Dinei hatumos v’haterharos maschilin min hagadol. Dinei nefashos maschilin min hatzad.
What is “min hatzad”? The mefarshim explain based on 4:3-4 that the members of the Sanhedrin were seated in a semi-circle according to their chachmah. The Rambam says (Hil. Sanhedrin 1:3) that in a beis din of twenty-three, for example, the greatest of the dayanim sits at one end of the semi-circle, while the least of the dayanim sits at the other end. The Tiferes Yisrael on our Mishnah disagrees and says that the greatest of the dayanim sits in the middle of the semi-circle with the lesser dayanim sitting both to his right and the left. The root of this machlokes meforshim is how they understand the Tosefta in Sanhedrin, which records both opinions.
According to either shitah, the Mishnah is teaching us that in dinei nefashos we ask the least prominent of the dayanim first. To explain why, the meforshim, based on the Gemara (36a), quote from Shemos 23 “Lo sa’aneh al riv.” “Riv” is written in the Torah chaser, without a yud. It can thus also be read as “rav”, which would mean that one should not respond to a master. The Torah is teaching us that it is forbidden for the smaller dayanim to argue with the av beis din or head dayan of any particular beis din (regarding dinei nefashos). Therefore, the smaller dayanim must share their opinion first. This is in fact how Rashi (18b) and the Rambam in the peirush hamishnayos understand this issur. The Tosfos Yom Tov says that it would seem that the intention of this issur is to show kavod towards the head dayan.
However, the Nimukei Yosef and other rishonim raise a number of problems with the aforementioned approach. As we know from Mishnah 5:4, if one of the talmidim have an argument that would vindicate the defendant they must speak up and not be quiet. Also, the rishonim (cited in Margaliyos Hayam) ask, if the av beis din asserts that the psak is a certain way and the entire Sanhedrin disagrees, they cannot argue? We must follow the majority as made clear in various mishnayos throughout the masechta and as the Torah clearly states. Thus, it cannot be that is forbidden to argue with the gadol hadayanim.
These rishonim, including Rashi on 36a, say that the pasuk above is teaching us a different lesson, which is that in dinei nefashos, a beis din must be very careful that no dayan feel scared to express his opinion. If the greatest dayan speaks first the other dayanim might be inhibited from putting forth a dissenting view. The Margaliyos Hayam brings down from these rishonim that the Torah’s command is really on the gadol hadayanim not to speak first.
This halacha that in dinei nefashos that we start from the smallest dayan is also relevant to Tisha B’av. As related in the Gemara in Gittin, R’ Zecharya ben Avkulosargued that nothing should be done to the korban that Bar Kamtza made into a ba’al mum and it should not be placed on the mizbeach and that no action should be taken against Bar Kamtza. The Gemarasay, it was the humility of R’ Zecharya ben Avkulosthat eventually caused the destruction of the Beis HaMikdash. The question is asked that what is the humility here? The Gra (I think) answers that R’ Zecharya ben Avkuloswas the head of the Sanhedrin. As we have learned, the halacha is that in dinei nefashos the head dayan should not speak first. Once R’ Zecharya ben Avkulos did speak the other members of the Sanhedrin remained silent.
She’yibaneh beis hamikdash bimheirah b’yameinu.
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