Operationalizing Pesak, part i: Requiring Gemir and Sevir
The other day in Sanhedrin 5a, after a brayta stated that a mumcheh larabbim could judge monetary cases alone, we saw the Talmudic Narrator discuss a claim by Rav Nachman and Rabbi Chiyya that they were able to judge monetary cases alone.
אִיבַּעְיָא לְהוּ: כְּגוֹן אֲנָא דִּגְמִירְנָא וּסְבִירְנָא וּנְקִיטְנָא רְשׁוּתָא, אֲבָל לָא נְקִיט רְשׁוּתָא – דִּינֵיהּ לָא דִּינָא? אוֹ דִילְמָא: אַף עַל גַּב דְּלָא נָקֵיט רְשׁוּתָא – דִּינֵיהּ דִּינָא?
A dilemma was raised before the Sages: What is the meaning of: Such as I, in the statements of these Rabbis? Did they intend to say: Such as I, in that I have studied and have the skills to extrapolate and derive new rulings on the basis of earlier decisions, and have also received permission to judge as the lone judge? But accordingly, if one has not received permission to judge as the lone judge, his judgment is not a valid judgment? Or perhaps this is not the correct reading of the statements, and the halakha is that even though he did not receive permission to judge as the lone judge, his judgment is nevertheless a valid judgment?
The gemara’s conclusion is based on an incident with the same Rav Nachman’s son, Mar Zutra b. Rav Nachman, a fourth-generation Amora, who erred. Which makes the Talmudic Narrator at least fifth-generation or later.
It concludes that such permission (from the Exilarch or Prince) is not necessary except for personal financial protection in case of error. Note that the framing of the question, דִּגְמִירְנָא וּסְבִירְנָא, alongside נְקִיטְנָא רְשׁוּתָא = obtaining permission / (I would call it) authorization, was not in the words of those earlier named Amoraim at all. It was an expansion of merely כְּגוֹן אֲנָא.
The Talmudic Narrator doesn’t innovate like this, out of whole cloth. Rather, he pulls from named Amoraim, in this case Rava (with Abaye) discussing the required qualifications of a student before the Sanhedrin who erred in judgement, that his potential objection would have mattered, namely תַּלְמִיד וְרָאוּי לְהוֹרָאָה. That is, in Horayot 2b,
וְיָדַע אֶחָד מֵהֶן שֶׁטָּעוּ אוֹ תַּלְמִיד וְרָאוּי לְהוֹרָאָה. תַּרְתֵּי לְמָה לִי? אָמַר רָבָא: אִיצְטְרִיךְ, סָלְקָא דַּעְתָּךְ אָמֵינָא הָנֵי מִילֵּי גְּמִיר וּסְבִיר, אֲבָל גְּמִיר וְלָא סְבִיר – לָא.
§ The mishna teaches: And one of the judges knew that they erred, or if he was a student and he is qualified to issue halakhic rulings. The Gemara asks: Why do I need two cases? As a student qualified to issue halakhic rulings is the equivalent of one of the judges, why did the tanna mention both? Rava said: It was necessary to state both, as it may enter your mind to say that this statement that he is liable applies specifically to one who is learned and analytical, but that one who is learned but not analytical, no, he should not be liable to bring an offering. Therefore, the tanna cites both the case of a judge and the case of a student qualified to issue halakhic rulings, to teach that even one who is learned but not analytical is liable in this case.
אֲמַר לֵיהּ אַבָּיֵי: לְהוֹרָאָה גְּמִיר וּסְבִיר מַשְׁמַע! אֲמַר לֵיהּ, אֲנָא הָכִי קָאָמֵינָא: אִי מֵהַהִיא – הֲוָה אָמֵינָא הָנֵי מִילֵּי גְּמִיר וּסְבִיר, אֲבָל גְּמִיר וְלָא סְבִיר – לָא, תְּנָא רָאוּי לְהוֹרָאָה, מִמִּשְׁנָה יְתֵירָה: אֲפִילּוּ גְּמִיר וְלָא סְבִיר, סְבִיר וְלָא גְּמִיר.
Abaye challenged this and said to Rava that the term: A student qualified to issue halakhic rulings, indicates that he is both learned and analytical. Rava said to Abaye: This is what I am saying: If the tanna had taught the halakha from that first halakha with regard to one of the judges, I would say that this statement applies only to one who is both learned and analytical, but if he was learned and not analytical, no, he would not be liable. Therefore, the tanna taught the additional case of a student qualified to issue halakhic rulings, and from the extraneous case in the mishna one can infer that the halakha applies even to one who is learned but not analytical or one who is analytical but not yet learned. Since he associates his action with himself, he is liable.
We find this requirement elsewhere in masechet Sanhedrin. Thus, on the same page, but 5b, about deciding something in the realm of practiced halacha (as opposed to a monetary judgement), the same features are required, and no others.
יוֹרֶה, יוֹרֶה. אִי גְּמִיר, רְשׁוּתָא לְמָה לִי לְמִישְׁקַל? מִשּׁוּם מַעֲשֶׂה שֶׁהָיָה.
