Lesson dated 28 Shevat 5767

Table of Contents

• The verses in the context of the religious court and the plain meaning of the verse
• Two stages: forming a position and voting
• Telling the truth versus “calculations” and incentives to distort
• Confidentiality of religious court deliberations and publication of reasons
• Magen Avraham: saying something in the name of a great authority “so that they will accept it from him” and the duty of autonomy
• The majority of halakhic decisors without give-and-take: Get Pashut, Chazon Ish, and rabbi-student
• Religious court decisions: quantitative majority versus qualitative majority
• A conceptual distinction: quality and quantity through measurement and numbers
• Majority in prohibitions, nullification by majority, and “its majority is like the whole”
• Majority in a community and in a state: a decision that creates truth rather than uncovers truth
• Conclusion and announcement of a change in the lecture structure

Summary

General overview

The lecture deals with the verse, “Do not follow the majority to do evil, and do not respond concerning a dispute so as to incline after the majority to pervert,” and with the various mechanisms of majority that are derived from it, while distinguishing between the stage of forming a position in a religious court, where a judge may not simply be swept along by others, and the stage of decision, where the majority is binding. A conception is presented of an obligation to intellectual autonomy and to expressing one’s true position, alongside a discussion of whether “incline after the majority” refers to a quantitative majority or a qualitative majority, and of extending the concept of majority to other halakhic contexts such as majority in prohibitions, nullification by majority, rubo kekulo, and even communal decisions that are not aimed at discovering truth but at creating a binding order.

The verses in the context of the religious court and the plain meaning of the verse

The verses in chapter 23 place “incline after the majority” within the context of the laws of the religious court, alongside prohibitions connected to wicked witnesses, perverting justice, and the command “do not favor the poor man in his dispute,” and the Sages derive from here that a religious court rules according to the majority of the judges. The plain meaning is divided into three parts that shape a process: a prohibition against being swept after the majority for evil, a prohibition against answering in a dispute in a way that perverts justice because of the majority, and finally a command to follow the majority at the decision stage. Rashi explains “do not follow the majority to do evil” as opposition to joining wicked people in perverting justice, and Rashbam expands this to mean that even when others judge “not according to the law, as it appears to you,” one is obligated to say one’s own truth even if they will not believe you “but only the many.”

Two stages: forming a position and voting

The text presents two essential stages in deliberation: in the first stage each judge forms an independent position and may not go after the majority, and in the second stage, after different views have been formed, a vote takes place and the majority decides. The structure of the verse is explained as one that makes possible the existence of genuine “opinions” before one can speak of a “majority of opinions,” because if everyone follows the majority already at the formation stage, the vote has no meaning. The opposite normative demands are also presented: before the vote, each person must stand by his own view, and after the vote, even the minority must act according to the majority decision within an authorized institution.

Telling the truth versus “calculations” and incentives to distort

Extreme examples are brought from capital cases, where the rule that “if all convict, the defendant goes free” could create an incentive for the last judge to say not what he thinks, in order to obtain the desired result, and the text presents the position that a judge is obligated to state his actual view and not make political calculations aimed at producing a certain outcome. A Talmudic topic is mentioned about the possibility of “bringing out the truth by way of falsehood,” and its connection to examples of the type “do not join hands with a wicked person,” alongside the claim that there is no room to be “smarter than the Torah” when the Torah itself establishes decision-making mechanisms.

Confidentiality of religious court deliberations and publication of reasons

The text notes a halakhah according to which a judge may not say to the litigant, “I acquitted you,” and connects this to “do not go about as a talebearer among your people.” It cites a dispute among the medieval authorities (Rishonim), according to Maimonides and Meiri, over whether it is permitted to reveal that one was “among those who held liable,” or whether revealing anything at all is forbidden. A historical discussion is brought up about the British demand, at the time of the establishment of the Chief Rabbinate, to publish reasons and the positions of the different sides, along with the claim that such a demand is forbidden according to Jewish law, because the deliberation itself is not conducted in the presence of the litigants.

Magen Avraham: saying something in the name of a great authority “so that they will accept it from him” and the duty of autonomy

Magen Avraham is cited as ruling that it is permitted to say something in the name of a great person “so that they will accept it from him,” and the text explains this to mean that the listener is not allowed to accept something just because the great authority said it, but must weigh it and examine it independently, and only then decide. The permission is explained as a way of getting a person to take seriously an argument he otherwise would not have considered, and not as a way of bypassing clarification. Historical forgeries are also mentioned, such as the “Jerusalem Talmud on Kodashim” and “Besamim Rosh” with “Kisei Deharsena,” in order to illustrate the dangers of fake authority. The text also brings Maharal in Netivot HaTorah, who says that someone who rules based on his own understanding, even if he errs, is preferable to someone who rules from books, even if he is right, alongside mention of a responsum of Ri Migash that is presented as apparently contradicting this and as a subject for discussion.

The majority of halakhic decisors without give-and-take: Get Pashut, Chazon Ish, and rabbi-student

The text cites Get Pashut, in Kuntras HaKelalim, to the effect that there is no rule requiring one to follow the majority of halakhic decisors when there was no single forum in which they debated, heard one another’s reasons, and engaged in discussion, because had they discussed together, the minority might have persuaded the majority. A view is presented according to which a “majority of opinions” is valid only where there are actual “opinions” formed after listening and weighing, and it is said that in places of dispute among halakhic decisors, the majority may be a consideration but not the sole decisive rule, along with the claim of Chazon Ish that printed literature does not reflect the full range of opinions of Torah scholars who never wrote books. In addition, a Talmudic text in Sanhedrin 36 is brought regarding a rabbi and his students in a religious court, where sometimes they are not counted as several opinions but as one voice, because the students are drawn after the rabbi, and therefore there is no independence of opinion of the kind demanded by the beginning of the verse.

Religious court decisions: quantitative majority versus qualitative majority

A dispute among the medieval authorities (Rishonim) is presented between Rav Hai Gaon and Nachmanides over whether “incline after the majority” means a qualitative majority of wisdom or a quantitative majority by count, and Sefer HaChinukh takes the position that following the majority applies when the two sides are equal in Torah wisdom, and that “a small group of sages” does not submit to “a larger group of ignoramuses.” The text describes how Jewish law is in practice ruled like Nachmanides, that one follows the majority of judges, and explains that part of the reasoning is technical, because it is difficult to determine who is “wiser” without creating new disputes. But it is argued that there is room to understand Rav Hai Gaon as expressing a substantive principle of striving for truth. A possible proof is brought from the Talmudic discussion of Beit Shammai and Beit Hillel, where Beit Shammai were “sharper,” and nevertheless the law follows Beit Hillel “because they were gentle,” and a heavenly voice decided, in a way that raises a basic question about the relation between a majority in wisdom and a majority in number.

A conceptual distinction: quality and quantity through measurement and numbers

The text suggests that the distinction between a “qualitative majority” and a “quantitative majority” is connected to two functions of numbers: cardinal numbers that count, versus ordinal numbers that rank. It brings an example from the prohibition of measuring on the Sabbath, distinguishing between an hourglass that measures time and a wristwatch that tells the time. A proposed explanation is brought to reconcile a responsum attributed to Rabbi Moshe Feinstein permitting the measurement of temperature on the Sabbath, on the grounds that temperature is viewed as an ordinal magnitude rather than a counting one, and from that it is suggested that wisdom is similar to ordinal magnitudes, so that “quality” is not an additive quantity like the number of people.

Majority in prohibitions, nullification by majority, and “its majority is like the whole”

The text moves from the law of majority in a religious court to additional laws of majority that the Sages and the medieval authorities (Rishonim) connect to “incline after the majority”: following the majority in prohibitions, such as a piece of meat found in the market being judged according to the majority of stores, while the Talmud distinguishes between rova de-ita kaman and rova de-leita kaman. It is brought that Rabbi Shimon Shkop argues forcefully that rova de-leita kaman is stronger, and this is explained through an analogy to a mechanism in which the majority can determine the outcome in every individual case without being “worn down,” unlike a majority that rests on a finite stock, to the point of comparison with the way a political majority can take all the positions. In addition, nullification by majority is presented as a conception in which the minority “is nullified into the majority,” and the principle of rubo kekulo is discussed through examples of the Passover offering in impurity when “the majority of Israel are impure,” and the bull brought for an erroneous ruling of the community when “the majority of the community acted” based on instruction, while noting a dispute over whether this is identical to nullification by majority or a different law. Rabbi Chaim is also cited as proposing a connection between “a religious court must consist of three” and assumptions of rubo kekulo within the very validity of majority rule.

