The Calendar Court
The Hillelic system for determining the New Moon Day and how to intercalate the year operated through a court panel of three judges.25 In the time of the Temple, these judges represented the Court of Elders and, after the Temple’s destruction in 70 C.E., the Great Sanhedrin of Pharisees.
The Mishnah reports:
The intercalating of the month and the intercalating of the year (are decided upon) by three (judges). So (says) Rabbi Meir. But Rabban Simeon ben Gamaliel says: The matter is begun by three, discussed by five, and decided upon by seven; but if it is decided upon by three the intercalation is valid.26
Later, the number of the assembly of participating members was changed to 10 judges.27 The leading judge was the Nasi. New Moon Days were sanctified by at least two of the three members of the court.28
The intercalation of the year, on the other hand, did not require public witnesses and could only be sanctified by the Nasi.29 Under the Pharisaic system, the high priest had been eliminated entirely from the process of intercalation.30 Nevertheless, there is some indication that during the years before the destruction of the Temple of Yahweh, some of the priests were charged with interviewing witnesses prior to their appearance before the Calendar Court.
These preliminary interviews, nevertheless, did not represent a court. They were mere formalities. The approval or disapproval of any witnesses by the priests were often set aside when the same witnesses appeared before the Calendar Court.
Rabbi Jose said:
Once Tobiah the Physician saw the new moon in Jerusalem, together with his son and his freed slave; and the priests accepted him and his son but pronounced his freed slave ineligible. And when they came before the court they (on the other hand) accepted him (Tobiah) and his slave but declared his son ineligible.31 This procedure stands in stark contrast with the scriptural requirement that the high priest must be over the priests “in all matters of Yahweh.”32
It also differs with the instructions found within the Torah and the teachings of Yahweh that the festivals and Sabbath days were controlled by means of the priests.33
Next, the Pharisaic Calendar Court would first calculate when the new moon would be seen and then convene on the 30th day of the month to hear witnesses confirming their calculations.
Just as the astronomers who discern the positions and motions of the stars engage in calculation, so the Jewish court, too, used to study and investigate and perform mathematical operations, in order to find out whether or not it would be possible for the new crescent to be visible in its “proper time,” which is the night of the 30th day. If the members of the court found that the new moon might be visible, they were obliged to be in attendance at the court house for the whole 30th day and be on the watch for the arrival of witnesses. If witnesses did arrive, they were duly examined and tested, and if their testimony appeared trustworthy, this day was sanctified as New Moon Day. If the new crescent did not appear and no witnesses arrived, this day was counted as the 30th day of the old month, which thus became an embolismic month.34
Even at the time when observation was the basis (for determining the recurrence of the New Moon Day), the court used to ascertain by calculation, and with great precision, according to the methods of the astronomers, the exact time of the conjunction of the moon with the sun, in order to find out whether the moon could be visible (on the night of the 30th day) or not.35
Witnesses for the Court
In the period from Rabban Gamaliel I until the Mishnah (mid-first century C.E to c.200 C.E.), the examination of witnesses must occur before the New Moon Day could be sanctified.36 According to the rabbis, who at least on this one point were following scriptural precedent regarding the matters of testimony,37 there must be at least two trustworthy witnesses examined by the court.38
Under certain conditions, even members of the Calendar Court could themselves testify:
If the court alone saw it, two (of them) should stand up and bear witness before them, and then they could say, “It is sanctified! It is sanctified.” If it was seen by three who (themselves) make up the court, two (of them) must stand up and set (two) of their fellows beside the single (other judge) and bear witness before them, and they could say, “It is sanctified! It is sanctified.” For no single person can be deemed trustworthy in himself.39
Restrictions of Witnesses
There were restrictions regarding who could serve as a witness.
Two worthy men only, qualified to function as witnesses in any other legal matter, were fit to testify concerning the new moon. Women and slaves were considered disqualified as witnesses, and their testimony could not be accepted.40
Blood relatives also would not be counted as separate witnesses. For this reason, the Tosefta points out that a father and his son “are counted as one (witness).”41
If father and son had seen the new moon, they were to go to court and testify. This does not, however, mean that witnesses who were blood relatives were qualified to testify concerning the new moon, but the reason for it is as follows: In case one of them should be disqualified—whether because he was a robber or because of some other circumstance which disqualified him as a witness—the other could join with a third witness and testify.42
The Mishnah gives a more extended list of those ineligible to serve as witnesses for the Calendar Court:
These are they that are ineligible: a dice-player, a usurer, pigeon-flyers, traffickers in seventh (Sabbath) year produce, and slaves. This is the general rule: any evidence that a woman is not eligible to bring, these are not eligible to bring.43
In these restrictions we begin to see the capricious nature of the Pharisaic method. Not only is there no scriptural regulation for a court hearing regarding sanctifying a new moon, or a requirement for witnesses to testify that they saw the new moon that night, but the Pharisaic restriction on witnesses was manufactured from the opinion of the scribes (laws of the scribes). They actually eliminated many people (such as women and slaves) whom Scriptures would allow to participate in any other court hearing.