With regard to the permission granted to Rabba bar Ḥana and Rav, the Gemara had related that Rabbi Ḥiyya asked Rabbi Yehuda HaNasi: May he teach people and issue rulings concerning what is prohibited and what is permitted? And Rabbi Yehuda HaNasi responded: He may teach. The Gemara asks: If he had studied and mastered the relevant halakhot, why do I need him to receive permission? The need for formal authority is understandable when it comes to serving on a court to judge cases of monetary law, but any knowledgeable person should be qualified to answer questions about ritual law. The Gemara explains: The need for such permission is due to an incident that took place.
דְּתַנְיָא: פַּעַם אַחַת הָלַךְ רַבִּי לְמָקוֹם אֶחָד, וְרָאָה בְּנֵי אָדָם שֶׁמְּגַבְּלִין עִיסּוֹתֵיהֶם בְּטוּמְאָה. אָמַר לָהֶם: מִפְּנֵי מָה אַתֶּם מְגַבְּלִין עִיסּוֹתֵיכֶם בְּטוּמְאָה? אָמְרוּ לוֹ: תַּלְמִיד אֶחָד בָּא לְכָאן וְהוֹרָה לָנוּ: מֵי בְצָעִים אֵין מַכְשִׁירִין. וְהוּא מֵי בֵיצִים דְּרַשׁ לְהוּ, וְאִינְהוּ סְבוּר מֵי בְצָעִים קָאָמַר.
As it is taught in a baraita: Rabbi Yehuda HaNasi once went to a certain place, and he saw people there kneading dough while they were in a state of ritual impurity, and they believed that nevertheless, the dough remained ritually pure. Rabbi Yehuda HaNasi said to them: For what reason are you kneading your dough in a state of ritual impurity? They said to him: A certain Torah scholar came here and taught us that water from swamps [mei betza’im] does not render food susceptible to contract ritual impurity. Therefore, they would take water from swamps and knead dough with it, in the mistaken belief that such dough would not be susceptible to ritual impurity. But in reality, what he taught them was that water of eggs [mei beitzim], i.e., the albumin of eggs, does not render food susceptible to impurity, as it is not considered water. But they thought he said: Water from swamps.
Again, this seems like the Talmudic Narrator who assumes that גְּמִיר is obviously present and necessary, and the only question is why authorization is needed. סביר is not mentioned, so we should think if it is needed, but it seems like it should be required for non-trivial halachic questions.
On daf 7b, we see someone appointed who was not gemir / learned, as a judge:
דְּבֵי נְשִׂיאָה אוֹקְמוּ דַּיָּינָא דְּלָא הֲוָה גְּמִיר. אֲמַר לֵיהּ לִיהוּדָה בַּר נַחְמָנִי, מְתוּרְגְּמָנֵיהּ דְּרֵישׁ לָקִישׁ: ״קוּם עֲלֵיהּ בְּאָמוֹרָא״. קָם, גְּחֵין עֲלֵיהּ, וְלָא אֲמַר לֵיהּ וְלָא מִידֵּי.
In the house of the Nasi, they appointed a judge who was not learned. This judge said to Yehuda bar Naḥmani, who was the interpreter of Reish Lakish and whose role was to repeat and explain the Sage’s lectures: Stand over me as an interpreter, and I will lecture. Yehuda bar Naḥmani arose and bent over him in the conventional manner, to hear the judge’s words. And, being ignorant, the judge did not say anything to him.
And, going back to daf 3a, the reason for three unordained judges in monetary cases is that at least one will be gemir, learned.
אַטּוּ בִּתְלָתָא מִי לָא הָווּ יוֹשְׁבֵי קְרָנוֹת? אִי אֶפְשָׁר דְּלֵית בְּהוּ חַד דִּגְמִיר. אֶלָּא מֵעַתָּה, טָעוּ – לֹא יְשַׁלְּמוּ? כׇּל שֶׁכֵּן דִּנְפִישִׁי יוֹשְׁבֵי קְרָנוֹת!
The Gemara asks: Is that to say that with three judges they will not be among those who sit idly on street corners? How is this concern addressed by increasing the number of judges? The Gemara answers: When there are three judges it is impossible, i.e., highly unlikely, that there is not among them one who is learned. The Gemara asks: If that is so, then if they err they should not be liable to pay compensation, since rabbinic law authorizes laymen to judge cases of this nature. The Gemara answers: If the judges will be exempt from paying compensation in the event that they err in their judgment, this lack of accountability will lead all the more so to having many of those who sit idly on street corners assume the role of judges.
Although there is some debate whether this is an effective homonym — whether gamir and savir by hedyot is that same as the gemir / sevir by Torah scholar students.
It is difficult to find deep discussions of just what these qualities mean. In translations to other languages, such as to English, the translators have to translate each word, from an array of candidate words. At the least, this provides some commentary. Meanwhile, quoting commentary in Rabbinic Hebrew can just run with גמיר and סביר and get away with not translating it, so it has to be a conscious effort to define it. So, I don’t know, for instance, how Rif and Rosh would understand these terms.
