1) THE HUMILITY OF REBBI
QUESTION: The Mishnah (32a) states that in cases of monetary matters and cases of questions of Tum'ah and Taharah, the first judge to present his argument must be the greatest one present. The Gemara asks why the Beis Din of Rebbi did not follow this practice, as Rav attested that he spoke first in Rebbi's Beis Din in cases of monetary matters. The Gemara answers that in the Beis Din of Rebbi, all judgments started in such a fashion. RASHI explains (as does TOSFOS in Gitin) that Rebbi was exceedingly humble and preferred not to speak first.
Rashi in Gitin (59a) apparently contradicts his explanation here. In Gitin, Rashi explains that Rebbi's conduct was based on Rebbi's view that the verse, "Lo Sa'aneh Al Riv" (Shemos 23:2) -- which teaches that one should not argue with a greater judge (based on the spelling of the word "Riv" as "Rav" in the verse) -- also applies to monetary matters. Why does Rashi give a different explanation for why Rebbi did not speak up first in monetary matters judged in his court?
ANSWER: The ARUCH LA'NER explains the statements of Rashi. Rashi in Gitin gives two opinions with regard to the status of Rav in the Beis Din of Rebbi. The first opinion says that he was an average member of the Beis Din. Rashi then writes, "And I have heard that he was the smallest in stature." If Rashi here in Sanhedrin follows the second opinion that he writes in Gitin, then he cannot say that Rebbi's conduct was due to his modesty. Although one may forgo his own honor out of modesty, one may not forgo the honor of others! If Rebbi told Rav to be the first one to speak in Beis Din, and Rav was the smallest in stature, then Rebbi was slighting the honor of every other judge on the court by having Rav speak up first. Therefore, Rashi in Gitin explains that the reason why Rebbi instructed Rav to speak first was because of the Derashah from the verse of "Lo Sa'aneh."
In contrast, Rashi here in Sanhedrin explains according to the opinion that Rav was an average (or above average) member of the Beis Din. Accordingly, having Rav speak first would not fulfill the Derashah of "Lo Sa'aneh Al Rav," because the younger members of the Beis Din still would be afraid to disagree with a senior member (i.e. Rav) of Beis Din. Therefore, it must be that Rebbi instructed Rav to speak first out of his humility.
Why, though, was Rebbi permitted to act in such a way? The Halachah states that a Nasi is not permitted to forfeit his honor even out of humility. While humility certainly is a noble trait, if acting in a humble way will conflict with the Halachah, one must act in accordance with the Halachah! How could Rebbi forgo his honor due to his humility?
The KOS HA'YESHU'OS answers that the reason why a Nasi is not permitted to forgo his honor is so that no one will rise up and challenge his authority, and create dissension and conflict among the people. When, however, it is clear and obvious to the entire nation that one person is greater than everyone else, there is no reason to insist that the great person not forgo his honor out of humility. Since Rebbi was universally recognized as the greatest sage and leader of the generation, he was entitled to forgo his honor and let others speak before him.
The Kos ha'Yeshu'os points out that this is why the Gemara -- after it answers that in the Beis Din of Rebbi all judgments started with the arguments of the younger judges -- adds the statement that Rebbi was similar to Moshe Rabeinu in that a single person possessed unequaled Torah knowledge and leadership. (The simple reason why the Gemara records this statement here is that both statements were said by the same person.) The Gemara is teaching that Rebbi was permitted to forgo his honor (and let lesser judges speak first) because of his unrivaled greatness.
Why, though, does the Gemara add that after Rebbi there was no one like him who served as a leader to the Jewish people in both Torah scholarship and national leadership until Rav Ashi? What is the significance in that these three great sages merited unequaled Torah knowledge and leadership?
The TORAS CHAIM points out that the Gemara is teaching the unique qualities of the people who redacted or conveyed the three most fundamental and basic treatises of Torah: the Chumash, the Mishnah, and the Gemara. The Gemara is teaching that just as Moshe Rabeinu was the universally accepted leader of the Jews who received the Torah at Sinai on their behalf, both Rebbi and Rav Ashi possessed the resources and powers to assemble all of the scholars of their time in order to compile the Mishnah and Gemara, respectively. This shows that they had absolute mastery of the entirety of Torah and worldly wisdom. Consequently, if something was excluded from the Mishnah or Gemara, one may assume that it was not due to lack of knowledge but rather because it was deemed not important enough to be included. (Y. MONTROSE)
2) CAN A CONVERT BE A "DAYAN"
QUESTION: The Gemara infers from the statement of the Mishnah (32a), "ha'Kol Kesherim la'Dun" -- "everyone is qualified to judge," that there is a person who may serve as a judge even though one would have thought that he may not serve. The Gemara suggests that the Mishnah refers to a Mamzer, but it rejects this suggestion because a different Mishnah (Nidah 59b) already teaches that a Mamzer may serve as a judge for monetary matters. The Gemara concludes that the Mishnah teaches that a Ger, a convert, may serve as a judge.
The Rishonim ask that the Gemara elsewhere clearly implies that a Ger may not serve as a judge. The Gemara in Yevamos (45b) relates that Rava appointed Rav Mari bar Rachel to a position of authority because his mother was Jewish. This implies that had his mother not been Jewish, he would not have been suitable for such a position because he would have been a Ger. Moreover, the Gemara later in Yevamos (102a) states that a Ger is permitted to judge his fellow Ger, which implies that he may not judge any other Jew. How are these Gemaras to be reconciled?
(a) RASHI explains that the Gemara here is discussing monetary matters. A Ger is permitted to judge monetary matters but not matters of Dinei Nefashos, cases of corporal punishment. If his mother was Jewish, he may judge even cases of Dinei Nefashos. The Gemara in Yevamos (102a) refers to cases of Dinei Nefashos when it says that a Ger may judge only a fellow Ger.
The RAN questions Rashi's explanation from the Gemara in Sotah (41b). The Gemara there states that Agripas (Agrippa, grandson of Herod; he was the last king of Yisrael, and he was a pious and benevolent king) wept when he read that a genuine Jewish king must originate "mi'Kerev Achecha" ("from among your brothers") and cannot be a Ger as the verse states, "From among your brothers you shall set over yourself a king; you may not put over you a foreigner who is not your brother" (Devarim 17:15). The people consoled him by saying, "Do not fear, you are our brother." The Gemara states that at that moment it was decreed in heaven that they should be punished. According to Rashi, why should they be punished? The people were correct, since Agripas' mother was Jewish!
Rashi there explains that the reason why they were punished was not because Agripas was a Ger whose mother was not Jewish, but because his father was a slave and therefore he was ineligible to sit on the throne.
The Ran argues with this explanation and says that praising someone inappropriately (but not in violation of the Torah) is not a reason to punish the people with destruction. The Ran therefore suggests a different reason for why the people were punished for praising Agripas. He explains that even though a person born to a Jewish mother is considered Jewish, there is a stricter standard for a king. In order to be a king, one's father must be Jewish as well. The Ran cites proof for this assertion from the Tosefta. He adds that this is also apparent from the verse that requires a king to be "from among your brothers," but with regard to other positions of authority the Torah states merely not to appoint a "foreigner."
The Ran questions Rashi's explanation -- that a Ger may judge another Ger even for Dinei Nefashos -- from the Gemara that says that the judges on a court of twenty-three who judge cases of Dinei Nefashos must be free of any familial blemish, which excludes a Ger. The Ran suggests that perhaps when the entire court is comprised of twenty-three Gerim, they may judge their fellow Ger in a case of Dinei Nefashos.
(b) The Ran quotes RABEINU DAVID who answers that when the Gemara says that a Ger may serve as a judge (which implies even for an ordinary Jew), it refers to serving as a judge only on occasion and not holding a permanent position. In contrast, the Gemara in Yevamos (45b), which says that one may be appointed to a position of authority as long as his mother is Jewish, refers to an appointment to an established, permanent position. (When the Gemara in Yevamos (102a) says that a Ger may be appointed to judge another Ger, it means that a Ger may be appointed to a permanent position with regard to judging other Gerim.)
(c) TOSFOS explains that when the Gemara here says that a Ger may serve as a judge, it means that he may judge his fellow Ger in monetary matters, and it is consistent with the Gemara in Yevamos. According to Tosfos, a Ger is never allowed to judge matters of life and death. The RIF, RAV ACHAI GA'ON, and the RASHBA concur with Tosfos.
(d) The RIVA suggests that the Gemara's statement in Yevamos, that a Ger may not be appointed as a judge, applies only when there are greater scholars among the people. When, however, a Ger is the greatest Halachic authority, he is allowed to be a judge and he may judge any type of case, even cases of Dinei Nefashos. The Riva proves this from the fact that Shemayah and Avtalyon were appointed as the Nasi and Av Beis Din, respectively, even though they were converts. (The TOSFOS YOM TOV in Avos (1:10) refutes this proof. He quotes the MAHARAL who says that Shemayah and Avtalyon were not actually converts themselves, but rather they came from a group of people who were descended from ancestors who converted.) (Y. MONTROSE)