We are studying Tractate Sanhedrin, chapter 11, Mishnah 2. The Mishnah moves on to discuss the third of the six transgressions whose punishment is strangulation: "Zaken mamre al pi beis din" - the elder who rebels against the ruling of the court. We are talking about a person whose greatness in Torah allows him to sit as a judge in the Sanhedrin himself, and he refuses to accept its ruling. As the Mishnah will explain later, and as is explained in the Gemara, he hears from the Sanhedrin itself how the halachah must be decided, and he does not conduct himself according to that ruling: either he instructs others to act contrary to it, or he acts this way himself. At this stage, he incurs the penalty of strangulation.
The uniqueness of a zaken mamre is that he does not require a warning at all. From the moment he heard the ruling from the court, if he transgressed it in practice or by instructing others to act contrary to it - that is sufficient, and two witnesses are enough to apprehend and convict him.
The Gemara explains the reason for this law, and the Maharal wrote similarly in Be'er HaGolah: the existence of a society founded on Torah is impossible without one central authority that dictates how to interpret the Torah.
Today, in a world without a Sanhedrin, everyone acts as they see fit. We are accustomed to a reality in which, in one city, some people will say that there is an eiruv and it can be relied upon, while others will say that it should not be relied upon, and one who carries within it desecrates Shabbos outright and transgresses a Torah prohibition. However, this was not the intention of the Torah. In the time of the Mishnah, when a doubt arose concerning a matter such as an eiruv, they did not pick a side: the Great Sanhedrin, the supreme court of the Jewish people, would discuss the matter, vote, and issue a formal halachic ruling, and the majority decision was binding upon all of Israel.
The source of the law in the Torah:
The Mishnah cites the source of the law: "Shene'emar: ki yippalei mimcha davar lamishpat vego" - as it is stated, if a matter of judgment is hidden from you, etc. These are the opening words of the passage, which appears in the book of Devarim, chapter 17, from verse 8 onwards, and it is not long at all:
"Ki yippalei mimcha davar lamishpat, bein dam ledam bein din ledin uvein nega lanega, divrei rivos bish'arecha" - if it is hidden from you how to decide a halachic question, whatever the subject may be, when it involves matters of dispute within your gates.
"Vekamta ve'alisa el hamakom asher yivchar Hashem Elokecha bo" - ascending to the place that Hashem chose, which is Jerusalem.
"Uvasa el hakohanim halevi'im ve'el hashofet asher yihyeh bayamim hahem, vedarashta vehiggidu lecha es devar hamishpat" - to the kohanim who are levi'im, as this is the preferred situation - that they be part of the Sanhedrin as much as possible - and to the judge who will be in those days, and they will instruct you with the halachic ruling.
"Ve'asisa al pi hadavar asher yaggidu lecha min hamakom hahu asher yivchar Hashem" - you must act according to their words, since this is a ruling emerging from the Sanhedrin in the place that Hashem chose, and therefore it is binding.
"Veshamarta la'asos kechol asher yorucha, al pi hatorah asher yorucha ve'al hamishpat asher yomru lecha ta'aseh" - according to the Torah they teach and according to the ruling they give, it is an obligation to act exactly according to their words.
"Lo tasur min hadavar asher yaggidu lecha yamin usesmol" - you must not deviate from the ruling as established, and even if they tell you about right that it is left and about left that it is right, it is an obligation to do as they say.
"Veha'ish asher ya'aseh vezadon levilti shamoa el hakohen ha'omed leshares sham es Hashem Elokecha o el hashofet" - this is the zaken mamre: a person who intentionally acts contrary to their instruction, understands his action and yet does it anyway, and refuses to listen whether to the ministering kohen or to the judge in the Sanhedrin who gives the ruling.
"Umeis ha'ish hahu uvi'arta hara miYisrael" - this person is liable to death, to eradicate the evil from Israel, since he is liable to divide the nation and undermine the integrity of the nation as a Torah nation when there was a Sanhedrin.
