Lesson 23: Mishpatim

From the book Mida Tova: Articles on the Principles of Halakhic Thinking by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

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With God’s help.

Concepts

• A majority that creates and a majority that reveals.
• Intermediate levels of interpretive expansion.
• Practical considerations in interpretation.
• Quality and quantity.
• Cardinal and ordinal numbers.

Summary

This week’s article deals with various questions concerning the rule of following the majority. The basic law is derived from the verse “follow the majority,” which speaks about judges in a beit din (rabbinical court). From the Torah context we learn several of the conditions required for applying the rule of majority decision. There must be deliberation between the majority and the minority, and there must be attentive listening and judgment that takes into account all the arguments on all sides. Above all, there must be autonomy and independence on the part of each of the participants in the deliberation.

With respect to following the majority in a beit din, the halakhic decisors disagree about whether what matters is the majority in wisdom or the majority in number. From there we move to the definitions of quality and quantity, and connect them to two different uses of numbers: cardinal and ordinal.

We then see that already in the Talmud the rule of following the majority is extended to additional principles: “the greater part counts as the whole” and “nullification by majority” in prohibitions. We point out that both of these principles differ essentially from the principle of following the majority. They are not meant to clarify an uncertain situation, but to assign one name to a complex and mixed reality. Therefore the commentators discuss how they can be derived at all from a verse that speaks about majority rule in a beit din.

We conclude the article with the rule of following the majority in questions of policy and in the conduct of communities, and of states as well. After a short historical description of the formation of Jewish communities in the eleventh century, we turn to the development of decision-making patterns within them. We note a fundamental distinction between following the majority on questions concerning the conduct of a community and following the majority in a beit din. From this we propose a picture of interpretive development: from the verse that speaks about majority rule in a beit din, through the rules of “the greater part counts as the whole” and “nullification by majority,” to the validity of majority decisions in matters of policy.

The Rules and Principles Emerging from the Article

Concerning “Follow the Majority”

A Look at Majority Rules in Halakha and in General

Introduction

Parashat Mishpatim is packed with diverse halakhic subjects, and each of them contains fundamental principles in halakha (Jewish law) and meta-halakha. From among them, we have chosen this week to discuss the subject of following the majority. As we shall see, this principle has many applications, and it serves as a general heading under which several basic principles appear, principles that are essentially different from one another. Some of them appear only at later stages in the history of halakha, and it seems that they are the result of interpretation aimed at answering needs that arose in those periods.

In this week’s article we will try to examine several angles related to principles of majority decision, to see how they relate to one another, and what mode of thought stands behind them.

Interpreting the Verse: The Judge’s Duty of Fidelity Versus the Verdict

At the beginning of chapter 23 several commands appear, and it seems that all of them concern the beit din:

“Do not bear a false report; do not join hands with the wicked to be a malicious witness. Do not follow the many to do evil, and do not testify in a dispute so as to incline after the many to pervert justice. Nor shall you favor the poor in his dispute.”

The first verse commands us regarding false testimony or a wicked witness. The third commands the court not to bend justice in favor of the poor. The middle verse instructs them to follow the majority. Yet its wording is cumbersome, and it seems to contain additional components: not to follow the many to do evil, not to incline in a dispute, and to incline after the many.

Rashi explains the first clause as follows:

“Do not follow the many to do evil” — if you see wicked people perverting justice, do not say: since they are many, I will incline after them.

Rashbam explains it similarly:

“Do not follow the many to do evil” — if, in your view, they are judging contrary to law, even though they will believe the majority and not you.

That is, a judge must say what is in his heart and may not follow the majority if, in his opinion, they are judging incorrectly. Sometimes this leads to absurdity. For example, the halakha rules that if the entire court unanimously sentences a person to death, he is not executed. Now imagine what a judge should do if he sees that all the members of the court, except for him, have sentenced the defendant to death. He too believes that the defendant deserves death, but if he joins them he will cause the defendant to go free, because in that case all the members of the court will have sentenced him to death. May he say that, in his opinion, the defendant should be exempt from execution, thereby bringing about his death, or must he state what he truly believes? Clearly, he is obligated to state the truth as he sees it. If the halakha will exempt the defendant, then he is indeed exempt. In other words, the judge is bound to his own truth, even if the consequences do not seem right to him, and certainly even when no one will listen to him, as Rashbam writes in the passage quoted above.

