OPINIONS: Shmuel rules that a judgment passed by two people acting as a Beis Din is valid, but the judges are considered brazen. The Gemara says that Shmuel's ruling is not accepted by everyone. Rava does not agree with Shmuel's ruling, while Rebbi Acha does. What is the Halachah?

(a) TOSFOS quotes the BEHAG who rules in accordance with Shmuel. He cites support for this conclusion from the Gemara later (5a) in which Rav Nachman says that he ruled as a judge alone because he was an expert. This indicates that Rav Nachman maintains that it is not necessary to have three judges in a Beis Din (as the Gemara concludes here (3a) according to Rebbi Acha, who says that one person may judge alone). The ROSH points out that the Halachah normally follows the opinion of Rav Nachman in cases of monetary law.

(b) The RIF writes that the Halachah does not follow the view of Shmuel, since a number of other Amora'im disagree (Rebbi Avahu (6a), Reish Lakish, Rebbi Yochanan). The Gemara also seems to reject his view, as it states later (6a) in a different discussion that everyone maintains that three judges are needed.

(c) The RAMBAM (Hilchos Sanhedrin 2:10) seems to contradict himself. As mentioned above, if one maintains that one judge is valid, then it is logical that he also maintains that two non-expert judges certainly are valid. However, the Rambam rules that one judge is valid, but two judges are not valid!

The RAN, ME'IRI, and others address this question. The Ran answers that although the Gemara itself expresses the logic mentioned above (that if one judge is valid, then certainly two are valid), this logic might apply only mid'Oraisa. It is possible that the Chachamim decreed that two judges (who are not experts) are not valid. The LIVYAS CHEN quotes the Gemara that says that even Rebbi Acha essentially requires three judges in order to ensure that at least one is an expert. When the Gemara states that Rebbi Acha is lenient and says that two judges are valid, that is only when there is absolute certainty that one of the two is an expert. The Livyas Chen explains that the Rambam is discussing a case in which there is no certainty that either of the two judges is an expert. In such a case, even Rebbi Acha would agree that two judges are not a valid Beis Din.

OPINIONS: The Gemara records an argument about the source of the requirement of three judges to judge a case. Rebbi Yoshiya says that the repetition of the word "Elohim" ("judges") in the verses teaches that three judges are required. Rebbi Yonasan says that we do not expound the first occasion of the mention of a word ("Ein Dorshin Techilos"), and thus we are left with only two words "Elohim," teaching that two judges constitute a Beis Din. However, since a Beis Din cannot have an even number of judges, we must add another judge, and thus the Torah teaches that three judges are required for a Beis Din.

The Gemara then says that Rebbi Yoshiya agrees that we do not derive anything from the first occasion of the word "Elohim." However, since the verse could have said simply "ha'Shofet" ("the judge") instead of using the less common word, "ha'Elohim," it indicates that we should count this word as well and expound it (even though normally we would not expound the first word). Rebbi Yonasan maintains that it is normal to use such an expression, and therefore there is no reason to count it because "Ein Dorshin Techilos."

What is the reason for this principle of "Ein Dorshin Techilos"? Why do we not expound the first mention of "Elohim"?

(a) RASHI explains that the reason why we do not expound the first occasion that a word appears in this case is because the first "ha'Elohim" is needed to teach that an expert judge may judge alone.

(b) TOSFOS argues that this cannot be the reason, because Rebbi Yoshiya later states that the Torah could have said "ha'Shofet," which would not have taught that an expert is fit to judge alone. Tosfos explains instead that "Ein Dorshin Techilos" means that we always need the first mention of a word in order to teach the actual law (in this case, that judges are necessary in the first place). After the basic law is taught, we can begin to expound laws from subsequent, extra words.

There seems to be an obvious answer to Tosfos' question on Rashi. Unlike Tosfos, Rashi maintains that Rebbi Yoshiya is also able to learn from "ha'Shofet" that an expert judge is necessary. It appears that Tosfos had an earlier edition of Rashi, the wording of which implied (as Tosfos states) that we would not have known the law of an expert from "ha'Shofet." The RAN understands this answer from the words of Rashi, although he is uncertain about how we know that "ha'Shofet" would also imply an expert. The Ran adds that according to Rashi, the question of whether or not we can derive the law of an expert judge is the basis of the argument between Rebbi Yoshiya and Rebbi Yonasan (assuming that they both maintain "Ein Dorshin Techilos").

