Rambam - 3 Chapters a Day

Although the mitzvah per se applies only with regard to cases involving capital punishment, the prohibition applies in all cases, even with regard to matters of financial law. For this reason, it is not one of the distinctions between cases involving capital punishment and those involving financial law mentioned in the following chapter (Minchat Chinuch, mitzvah 77).

Sefer HaMitzvot (negative commandment 283) and Sefer HaChinuch (mitzvah 77) count this as one of the 613 mitzvot of the Torah. Significantly, when listing the mitzvot at the beginning of this section, the Rambam mentions only the dimension of the prohibition described in the following halachah.
With regard to that dimension of the mitzvah, the Ra’avad (in his gloss to the listing of the mitzvot at the beginning of the Mishneh Torah) objects, explaining that since the judge may ultimately change his mind, the fact that he cannot reverse his position in the debate is not sufficient to be considered as a mitzvah.

Tosefta, Sanhedrin 3:4; Jerusalem Talmud, Sanhedrin 4:7; Mechilta d’Rabbi Yishmael to the above verse.

In the Torah, the word riv, translated as “dispute,” is written in a short form, lacking a yud. This enables it to be read as rav, “great one.” According to that meaning, the verse could be interpreted “Do not respond to the great one,” i.e., do not follow his thinking blindly. Instead, weigh the matter yourself and arrive at a decision. See Halachah 6.
Alternatively, rav can be interpreted as “the majority.” In that vein, the intent of the prohibition is that if a judge sees the majority leaning in a particular direction, he should not follow without making his own decision independently (Sefer HaMitzvot, loc. cit.).

In this context, the verse could be interpreted: “Do not go against your [first] inclination in a dispute” (Radbaz).

I.e., if a judge offered a rationale for acquittal, he may ultimately decide that he made an error and hence, reverse his initial position. He may not, however, voice this concern in the debate. This measure - and the others which follow in this chapter - was instituted by the Torah as a safeguard for the rights of a defendant.
The rationale for this prohibition can be explained as follows: Since the judge cannot retract his initial opinion in the debate, even if he erred, he will seek other - and this time, more correct - rationales to support his initial concept and exonerate him [Rashi (Sanhedrin 32a)].

I.e., one of the scholars who sit before the judges (see Chapter 1, Halachah 7). As mentioned in Halachah 8, even though these scholars are not judges of the court, if one of them advances a rationale that could be used to acquit the defendant, he is included as a judge.

The Kessef Mishneh states that if, however, a judge advances an opinion holding the defendant liable and then dies, another judge is appointed before the vote is taken.

I.e., even though he has already died, when the opinions are tallied, his vote to acquit the defendant is counted.

Significantly, Sanhedrin 43a, the Rambam’s source, states this concept with regard to “one of the scholars,” and not one of the judges.

Although we desire to rule leniently and offer the defendant the maximum opportunity for acquittal, since the judge did not state his rationale, he is ignored.
It would appear that if the judge could write out his opinion, that would be significant and he would be included in the reckoning (Kin’at Eliyahu).

The intent is that the Torah uses only one prooftext to teach a rationale, and not two. Therefore if two judges each cite a different prooftext, one of them is making an error (Kessef Mishneh). See also Chapter 12, Halachah 3, where the Rambam mentions this concept.
Rav Moshe Cohen and the Siftei Cohen 25:19 protest the use of the word “even,” for it implies that certainly if they base their ruling on the same prooftext, they are counted as one. This would imply that each judge must come up with an independent rationale. That is illogical. If one judges says: “So-and-so” should be executed, because he violated the commandment: ‘Do not kill,’” there is no need for the other judges to find different rationales.

As mentioned in Chapter 11, Halachah 4, this and the principles mentioned in the following halachot also apply with regard to cases involving convictions for lashes and for exile.

As is the practice with regard to other judgments. See Chapter 11, Halachah 6.

As Chapter 11, Halachah 6, states: “With regard to [cases involving] capital punishment, we begin from the side.” As stated in Chapter 1, Halachah 3, the judges are seated in a semi-circle and the judges of the highest stature are seated in the center. Beginning from the side means asking the judge of the lowest stature to state his opinion first.

This relates to the prohibition against relying on another sage’s opinion which is mentioned in Halachah 1 (Radbaz).

Note the contrast to financial law, as mentioned in Chapter 11, Halachah 1, and Chapter 12, Halachah 3.

