Pluralism and Tolerance, Lesson 2

Table of Contents

• [0:00] Summary of previous chapters and the transition to Eruvin
• [1:52] A pluralistic and monistic reading
• [3:09] The monistic reading
• [5:42] The dispute: do we count heads or feet?
• [8:05] The majority versus the truth
• [14:27] Democratic majority: truth or peace
• [22:50] The development of decision-making in the community

Summary

General Overview

The text presents a fresh reading of the passage in tractate Eruvin about the dispute between Beit Shammai and Beit Hillel, and the heavenly voice that said, “These and those are the words of the living God, but the Jewish law follows Beit Hillel.” It lays out two main interpretive possibilities: a pluralistic reading, in which both sides are right and the ruling is technical or educational, and a monistic reading, in which there is one halakhic truth and the Jewish law is ruled like Beit Hillel because their method comes closer to the truth. From there, the text proposes a basic distinction between different purposes of following the majority—peace, truth, and rights—and describes the development of the “democratic majority” as a later mechanism with no direct root in classical Jewish law. Finally, it argues that the phrase “these and those” in the monistic reading does not express pluralism but tolerance—that is, recognition of a legitimate mistake as “the words of the living God,” alongside the claim that only one of the opinions is actually correct.

The dispute between Beit Shammai and Beit Hillel, the heavenly voice, and “It is not in heaven”

The Talmud in Eruvin describes how Beit Shammai and Beit Hillel disagreed for three and a half years and could not reach a decision, until a heavenly voice came forth and said, “These and those are the words of the living God, but the Jewish law follows Beit Hillel.” The text explains that the dispute in the passage is about methods of decision-making, as Tosafot says in Eruvin, and that both sides agree with the principle “follow the majority,” but disagree over which majority counts. The text explains that when the dispute cannot be resolved by the ordinary tools of voting, there is no choice but to rely on a heavenly voice, and therefore there is no principled problem of “It is not in heaven,” which blocks recourse to a transcendent source only in cases where one can decide by the regular decision rules.

Majority of wisdom and majority of people: counting heads or counting feet

Beit Shammai, being “sharper,” maintain that one follows the majority of wisdom, while Beit Hillel maintain that one follows the majority of people—“you count heads, not feet,” in the language of the text, meaning you count the number of people rather than giving qualitative weight to wisdom. The text argues that in this kind of decision, voting by itself does not settle the question, because the question itself is what the relevant majority is. The text notes that Tosafot offers three other answers, but suggests that the solution of the heavenly voice fits especially well when the dispute is about the very mode of decision-making.

The meaning of “these and those”: a pluralistic reading and a monistic reading

The text points to an apparent internal tension between “these and those are the words of the living God” and “but the Jewish law follows Beit Hillel,” and asks whether Beit Hillel are right, or whether both sides are right. In the pluralistic reading, both sides are right and there is a multiplicity of truths in Jewish law, and therefore “the Jewish law follows Beit Hillel” is understood as a technical decision for the sake of a practical bottom line, not as a substantive preference for the truth. The text adds that on this reading, the reason “Why did they merit to have the Jewish law established in accordance with them? Because they were gentle and humble, and they stated the words of Beit Shammai before their own” is seen either as a reward for good behavior or as an educational statement meant to teach the proper attitude toward one’s disputants.

The method of decision and Maharatz Chayot: humility as a tool for getting closer to the truth

The monistic reading in the text argues that there is one halakhic truth, and therefore “the Jewish law follows Beit Hillel” means that the truth is with them, not that this is merely a technical decision. Maharatz Chayot, in his rules of the Talmud, is explained as interpreting “gentle and humble” not as a moral reward but as a method that produces a better ruling, because serious consideration of the opposing position before formulating one’s own brings the halakhic decisor closer to the truth. According to this line, the Talmud’s reason is not just a matter of manners and proper conduct, but a technique for more accurate halakhic ruling.

The implication for judicial decision-making: the Chinukh, Nachmanides, Rav Hai Gaon, and Rav Chaim

The text notes that the dispute over “counting heads or counting feet” appears later as well, and that the Chinukh cites a dispute between Nachmanides and Rav Hai Gaon even in a religious court of three judges in monetary law, when there is one judge who is “learned and discerning” and two judges who are merely “discerning.” The text asks how Rav Hai Gaon can later argue that one should follow the sage against the two, and answers that according to the monistic reading, the ruling in Eruvin is not a rule of “counting feet” at all, but a determination that one follows whoever comes closer to the truth through the correct method. Nachmanides is described as holding that this is not indispensable and that in any case one counts “feet,” whereas according to Rav Hai Gaon, the majority is not decisive when the methodological condition of examining the opposing view is missing. The text also incorporates a discussion of Rav Chaim’s comments about nullification by majority derived from “follow the majority,” and critiques the idea by saying that the requirement of three judges is meant for three people sitting to deliberate, not necessarily for three from whom the final ruling will emerge, since the role of the other two is to challenge the halakhic decisor and clarify the ruling.

The purposes of following the majority: peace, truth, and rights

The text sketches two possible purposes for following the majority in Jewish law: creating peace and social quiet through a simple decision based on counting, or using the majority as a tool for getting closer to the truth. Sforno is described as seeing the counting of “feet” as a way to achieve peace, and the Chinukh is described as explaining that following the majority in a religious court is based on the fact that the truth is most likely with the majority. The text emphasizes that even when one counts by number, this does not prove that the goal is peace, and it notes that Rabbi Yosef Karo argues that the purpose of the decision is truth, not peace, even when the mechanism of decision is numerical. The text adds a third distinction regarding the democratic majority, and argues that it is aimed neither at truth nor at peace, but at expressing the equal rights of human beings to determine their own fate, including their “right to be wrong.”

Democracy, Plato, and the rule of philosophers

The text raises Plato’s question of why not have philosophical rule, and presents a softened proposal of weighting votes according to intelligence. It argues that the usual answers against the “rule of philosophers” miss the foundation of democracy, because democratic voting is not a tool for reaching the best decision but a mechanism for expressing what the public wants by virtue of rights. The text clarifies that the democratic majority is a “majority of rights,” in which each person has “a finger like everyone else,” regardless of wisdom or correctness, and that even transferring authority to experts is itself a decision made by an institution that received its power from an equal majority.