The NETZIV (in MEROMEI SADEH) answers the Ran's uncertainty in Rashi. He says that "ha'Shofet" certainly can refer to an expert judge, as we find in the verse of Edim Zomemim, "v'Darshu ha'Shoftim Heitev" -- "The judges shall inquire well" (Devarim 19:18). This clearly indicates that "Shoftim" refers to experts.

This answer, however, raises another question. Why does Rebbi Yonasan argue with Rebbi Yoshiya and say that "Shofet" does not imply an expert? After all, the Ran says that this is the basis of their argument. Moreover, Tosfos maintains that "Shofet" does not imply an expert judge. How does Tosfos understand the verse with regard to Edim Zomemim?

Perhaps one may suggest an answer based on the Gemara in Rosh Hashanah (25b). The Gemara cites the verse that says that when a person has a Halachic question which requires a judge, he should go "to the Shofet who will be in those days" (Devarim 17:9). The Gemara asks, "Would one have thought that he should go to a judge who is not alive in his days?! Rather, the verse teaches that one should go willingly to the Shofet in his days and not say that the judges in the earlier days were better." The Gemara there clearly implies that a Shofet does not necessarily mean an expert, but rather it can refer to anyone who fills the position of Dayan even though he is not as competent as one would like him to be. (It is interesting to note that the verse there does not say that one should go to the "Elohim who will be in those days," but rather to the "Shofet.") Consequently, it is reasonable that there is an argument about whether "ha'Shofet" implies an expert judge or not. (Y. MONTROSE)

QUESTION: The Gemara discusses an argument between the Rabanan and Rebbi Yehudah. The Rabanan maintain that there were seventy-one judges in the Great Sanhedrin, while Rebbi Yehudah states that there were seventy. TOSFOS asks that Rebbi Yehudah seems to contradict himself. In Sukah (51b) he states that in Alexandria there were seventy-one golden vessels corresponding to the seventy-one judges of the Great Sanhedrin. Tosfos answers that Rebbi Yehudah agrees that there was an overseer over the Great Sanhedrin, just as Moshe Rabeinu oversaw the seventy judges.

The MAHARSHA has difficulty with this explanation. The Mishnah (2a) explicitly states that according to the Rabanan, Moshe Rabeinu oversaw the Sanhedrin, and he thus was the seventy-first judge. How, then, can Tosfos apply that view to Rebbi Yehudah, if Rebbi Yehudah argues with the Rabanan? The Gemara later (16b, 17a) says that Rebbi Yehudah maintains that although the Divine Presence guided the Beis Din through Moshe Rabeinu, Moshe Rabeinu was not included in the number of judges in the Sanhedrin. How is Tosfos' answer to be understood?

(a) The RASHASH answers that the way Tosfos understands the argument differs from the way the Maharsha understands it. The Rabanan maintain, as mentioned above, that Moshe Rabeinu was an integral part of the Beis Din and was included in the number of seventy-one. Moshe Rabeinu sat with the Sanhedrin and judged every matter with them. Rebbi Yehudah argues and maintains that Moshe Rabeinu sat with the Sanhedrin only for important matters, such as for the establishment of leap years, which may be done only with the consent of the Nasi. Hence, Moshe Rabeinu did serve in the capacity of overseeing the Beis Din, and the symbolism (in Sukah 51b) of a golden vessel representing his service is understood.

The Rashash, however, still finds a slight difficulty in the answer of the Gemara that Moshe Rabeinu only represented the Divine Presence, as the Gemara should have stated this explicitly.

(b) The MAHARATZ CHAYOS and the NETZIV (in MEROMEI SADEH) explain that Tosfos does not mean that Moshe was actually an overseer of the Sanhedrin. Rather, Tosfos means merely that there was a body of seventy judges which had a Nasi overseeing them. The expression Tosfos uses -- "Moshe was over them" -- does not refer literally to Moshe. It is just a way of saying that there was another elder who oversaw the Sanhedrin in his role as Nasi. Indeed, the BACH in Sukah changes the wording there to read that the vessels corresponded to the "seventy-one elders," removing the phrase "of the Great Sanhedrin." According to his Girsa, there obviously is no question on Rebbi Yehudah, for Moshe Rabeinu was definitely an elder even though he was not part of the Great Sanhedrin. (Y. MONTROSE)