Yesterday, we noted the view of the Sefer Ha-chinukh (430) that the egla arufa ceremony, which is required in order to atone for a murder when the killer has not been identified – is performed only in periods when courts are authorized to administer capital punishment. Once the Sanhedrin was forced to leave the area of the Temple Mount, courts lost this authority, and according to the Chinukh, the mitzva of egla arufa became inapplicable at that point. The Minchat Chinukh questioned this theory, but Rav Chaim Kanievsky, as we saw, brings in his work Nachal Eitan (1:3) several sources indicating that the mitzva of egla arufa is, in fact, linked to the courts’ responsibility to punish murderers.
Later in his discussion, however, Rav Kanievsky notes a passage in the Tosefta which appears to lend support to the Minchat Chinukh’s contention. The Mishna in Masekhet Sota (47a) states that when murder became rampant, observance of the mitzva of egla arufa was discontinued, because, as Rashi explains, the killers’ identities were known. The Tosefta (Sota 14:1) brings this statement in the name of Rabban Yochanan ben Zakai, who explained, “Because egla arufa is brought only in a case of uncertainty – and now there are many overt murderers.” Rabban Yochanan’s formulation indicates that it was during his lifetime when this unfortunate change occurred. As we know, Rabban Yochanan became the leading sage of his time shortly before the Second Temple’s destruction, after the time the Sanhedrin was forced to leave the Temple Mount. In fact, the Gemara in Masekhet Sanhedrin (41a) states explicitly that the Sanhedrin left its place in the Temple Mount before Rabban Yochanan became a rabbinic leader. This might thus prove that the egla arufa ceremony continued to be observed even after the Sanhedrin left and capital punishment could no longer be administered – in contradistinction to the view of the Sefer Ha-chinukh.
This proof might be reinforced in light of the Mishna’s remark there in Sota that when adultery became rampant, Rabban Yochanan ben Zakai instituted that the sota ritual – which would determine the innocence or guilt of a suspected adulteress – should no longer be performed. Tosafot in Maskehet Sota (7b) prove from the Mishna’s remark that the sota ritual may be performed even when capital punishment cannot be administered – as evidenced by the fact that it was still performed in the time of Rabban Yochanan ben Zakai’s tenure as leader. Similar proof may be drawn with regard to egla arufa, in light of the Tosefta’s implication that this ritual was discontinued during Rabban Yochanan’s tenure.
However, as Rav Kanievsky notes, the Rambam disputes Tosafot’s position, writing (in Hilkhot Sota 3:1) that the sota ritual is performed only when the Sanhedrin convenes in its place in the Beit Ha-mikdash. Apparently, the fact that Rabban Yochanan was the one who ordered the discontinuation of the sota ritual did not convince the Rambam that this ritual requires the courts’ authority to administer capital punishment. The reason, Rav Kanievsky speculates, is because the Gemara in Masekhet Sanhedrin (41a) speaks of an instance where Rabban Yochanan made a proposal before his appointment as leader, while he was still a student, and his proposal earned the acceptance of the sages of that time. Conceivably, this can be said also about other rulings and enactments attributed to Rabban Yochanan. As such, the fact that Rabban Yochanan instituted the discontinuation of the sota and egla arufa ceremonies does not necessarily prove that they were practiced until the time of his rise to rabbinic leadership.