The absence of a democratic root in the Torah and the development of communal decision-making in the 11th–15th centuries

The text argues that in the Torah there is no democracy, only a majority in a religious court, and a religious court consists of ordained judges in an unbroken chain of ordination from Moses our teacher, while the king is not appointed by the public but by the Holy One, blessed be He, and the prophet. The text describes a later renewal of the “democratic majority” in the eleventh century, following the dispersal of the communities and the absence of an organized Babylonian hierarchy, and presents a broad controversy in the responsa literature until the fifteenth century over how a community makes decisions. Rabbeinu Tam is cited as saying that unanimity is required and that “the majority does not decide in a community,” while responsa of the Rosh and the Rashba maintain that one follows the majority, and add the practical argument that “it is impossible to run life any other way,” and the text emphasizes that the addition of “besides that” shows that this is not a simple law like in a religious court. The text notes that by the fifteenth century they finally arrive at the conclusion that the majority decides in a community, and presents this as a historical process, not as an ancient democratic foundation.

King, Sanhedrin, Derashot HaRan, and the powers of the religious court in exile

The text describes a process in which, when the monarchy ceased, the head of the Sanhedrin also took on the role of secular government, and a situation emerged in which the religious court assumed powers that were not part of the original law. Derashot HaRan in the fourteenth century is presented as describing two systems of government—the king for managing secular life and the Sanhedrin for law—and as seeming novel because in exile people had become used to seeing the religious court as a body that also manages non-judicial areas. The text brings examples such as “the religious court may administer lashes and punish not according to the law,” and the Mishnah in Moed Katan that says the religious court repairs the roads during the festival period, and explains that this transfer of powers was born out of the need to fill a governmental vacuum. The text adds that turning questions of communal administration into halakhic questions is the result of a situation in which the rabbi or the religious court is the only governing factor left, and it mentions rabbinic anachronisms in reading Scripture as a literary pattern for conveying messages.

Halakhic truth, uncertainty, and reasoning

The text argues that the sages of Jewish law operate on the assumption that there is halakhic truth, and that the purpose of decision-making is to strive toward “what should be done now in these circumstances,” even if there is no way to know this with certainty. The text distinguishes between truths and certainty, and emphasizes that one may claim there is one truth without claiming there is certainty of reaching it, and that there is no “feedback” from heaven because “It is not in heaven.” It connects this to the meaning of those who are “fearful of issuing rulings,” who are afraid of making a mistake, and argues that if the ruling itself defined the truth with no possibility of error, such concepts would be emptied of meaning. The text divides Jewish law into received tradition, exposition through the thirteen hermeneutic principles, and decrees, and also presents reasoning as an attempt to hit upon the truth, not as an arbitrary process of temperament or environment.

Tolerance versus pluralism: three categories of truth and error

The text concludes by arguing that the central confusion is between tolerance and pluralism, and that in the monistic reading, “these and those are the words of the living God” is not pluralism but tolerance. Tolerance is defined as a situation in which there are two legitimate opinions but only one is correct, and the world is not divided only into “truth” and “error” but into three categories: truth, legitimate error, and illegitimate error. The text argues that when one says “these and those,” this can be interpreted to mean that the mistaken side still lies within the legitimate range, and therefore even a legitimate mistake can be considered “the words of the living God,” even though it is not what the Holy One, blessed be He, intended. The text presents this as a continuation of the explanation that will be given later through a precise conceptual definition of tolerance and pluralism, and a return to the issue of the heavenly voice.

First, a summary of the previous sessions. We’re dealing with tolerance and pluralism and so on. Last time we spoke a bit about the Talmudic passage in Eruvin. The Talmud there brings the dispute between Beit Shammai and Beit Hillel—about the dispute of Beit Shammai and Beit Hillel, who argued for three and a half years, I think, and couldn’t reach a decision. A heavenly voice came out and said: these and those are the words of the living God, but the Jewish law follows Beit Hillel. And I said that first of all—I explained that the dispute there dealt with methods of decision, as Tosafot says in Eruvin: Beit Shammai also agreed that we follow the majority, “incline after the many,” but the question was which majority. Beit Shammai were sharper, and therefore they thought we follow a majority of wisdom. And Beit Hillel, who were less sharp, thought we follow the majority of people, just as you count people and not wisdom—you count heads, not legs. And in a decision of that kind, you can’t decide by ordinary voting tools, and therefore in that Talmudic passage we aren’t bothered by the principle of “it is not in heaven,” because “it is not in heaven” always means: don’t turn to transcendent sources when you can hold a vote. Decide it by the normal rules of decision. But disputes that can’t be decided through regular forms of decision—then there’s no choice but to resort to a heavenly voice. I said that Tosafot brings three other answers there, but it seems to me, in my humble opinion, that this answer is more reasonable. In any case, how do we now interpret the statement of the heavenly voice? It has two components: “these and those are the words of the living God”—both are right—and “the Jewish law follows Beit Hillel.” But those contradict one another. In other words, the question is how to interpret it. So is Beit Hillel right, or are both right? So I said that this can be read in two ways. One way is a pluralistic reading, and then it means that “these and those are the words of the living God” means that both sides are right. This is halakhic pluralism; there is a multiplicity of truths in Jewish law. Then you have to understand: what does “the Jewish law follows Beit Hillel” mean? If everyone is right, then why does the Jewish law follow Beit Hillel? I said that apparently “the Jewish law follows Beit Hillel” is a technical decision—not because Beit Hillel are right, but because you have to get to some bottom line. And according to that, the continuation of the Talmud, which explains the words of the heavenly voice and says, “And why did they merit that the Jewish law was established in accordance with them? Because they were gentle and humble, and they taught the words of Beit Shammai before their own”—that has to be understood as some kind of reward for good behavior, or an educational statement. We rule according to Beit Hillel in order to educate the public to treat their opponents nicely.

The second reading of the words of the heavenly voice is a monistic reading. Monism is a view according to which there is one truth, not a multiplicity of truths. Wait—but you said something else too. You said that perhaps because Beit Hillel first addressed Beit Shammai, maybe that’s how they reached the truth. Exactly—now I’m saying: that’s the monistic reading. The monistic reading says that in fact the Jewish law follows Beit Hillel because the truth is with them. It’s not a technical matter. There is one halakhic truth; that’s why I call it monism. There is one halakhic truth, not pluralism. So what does “these and those are the words of the living God” mean? That I still haven’t explained. What I did explain was what the Talmud says afterward. So how do we explain the Talmud’s reason according to the monistic reading? Why did Beit Hillel merit that the Jewish law was established like them? Because they were humble and gentle, and they put the words of Beit Shammai before their own. That sounds like a reward for good behavior. Maharatz Chayot, in his Rules of the Talmud—I mentioned this—says that this is actually a method for reaching a better decision. It’s not a reward for good behavior. If you seriously weigh the position of the person who disagrees with you, and only afterward formulate your own position, you simply come closer to the truth. In other words, it’s a technique for ruling better; it’s not just etiquette and manners.