Rashbam finds a similar principle in the middle part of the verse:

“And do not answer concerning the words of the dispute so as to incline after the many to pervert judgment” — even when they acquit a person and exempt him from death.

That is, a judge must not follow the majority and doubt his own position even when his position is the stringent one, and even when, in his opinion, the defendant should be executed while the majority thinks he should be acquitted.

These two parts are addressed to the judge: he must not allow the majority to sway his own opinion. He must rule as things appear to him. But what should we do when the judges in the court disagree, and each sees the situation differently? Here an instruction to the individual judge is not enough; we must determine what emerges from the totality of opinions. That is the subject of the last part of the verse, which deals with the situation created after each judge has said what seems right to him to the best of his judgment. If he has indeed not bent his opinion because of the views of the other judges, disagreement will generally arise, unless, of course, he is persuaded in the course of discussion. In such a case we must decide the law according to the opinion of the majority of judges in the beit din. This is the source for following the majority. The majority, then, plays no role during the deliberation, but it is the tool that determines the final decision.

A. The Basis Required for the Rule of Following the Majority

Introduction

From the first two parts of the verse we learn an extremely important foundation regarding following the majority: such a majority carries no weight at all with respect to the position of each judge individually. A judge must not form his view merely because most of the judges think one way or another. He must, of course, hear everyone out and weigh the various arguments in each direction, but in the end he votes according to his own best judgment.

It seems that the fact that these two parts of the verse precede the command to follow the majority, which appears at its end, has important significance: only after each judge has formed his opinion independently and autonomously do we count and follow the majority. A majority produced in some other way has no validity. For this reason, in capital cases the halakha requires that deliberation “begin with the junior judge”—see Rashi ad loc.—that is, with the least important judge, so that none of the judges will be able to form his view in light of what more important judges say. This is a necessary condition for applying the rule of majority.

Let us now see how these two aspects appear in other halakhic contexts.

The Duty of Autonomy

As noted, each judge must decide according to his own understanding and not defer to the opinion of his colleagues. One may not rely on another person, however great, in rendering judgment.

A first expression of this appears in the words of Minchat Chinukh on commandment 78, subsection 1. He notes that when there are differences of opinion and no majority on either side, people outside the court must conduct themselves according to the laws of uncertainty: in matters of biblical law they should follow the stringent view, and in matters of rabbinic law they may follow the lenient view. By contrast, if the opinions are counted and a majority decision is reached, then even the minority must submit itself to the view of the majority. The meaning is that as long as we are still at the stage of forming positions, everyone has equal standing, even if he is inferior in wisdom to the others. Only after the decision is made is there a halakhic ruling, by force of the majority, that binds all the participants.

An even more extreme expression of the duty of autonomy, not necessarily regarding judges, appears in the Talmudic discussion in Pesachim, which was codified in Magen Avraham, Orach Chayim 156:2:

If one has heard a ruling and it seems to him that the halakha is indeed so, he may state it in the name of a great man so that it will be accepted from him [Babylonian Talmud, Eruvin 51, and Babylonian Talmud, Pesachim 112]. But at the end of tractate Kallah it says that one who reports something in the name of a sage from whom he did not hear it causes the Divine Presence to depart, and so too in Babylonian Talmud, Berakhot 27; see Rabbenu Yonah there. This requires consideration.¹

In any event, this ruling seems at first glance very puzzling. There are several known cases in history in which people acted this way. For example, a Jew in Lithuania at the end of the nineteenth century forged a Jerusalem Talmud on Kodashim. Someone else had done something similar a little earlier with the responsa Besamim Rosh, which he attributed to the Rosh. On the face of it, according to the Talmudic statement, which was also codified by Magen Avraham, they would have been permitted to do so. How can such an act really be permitted? It misleads the public, and it is a plain violation of “placing a stumbling block before the blind.”

