Ultimately what we're going to look at is from the Responsa of the Rashba, from Choshen Mishpat in סימן שפ"ח. If that's easier to access. You have it up on the screen? Yeah. So v'zeh l'shon ha-Rashba. Okay, it'll take a little while until it becomes clear why we're looking at this. Got to believe the Rebbe says, have faith. Okay. וזה לשון הרשב"א בכתב אחד ששלח לחכמי צרפת. So the Rashba wrote as follows to Chachmei Tzorfat. What was the case at hand? Al moser echad, a moser, שהיו הרבנו יונה בן אחי אבי של הרבנו יונה החסיד
meaning the Rabbeinu Yonah of Sha'arei Teshuvah and his cousin who had the same name, right? He was ben achi aviv. So there were two cousins, I guess maybe named after the same grandpa, I don't know. שהיו הרבנו יונה בן אחי אבי של הרבנו יונה החסיד
zal והרשב"א. So the two of them, they were moreh la-melech about this moser shehu chayav mitah. They told the King of Spain, Castille, whatever it was, whatever it was called, that this moser was chayav mitah. V'tziva ha-melech v'harago. And then the melech then issued a death sentence for him. So the Rashba's explaining what the basis was for what they did. תמצית כל הדברים כמננו, zeh rodef hayah. והרודף נהרג בכל זמן. That has nothing to do with, it does not as we obviously don't have dinei nefashot. So says the Rashba, but the din of rodef isn't something that requires a Sanhedrin that's qualified and authorized to be done dinei nefashot. If someone is running with a loaded gun and is about to pull the trigger and kill someone, you don't say well, bizman hazeh we don't have mumchim, v'bizman hazeh we don't have a Sanhedrin Lishkat Hagazit and we can't do dinei nefashot. That a rodef, sorry, lost my place. והרודף נהרג בכל זמן בין בארץ בין בחוצה לארץ ואפילו שלא בבית דין.
How do you know that? מדבי רב שילא בפרק הגוביא ומדאמר ליה דוד לשאול רודף אתה והתורה אמרה הבא להורגך השכם להורגו.
Now ואפילו רודף למסור ממון מדרב הונא בפרק הגוזל בתרא. He also has a din of a rodef. Now u-v'vadai it's certainly the case that מי שאינו מוחזק בכך, if a person has only done it let's say once, אין ממיתין אותו אחר מעשה. After he was already moser, he's not a rodef. When he's engaged in the mesirah, he's a rodef. If the mesirah has already happened, so at this point he's not a rodef, right? משל מה הדבר דומה. The person is running after someone to kill him with a loaded gun, he's a rodef. The minute the gun is taken away from him, so he's not a rodef anymore. So at this point, if he's liable for anything, so then it's not b'torat rodef, it would require Beit Din. So it's certainly the case that b'vadai מי שאינו מוחזק בכך אין ממיתין אותו אחר מעשה. אבל מי שהוחזק בכך ממיתין אותו בין בשעת מעשה בין לאחר מעשה
because once he's muchzak b'kach. So then you assume that he's prone to doing it again in the future in which case he's constantly engaged in redifah and he always has the status of a rodef. Vechol hakodem zachah. And aderabah it's a mitzvah. U'k'd'tanya again we're not doing this halacha l'maaseh you know this is not really הלכה למעשה בזמן הזה again you'll see why we're looking at this. המינין והמסורות וכולן מורידין ולא מעלין veafilloo lehargan beyadayim שהרי הן כנחש ששני אלו המוסר והנחש מוקשים they're equated. Vechein asu maaseh המוסר מוחזק להרגו בידיים ברוב קהלות ישראל still in medieval times this was done. Vechein he'id harambam zal bechiburo. And eizeh muchzak? Kol shenoda larabbim shehu kein. Meaning לא שהוחזק בבית דין של עשרים ושלשה shekibbelu edim befanav שאם כן אין לך מוחזק עכשיו שאין לנו מומחין והרי החכמים מחברי הספרים שהעידו וכתבו שהמוסר המוחזק הורגין אותו בכל זמן
