why was there a machlokes re semicha? why did they not simply address the question to the sanhedrin and they should decide? indeed, as long as there was a sanhedrin (shabbos 15a, they went into galus 40 yrs b4 churban sheni but even after that they "sat in chanuyos") why was there machlokes? any question should have been answered by the sanhedrin. the rambam in hilchos mamrim indeed says that when there was any question it would be brought to the sanhedrin but is this accurate in light of all the machlokos we have by tannaim, while the sanhedrin was still extant, b4 churabn sheni? after all, hillel ruled 100 yrs prior to churban (shabbos ibid) and machlokes started with their talmidim?
thank u
menachem rubin, NY, USA
The Rambam you referred to in Hilchos Mamrim (1:4) says the following: "If the Beis Din ha'Gadol was uncertain, they would judge the matter at that time, and discuss the matter until they would all agree, or they would stand for a count and abide by the majority." The Margoliyos ha'Yam (3b, note 19) asks your question, and answers that this was an impossibility regarding the argument of Semichah. This is because, as the Mishnah itself tells us, "the first ones (mentioned) were Nesi'im, the second ones the Avos Beis Din." Being that the Av Beis Din wouldn't Pasken against the Nasi, this argument was never able to be solved. [For more on the irresolution of different arguments when there was a Sanhedrin, including the argument of Hillel and Shamai, see Margaliyos ha'Yam further on 3b, and on 88b.]
Kol Tuv,
Yaakov Montrose
thank u, it was worth waiting for.
in addition , in the meantime i found that the Maharitz Chiyos in Kol Kisvei M"C has a treatise on it, about 30 pages if i recall, that discusses it in detail.
shalom uvracha
Menachem Rubin
Rebbe,
How can you say that the Av Beis Din wouldn't pasken against the Nasi? We find that Shammai did pasken against Hillel in strong terms - "Im takneetaynee gozranee etc." and Hillel had to take a subordinate position. (sugya - 18 gezeiros- Gem. Shabbos)
B'kavod,
Sam Kosofsky
The Margaliyos ha'Yam quotes an explicit Gemara in Chagigah (16b) which indeed clearly says that an Av Beis Din does not Pasken in front of a Nasi. He takes this Gemara to mean that the Av Beis Din does not Pasken against the opinion of the Nasi. As a matter of fact, I believe the Gemara in Shabbos (17a) you quoted possibly lends support to the Margaliyos ha'Yam. The Gemara almost immediately states, "and it was difficult to Bnei Yisrael like the day that the Eigel was made." Rashi (DH "Kashah") comments, "because Hillel was a Nasi and humble." Why would Rashi make a point of saying he was a Nasi? It is possible that this is to show that Shamai was displaying a manner of Psak not normally accepted against the Nasi (I am aware that one can say Rashi said this for other reasons, but this would seem to be a valid way for the Margaliyos ha'Yam to understand Rashi).
All the best,
Yaakov Montrose