It seems that the only possible explanation for such permission is that halakha does not expect a person to accept some ruling merely because someone said it. Even if I am told that the Chafetz Chaim ruled that a certain act is forbidden, I am obligated to examine the matter on its merits and decide according to my own opinion. Only where the various opinions have been counted and a decision rendered is there a binding halakhic result. So long as that has not happened, I am obligated to act according to my own best judgment and not to rely on others, however great they may be.²

On that assumption, it is clear that there is no problem when someone reports a ruling in the name of a great authority so that it will be treated seriously. The assumption is that the hearers will not accept the ruling merely because that great person held it. The reason one would nevertheless want to cite it in the name of a great person arises mainly when one sees that people are not taking his own view seriously because they do not regard him highly. In such a case, if the person is convinced that he has the correct ruling, and it is important that everyone take his reasons and arguments into account when deciding the matter, he may attribute the ruling to a great authority so that it will be discussed with due seriousness, and so that a decision will be reached only after it has been weighed on its own merits.³

This is another example of the importance of autonomous decision-making in halakhic problems.⁴

A Majority Without Deliberation

What happens when there are different opinions that were formed without a prior stage of deliberation? Does the majority opinion have significance where the minority position was never weighed? Several decisors—see, for example, at the end of Get Pashut, “Kuntres HaKelalim,” principle 1, and Minchat Chinukh there, subsection 2—point out that the rule of following the majority was stated only where the judges sat together and each weighed the reasons of the other, and only then formed a position. If that was not done, the position of the majority has no halakhic force, and each person may act according to his own view.

Even regarding prohibitions and permissions, the decisors disagreed as to whether there is an obligation to follow the majority of halakhic authorities. Rema, Choshen Mishpat 25:2, writes:

If the matter concerns a ruling in prohibitions and permissions, and it is a biblical prohibition, one should be stringent; if it is a rabbinic matter, one should follow the lenient view. This applies only when the two disputants are equal. One does not rely on the words of a lesser authority against one greater than him in wisdom and number, even in a pressing situation, unless there is also great loss. Likewise, when an individual stands against the many, we follow the majority everywhere, even if the majority do not agree for the same reason, but each has his own independent reason; since they agree regarding the law, they are called a majority and we follow them.

On that passage Shakh writes, within subsection 19:

However, it appears that this is only when we seek, on the basis of the legal compilations, to permit a matter about which we are uncertain. Since the majority are not before us, we are concerned that, with respect to this principle, the law may follow the stringent authority, while with respect to another detail, the law may follow the second stringent authority.

Shakh explains that when the authorities did not deliberate together, the majority view should not be accepted if it is based on different reasons. Chazon Ish—see his letter printed in Yoreh De’ah 150:8, cited below—extends this and says that if the sages did not sit together, there is no law of majority at all. The explanation is that there is reason to fear that had the majority heard the minority opinion, they would have been convinced. Therefore the law does not follow the majority.

On Rabbi Yonatan Eybeschutz, the Priest, and the Kinneret Covenant

The story is well known that a priest asked Rabbi Yonatan Eybeschutz why Jews do not follow the majority—that is, the Christians. Rabbi Yonatan answered that majority is one of the rules for deciding cases of doubt, but when we are not in doubt there is no logic in following the majority. It is obvious that if a piece of meat is found in the market and we know with certainty that it is kosher, we do not declare it forbidden merely because most of the stores in the city sell non-kosher meat. Thus the law of majority applies only in a situation of doubt.⁵

This is a fine and pointed story, but in practice it does not seem to accord with the rules of halakha. True, every judge must vote according to his best judgment, and if he has a clear position he must not be influenced by the majority view. But in the end, when there is disagreement, the opinions are indeed counted and the majority decides. As we have seen, even if a judge is convinced of his own correctness, he must submit his view to the majority decision. If so, the priest’s question would seem to return in full force. Assuming the question has any force at all, the full answer is that there is a law of majority only where everyone sat together, heard one another’s views, seriously and carefully weighed them, and nonetheless arrived at different conclusions. In such a case, the decision is made in light of the majority view. But of course none of this existed in an interreligious confrontation.

A similar situation exists in the issue of relations between religious and secular Jews in contemporary Israel. From time to time proposals arise for various covenants of understanding or legitimacy between religious and secular camps, such as the Kinneret Covenant and the like. The common assumption of most of these covenants is that each person forms his own position as he sees fit, and every position is as legitimate as any other, even if not necessarily correct. Therefore each person should recognize the legitimacy of his counterpart’s positions and his right to form them as he sees fit, even if he himself does not agree with them.

But that would be true only if the sides really sat together and discussed matters, listened to one another, seriously weighed each other’s claims and reasons, and only then nonetheless arrived at different conclusions. We have seen that in such a situation one should follow the majority, and therefore every position that was properly formed has legitimacy. But where someone seeks, in this way, legitimacy for intellectual laziness—that is, legitimacy for a position formed without serious discussion and without seriously weighing the reasons and positions opposed to it—he does not deserve such legitimacy. In such a case, legitimacy is destructive, because it gives him greater warrant to hold a mistaken position without any need to examine it. A position that has not examined the alternatives is not a legitimate position. As we have seen, only what deserves to be called an “opinion” can enter the vote that determines a decision among the majority of opinions.

Of course, the discussion here is not halakhic but moral and social. Yet the principles are very similar: the majority position has force only when each participant in the discussion has weighed the other positions and, at the end of the day, arrived at his own. In such a case there is no basis for complaints against him, and if a decision is required it will be made according to the majority view. We have no other decision-making mechanism, as we shall note below. But the principle that determines the authority of the majority cannot serve as a cover for laziness or lack of judgment. And even if the lack of judgment does not stem from laziness and no blame attaches to anyone, the very fact that in practice he did not weigh the other views reduces the force of his position.

The conclusion is that the principle of following the majority exists where there are differences of opinion. In such a case, the majority view is what determines the halakha. But where no real discussion took place, none of the positions has the standing of an “opinion,” and therefore there is no place to decide among them by majority vote. This is the connection between the two parts of the verse that we saw above: only after each person has an “opinion” can we proceed to voting and decision by majority.

Another conclusion that follows from this is that if there are several sages who belong to the same school and whose position is shaped by following a particular master, we may not be able to count them as separate votes. Chazon Ish hints at this in the passage cited above, where he writes:

It is known that the power of a majority exists only in a sitting of a beit din. But sages who disagree and lived in different generations or in different countries—there is no legal significance to majority versus minority among them. And a country whose Torah tradition derives mainly from one master, his disciples, and his disciples’ disciples, follows its master even where many disagree.

He is speaking there about the permission to act against the majority of halakhic authorities when there is a clear and authoritative master. But it stands to reason that the converse is also true: those who follow that master cannot themselves be counted as additional opinions and then counted together with him to create a majority that will decide the law. They are only an echo of that master’s voice.⁶

B. Quantitative and Qualitative Majorities

Introduction

We have seen thus far that once the various positions have been formed, the way to decide the law is to count and follow the view held by most of the disputants. Is there room to give different weights to the opinions of different people? Should the vote be completely democratic? At first glance, yes, for we have seen that one begins with the junior judge. But, as we explained, all of this is meant to ensure that each position is indeed an “opinion,” and that is at the stage before the vote. Once that has been done and we come to the vote itself, it may be that the opinion of the greatest sage should be given more weight than that of the least.

The Dispute Between Ramban and Rav Hai Gaon

It turns out that there is a dispute among the early authorities about quantitative versus qualitative majority. Rav Hai Gaon, cited in Ramban’s novellae at the end of the third chapter of tractate Sanhedrin, holds that we follow the majority of wisdom and not the majority of judges. Ramban disagrees and holds that what matters is the majority of judges.

A similar approach to that of Rav Hai is found in Sefer HaChinukh, which writes, in commandment 78:

It appears that the choice of the majority applies when the two disputing camps are equal in knowledge of Torah wisdom. For one cannot say that a small band of sages should not prevail over a large band of ignoramuses, even if they were as numerous as those who left Egypt. But where wisdom is equal, or nearly so, the Torah informs us that a greater number of opinions will always agree with the truth more than a smaller number. And whether, in the listener’s view, they do agree with the truth or do not agree with it, the law requires that we not depart from the path of the majority. What I say—that reliance on the majority always applies when the two disputing camps are equal in knowledge of true wisdom—is so everywhere except in the Sanhedrin. There we do not examine, when they disagree, which camp knows more, but always do in accordance with the words of the majority among them. The reason is that their number was fixed by the Torah, as though the Torah had explicitly commanded: after the majority of these you shall conduct all your affairs. Moreover, all of them were great sages.

In Minchat Chinukh there, subsection 1, the author brings support for this from the discussion in Babylonian Talmud, Yevamot 14a. There the Talmud explains that the root of the problem in deciding the dispute between Beit Shammai and Beit Hillel lay in the fact that Beit Shammai were sharper, while Beit Hillel were more numerous. The heavenly voice decided that one should follow the majority in number and not the majority in wisdom. In the course of the discussion the Talmud says there that the law of following the majority applies where “they are on a par.”

The conclusion that the law of majority applies only when the levels of wisdom are equal is not forced by that Talmudic passage. In any event, it is clear that where the positions are evenly matched, wisdom seems to carry weight in the decision. On this point even Ramban himself, who disagrees with Rav Hai Gaon, seems sympathetic.

Indeed, although the accepted halakha generally follows Ramban’s position, even in practice we find opinions among the decisors that when there is a difference in wisdom one should follow the majority of wisdom. For example, in a monetary court there must be three judges. The Talmud at the beginning of tractate Sanhedrin explains that one of them must be learned, while the other two may be laymen. What happens when there is a dispute between the learned judge and the two laymen? In Sha’ar HaMishpat, section 18, the author disputes with the author of Shevut Yaakov, cited there, on the question of how the law is decided in such a case. The author of Sha’ar HaMishpat writes that the learned judge determines the halakha, since it is implausible that the laymen should outvote him simply by their number.

On the Problem Itself: Defining “Quantity” and “Quality”

The dispute between Beit Shammai and Beit Hillel, as presented above, throws into sharp relief the question whether what determines the result in a beit din is quantitative majority or qualitative majority.⁷ It seems that, in practice, the decisive majority is the quantitative one, even though the explanations given are usually technical. The goal is to discover the halakhic truth, and therefore logic says that we should follow the majority of wisdom and not the majority of opinions. But because it is difficult to establish ranks in wisdom, the Torah gives us a sharp and clear quantitative criterion: we follow the majority of “legs” in the courtroom and not the majority of “heads.”

This presentation of the dilemma tacitly assumes that the terms “quality” and “quantity” are clearly defined and distinguished, and that a majority of wisdom is qualitative while a majority of people is quantitative. But why should this be so? Why not define a majority of wisdom as quantitative as well, only with the measured quantity being wisdom rather than people?

This leads us to an interesting philosophical question: how can the pair of concepts “quantity” and “quality” be defined at all? We have fairly clear intuitions about them, yet it is very difficult to define them. Any content that we treat as a quality can also be treated as a quantity of something abstract. On the other hand, we are familiar with quantities of abstract things, and no one would treat them as qualities. For example, the number of ideas in an article—is that a quality? It may be a quality of the article, but it is certainly not a qualitative magnitude. It is a quantity, albeit one that counts abstract things. So what, after all, is the difference between quality and quantity?

A Hint Toward a Solution: The Problem of Measurement on Shabbat

As is well known, on Shabbat (the Sabbath) it is forbidden to measure things. One may not weigh objects or measure food for preparing dishes, and so forth. The basis of the prohibition is commerce on Shabbat, lest one come to write, and the general character of weekday activity, but in practice all measurement is forbidden. Even measuring utensils are treated as objects that may not be moved.