lechol hanaaseh invesan umerachem al eileh someone who wavers and has misplaced compassion on mosrim נעשה אכזר על דורו and that's a yesod in sort of less I don't know less explosive less dramatic context also. Misplaced rachmanus is really achzariyus. נעשה אכזר על דורו u'k'mo she'amru behanizkar ענוותנותו של רבי זכריה בן אבקולס החריבה ביתנו when the Caesar sent an animal to be offered as a korban and then the Kamtza Bar Kamtza the host of the Kamtza Bar Kamtza party was matil bo mum and they were going to be makriv it mishum malchus he said no you can't be makriv a baal mum so then they were gonna kill the person who was gonna who otherwise would have reported back to the Caesar he said no you can't kill him he's not chayav misah ענוותנותו של רבי זכריה בן אבקולס החריבה ביתנו o vecheres so that's that was one basis for what we did right this is the mashpacha explaining why they why they turned to the king about this moser. Second basis כי בעוון הדור התחילו קצת אנשים ללמוד האומנות הנפסדה הזאת
this is becoming widespread mesira rachmana litzlan in their days was becoming widespread and the halachah is וכל שהשעה צריכה לכך מכין ועונשין שלא מן הדין בכל מקום ובכל זמן
we did this fairly recently no did we well maybe not כאותה שרכב על הסוס בשבת gemara says that bimei yavan there there was tremendous laxity in shmiras shabbos and the gemara illustrates the din that beis din has discretionary powers of מכין ועונשין שלא מן הדין to uphold Torah and it illustrates it with this example. Even though riding on a horse in shabbos is an issur derabbanan it's not it's not even issur d'oraisa involved but nevertheless they gave him skila. Vechein katvu hagedolim mechabrei hasefarim zal u've'eileh vechayotzei be'eileh again in this din of מכין ועונשין שלא מן הדין so the rashba says the chidhushei haran says this in sanhedrin as well אין משגיחין בבית דין של עשרים ושלשה again even though ordinarily dinei nefashos requires a סנהדרין של כ"ג and they have to be smuchim and lekabbel ed befanav and ein mekabbelin. lekabel eidus b'fanav, so all of these requirements לכלל כל הדברים הצריכים בדיני נפשות שאין הולכים בהם אחר הרוב
already here, this is what what we're we're coming for. In this context of a Beis Din מכין ועונשין שלא מן הדין, שאין הולכים בכל אלו אלא אחר ידיעת האמת.
You don't have to satisfy what in other contexts are all these requirements. Again, that you can only be mekabel eidus bifnei the Ba'al Din. And that you have to have a Sanhedrin of 23 mumchim. Again, mumchim means that they had smicha, the original chain of smicha that went back to Moshe Rabbeinu and Yehoshua. But all these dinim are not required in this context. You just have to know that it's true. You have to know, you have to know, you have to have proof positive that this person was rochev al hasoos. But if you have, if you know the emes, then it doesn't make a difference that you don't have chaf-gimel, that you don't have mumchim, that you weren't mekabel eidus bifanav. Let's, she'ein holchin, again, we're in line 6 here, שאין הולכים בכל אלו אלא אחר ידיעת האמת לסלק הנזקים ולעשות גדרים בפני פרצות.
U'moseif al zeh שלפעמים אנו מקבלים עדים שלא בפני בעל דין. Sometimes even me'ikar hadin you're allowed to accept eidus shelo bifanav. Sheharei amru היה חולה או עדיו חולים מקבלים שלא בפניו. ואפילו בששלחו ולא בא
hi hamemra, וכן פירשו רבנו תם וז"ל, v'hu hanachon. And let's say he refuses to come to Beis Din, so then you'll be mekabel eidus shelo bifanav. וכל שכן זה שהיה עושה בזיקין ואין לומר לבית דין שיוליכו אחר העדים בכל עיר ועיר עם זה ושיקבצו כולם כאחד.
So what does it mean? How in the world do you understand? And he's about to say this. Let's skip for a minute to u'gedolah mikol elu. Do you see where that is? It's after a colon towards the end of a line, about 14 lines from the bottom. U'gedolah mikol elu binidar shelefaneinu in the case that actually happened, she'anu lo donanu, we didn't even take the initiative, says the Rashba, ella, again, we, the Rashba and Rabbeinu Yonah's cousin by the same name, she'anu lo donanu, אלא נשאל נשאלנו מבית אדוננו המלך לראות בעוונו ולהגיד לו עצתנו. לפי מה שעשה אמר שהוא יכול להמיתו. לפי שלא נאמרו דברים הללו אלא בדיני סנהדרין מגזירת הכתוב.
