[Avodah] Apikores?

[Elazar M. Teitz]

I 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....>

RMicha Berger responded:
<The Smag (Lav 213) says malkos does as well.>

    True, but as RMB subsequently quoted, the Smag also says that malkos requires a beis din of 23, completely equating it with dinei n'fashos.  The Rambam states explicitly (Sanhedrin 16:2) that a BD of smuchim can administer malkos even bizman hazeh, b'chol makom.

RMB: 
<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.>

     The Mishna (which is 32a) does not discuss malkos.  It is actually in neither "bucket" fully.  For the number of dayanim, it is like dinei mammon; for the din that if BD found him patur the case  can not be re-opened, it is like n'fashos. For the other distinctions between mammon and n'fashos mentioned in the mishna, there is no clear statement in the g'mara to which "bucket" malkos belongs, but see below.    

RMB:
<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.>

     Not quite. Abayei does _not_ say "malkos bimkom misah omedes," but quotes the g'zeira shava of "rasha, rasha."  It is only Rava who says that malkos bimkom misah omedes. Neither is stating his own opinion lahalacha. They are using their respective sources to explain Rabbi Yishmael's opinion that malkos requires a BD of 23.

RMB:
<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).>

     There is no machlokes of the tanna kamma and Rava (which would be an impossibility, Rava being an amora.)  Nowhere does Rava state that he requires a BD of 23 for malkos.

    The Rambam paskens that a BD of only 3 is needed, as is to be expected, since the requirement of 23 is the da'as yachid of R. Yishma'el.  He mentions that malkos is in place of misa (which is Rava's expression, not Abaye's), but derives no dinim from it.  In point of fact, that malkos shares a din with misa is derived in the g'mara (33b) from the g'zeira shava cited on 10a by Abaye (and Tosafos on 33b asks that this should be a question on Rava, since the g'mara quotes a b'raisa that derives the dinim for malkos from that g'zeira shava, while Rava (who uses the reasoning of malkos bimkom misa omedes) seems not to hold of the g'zeira shava). The Rambam interprets this as referring to all matters (other than number of dayanim) mentioned in the mishna -- poschin min hatzad, et al.; Rashi on 33b seems to say that the reference is only to not re-opening a case after a verdict of patur.

RMB:
<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?>

     As above, the Rambam explicitly does not consider the presence of Sanhedrin in Lishkas Hagazis a prerequisite for the administration of malkos.

EMT
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