"Vechol ha'am yishme'u veyira'u velo yezidun od" - everyone will hear and fear, and they will not return to doing so.
This is the foundation of the law that the Mishnah refers to: the elder's obligation to listen. However, how this plays out in practice - that is what the Mishnah details very extensively.
The process of clarification in practice:
Let us illustrate this with a story: Rabbi Moshe, the rabbi of the city, holds that an eiruv can be made in his city. The rest of the city's judges and rabbis hold that it is impossible to make an eiruv there. Since he does not retract his opinion, the city's judges take him and ascend with him to Jerusalem, in order to clarify the matter once and for all and reach a final decision.
The three courts in Jerusalem:
The Mishnah says: "Sheloshah batei dinin hayu sham" - there were three separate Sanhedrins sitting in Jerusalem:
"Echad yoshev al pesach Har Habayis" - "One sits at the entrance of the Temple Mount", a minor Sanhedrin of twenty-three judges, the first appellate court. Rashi's wording implies that this refers to the entrance close to the Temple itself, and as Tosafos describe it: one exiting the Temple encounters it immediately, meaning it was positioned at the inner edge of the Temple Mount rather than its outer edge. Others, including the Tiferes Yisrael, understand it literally, that it stood at the outer edge of the Temple Mount, on its eastern side.
"Ve'echad yoshev al pesach Ha'azarah" - "And one sits at the entrance of the Azarah", a second minor Sanhedrin of twenty-three judges, the second appellate court, at the entrance to the Temple courtyard.
"Ve'echad yoshev belishkas hagazis" - "And one sits in the Chamber of Hewn Stone", the Great Sanhedrin of seventy-one judges.
To set the geographic picture: The Temple Mount is five hundred by five hundred amos in area, and within it, in the area of the Cheil, stood the first court. Beyond it is the area of the Temple itself: to the east, on the far side, is the Ezras Nashim, measuring one hundred and thirty-five by one hundred and thirty-five amos, and to its west, toward the Holy of Holies, is the Azarah - one hundred and eighty-seven amos from east to west by one hundred and thirty-five amos from north to south. At the entrance to the Azarah sat the second court. The Chamber of Hewn Stone is not alongside the Ezras Nashim but in the Azarah itself, and it is divided: half of it is inside and half is outside (from north to south), because on the one hand it needed to be somewhat within the Azarah, and on the other hand the Great Sanhedrin could not have sat had it been entirely within the Azarah, and therefore half of it is outside, in the place where they are permitted to sit.
The order of appealing from court to court:
"Ba lo lazeh she'al pesach Har Habayis" - "He comes to the one at the entrance to the Temple Mount", the appellant first comes to the first appellate court at the entrance to the Temple Mount, and says: "Kach darashti vekach darshu chaveray, kach limadeti vekach limdu chaveray" - "Thus have I expounded and thus have my colleagues expounded, thus have I taught and thus have my colleagues taught". "Expounded" - this is how I explained in public why the matter is permitted, and this is how my colleagues explained it; "taught" - this is how I taught in the context of the yeshivah, through logical deduction, perhaps in a more private setting and not in public.
"Im sham'u - amru lahem" - "If they had heard, they told them", if they have a tradition regarding that halachah, they state it explicitly to them, and the parties return to their city, since the case is closed. It is worth noting carefully: this minor Sanhedrin rules solely on the strength of a tradition it has received; it is not authorized to introduce new rulings and does not raise logical arguments of its own as to why it is proper to permit or forbid, but rather only states what it has received. For this reason, if Rabbi Moshe does not accept their words at this stage, he is still not a zaken mamre, since he has not yet been overruled by the Great Sanhedrin itself.
