1) AN UNNECESSARY "GEZEIRAH SHAVAH"
QUESTION: The Beraisa (42b) derives from a Gezeirah Shavah (from the verse of Sereifas Parim) that court executions must take place at a distance of three Machanos away from the court. The Gemara here quotes Rav Papa who concludes that this Halachah can be derived from extra words in the verse, without a Gezeirah Shavah. Why, then, does the Tana quote a Gezeirah Shavah? The Gemara answers that "Ilu Lo Ne'emar, Ka'amar" -- had it not been for the extra word in the verse, the law would have been derived from the Gezeirah Shavah, but now that there is an extra word in the verse, the Gezeirah Shavah is not necessary.
A similar statement appears in the Gemara in Bava Metzia (61a). The Gemara in Bava Metzia asks that if a verse teaches the law, then why is a Gezeirah Shavah necessary? The Gemara answers that the Gezeirah Shavah is needed to teach a different law. The Gemara here, however, implies that once the verse teaches the law, the Gezeirah Shavah is superfluous and indeed there actually is no Gezeirah Shavah.
This is problematic. How can the Gemara say that there is no Gezeirah Shavah? The Gemara in a number of places (Pesachim 66a, Nidah 19b, and see Rashi to Sanhedrin 16a, DH Davar Davar) states that a Tana cannot expound a Gezeirah Shavah unless it has been handed down to him from his teacher through the Mesorah as a Halachah l'Moshe mi'Sinai. Why, then, does the Beraisa say that had it not been for the verse, there "would have been" a Gezeirah Shavah to teach the law? The Gemara concludes that there is no Gezeirah Shavah, and thus there is no Mesorah to expound these words as a Gezeirah Shavah! (MARGOLIYOS HA'YAM)
(a) The RAMBAN (in the introduction to Sefer ha'Mitzvos, Shoresh 2) writes that it is clear that a Gezeirah Shavah is not handed down with all of its details (such as what Halachah is derived from what other Halachah), because if a Gezeirah Shavah includes all of its details, then it would not be considered one of the "Midos sheha'Torah Nidreshes ba'Hen." These "Midos" are methods, taught to Moshe Rabeinu, for expounding the Torah. If a Gezeirah Shavah is not a method that the Chachamim use but rather it is a tradition that teaches all of the details of the Halachah that is derived and how it is derived, then it is not a method for expounding the Torah. Rather, it must be that the Mesorah that was passed down is comprised of a general list which the Chachamim were to apply as they saw fit. The Ramban explains that the list includes two possibilities. The first possibility is a Mesorah of words which are meant to be used for a Gezeirah Shavah, without the specific application of how the Gezeirah Shavah with these words is to be applied. The second possibility is a Mesorah that gives a list of Halachos and says that these Halachos are derived through a Gezeirah Shavah, but it does not teach which words are used for that Gezeirah Shavah, or which Halachos the Gezeirah Shavah is meant to teach. This view seems to be accepted by the Rishonim (see Tosfos to Sukah 11b, DH Lekichah, and Tosfos to Shabbos 131b, DH Salka Daitach Amina, according to Maharam and Maharsha; see also Ramban and Rishonim, cited by the Shitah Mekubetzes to Bava Metzia 87b on the words of Rashi DH Asya). Here, too, perhaps the Gezeirah Shavah of "mi'Chutz la'Machaneh" is not used to teach the Halachah of the Mishnah, but it is used in other verses to teach other Halachos (none of the sources available to us mention exactly how this Gezeirah Shavah is actually used).
(b) The Yerushalmi in Pesachim (6:1) writes that one is permitted to expound a Gezeirah Shavah without a Mesorah to do so when one's purpose is to support a Halachah that one received through the Mesorah (but for which one has no source). Hence, if a Tana or Amora has a Mesorah that a certain Halachah is true, then he may expound a Gezeirah Shavah as a source for the Halachah. Since he knows that the Halachah is true because he has a Mesorah from his teacher or he knows that it is a Halachah l'Moshe mi'Sinai, he may bring textual support from a Gezeirah Shavah that he conceives.
The Gemara here may mean to say that the Halachah that the execution must be performed outside of the city was received through the Mesorah, and therefore a Gezeirah Shavah could have been designed in order to establish textual basis for the Halachah had there been no extra word in the verse to teach it.
