Sanhedrin 40
Our Gemara on amud aleph discusses the process of cross-examining witnesses to assess their consistency and credibility:
The Mishna continues: And afterward, after the court examines the first witness, they bring in the second witness and examine him. If the statements of the witnesses are found to be congruent, the court begins to deliberate the matter.
Sefer Daf al Daf recounts an incident where a respected community member was accused of severe misconduct by two witnesses. Though the testimony appeared valid and consistent, it was difficult to believe that an individual of such stature could have committed the alleged acts. The Gra (Vilna Gaon) requested to interview the witnesses. After hearing their testimony, he harshly accused them of lying. Under his intense scrutiny, the witnesses confessed and recanted their testimony. When asked how he knew they were lying, the Gra explained that a normal degree of variance is expected in truthful accounts. The witnesses’ stories were too consistent, a clear indication of rehearsed and coordinated testimony.
The Gra pointed out that this idea is hinted at in our Gemara. The Mishna states, “If the [testimony was] found to be congruent…” The phrase “found to be” suggests that the testimony should not be identical but similar in essential details. Absolute congruence may signal deceit.
The belief in one’s ability to detect lies is fraught with misconceptions. Many authority figures – principals, law enforcement agents, and parents – overestimate their lie-detection skills. This overconfidence stems from the accurate perception of emotions but misattribution of thoughts. We are adept at reading emotions like anxiety, happiness, anger, or guilt, but often wrongly assign thoughts to these emotions. For instance, a nervous or ashamed demeanor might be misinterpreted as guilt or dishonesty. However, innocent individuals often display nervousness under scrutiny. Similarly, someone exhibiting anxiety through shifty eyes may not be lying. Ironically, excessive eye contact could indicate a conscious effort to appear honest, much like the Gra’s insight into overly consistent testimony.
Judging The Judgers: When Silence Speaks Louder Than Action
Sanhedrin 41
Our Gemara on amud aleph discusses the status of the Sanhedrin in the years leading up to the destruction of the Temple:
Forty years before the destruction of the Second Temple, the Sanhedrin was exiled from the Chamber of Hewn Stone and sat in a store near the Temple Mount… and no longer judged cases of capital law. Once the Sanhedrin left the Chamber of Hewn Stone, their ability to judge capital cases was nullified.
A simple reading of this Gemara might suggest that for some unknown reason, the Sanhedrin was forced to leave their designated chamber, and as a result, they could no longer preside over capital cases. However, Rashi frames it the opposite way: The Sanhedrin deliberately left their usual location because they feared the overwhelming number of capital cases. In other words, the Rabbis did not want to be in a position where they would be obligated to preside over the cases of and ultimately execute so many people. This is akin to a kohen leaving before the Torah reading to allow a non-kohen to receive a desired aliyah.
This conclusion is difficult to digest. It might sound as though the Rabbis were running away from the problem and abdicating their responsibility. But that cannot be the case. We must conclude that their assessment was that if they imposed their authority and conducted large-scale trials and executions, it would lead to civil unrest and a complete rejection of their authority.
This raises an important question: When should leaders and authorities confront and rebuke immoral behavior, and when is it wise to remain silent? Each approach carries risks, at the risk of being driven by fear or ego. The primary function of rebuke is to guide people toward Torah and moral behavior, but the challenge is determining when silence becomes too weak, and when it’s wise to withhold judgment.
The Rashba addresses this issue in a remarkable teshuva (V:238), where he cites this Gemara, offering guidance to a zealot frustrated by the sins of his neighbors. (I came across this teshuva through Rabbi Rosner’s Daf Yomi shiur on this daf – Yasher Koach.) The Rashba’s words are relevant to us today, when public shaming and sanctions are less effective, as there is always a group – online or in person –that can affirm one’s way of life, distorted or not. The Rashba writes:
Know that a soft tongue can even break bones. In every situation, one must clear the path for the people, removing obstacles. One must proceed from the lighter to the more severe, and not take on all burdens at once. The intent of the heart matters here… As it is taught in Avodah Zarah (16b), concerning a deeply entrenched improper practice in the household of Rabbi Yehudah HaNasi… Rabbi Yehudah sought to nullify the matter gradually, step by step.
Understand this, and know that it is impossible to treat all people with the same measure. Remember the case of our master, King David, who turned a blind eye to Joab and Shimei, even though they were deserving of death. His reasoning was that at that moment, he knew he was king over Israel, and there is a proper time for everything. Sometimes turning a blind eye to a transgressor is a mitzvah, depending on the necessity of the hour. A wise person overlooks matters lightly at times… You see that the Sanhedrin relocated, as stated in Sanhedrin (41a), to avoid increasing capital cases because they saw that murderers were becoming more prevalent. If at times silence serves as a safeguard, then this is more proper than insisting on a safeguard…
This is my advice: Persuade with a soft tongue, once and twice, and gather many friends around the evildoers, providing gentle and minimal rebuke with abundant warmth and closeness. Perhaps they will merit to return from their evil ways, and the wicked will be no more. If they do not listen and persist, then it may be time to take strict and precise action against them as needed.
For can there be anything that does not require weighing the loss against the benefit? One must proceed with patience, agreement, and deliberation, so that the many will turn towards Heaven. The greater the act, the more supervision and removal of anger is required. A judge must be concerned that perhaps his zeal for the honor of the Blessed Name will consume him, leading him to stray from the proper and correct path. Therefore, when vengeance comes before him, while it is still in his grasp, he should not hastily devour it, lest he consumes it unripe. Instead, he should cook it and sweeten it in the counsel of the elders, who are upright in their hearts.
If there are well-known wicked individuals, and you wish to discipline them, yet they remain obstinate in their ways, then consult with the elders, whether to flog them, amputate a hand or foot, or even execute them. Even though the Torah laws have been suspended from the Sanhedrin, they have not been nullified for the necessity of the hour.
The Rashba’s times were different from ours, and unlike his era, we no longer have an autonomous justice system capable of significant enforcement measures. Nor would it be productive to act in such a way when individuals could simply leave the community. In the Middle Ages, Jews did not have the option to join another community, so ostracism and stronger punishments were sometimes effective. Nevertheless, the overall philosophy and approach of the Rashba still resonate today. We should prioritize love and gradual enlightenment over extended periods. If such measures prove ineffective, and the transgressions are significant, we must act with careful deliberation, without anger or pride. It is hard to imagine a situation in today’s social climate where aggressive sanctions would be effective, but if circumstances call for strict responses, they must be carefully reviewed and executed without haste.
