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Semicha and Sanhedrin Controversies of the 16th and 21st Centuries

By Rabbi Yirmiyahu Kaganoff

Posted on 08/16/20

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This article will be devoted to an explanation of the various halachic underpinnings of the Sanhedrin, including:


What are the roles and responsibilities of the Sanhedrin?


What exactly is semicha, and why is it such a central factor in the creation of the Sanhedrin?


What attempts have been made in the last hundreds of years to reconvene a Sanhedrin and reestablish semicha?


WHAT IS THE SANHEDRIN?


The Sanhedrin, also called the Beis Din Hagadol, is the final authority on all matters of halacha. Their interpretation of Torah she’be’al peh is authoritative.


Any halachic issue that is questionable and disputed by lower batei din is referred to the Beis Din Hagadol for a binding decision.


The Sanhedrin also fulfills several vital political and administrative roles. It appoints the Jewish king, as well as the judges who serve on the courts of the shevatim and the cities. Each shevet and each city was required to have a Beis Din of 23 that the Sanhedrin appoints. Thus, the Sanhedrin is not only the supreme halacha authority, but it is also, quite literally, the “power behind the throne,” “the power behind the courts,” – and, at the same time, the court of final appeal. It has the final say in all matters, both temporal and spiritual.


There are several other halachos that require the participation or agreement of the Sanhedrin, including a decision to wage war and expanding the halachic boundaries of the Beis HaMikdash or of Yerushalayim (Rambam, Hilchos Sanhedrin 5:1). (We are permitted to eat many holy items, including certain korbanos and maaser sheni, only in halachic Yerushalayim, which has nothing to do with its current municipal boundaries. Expanding the city requires a special procedure that includes participation of the Sanhedrin.)


In addition, several types of adjudication require the participation of the Sanhedrin, including prosecuting a false prophet, and the law of zakein mamrei, an elder who ruled against the Torah she’be’al peh (both taught in parshas Shoftim), the law of a city that went astray (ir hanidachas), the procedure of the and that of eglah arufah (Rambam, Hilchos Sanhedrin 5:1).


The Sanhedrin is also in charge of supervising the Jewish calendar through the appointing of a specially-designated committee. (In the absence of a Sanhedrin or Beis Din Hagadol, Hillel Hanasi established a permanent calendar over 1500 years ago, so that the calendar can continue to exist even though we no longer have a Sanhedrin.)


WHERE AND WHEN DOES THE SANHEDRIN MEET?


The Sanhedrin was open daily in its main headquarters inside the Beis HaMikdash, called the lishkas hagazis. When they are involved in litigation, the entire Sanhedrin, consisting of 71 members,is present. When not in session, there must still always be 23 members of the Sanhedrin in the lishkah.


WHO QUALIFIES TO BE IN THE SANHEDRIN?


There are many technical requirements that all members must meet, but as a basic requirement they must all be superior talmidei chachamim and yirei shamayim (G-d fearing individuals). In addition, all members of the Sanhedrin -- and indeed, of all the lower courts -- must also receive the special semicha that Moshe bestowed upon Yehoshua, authorizing him to rule on all areas of Jewish law.


DOESN’T EVERY RABBI HAVE SEMICHA?


There are several levels of semicha. The most basic semicha, called yoreh yoreh, authorizes the recipient to rule on matters of kashrus and similar areas. A more advanced level of semicha, called yodin yodin, authorizes its recipient to rule as a dayan on financial matters. A still higher level, no longer obtainable today, is called yatir bechoros, which authorizes its recipient to rule on whether a first-born animal is blemished and therefore inappropriate to offer as a korban (see Sanhedrin 5a). This semicha permits the firstborn animal to be slaughtered and eaten.


There was also a qualitatively different type of semicha that could be obtained from the time of Moshe Rabbeinu until the time of the Gemara. This semicha authorized the recipient to rule on capital and corporal cases (chayavei misas Beis Din and malkus) and to judge kenasos, penalties set by the Torah. Only a Beis Din consisting exclusively of dayanim ordained with this semicha may judge whether a person receives lashes or the death penalty for his actions.


In earlier days, each city and shevet had its own Beis Din of 23 judges, all of whom were possessors of the highest level of semicha. In addition, all 71 members of the Sanhedrin must have this form of semicha.


