Today’s daf begins with a mishnah:
Cases of monetary law are adjudicated by three. This litigant chooses one for himself and that litigant chooses one for himself, and the two of them choose one more for themselves. This is the statement of Rabbi Meir.
Before we even get to the dispute around this statement, we first have a mystery to solve: Adjudicated by three what? Three judges or three courts, each of which consists of three individuals? And when the mishnah refers to “the two of them” who choose the third, is it referring to the litigants, the two selected individuals, or the two courts?
Rabbi Meir’s colleagues have their own take, which sheds some light on these questions:
Two judges choose one more for themselves.
From this assertion, we see that the rabbis believe we’re talking about judges, not courts. Perhaps that’s why the Gemara starts by interrogating this very question:
For what purpose does this litigant choose one court for himself and that litigant choose one court for himself; isn’t it sufficient to judge the case with three judges?
This is a fair question. Three courts would mean nine judges are involved in the case, which seems like overkill. But that indeed how the Gemara initially reads the mishnah as positing:
This is saying: In a case where this litigant chooses one court for himself (i.e., he requests to be judged before three specific judges), and that litigant chooses one other court (of three judges) for himself, both of them choose one more (court) for themselves.
According to this interpretation of the mishnah, if each litigant chooses an entire court of three they want to judge the case, each disqualifies the other’s court because, really, would you trust the court your opponent selected? With those original six judges tossed, the process moves on to choosing a separate court of three judges.
But is this really what the mishnah is saying? And what’s going on with the “two of them” who choose the third judge?
Let’s start with the second question:
We learned: And the rabbis say: Two judges choose one more for themselves. And if it enters your mind (to interpret the mishnah) as we said, (that each litigant chose) a court, (this statement is difficult); after each court was disqualified, (shall the members of both courts) go and choose another court for themselves?
There’s something silly, as the Gemara points out, about the two disqualified courts choosing their own replacement. If they’re out of the picture, how can they choose a third court? But that’s not all:
And furthermore, why does this litigant choose one for himself and that litigant choose one for himself?
The entire process posited by this interpretation of the mishnah is also a bit outlandish: Why bother selecting the first two courts if they’re just going to be mutually disqualified?
With this interpretation cast aside, the Gemara tries another:
Rather, this is what the mishnah is saying: When this one chooses one judge for himself, and that one chooses one judge for himself, the two choose one more judge for themselves.
Now the Gemara proposes another scenario: Each litigant chooses one judge, and then the two litigants choose a third judge together. That probably puts a lot of pressure on the third judge, since they’re the one mutually credible authority, but at least it’s a reasonable process, certainly more reasonable than the other possibility.
The later law codes revise this slightly, citing a discussion further down the daf to hold that “the two of them” is the two judges, not the two litigants, whose consent is unnecessary. However, this gives us a clear sense of the basic process for selecting judges and gives us an answer to the case of the missing noun. It’s judges, not courts.
Read all of Sanhedrin 23 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on January 9, 2025. If you are interested in receiving the newsletter, sign up here.
Help us keep Jewish knowledge accessible to millions of people around the world.
Your donation to My Jewish Learning fuels endless journeys of Jewish discovery. With your help, My Jewish Learning can continue to provide nonstop opportunities for learning, connection and growth.