"Ve'im lav - ba lahem le'oso she'al pesach Ha'azarah, ve'omer: kach darashti vekach darshu chaveray, kach limadeti vekach limdu chaveray. Im sham'u - amru lahem" - "And if not, they come to the one at the entrance of the Azarah, and he says: Thus have I expounded and thus have my colleagues expounded, thus have I taught and thus have my colleagues taught. If they had heard, they told them", if the first court does not possess a tradition, they turn to the second minor Sanhedrin at the entrance to the Azarah. Here too, if they have received a tradition on the matter, they instruct the appellants how to act.
"Ve'im lav - elu ve'elu ba'im leveis din hagadol shebelishkas hagazis" - "And if not, these and those come to the Great Court in the Chamber of Hewn Stone", everyone ascends to the chamber built of hewn stone, the seat of the Great Sanhedrin of seventy-one: Rabbi Moshe and the rabbis of his city, as well as the twenty-three judges from each of the two minor Sanhedrins. "Shemimenu yotzeis Torah lechol Yisrael" - "From which Torah goes forth to all of Israel", from there Torah goes forth to all of Israel, and this court is authorized to introduce new rulings even when it does not possess a tradition: to expound and derive through the principles by which the Torah is elucidated, and to reach a final and binding halachic ruling, "shene'emar: min hamakom hahu asher yivchar Hashem" - "as it is stated: from that place which Hashem shall choose", from the place which Hashem chose, which is the site of the Temple and the seat of the Great Sanhedrin.
He returned to his city:
"Chazar le'iro, veshonah velimad kederech shehayah lamed - patur" - "He returned to his city, and taught and instructed in the manner he used to teach, he is exempt", if Rabbi Moshe returns to his city and continues to teach and instruct his logical arguments as to why it is proper to permit the eruv, while the Sanhedrin forbade it, there is no liability in this. He learns Tractate Eruvin, states his original Torah insights, and explains why this is his opinion - and this is tolerated, since he is not instructing people on how to act in practice, but merely stating logical arguments.
"Ve'im horah la'asos - chayav" - "But if he gave instruction to act, he is liable", but if he instructed in practice, such as telling the public to build an eruv or to carry, or if he carried himself and relied on the eruv - whether he acted himself in opposition to the ruling or whether he instructed others to act against it - he immediately becomes a zaken mamre.
"Shene'emar: veha'ish asher ya'aseh vezadon... melamed she'eino chayav ad sheiyoreh la'asos" - "As it is stated: And the man who will act intentionally... this teaches that he is not liable until he gives instruction to act", the man who acts intentionally against the instruction of the Sanhedrin is the one who is liable, and from here we learn that he is not liable to strangulation until he gives instruction to act, meaning until he teaches others to act in opposition to what the Great Sanhedrin has ruled.
A student who instructed:
All this applies to a person who is a zaken, meaning he is mature and wise enough to be fit to sit on the Sanhedrin. Rashi specifies forty years of age. He must be a recognized elder, a sage who possesses semichah and is qualified to serve as a judge.
"Talmid shehorah la'asos - patur" - someone whose level is lower than this, who is a Torah scholar but has not yet reached the level of a sage who can be appointed, if he instructs others to act contrary to the ruling of the Sanhedrin - he is exempt from the law of a Zaken Mamre, since he is not an elder. And if we explain this according to the reasoning of the Maharal: we do not fear that a person who is not a distinguished sage will lead the nation to split in two, because he does not possess such power. While his action is terrible, he is not the Zaken Mamre whose punishment is strangulation.
The Mishnah states: "Nimtza chumro kulo" - his severity becomes his leniency. Seemingly, his action is sevenfold more severe: a person who is not fit to serve as a judge at all issues a ruling contrary to the Sanhedrin, knowing that they do not agree with him - and who is he to do such a thing? Nevertheless, the severity of his audacity and his transgression results in a leniency for him: since he is merely a student and not an actual elder, he is not liable for strangulation, because he has not reached the status of an elder from which a person can become a Zaken Mamre - a significant sage who rebels against the Sanhedrin.