Again, all these dinim that you're asking that were lacking in this case, no Sanhedrin, no chaf-gimel, no mumchim, v'chulu v'chulu, לפי שלא נאמרו דברים הללו אלא בדיני סנהדרין מגזירת הכתוב. ידיעת האמת ונהרג בדיני המלכות אפילו על פי קרובים ואפילו על פי עצמו ושלא בהתראה ושלא בעשרים ושלושה שאין דין המלכות אלא אחר ידיעת האמת.
So most of all says Rashba, it's not that we gave him mussar. We could have because he was a rodef and we could have because beis din מכין ועונשין שלא מן הדין if hasha tzericha lekach, we could have, but lemaiseh we didn't. It was dina demalchusa. Again, this teshuvah is so important for so many different sugyas. We're going to sort of focus narrowly. He says dina demalchusa gives the melech the right to administer capital punishment. And the melech, dina demalchusa in administering capital punishment is not bound by the requirement for hasra'ah. It doesn't disqualify krovim from giving eidus, even the din of אין אדם משים עצמו רשע, the Rashba says doesn't apply in dinei malchus, אפילו על פי עצמו שאין דין המלכות אלא אחר ידיעת האמת.
So already here, again, so this is the second time, right? He said it earlier that when a beis din bizman hazeh will act on the halacha מכין ועונשין שלא מן הדין, it's only they just have to ensure that it's emes, they don't have to ensure, again, in quotation, technical compliance with dinim of kabbalas eidus and the Sanhedrin, mumchim vechulu vechulu. And now he's saying the same thing about dina demalchusa. So already that provokes a big question. But look at this next line. שאם אי אתה אומר כן, if you don't acknowledge that, if you don't recognize that, אלא שאתה מעמיד הכל על דין תורה kedin Sanhedrin, if you would think that dina demalchusa has to abide by the same, again, with quotation marks, the same formal procedural rules, standards, requirements of Sanhedrin and so too the din of shelo min hadin just means that the onesh can be different but it doesn't mean the procedure is different, היה העולם שמם שירבו הרצחנים וחבריהם. The world would become desolate because rotzchim would have a free hand. So at first glance what's so difficult to understand here is that the Rashba is explicitly contrasting what the halacha requires from beis din with yedias ha'emes. You can have yedias ha'emes without all that. Right? The Rashba says you don't have to have chaf gimmel for beis din makin veonshin shelo min hadin. You don't have to have chaf gimmel. You don't have to have mumchim. You don't have to have kabbalas eidus befanav and psulei eidus, like what's all that about if it's not bakashas ha'emes? So what's all that about? And then he repeats the same thing, that same contrast in terms of dina demalchusa and says, and what's more, the world would deteriorate into the Wild Wild West if you didn't recognize this. So how do you understand? So what is the din of chaf gimmel and mumchim and kabbalas eidus befanav and psulei eidus, like what's all that about if it's not bakashas ha'emes? So I don't know how one could have or would have understood this without what we're learning in in... But we've been trying to understand a little bit how the Rav says that again, halacha, it's not that Hakadosh Baruch Hu just did a better job, but sort of went about designing a legal system, a halachic system, the same way, lehavdil, infinite havdalos, the same way human beings construct a legal system, it's just that since Hashem is perfect, so He did it in a perfect way. Now a human legal system begins with pragmatic need and designs a system to address those pragmatic needs. A whole range of social interactions and behaviors that need to be regulated, so that it shouldn't be איש את רעהו חיים בלעו, that things should be able to function. Now halacha again is an ideal system, and again, ideal first and foremost, but not exclusively in the sense of as derived from the word idea, but then also ideal in its more common usage. Halacha is a world of ideas. And again, the re'aya is, says the Rav, that the views in the Gemara that בית המנוגע לא היה ואינו עתיד להיות, בן סורר ומורה לא היה ואינו עתיד להיות, עיר הנדחת לא היה ואינו עתיד להיות.