According to the monistic reading, how do we explain the statement that at first people practiced either like Beit Shammai or like Beit Hillel, if in truth there is only one Jewish law? So what—did they always go like Beit Shammai? No, once it was decided, it was decided. Was there not a period after the decision in which people could be stringent on themselves, and only later it was said that… I don’t think so. If that’s the meaning of the decision, it seems to me—I need to check. If you have some source, I don’t know. But even that itself is Jewish law, the way that… Someone who was stringent on himself, right, was liable to death. Well, yes, so that means you can’t act like Beit Shammai. Not because it’s forbidden to act like Beit Shammai, but because he endangered himself. No, no, no, no. “You deserved to forfeit your life because you transgressed the words of Beit Hillel.” Rabbi Yochanan ben HaChoranit, when the sages came in… the sages came to him, and he was sitting with his table outside the house, and he leaned, he read and leaned. Anyway, so these two readings basically both explain the two parts of the heavenly voice’s words—“these and those” and “the Jewish law follows Beit Hillel”—and also the reason that they were gentle and put the words of Beit Shammai before their own. What still remains is to explain “these and those” in the monistic reading. In other words, if the truth is with Beit Hillel, then in what sense are the words of both of them the words of the living God?

But before that I want to add two more points that I didn’t dwell on last time. First point: I mentioned that the dispute over whether we count heads or count legs continues later on. Sefer HaChinukh brings that Nachmanides and Rav Hai Gaon disagreed on this matter, even in a court of three. In a court of three in monetary law, you need one who is learned and discerning, a Torah scholar, and two others who are discerning—that is, if you explain it to them, they understand. Now all three disagree in the legal case. And the two discerning ones think in one direction, while the learned-and-discerning one thinks in another. So there is a dispute between Nachmanides and Rav Hai Gaon over whose view we follow. And once again, it is basically the same dispute: do we count heads or count legs? Yes, yes. Now, if the decision in tractate Eruvin was that we count legs—the Jewish law follows Beit Hillel—then how does Rav Hai Gaon allow himself, much later, to say that we nevertheless count heads? So here there’s a very interesting point. Maybe I don’t remember—maybe someone noted this last time. Because really, according to how I explained the heavenly voice before and the Talmud’s reasoning, the decision was not that we count legs. The decision was that we want the truth. The majority is a criterion for reaching the truth. But now we are checking which of Beit Hillel or Beit Shammai gets closer to the truth. Since they adopt a correct methodology—they carefully consider the words of those who oppose them, Beit Hillel, the words of their opponents, before they formulate a position—they come closer to the truth, and therefore the Jewish law was ruled like them. Not because we count legs. So if there’s a majority that doesn’t do that, then no? Then no. That’s it—at least according to Rav Hai Gaon. Nachmanides says to him: no, that’s not indispensable; in any case you count legs. But I’m only saying regarding Rav Hai Gaon: there is no difficulty from the Talmud’s conclusion there, because Rav Hai Gaon says that the Talmud there did not say that we count legs. Quite the opposite. If anything, it said exactly the opposite. It said that Beit Hillel—even though they had more legs—that didn’t help them. Only because they had a more correct methodology was the Jewish law ruled like them. So this actually means that in the bottom line, contrary to what one might have thought, it is not true that the bottom line is that you count legs. In other words, that the majority decides. Yes?

This sounds a bit problematic. Yes, that the majority… it’s not correct to say that in the end the majority always decides. Sometimes yes—it says “do not follow the many”—yes, “do not follow the many to do evil.” What the verse there says is precisely “do not follow the many to do evil.” In other words, if the majority is not right, do not follow the majority. The majority does not determine it. In other words, if the truth is here, then you go—you go with the truth. But that’s not the plain meaning. Why not? The plain meaning is that in a court, for example, of twenty-three, if there’s a deficiency of one—eleven against ten, yes—then you need a majority of two to decide. And the majority required to convict is… that’s the plain meaning. That is the Jewish law. It is the Jewish law, not the plain meaning. It’s a rabbinic exposition. It’s an exposition of the verse. The exposition of the verse says what I said. The Talmud expounds that you need a majority of two to impose the death penalty. In other words, twelve against eleven is not enough. That’s an exposition. Right. So that’s how the Talmud learns it. No problem. But the plain meaning of the verse is not that. Exposition is fine; exposition is legitimate. I’m only saying that it’s not the plain meaning of the verse. The plain meaning of the verse—Rashi says there what the plain meaning is.

So according to Rav Hai Gaon, if a court of three—what? According to Rav Hai Gaon… No, the point is that they are required to sit as three. And it will always be… Never mind, because he has to hear two others discuss it with him. And that is exactly the point. Here you ruled like… Right, right. Because the point is that indeed we discussed this, I think, regarding following the majority—I mentioned this too—that Rabbi Chaim says: from where do we know that nullification by majority is also derived from the verse “incline after the many”? Didn’t I mention this? How do we know that nullification by majority comes from “incline after the many”? So Rabbi Chaim says: because the Torah wants three judges, and if you rule like two against one, then you did not rule by three judges—one judge is missing. So it must be that the opinion of the individual is nullified before the majority, and there are three opinions here. And that isn’t a plausible thing; there is also evidence against it. And why not? Where is he mistaken? He is mistaken in that when the Torah wants three, it does not want three from whom the ruling will emerge. It wants three to sit and deliberate. That is exactly the answer to what you asked. In other words, those two have to sit in order to challenge the decisor. To object to him, to try to help him clarify the issue. But Rav Elyashiv says: fine, but in the bottom line, after we did all that, if that’s what he says, then he determines it. I don’t know if that’s only in monetary law, but there is the rule that they begin with the lesser one. But that too—in a panel of three, you first hear their opinions. And this is obvious. In other words, that is a condition for the give-and-take, not specifically for the final ruling. In Tosafot too, that’s not what it says; in Tosafot in Bava Kamma—I mentioned it here.

