At the end of the fifth perek we learn about a debate between Akavya ben Mehalalel and the Chachamim regarding whether mei Sotah41 can be administer to a convert or a freed maid-servant; R’ Akavya argued that it did not apply to these people. The Chachamim brought support for their position by bringing a precedent where Shema’ya and Avtalyon gave mei Sotah to a freed maid-servant. R’ Akavya dismissed this proof with the retort that “dugma hishkuha”. The Mishnah continues explaining that for this response Akavya was excommunicated.
What was he response and why was it received so badly? The common theme amongst the commentators is that he slighted the honour of these great sages – Shemaya and Avtalyon.
The Bartenura explains that R’ Akavya responded that indeed Shemaya and Avtalyon acted incorrectly. They did so, because they were “dugmatah” – also converts like her. Such a claim is a slight on they honour, both regarding their personal standing and in the accusation of their unjust behaviour.
The Ra’avad presents a less harsh explanation explaining that R’ Akavya construed that it was all a charade (“dugma”) and Shemaya and Avtalyon simply gave her plain water. Such a suggestion is still disrespectful since, were it true, they would have acted wrongly. If she was indeed guilty it could have resulted in people dismissing the power of mei Sotah having seen it take no affect in this case.
Returning to the Mishnah, R’ Yehuda responds: “Chas Ve’Shalom!” He continues explaining that R’ Akavya ben Mehalalel was never excommunicated for he was a man of the highest stature both in wisdom and fear of heaven. Instead he presented a different incident where the Chachamim responded with excommunication.
The Tosfot Yom Tov asks, why should R’ Akavya’s stature have any baring on this incident? Whether or not he was the greatest in the generation, if he acted improperly presumably the Beit Din of the time have the right to deal with him accordingly. No one gets special protection in the face of the law! The Tosfot Yom Tov present two answers both with different approaches.
The first approach explains that in truth, R’ Akavya did not do anything wrong. He simply explained that Shemaya and Avtalyon were putting on this display, using plain water that looked like mei Sotah, in order to frighten the maid-servant into admitting her sin. They however never gave her anything to drink. R’ Akavya perceived that Shemaya and Avtalyon’s approach was much like Shlomo HaMelech who famously threatened to slice the disputed child in half in order to reveal the true mother, even though he had no intention of implementing the threat.42 R’ Yehuda therefore argued that such a sterling personality like R’ Akavya would have never erred and slighted these sages owner and consequently was only arguing in the manner just described.
The second approach however explains that R’ Yehuda agrees that R’ Akavya degraded Shemaya and Avtalyon. Nonetheless, R’ Yehuda felt it was unfathomable that a Beit Din made up of people of a lesser standing could have executed such a devastating edict on him. The Tosfot Yom Tov explains that this understanding better suites the text of the Mishnah. R’ Yehuda did not exclaim “Chas Ve’Shalom that Akavya degraded” (which would have fit better with the first approach) but rather “Chas Ve’Shalom that Akavya was excommunicated”.43
This second approach presents us with a new understanding. Do not be mistaken, the original assumption that there is no special protection for anyone is still maintained. This however does not mean that we always have the ability or right to apply judgment in our earthly courts. Sometimes, the case itself is beyond our ability and is deferred to a “higher” court
41 This concept refers to the process under which a married-woman, who had been previously warned not to seclude with a particular man, was caught doing so, but it is not known whether she actually had an affair. Part of the process, if she did not admit to the sin, was the administering of the Sotah water, which would have a dire effect if she indeed had an affair. In this debate, R’ Akavya ben Mehalalel maintained that since the Torah introduces the laws of Sotah with “daber el bnei Yisrael”, it excludes converts and maidservants.
42 The Tosfot Yom Tov explains that the Tana Kama would have still understood that such conduct is still unwarranted because “shema yotziyu la’az al mei hamarim” and therefore such a suggestion would still be a slight on their owner.
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