1) THE TRADITION OF A "GEZEIRAH SHAVAH"
QUESTION: The Gemara discusses the source for the Halachah that a false prophet, a "Navi Sheker," is judged for death by a court of seventy-one judges. Rebbi Yosi b'Rebbi Chanina learns that the source is a Gezeirah Shavah from the law of Zaken Mamrei, since the Torah mentions the concept of "Hazadah" with regard to both ("Asher Yazid" and "Asher Ya'aseh b'Zadon"). Just as the Zaken Mamrei is Chayav Misah only when he rebels against the ruling of the Sanhedrin of seventy-one judges, the Navi Sheker is judged by a court of seventy-one judges. The Gemara questions this source. The phrase "Asher Ya'aseh b'Zadon" is mentioned only with regard to the obligation to kill the Zaken Mamrei, and the law is that a Zaken Mamrei is judged for death by only twenty-three judges and not by seventy-one. Hence, there is no source that a Navi Sheker is to be judged by seventy-one; rather, he should be judged by twenty-three based on this Gezeirah Shavah.
Reish Lakish, therefore, says that the source is a different Gezeirah Shavah from the law of Zaken Mamrei. The word "Davar" is mentioned both with regard to the requirement to kill a Navi Sheker and with regard to the act of rebellion of the Zaken Mamrei (which must take place with a Beis Din of seventy-one judges).
The Gemara asks that if this is the source for the requirement to judge a Navi Sheker with seventy-one judges, then the other Gezeirah Shavah of "Hazadah" should teach *back* to Zaken Mamrei from Navi Sheker that a Zaken Mamrei must be judged for death by seventy-one judges (and not just by twenty-three)! The Gemara answers that the Tana of the Mishnah learns the Gezeirah Shavah of "Davar" but not the Gezeirah Shavah of "Hazadah."
Why does the Tana learn one Gezeirah Shavah and not the other?
ANSWER: RASHI explains that a Talmid is permitted to expound a Gezeirah Shavah only when that Gezeirah Shavah was passed down to him from his Rebbi. He must have a tradition to learn that Gezeirah Shavah. The Tana of the Mishnah here received a tradition only to expound the Gezeirah Shavah of "Davar" but not the Gezeirah Shavah of "Hazadah." The Tana could not learn a Gezeirah Shavah which he did not receive from his Rebbi.
What is the reasoning behind this rule? Why may a Talmid not learn a Gezeirah Shavah from his colleague, who learned it from *his* Rebbi? If his colleague has such a tradition from Har Sinai through his Rebbi, why may the Talmid of a different Rebbi not accept it?
TOSFOS in Shabbos (97a) asks this question. The Gemara there says that Rebbi Akiva learned a certain Gezeirah Shavah, while Rebbi Yehudah differed in opinion because he did not receive from his teachers a tradition to learn such a Gezeirah Shavah. Tosfos asks why does Rebbi Yehudah not receive the tradition for that Gezeirah Shavah from Rebbi Akiva? Tosfos answers that each Tana had a tradition of how many Gezeirah Shavahs are in the Torah. Since Rebbi Yehudah had already accounted for all of his Gezeirah Shavahs, he could not add another one to the list. Rebbi Akiva, on the other hand, either had one more Gezeirah Shavah in his number of Gezeirah Shavahs, or he did not have in his count a certain Gezeirah Shavah which Rebbi Yehudah had in his count. (See MAHARAM there.)
To further understand the intention of Tosfos, it is necessary to analyze the words of Tosfos in Sukah (11b, DH Lekichah). Tosfos there states that even though the Rabanan learn certain Halachos from a Gezeirah Shavah of "Kichah," they do not learn the Gezeirah Shavah, which Rebbi Yehudah there learns, of "Lekichah." What is Tosfos teaching that is not already known? The Gemara in many places teaches that not all of the Tana'im had the same traditions with regard to Gezeirah Shavahs!
It seems that Tosfos' intent is to teach that the process of handing down a Gezeirah Shavah from Rebbi to Talmid did not involve handing down an entire Derashah with the specific Halachos learned from the Gezeirah Shavah. Rather, what was passed down was that a specific terminology may be used for a Gezeirah Shavah. The Halachos for which that Gezeirah Shavah is to be used were *not* taught. Consequently, when a Talmid saw that the Torah uses such terminology in two places and it seems to indicate a connection, that Talmid would then derive a Halachah through the Gezeirah Shavah on his own. Tosfos points out that one should not think that these terminologies are flexible. Although the Rabanan learn a Gezeirah Shavah with the phrase "Kichah," they never received a tradition to learn the terminology "Lekichah" as a Gezeirah Shavah. Therefore, they cannot learn Rebbi Yehudah's Gezeirah Shavah (based on ARUCH LA'NER; see RASHASH for further analysis).
This also seems to be the intention of Tosfos in Shabbos. Each Tana had a tradition of how many terminologies one could use to learn a Gezeirah Shavah. Once they had this tradition, they could never add a different terminology.
(b) The MARGOLIYOS HA'YAM, however, questions the answer of Tosfos from the Gemara in Pesachim (66a). The Gemara there states that the Bnei Beseirah did not want to accept a Gezeirah Shavah from Hillel until he exclaimed that he had heard it directly from his teachers, Shemayah and Avtalyon. Why, though, did Hillel's exclamation change their minds? According to the explanation of Tosfos, the Bnei Beseirah should not have been able to accept the Gezeirah Shavah of Hillel if *they* did not have such a tradition.
The Margoliyos ha'Yam answers by quoting many early sources that teach that there is another type of Gezeirah Shavah. This other type is used when one is certain that something is true but does not have an explicit source (see NIMUKEI YOSEF to Bava Kama, beginning of Perek 8). Alternatively, it is a different type of Derashah which is in the format of a Gezeirah Shavah but is not actually a Gezeirah Shavah (HAFLA'AH). The Bnei Beseirah thought that Hillel's Gezeirah Shavah was this second type of Gezeirah Shavah. When he told them that it was a genuine, standard Gezeirah Shavah, they agreed to accept it. The Margoliyos ha'Yam suggests that this is the case in the Gemara here and in other Gemaras. One Tana does not accept a Gezeirah Shavah because he suspects that it might be the weaker form of Gezeirah Shavah which he does not have to accept. However, if he is told by the disputing Tana that his Rebbi explicitly taught it as a genuine Gezeirah Shavah (as in the incident with Hillel), then the Tana will accept it. (Y. MONTROSE)
2) ONE ABOVE ALL OTHERS
OPINIONS: The Beraisa states that a set of judges (Shoftim) and enforcers (Shotrim) must be appointed not only for all of the Jewish people and for every tribe, but for every city as well. Rebbi Yehudah states that "one is appointed over all of them, as it states 'Titen Lecha' (Devarim 16:18)." To what exactly does Rebbi Yehudah refer?
(a) RASHI states that Rebbi Yehudah refers to the Great Sanhedrin of seventy-one judges who are "appointed over all" of the other courts. The RAN explains further that the Great Sanhedrin is in charge of appointing all of the other courts. Rebbi Yehudah derives this from the fact that the word "Titen" is written in the singular form, implying a single body that is to oversee the appointments of all other courts. The Ran notes that according to Rashi, Rebbi Yehudah adds information to, and does not argue with, the Tana Kama. RABEINU YONAH concurs with Rashi.
(b) TOSFOS questions Rashi's explanation. When the Sifra quotes Rebbi Yehudah, his statement is not even associated with the Tana Kama's opinion that judges are to be appointed in every tribe and in every city, which implies that Rebbi Yehudah's statement is not related to the Tana Kama's.
Tosfos therefore quotes another opinion which explains that Rebbi Yehudah refers to the Nasi who oversees the Sanhedrin. This is also the opinion of the Ran himself.
(c) TOSFOS himself suggests that Rebbi Yehudah refers to an Av Beis Din (who is not included in the number of judges of the Sanhedrin) who is to be in charge of the Sanhedrin.
(d) The YAD RAMAH explains that Rebbi Yehudah means that there should be one Beis Din that serves as the chief Beis Din in charge of adjudicating the disputes that arise in all of the tribes. He also explains that Rebbi Yehudah means that the law requires only that there should be one primary, supreme court. It is, of course, a Mitzvah to establish more courts, but the Torah does not require their establishment. (Y. MONTROSE)