But your principle is that if you’re a Torah scholar, then how can Rav Elyashiv say that in a court of three you don’t follow… No, because it depends on the distinction. There is a difference between two merely discerning judges and one who is learned and discerning. There he says you follow the one who is learned and discerning. In every place where there are differences of one sort or another in learning level—differences that are sometimes even hard to measure and so on—you follow the majority. Now if there are three reasonings and all are discerning… That’s why I say: there too, even if there is a difference, there is still a greater and a lesser. There is a ranking. There is a greater and a lesser there; after all, they begin with the lesser one. But the differences there are already differences between people who are ordained and fit to judge and so on. Those are differences where there is no longer that clear-cut decision. That was the first remark. In other words, one has to understand that according to the conclusion of the passage, it is not necessarily true that its conclusion is that we follow the majority. The conclusion of the passage is that we follow the truth. The question is how one gets closest to the truth. Now, in the absence of another criterion, each person of course thinks that the truth is with him, so you follow the majority. A good sign. What—why according to the conclusion of this passage don’t we follow the majority? Because that is what the method—according to the monistic reading—the method of Beit Hillel is what caused the Jewish law to follow them, because they come closer to the truth. What is there not to understand here? What… No, you may disagree, no problem, but what is hard to understand? That is what Sefer HaChinukh says. It says that Beit Hillel merited that the Jewish law be established like them because they were closer to the truth. What does that mean? It means that we are looking for the truth. Usually we understand that following the majority is meant to achieve peace—as if there should be majority rule, and the minority should not rule over the majority. But here you say no: even if we follow the majority, even if it is a majority of heads—yes, of Beit Shammai and Rav Hai Gaon, the elitist majority—then there it is clear that the goal is truth and not peace, right? Because from the standpoint of peace, there is no difference between sages and fools. If you are looking for truth, I understand the claim that a wise person’s opinion should carry more weight than the opinion of someone less wise. But if you are looking for peace, then apparently you count legs. But I’m saying that even according to Beit Hillel, who count legs, Rabbi Yosef Karo claims that the goal is truth and not peace. In other words, that is the great novelty. Okay?

And on this I want to make one more remark. Because then it really turns out that there are two goals in following the majority. This is just a concluding remark, and then we’ll continue with our subject. There are two possible goals in following the majority. One can see it as a tool for creating peace or social quiet, because the majority decides. Hold a vote and the majority decides. It’s obvious that if we start wrestling over who is wiser, we won’t get far. In other words, that’s not a good way to achieve peace, okay? If you want quiet and a bottom line, you need to count legs. That’s what Sforno says—that that’s how, God forbid, peace exists. Yes. Okay. Yes. Here you see that that’s totally mistaken. Because either you follow the wise, and then there will be truth but not peace, or you follow the fools, and then there will be peace. But to say that you’ll follow the wise and there will be peace—that’s not something anyone agrees with. Okay. In any case, we see here that there are two goals in following the majority. One goal is to achieve quiet or peace or some sort of social order, a reasonable functioning of society. And the second goal is to see the majority as a means of attaining truth. That is what Sefer HaChinukh writes: when sages follow “incline after the many” in a court, Sefer HaChinukh says, it is because the odds are that the truth is with them. Okay. So the majority is a tool for achieving truth, not for achieving peace.

Now on this too there are all kinds of amusing discussions—maybe we’ll do that sometime—but here I just want to add one more remark: what about a democratic majority? Is the goal truth or peace? That brings us back to the question whether we follow a majority of heads or a majority of legs, but I think here it’s neither, and therefore the whole thing is a mistake. Where does the question begin? It begins with Plato. Plato asked why there shouldn’t be rule by philosophers, right? What was he actually saying? That in democratic voting there should be weighting according to intelligence. So if we take a less extreme version than Plato’s, and one that sounds very logical, it basically says: let’s weight each person’s vote by his intelligence. Everyone has the right to vote, but whoever is smarter, the weight of his vote will be greater. So we’ll weight it. Everyone has a right, but there will be a weighting. This will lead us to better results, because it’s a softened version of Plato’s proposal of rule by philosophers. So there are all kinds of answers to why not—why not do that, why it’s not right to do that. The size of the state has weight, but it doesn’t go according to intelligence. Yes, I understand, but it doesn’t go according to… no… yes, each state—there is a state, it has two representatives, and the representatives can decide whatever they want. Yes, okay, but that’s still a different model. Yes, but even the representatives are not necessarily supposed to be great sages. I’m not sure the alternative here is an alternative of going after wisdom. Rather, it’s not a simple going after the majority, for various reasons. There too, there are states where the electors all go according to the majority view—I think most states are like that—the electors all go in the direction of the majority, not divided proportionally to the voters. Yes, so there too there are… but these are different methods of measuring a majority, not majority of wisdom versus majority of number. It could be, I’m not familiar… But how does that balance? Where does wisdom enter here? I don’t know. Fine, I don’t know, I’m not familiar with that system; it needs checking. It could be—I don’t know—the electors used to deliberate and make a decision. Okay, fine.

Does wisdom not express itself in the discussions before the vote? That’s where the weighting of wisdom is factored in. The majority in the end is a matter of exact data, like in the Knesset. The decision, ostensibly—if there are no very strong interests—comes through persuasion; whoever knows more persuades whoever knows less. Okay, so in a certain sense… And if he didn’t persuade him? If everyone is looking for the truth, and in Beit Hillel and Beit Shammai everyone was looking for the truth, and Beit Shammai were more brilliant and yet disagreements remained between them, then Beit Hillel were not persuaded. So now how do you decide? By Beit Hillel or by Beit Shammai? You’re right. That point is true regarding democracy. I’m saying that in democracy, if there is discussion before the vote, then yes, there is more specific weight for the wise, because in that discussion they persuade. No, I understand, but that’s also true in Beit Hillel and Beit Shammai. There too, if Beit Shammai were wiser, there was discussion before the vote, right? And Beit Hillel were supposed to be persuaded because Beit Shammai were wiser. Okay, but never mind. It can always be that the gap isn’t enough. I’m saying that in the end the question is about the vote, after we were not persuaded. Do you still have an equal vote? You can have an equal vote after discussion—that’s fine—but if even after the discussion you weren’t persuaded because you didn’t understand me because you aren’t smart enough, let’s say—I’m just claiming—then even in the vote I don’t want to give your finger equal weight to my finger. The discussion is about the vote.

