[Avodah] Apikores?

[Micha Berger]

On Sun, December 23, 2007 10:31 pm, R Elazar M. Teitz wrote:
:      First, there is no mention whatever of corporal punishment, and
: indeed the ability to administer corporal punishment is not
: curtailed by the absence of the Beis Din Hagadol from the Lishkas
: Hagazis.  It is capital punishment -- dinei n'fashos -- and
: capital punishment alone whose administration requires the
: presence in Lishkas Hagazis....

The Smag (Lav 213) says malkos does as well.

But first let me explain my meandering mind's take.

As I wrote in my earlier post, I understood "dinei nefashos" to mean
corporal punishment in addition to misas beis din. The mishnah on
Sanhedrin 34a divides the world of eidus into memonos and nefashos,
forcing us to place malqos into the dinei nefashos bucket.

On Sanhedrin 10a, Abayei says "malqos bimqom misah omedes" (from a
g"sh rasha-rasha) and then Rava uses this to derive that they require
a BD shel 23, eidim vehasra'ah. Even the Rambam (Sanhedrin 16:1), who
allows a DB shel 3 to perform malkos, makes a point of affirming
Abayei's equation.

LAD, the machloqes between the tana qama (BD of 3) and Rava (BD of 23)
is reiterated. The Rambam (Hil Sanhedrin 16:1) holds like Abayei (that
malqos is a derivative of misas BD) but also against Rava (we only
need a BD of 3 semuchin). On this issue, the aforementioned Smag
disagrees, and requires 23 semuchin as well as the Sanhedrin must be
in lishkas hagazis.

But it is even possible the Rambam would require the Sanhedrin in the
lishkah as well, depending whether the Rambam does would depend on
whether it's part of "bimqom misah" or part of the exception of only
requiring 3 dayanim. It would also depend on his usage of dinei
nefashos, is it like the mishnah in Sanhedrin?

Thanks for showing me that I was jumping through hoops to prove
something Rashi says befeirush -- "lo hayu maspiqim". 2nd guessing
Rashi is a nice enough thing that I don't feel entirely silly for
taking the time to find the gemara and then missing the Rashi on it.

In any case, even if including malkos is an overreach, my original
point would stand... The Sanhedrin chose galus over having an
Inquisition imposing will on non-compliant masses, even when the
accused were accused of murder. At least, not if the Inquisition would
include death or intentional risk to life.

SheTir'u baTov!
-micha

-- 
Micha Berger             One who kills his inclination is as though he
micha at aishdas.org        brought an offering. But to bring an offering,
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