Permission to Judge, Permission to Teach

So we discussed two types of permission a sage requires to do his job in Rav M's class today. The first is permission to act as a Judge in monetary cases, while the second is permission to teach practical Halacha.

Torah Judgement vs. Kingly Judgement

The King as Judge

What's the issue? This is how I understood it, keeping in mind that I missed a few classes: Today we don't have smicha going back to Moshe Rabeinu, so how can a sage act as a judge in a monetary case? There is another track to acting as Judge: the track of a King. A king from the tribe of Judah has the divine right to rule over Israel and this is independent of smicha. So the King's right to judge is not based on his Torah knowledge as with smicha, it's based on his right to rulership.

Permission to Judge

Now, in the time of the Gemara there was no king, but there were the נשיא and the ריש גלותא and their right to rule the community in exile is based on that of the King. So, their ability to pass judgement in monetary cases is based not on their being a representative of Torah law per say, but on the principle of הפקר בית דין הפקר, basically that the King has the right to decide to take away your property when appropriate. That's where the issue of permission comes in. If only the נשיא and the ריש גלותא have the right to judge monetary cases, then any sage who wants to judge a monetary case must do so with their permission, basically as their representative.

So today's discussion revolved around the following gemara on Sanhedrin 5A:

והא רבה בר רב הונא כי הוה מינצי בהדי דבי ריש גלותא אמר לאו מינייכו נקיטנא רשותא נקיטנא רשותא מאבא מרי ואבא מרי מרב ורב מר' חייא ור' חייא מרבי

The problem is that Raba Bar Rav Huna lived after Rebbe, so how can his permission still hold power after his lifetime? Tosfos(ד"ה נקיטנא) says it works like smicha i.e. it can be passed on to future generations, but it's not so clear why that should be. The Rivash(סימן רעא) says that it's a girsa mistake and really it's an earlier amora, Raba Bar Bar Chana, which makes more sense, although the Ohr Samachach disputes this on textual grounds i.e. that Tosfos' girsa is correct, however hard it is to understand.

Permission to Teach

סמיכת יהושע בן נון

The second part of the class dealt with permission to teach halacha, discussed on Sanhedrin 5B. There are a couple factors at play here. First off, the gemara says that Chazal realized that, with the absence of smicha, there needed to be a minimum standard for teaching halacha, otherwise mistakes would occur.

באותה שעה גזרו תלמיד אל יורה אלא אם כן נוטל רשות מרבו

Additionally the gemara brings a baraita saying that a student shouldn't teach in the proximity of his master.

ותניא תלמיד אל יורה הלכה במקום רבו אלא אם כן היה רחוק ממנו שלש פרסאות כנגד מחנה ישראל

And finally, the rishonim point out another gemara(עירובין סג א) that seems to indicate that a student shouldn't teach in the lifetime of his master regardless of the distance.

אמר רבא בפניו אסור וחייב מיתה שלא בפניו אסור ואין חייב מיתה

So how do we resolve this contradiction?

Tosafot(ד"ה אלא) say that our gemara is talking about where the teacher gave permission to teach and the gemara in Eruvin is where the teacher didn't give permission to teach. But the question then arises, why can't the Rebbe be מוחל על כבודו as with other mitzvas of  כבוד הרב?

כבוד הרב לאומת כבוד המסורת עצמה

The answer seems to be to distinguish between the personal honor of the Rebbe vs. the Honor of the Tradition. Teaching in close proximity to one's teacher doesn't just damage his honor, the lack of deference is viewed as an assault on the mesoret itself and therefore the Rebbe cannot be מוחל.

The Ran brings the opinion of Rabeinu David, who says like Tosafot, but the Ran doesn't understand why the Rebbe can't be מוחל.

The Rambam takes a different approach, essentially saying that our gemara is talking about answering an occasional halachik question vs. opening one's own competing beit midrash. The former is allowed when far from the Rav or in close proximity with the Rav's permission. The latter is never allowed, again, presumably because it's an issue of the honor of the mesoret itself, not just the personal honor of the Master.