There’s a third possibility—not peace and not truth, but simply that in the end you need some way to decide. But that is peace—that’s peace. Peace means reaching a shared decision with a minimum of resentment. That is basically the meaning of peace. In order for society to be strong, it’s not strong ideology, it’s peace. Peace meaning the regulation of society. Maybe “peace” is too narrow an expression. I mean the structuring of society—reaching a reasonable arrangement with minimal bitterness. That’s what I meant by peace. But then the question of rule by philosophers comes up. And the answers to the question of rule by philosophers, in my opinion, reflect a misunderstanding. There is a whole collection of answers—read them, look at the collection of answers. The collection of answers is either that we do not trust the wise not to prefer their own personal interests—that is, that they will act for the public good—and therefore to give a minority the ability to rule over the majority is dangerous, like monarchy basically. It’s monarchy on a small scale, okay? We are afraid they won’t behave. But in principle, in fact, they accept Plato’s principle; they are just afraid, because it can lead to wrong things. A second claim is: go figure out who is wise and who is not wise, and in what context. Wise in what—science, or the Talmud, or anything else whatsoever? Who says he is wise in politics? Who says there is even such a thing as being wise in politics? Therefore it is hard to decide who is wise and who is foolish—how will you rank and weight the different opinions? All kinds of explanations of that sort.

You don’t need all those explanations. There is a basic misunderstanding here. The whole idea of rule by philosophers is based on a misunderstanding. This challenge of rule by philosophers—the majority in democracy is not for peace and not for truth. That majority is basically a majority of rights. A person has a right to decide his own fate and the fate of the society of which he is a partner, regardless of his intelligence. And if he wants society to make a mistake, that is his right. And whoever doesn’t want to be in a society with him—the clear-minded people of Jerusalem would check who sat with them at a meal. If you are in partnership in a society with such people, take into account that they have exactly the same right as you to determine what society will do. It does not matter at all whether they are wise or not wise, and it doesn’t matter whether their decision is correct or incorrect. They have a right to be wrong. They want society to be run that way. They have a finger just like everyone else. What? That’s not peace, that’s a right. It’s not in order to avoid resentment. There is a real, a priori right here. Even if they were willing to give it up, I would not allow them to give it up. Not because of resentment, not because I’m afraid of resentment, but because they have a right to decide. A person has a right to be foolish. He is foolish, but he wants to run his own life. The liberal conception basically says that a person has a right to run his life. Once you have a right to run your life, then you have a right equal to every other person.

On the other hand, a responsible society—well, I don’t know if Plato spoke about this—there is a right of the responsible to rule over the right of the mistaken one if it is harmful. The responsible, after they were chosen by the majority. Of course—after they were chosen by the majority, then whoever was chosen can legislate a law. Fine. But he has to be chosen by the majority. But you can get into all kinds of details. Afterward, the majority also sometimes gives authority to a professional, which is fine. But that again is a decision of the majority. It doesn’t matter. It’s again a decision of the majority. So the majority elected by the votes of all—fools and wise alike—determines that a certain decision will be made by a professional. By the way, usually that’s a mistake, but never mind, that’s how it’s done. So they arrange for decisions to be made by a professional. Fine. But that’s after there is an institution that received its authority through a majority in which each person has an equal vote. After that, the elected institution—or the votes themselves, in the Athenian demos, where it was the people themselves, not an institution—could vote that some general should make wartime decisions. Fine. As long as he received the power from the public in an equal way, so that every member of the public… There it wasn’t equal, you know. There were only about ten percent who really had voting rights. Also in Magna Carta it was only the aristocracy. Obviously. But I’m saying: the idea—it’s a process—the idea was given that each person has a right to decide. No, what I said wasn’t a historical answer. No, I understand, but it’s not an answer to the issue of rule by philosophers. It’s an answer to the basic assumption of democracy. Obviously.

So I’m saying: today, when questions of rule by philosophers arise, I’m not talking about Plato—Plato wasn’t alive today—but when questions of rule by philosophers arise today, it seems to me that this is a misunderstanding. It is a misunderstanding of the democratic foundation or democratic thought. We do not… we do not vote in order to reach the best decision. It is a mistake to understand democratic voting that way. We vote in order to express what the public wants. That’s all. And if the public wants a path that isn’t good, then that is what it wants, and that is what will be. Therefore the goal of voting is neither truth nor peace; it is a third goal. By the way, if you look in the responsa literature—and I’ll just close the parenthesis—many times people say, after Rabbi Yonatan, that democracy all comes from us. That’s nonsense. From the Torah’s standpoint there is no democracy at all, and nothing democratic appears in the Torah. What appears in the Torah is majority rule in a court. That’s all. A court has to make decisions, and you follow the majority. There is no democracy in the Torah. A court consists of ordained judges in an unbroken chain from Moses our teacher. The public does not appoint them, and the public does not appoint the king either, despite all kinds of later homiletics. So where did this thing of majority really come from…? The Holy One blessed be He, and the prophet His emissary. Exactly. Fine. So all the sayings of the Sages begin to bend the matter a bit already, but the basic conception is not like that. Slowly, over the course of history, a new phenomenon begins to emerge, and that is a democratic majority. It has neither root nor branch in Jewish law. In the eleventh century, in the eleventh century, it starts to rise to the surface. And why? Because the public begins to disperse. Until then they had been in Babylonia, in an organized way with judicial autonomy, so there was more or less a full state-like structure in Babylonia—not in the Land of Israel. And in the eleventh century they begin to disperse, and communities are formed all over the world in different places, and those communities have to make decisions. And now there is no longer a state hierarchy with an exilarch and Rav Nachman sitting there, the leading sage of the generation, appointing local courts, and the local courts appointing panels of three, and so on. No—that’s over. Once that ends, there is a community. Autonomous communities, each of which has to conduct itself in its own way, and they also have to manage their secular day-to-day life. Then questions begin to arise: what do you do?