(c) In a number of places, what the Chachamim refer to as a "Gezeirah Shavah" is not actually a Gezeirah Shavah which they received through the Mesorah, but it is a Binyan Av. On those occasions, when the Gemara uses the term "Gezeirah Shavah," it means simply that a certain Halachah is found in a similar context and therefore it is logical to apply it in this context as well. (See Rashi to Beitzah 12b, DH Gezeirah Shavah.)
There is another situation in which the term "Gezeirah Shavah" is used to refer to something which is not actually a Gezeirah Shavah. When the meaning of a word in the Torah is not fully known, the Gemara often derives its meaning from another context in which the word is used (and its meaning there is clear). The Gemara refers to this as a "Gezeirah Shavah," when it really is just a "Giluy Milsa" ("clarification of the matter") through which the meaning of a word is clarified based on its usage elsewhere. The Rishonim discuss this in numerous places (see Ramban and Rishonim to Bava Metzia 87b, Tosfos to Erchin 15a, DH Havu, and to Kidushin 20b, DH Ge'ulaso, and to Shabbos 131b, DH Salka Daitach Amina, according to the Maharam Shif; see also Margoliyos ha'Yam, Sanhedrin 16:7). This seems to be the intention of the Gemara in Nidah (19b, in its explanation of the view of Rebbi Meir), and this is the intention of the Gemara in Shabbos (96b, in its explanation of the view of Rebbi Akiva, according to the ARUCH, Erech "Gezeirah"). The Gemara here might be using the term "Gezeirah Shavah" to refer to a Giluy Milsa that the words "mi'Chutz la'Machaneh" mean outside of three Machanos, and that is why it was not necessary to receive it as a Mesorah from one's teacher.
(d) The MARGOLIYOS HA'YAM cites the IMREI HA'TZVI who suggests that perhaps the Gezeirah Shavah is being used, in practice, in the very context of the Beraisa (to teach that executions are to be performed outside of the city). When the Gemara says that the Gezeirah Shavah is no longer necessary, it means that it is not necessary to learn from a Gezeirah Shavah that the execution of a Megadef (blasphemer) is done outside of the city (because the verse in which this Halachah is taught is written with regard to the Megadef). However, there is no source to teach that the death penalty for other transgressions must be performed outside of the city. Rather, this is learned from the Gezeirah Shavah of "mi'Chutz la'Machaneh." Although "mi'Chutz la'Machaneh" ostensibly refers to a Megadef, since the Gezeirah Shavah is not needed for Megadef, the rule of "Im Eino Inyan..." applies. This rule teaches that when a verse is not needed to teach a Halachah for one matter, it may be used to teach a Halachah for another matter. Accordingly, the Gezeirah Shavah teaches that other forms of executions are to be performed outside of Beis Din.
2) TAKING INTO CONSIDERATION THE ARGUMENTS OF A "TALMID" WHO DIED
QUESTION: The Gemara teaches that if one of the Talmidim in the Beis Din finds a way to exonerate the defendant, and then that Talmid dies before the case is concluded, he is viewed as though he is still alive and standing in his place.
What does this mean? The Talmid is not a member of the court; he merely sits before the court. Why should his death hold up the vote of the members of the court? If the Beraisa means merely that Beis Din continues to take into consideration the Talmid's arguments after his death, then why does the Beraisa need to teach that the Talmid is considered as though he is still alive? Why would Beis Din reject his arguments just because he died?
Moreover, what is the Gemara's question in the case of a Talmid who said that he has a way to exonerate the defendant and then he became mute and was unable to present his argument? If he never presented his argument, on what basis should Beis Din exonerate the defendant?
(a) The RAMBAN (32a) and CHIDUSHEI HA'RAN (33b) cite some who explain that the Beraisa means that Beis Din must exempt the defendant if the Talmid dies, because the Talmid is viewed as though he is still alive and arguing, and had he continued to argue perhaps he would have convinced the judges to accept his arguments.
The Ramban rejects this explanation for a number of reasons. How is it possible that when the Talmid is alive and is presenting his argument, Beis Din ignores him since he is not one of the judges, but when he dies he is given more authority, to the extent that Beis Din ends the case because of his argument? Moreover, why does the Beraisa say that the Talmid is viewed as though he is still alive? The Beraisa should say simply that Beis Din exempts the defendant. Finally, this approach conflicts with the Gemara earlier (34a) which quotes the Beraisa about a Talmid who died after presenting his arguments. The Gemara there implies that the Talmid's words are taken into account for the Gemar Din and not only for the pre-final arguments.
