We are deep into the Talmud’s investigation of the zaken mamre, the rebellious elder who is executed for refusing to accept being overruled by his peers. Are there limitations on who can be executed for being a rebellious elder? The mishnah on Sanhedrin 86 taught us that the zaken mamre cannot be a student, and a beraita on 87 revealed that only the most senior judge on a court can be deemed a zaken mamre. On today’s daf, Rav Kahana suggests another way of limiting the applicability of this rule:
If the rebellious elder says his ruling on the basis of a tradition (he received from his teacher), and the members of the court say their ruling on the basis of the tradition (they received from their teachers), the rebellious elder is not executed. And if the rebellious elder says: “This is the correct understanding in my eyes,” (and does not claim that his ruling is based on tradition), and the members of the court say: “This is the correct understanding in our eyes,” — he is not executed. And all the more so, if he says his ruling on the basis of tradition, and the members of the court say: “This is the correct understanding in our eyes,” — he is not executed. He is not executed unless he says: “This is the correct understanding in my eyes,” and the members of the court say their ruling on the basis of the tradition.
Rav Kahana, like his colleagues, recognizes a difference between rulings that have been received from an authority of a previous generation and those that are derived logically. If both the zaken mamre and his peers are reporting traditions from a previous generation, he doesn’t face the death penalty for sticking to his guns — even when it means disagreeing with the highest court in the land. Nor is he executed if both he and the court are using legal analysis to make a ruling, without recourse to precedent. All the more so, if he is quoting his teacher, and they are making a reasoned argument, he escapes punishment. The most serious case, for Rav Kahana, and the only one in which he merits execution, is one in which he is arguing with logic against an established teaching which his opponents have received. Presumably, this is the case in which his violation is most disrespectful of the system.
Rabbi Elazar disagrees:
Even if he states what he has heard, and they say “this is how it appears to us,” (without citing tradition) he is killed, so that disputes do not proliferate among Jews.
Like Rabbi Shimon on yesterday’s daf, Rabbi Elazar on today’s page would sentence the rebellious elder to death in any of these scenarios. But he uses the language of “even if,” suggesting that he too recognizes a hierarchy between these different cases.
When Rav Kahana limits the liability of the zaken mamre to the case in which he rules based on reasoning, against a known precedent, he is conceding that sometimes these logical arguments, though less authoritative, are the most compelling ones. The rebellious elder is dangerous precisely because he holds the power to sow division within the community with a shiny and compelling new interpretation of the Torah.
The rabbis would have been all too aware of historic characters who undermined the Jewish community with their precedent-breaking approach to the tradition. The model they place in contrast to these characters is the extraordinary Akavya ben Mehalelel, who disagreed with the rabbis on four points of law, and who refused to retract any of his opinions, even when his colleagues offered him seniority on the sanhedrin in exchange for falling in line. His response was:
I would rather be called a fool all my life than be made a wicked person before God for even a moment, and nobody should say, “He retracted in order to gain power.” (Mishnah Eduyot 5:6)
On his deathbed, Akavya instructed his own son to accept the ruling against him, since that was the majority of the court. All of Akavya’s actions demonstrate exactly the opposite tendency from that of the zaken mamre. He has no interest in a promotion, unlike the zaken mamre, who (we learned on yesterday’s daf) is the most senior member of his court, and yet cannot accept the limitations of that powerful position and continues to rule against his colleagues. And whereas the zaken mamre is someone who tries to bring followers over to his position, Akavya does the opposite, letting his position die with him in the name of communal unity.
May we all merit to have Akavya’s humility, which is clearly expressed in his most famous teaching, Pirkei Avot 3:1:
Mark well three things and you will not come into the power of sin: Know from where you come, and where you are going, and before whom you are destined to give an account and reckoning. From where do you come? From a putrid drop. Where are you going? To a place of dust, of worm and of maggot. Before whom you are destined to give an account and reckoning? Before the King of the kings of kings, the Holy One, blessed be He.
Read all of Sanhedrin 88 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on March 15, 2025. If you are interested in receiving the newsletter, sign up here.
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