Majority in a community and in a state: a decision that creates truth rather than uncovers truth

The text describes a historical development from the 11th century onward of the need to decide communal matters by majority, but emphasizes that communal voting is different from a religious court decision, because it is not aimed at discovering halakhic truth but at determining how the collective will conduct itself. It is argued that in value-laden decisions there is no “right and wrong” in the same sense, and therefore a numerical majority has significance as a right of participation even for a complete fool, and in that kind of setting there is no place for a position like Rav Hai Gaon’s, which prefers a majority of wisdom. The text notes that medieval authorities (Rishonim) who apply “incline after the majority” to a community tend to add reasons of governability and order, and suggests that if this is indeed derived from the verse, it is more similar to laws such as nullification by majority or rubo kekulo, where the majority gives the whole an identity.

Conclusion and announcement of a change in the lecture structure

The text concludes with an announcement that starting next week, Rabbi Ben Ze’ev will head the evening kollel and give a lecture on Thursdays from eight to eight-thirty, and after the evening prayer at eight-thirty, the speaker’s lectures will continue. The text invites the public to attend both lectures “and to magnify and glorify Torah.”

The topic I want to deal with today is the topic of majority—”incline after the many”—majority in its different forms. There are all kinds of majorities connected to this verse. It was a little hard to decide, in Parashat Mishpatim, what to talk about, but this is a topic no less interesting than many others. We’ll start, maybe, with the verse itself, and try to set out from the verse and understand a bit how from this verse several different mechanisms of majority branch out, mechanisms that are actually different from one another. The last of them appears only at a relatively late period in the history of Jewish law. I spoke about it a bit on Monday in the Monday class, so here it’ll appear at the end of the lecture, I hope. The verses begin like this in chapter 23: “Do not bear a false report; do not put your hand with the wicked to be a malicious witness.” That’s just to see the background—that is, we’re talking about a religious court, that the witnesses who appear before it should not be wicked witnesses, or not to testify together with a wicked person. The Sages have several interpretations of this verse. In any case, it’s in the context of laws imposed on a religious court. After that: “Do not follow the many to do evil, and do not answer in a dispute so as to incline after the many; incline after the many.” That’s the second verse, the one that interests us. I’m just bringing the context, and the last verse: “And do not favor the poor man in his dispute.” That means the context tells us that this middle verse too, which speaks about inclining after the many, is a verse about the laws of a religious court. And that’s indeed how the Sages understood it: that it speaks about the laws of a religious court, that one must follow the majority of judges. If there are disagreements in a religious court, then one has to follow the majority of judges. But before I get to the rabbinic layer, maybe let’s look a little at the plain meaning of the verses, because I think it too teaches quite a bit about this concept of majority decision, even in broader contexts than the halakhic one. Later we’ll also see the implications for broader contexts. The verse begins—the verse about the law of majority itself, yes: “Do not follow the many to do evil, and do not answer in a dispute so as to incline after the many; incline after the many.” There are three parts: “Do not follow the many to do evil,” after that “and do not answer in a dispute so as to incline,” and “incline after the many.” The first part, “Do not follow the many to do evil”—well, of course, maybe I’ll begin with this: the rabbinic interpretation sees here a kind of contradiction: “Do not follow the many,” and “incline after the many.” So the Talmud says: your inclining for good should not be like your inclining for evil, and it learns this about capital cases: that in capital cases, in order to put the accused to death you need a majority of two; a majority of one is not enough. To acquit him, a majority of one is enough, but to put him to death you need a majority of two. Therefore “Do not follow the many to do evil” means that for doing harm—for killing—not every majority determines; only a majority of two. That’s the rabbinic solution. But we’re looking at the verse itself, and in the verse itself we have three commands. Rashi, on the first part, “Do not follow the many to do evil,” writes as follows: “If you see wicked people perverting justice, do not say: since they are many, I too will incline after them.” So if you see wicked people perverting justice, that’s no excuse for you; you should do what is right to do. Don’t be impressed by the fact that there’s a majority going in a negative direction. Rashi explicitly speaks here about wicked people, because that’s how “to do evil” sounds—“to do evil” means to do something bad: “Do not follow the many to do evil.” But Rashbam has a similar formulation, only more moderate. He says: “Do not follow the many to do evil—if they are judging contrary to law in your opinion, even though they will not believe you but only the majority. Do not go after them even though they will believe only the many.” Here he’s no longer speaking about wicked people. He just says: they’re going toward evil from my perspective because this isn’t according to law; I disagree with them; I think they’re wrong. So Rashbam says: if you think they’re wrong, state your opinion, even though they are the majority, even though maybe your opinion won’t be accepted. You have to say what you really think and not be impressed by what the majority around you says. Here there is a primary obligation in this verse. The first segment basically imposes on the judge an obligation to express exactly the position he holds, not to be impressed by everything happening around him. He has to say what he thinks, no matter what all those around him are saying. I’ll give you two extreme examples—I don’t even remember their exact source—but they’re famous examples of situations where the matter isn’t simple. What happens in a capital court? You know that the rule is that in a capital court, if everyone convicts, then the accused goes free. Here, if all twenty-three declare him guilty, he goes free. This is a known rule, and it’s because if everyone—if nobody sees any argument in his favor—then here too maybe the view was somehow skewed. And therefore he goes free. What happens if there’s a case like this? They proceed by starting with the youngest. The youngest expresses his opinion, then one after the other until they reach the greatest. It turns out that twenty-two of the judges have convicted. Now the twenty-third judge, who has to express his opinion, thinks he deserves the death penalty, that this accused should be killed. If he expresses that opinion, the accused will be saved. Right? Because if he too says he is guilty, then everyone says he is guilty, and then they won’t kill him. What does he need to do in order for them to do what he really thinks ought to be done? Say what he does not think. That is, say he is acquitted in order for him to be killed. Right? There’s also the opposite situation, a similar case. What happens if the last judge thinks he is innocent? Twenty-two convict, and the last judge thinks he really is innocent. Now if he states his position—that he is innocent—they’ll kill him, because it’s twenty-two against one. If he says he is guilty, then in fact they’ll release him, as he thinks should be done. The question is whether in such cases the last judge is allowed to say not what he thinks, in order that the true judgment come out. There is a Talmudic passage—there’s a dispute about this—that involves an interpretation about a religious court bringing out truth by way of falsehood. It appears there in tractate Shevuot 30a, I think, or something like that. All sorts of possibilities where the judge does not bring out the judgment through a true method but by a false one. There is—I don’t remember that passage right now. I remember there are Tosafot in Gittin, “forged within itself,” at the beginning. Tosafot ask there: why do you care that it’s forged within itself? After all, the divorce was valid, so a religious court in the future will rely on witnesses. There are many examples of this, of a person who should not go testify together with—“do not put your hand with the wicked”—together with a wicked person. There too he brings examples that the religious court shouldn’t… okay, fine. Yes, apparently that’s also connected. But there is also logic here. It can’t be that he’s outsmarting the Torah. The Torah established it this way: if everyone convicts, that counts as acquittal. So are you going to be smarter than the Torah? Right. So what comes out here from the first part of the verse is that even in these two cases you have to say what you think. Period. You don’t need to calculate how things will be received. That’s what Rashbam says: whether things will be accepted or not accepted, let’s go with the majority, let’s start making political calculations about how I can advance my agenda within the court—you say what you think. The vote will ultimately decide according to Torah law. There’s also a logic behind it, because if the Torah really says that one must release the accused when everyone thinks he is guilty, then the truth here is indeed that everyone thinks he is guilty. So the Torah tells us that in such a case there may have been some skewed perception. So what are you saying? You say he is innocent in order to kill him? But the truth is that he should not be killed. Just to get around the Torah? Yes. That is, therefore there is also logic in the requirement that you remain faithful to what you really think, and not start making calculations about what will be accepted and what won’t and how to reach the desired result. That’s just to sharpen the point. That’s the first point. The second point in the verse: “And do not answer in a dispute so as to incline after the many.” That is, “do not answer in a dispute so as to incline.” Rashbam says “to incline justice,” even when they acquit a person and exempt him from death. “Do not answer in a dispute so as to incline”—what does that mean? He connects it to “incline after the many”; he takes it as a continuation of the prohibition: “Do not answer in a dispute so as to incline after the many.” That is, do not follow the many in order to incline in a dispute. What does that mean? So Rashbam says: to incline justice, even when they acquit a person and exempt him from death. That is, if there is a majority in court acquitting the person, and I think he is guilty, then I begin to hesitate. I say, wait, after all, there are quite a few judges here who think he is exempt. If I say he is guilty—let’s say I tip the scale for the sake of discussion, fine? So I tip the scale, and I may lead this person to die, but there are, after all, sides according to which he is innocent; quite a few members of the court think he is innocent. Fine, so why do I care? I’ll also say he is innocent and that’s