(b) The RAMBAN explains that the Talmid's view is taken into consideration when Beis Din counts the number of judges who find the defendant innocent. That is, when a Talmid presents an argument to exonerate the defendant, as the Mishnah (32a) allows him to do, he not only may present a view but he may also vote on the matter as well. If the Talmid dies, his vote is accepted and counted even though he is not there to present it. The Ramban points out that this also seems to be the opinion of Rashi (34a, DH Ro'in Oso) and the Rambam (Hilchos Sanhedrin 10:8).
The question of the Gemara in the case of a Talmid who becomes mute is whether or not Beis Din counts the Talmid's vote when he says that he has a way to exonerate the defendant, but he becomes mute before he has a chance to present his reasoning.
The Ramban adds that since the Mishnah (32a) says that in cases of monetary matters (Dinei Mamonos) a Talmid may present his view either to exempt or to obligate the defendant, it seems that in monetary matters a Talmid also may join the court and vote by presenting his view either to exempt or to obligate. The Gemara (33b) teaches that according to Rebbi Yosi b'Rebbi Yehudah, in cases of Dinei Nefashos, a witness may present his view to exonerate the defendant. Does this mean that the witness can become one of the judges and vote on the matter as well? There is a rule that "Ein Ed Na'aseh Dayan," a witness in the case cannot serve as a judge, and thus the witness should not be able to vote on the matter. The Ramban suggests that perhaps the witness may vote, and the rule of "Ein Ed Na'aseh Dayan" applies only when the Beis Din does not already have the requisite number of judges to judge the case. However, the Ramban cites the Yerushalmi that rules that a witness may not vote (even according to Rebbi Yosi b'Rebbi Yehudah); this is also the view of the Chidushei ha'Ran. When the Mishnah (32a) says that the defendant himself may present a defense on his own behalf, the Ramban explains that this part of the Mishnah certainly does not mean that he may vote on behalf of himself.
However, the RAMBAM (Hilchos Sanhedrin 19:8) goes further than the Ramban and writes that even the defendant may vote in court to exonerate himself if he presents an argument in his own defense.
According to the Ramban, it seems that outsiders (Talmidim) can override the members of the court and exonerate the defendant by presenting arguments and joining the vote.
The Ran questions the Ramban's logic. How can a Talmid's vote be accepted in cases of Dinei Mamonos? After all, the Gemara (23a) teaches that the defendant in a case of Dinei Mamonos has the right to say that he does not want to be judged by that court and he may choose a different court. It must be that with regard to Dinei Mamonos, the Talmid's vote is accepted only when the litigants do not reject him.
(c) The CHIDUSHEI HA'RAN (33a) limits the application of the Ramban's ruling that a Talmid may vote. The Ran explains that the Talmid may vote only when the Beis Din is undecided (for example, when twelve judges vote to incriminate the defendant and eleven vote to exonerate him, or when one judge says, "I do not know"). In such a case, instead of adding more judges to the court, Beis Din accepts the vote of the Talmid. However, when the members of the Beis Din pass a ruling on their own, they do not allow outsiders to interject and overrule the judges themselves.
(d) RASHI here (DH Mahu) explains that the Gemara's question about the Talmid who lost his speech is not whether or not Beis Din counts his vote, but whether or not Beis Din accepts his declaration and believes him that he has strong arguments that may affect the outcome of the case, such that Beis Din must adjourn the court, bring new judges, and judge the case again. (It is assumed that one of the new judges will come up with the argument that the Talmid wanted to present.)
If Rashi understands the Gemara the way the Ramban does (that Beis Din accepts the vote of the Talmid who presents his view), then why does he not explain the Gemara's question accordingly, that the Gemara's question is whether or not Beis Din accepts the vote of the Talmid who merely claimed that he had an argument to present (but did not have a chance to present it)? Moreover, why does the Gemara compare the case of the Talmid who became mute to the case of the Talmid who actually said his argument and then died, if the Talmid who said his argument is counted in the vote, while an entirely different Halachah applies in the case of the Talmid who merely announced that he had an argument -- he causes the court to adjourn? How can the Gemara compare the two cases and say that the Talmid who made an announcement should be included in the law of the Beraisa which discusses a Talmid who presented his argument? The Ramban (32a) and the Ran (here) ask this question and suggest somewhat forced answers.
