Our Gemara on Amud Beis continues to discuss the criteria for an erroneous ruling that would require the Sanhedrin to bring a sacrifice. Since it first needs to be a fully qualified ruling, if it later turned out one of the judges was unfit, no obligation for a sacrifice is incurred since the ruling was never complete. One example given of a judge who is unfit is an “old man, no longer fit to have children.”

There is some dispute among commentators as to whether there are two or three different disqualifications. Is just an extremely elderly person disqualified, even if he had children? Is the disqualification only for one who never had children, or even for one whose children died and he is now childless? (See Rashash on our daf.) Rashi on our Gemara wonders why being elderly alone is a disqualification, which implies that Rashi believes the Mishna to be describing two separate cases: elderly OR childless.

The reason for disqualification of one who has no children is explained by Rashi (“Zaken,” Sanhedrin 36b) as follows: “He has long forgotten the travails of raising children, and so he does not tend to be merciful, and likewise one who is infertile and never can have children.”

From this Rashi it seems we have two subsets of the childless: (1) The elderly person who no longer is raising children and therefore has become less patient and inclined to mercy. (2) A person who is unable ever to have children, who also will be lacking in a merciful outlook.

This idea about the requirement of a merciful attitude for a dayyan reminds me of a discussion I had with my father Z”L many years ago. I was troubled by the problem of subjectivity in Halacha. I heard a rav taking a very strong position that it is heretical to assume that a posek’s personal attitude shapes his psak. While this seems like the intellectually correct idea—how can we trust the sages if we think their personal biases or politics affect their rulings? Yet, whether we understand it or not, common sense shows a strong correlation between the usually stringent rulings of Beis Shammai and their relative impatience, versus the house of Hillel’s lenient trend, humility, and patience. (See Eiruvin 13b, which states the Halacha is in accordance with the house of Hillel due to their patience and regard for their opponents’ opinions, as well as Shabbos 31a where Hillel is forbearing toward a potential convert who seemed like a “nudnick,” while Shammai shooed him away.)

I asked my father his opinion, and he said without a moment’s hesitation: “If the dayyan’s life experience and disposition did not matter, why would an elderly or childless person be disqualified?” Q.E.D!

What an intellect my father had! Chaval de’avdin v’shelo mishtakchin—Alas for those we have lost and who cannot be found! (By the way, some mistranslate mishtakchin as “forgotten,” because they often hear it said at a shiva house and believe the phrase means, “Alas for those we have lost and will not be forgotten!” But that is not the correct translation.)