it; at least he’ll be saved. What could be wrong? But there’s no such thing. “Do not answer in a dispute so as to incline.” That means even when in the dispute—even when you are about to do something that seemingly harms the accused—do not answer after the many. That is, say what you think, without any calculations, again as a continuation of what was said in the first part of the verse. Then comes the third part, which says: “Incline after the many.” Rashbam again connects this to the plain meaning, but in the verse itself there are ostensibly three parts. And it seems to me that the introduction of the first two parts of the verse has a purpose; it’s not accidental. Because this law of “incline after the many” is a law that says—we are really here in two stages of the discussion. In the first stage of the discussion, each person forms his own position. Every judge has to decide what he thinks. He has to hear what the others are saying, discuss, raise considerations this way and that, and come to his own decision. After each person reaches his own decision, there are disagreements. What do we do then? In the second stage, we vote. In Maimonides there are even inferences in several places that according to Maimonides there are two stages on each of which there is even a vote—two votes according to Maimonides in a legal ruling. But that doesn’t matter; let’s leave that aside for now. In any case, there are certainly two stages in the discussion. There is one discussion of formulating positions, and after we see that there are different positions among the judges, we need to vote and decide. The verse says: at the first stage, when we formulate the position, it is forbidden to go after the majority. Not only is it unnecessary; it is forbidden. You are obligated to say what you yourself think. The whole law of following the majority was said only in the second stage, after everyone already has a position—now let’s vote. In that vote, after all, you need to reach one decision; you can’t have twenty-three decisions, only one. In that decision, the majority determines. That is, the verse first tells us that one has to be very careful: the majority determines only at the second stage. At the first stage, following the majority is a perversion of justice. Only at the second stage. But more than that is being said here: not only does the majority obligate only at the second stage; only at the second stage is it even permitted to follow the majority. Obligatory and permitted. If I followed the majority at the first stage, there’s no point in having the second stage at all. That is, the only reason we even get to the second stage is because of the commands that at the first stage nobody follows the majority, because only that way does each person express his exact view, and thus disagreements arise. If we follow the majority already in the first stage, what’s there to vote on? Everyone thinks the same thing. So “incline after the many” is a command to follow the majority of opinions. But in order to be able to follow the majority of opinions, those have to be opinions. So the first stage tells us how an opinion is formed, what an opinion is. The second stage tells us what to do when there are different opinions. If in the first stage we didn’t form an opinion, then there is no point in following the majority of opinions. That is, there are two stages here, and they are very important not only in a religious court but also outside a religious court. The first stage does not have to be issuing a ruling; it can be discussions. What does it mean to have discussions? This way and that way, everyone speaks. And each person needs to decide for himself what his opinion is. But does he have to say guilty or innocent? He has to decide for himself what he thinks, and he also has to say it. The court scribes write it down. It says in the Rema in section 33 that the court scribes write what each person thought yesterday, and the next day, if they move to a vote for example, or in the next session if they move to a vote, then the court scribes even compare. But is he allowed to change his mind? That’s a big question: returning from guilty to innocent, returning from innocent to guilty—that’s a dispute among the medieval authorities, and it also depends on that Maimonides I mentioned earlier, because Maimonides says there were two votes, not just two stages. That’s a complicated issue in itself; we won’t go into it here. In any case, whoever forms a position in the first stage—what he does with it, let’s leave that aside for now—in the second stage there is a vote. The claim is that this verse is really telling us why it introduced the first two parts before the third part: because the first two parts tell us what an opinion is. After there are opinions, or disagreements, the second stage comes and says: let’s vote. If there are no opinions, there is nothing to vote on. That means first we have to form an opinion; afterwards we vote. By the way, there’s another law: afterward the judge is forbidden to say to the litigant, “I acquitted you.” Yes, that’s “do not go about as a talebearer among your people.” But wait, so there’s another stage here? No, that’s afterward. It’s just that one may not reveal what was discussed; one may not disclose it outside. That’s unrelated; it’s more connected to Rashbam. He thinks he’s innocent, so should he say that? No—say it in court, certainly. Outside, it’s forbidden. Absolutely forbidden according to Jewish law, forbidden to say outside what you thought. On the contrary, in discussions surrounding the Chief Rabbinate and the rabbinical courts of the Chief Rabbinate, there was a big discussion about this issue, because the demand today—I think already the demand of the British, when the Chief Rabbinate was established, if I remember correctly—the British already demanded that it be conducted in a proper legal fashion. What does that mean? That you publish the reasoning of the various opinions and the ruling—which is forbidden according to Jewish law. Under the British Mandate? Regarding whether one must tell him or not, there is a major question; there’s an interesting responsum by Joseph Caro in Avkat Rokhel, but it’s not relevant right now. As far as standing before the judges is concerned, simply no—I don’t need to tell him anything if I am an authorized court. Sometimes yes, but that’s not our topic now. But in the simple sense, I am forbidden to go outside and tell the person, “I was among those who acquitted,” or “I was among those who convicted.” There is also a dispute among the medieval authorities whether telling him “I was among those who convicted” is allowed, and only making oneself look righteous in his eyes is forbidden, or whether it is totally forbidden to say anything at all. That’s a dispute between Maimonides and the Meiri. And the litigants aren’t present? Not during the deliberation. During the ruling, yes—what do you mean? They are told what they are liable for. But the deliberation is not conducted in their presence; on the contrary, it is conducted without them. If in the second stage he can’t change his mind, then it’s unnecessary? In any case, even if it’s impossible to change, it’s still simply a way to sum things up, to see how many are on this side and how many on that side, not in the sense of an additional substantive step. Is one allowed to deliberate at that stage with the people? He is allowed to deliberate, he is allowed to do everything. He can say that there are arguments this way and that way, and I abstain or whatever? But then two judges are added, right? But in the end he’ll know—now he’ll know in the end, now this is the end, now this is the end. You have to reach a formulated position. Stage one is the end, because in stage one you formulate a position. And are there earlier stages before that? Yes, discussion. There can be a stage of discussion, possibly hours of discussion, days—I don’t know how many days; there’s the issue of delaying judgment—but yes, there has to be a discussion until they reach formulation, and each person reaches formulation on his own, and there he is forbidden to follow others. After each person has arrived at a position, you don’t have to divide it specifically into two stages in the formal sense; the end of the process is a vote. That’s what I call the second stage. After each person has formulated his position, they vote. That’s called the second stage. It doesn’t matter; you can call it the conclusion of the first stage. Fine—just so as not to get into all the arguments I mentioned earlier. So what actually emerges from these things? First, it is clearly evident in retrospect, as I noted, and this is quite obvious, that before they are counted and vote, if there is a minority whose opinion differs from that of the majority, of course he acts according to his own opinion—he follows his own opinion—if I’m not now speaking about judging so-and-so, but rather about a halakhic question. After they are counted and vote, then the majority decides, and the minority too must follow the view of the majority—let’s say we’re speaking about the Sanhedrin or some authorized institution or something like that that obligates everyone. So the minority must follow the view of the majority after the vote. Notice the reversal that happens here. Before the vote, each person follows his own opinion; in terms of expressing the position, he is even forbidden to express another position. After the vote, this already binds everyone; everyone has to act according to the decision reached by the majority. But I’ll give you another interesting law from which one can maybe see even more strongly the obligation to form a position autonomously. The Magen Avraham writes—I mentioned him in one of the previous classes here, I don’t remember—the Magen Avraham there in 151, and afterward he comes out in subsection 2, yes, that famous Magen Avraham. He brings there many laws in the Talmud that were omitted by the halakhic decisors. He brings a whole list of such laws; that Magen Avraham is very interesting. One of the laws he brings there is that it is permitted to say things in the name of a great person so that they will accept it from him. That is, if I want you to accept some halakhic point from me that I think is correct, and I tell you, listen, Rabbi Elyashiv said that on the Sabbath it is permitted to do such-and-such—then, says the Talmud, that is permitted; I may say that. Now that is a very—and the Magen Avraham brings this as practical law. Now this is an interesting point because whoever… what? Why is there such a Magen Avraham? Yes, yes, exactly. I once wrote about this—the question whether to believe it, yes. In any case, there are famous cases in the nineteenth century—after all, there was a Jew who forged a Jerusalem Talmud on Kodashim, right, it’s known. There was another Jew who forged the Besamim Rosh of the Rosh, responsa of the Rosh, with Kisei Deharsena; he added to it a commentary, Kisei Deharsena, and it was all forged from beginning to end. Then there were great controversies, and books were published about it to clarify whether it was forged or not forged. And to this day you can still see Elchanan Wasserman citing Kisei Deharsena and engaging deeply with his words. Fine, one can certainly analyze it; he was a Jew who knew how to learn as well. But it’s not the Rosh. In any case, apparently according to this Magen Avraham there is no problem at all, right? If I have something I think is true, then