Dvar Torah for Shoftim #2: A conflicting view of יָמִין וּשְׂמֹאל

The previous dvar Torah addressed the commandment לֹא תָסוּר, מִן-הַדָּבָר אֲשֶׁר-יַגִּידוּ לְךָ--יָמִין וּשְׂמֹאל, not to divert from what the central court decides, right or left. Rashi, following Sifrei, explains that even if they say regarding right that it is left or regarding left that it is right, you should listen to them.

Here I present a conflicting view. In Yerushalmi Horayot 1:1 we have the following statement:

"Like this that the Brayta states: perhaps if they said to you regarding right that it is left and regarding left that it is right you should listen to them. Therefore the pasuk tells us (talmud lomar) "to go (lalechet" right and left: that they tell you regarding right that it is right and on left that it is left."

This is exactly the opposite of Rashi and the Sifrei. Only right on right and left on left, but if they are wrong, you do not listen to them.

However, I am fairly certain that we can dismiss this yerushalmi as an error. Let me explain.

A parallel gemara exists in Bavli Horayot 2b. The basis of both of these gemarin (plural gemara) is the first mishna in horayot which *seems* to say that a if a bet din makes a mistake in ruling and one of the judges knew that they made a mistake, or a talmid who is fitting to give horaah knew, and one of the judges or the talmid then goes and acts on the faulty horaah, he is chayav (a sin-offering) since he did not rely on the bet din.

Now, the gemara Bavli asks why he is chayav, and concludes that he, the judge or student who acted, is chayav a chatat because he erred in "mitzvah lishmoa divrei chachamim." That is, he thought that even though he knew they judged in error, he should follow them because one should follow what the court rules, that is, I would say by way of explanation, even if they say "al yemin shehu semo`l."

The yerushalmi is dealing with the same question and comes to the same conclusion. Thus it is a parallel gemara.

However, note that I said earlier "seems." In truth, it has been shown that that is not the meaning of the mishna. Dr. Steinfeld, who I took for Horayot I last semester, wronte articles on the subject and demonstrated it to us sufficiently that I am convinced of this. I will not lay out all the proofs for this, but rather refer you to the article if you are interested.

The real meaning of the mishna is that if one of the judges, or a talmid who is fitting to rule is sitting before the court, knows that they are in error, then if a yachid, an individual, then goes and acts in accordance with the ruling of the bet din, he is himself chayav a korban and connot rely on the one given by the court. This is because in general when there is a horaat bet din, the individual is excused, but here, there was a fault, a pegam, in the horaah of the bet din, so it is not a true horaah, so he cannot be called one who relies on bet din.

Even though a cursory reading of the gemara seems to show that Abaye and Rava concur with the first reading, this is a result of various girsa changes that we can trace by looking in old manuscripts. In reality, they concur with the second reading of the mishnah I presented.

The stama degemara, which is a savoraic layer of the gemara, was faced with a problem in the gemara as a result of girsa changes and misunderstood the mishna and as a result offers in an anonymous section, the answer that the judge or student was the actor and made a mistake in "mitzvah loshmoa divrei chachamim."

The parallel yerushalmi is addressing the same issue, and also looks to be a stama digemara, and thus can be partially dismissed as savoraic and based on an erroneous reading of the mishna and earlier layers of gemara.

It still is important to show that a savora had this attitude towards "yamin usmo`l." However, who will win out, the savora or the Sifrei? I would have to go with the Sifrei.

But the game is still afoot! After all, the savora did not make this up! Or, at least, the savora in the yerushalmi did not! He after all, cites a brayta/tanaitic statement. He said "tno rabanan!"

Where is this tanaitic statement? We do not see it in the Tosefta, or in any section of gemara in the amoraic layer. Where did our savora see it?

The answer, I am fairly certain, is that he saw it in מדרש תנאים לדברים פרק יז. Midrash Tanaim has a similar statement, which is actually much closer to the yerushalmi than the Sifrei in terms of language. (Thanks by the way go to Eliyahu Segal, who sent me a bunch of "yamin usmo`l texts after searching on Bar Ilan for me.)

Anyway, the text of the Midrash Tanaim is as follows:
ועשית על פי הד' שומע אני יהא שומע ואינו עושה ת"ל ועשית: מן המקום ההוא שמשם תורה יוצאה לכל ישראל: ושמרתלעשות ככל אשר יורוך מנ' שאם יאמר לך על שמאל שהיא ימין ועל ימין שהיא שמאל שמע לדבריהם ת"ל ככל אשר יורוך

"In all that they instruct you: Whence that if they tell you regarding left that it is right and regarding right that it is left, you should listen to their words? Talmud Lomar, *like all* that they instruct you."

Here, like in the yerushalmi, the basic assumption that right-right and left-left are obvious, but we shall discuss right-left and left-right exists. Further, they make an assumption, and the talmud lomar either supports that assumption (Midrash Tanaim) or destroys the hypothesis.

I would never venture to say Sifrei/yerushalmi are the same source, but with a corrupt girsa. What about Midrash Tanaaim/yerushalmi? It is a possibility, given that we do not find this brayta elsewhere, it is of the same structure, and is used by a stama degemara to justify and answer a question arising in a reading of a gemara that is flawed. The brayta may has started out in this varieant form or in multiple forms (one in accordance with Midrash Tanaim), but the one chosen was the one that would explain the gemara for the savora.

On the other hand, we might have a machloket between Yerushalmi and Midrash Tanaim, which luckily was brought to the fore as a result of this issue in Horayot.

Update: Upon further reflection, I think what I called "the other hand" is much more likely. That is, we have a genuine machloket, which we only lucked into as a result of the issue in Horayot. I think this because just because the Mishnah in the beginning of Horayot does not accord with the final reading given in that stama, he refers to another, orthogonal issue about whether a zaken mamre is obligated to follow. This can be true independently, and the wording of the brayta is different enough from that of Midrash Tanaim that it looks to be a genuine machloket.