Sanhedrin 32b derives this concept from the oath administered to a sotah, a woman suspected of adultery. Numbers 5:19 states: “The priest administers the oath to her, saying: “... If a man did not lie with you... you will be held blameless by these waters.” Although the oath then continues to mention the severe punishment the woman will suffer if she transgressed, it begins with reassurance if she is innocent. The same pattern is followed here.

This refers to the students who sit in observation of the court proceedings, as stated in Chapter 1, Halachah 7.

One of the fundamental points of the Torah’s approach to capital punishment is that ultimately man’s future is in God’s hands. The court must do what it can to judge the matter, but it need not work overzealously to convict the defendant, for even if he is not executed by the court, God will administer justice (see Sanhedrin 37b). Hence, even though there is a possibility that the student’s rationale would be substantial, since he is not a judge, he is not given a chance to decide the defendant’s fate. Indeed, he is not even given the opportunity to state his point.

I.e., to participate in the debate.

But instead becomes part of the court. Kin’at Eliyahu states that it would appear that another judge is also added to the court together with him, so that there will not be the possibility of an evenly balanced court. He also questions what will happen in the future, for the court will have an extra judge.

For that would be embarrassing for him.

The Lechem Mishneh (and similarly, many commentaries to Sanhedrin 40a, the Rambam's source) maintain that this phrase is an error. The intent is that his opinion is considered. He himself is not considered a judge, for a relative - and certainly, the defendant himself - cannot serve as a judge.

Sanhedrin 33b derives this concept from the adjuration (Exodus 23:7): “Do not execute the guiltless or the righteous.” Implied is that if he is innocent, even if he was not deemed righteous by the court, he should not be executed.

As Sanhedrin, loc. cit., continues: If he was deemed righteous, even though he is not innocent, he should not be executed.

The Sadducees were followers of Tzadok, one of the students of Antigonus of Socho, who abandoned traditional Jewish practice and started a new sect. Although their intent was to assimilate among the Greek and Roman societies, they professed to maintain adherence to Judaism and disguised their assimilationist tendencies by protesting that it is only to the Oral Law that they were rejecting. The Written Law, by contrast, they would agree to keep. If a matter was thus accepted by the Sadducees, it is quite obvious and everyone would realize the error. Hence, the judgment is discarded. If, however, the judgment was not a point accepted by the Sadducees, even though it concerns an explicit statement of the Mishnah, the error is not as obvious, and the judgment is allowed to stand.

When speaking about the prohibition against forbidden sexual relations, a plural term, mishkavei ishah, is used in Leviticus 20:13, indicating that there are two types of forbidden intercourse, vaginal and anal (Sanhedrin 54a). Horiot 4a states that even the Sadducees would accept this concept.

I.e., without inserting the entire organ. According to Sanhedrin 33b, this is considered as intercourse. Nevertheless, this point is not accepted by the Sadducees. See Hilchot Issurei Bi'ah 1:10 and commentaries.

See Chapter 2, Halachah 10.

See Chapter 5, Halachah 3.

For since there are two litigants involved, what is to the detriment of one is to the advantage of the other.

Chapter 10, Halachah 7.

See Chapter 8, Halachah 1.

If a court realizes that it made an error, the judgment is rescinded and a new judgment is rendered. See Chapter 6.

Chapter 10, Halachah 9.

Who sit and observe the court.

See Chapter 10, Halachah 8.

Chapter 10, Halachah 2.

See Chapter 3, Halachah 4.

Sanhedrin 34b derives this concept based on Numbers 25:4: “Hang them before God before the sun.”

If the court sees that the judges desire to convict the defendant, a final judgment is not rendered. Instead, the judges debate the matter throughout the entire night in the hope of finding a basis for acquittal. On the following day, they gather together and they are polled again (Sanhedrin 32a, 35a, see Chapter 12, Halachah 3).

I.e., because two successive sittings of the court might be necessary.

For doing so involves the transgression of one of the Torah’s commandments. As stated in Hilchot Shabbat 24:7, one of the 613 mitzvot of the Torah is not to execute a guilty person on the Sabbath.

For once a person is convicted, he should be executed immediately. It is considered as agonizing to allow him to live with the sword of death hanging over him.

From this ruling, we can see that ordinarily a person was not imprisoned before his trial began. Instead, he would be arrested and tried on that very same day.