I tell you: the Jerusalem Talmud said thus; accept it from me—and everything is fine, it’s permitted, there’s no issue. We need to understand that this has implications. Now what underlies these statements? After all, it is a puzzling thing—how can one mislead people in a matter of prohibition? Who says you are right? How can you attribute it to a great person? You know, the Chatam Sofer famously said: I don’t mind if you say my words in your name, but don’t say your words in my name. Your mistakes—don’t attribute them to me. As far as I’m concerned, don’t mention my name for what I say; copyright is waived. Just don’t attribute your mistakes to me. It seems to me that the only possible way to understand this Magen Avraham is to understand that when I say to someone, listen, Rabbi Elyashiv says that such-and-such a thing is permitted—that tells him nothing. He cannot, he should not accept it—no, no, he is forbidden to accept it—just because Rabbi Elyashiv said so. He is forbidden. He must examine what he himself thinks and come to a conclusion and act accordingly. So why do I say it in Rabbi Elyashiv’s name at all, if he doesn’t accept it? What good does it do? Clearly it helps, because if you don’t take me seriously—let’s say you dismiss me—and I have an argument that I feel is a very good one, it is important to me that you consider it. So I say: you know, I heard this from Rabbi Elyashiv. Like the star in The Little Prince. What? That that star was discovered by some Turkish astronomer, but nobody listened to him, and then a few years later he appeared dressed in an English suit, and then everyone suddenly discovered the star. Okay, fine, I don’t remember the chapters. But still, you have to take the telescope and check the Talmud and not rely on Rabbi Elyashiv. Fine. Rabbi Yedidya also says there that when we say “It is not in heaven,” if that is proof then one may accept proof from heaven. Yes, several people say that. Elijah the Tishbite will resolve difficulties and problems, like with the manna, where it is written that the servant knew from that to which master he belonged, according to where the manna fell in the portion of the master. There is a whole series of such questions. A famous question is: Elijah the Tishbite will resolve difficulties and problems—how will he resolve them, after all “It is not in heaven”? So as a sage, not as a prophet. Yes, several Jews say that. In any case, the only possible way to understand this Magen Avraham is that when I hear a halakhic ruling from a great person, that does not obligate me. I have to do what I think is correct. Again, if we are speaking—it is probably speaking about people who are capable of making such a decision, not that everyone should do whatever he thinks without understanding anything. But someone who is capable of making a halakhic decision, even if he is not as great as the person in whose name he heard it, does not need to accept it from him; he has to make his own decisions. So why do I say it? I say it so that at least he will take seriously the point I’m raising, that he will weigh it and not dismiss me out of hand. Then after he weighs it, he should make his own decisions. And then there is no problem. What possible damage can occur if I say it in the name of a great person? At worst he considered one more argument, added one more argument to his storehouse, and came to a better conclusion, whether he agreed or not. So only in that way can one understand this Magen Avraham, and then what emerges? It emerges that there is some obligation to act according to what I think. To the point that I really do not need to obey either the majority or a great person or anything else. And again, I’m speaking about someone who is capable of deciding, not just anyone. Who are we talking about? Someone who is capable of deciding. What is the criterion? That’s an interesting question; I once wrote about that too. I can give it to you if you like, but that already gets more complicated. I think it will be hard to draw a sharp line, but there are indications. In any case, this is the obligation to be autonomous—that is, to act according to what you think. You know, the Maharal writes in Netivot HaTorah that in the eyes of the Holy One, blessed be He, someone who rules according to his own understanding of the passage, even if he is mistaken, is preferable to someone who rules out of books, even if he is right. That’s what the Maharal writes in Netivot HaTorah. There is a responsum of Ri Migash that says exactly the opposite regarding ruling from the literature of the Geonim, but that too can be discussed; I don’t think he says exactly the opposite. Fine. In any case, what we see from these directions, from these sources, is that there is some obligation to be autonomous. That’s what we’re talking about at the beginning of the verse: not to go after the majority, not to go after anything else—you have to say what you think. After you have an opinion—in a religious court, after all, one decision must be reached; it’s not a question of each person doing what he wants. The court has to produce one decision. That is at the last stage. After there are disagreements, they vote, and in the end they arrive at the decision. Maybe another example, another implication of this distinction: what happens in a situation where there is a majority that did not discuss and debate? What? Some halakhic decisors write—for example, in Get Pashut, in the pamphlet of principles. What does “a majority that did not…” mean? For example, if the majority of halakhic decisors think one thing and the minority think something else. The majority of judges? No, no—halakhic decisors, in general, regarding a halakhic question that interests you. You go through the halakhic literature and you see that the majority of the decisors think this way and the minority think that way. Are you obligated to follow the majority or not? Even if they didn’t know each other’s views? You don’t know; this is the situation before you. You see the books; this is what you see. So in the book Get Pashut… We have the Shulchan Aruch here, and the Mishnah Berurah here. The vast majority of these questions won’t appear either in the Shulchan Aruch or in the Mishnah Berurah. But even if they do, it’s still not clear that this fully settles it. That’s another issue. But let’s speak about a question that does not appear there, all right? So there is a dispute among the decisors—what should be done? Opening bottles on the Sabbath—a question that arose in recent years, fine? There is a dispute among the decisors: some say it is permitted, some say it is rabbinically forbidden, some say one is liable for a sin-offering. Not a sin-offering—if it was deliberate then it’s more. Fine. What do you do there? There is no Shulchan Aruch; there are proofs this way and that way, and there is a dispute among the decisors. What do we do? Do we have to follow the majority of the decisors or not? So the book Get Pashut writes—it seems to me this is where I started with all this—that one does not always need to follow the majority of decisors. There is no law of following the majority in a situation where the majority did not sit together and deliberate. Why not? Because if they had sat together and debated, perhaps the minority would have convinced the majority. One did not hear the other’s arguments fully through to the end. Now, true, sometimes, because things appear in a book, sometimes I can read his arguments and formulate a position regarding them. Sometimes yes, sometimes no. But since it is not clear that everyone heard the others, there is no law here of following the majority. Following the majority applies only when there is one forum that discussed and debated, where each heard all the arguments on all sides and then made his decision. If you didn’t hear the other side, the majority has no significance here. What is the significance of a majority? It’s like the story about Rabbi Yonatan Eybeschutz and the priest, yes, who came to him and said: why don’t you follow us? We Christians are the majority. So what did Rabbi Yonatan Eybeschutz say to him? There are several versions. In a case of doubt there is a law of majority. Sorry—only in a case of doubt is there a law of majority. Where I am not in doubt, there is no law of majority. If I am in doubt, then there is a law to follow the majority. If I am not in doubt—I find a piece of meat in the market, and this piece of meat was slaughtered before my eyes, I know it was slaughtered properly, it is a kosher piece. And most of the stores in town sell non-kosher meat—so should I now render it non-kosher? What connection is there? I know what this piece is; it’s kosher. If I don’t know, if I am in doubt, I follow the majority. So he said to him: fine, if I were in doubt maybe you’d be right and I’d follow the majority. I’m not in doubt, so what is there to follow the majority for? There’s another version there, “Truth was cast to the ground”—against truth there is no majority. That’s a somewhat different version. In any case, it too is a kind of argument: follow us because we are the majority. What—did you ever sit with us for a discussion? Now I’m suggesting another direction, following what we said earlier. Did you ever sit with us for a discussion? Did you hear the arguments? Did we weigh each other’s arguments? Did we conclude that there is some disagreement between us after discussion and debate? What was there? There were debates of Nachmanides with some apostate? But there was no discussion here requiring some sort of gathering and vote. And even if, hypothetically, it were possible here to have a vote, certainly the majority would not determine anything. The majority does not determine in a situation where there are many people who think otherwise. There are more fools than wise people in the world, so because of that the majority determines? What does that have to do with anything? If they had listened to me, I would have convinced them all. So what good is it that they are the majority? If after they listened to me and everyone understood all the arguments, and in the end the positions remained divided, then we vote and the majority determines. What can you do? In a place where a decision has to be made, a determination has to be reached. Fine. But if you didn’t listen to me, then your opinion isn’t an opinion at all. So there is nothing to follow a majority of opinions for. A majority of opinions is spoken of where there are opinions. But if there are no opinions, what is there to follow a majority for? So Get Pashut—and the Minchat Chinuch, it seems to me that’s where I started, because this is already found in the verse in a certain sense; that’s why I started from there. Because the verse introduces the first two parts in order to tell you: before you get to “incline after the many,” first I’ll explain to you how a position is formed. No, no, no—he said it from reason. Yes, yes, from reason; it makes sense from reason. And indeed there are also other opinions on this issue, this whole question of whether to follow the majority or not. That too is an interesting topic. But he said it from reason, and I think one can also see something of this in the structure of the verse. Because the verse sees fit to precede the manner of formulating the position before it tells me to follow the majority. Once, when I was in Yeruham, some group came in connection with the Kinneret Covenant, which was some covenant between religious