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When To Go To The High Court

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In this week’s parshah, Shoftim, the Torah teaches the halachos of a zaken mamrei – someone who disagrees with the Beis Din Hagadol of 71 judges, which convenes on Har Habayis. The pesukim say that when there is a matter that is unclear to us in any topic, we must ascend to the Beis Hamikdash and present the quandary to the High Court.

The pasuk says that the Beis Din Hagadol is the final authority and everyone must adhere to its ruling. A beraisa in Sanhedrin 88b says that originally there were no machlokesim in klal Yisrael, for everyone ultimately was obligated to follow the rulings of the Beis Din Hagadol. If a lower beis din could not resolve an issue, the litigants would take the case to a higher beis din until it reached the Beis Din Hagadol. After the Beis Din Hagadol ruled, there was no room for disagreements.

The Rashash asks several questions on this fact. First, how could a beis din of 23 judges present a guilty verdict in a capital punishment case? After all, only a majority of the 23 judges ruled in favor of his verdict. The halacha is that in order to rule guilty in a death penalty case, there must be at least one judge who believes that the defendant is innocent. If all the judges believe that the man is guilty, he does not receive capital punishment. (The Torah Temimah in Parshas Shemos disagrees with this and says that if all the judges agree that he is guilty, he will be put to death; however, most authorities do not agree with him.) Since the beis din is torn on what to do in this scenario, the members should take their case to the Beis Din Hagadol. Additionally, the halacha requires that in cases of capital punishment, we must always search for ways of vindicating someone who is found guilty.

The Rashash asks a second question. The halacha is that one may not rely on a rov – majority – if there is a way of finding the solution without relying on the rov. For example if one found a piece of meat that he is unsure of where it came from and the rov dictates that it came from a kosher store he may eat it. But if there is way to find out by other means – e.g. asking people who may have been there – then one may not utilize the rov. Why then may one utilize the rov of a regular beis din (following the majority opinion of the judges) when he could find out the actual answer by asking the Beis Din Hagadol?

Tosafos in Baba Kama 27b asks why we do not follow a rov in halachic disputes relating to finances. Why would it be different from following the majority opinion of judges in a financial case. Tosafos answers that following the majority opinion of judges is different, for in that case we view it as if the minority opinion was not even there.

Rav Chaim Soloveitchik, zt”l, explains the Tosafos this way: The way beis din operates is not by following the majority opinion. For example, if 16 judges rule guilty and seven rule innocent, we do not issue a guilty verdict based on the 16 judges who ruled that way. Rather, the beis din in its entirety hands down the verdict. Even the judges who ruled that the man was innocent are part of the beis din that has ruled guilty. The beis din as a whole rules. Rav Chaim says that this is the concept of rubo k’kulo – the majority is considered the entire thing. If one drinks a majority of his cup of wine by Kiddush we consider it as if he drank the entire cup.

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