There's no human legal system that legislates for a situation which you know will never ever arise. So it's a world of ideas. A, B, also ideal system, the second thing ideal system means is that whereas a human legal system, again, begins with the pragmatic need and looks to regulate, halacha doesn't only look to regulate our behavior, it looks to elevate our behavior. And in that sense ideal, more pshuto kemashmao. Having red lights was not designed to teach us the mida of patience and savlanus and not being impulsive, shelo levahel, okay, inna nami, do need shelo levahel a little bit, but that's the red lights are okay, but that's not what it's about. No, it's about that one car's headed this way and the other car is headed at a 90-degree angle and we want to avoid crashes. That's what it's about. If this is the major thoroughfare and this is less traveled, so we're not going to get equal time. The one which is the major thoroughfare will have the green light for longer and the one which is just sort of bisecting the highway or the major thoroughfare will have the green light for less time, but the whole thing is about pragmatic. Ma she'ein kein, halacha again is also an ideal system in that in regulating, it also looks to elevate. It's designed to elevate our behavior. The ideal way dinei nefashos should happen is that men should give edus, women shouldn't give edus. Again, however, the explanations for that are not our focus now, again, but obviously it has nothing to do with bakashas ha'emes. The ideal way dinei nefashos should happen is that it should be davka the dayanim. who are on a beis din should be dayonim who belong to a chain of mumchim which extends back to Moshe Rabbeinu. And all that is there because halacha is more than just a system to govern and regulate society because it's an ideal system. Says the Rashba, but on the other hand, Hakadosh Baruch Hu knows and therefore halacha, his system, is aware of the fact that the ideal, that character of halacha, can't be at the expense of also being pragmatic. So halacha has built into it again the din melech where melech only has to be guided by yediyas haemes. Halacha has built into it the din that a Sanhedrin, that a beis din מכין ועונשין שלא מן הדין בשעה שהשעה צריכה לכך. It's true that the ideal, who should be the dayonim on dinei nefashos, they should be mumchim. That's the ideal. And that's what the halacha, that's what the halacha depicts. And the ideal is that the eidus should only be mekabel eidus bifanav. And the ideal is that the eidim have to withstand derishah vechakirah, a withering derishah vechakirah. But halacha recognizes that in this area of governing society, that the ideal system is necessary, but there's also going to be a gap between that and the actual needs of the world and society. And that's why halacha has built into it these alternate tracks. These alternate tracks, they're tachlis practical, they're tachlis pragmatic. And that's what the Rashba says that we're only interested in yediyas haemes. I don't know how you read this Rashba without the Ran's halacha. I don't know how you process it. Let's maybe continue reading on page 35, section zayin. The other dinim also which I don't know how satisfactorily one could understand them without this profound understanding of halacha which the Ran provides. So let's see. It's going to be in all of the Yud Aleph Maseches. So in the Mishnayos later in the first perek on יא עמוד ב, יא עמוד א. So the Mishnah in yud-beys says בתולה כתובתה מאתיים ואלמנה מנה. Okay. Okay. So the Mishnah then on top of yud-aleph amud aleph says that הגיורת והשבויה והשפחה שנפדו ושנתגיירו ושנשתחררו פחות מבנות שלוש שנים ויום אחד כתובתן מאתיים ויש להן טענת בתולים.