Maimonides points out:
Any person who, by the law of the scribes, was disqualified as a witness, even though he was fit according to SCRIPTURAL law, was also disqualified to testify concerning the new moon.44
Exceptions by the Nasi
Further, those dismissed as untrustworthy witnesses by other rabbis could just as easily be accepted by the Nasi if he so chose. Nasi Rabban Gamaliel II, for example, is noted for doing just that.
Rabbi Johanan ben Nuri said:
They are false witnesses. Yet when they came to Jabneh, Rabban Gamaliel (II) accepted their evidence. And two others came and said, “We saw it (the crescent) at its expected time, yet in the night of the added day (the 30th day of the month) it did not appear”; and Rabban Gamaliel accepted their evidence. . . . (and so forth).45
In one of these cases, Rabbi Aqiba met with those objecting and gave their justification for the Nasi’s decision. He (Aqiba) went to Rabbi Joshua and found him sore perplexed. He said to him:
“I can teach you (from Scripture) that whatsoever Rabban Gamaliel has done is done (without being subject to any change), for it is written, ‘These are the moadi of Yahweh, sacred convocations which you shall proclaim’ (Lev., 23:4). Whether in their proper season or not in their proper season I know none other ‘moadi’ save these.” Rabbi Joshua then went to Rabbi Dosa ben Harkinas and said to him, “If we come to inquire into (the lawfulness of the decisions of) the court of Rabban Gamaliel, we shall need to inquire into (the decisions of) every court which has arisen since the days of Moses until now, for it is written, ‘Then went up Moses and Aaron, Nadab and Abihu, and seventy of the elders of Israel’ (Exod., 24:9). And why are the names of the elders not expressly set forth if not to teach that every three (judges) which have risen up as a court over Israel are like to the court of Moses!”46
Authority of the Nasi
The justification, as convoluted as it may seem, was not based upon whether or not a mistake was made. Rather, it held that the Nasi was assumed to be sitting in the seat of Moses. Therefore, he had the authority of Moses and no one had the right to question or second guess him, even if he made a mistake. Right or wrong, what he proclaimed became law and could not be changed.
After the minim began to act in a mischievous manner—by hiring men to testify that they saw the new moon—the Pharisaic sages “decreed that evidence concerning the new moon should not be accepted unless the witnesses were known to the court as worthy men, and that the witnesses should be duly tested and examined.”47 Put another way, they would check the religious affiliation of the witness. Those witnesses deemed worthy were then examined as to what they saw in reference to the position and appearance of the new moon’s crescent.
Methods of Calculation
The court used to employ methods of calculation of the kind employed by astronomers in order to ascertain whether the new moon of the coming month would be seen to the north or to the south of the sun, whether its latitude would be wide or narrow, and in which direction the tips of its horns would point.48 Rabban Gamaliel II of Jabneh (80–117 C.E.), for example, compared their testimony to drawings of various moon phases.
The Mishnah tells us:
Rabban Gamaliel (II) had pictures of the shapes of the moon on a tablet and on the wall of his upper chamber. These he used to show to the unskilled and say, Did you see it like this or like that?49
This evidence shows that by the end of the 1st century C.E., in the time of Rabban Gamaliel II, the criteria for the appearance of the new crescent was well-established.50 The examination itself was as follows:
How do they examine the witnesses? The pair which comes first they examine first. They bring in the elder of the two and say to him, “Tell us how you saw the moon: facing the sun or turned away from it? to the north or to the south? how high was it? to which side was it leaning? and how broad was it? If he said, “Facing the sun,” he has said nothing.51 Afterward they bring in the second witness and examine him. If their words are found to agree their evidence holds good. The other pairs of witnesses were asked (only) the main points, not because there was need of them, but that they should not go away disappointed and that they would make it their habit to come.52
Their calculations by which these witnesses were examined had been passed down from father to son, as demonstrated when Gamaliel II states:
This formula (for the new moons) has been handed down to me from the house of my father’s father. Sometimes it traverses (the heavens) by a long course and sometimes by a short course.53
This statement, by the way, indicates that the calculations used by Gamaliel II derived from his grandfather, Gamaliel I, himself the grandson of Hillel.