Now look: contrary to all the cheering and rejoicing of those who find all the foundations of democracy in the Torah, look at the responsa literature that begins in the eleventh century, and this controversy more or less ends in the fifteenth century, where they agonize over the question of how to make decisions in a community. And it is by no means clear that you follow the majority—by no means clear. There are responsa of Rabbeinu Tam and all the great medieval authorities (Rishonim). Rabbeinu Tam said that it has to be unanimous. The majority does not determine things in a community. The medieval authorities (Rishonim)—there is a responsum of the Rosh, a responsum of the Rashba—which say that we follow the majority, but they explain: this is “incline after the many,” and besides that, you understand that it is impossible to run life any other way. Now if it is “incline after the many,” then what is this “besides that”? Suppose someone asks me in a court: there are two against one—how should we rule? Will they say to me: “incline after the many,” but besides that, listen, you won’t manage otherwise? Or: is it permitted to eat pork? The Torah says it is forbidden, and besides that, it’s not a good idea either. There is no “besides that,” right? If there is Jewish law, there is no “besides that.” Now look: in every single responsum that deals with this, even responsa that cite “incline after the many,” it is always very interesting—they always add this “besides that.” That is, some reasoning of the sort: listen, it can’t work without this; it can’t be any other way. In the fifteenth century they finally reach the conclusion that the majority determines things. In the fifteenth century. Among the Gentiles this was already there earlier. And among some of the Gentiles, or in… Yes, not many. Some of the Gentiles—but not us scholars of… What? It’s the issue of hierarchy, because I mentioned this sometime in the past. Already in the Second Temple period, once the monarchy ceased, the heads of the Sanhedrin took the place of the king. Rabbi Yehudah HaNasi and that whole dynasty, Rabban Gamliel, were descendants of Hillel the Elder, who were really from the house of David. Why? Because in that period, when there was no king—because in those days there was no king in Israel—the president of the Sanhedrin in fact also functioned as a secular ruler, as king.

And what happens is a fascinating halakhic phenomenon. In the original model, as Derashot HaRan explains, there were two systems of government: the king’s government, which was responsible for managing secular life, and the halakhic government, the Sanhedrin. All right? Today, for example, when you read the Ran, this sounds like some terrible innovation, something none of the medieval authorities (Rishonim) would even have dreamt of saying. In the Sages there is hardly any hint of this claim. The Ran in the fourteenth century, in Derashot HaRan. Because to everyone it is obvious that this is the job of the court. There is a section in the Shulchan Arukh, section 13 in Choshen Mishpat: the court may strike and punish not according to the law. The court should not be striking and punishing not according to the law—that is the role of the king. The court is responsible for the law. But as for deciding where the road goes, how much tax—that’s the king, that’s the king. Of course. Exactly. But what happened? At some stage the monarchy ceased; there was no longer a king. And when there is no king, the governmental authority that remains takes those powers for itself, because someone has to run things. And thus the Mishnah in Moed Katan is born, that the court repairs the roads during the festival. You spoke about road repair. Yes—the court is the Ministry of Transportation. Why? Because when there is no king—think today, suppose a bomb, God willing, fell on the Knesset and everyone were wiped out, including the government. What would remain? The court system would remain. I’m joking half-seriously. The court, the court. Not everyone, not everyone. Almost. Anyway—only the court would remain. You understand that we would all agree, and it would be perfectly logical, that the court should manage all aspects of life. And that is how it should be; it has to be, otherwise there would be chaos here. It could be that that is what is happening today. They’re already dead—they’re walking dead. Yes, they’re the walking dead. The court already does this today. But the claim is: once one governing authority is missing, obviously another governing authority has to fill its place. But you write that it’s possible to have a halakhic state and rabbis will rule and that’s all—who will be the police in that case, and so on. Yes. So whoever thinks there will be a halakhic state—suppose there were a halakhic state—what would the rabbis determine? No, they would determine what the Knesset determines. They would just write at the bottom of today’s law book: “This is the law.” That’s all. There would be some formal change. The law book would be the same law book as today; there would be no difference at all. They would simply adjudicate damages in a religious court and hold him liable. Right. They would simply adjudicate community management and its secular dimension. Obviously “incline after the many” is not relevant there; therefore they hesitate. No, “incline after the many” applies in governing institutions, in the “seven good men of the town.” Once the seven good men of the town have already been chosen. Again, that’s not right. It is “incline after the many,” only within the establishment that is already governing. There is a government, the seven good men of the town. But when the responsa say: let us ask all those who paid the assessed tax and this and that… then that is something else. One has to decide when you leave it there. And the same dilemma exists today in the question of the people—when do you return to the voters? Sometimes there is a feeling that the representatives do not reflect the public’s opinion. The public protests against them. There is certainly room even in today’s conceptions to return to the public with a referendum. So that is true there too. I think it is basically the same form, only quantitative—when do you do it? Often you return to the people, or rarely—that is already a question of method. But at the principled level it is similar.

But this only begins to resemble that in the fourteenth-fifteenth century. So you asked earlier how… then why go to a religious court at all on such questions? That is a fascinating question. Why are there responsa at all on the question of how to run communities—whether one follows the majority or not? Rabbeinu Tam says that everyone… what, who is Rabbeinu Tam to decide how we pave the roads in our village? Why is that a halakhic question? Why is it of interest? Again: it is an artifact of the same phenomenon that the court replaced the king. And then in the tradition of our halakhic thinking, it becomes obvious that all questions are halakhic questions. In other words, that isn’t really true. A large part of the Shulchan Arukh doesn’t deal with halakhic questions at all. This is a bit connected to what we discussed after prayer—whether these things count as Torah study. But somehow history—the history of Jewish law—takes us to a place where all questions became halakhic questions because the only factor that remained a governing authority in the exile period was the rabbi. Or, I don’t know, perhaps sometimes there was some regional court, depending on the place; there was judicial autonomy for Jews and so on. So somehow something changed. And therefore, when you read the sermon in Derashot HaRan, it is fascinating, because it seems to people like some great innovation—they don’t know where he took it from—when it is quite clear that this is what actually existed. But Jewish law went through a change of direction, and today we live within that. So it is obvious to everyone that if, for example, there is a proliferation of murderers, then the court imposes punishments not according to the law. So they will deal with that phenomenon, throw people into confinement, deal with the phenomenon in order to solve it, because pure Jewish law cannot solve problems like that. Pure Jewish law, yes, without the add-ons, cannot solve problems like that. That was not originally the role of the court. The king is supposed to do that. More than that—even enforcing the people to walk in the ways of the Torah, Maimonides writes, is the role of the king, not of the court. Not to mention paving roads or diplomatic agreements or all kinds of such things.