To enable the litigants and the judges to carry out their preparations for the Sabbath [P’nei Moshe (Jerusalem Talmud, Sanhedrin 4:6)]. Alternatively, a judgment must be made patiently, with peace of mind, and that would be difficult on Friday because of the necessary Sabbath preparations (Sefer Me’irat Einayim 5:3). See also Chapter 25, Halachah 9.
The Shulchan Aruch (Choshen Mishpat 5:2) writes that it is also forbidden to hold court on the day preceding a festival. The Ramah quotes opinions which maintain that in the present age, judgments may be rendered on Fridays and on the days preceding festivals.
As mentioned in Hilchot Shabbat 23:14, although one would be allowed to hold court and render a judgment on the Sabbath or a festival itself according to Scriptural Law, our Sages forbade doing so as a safeguard, lest one write.

I.e., all the distinctions mentioned in Halachah 1 between cases involving financial matters and cases involving capital punishment.

The punishment granted for the violation of one of the Torah’s prohibition that involves a deed, and is not punishable by execution. See Chapters 18 and 19. See also Chapter 16, Halachah 1, which draws an equation between lashes and execution.

The punishment given for accidental murder. See Hilchot Rotzeach, chs. 5 and 6.

And not 23 as is the case with regard to laws involving capital punishment.

On the basis of Exodus 21:19, Sanhedrin 2a states that an ox is condemned to death in the same manner as its master, i.e., by a court of 23 judges. See Chapter 5, Halachah 2.

See Deuteronomy 13:2-12 and Hilchot Avodat Kochavim, Chapter 5, where the laws governing such a transgressor are explained.

I.e., the person who he has been enticed should inform the court. Together they contrive a plan so that the mesit will make his statements in the presence of witnesses who can see and hear him even though he cannot see them. See Hilchot Avodat Kochavim 5:3.

The person whom he seeks to proselytize should, however, tell him: “How can we forsake our God in heaven and serve stone and wood?” (ibid.). As Tosafot, Sanhedrin 8b, explains, this statement impresses the mesit with the severity of his actions. If the mesit does not repeat his statements after receiving this warning, he is not executed.

See Chapter 12, Halachah 2, which states that, to be executed for other transgressions, a person must receive a warning from two witnesses and acknowledge that warning.

This is the direct opposite of the laws that apply with regard to others tried for sins punishable by execution, as stated in Chapter 10, Halachah 9. The rationale for these stringencies is that Deuteronomy 13:9 states: “Do not have pity and do not cover up for him.”

Instead, he must offer his own defense. In contrast, in other instances, the court and even the students observing the court (see Chapter 10, Halachah 8) are encouraged to offer defenses.

Although because of their tendency to cruelty, they are not fit to judge other cases involving capital punishment, as stated in Chapter 2, Halachah 3.

Compare also to the Guide to the Perplexed, Vol. II, Ch. 39, which states: “Mercy to the cruel is cruelty to the merciful.”

Although this verse is stated with regard to an ir hanidachat, a city that was led astray, i.e., after idol worship, its motivating rationale also applies with regard to a mesit.

This is an act of deference and respect for that judge. Nevertheless, if that judge desires, as an expression of humility, he may forgo this token of respect. Sanhedrin 36a relates that this was the practice of Rabbi Yehudah HaNasi who began by asking the judges of the lowest stature (Radbaz).

As stated in Chapter 1, Halachah 3, the judges are seated in a semi-circle and the judges of the highest stature are seated in the center. Beginning from the side means asking the judge of the lowest stature to state his opinion first.

As stated in Chapter 10, Halachah 6, we fear that otherwise, the judges of lesser stature will be intimidated and will fear to contradict the opinions of the judge of greater stature.

The Shulchan Aruch (Choshen Mishpat 18:5) interprets this as referring to an instance where the student relies on the teacher and has not developed sufficient independent thinking processes to consider the laws abstractly and apply them to different situations on his own. See also Halachah 10.

The Rambam’s ruling is based on Sanhedrin 36a. His version of that text was apparently different from the standard printed text. The standard printed version includes cases involving financial laws in the same category as cases involving capital punishment. For this reason, the Ra’avad objects to the Rambam’s ruling.
Rashi explains that with regard to rulings concerning ritual purity, it is not necessary that a question be judged by any minimum amount of judges. Hence, every person’s opinion is counted equally. With regard to cases involving capital punishment and the other types of judgment mentioned, the Torah requires a specific number of judges at the outset. This implies that every judge is important and hence, a father and a son may not be counted together.
According to Rabbinic Law, there is no minimum amount of judges necessary to adjudicate questions of financial law. Hence the version of Sanhedrin possessed by the Rambam places these laws together with the laws of ritual purity.

