Be'haaloscha, Bamidbar 11:16. Espah li shiv'im ish. How Many Members in Sanhedrin?

The Gemara in Sanhedrin 2a says that we learn from these pesukim that Sanhedrin has to have 71 people, the seventy stated plus Moshe. Ovi Mori HK'M asked, but Moshe was “shakul keneged Sanhedrin,” Moshe’s judicial status was such that he was considered equal to the entire remainder of the Sanhedrin; so how do you learn from here that Sanhedrin must have seventy one members? There is one opinion that Sanhedrin requires 70 people, another that it requires 71. If Moshe was equal to a separate Sanhedrin, then the Sanhedrin that included Moshe was the equivalent of 140 people, and a Sanhedrin without Moshe should indeed need 140 people! Also, he asked, how is it possible for Moshe to pasken alone? Only God Himself is called a “dan yechidi.” Furthermore, there is a din that kulo chayov, pattur-- that in capital cases, if all the members of the court find the defendant guilty, he is automatically found innocent, because unanimity in a capital case is evidence of prejudice, a failure of serious legal dialogue, and because there will be no masa umatan, they will be incapable of seriously considering exculpatory factors. So how could Moshe be dan by himself? There could not have been any give and take, any discussion, and so whatever decision he made would have been procedurally flawed!

The answer to both questions, Ovi Mori HK'M said, can be seen in the parsha of the Slov right before this passuk.When the people complained that they had nothing to satisfy their desire to eat meat, Moshe said to Hashem, it is impossible to satisfy these people, "mei'ayin li bossor?" As Moshe said later, there isn’t enough meat in the world, if I gave them all the fish in the sea, it wouldn’t be enough, where will I get it from, “he’anochi horisi es ho’om hazeh, he’anochi yeliditihu?” Did I conceive this nation? Did I give birth to them? What did he mean to add with this last phrase? Even if he had “horisi” and “yeliditihu," what's impossible is impossible!

From Moshe’s words we see that "impossible" presenting an insurmountable barrier depends on your relationship with the person in need. When a child needs something, a father's reaction is that he will do whatever he can, no matter how difficult, no matter if what they need is "impossible", he will try to do the "impossible." As my father hk'm put it, "Fahr ah Tatteh iz dos nit kein teretz." He used Bisya bas Pharaoh as an example: when she saw the child in the water, she stretched out her hand, although her hand could not possibly have reached him. No matter! You do what you can, and you don't even weigh the possibility of success. So first, Moshe Rabbeinu said "what they want simply does not exist." The whole world is not enough to satisfy their desires and needs. Then he said, if they are asking for the impossible, how do they expect me to do it? Am I their father? So Hashem told him, "Until now, you were like a father to the people. When you judged them, you didn’t judge as a dayan, you judged as a father judges his children. A father doesn’t need hagadas eidus, he doesn’t need shakla vetarya. But if you say that you are not their father, from now on you are only the gadol hador, and you can judge them as a dayan, as one of the seventy one.

With this we understand another thing. The instruction to Moshe to convene a Sanhedrin is placed in middle of the story of the People's complaint about not having meat to eat. There seems to be no reason for this apparently irrelevant interruption. Why does the Torah place the parsha of Sanhedrin here? The answer is that the way Moshe reacted and expressed himself in his response to the people's complaint was the reason he was told to gather a Sanhedrin and to join the Sanhedrin as one judge among the others. Until that point, he was dan not as a dayan but as a father. Moshe had gathered the Bnai Yisroel in Mitzrayim, he gave them courage and hope and identity, he brought them out, he split the Red Sea, he gave them the Torah. In National identity terms, we would call him the father of the nation. And more than that– he was a charismatic leader– the people see themselves as part of him, and he sees himself as part of them. Their individual existence is meaningless, as they exist only as reflections of each other; the state is a reflection of the personality of the leader. But when he said "they are asking for the impossible! Am I their father? Am I their mother?" he lost that status, and could only be dan as a dayan.

After I said this in a drasha, someone showed me that the Brisker Rov does ask the kashe on the Gemora in Sanhedrin (if Moshe was equal to the other 70, then we should say that a Sanhedrin without Moshe should comprise 140 members, not only 71.) The Brisker Rov answers that we see that Moshe Rabbeinu's din changed from being a shakul as soon as Hashem told him to gather the 70 people. But– and this is very important– the Brisker Rov does not even hint at any explanation for this change. Ovi Mori’s pshat improves the vort tremendously. The fact that people told him it is a Brisker vort is just because people have a yetzer hora to say “yeah, I saw that someone else says that already,” when in fact the other person just says a little nothing from the vort.

When I told this to HaRav Yitzchok Grodzinsky, a Rosh Kollel in Bnei Brak, the son of the last Mashgiach of Slabodkeh in Lithuania, I remarked that it is very much not a pshat that a Brisker would say, and Harav Grodzinsky added that it was, in fact, davkeh a Slabodker mehalach, emblematic of the oeuvre- the fundamental mussar spirit- of the Slabodkeh Yeshiva.