3) WHO WAS THE NASI AND WHO WAS THE AV BEIS DIN
QUESTIONS: Rebbi Meir and the Chachamim dispute whether, generations earlier, Yehudah ben Tabai was the Nasi and Shimon ben Shetach the Av Beis Din, or vice versa. The Gemara cites a Beraisa as proof for the opinion that Yehudah ben Tabai was the Nasi. The Beraisa relates that a certain case came before Yehudah ben Tabai who ruled that a single Ed Zomem must be killed, and his ruling was carried out in practice. Shimon ben Shetach pointed out to him his tragic mistake -- Edim Zomemim are killed only when both witnesses are proven to be scheming, but not when only one of them is found to be an Ed Zomem. In remorse that he had put to death a single Ed Zomem, Yehudah ben Tabai accepted upon himself never again to issue a Halachic ruling except in the presence of Shimon ben Shetach.

The Gemara says that from this incident it is evident that Yehudah ben Tabai must have been the Nasi, a position invested with more authority than the Av Beis Din. Had Yehudah ben Tabai been the Av Beis Din, he would not have been able to rule on his own until now without Shimon ben Shetach's consent. It must be that Yehudah ben Tabai was the Nasi and Shimon ben Shetach the Av Beis Din.

The Gemara refutes this proof and says that it is possible that Yehudah ben Tabai indeed was the Av Beis Din and had less authority than Shimon ben Shetach. He never ruled in the presence of Shimon ben Shetach even before his oath. Rather, before the incident with the Ed Zomem, Yehudah ben Tabai "joined others" in ruling without Shimon ben Shetach's consent, and now he accepted upon himself never even "to join others" to rule without Shimon ben Shetach.

(a) The Gemara's refutation of the proof from the Beraisa is problematic. First, what difference did it make if Yehudah ben Tabai (as Av Beis Din) would join others? He still was not entitled to rule in the presence of the Nasi, Shimon ben Shetach, without permission. When the Gemara earlier says that if he had less authority than Shimon ben Shetach then he could not have ruled without Shimon ben Shetach, it means that he could not have even joined a Beis Din to rule without Shimon ben Shetach. What, then, did Yehudah ben Tabai gain by accepting upon himself never to join with others to rule without Shimon ben Shetach, if he could not join others to rule without him in the first place?

(b) RASHI explains that according to the Gemara's refutation of the proof, Shimon ben Shetach was not present (in the city) when Yehudah ben Tabai killed the Ed Zomem, because had he been present Yehudah ben Tabai would not have been allowed to rule since he had less authority. Why, then, does the Gemara not answer simply that his oath was that he would no longer rule when Shimon ben Shetach was out of town (so that he would never commit another tragic error)? By making such a commitment, he would correct the mistake he made by ruling while Shimon ben Shetach was absent.

ANSWERS:
(a) There are several ways to understand how Yehudah ben Tabai would have issued a Halachic ruling (before his oath) without Shimon ben Shetach and without joining others.

1. Although Yehudah ben Tabai had less authority than Shimon ben Shetach and could not rule without him, before his oath he would have judged with another Nasi other than Shimon ben Shetach (in the event that Shimon ben Shetach died or a new Nasi took his place). Alternatively, he would have ruled whenever he received Shimon ben Shetach's permission. After the incident with the Ed Zomem, he accepted upon himself never to rule without Shimon ben Shetach; if a new Nasi would be appointed, Yehudah ben Tabei would not issue any rulings with that Nasi. Alternatively, he would not rule even if he had permission from Shimon ben Shetach to rule without him.

2. TOSFOS explains that Yehudah ben Tabai accepted upon himself not to join the majority of Chachamim when their opinion differs from that of the Nasi, even when the Nasi is present.

(b) There are several reasons for why the Gemara does not say simply that Yehudah ben Tabai accepted upon himself to judge only when Shimon ben Shetach was in town.

1. The NETZIV explains that it is unreasonable to suggest that the Beis Din would be closed simply because the Nasi is out of town. (This answer is difficult to understand, because it seems obvious that other arrangements would be made for Beis Din to convene without its Av Beis Din (Yehudah ben Tabai) when the Nasi is out of town. For example, another Av Beis Din would be appointed in the interim.)

2. The Gemara means that not only did Yehudah ben Tabai accept upon himself not to judge even when Shimon ben Shetach is not present, but he even accepted upon himself not to join others in judgment when Shimon ben Shetach is present (for example, he accepted upon himself not to join a majority against Shimon ben Shetach).

This answer is also difficult to understand. How does the Gemara know that he accepted upon himself the additional oath not to join with others? In order for the Gemara to refute the proof that Yehudah ben Tabai was the Nasi, it would have sufficed to say that he accepted merely not to rule when Shimon ben Shetach was out of town.

Perhaps the Gemara understands that Yehudah ben Tabai intended to make this additional oath because he said, "I will judge only with Shimon ben Shetach." If he meant that he would not judge when Shimon ben Shetach was out of town, then he should have said, "I will not judge without Shimon ben Shetach." By saying, "I will judge only with Shimon ben Shetach," he implied that even when Shimon ben Shetach is in town, he would judge only in Shimon ben Shetach's presence. (M. Kornfeld)

3. The ME'IRI offers an entirely different approach to the Gemara's refutation of the proof that Yehudah ben Tabai was a Nasi. His approach answers both questions. The Gemara does not infer from Yehudah ben Tabai's words that he used to judge when Shimon ben Shetach was in town. Rather, it infers from his words what he accepted to do; he accepted to judge only when Shimon ben Shetach is present (in town), so that if he makes a mistake Shimon ben Shetach will correct him. The Gemara asks that if Shimon ben Shetach is in town, Yehudah ben Tabai may not judge at all because one is not permitted to issue a ruling in front of his Rebbi.

The Gemara answers that his oath was that he would judge only if Shimon ben Shetach is both in town and is sitting on the court (in which case it is permitted for the Talmid to issue a ruling in the presence of his Rebbi).

Apparently, the Me'iri's Girsa was that of the DIKDUKEI SOFRIM who adds a few words to the Gemara. According to his text, Yehudah ben Tabai accepted upon himself that he "will not join others [to judge] except with Shimon ben Shetach." That is, he accepted to judge only when joined by Shimon ben Shetach. His oath was that he would not convene a court when the Nasi is out of town. (Accordingly, the Gemara indeed gives the answer which we suggested (in question (b) above).)

(RASHI (DH u'Mai Kibel) clearly disagrees with the Me'iri's approach. Rashi writes that the proof is from what Yehudah ben Tabai used to do before his oath. However, the Dikdukei Sofrim points out that from the text of Rashi in the Ein Yakov it appears that these words were not written by Rashi, and thus Rashi indeed may have learned like the Me'iri.)