and secular Jews—shared life, mutual legitimacy, and so on, all kinds of things like that. I told them I would never sign such a covenant. Why would I never sign such a covenant? Because if you had come to me and heard what I had to say—and maybe I wouldn’t have convinced you, that can happen—then maybe I would have been willing to say: okay, that’s your opinion, what can you do. The Radbaz says that there is also such a thing as someone coerced with respect to opinions. That is, someone who has incorrect opinions but is coerced—it is coercion in every sense, and that’s okay. Fine, what can you do? You can’t do more than weigh things as best as you can. But what do you want? You’re demanding legitimacy from me in order not to examine anything? Then why legitimacy? First have an opinion, and then I’ll say it’s a legitimate opinion. If you have no opinion, it will not be legitimate either. What you want in covenants of that kind is an exemption from discussion. You want to say: I don’t want to think about anything, nothing interests me, I’ll die the way I was born. I don’t want to consider anything, and you must respect my right to do what I think. I respect your right to do what you think, provided that you think. That is—again, not provided that you think like me; that would already be hypocrisy—but provided that you think. That is, weigh what I say to you; accept it or don’t accept it, I don’t know; listen seriously. And if you accept it, good; if not, I will respect it—then I’ll sign a covenant with you. But if you don’t even want to come check anything, what do you want? To die just as you were born without checking anything? No. That is, recognition of the legitimacy of an opinion will be given to someone whose opinion is in fact an opinion. After all, if it isn’t an opinion, why should I grant it legitimacy? But why is the analogy like the parable? What if someone deliberates for himself and weighs all the factors? But he didn’t hear my arguments. Maybe I would have convinced him. Why should I accept his opinion? There are ten decisors who think against me, but I have wonderful arguments. If they had heard what I say, I would have convinced them all—or so I think. Maybe I’m wrong. But that can be clarified only if we sit together and discuss it. We didn’t sit together. So what can I do? Do I need to accept the opinion of the majority? In the time of the Shulchan Aruch, the Sephardic decisors were the majority, and nevertheless? In the time of the Shulchan Aruch, the Sephardim were the majority in the world, but in the time of the Tur, I assume if they had met face to face with the Rema and convinced one another, we would have had one Shulchan Aruch for all the Jewish people. They didn’t meet, so both opinions are legitimate. And that’s the claim of the Rema. If I really have the majority of decisors—do I have to discuss some…? No need to follow the majority. So what? No need to follow the majority. But in the Mishnah Berurah and so on it appears dozens of times? The majority can be a consideration. The Mishnah Berurah gives you all kinds of considerations that combine. But look—he was a great sage; his reasoning isn’t absurd. There is a majority of decisors, and somehow you need to decide. So fine: the fact that there is a majority of decisors may also be a consideration. But there is no obligation to follow the majority. There are many parameters that appear frequently. If it were binding, it would have to be only that. If the rule were “follow the majority,” why would it be only one parameter? It would be the only one. That means in every law where you have a question, scan all the opinions and rule like the majority. He doesn’t do that. Nobody does that. Even Rabbi Ovadia, and those known to move most strongly in that direction, don’t do that completely. Some take it into account more, some less, in varying degrees. Don’t make it absolute. And friends, what about other factors? The Chazon Ish says: who said everyone wrote books? There are many rabbis who never wrote books. So why don’t you count their opinions? Why only the printed opinions? In other words, what advantage is there to those who printed a book? There are many problems here. I’m only bringing this as an illustration, not… Fine. Another example maybe in this context: if there is a rabbi and his students, then the Talmud in Sanhedrin 36 indeed discusses that there are places where they are not counted as several opinions but only as one. Why? Because the students follow the rabbi; that is not called an additional opinion. And we see that the condition at the beginning of the verse is a necessary condition in order to reach the end of the verse. That is, first of all, you have to formulate your position out of what you think, and only afterward have votes. So here too should one follow the majority? It depends. Majority in Torah law has three different topics—that’s another question. I think that in a religious court, no. It seems to me that in a religious court certainly not. In a religious court you are not simply obligated, because in reasoning he does incline because of his teacher. In practice he learned from him, and he also inclines in his thinking after his teacher even if he is not obligated—that is what will happen. Because he’s not what? What, the younger one was a student of one of the great ones? Not necessarily, but it could be. That is certainly reasonable. Makes sense. Yes. After all, the Talmud says that even the back rows in the religious court, who gradually move forward into the decisive layer, are called “students” in the Talmud. “The students” sit there, meaning it is reasonable that they were students. So if there was a rabbi and students in the court? Then there are circumstances—sometimes yes—but there are circumstances in which they won’t count them as separate votes. Talmud, page 36 in Sanhedrin—look there. And if they say different things? No, they are not counted as several opinions; they are counted as one voice. But then how do you get to 71? So you’ll have fewer opinions. But you count how many versus how many. What if someone says, “I do not know”? No need—only if you remain tied. If you don’t remain tied, there is a decision, then there is a decision. This is about principled disputes, not disputes of students. When there is a dispute of students, there is no problem reaching a decision. No problem, but still they may not listen to you in court. Even if it is not a principled question, or if he learned with him in the study hall? Even if he is not his student in this matter, he thinks like him because he learned with him. And I’m talking about a religious court. Yes, in a religious court. The Talmud on page 36 in Sanhedrin talks about a rabbi and his students in a religious court, in the Great Sanhedrin. Fine. So that is regarding the structure of the verse. Let’s now enter a bit into the last part of the verse, which is really our topic: “incline after the many.” The verse taught us that the groundwork that needs to be laid before we reach “incline after the many” is opposite in character. That is, each person is supposed to formulate a position independently, and only after each person has formulated a position and has an opinion do we follow the majority of opinions; then there is a vote. Now let’s move to the topic of majority itself. What does it mean to follow the majority in a religious court? This is the law that emerges directly from the verse. The law that emerges directly from the verse speaks about a religious court, and in a religious court one must follow the majority of judges. As is known, there is a dispute among the medieval authorities whether one follows a numerical majority or a qualitative majority. Rav Hai Gaon and Nachmanides disagree on the question whether what determines is the majority of feet or the majority of heads—let’s put it that way. That is, does the majority of people determine in every case, or rather the majority of wisdom? If someone is much wiser than the others, should his opinion carry more weight? Exactly how is a matter for discussion. But that is Rav Hai Gaon’s claim: wisdom determines, not the numerical majority. Also in the Sefer HaChinuch there is language—I’ll maybe read you a passage: “And the choice of the majority, it seems, is when the two camps who dispute are equal in wisdom of Torah.” In this commandment of following the majority, the Chinuch says: when is it true that we follow the majority? When the two disputing camps are equal in Torah wisdom. That is, they are equal in Torah stature. “For one cannot say that a small group of sages should not prevail over a large group of boors.” And Rav Hai Gaon says: even if they were as many as those who left Egypt. Bring me six hundred thousand boors—so what? Are six hundred thousand boors greater than one Torah scholar? It’s a collection of fools with no opinion. Should they overcome the one sage just because they have more feet? Why did they even come to the discussion? Of course, those who left Egypt would not generally have sat on the court. But still, there can be panels where it is clear that there are some people on a much higher level than the others. That can happen. Exactly how one determines this today, in our generation that likes to quantify everything, is much harder to determine, and this is also, by the way, why most commentators who explain Nachmanides—and that is how the law is ruled—say that what determines is the majority of feet, not the majority of heads. But most commentators explain the Talmud—most commentators explain Nachmanides, sorry—as only a technical matter: we cannot decide who is wise and who is not, and it will start arguments and disputes, and who is wise and who is less wise—we can’t determine that. Therefore one has to follow the majority of people. And don’t sit in judgment if you do not know with whom you are sitting, like the clear-minded men of Jerusalem, who would not sit in judgment if they did not know who was sitting with them. So how does he understand…? What? That one rules according to the majority of wisdom? Majority of wisdom. But how do you count that? Everyone understands that if there are two here who are wiser than all the others put together, then the law should be like them. But that means two against one? The judges themselves need to decide; I don’t decide that. The judges themselves—if there is a sense among the group that so-and-so is far wiser than all of us, then we will rule like him, even though there are twenty-two against him. Of course, this slightly contradicts what we said earlier, right? Because ostensibly judges are forbidden to follow someone just because he is wiser. But it’s not really so, because what Rav Hai Gaon says here refers to the voting stage. That means: you should express your opinion, raise the arguments, try to convince that sage that he is wrong and you are right. That can happen even though he is wise. It can happen. After everything is over, he was not convinced and you were not convinced, then you have to know: he is much wiser than you. If he is much wiser than you, it is likely that the law follows him. That is what Rav Hai Gaon says. The law was not ruled that way. The law follows Nachmanides, that one follows the majority of judges. But again, most explanations are explanations arising from a technical problem, only because we would otherwise begin arguing here about who is more and who is less wise. They are not disagreeing on the principle that essentially the majority of