HOW MANY DAYANIM GIVE OUT SEMICHA?


A single judge who is himself a musmach may grant semicha to as many qualified people as he chooses, although the grantor must be accompanied by two other people, who need not be musmachim themselves. Dovid HaMelech (himself an expert judge and tremendous talmid chacham) once granted 30,000 semichos in one day (Rambam, Hilchos Sanhedrin, 4:7!! Semicha that was granted to someone who is not an expert in all areas of halacha is not valid (Meiri, Sanhedrin 14a).


This special semicha must be issued within Eretz Yisroel. Thus, even if a talmid chacham is highly qualified, he may not receive semicha unless the grantor of the semicha and the recipient are both in Eretz Yisroel (Sanhedrin 14a). For this reason, most of the Amora’im, the great talmidei chachamim of the times of the Gemara, never received this semicha, because they lived in Bavel, not in Eretz Yisroel.


THE STORY OF RAV YEHUDA BEN BAVA


The Gemara (Sanhedrin 13b) tells us the following fascinating story which took place during the extreme persecutions that followed the failure of the Bar Cochva revolt: The Roman Empire once decreed that issuing semicha was a serious crime, punishable by death for both the grantor and the recipient. Furthermore, they ruled that the town in which the semicha was issued would be destroyed, and the areas near it would be razed.


After the execution of Rabbi Akiva, Rabbi Yehudah ben Bava realized that he was one of the last musmachim (recipients of this special semicha) still alive. If he failed to grant semicha to some young scholars, the semicha would terminate with his own death. He therefore endangered himself and granted semicha to five surviving disciples of Rabbi Akiva: Rabbi Meir, Rabbi Shimon bar Yochai, Rabbi Yehudah ben Ila’i, Rabbi Yosi ben Chalafta, and Rabbi Elazar ben Shamua – basically, to an entire generation of Torah leadership. In order not to endanger anyone else, Rabbi Yehuda ben Bava brought them to a place that was midway between two major cities and between two mountains. Thus, for the Romans to fulfill their decree they would need to level two mountains.


Rabbi Yehudah ben Bava succeeded in his mission, although he paid for it with his life. Because of his supreme sacrifice, the semicha continued among the Jewish people for several more generations.


With the increased persecution of the Jews by the Romans, the Jewish population of Eretz Yisroel dwindled, and with time, ordination through this semicha ended. Thus, no one received the semicha that qualifies someone to judge capital, corporal, or kenasos cases, and this aspect of halachic life came to an end.


CAN SEMICHA BE REINSTITUTED?


The Rambam writes: “It appears to me that if all the chachamim in Eretz Yisroel agree to appoint dayanim and grant them semicha, they have the law of musmachim, and they can judge penalty cases and are authorized to grant semicha to others… a person who received semicha from someone who already has semicha does not require authorization from all of them – he may judge penalty cases for everyone, since he received semicha from Beis Din. However, this matter requires a final decision” (Rambam, Hilchos Sanhedrin 4:11).


Thus, the Rambam suggested a method whereby the semicha can be re-created. However, several issues need to be clarified before this project can be implemented:


1. Did the Rambam conclude that this is the halacha, or is it merely a suggestion he is conjecturing? Don’t his final words, “However, this matter requires a final decision,” imply that he was uncertain about his suggestion and that he deferred making a final decision regarding this issue?


2. Assuming, unlike our previous sentence, that the Rambam ruled definitely that semicha can be reinstituted, did he require, literally, all of the Chachamim in Eretz Yisroel to agree, or does a majority suffice? Must the rabbonim be assembled all in one place, or is it sufficient if they are aware of the process and grant their approval?


3. Is the Rambam’s opinion on this subject universally held? And if not, do we rule like him?


THE 16th CENTURY CONTROVERSY-- REINTRODUCING SEMICHA


After the Spanish expulsion, many Jews remained in Spain, practicing their Judaism in secret, while publicly appearing to be Christians. Thousands of these Marrano Jews, also often called by the Spanish term conversos or the Hebrew word, anusim, eventually escaped to areas where they could return to the religion of their fathers, yet they were haunted by the transgressions they had committed on Spanish soil. Many were concerned that they would never escape the specter of their more serious aveiros, many of which carried the punishment of kareis. Although they had become true ba’alei teshuvah, they lived in fear of their ultimate day of judgment, when they would have to provide a reckoning for their actions and face the serious consequences.


