are not considered to be infallible. There were some very rare cases where even Moshe Rabbeinu erred. Every human being is limited and it is possible that even the greatest can very occasionally slip up and it is only Hakadosh Baruch Hu whose ways are always perfect. However, certainly the Gedolim and Tzadikim have a very special Siyata di'Shmaya and one can see that Hash-m is with them and guiding them along.
(3) Nevertheless the Gemara does say in several places (one of these is in Chulin end of 5b) that Hakadosh Baruch Hu does not allow even the animals belonging to Tzadikim to commit transgressions and certainly does not allow the Tzadik himself to stumble. Tosfos Chulin 5b DH Tzadikim asks according to this rule how could it be that R. Yehudah Ben Tabai killed the Ed Zomem? Tosfos answers that it is only on matters of eating forbidden food that Hash-m never allows the Tzadik to slip up (this is because it is a particular disgrace that forbidden food should enter the Tzadik's mouth). Yet, it is possible that even the greatest Tzadik occasionally does a different type of Aveirah. Therefore, the fact that R. Yehudah killed the Ed Zomem does not contradict the Gemara's rule.
(4) Ritva in Makos gives a different explanation as to how it could be that R. Yehudah slipped up. He writes that the witness that R. Yehudah put to death was already culpable of the death penalty through other transgressions. He compares this to the Gemara in Bava Metzia 83b which relates that a Jew was put to death by the non-Jewish government because Rabbi Elazar, the son of Rabbi Shimon ordered him captured. R. Elazar was extremely upset and went and cried under the tree where he was hanged. He was told "Rebbi, you should not feel remorse - this criminal and his son had relations on Yom Kippur with a Na'ara engaged to be married!". In a similar way, even though R. Yehudah did not in fact know the din that one can only put the Ed to death if they are both proved to be Zomemim, nevertheless he had special Siyata di'Shmaya which did not allow him to execute someone who was in reality innocent.
(5) The Meiri here addresses your interesting question about Hora'as Sha'ah. He writes that even though in certain matters the Chachamim possess a license to deviate slightly from the Din and may sometimes even be lenient in order to contradict the opinion of those who disagree with them (see for instance Yoma 2a etc.), nevertheless on questions of life and death the Chachamim do not possess this power and they are not allowed to kill someone who does not deserve the death penalty merely in order to contradict their opponents. Any judge who rules this way is guilty of shedding blood.
The Mishnah in Sanhedrin 45b, that you cited, that Shimon Ben Shetach killed 80 witches in Ashkelon in one day, does not contradict the Meiri because those witches were certainly culpable of the capital penalty and Shimon Ben Shetach merely overrode the Halachah that one cannot kill them on the same day but this is not considered as if he spilled innocent blood.
(6) Rashi in Chagigah 16b DH u'Mai writes that generally speaking R. Yehudah did not Pasken without Shimon Ben Shetach and on the day he killed the Ed Zomem, Shimon was not present. However, I do not have a clear answer to your question as to how it was that none of the other 22 judges on the Sanhedrin did not correct him. It appears that this Halachah was not yet well known.
(7) So, in summary, according to (3) above, we can certainly understand why R. Yehudah prostrated himself on the Ed's grave. According to (4) also, I think we can understand it, because even though the witness deserved the capital penalty for other transgressions, nevertheless R. Yehudah understood that he had put him to death for the wrong reasons. This level of judgment was not appropriate to the very high standard expected from the Jewish Sanhedrin.
[See also the Aruch le'Ner in our Sugya]
Sam - I remember that your questions are always interesting and Lomdische and this was no exception!
Kol Tuv
Dovid Bloom
(1) I have found a very interesting explanation of this Sugya in one of the Rishonim, according to which I think we may be able to answer one of your above questions for which I did not give a satisfactory reply before. That is how could it be that none of the other 22 judges on the Sanhedrin corrected R. Yehudah on his mistake?
(2) This explanation is from the commentary of the Tosfos Rid to Chagigah 16b. According to Tosfos Rid, R. Yehudah did not make a simple mistake but rather he had his own Shitah in Halachah until Shimon Ben Shetach corrected him. We can now understand why the other 22 judges did not correct R. Yehudah, because he had his own reasoned approach which only Shimon was great enough to refute.
(3) Tosfos Rid writes a very big Chidush - that R. Yehudah's intention was not only to contradict the Tzedukim, but he also wanted to refute the Perushim. This was because the Perushim taught that one does not kill the Edim Zomemim until the case has been completed on the basis of their testimony. Therefore one requires that both witnesses should be made into Edim Zomemim because the Sanhedrin can not convict the murderer unless there are 2 witnesses. R. Yehudah disagreed with this Halachah and argued that since when the Torah (Devarim 19:18) states "And behold the witness is a liar" it describes the witness in the singular, this teaches us that even one witness who is found to be a Zomem, is also culpable of the death penalty.
(4) Rid writes that R. Yehudah disagrees with the Gemara in Sotah 2b (which Rashi cites here DH She'harei) that whenever the Torah refers to "Ed" this in fact means 2 witnesses unless the Torah writes explicitly "one Ed". Rather, R. Yehudah follows the literal interpretation of the Torah and maintains that even one Ed can become an Ed Zomem. Even though he is not capable of putting the accused to death on the basis of his testimony alone, nevertheless since he wanted to kill him, and would have been able to do so if another witness would have testified the same, therefore the single Ed is also executed for his bad intentions.
(5) I would like to suggest that when the Rid writes that R. Yehudah wanted "le'Hotzi mi'Liban Shel Perushim" he means that R. Yehudah wanted to contradict the arguments of the more junior members of the Perushim Beit Hamidrash who argued that only the 2 together can become Edim Zomemim. It was only when Shimon ben Shetach himself confirmed the argument of his students, that R. Yehudah realized that Shimon must have received a tradition concerning this Halachah which states that whenever the Torah writes "The witness" this in reality means 2. It was only then that R. Yehudah retracted his original opinion and promised to only be Posek Halachah if Shimon was also present, because of Shimon's greater stature.
[There are also other big Chidushim in this passage of Tosfos Rid, which I will not go into now. See also Teshuvot Sho'el u'Meshiv volume 1 part 3 chapter 218 DH u'Bezeh, for a different explanation of how R. Yehudah maintained a Halachic stance which only Shimon Ben Shetach was capable of refuting. ]
KOL TUV
Dovid Bloom
I posed your question to one of the Gedolei ha'Dor. He answered that Rabbi Yehuda ben Tabbai and the judges on his Beis Din must have simply forgotten the Halachah that one witness cannot become an Ed Zomem. Possibly, they had never heard about this Halachah.
We do find in the Chumash (Vayikra 4:13) that it is possible for "the entire congregation of Yisrael (i.e. the Sanhedrin - Rashi) to err, and a matter should be hidden from them...." Even the greatest of people can make mistakes.
Kesivah u'Chasimah Tovah
Dovid Bloom