wisdom ought to determine. If, say, there is no dispute—suppose the court agrees that two among them are the wisest, nobody disputes it—could one then say: you decide, even though we think differently? That is what Rav Hai Gaon says. But Nachmanides says no. Because here there is no technical claim; they all admit it. There is no dispute over who is wiser. Doesn’t matter. But Nachmanides removes this rule of majority of wisdom because in some circumstances there can be problems. So no: it is not the majority of wisdom that determines, but the majority of judges. You could ask whether the rest are allowed to say fictitiously, “we also think like you,” so that there will be a numerical majority in favor of what we wanted to come out anyway. That already touches what we said earlier. But why, if they agree? It’s not even a possible initial thought. Not even a possible initial thought—that’s his conclusion. It’s just that the law does not follow him. That’s the conclusion. But his approach is: how is this considered like three votes? How are two equal to three votes? But how here are they equal to three votes? We can determine that. But how here are they equal to three votes? We can determine it! Not that three equal three votes. If the public understands that within the discussion that developed, there are three towering geniuses and none of them was convinced, and all the rest think otherwise, and they are middling local judges—fine, three giants came on vacation to Eilat, or to Marienbad in Europe, three world-class geniuses, and they are sitting on this panel for capital law. There are twenty-three judges sitting, twenty local judges who are decent enough, local yeshiva men there who think one way, and the three world geniuses think otherwise. Such a forum has gathered. So Rav Hai Gaon says that in such a situation, forget all those twenty—throw them in the trash. You can bring six hundred thousand here, what difference does it make? There are three here who are clearly wiser, and they determine. If the forum does not agree about who is wiser and who determines, then no—what can you do? Then obviously the majority determines, as in any religious court. If I know that those three determine the law and the twenty don’t count, then that’s not a religious court? Why isn’t it a religious court? Why? After all, it says “incline after the many.” The majority of wisdom, not the majority of number—that’s what he says. “Incline after the many” means follow the majority of wisdom, not the majority of feet. That is “incline after the many.” And even though Maimonides does not accept this, it is difficult. Fine, that’s another issue, but that’s what Rav Hai Gaon says here. Maybe you should have added to what… three? That’s what I said earlier, but it seems to me that contradicts the beginning of the verse, as we said earlier. You can’t accept things just because he said so. No. You have to express your opinion as you think, try to convince the others that you are right, fight for your position. But in the end there is a vote. You didn’t succeed in convincing them? Then there is a vote. Now, the Minchat Chinuch mentions a Talmudic passage that is ostensibly proof for Rav Hai Gaon. The Talmud speaks of the dispute between Beit Shammai and Beit Hillel. There was a dispute over generations until a heavenly voice came out and said that the law follows Beit Hillel because they were gentle and humble and so on. So the Talmud there—in one place, and the medieval authorities add to it, and Tosafot write this in two places—what was the issue there? Beyond the specific disputes in which Beit Shammai and Beit Hillel disagreed, there was a principled dispute, a methodological dispute. What was the dispute? Beit Shammai were sharper—so the Talmud says. They were sharper, wiser. Beit Hillel were the numerical majority, except in one place where Beit Shammai were greater in number, and therefore there the law was ruled like them. But in most cases Beit Hillel were the numerical majority. So the question between Beit Shammai and Beit Hillel was really whether one follows the majority of wisdom or the majority of number. That is the question. And there, of course, the law was ruled that “these and those are the words of the living God, but the law follows Beit Hillel.” But why does the law follow Beit Hillel? Because they were gentle and humble, not because they were the majority. Because they were gentle and humble—that is, it was a kind of prize, some sort of reward they received, or as we discussed in the Monday classes. But they received some special reason for why the law follows Beit Hillel. And what about the principled question of majority of wisdom versus majority of number—which decides? I don’t know. Ostensibly the Talmud seems to indicate that majority of wisdom determines. Were it not for the heavenly voice, and were it not for the special virtue that Beit Hillel were gentle and humble and Beit Shammai were not, that they would mention Beit Shammai’s words before their own and so on, perhaps the law really would not have been ruled like them. More than that—look at the plain meaning of the Talmud. The Talmud says there is a majority of wisdom versus a majority of number. What would happen if there is a majority of wisdom but no majority of number? That is, the opinions are numerically tied, but one side is wiser than the other. Then what? Then according to everyone one follows the majority of wisdom, right? Certainly. When? In ruling, in a religious court? In a capital court. What difference does it make? But what kind of court, and what is it judging? What difference does it make? It makes a big difference. Why? Any court? Because the principle of decision-making is the same. In tractate Sanhedrin all the detailed laws are there, and it is never said there that one weighs by wisdom. You count fingers! That is Maimonides’ view. Rav Hai Gaon says not so. So how can Rav Hai Gaon disagree with the whole Talmud? Why? Here I’m showing you a Talmudic proof in his favor. The Talmud the rabbi brought is something that maybe one can infer from there. Why? The Talmud explicitly says majority of wisdom. Where? It learns from there that Beit Shammai were wiser, “sharper,” and that the only reason there was room to follow Beit Hillel was that they were gentle and humble, and a heavenly voice was needed to say so. Why was a heavenly voice needed? Like whom? Like Beit Hillel. They made a religious court and issued a ruling. Certainly. They disagreed in the Sanhedrin and argued. Apparently Rav Ashi determined that the law was according to this view or that view; he made a court and determined. Depends when, depends on what. Wait, wait. In Rav Ashi’s time there was no Sanhedrin. Beit Shammai and Beit Hillel were in the time of the Sanhedrin. Rabban Yohanan ben Zakkai—he was among the students of Hillel and Shammai, right? First generation in Yavneh. So—not Sanhedrin? Students of Beit Shammai and Beit Hillel. The rabbi isn’t distinguishing between ruling on some halakhic issue and a religious court judging monetary and capital cases? No, no, no—it’s the same thing. In capital cases there may be room to discuss, but there is no difference between halakhic ruling and a court. We don’t need that distinction. This decision—there is no difference between ruling on opening a bottle on the Sabbath or matters of that sort, and a forum that deliberates such matters. That is not a trivial claim at all. It’s not a trivial claim, but that is the simple assumption among the decisors, because the verse really, for example, seems there—not clear to me—it’s more plausible in monetary law or a dispute between people, not really halakhic ruling. So what sets it in capital law? What sets it in capital law? That is the connection, although one could say… No, but what is this? The Sanhedrin sat. We are used today to a situation without a Sanhedrin. When there is a Sanhedrin, and a question such as opening bottles arises, it would go up to the Sanhedrin; there would be discussion and a vote. A full court would sit on it. Exactly. And it would sit on that just as on monetary law. Today we have no Sanhedrin; each person writes his opinion and we don’t know what to do. But it is a question that would arise in a court. Fine, that’s only an aside. Maybe one more interesting point in this context, regarding numerical majority versus qualitative majority. There is room to hesitate a little. After all, what Rav Hai Gaon says is that “incline after the many” means following the qualitative majority, not the quantitative majority—the majority of wisdom, not the majority of people. But why do I call that a qualitative majority? Why not call it a quantitative majority, where the quantity being measured is the amount of wisdom, not the number of people? What is the difference between quality and quantity? Why is this called quality and that called quantity? This too is just an aside; I’m raising it as an interesting point, and it has interesting implications. What, not quantity? It’s not primitive. What? How do you measure it? In kilos? Doesn’t matter—even if I don’t measure it, I still know that this is more than that. If I don’t know, then there is no discussion. You can’t combine them. He has two kilos of wisdom, this one has three—you can’t add that. That is, let’s say two guys with an IQ of seventy each won’t manage to solve an equation that one person with an IQ of 140 can solve. Exactly. That is, I think there is a lot to discuss here. In Giv’at HaMoreh by Solomon Maimon, he talks about this a lot on the Guide for the Perplexed. But I think in the end, where did the penny drop for me on this issue? Once I heard some learned Jew wonder: there is a responsum of Rabbi Moshe Feinstein—I haven’t found it now—but there is such a responsum in which he permits measuring temperature on the Sabbath, not for a sick person. For a sick person one may do various rabbinic prohibitions, but this was speaking of a healthy person. So it is not even a prohibition of measurement. And he asked: there are other responsa of Rabbi Moshe Feinstein where it seems this is only for a sick person, so be careful here. But I once saw that responsum this way. In several places we see that there is a prohibition of measuring on the Sabbath even with abstract things. It is forbidden to measure time too. In an hourglass, you know—Shulchan Aruch—an hourglass. It is forbidden to measure time with an hourglass. And there the Mishnah Berurah writes: but people are accustomed to walk around with wristwatches, and that is apparently permitted. Why is it permitted? The hourglass is muktzeh, so why is the wristwatch permitted? Aren’t you measuring? You are also measuring. Why? It’s not the same thing. You are not measuring how much time passes. Exactly. That is, I think the point is this: when I measure time, say with an hourglass, I am in fact measuring a quantity of time, right? How much time passed from the moment it started until the moment the sand finished. When I look at a clock, I am not measuring anything. I am looking to see what time it is. In mathematical language they call this the two roles of numbers: numbers function in two ways. There are cardinal numbers and ordinal numbers. Cardinal numbers are numbers that count how much I have—quantities. Ordinal numbers put things in ascending order. For example, the temperatures on a thermometer—what do you say? Ordinal or cardinal? Ordinal. Ordinal, right? Ordinal numbers. Thirty-eight degrees is not one more than thirty-seven degrees; it is the next degree of heat after it. But counting how many kilograms means counting how many units of a kilogram I have. One cannot isolate a single unit of a degree. There is no such thing. I cannot take one degree, add it to thirty-seven, and get thirty-eight. I can heat the whole thing until it reaches the next level of heat, which is called thirty-eight. Therefore in physics too this has implications—extensive and intensive. That is, these are magnitudes with different properties, and the numbers function differently in those two contexts. When I measure with an hourglass, that is quantitative measurement. It is cardinal, not ordinal; I am not ordering anything. I am counting how much time has passed. So true, it is an abstract thing, but I am still counting it, not ordering it. But when I look at a clock, when I look to see what time it is—2:10. 