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 Shabat Parashat Devarim| 5766P’ninat MishpatMishpat Ve halacha Be Israel - Part XXI - “We Do Their Agency” - Harav Yedidya Kahane
Last week we saw the sugya in Gittin, dealing with the concept of shlichutayhu ka’avidinan (=shl-ka). This means that we do the agency of semuchim (=sem),those with full ordination, who no longer exist. We saw that it is needed in all monetary matters when beit din imposes its authority on the parties. Ostensibly, the idea of shl-ka is that when the non-sem judge, it as if the sem are judging. We will now investigate whether that concept is Torah law or a rabbinic institution.
At first glance, shl-ka works like any other shelichut (agency), which is a Torah concept that one’s agent is like himself. However, this is a difficult contention for a few reasons. Firstly, the Torah set the level of expertise needed to judge, and halachic devices cannot transfer expertise. Secondly, the rules of agency apply only when the one who makes the agent is still alive when the agency is carried out. Thus even if shl-ka can explain the working of a non-sem court when sem exist, it should be impossible in our days when there are no sem.
Rishonim disputed the use of shl-ka for conversion. The gemara (Yevamot 46b) derives that conversion requires a beit din of three. If a full-fledged beit din is required, sem are also required. How then can we do conversions in our times? Tosafot (Gittin 88b) says that it is based on shl-ka from previous generations. Again we must ask: how can one be the agent of another who is not alive? The Rashba indeed rejects the possibility of using shl-ka here, claiming that it is not an area of halacha where the Rabbis have the ability to alter a Torah law as they can by monetary affairs and even matters of marriage. It is clear, then, that the Rashba views shl-ka as a rabbinic concept, which is more limited in scope. He says that while conversion requires three, there was never a need for sem. According to the Rashba, while the results are those of agency, the mechanism, as a rabbinic institution, need not fit the rules of shelichut. But how does it work from the Torah according to Tosafot?
The Ramban says that there is a difference between adjudicating before non-Jews and before a beit din of Jewish non-sem. He says that if the two sides want to go before non-sem and accept their ruling, they may do so. However, before non-Jews it is forbidden even if the sides agree and even if in a given case their rulings are identical to ours. If so, whereas the prohibition to adjudicate before a non-Jewish court is more absolute, the prohibition of non-sem courts is just an issue of authority. Therefore, there may not be a need for a full shelichut for non-sem. The nation can decide by means of its beit din in Israel in the time of sem that adjudication could continue even when there would be no more sem. With that authority, they can continue judging with their own abilities without the need for actual shelichut, which we saw is problematic.
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