The terms to define include, and qualities for someone to have:
Gemir
Sevir — but these might be different for different individuals
Mumcheh (laRabbim) — which might be the same as the above, or a separate requirement, found at the top of 5a
Medameh mileta lemileta — correctly, found elsewhere
Another quality for people to have — and I should probably return to it in another post, is internalized knowledge. This is the melech vs. kohen requirement on Sanhedrin 7b, which I hope to return to in another post.
Some possible explanations of the terms. Rav Steinsaltz’s English translation has “Such as I, in that I have studied [גמיר] and have the skills to extrapolate and derive new rulings [סביר] on the basis of earlier decisions.” Elsewhere, these are “learned and analytical”.
Artscroll has “like me, who has ammassed knowledge of monetary law from his teachers, and who can fiurther interpret that body of knowledge on his own.”
Rashi on Sanhedrin explains:
דגמירנא - שמועות דינין מרבותי:
וסבירנא - יודע אני להוסיף וליישב טעמים מדעתי:
See Teshuvot Mahari Weil 146 about the definition of Mumcheh Larabim. Is yachid mumcheh larabbim the same as gemir and sevir ? Does it mean (also / primarily) tested? It seems, according to (Hagahot) Asheiri, it means all this.
בפ"ק דסנהדרין: ת"ר דיני ממונות בג' ואם היה מומחה לרבים דן ואפילו יחיד כו'.
וכתב האשירי וז"ל: ומומחה לרבים דהיינו גמיר וסביר,
והכי שדר רב שרירא גאון ז"ל: יחיד מומחה דחשיב כרב נחמן בדורו דפקיע במשנה ובתלמוד ופקיע נמי בשקול הדעת ומעיין בדינים כמה שני ומנסו ליה רבנן זימנין סגיאין לא חזו ליה טעותא כגון האי הוה מומחה לרבים.
ועיקר לשון מומחה מנוסה כדתנן: יוצאין בקמיע מומחה, ומפרש בגמרא היינו דאיתמחי קמיע, הילכך בעינן דיין מומחה שמנוסה לרבים וחכמתו גלויה ומפורסמת לרבים דן אפילו יחידי ויכול לדון את האדם אפילו בעל כרחו. עכ"ל האשירי.
The errors which don’t appear might well align with to’eh bidvar Mishnah / beshikul hada’at that we see elsewhere.
The gemir / perhaps sevir that we find by three hedyots might be different. So, let us look at Tur, Choshen Mishpat siman 3. In seif 1, he writes:
אין ב"ד בפחות מג' וכל ג' נקראים ב"ד ואפילו הדיוטות וכתב הרמ"ה דוקא דגמירי דינא אע"פ דלא סבירי [ס"א סמיכי] ויראה מדבריו דבעי שלשתם גמירי אבל א"א הרא"ש ז"ל כתב בג' אי אפשר דלית בהו חד דגמיר ששמע או קרא בספרים ויודע סברות בדינין אבל אם לית בהו חד דגמיר פסולים לדינא:
So about the three hedyotot, the Rama (not Rav Moshe Isserles, but Rabbi Meir Abulafia, who you can see in his Yad Rama commentary) is that they learned the law, even though they were not ______. And here is an interesting girsological issue. Is it that they were not sevirei — that is, that they didn’t have the analytical skills to extrapolate? Or is it that they did not receive ordination. It seems obvious that they would not have this, because they are hedyotot. Unless it is saying that, despite the lack of ordination, they are learned.
Another issue is that Rama seems to require all three to be gemiri. In contrast, the Rosh requires only one to be so. That seems like it should be obvious, because it is explicit in our Talmudic text. The Tur’s commentators grapple with this.
Rosh also potentially differs in that he has חד דגמיר ששמע או קרא בספרים ויודע סברות בדינין. Not only that he heard (from teachers, which is what Rashi wrote) but another option is that he read sefarim. Also, there is yodea sevarot be’dinin. Is this knowledge of sevarot what Rosh would consider sevir? That he doesn’t only know facts, but knows the methods of analysis? And that this is something that is implicitly required, even though the gemara only mentioned one of the pair, gemir? Note that in Shulchan Aruch, this translates to a gloss of (דאי אפשר דלית בהו חד דיודע סברות בדינים אבל אי לית בהו חד דידע פסילי לדון) which only has sevarot mentioned.
Meirat Einayim on Shulchan Aruch comments that this is a new definition of gemir and sevir for the hedyotot, so effectively it is gemir usevir prime:
דאי אפשר דלית בהו חד דיודע סברות כו' ל' הטור א"א דלית בהו חד דגמיר ששמע או שקרא בספרים ויודע סברות בדינים עכ"ל ואין זה גמיר וסביר הנזכר בגמרא ופוסקים דההוא מומחה מיקרי ויכול לדון יחידי ועפ"ר:
Recently, there has been some discussion about whether ChatGPT can pasken. Perhaps we should consider these qualities, whether they are present, and whether they are sufficient. I am saving that for a follow-up post in this series. Stay tuned!