2:10 is one minute after 2:09. I am not counting how much time passed from one state to another. But if I want to know for meat and milk whether six hours have passed, then it is forbidden? In principle it is forbidden to measure. You can say: look, I’ll do the calculation afterward. I want to know whether it is already eight o’clock. Why do I want to know if it is already eight? In order to know whether six hours have passed since the meat. But what I presently want to know from the clock is not how much time has passed, but what time it is. So I am not engaged in measurement. Afterwards I’ll translate it into a quantity of time, but the clock itself is not serving as measurement. And I think that is why it is permitted to wear a wristwatch. The decisors don’t give this reason; they leave it somewhat vague. I think that is exactly the reason. And therefore perhaps Rabbi Moshe Feinstein also writes that it is permitted to measure temperature even though it is forbidden to measure time. Why is it permitted to measure temperature? Because when you measure heat, that is temperature. Temperature is an ordinal quantity, not a cardinal one. The numbers are ordering, not counting quantities. The prohibition of measuring on the Sabbath is because of commerce, when people count quantities—how much they are selling, how much needs to be sold. So everything that counts, that is cardinal, is forbidden. But something that is ordinal is permitted. And if I return to wisdom and number—wisdom versus number—why is one quality and the other quantity? Because IQ, even if it has a quantitative scale, is like temperature. That is, the difference between an IQ of 100 and 101 only means that he is at the next level of intelligence. It does not mean that if you inject him with one more unit of IQ he will reach 101. Rather, this level of wisdom is called IQ 100, this level of intelligence is called IQ 100, and this level is called IQ 101. It is an ordinal number, not a cardinal one. Therefore wisdom is quality, and number is of course quantity—how many people I have. And the question is whether what determines is the quantitative majority or the qualitative majority. Fine, that was only an anecdote to close the parenthesis. Let’s return for a moment to the laws of majority. In the Sages, we’ve seen a bit on the edge of the spoon how this majority works in a religious court. There are several more laws of majority in the Sages—or the Sages, or the commentators after them apply them as well, or derive them as well, from the verse “incline after the many.” The first law of majority is in the Talmud in Chullin: to follow the majority in prohibitions. In monetary law, one does not follow the majority, in practice, according to the reasoning of Rav and Shmuel. But in prohibitions one does follow the majority. What does it mean to follow the majority? We mentioned earlier a piece of meat: I find it in the market, I don’t know whether it is kosher or non-kosher, so I ask: what is the majority of stores in the town? That will determine the law of that piece of meat. One follows the majority. The Talmud distinguishes between two kinds of majority. There is a majority that is before us, and a majority that is not before us. A majority that is before us means when the majority is present before me. There is a majority of stores here in town; I see them, I know them, and most of the stores are non-kosher. That is a majority before us, and we follow it. There is also a majority not before us. A majority not before us is, for example, most women give birth at nine months. Most women give birth at nine months. That means there are women who give birth at seven months, and women who give birth at nine months, but most women give birth at nine months. It’s not that there are a certain number of women before me now, of whom the majority gave birth at nine and the minority at seven. I know that the way of the world is such that usually most women give birth at nine months. That relies on the laws of nature, let’s call it that. That is a majority not before us. There is a dispute among commentators already among the medieval authorities—Rabbi Shimon Shkop goes on about this at length—as to which majority is stronger. From one extreme to the other. In the Talmud itself it seems that the majority before us is stronger, and Rabbi Shimon Shkop argues forcefully that the majority not before us is stronger—not weaker, stronger. Why is the majority not before us stronger? Again, a nice anecdote with implications. There was once a story in the Likud Central Committee—from there too one can learn some things, admittedly only in a limited way, but one can learn things there too. David Levy claimed regarding those sitting there in the central committee that his faction comprised thirty percent, but the number of positions he was getting was nothing. He got no positions at all. It didn’t reflect his power in the central committee. So they told him: what do you want? Everything here is determined democratically. We vote on every position, and that’s it. Vote as you vote and you’ll have fair representation. So he said to them: what do you mean, fair representation? After all, each and every position is voted on separately, right? In each such vote, the seventy will outvote the thirty. That means one hundred percent of the positions will be given to seventy percent of the people. That is the power of deals. Yes. That is why you need deals. But without deals, one hundred percent of the positions go to seventy percent of the people. As a percentage of the population, that’s more or less the percentage of judges on the Supreme Court. It’s just that in every panel of three there is at most one religious judge and two secular judges. So what percentage of decisions fit the religious direction? Zero. Unless by chance one sits alone, and in that case the religious judge happens to be the one, but whoever arranges these things won’t put him there if it’s a charged question. So it’s the same thing. The majority doesn’t always express itself proportionally. Sometimes majority is what is called the tyranny of the majority. Sometimes the majority wants to determine everything. And seemingly the democratic mechanism enables it. That is a majority not before us. What does it do? After all, when pieces of meat come before me—one piece comes before me and I need to assign it to some store. So I say, fine, eighty percent of the stores are kosher, twenty percent non-kosher, so this one is probably kosher. Fine? Clearly, twenty percent of the pieces circulating in town are not kosher. But this one I assume belongs to the kosher stores. Rashba indeed says that the last ones that come before me I will no longer be able to be lenient about, because I cannot decide that all of them are kosher. After all, I know with certainty that twenty percent were not kosher. He is speaking there about a mixture, but it’s the same thing. By contrast, what happens with a majority not before us? Every woman will come before me, one after another, and for each one I will have to decide whether she will give birth at seven months or at nine. I will decide regarding all of them that they will give birth at nine. Why? Because this is a majority not before us. I do not know with certainty that twenty percent of women give birth at seven. I know there is a law of nature that generally a woman gives birth at nine. Every woman who comes before me—to where will I assign her? I will assign her to the majority, to what is more likely. Right? So what comes out? That one hundred percent of women—it won’t be true in reality, but from a halakhic standpoint—one hundred percent of women I will decide about that they gave birth at nine and not at seven. Like David Levy. And therefore Rabbi Shimon Shkop says that a majority not before us is stronger than a majority before us. Because a majority not before us is a determination of one hundred percent, not of seventy percent. And what about the meat? If you have a piece of meat then I decide regarding it that it belongs to the majority. Right. But now there remain—suppose every piece of meat in the city came before you. They all disappeared from the stores and were thrown into the streets, fine? The last twenty percent you won’t be able to decide are kosher. That is Rashba on mixtures, who says that the last piece—two pieces, there’s a dispute among the medieval authorities—there seems to be a Rashi on this matter, I don’t remember exactly. What? It depends. Not true. There are views that say it is Torah-level. There is a piece—two pieces, one is forbidden fat and one is permitted fat. And two people will eat them, and no one will eat… that’s something else. Now you’re talking about the case of the two paths. No, no. But in mixtures there are views in Rashba that the last one is Torah-level. No, it’s a dispute among the medieval authorities. The Rosh there and Rashba in Torat HaBayit. The Rosh—no. I have a halakhic question. I don’t have one piece but ten pieces of meat in that city that has eight stores. Will they all be kosher? What? Will they all be kosher? Yes. So that too is one hundred percent. No. But if you find all the pieces of the city, don’t go by that—go to the case of mixture. I have ten pieces in a mixture; I know that two of them are non-kosher. I already ate eight. Every one I ate, I could assume belonged to the majority. Now two remain. This is a dispute among the medieval authorities. There are those who say there is nullification and one may eat even the last ones. There are those who say the last two may not be eaten. And if a forbidden item fell into a pot of permitted food, then you don’t need to remove a piece; you can eat everything. That’s already another question. I’m talking about dry into dry without… that is, only dry into dry, separate pieces and so on, each one standing on its own. Now no—now I know one of them is non-kosher. Right. But with women I do not know. No, so I’m saying: but if all the pieces in the city disappeared, then you do know—twenty percent of them were non-kosher. But with women, although you know there is a minority who give birth at seven months, they are not before you. There is only a law of nature that usually women give birth at nine. There you will decide regarding all women that they give birth at nine. Therefore Rabbi Shimon Shkop says that a majority not before us is stronger. What do you say, Yossi? Fine, so let’s just move on. I’m just about done. So the first majority rule—and the Talmud itself says it is learned from “incline after the many.” True, only the majority before us the Talmud says is learned from there, but there are medieval authorities—Rashi there on the spot already wrote that in the end the majority not before us is also learned from there—that this too is learned from “incline after the many.” What? That one follows the majority in prohibitions. You have to understand that this is a law seemingly different from the law of a religious court. What is the connection between these two mechanisms? Here I follow the majority, and there the majority determines the ruling. Here I decide that the piece separated from the majority. There—what separated from what? There is the famous Mordechai that in a religious court it is like something fixed in place, because nothing has separated. In any case, it is a different law, all right? Another law that is learned, that belongs to the category of majority—nullification in the majority—is also learned from “incline after the many”; that is what the medieval authorities say. The Talmud doesn’t talk about that as its source, but Rashi in several places and the medieval authorities say it is learned from “incline after the many.” Nullification in the majority is already something completely different. Nullification in the majority means that if I have a mixture in which the minority is, say, non-kosher and the majority is kosher, then the non-kosher becomes kosher—it flips, according to some views. It is nullified into the majority. A third law in the context of majority is the law of “its majority is like its entirety.” “Its majority is like its entirety” means a situation where a certain whole is required—for example, to bring the Passover offering. To bring the Passover offering in a state of impurity is possible when all Israel are impure, because impurity is permitted or overridden in the community, so one can bring the Passover offering even when all Israel are impure. What if only most of Israel are impure? Then the Talmud says: its majority is like its entirety. That means that even if most of Israel are impure, one may bring the Passover offering in impurity. The same with a court that issued a ruling in the case of the bull for an unwitting communal sin. The court issued a ruling, so if all the community acted according to its ruling, they bring a bull. What if most of the community acted according to its ruling, not all? “Its majority is like its entirety”—they still bring a bull. This is a third principle of “its majority is like its entirety.” There are places and medieval authorities from whom it sounds as though this is the same as nullification in the majority. There are authorities—Rabbi Chaim argues this is something else. It is plainly a different law. In any case, there are three different laws here, and they have different characters; each one has a different character. The law of judges is a law that tells us—plainly, that is the understanding—and therefore Rav Hai Gaon and Nachmanides argue, because with judges the whole idea of majority is that the majority generally aims better at the truth. Therefore Rav Hai Gaon says: if there is a majority of wisdom, then the majority of wisdom should determine and not the majority of number, because the whole purpose of following the majority is to hit the truth, right? What about the law of “its majority is like its entirety”? Is there some search for truth there? What does truth have to do with it? What about the law of nullification in the majority? Is there a question of truth here? Is this simply a question of truth? It’s a question of what the name of this whole is. Why does the rabbi say this is truth? Because that’s what the Torah said. So I’ll show you why. Why does Rav Hai Gaon say this is majority of wisdom? Are you saying this is not getting closer to the truth? No. Since he says the whole purpose of majority is because the majority leads you closer to the truth, it makes more sense to follow the majority of wisdom and not the majority of number. Even those who say we follow the majority of number, as I explained and mentioned earlier, say that only for technical reasons. In principle they agree with Rav Hai Gaon. I brought the Talmud of Beit Shammai and Beit Hillel, which gives many indications that this majority—thus the Chinuch writes explicitly too, and others—the purpose of this majority is to get as close as possible to the truth. Not certain that you reach the truth, but the majority gives a better chance of getting to the truth. Fine? But in “its majority is like its entirety,” am I approaching some truth? What does majority have to do with it? If most of Israel are impure, then I decide that it is as if all Israel are impure. Is there some approach to truth here in any sense? What does it have to do with anything? It is a completely different principle. The whole claim that this verse—that the whole claim that impurity being permitted in the community does not require all at all, only the majority? But from where do they know that? From the principle that “its majority is like its entirety.” But the Talmud does not say that. The Talmud says one learns it because of the principle that “its majority is like its entirety.” Yes, all is required—what is closest you have to all. That is what the Talmud says. So here this is something with a completely different foundation. And indeed Rabbi Chaim, in the stencils, discusses this question, and several later authorities discuss how one learns this at all from “incline after the many.” After all, it is a completely different principle. So he says as follows. Take monetary law. In monetary law I have three judges, two of whom say one thing and one says another. Let’s say we follow the majority, so the two prevail over the one and the law follows them. How many judges ruled this law? Two. Rabbi Chaim says: but a religious court has to be three. So how can the law be decided by the majority? Only if this verse implicitly assumes “its majority is like its entirety,” or nullification in the majority—it depends, there are nuances here. That is, from there one learns—this assumes a number of things, of course—but that’s what he claims: that this is the meaning of a religious court. A religious court is three who sat and decided. The question is whether the meaning of a religious court refers to the sitting stage or the voting stage. He assumes it refers to the voting stage, that is, to the decision. Fine, we won’t go into it. I’m only bringing the example to show that these are two completely different foundations, and I need to find a source for them. It is not simple. Now I’ll give you an example, and with this I’ll finish. From the eleventh century onward, regarding what we talked about on Monday, the question began to arise: how does one make decisions in communities? Communities then came into being in the sense we know today; the eleventh century was the first time. So how does one make decisions within such a community? It seemed obvious: one goes after the majority. What’s the problem? But when you look in the responsa, you see there is a problem. On the one hand they bring the verse “incline after the many,” but on the other hand—after all, what is the majority in a community? Let’s think about our situation today. We want to have a vote on a certain issue in this country. We want to vote on something. Why not go to the smartest people and let them make the decision? That would be a better decision than having everyone vote. Why should the vote of the greatest ignoramus and the vote of the greatest genius carry equal weight? It makes no sense. So there are always those who give technical explanations: because we don’t want the geniuses to take over and deprive the ordinary people of their rights, and so on. But the real explanations are not the technical ones. The point is that in decisions of this type we are not looking for truth. In decisions of this type, we want to know how the whole thing will be run. I’m a citizen of the state; I want to know how the state will be run. I also want to determine my right to decide how the state will be run. That is my right—not because I’m right, but because we are dealing here with values. And with values there is no right and wrong. I have these values, and you have those values, and now we need to decide how the state will be run. So we vote. What does that vote mean? Are we trying to get as close as possible to the truth? Of course not. This is a vote whose purpose is not to uncover some truth. This is a vote that creates truth, not reveals truth. In a religious court, they seek the halakhic truth relative to the given circumstances. So they say: the majority of people probably hits closer to the truth than the minority. But in votes of this kind—votes about the conduct of a community, or a state, things of this sort—these are a completely different kind of vote. These are not votes trying to hit some truth. These are votes trying to reach a decision about what to do when there are divided opinions. In such a situation, nobody in the world would say like Rav Hai Gaon that one should follow the majority of wisdom rather than the majority of number. There is no such thing—apart from Plato. But nobody says such a thing. Why? Because the purpose of the decision is not to reveal truth. The purpose of the decision is to make a decision when opinions are divided, and I have the same right as everyone else to determine how this state will be run, even though I may be a complete fool. I want it run this way. The question is perhaps that as Jews, as a community, what interests us is getting to truth and not administration. That can be discussed. But then we are speaking of a different kind of following the majority. And indeed, strangely enough, it seems to me at least that when they associate this majority with “incline after the many”—and the medieval authorities do so, in the responsa of the Rosh and Rashba—when they associate this majority with “incline after the many,” they always bring all kinds of additional reasons. They don’t say, as in a religious court: “incline after the many,” period. They always say: without this it’s impossible to conduct things, otherwise it won’t work, all kinds of reasons of various sorts that you do not hear in the context of a religious court. In a religious court it says “incline after the many,” the majority determines, finished. Why? Because they feel there is something here different from a religious court. If one can learn this at all from the verse “incline after the many,” one should learn it specifically from the laws of “its majority is like its entirety” or from the laws of nullification in the majority, and not from the laws of following the majority of judges. Because “its majority is like its entirety” and nullification in the majority are exactly two laws that tell me how I determine the identity of the whole collective, the whole aggregate. They tell me that the majority is what gives the name to the whole. And that is exactly what happens in a community’s decision, in contrast to a religious court. Fine, here I’ll stop. Just another half minute, if those waiting will allow me. Starting next week, we are changing the staffing. Rabbi Ben Zeev will head the evening kollel here. He will give the Thursday class from eight, right? From eight to eight-thirty. After the evening prayer, I will continue giving these classes. I’m calling on the whole public, starting next Thursday. On Thursdays? Yes, after the evening prayer at eight-thirty. Everyone is invited to both classes—to increase Torah and glorify it.