And in the midrashim, King David was the head of the Sanhedrin in his day. So that too… These are all anachronisms, rabbinic anachronisms. In other words, the Sages read the Bible through their own lenses. They often do that. You can’t do without it. Okay. So if you didn’t hear it, fine. Therefore it is clear: King David argued with Vashti in a dispute between Rabbi Akiva Eiger and Noda B’Yehuda. That is taking this anachronism to politically comic heights. But there is something like that in many rabbinic midrashim that read the Bible this way, and by the way that is by no means invalid. It is literary—in order to explain ideas, to convey messages to the public. So we do it through the Bible. But don’t think anyone really thought that King David was dealing with Rabbi Akiva Eiger, or that King David was a humanist according to my own lights, and so on. What was this whole thing about bringing water from the well of Bethlehem—that he asked a halakhic question about the Gentiles’ barley, whether one may burn it, and so on, in Bava Kamma there. Fine.

So that was the second remark: a democratic majority is not a majority whose goal is truth, nor is it a majority whose goal is peace. It is a majority of a third type, and it entered Jewish law relatively late, but true, in the end it did enter. And that majority too is a majority that is part of Jewish law. I’m saying this as a completion to what we saw with Beit Shammai and Beit Hillel, where ostensibly the argument was whether the purpose of the majority is to arrive at truth—in which case Beit Shammai say you have to count heads, meaning whoever is wiser has an advantage—or whether the purpose of the majority is to arrive at peace, in which case Beit Hillel say that their majority is the relevant majority. And I’m saying that in a democratic majority neither of those is true. In other words, you follow a majority of legs because we are talking about rights, not an attempt to arrive at truth or peace. And it was a continuation of Beit Shammai. Because let’s say that among disagreeing sages… so you followed the wisest sage. Where do you stop? Where do you decide? What do you do when there’s a tie among the non-wise? If you count legs, what do you do when it’s half and half in legs? Same thing. There is always such a problem. So what? In a court, incidentally, we make sure that the court is “inclined.” And an “inclined court” means there cannot be a tie. So you’re saying that even an “inclined court” only ensures there won’t be a numerical tie. But a tie in wisdom can still remain. There, I don’t know how one makes an “inclined court” for a tie in wisdom. True enough. Then you add judges. It’s like a judge… “These and those are the words of the living God,” heavens and earth? Yes.

Now I come back to the point that, in the monistic reading—you can probably already understand that I tend in that direction—how does one read the phrase “these and those are the words of the living God”? In other words, there is one halakhic truth. So “the Jewish law follows Beit Hillel” means that this is the truth. Yosef Karo explains that we do not count legs; we do not rule like Beit Hillel because we count legs, but because their method is a better method for reaching the truth. In other words, he assumes that there is a halakhic truth, and the goal of decision-making is to get as close as possible to the truth. Again, this does not mean that we are always in possession of the truth. It only means that this is the instinct, that this is the overarching rule, the best rule we have, with the fewest misses. There is the idea of seventy faces to the Torah. When you say truth, what does that represent? Was it in the Torah at Sinai? Was it the intention of the Holy One blessed be He? It seems to me that the intention is what He wants now. I’m not now entering into the question whether this was already His intention at Sinai. No, no—the intention of the Holy One blessed be He now, not at Sinai. I don’t know if He already thought of it in advance at Sinai, because that depends on whether all halakhic development is just bringing into actuality things that were already at Sinai. I am not inclined to think so. Since that is so, I’m not going back to Sinai. I’m asking what the Holy One blessed be He wants us to do now. That is the truth. These are the foundations we were given for interpreting Torah? Yes, yes. But our goal is really to try to come closer to the truth. In other words, we want to understand what the Holy One blessed be He really wants. Otherwise, understand, this becomes a kind of game empty of content. We argue, each one says whatever he wants, and in the end, however you look at it, whatever we decide will be fine, so why not just draw lots? If there is no truth and no falsehood—if in the end what we decide defines halakhic truth, rather than gets as close as possible to halakhic truth—then there is no… then what is an error in Jewish law? What does that mean? What are those who fear issuing rulings? Those who fear issuing rulings are those who are afraid to rule because maybe they are mistaken. But by definition they are not mistaken, because once that is their ruling, that is defined as halakhic truth. All these things show—and I will come back to this—that, as it were, speaking innocently, all the sages of Jewish law have no doubt that there is a halakhic truth. In some polemical literature or another you can see all kinds of interesting views. In the end, it seems to me that when one reads all halakhic discourse, quite clearly there is a halakhic truth.

But still—one moment—there is still a kind of regard, let’s call it forbearance, in some way, toward other views along with that. And that is an expression of the question I want to deal with now. How does the monistic reader, who says there is a halakhic truth, and that we rule like Beit Hillel because they are correct, how does he read the first part—“these and those are the words of the living God”? That is really the same question. So when I explain that Talmudic passage, I’m not merely explaining that passage. I’m trying to explain what Jewish law tells us today: that Jewish law today, contrary to conceptions that say that since there is legitimacy for multiple views it is apparently pluralistic—I disagree with that. They’ll tell me, fine, you too are right because we are pluralists, but I disagree. I think Jewish law is monistic. There is a halakhic truth. And nevertheless this does not contradict the fact that we grant legitimacy to different views. And here I want to explain that distinction, because it is very important in many contexts.

What is truth? Let’s divide up the kinds of Jewish law. There is received tradition—what we received in tradition. There is what we derive through the thirteen hermeneutical principles. And there are decrees. That is basically the division. Say—there are also interpretations, there are also… In received tradition you can say what is objective. But in derivation, it is sometimes a matter of reasoning. Right, it is a matter of reasoning. Is there really truth in reasoning too? Of course, of course. What is reasoning? What is reasoning? You can say that reasoning is just something I was born with. That’s reasoning. So then it’s arbitrary. In other words, I happened to be born this way, so that’s what I think; you happened to be born differently, so that’s what you think. And if it’s not how I was born, then never mind—my environment shaped me. It’s not important. Those are all arbitrary processes. I say no. Reasoning means what I think is correct—that is called reasoning. So that means reasoning is an attempt to hit upon some truth. It does not mean I have any way of receiving feedback as to whether I’m right or not. I don’t. “It is not in heaven”—even the Holy One blessed be He will not give feedback. A logical inferential system that is unambiguous? No, I didn’t say unambiguous. I said that this is what I think is the truth. I didn’t say that I think I am certain this is the truth. I’ll still get to that point. In other words, there is a difference between claiming that I hold this to be the truth and saying that I cannot possibly be mistaken. Those are two completely different things.