THE SOLUTION


The Mahari Beirav, Rav of Tzefas in the early sixteenth century, came up with a solution to the problem of these ba’alei teshuvah. He proposed the creation of batei din that could carry out the punishment of malkos, lashes, which releases a person from the punishment of kareis (Mishnah Makos 23a).


There was one serious problem with this proposal. In order to create batei din that can administer these punishments, one must have dayanim who have received a special semicha that can be traced to Moshe Rabbeinu. Since this semicha had terminated over a thousand years before, the Mahari Beirav needed a method of reintroducing the semicha.


TZEFAS, 5298 (1538)


In  5298 (1538), 25 gedolim of Tzefas, at the time the largest Torah community in Eretz Yisroel, granted semicha to the Mahari Beirav, based on the writings of the Rambam (Peirush Hamishnayos, Sanhedrin 1:3; Hilchos Sanhedrin 4:11). He then ordained four people with the new semicha, including Rav Yosef Karo, who had already written his monumental works Kesef Mishneh and Beis Yosef, and later authored the Shulchan Aruch, and Rav Moshe diTrani, the author of several major halacha works, including Beis Elokim, Kiryas Sefer, and Shu’t Mabit. Mahari Beirav also sent a semicha to the Rav of Yerushalayim, Rav Levi ibn Chaviv, known as the Maharalbach, who he assumed would be delighted to receive such a wonderful gift!


The Maharalbach was not happy with the gift andrefused to accept the semicha. He took strong issue with their granting semicha, for the following several reasons:


1. The Rambam’s closing words, “This matter requires a final decision,” shows that he was not fully decided on this halacha, and therefore it cannot be relied upon.


2. The Ramban (Sefer Hamitzvos, Aseh 153) disagrees with the Rambam, contending that semicha can not be reinstituted until Moshiach arrives. Thus, since the Rambam was uncertain about this halacha, and the Ramban was certain that there is no such thing, the halacha follows the Ramban.


3. Even if we assume that the Rambam meant this ruling to be definitive, the Tzefas rabbonim had not fulfilled the procedure correctly, since all the gedolim of Eretz Yisroel must be together in one synod. (This opinion is actually mentioned earlier by the Meiri, Sanhedrin 14a.)


Furthermore, the Maharalbach insisted that all the scholars must be involved in the active debate and that all must agree. He also contended that even if someone holds that a majority of gedolim is sufficient, the minority must be aware of the debate and participate in it. He further contended that creating such a synod after the fact would not help, since, once the Tzefas rabbonim had ordained the Mahari Beirav, they now have a bias in their ruling (noge’a bedin), which invalidates their opinion on the subject.


The Maharalbach proved his opinion, that the Rambam’s suggestion was not accepted as normative halacha, from the fact that there had been numerous opportunities for gedolei Yisroel to create semicha, and yet, they refrained from doing so. The Maharalbach concludes that semicha will not exist again until the arrival of Moshiach.


WHAT ABOUT THE MARRANOS?


As for the ba’alei teshuvah that would be left without release from their kareis, the Maharalbach pointed out that if they performed sincere teshuvah, they would be forgiven for their sins, no matter how severe they were. Although it is possible that they may suffer somewhat in this world for these aveiros, despite their teshuvah, they would receive no punishment for their aveiros in the next world (Makos 13b).


On the other hand, the Maharalbach pointed out that he did not understand how semicha could accomplish what Mahari Beirav wanted, anyway, since Beis Din cannot punish someone for violating the Torah, unless several requirements are met, including:


The sinner must receive a warning, immediately prior to his violating the commandment, telling him that he is sinning, explaining to him that what he is planning to do is wrong, and informing him what punishment he will receive if he sins. The sinner must acknowledge that he heard and understood the warning, and then perform the sin, anyway. Furthermore, Beis Din does not punish a sinner unless two adult male Jews witness the entire procedure and then testify in front of Beis Din. Clearly, none of these Marranos had received warning prior to performing the aveiros, and, therefore, they were not punishable with malkus in Beis Din. Thus, how would these ba’alei teshuvah receive the malkus they desire, even if dayanim musmachim exist?


We will continue this article next week.