The Hillelic court system for the sacred calendar follows the Pharisaic pattern of taking a scriptural issue, with some basis in fact, and then embellishing it with interpretations and traditions. The fact is, there is no instruction in Scriptures that gives the authority over intercalations of the month to the Nasi or a court (Beth Din), let alone one of non-priestly scholars or judges.
Rather, as long as the Israelites were under the Torah, Scriptures gave this national responsibility to the priests, and more especially to the high priest. Merely because the Pharisees disagree with the religious views of the leading priests did not give them the right to usurp that responsibility.
Neither is there any scriptural requirement that witnesses must appear before and be questioned by judges regarding their visual sighting of the moon’s first crescent nor that a visual sighting by non-priestly witnesses on the very night of the day that a New Moon Day is to be declared. Neither can we find any description in the Scriptures regarding the shapes of the moon required for a New Moon Day to be sanctified nor a list of questions that need be asked.
The court system developed by the Hillelic Pharisees was clearly a device invented by them to address how a New Moon Day was to be declared. The rabbis did involve the populace by having them act as official witnesses, making them feel as if they were an important part of the process. At the same time, the Jewish people allowed the Nasi to become all-powerful, giving him the same status as Moses and by hanging on his very utterance of approval before they could begin a month and count the days to their festivals.
At first, one might think that the Pharisaic system of new moons, though somewhat cumbersome, was really quite simple and relatively effective. A court was set on the 30th day of the month and witnesses came forth to testify whether or not they saw the moon’s crescent. Since calculations were already made, it was merely a matter of confirmation.
Unfortunately, the issue was far more complex. The arbitrary nature of the Hillelic Calendar Court system does not stop here. This system was further burdened by a series of regulations that discarded, for expediency’s sake, the very reason that witnesses were called. Scriptural guidelines were often set aside in lieu of social, political, and Pharisaic religious concerns.
These regulations caused the Hillelic system to collapse under its own weight, having left those who adhered to its principles in a constant state of confusion.
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25 E.g., B. Sanh. 10b; Eliezer 8, p. 58; Tosef. Sanh. 2:1a-j.
26 Sanh. 1:2; cf., Maimonides Code 3:4:10; Tosef. Sanh. 2:1.
27 J. Sanh. 1:2:3b; Eliezer 8.
28 R.Sh. 3:1.
29 B. Sanh. 11b; Eduy. 7:7.
30 B. Sanh. 18b; Tosef. Sanh. 2:15.
31 R.Sh. 1:7.
32 2 Chron. 19:11.
33 Lev. 23:1-44; cf., Exod. 28:1; Lev. 10:11, 14:57; Deut. 4:1, 24:8, 33:8-11; Jer. 32:33; 2 Chron. 15:3, 35:3.
34 Maimonides Code, 3:4:1:6.
35 Maimonides Code, 3:4:6:1.
36 R.Sh. 1:15–2:9.
37 I.e., there must be at least two or three witnesses in matters of testimony (Deut. 17:6-7, 19:15-20; cf., 2 Cor. 13:1; Heb. 10:28-31; John 8:12-20).
38 R.Sh. 1:7.
39 R.Sh. 3:1; cf., B. R.Sh., 25b; Maimonides Code 3:4:2:9.
40 Maimonides Code 3:4:2:1.
41 Tosef. Sanh. 2:1, k–l.
42 Maimonides Code 3:4:2:1.
43 R.Sh. 1:8; cf., Sanh. 3:3.
44 Maimonides Code 3:4:2:1.
45 R.Sh. 2:8.
46 R.Sh. 2:8-9; cf., B. R.Sh. 25a.
47 Maimonides Code 3:4:2:1; J. R.Sh. 3:intro. 1; B. R.Sh. 22b.
48 Maimonides Code 3:1:2:4, 3:4:19:11.
49 R.Sh. 2:8; J. R.Sh. 2:9.
50 VT 7, p. 289.
51 That is, the moon’s crescent pointed in the wrong direction and was manifestly not a new moon. Accordingly, nothing was required to be said.
52 R.Sh. 2:6; cf., J. R.Sh. 2:5:1; Maimonides Code 3:4:2:7.
53 B. R.Sh. 25a.