What is the definition of truth? Because there is solid truth and complex truth and truth of the here and now. I’ll save us the whole discussion. Truth means what should be done now under these circumstances. All right? That is truth. I’m not talking about abstract principles that get applied differently in every situation. With all the consequences. And when there is a dispute between two sages, I claim that one is right and one is wrong. In this specific situation—not some general principle, whether we say migo to extract money or not—but in this specific situation, both of them cannot be right. That cannot be. And when we sometimes see “these and those are the words of the living God,” the intention is not that one must take into account the general truth, only the Jewish law. So I told you: in order to neutralize these questions, let’s speak about a specific case that comes before us, under these circumstances. One sage says Reuven is liable; the other sage says Reuven is exempt. Am I claiming that both of them are right? Or that one of them is right and the other is wrong? What do I say about that? At the level of principles, we can agree and still apply them very differently because the situations are different, because we live in different societies, and therefore that proves nothing. I want to sharpen it as much as I can. It may be that the considerations are not so simple—what makes him liable or exempt. It may be that if I do this, it will cause something in the future. Fine. I include that consideration too. And both of them think something different will happen in the future. Okay, so one of them is right, no? About what will happen in the future? No, you can’t know, you can’t know. No, not being able to know does not mean nobody is right. It may be—it may be—if you… there may be a truth about the future. Do it, and I’ll tell you what will happen. But I agree that one cannot know; still, the fact that one cannot know does not mean there is no truth. It means we have no immediate way of knowing what the truth is. They may disagree about the weight of the considerations. They may disagree about the weight of the considerations. One moment, I’ll get to that. One moment.

There is this statement that when we say “the Jewish law follows Beit Hillel,” that doesn’t necessarily mean that that is the truth. It doesn’t mean that is the truth. Why? That is what Rabbi Yosef Karo claims in several places. No—that’s why I said: for me, truth is what should be done. But if it isn’t the truth, then necessarily—what does “not the truth” mean? It is the truth. It is the truth. Truth means the application of the abstract principles to this situation, while taking future consequences into account too—the whole package together, mix it well: what should be done. All that means is that this is the correct way to decide what to do. It doesn’t mean that it is certainly the truth. I don’t know what truth is—maybe statistically I’ll get to the truth. Fine, then fine. Not statistically. So I return again. When I say that something is true, I mean something detached from human decision. No, no. I’m saying the point is this: I am not claiming that the halakhic method brings us to the truth with certainty. What I am saying is that its goal is to strive for the truth. It may be mistaken. We have no guarantee, no panacea. But the goal—what do we want? We want to reach the truth. When we decide that the Jewish law follows Beit Hillel, that decision is made because, in our assessment, Beit Hillel come closer to the truth than Beit Shammai. But then it really is difficult that “these and those are the words…” Of course it’s difficult. Because if the truth is with Beit Hillel, then Beit Shammai are mistaken. But that’s not necessarily the truth. I didn’t say necessarily. Once you inserted “necessarily,” I didn’t say that. It’s a better method. No—again. No, no, no. This is an important point, and that is why I insist on clarifying it. It’s important. When I ask whether there is truth or no truth, I did not mean that I have a way to know it, and certainly not that I have a way to know it with certainty. The question is what goal I see before my eyes. Is the goal of the discussion to get as close as possible to the truth, or is the goal of the discussion to get as close as possible to a state of agreement, to peace? That is the point.

Now when Beit Hillel say that the rival wife of the daughter is permitted, all right? So if I rule according to them, I assume that probably—or with a reasonable likelihood—that is closer to the truth than the claim that the rival wife of the daughter is forbidden. Now you ask me: fine, but it’s not certain. Correct, it’s not certain, but that is what I think. In other words, if I am right, then in heaven it says that the rival wife of the daughter is permitted. And if that is true, then what Beit Shammai say is a mistake. Now true, I do not know that with certainty, but yes, I think this is the way to get as close as possible to what is written above there in heaven. So one has to distinguish here between when I say that something is true, and when I say that something is certain. To say that something is true means to say that this is what is written in heaven. To say that something is certain means to say that I know with certainty that this is what is written in heaven. Those are two different things. All right?

So, okay, I really don’t have enough time. So look—I’ll just begin, and I won’t be able to complete this section. Look, I think people are mixing up two concepts that on the face of it look similar, but when you analyze them they are actually opposite—completely opposite, not just different. Those concepts are tolerance and pluralism. And my claim is that the statement “these and those are the words of the living God,” in the monistic reading, is not interpreted in a pluralistic way, because a monist obviously cannot be a pluralist. If there is one truth, there is no multiplicity of truths. Rather, it is interpreted in a tolerant way. And tolerance and pluralism are not the same thing. Tolerance means that there are—let me define it in more general language—two legitimate opinions, but only one is correct. This means, basically, that we divide the world of truth into three categories, not two. There is truth—what is true. There is error, but legitimate. And there is error, and illegitimate. And when we say “these and those are the words of the living God,” what it means is that my opposing side, which is mistaken, its mistake lies within the legitimate range. Because people often ask: how can it be that on the one hand our tradition tells us “these and those are the words of the living God,” and on the other hand somehow Jewish law—each person according to his own boundaries, but Jewish law does tend to disqualify all kinds of outside views. Let’s talk about Christians, all right? We won’t get now into internal disputes within the halakhic world. Why? “These and those are the words of the living God,” no? Clearly there is some range beyond which not only are you mistaken, but you are also regarded as illegitimate. So there are two kinds of errors. And when we read “these and those are the words of the living God,” it does not necessarily have to be read pluralistically, as though both sides are correct. One can also say that both sides are not mistaken—or not mistaken in an illegitimate way. In other words, I want to say that Beit Hillel are probably—not certainly, but probably—right, and Beit Shammai are mistaken within the legitimate zone. They are mistaken within the legitimate zone. And that is what “these and those are the words of the living God” means. And the additional novelty here is that a legitimate mistake counts as “the words of the living God,” even though it is a mistake—even though it is not what the Holy One blessed be He intended—but it still counts as “the words of the living God.”

Now I will try to define this more sharply. I’m going to go now—well, not now, next time—into the concepts of tolerance and pluralism. We’ll try to define them properly on the conceptual level, distinguish carefully between them, and then I’ll come back and say again what I just said now. That’s it.