11

Sanhedrin 4:2 teaches that in a monetary case or one involving (im)purity, judges give their opinions starting with the most senior, while in a capital case they begin with the most junior. In the g'mara R' Aha b. Papa says one should not speak 'al rab, against the chief of the judges. Apparently, contradicting a judge senior to you who has already given his opinion is a problem.

I understand why we want to be extra-careful in capital cases, but if we are concerned about a senior judge swaying others in a capital case, shouldn't we also be concerned in a monetary case? The Torah is very clear that judges must judge fairly -- always, not just for certain cases. So why do they not always start with the juniormost judge and work up, instead of having two different orders depending on the type of case? It doesn't seem like a hardship to do it this way; everybody is going to speak either way and it's just a matter of ordering.

10

Tosafot on Sanhedrin 36a s.v. dinei nefashot is bothered by your question as to why we're not concerned that junior judges can't argue on the senior judge in monetary cases. They suggest two possible resolutions:

  1. A junior judge is always allowed to argue on the senior judge b'derech she'elah (through asking leading questions, rather than directly contradicting him). Thus in monetary cases we can allow the senior judge to speak first - if he says something wrong the junior judges will argue b'derech she'elah. However, in capital cases, we want to be extra-sure that the junior judges will be able to speak up and have their arguments heard, and therefore they speak first.

  2. The rule that one may not speak 'al rab only applies in capital cases. In monetary cases we can allow the senior judge to speak first - if he says something wrong the junior judges are permitted to directly argue against him.

Tosefot Yom Tov to Sanhedrin 4:2 s.v. matchilin addresses the issue of why we have two different orderings. Why not just always start from the most junior, like we do in capital cases? He explains that in general and where possible, it is preferable to begin with the most senior judge, as this displays a level of respect for him.

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .