We continue in Tractate Sanhedrin, chapter 1, Mishnah 2, and we will examine the number of judges required for various types of cases. The Mishnah begins with the law of lashes, and continues with the sanctification of the new month and the leap year.
Lashes with three:
When the court is about to rule on lashes - and even lashes mandated by the Torah - the case is judged by three. Three expert judges who have ordination are required. The source for this is a verse dealing with the matter of lashes: "v'nigshu el hamishpat u'shfatum" (and they shall approach the judgment and they shall judge them) - using plural language, and from here we learn that at least two judges are required to adjudicate a case of lashes. And since there is a rule that there is no evenly balanced court, meaning that we do not appoint an even number of judges, it is impossible to appoint two, and perforce three are required.
The basic idea is that most negative commandments in the Torah, unless a different punishment was established for them or if they are exceptional cases, carry a punishment of lashes: one who transgresses a negative commandment in the presence of witnesses and with a proper warning - the result of his action is lashes. We will elaborate on this further in Tractate Makkos, where it is explained that this refers to thirty-nine lashes with a leather strap.
The opinion of Rabbi Yishmael - with twenty-three:
The Mishnah continues: "mishum Rabbi Yishmael amru" - they said in the name of Rabbi Yishmael. The term "mishum" teaches that we do not have someone testifying that they heard this directly from his mouth, but rather a tradition stated in the name of Rabbi Yishmael - and according to this, lashes are with twenty-three, and twenty-three judges are required to adjudicate a case that includes lashes. The Gemara brings two derivations for his approach:
Gezeirah shavah: The word "rasha" (wicked) appears both in the context of capital cases and in the adjudication of a case involving lashes.
Lashes come in place of death: Conceptually, one who intentionally transgresses the Torah - after being warned not to do so and replying that he will do it nonetheless - seemingly loses his right to live, and by right he should be put to death. However, the Torah does not put him to death, but instead gives him a separate punishment of lashes in its place. Thus, lashes are similar to the death penalty, and therefore twenty-three judges are required for them, just as in capital cases.
In any event, the halachah follows the Tanna Kamma: three expert judges are sufficient for a case of lashes.
Ibur hachodesh with three:
Ibur hachodesh refers to kiddush hachodesh: the declaration of Rosh Chodesh and determining whether the previous month had twenty-nine or thirty days, meaning establishing the first day of the new month - and this is done in a court of three. The term "ibur hachodesh" itself is unusual, since it should have been called "kiddush hachodesh," and the Mishnah used it for consistency with the continuation: "ibur hashanah" (declaring a leap year), where the terminology is appropriate.
Today, of course, our calendar is fixed and calculated in advance since the fourth century. But in the past, they would declare the new month based on the sighting of the new moon, which is the new lunar crescent seen the night before. Since the complete lunar cycle takes twenty-nine and a half days, sometimes the Hebrew month is twenty-nine days long and sometimes thirty, and the determination depends on whether the moon was actually seen:
The moon was seen on the thirtieth day since the previous new moon - this is a sign that the old month had twenty-nine days, and it is called "chaser" (lacking), and that thirtieth day is Rosh Chodesh, the first day of the new month.
The moon was not seen on the thirtieth day - consequently, the thirty-first day since the previous new moon is the first day of the next month, and the previous month is called "malei" (full), since it had thirty full days.
This decision is made, as mentioned, by a beis din of three.
Declaring a Leap Year:
Similarly, the Mishnah states that the decision of whether to declare a leap year is also made by a beis din of three - this is the view of Rabbi Meir. The solar year is three hundred and sixty-five and a quarter days long, whereas twelve lunar months, twelve times twenty-nine and a half, amount to only three hundred and fifty-four days. There is a deficit of eleven and a quarter days, which means that every few years, in order to maintain synchronization between the solar and lunar years, an extra month must be added - this being the second Adar. This is mandatory, since Pesach must fall in the spring month, the season when the grain ripens; if the calendar is running early and Pesach is going to fall in the winter, it must be pushed back by a month, adding an extra month in the middle.
The Gemara lists several considerations for which an extra month would be added:
The ripening of the grain: To ensure that Pesach falls in the spring season.
The ripening of tree fruit: To ensure that there are ripe fruits for the festival of Shavuos.
Astronomical considerations: There is a requirement that Succos fall after the autumnal equinox, and that Pesach fall after the vernal equinox.
The needs of the pilgrims: Those ascending to Jerusalem for the festival after the long winter. If the roads were blocked, water was unavailable, or there were infrastructure problems - they might delay the festival so there would be enough time to prepare the roads and Jerusalem for the masses.
For all these reasons they would add an extra month, and this decision requires a beis din to convene for this purpose. Today, as mentioned, we do not do this: the calendar is fixed and everything is calculated in advance - seven leap months in every nineteen-year cycle, and this calculation is almost completely precise, so that at the end of each nineteen-year cycle, everything rebalances.
The View of Rabban Shimon ben Gamliel:
The Mishnah concludes with the words of Rabban Shimon ben Gamliel, who holds that the process is more complex and is done in three stages:
"Bishloshah matchilin" - They begin with three judges, who decide whether there are even grounds to discuss adding a month to the year, or whether it is completely unnecessary this year. If a majority of two out of the three believe there is a reason to discuss it, the process begins.
"Uvachamishah nosin venosnin" - Two more judges are added, and the five judges debate whether to add the extra month: weighing astronomical considerations on the one hand, against the ripening of the fruit, road conditions, and the like on the other. After this, a vote is taken.
"Vegomrin beshivah" - If the majority decides that a month must be added and Pesach delayed, two more judges are added to form a beis din of seven, and this beis din formally announces and publicizes that a leap year has indeed been declared.
Nevertheless, the Mishnah concludes: "Ve'im gamru bishloshah, me'uberes" - Even according to Rabban Shimon ben Gamliel, after the fact, three are sufficient. And the halachah is that only three are required.
The Dispute between the Ramban and the Rambam:
The Ramban takes the words of the Mishnah literally: for the sanctification of the new month, as well as for declaring a leap year, a beis din of three is required, and nothing more.
The Rambam thinks otherwise: it does not make sense that any random group of three would alter the calendar of all of Israel. This is a national decision, entrusted to the Great Sanhedrin. Therefore, when the Mishnah states three, it means that the Sanhedrin of seventy-one would appoint a kind of subcommittee, a beis din of three, which had the authority to decide regarding a leap year and sanctifying the new month. These three appointed judges act with the authority of the beis din, as an extension and authorized body on behalf of the Sanhedrin, and as its emissaries - and they alone may sanctify the month and declare a leap year.
In summary: In this Mishnah we learned that lashes are judged by three, as derived from the verse "and they shall approach the judgment, and they shall judge them" and from the rule that a beis din cannot be evenly balanced, whereas in the name of Rabbi Yishmael they said by twenty-three - based on a gezeirah shavah from "rasha" and because lashes come in place of the death penalty - and the halachah follows the Tanna Kamma. We also learned that sanctifying the month and declaring a leap year are done by three. We discussed the method of determining a deficient or full month and the reasons for adding a leap month, the opinion of Rabban Shimon ben Gamliel regarding three, five, and seven, and the dispute between the Ramban and the Rambam whether this refers to an ordinary three or three acting as emissaries of the Sanhedrin.
In the next section, we will continue with the following mishnayos, and we will explore the number of judges required for other types of cases.