Perhaps Rashi understands that the two Sugyos (here and on 34a) have different ways of understanding the Beraisa about the Talmid who died. It is clear that the Gemara earlier (34a) understands that the Talmid's vote is counted in the Gemar Din, as the Ramban and Ran prove from the Sugya there. Perhaps the Sugya there understands that the word "Talmid" does not refer to a Talmid who sits before the court, since the vote of such a Talmid cannot be included in the count (unlike the Ramban's explanation). Rather, the Sugya there understands that the word "Talmid" refers to a younger, junior member of the court. If an older, senior member presents his view and dies, then Beis Din adjourns the case because it is assumed that he would have argued so effectively that he would have convinced the others. However, if a younger member dies, then Beis Din merely counts his vote and does not assume that he would have convinced the others (and thus there is no reason to adjourn the case).
The Gemara here, in contrast, understands the Beraisa differently. According to the way that the Gemara earlier understands it, there is no basis for the question about what the Halachah would be when the Talmid says that he has an argument to present but he does not have a chance to present it before he becomes mute. Perhaps his unexpressed argument was based on an error, and had he presented it to the other judges he would have withdrawn it, and therefore Beis Din certainly should not take his vote into account. Rather, the Gemara's question must be whether Beis Din adjourns the case because of the Talmid's announcement, on the grounds that there may be a new argument that the court was not aware of. The Gemara wants to prove the Halachah from the Beraisa which discusses a Talmid who presented an argument and then died, and rules that he is viewed as though he is alive. The Gemara here understands that the Beraisa which discusses a Talmid who died does not allow the Talmid to vote, because it interprets the word "Talmid" literally to mean a Talmid who sits before the judges and who is not a member of the court. Consequently, the Beraisa must mean that Beis Din accepts the words of the Talmid as grounds to adjourn the case, as Rashi implies (DH Tiba'i Lach). The Ramban cites support for this view from the Yerushalmi (Sanhedrin 6:1).
As mentioned earlier (in (a) above), the Ramban rejects this understanding of the Beraisa because the Beraisa should have said simply that the defendant is exempt. Rashi, however, answers this question by saying that Beis Din does not exempt the defendant, but rather a new court convenes to judge the case. The Ramban also asks how can Beis Din give more authority to the Talmid after he is dead than when he is alive. This also is not problematic, because there is a rule that "Ein Meishivin Es ha'Ari l'Achar Misah" -- when a person presents an argument and then dies, we cannot assume that we know better because we thought of a refutation to his argument, since he is no longer here to respond to that refutation.
3) COMMUNAL RESPONSIBILITY FOR THE SIN OF THE INDIVIDUAL
QUESTION: The Gemara relates that the Jewish people were punished for the sin of Achan because they had accepted "Arvus" -- responsibility for each other -- upon their entry into Eretz Yisrael. That is why the Jewish people were not punished when Achan violated the Cherem two (or four) times before they entered Eretz Yisrael. They were punished only for Achan's violation of the Cherem of Yericho which occurred after they entered Eretz Yisrael.
Why was the Jewish people not accountable for Achan's earlier transgressions? When the Jewish people entered Eretz Yisrael they became accountable for each other, and thus if Achan himself was deserving of punishment for his earlier transgressions, then they should also be deserving of punishment for those transgressions! (ARUCH LA'NER)
(a) The ARUCH LA'NER explains that the battle against Yericho occurred before the Jewish people accepted Arvus at Har Gerizim. The Gemara (44a) teaches that Har Gerizim and Har Eval are sixty Mil away from the Jordan River, and thus the Jewish people probably arrived there only after much traveling. Yericho, in contrast, is much closer to the Jordan, and thus the battle against Yericho most likely occurred before they reached Har Gerizim.
However, the Gemara in Sotah (33b and 36a) implies that the events of Har Gerizim and Har Eval occurred immediately after they crossed the Jordan River. Even if they were sixty Mil away, the Gemara says that through a miracle they were able to travel from the Jordan to Har Gerizim and back to Yericho near the river in a single day. (TOSFOS (33b, DH Mul) cites an opinion that the Jewish people accepted Arvus only fourteen years after they entered the land. However, according to that opinion, the battle against Ai also occurred before they accepted Arvus.)
(b) The Aruch la'Ner suggests a second approach. The Jewish people were punished only for sins (Nistaros) that were committed after they accepted Arvus, but not for sins committed before they accepted Arvus. The logic behind this is that Arvus, group responsibility, does not mean that the entire community shares punishment for the sin of an individual. Rather, it means that the entire community shares the sin of the individual and are therefore held responsible like the one who sinned. Thus, the people are held accountable only for those sins committed after Arvus was accepted.