I.e., he is given the status of a member of the court. He participates in the debate and he is counted in the reckoning of the opinions of the judges (Kessef Mishneh).

According to the Rambam, this refers to the pronouncement of the verdict: “So-and-so, you are liable,” or “So-and-so, you are vindicated” (Kessef Mishneh). The Ra’avad differs and maintains that this refers to the polling of the judges. Hence he objects to the Rambam’s statements.

See Hilchot Edut 16:5.

And thus capable of developing insightful rationales.

I.e., the laws received from the previous generation regarding a particular issue.
Sanhedrin 36b cites as an example Rav Kahaneh and Rav Assi who were students of Rav. They were highly intelligent and capable of reasoning with the greatest sages of the age. They lacked, however, the knowledge of certain laws. Rav would convey these laws to them and they would participate as full members of the court.

I.e., the students are then considered as judges in their own right, independent of their teacher.
Rashi explains the rationale for this ruling. Ultimately, the entire Jewish people received the body of Torah knowledge from Moses. What difference does it make on which level of the chain a person is? What is significant is that they can assimilate the knowledge and apply it to the particulars of a given situation.

See Chapter 2, Halachah 9, where this concept is explained at length.

If, however, he is blind in both eyes, he is not acceptable to serve as a judge at all (ibid.).

Implied is that for four generations, we know that the person’s lineage is acceptable.

Chapter 2, Halachah 9.

For the testimony must be given in the presence of the defendant.

I.e., are you certain of his identity? Perhaps you are confusing him with someone else. This is the Rambam’s interpretation of Sanhedrin 40a. Rashi interprets that passage differently (Lechem Mishneh).

See the following halachah.

The Rambam’s ruling reflects a unique instance in which he uses the wording of a Talmudic passage for the opposite intent. Sanhedrin 8b quotes Rabbi Yossi bar Rabbi Yehudah as coining the expression the Rambam employs: “A warning was instituted only to make a distinction between a person who transgresses inadvertently and one who transgresses intentionally.” Rabbi Yossi, however, used this concept as support for his contention that a Torah scholar does not need a warning. Since he is knowledgeable, we assume that he is familiar with the laws. If he is transgressing, we can conclude that he is doing so as a conscious act of rebellion. Hence, he is deserving of punishment.
The Rambam differs, maintaining that even a Torah scholar might not be aware that his act violates a particular prohibition. We do not suspect that he did not know the law, it was however possible that he was aware of the prohibition, but did not know that it applied in this instance, e.g., he knew that fat is forbidden, but did not know that a particular piece of meat contained forbidden fat. The warning will clarify that for him (Kessef Mishneh; Maggid Mishneh, Hilchot Issurei Bi’ah 1:3).

He does not, however, need to be told the type of execution he will receive.

For he did not transgress.

By an earthly court. Although it appears that he acknowledged the warning and transgressed intentionally, we do not execute him for we are not certain that this is so unless he makes an explicit statement to this effect. We are not concerned that a person who is obligated to be executed may be released. For even if he is not punished by an earthly court, God will execute judgment upon him.

I.e., the time it takes to say Shalom Alecha Rebbe Umori (Hilchot Sh’vuot 2:17).

Otherwise, it is possible that he forgot the warning (Sanhedrin 40b). Although this is highly unlikely, this is another one of the leniencies given to insure that an innocent person is never executed.

Who are not acceptable to serve as witnesses.

Makkot 6b states that even if the person heard the warning from a demon, it is sufficient. The Rambam, who maintained that demons no longer exist in the present time, however, omitted this concept (Radbaz).

I.e., the person committing the transgression (Kessef Mishneh). Rashi (Makkot 6b) interprets this as referring to the victim.

I.e., administers a severe warning, so that if a person was considering giving false testimony, he will recant. Hilchot Edut 17:2 describes a warning given with regard to financial matters, but it is not as severe.

Something that you did not actually see, but presume to be true. For example, a person walked out of a room with a bloody knife and a victim was found slain inside. Although the likelihood is great that the person carrying the knife was the murderer, this is considered as circumstantial evidence and may not be used to convict the defendant.

Hearsay evidence, even from a totally reliable source, is inadmissible. Instead, the person who saw the crime being committed must testify himself.