So if the woman, now she's a woman, if she was misgayeres פחות מבנות שלוש שנים, so then she's bechezkas besulah and when she gets married, so she's entitled as per the previous mishnah to a kesuvah masayim. But if she was already because even if she was molested, so then if it happens before age three, so besuleha chozrim. So therefore she's bechezkas besulah. Mah she'ein kein if she was only מבנות שלוש שנים ויום אחד, but if they're misgayeres from age three and above, so then אין להן טענת בתולים and kesuvasan maneh. Okay. Why? Because from age three and above, so then the besulim einam chozrim, so she's not bechezkas, she's not bechezkas besulah. So therefore is kesuvasan maneh and when the husband marries her he can't have a ta'anas besulim. There's no that she was a besulah when he was m'ares her vechulu. Okay fine. So we understand that physically age three is until that point besuleha chozrim and afterwards not. Okay. Now, if this tanna was misgayeres a day after her third birthday, what are the chances, what are the odds that something happened in that day and that she's not a psulah? Less than your chances of winning the Powerball lottery. I mean obviously the more time elapses, so then the chances that something did happen and that in fact she's not a psulah obviously they gradually incrementally increase. At what point does it become a real chashash? It's true that we'd have to be somewhat arbitrary in assigning a particular age, let's say we'll instead of what the halacha says we'll say age nine. So something changes from the day before her ninth birthday to her ninth birthday? So it's true that would be something arbitrary. And mah she'ein kein there isn't anything arbitrary about the shiur of age three. That's true, even without the שלה של אשה למטה. That's true. But m'idach gisa, even though there's an element of arbitrariness if we'll choose age nine or we'll choose age ten, whatever it is we would have chosen, but it's got to be more correct, it's got to be more mechovan than age three. So isn't it better to have a little bit albeit we'll acknowledge the arbitrariness, but wouldn't it be more mechovan to choose some other age albeit acknowledging with an element of arbitrariness if we say that it would shift from a kesuvah of masayim to maneh if she was nine years old when she was misgayeres. If she was ten, whatever the age is that we'll choose. Yes, is the difference between the day before her ninth birthday and ninth birthday you're really sure that that's when it became a milsa d'mitzuya or that's when it became more than a milsa d'mitzuya? No, obviously there would be an element of arbitrariness but it seems it's going to be closer, no? And shouldn't that be better than saying age three? But ela mai, that question only exists if you're looking at the legal system from the ground up. If you assume that it begins with that we want To avoid every besulah a greater kesubah than than an almanah. And how and how are we supposed to know who's a besulah who isn't a besulah? That's if if you begin with a concrete case so the question we asked is is a fair question. But if you're going from the top down if it's an ideal system and it's not that it's an ideal system and in the ideal system so part of part of one characteristic of the ideal system is that there are no approximations right? And the ideal triangle is is a real triangle right? And and the ideal right angle is is a real right angle there are no no approximations. That's that's in in in our concrete reality so we never have a perfect right angle we never have a perfect triangle. But in in the world of ideas you certainly do. In the world of ideas you don't have approximations. So so what we want in this world is what's true in the world of ideas. So it's not that we're you hear that vuss? And and I again understood you could have fudged this halacha you know without the raz yesod but with the yesod it's it's so much more compelling and and it could it couldn't be otherwise. And it's not that the three-year-old who really was a besulah when she was misgayeres is being shortchanged. No. That that you only view the result that way again if you were building and making decisions from the ground up. But but if the values are on the top no. The ideal is that the kesubah of masayim should be when there's a vados when there's a chazakas vaday that she was a besulah. So the three-year-old she's not getting shortchanged. She's not getting shortchanged. But again but that perspective is only when you when when when we're zoiche to understand a little bit this this characterization of of halacha. Yes. Why is three more ideal than than nine? So again the moshal right? In in geometry so you know if two lines are perpendicular so then they meet at right angles. In the real world so there's no perfection there's no exactitude. So mistama it's very close to 90 degrees. It's probably on one side it's probably 89.99 and on the other one it's probably 90.0001. So in the real world you have approximations. In the ideal world you know in the ideal world you don't have you don't have approximations. Everything is exact and and that's part of the beauty and and why it's an olam haemes. So if when the halacha is designed in the real world so the halacha is going to say when can we talk about a chazakas vaday as opposed to best guess at at a chazaka. That's a prosaic mundane mindset. And the vados again because we're used to thinking this way so we think that oh that really a besulah should be entitled to masayim and this three-year-old the odds are 99.99 percent she's getting shortchanged but that's wrong that's wrong. It begins who's entitled to the masayim? It begins with with that determination is made in the ideal world. Again and just linking this up with what we spoke about in a couple of the chovos halevavos shiurim you know what's a sevara is affected by this understanding. What's a sevara in the ideal world doesn't necessarily align with what's a sevara in the practical pragmatic world. People like to say I have no reason to think that that this is. That an אדם גדול עד מאוד once gave the following direction, again, I don't think this story is true, but it has a kernel of truth in it, once gave the following eitzah: if you have a sheila and you don't know what the din is, so ask a baal habayis and pasken farkert. Now again, I don't think that ever happened, but there is a kernel of truth in that in terms of this idea that we're talking about, that what's a svara differs between whether it's a pragmatic mindset and whether it's this ideal mindset, which is the system of halakha.