The precise meaning of the Hebrew words derishah vichakirah is discussed in Hilchot Edut, Chapters 1 and 2.

God was holding Cain responsible, not only for the death of Abel, but for the destruction of all his descendants.

I.e., in contrast to all the animals which were created in pairs, Adam was created alone.

Implied by the above are two concepts: a) the importance of every life; that the witnesses should take seriously the consequences involved in having the defendant executed; b) the responsibility the witnesses have upon them, for “the entire world” depends on them.

With these statements, the judges counsel the witnesses against refraining from testifying. They might feel that even though they know incriminating evidence, they will refrain from testifying, because of the difficulty and the responsibility involved.

I.e., the Torah commands a person to give testimony if he saw a colleague commit a transgression. This is one of the 613 mitzvot of the Torah, as stated in Hilchot Edut 1:1.

I.e., God will be happy because of their execution. See also Hilchot Evel 1:10.

And still desire to testify despite hearing this warning.

Chapter 1, Halachah 4.

I.e., he describes the event, the date, and the time at which it took place (ibid.:5).

If there is a discrepancy between the testimony of any of the witnesses, the testimony of all of them is nullified (Hilchot Edut 2:3).

Chapter 10, Halachah 7.

As a source, the Or Sameach cites Numbers 15:34 which relates how the person who collected sticks on the Sabbath was imprisoned until God revealed how he would be executed.

They do not fast, so that their minds will be clear, but they are careful not to overindulge. This is a sign of deference to the seriousness of the judgment they are undertaking. For this reason, they do not drink at all. Needless to say, they would not eat and drink to the extent that their thoughts would be blurred.
Sanhedrin 42a derives this concept based on Proverbs 31:4: “The princes should not [partake of] strong drink.” The Hebrew for princes, roznim, shares the same root as the Hebrew word raz, meaning “secret.” “Those involved in the secrets of the world [- i.e., questions of life and death -] should not partake of strong drink.”

Chapter 10, Halachah 5.

See Chapter 1, Halachah 9.

As explained in Chapter 9, Halachot 2-3.

He is not left to languish under the distress of a death sentence as stated in the following halachah.

As evident from Chapter 13, Halachah 1, one of the reasons for th is was to allow the possibility of a rationale acquitting the defendant to be discovered. Another rationale is mentioned by Sanhedrin 42b: so that the judges will not appear to be anxious to carry out the execution.

The verse concludes describing how the blasphemer would be stoned to death there.

A mil is 2000 cubits, approximately a kilometer in contemporary measure.

The camp of the Jewish people was 12 mil long and the Tent of Meeting was in the center. Thus the distance from Moses’ tent to the camp’s periphery was slightly less than 6 mil.

In this context, the fetus is considered as part of the mother’s body and not as an independent entity (Rashi, Arachin, loc. cit.)..

If the fetus is not killed first, it may emerge after the woman’s death and that would result in the denigration of her corpse (Rashi, Arachin,7a).

For the fetus has already taken on the status of an independent entity (ibid.).

As the Rambam states in Hilchot Evel 14:21, it is forbidden to benefit from a corpse. Nevertheless, an exception exists with regard to the hair of the corpse, for it is not considered as part of the corpse. Arachin 7b explains the rationale for this exception: Every other portion of the corpse will change after death; the hair, by contrast, will remain the same.
In the Rambam’s Commentary to the Mishnah (Arachin 1:4), he states that this exception applies when before her death, the woman said that her hair should be given to another person. If she did not make such a statement, it is forbidden to benefit from her hair as well. He does not, however, make such a stipulation in Hilchot Evel.
It must be mentioned that the Rambam’s ruling in Hilchot Evel has been questioned by the commentaries. In his Kessef Mishneh, Rav Yosef Karo raises objections, and in his Shulchan Aruch (Yoreh De’ah 349:2), he states that it is forbidden to benefit from the hair of a corpse. According to his interpretation, the leniency derived from Arachin, loc. cit., with regard to the hair of a condemned woman is that, even though she has been condemned to death, until she is executed her hair may be cut off and used.

A burnt offering, by contrast, is offered even after the person’s death (Arachin 7b).

Our assumption is that it is more desirable for him to be executed immediately than to wait for the sacrificed to be offered. We do not offer such sacrifices after his death, for once a person has passed away, these sacrifices cannot procure atonement for him. These laws are restated in Hilchot Shegagot 3:12.