Now it turns out that the decisors also prohibited measuring abstract things, such as time. For example, in Shulchan Arukh, Orach Chayim 308:51, there is uncertainty whether it may be moved, and Rema forbids it. Mishnah Berurah there explains that measuring time is forbidden, except for the sake of a mitzvah (commandment). He adds there, in the name of Pri Megadim and Machatzit HaShekel, that with a watch like ours it is permitted. The author of Machatzit HaShekel wonders there what the difference is between such a watch and other clocks, such as an hourglass, and leaves the question unresolved.⁸

It seems that the explanation lies in a distinction between two types of measurement. In mathematics one distinguishes between two different roles fulfilled by numbers: they count, and they also order. Cardinal numbers are numbers that measure quantity, that is, how many things we have. Ordinal numbers are numbers that determine an order relation among things: number 2 comes before 3 and after 1. Of course quantity is also a kind of order relation, since different quantities can be ordered by size. But the reverse is not true: not every order relation is a quantity. For example, people can be arranged in a line according to their arrival time, but that order does not reflect any quantity. In mathematics this distinction is especially important with respect to infinite numbers—cardinals and ordinals—but here it seems to have philosophical significance even with respect to finite numbers.

When we measure a quantity of things, the unit of measurement has significance. For example, when we measure a quantity of fruit, we count how many units of one kilogram of fruit we have. If we add one more kilogram to the amount we have, the quantity increases by 1. By contrast, in a situation where numbers function not as counters but as orderers, no isolated unit has independent significance. For example, when we measure temperature, the numbers are ordinal. Thirty-nine degrees is one level above thirty-eight degrees and one below forty degrees. There is no counting here of isolated units each called a “degree.” One cannot take a degree and add it to the amount in hand. What one can do is heat what one has and bring it to a higher temperature level, whose ordinal number is thirty-nine degrees. That is the next level in line—next in order, not in quantity.

The same applies to measuring wisdom. When we measure IQ, the numbers do not reflect an accumulation of isolated units, but an ordering of levels. A person with an IQ of 100 is at one level of intelligence above a person with an IQ of 99. But you cannot take 1 IQ and add it to 99 to get 100. At most, you can teach and train a person until he reaches a higher level on the test, the next one in order. But that is progress along an order relation, on the IQ scale, not the addition of some quantity. An IQ of 100 does not reflect an accumulation of 100 units, but an overall level of intelligence. The same is true of a temperature of 100 degrees.

By contrast, 100 kilograms does reflect an accumulation of a quantity consisting of 100 discrete units that join into a total of 100 units.

And what about time? Is measuring time ordinal or cardinal? It turns out that measuring time with a wristwatch is ordinal measurement, because when we say that the time is now 13:09, what we mean is that we are at a time that is exactly one unit after 13:08. The relation is an order relation, not one of quantity. But what about an hourglass? Here the situation is entirely different. Measurement by means of an hourglass is quantitative measurement: how much time has elapsed from one moment to another. What matters there is quantity, not order.

If so, we may conclude that the measurement forbidden on Shabbat is cardinal measurement, not ordinal measurement. The reason is that on weekdays we count merchandise as part of the commercial give-and-take in which we engage, and that is the basis of the prohibition. But once that is so, whether we count abstract things or concrete ones, the act is forbidden on Shabbat. Therefore what is forbidden is cardinal measurement, not ordinal measurement. It is thus forbidden to count time by means of an hourglass, but permitted to order it by means of a watch.

For this reason there is room to argue that measuring body temperature on Shabbat, provided this does not involve an electrical mechanism or some other forbidden operation, should be permitted from the outset and not only for a sick person, that is, not only in the context of a mitzvah, where all measurement is permitted. Measuring temperature is ordinal, not cardinal, measurement. It is possible to bring support for this from the decisors, but this is not the place.

Quantity and Quality

We can now return to the question of quantity and quality. Quantities are measured by cardinal numbers. These numbers, by definition, parcel out quantities. By contrast, quality is measured only by ordinal numbers. In measuring quality, numbers function in an entirely different way: they determine an order relation and not a quantity. We saw this above with respect to temperature and wisdom.

In light of this, we can understand the disputes among the early authorities and the decisors cited above. When we speak of a majority of wisdom, this is not a quantitative majority. It is a qualitative majority, because wisdom is a quality and not a quantity. Even if we manage to measure it on a numerical scale, the numbers will be ordinal and not cardinal. Therefore a majority of wisdom is not quantitative but qualitative.

We can now understand the basis of the dispute. As Sefer HaChinukh explains in the passage quoted above, the purpose of deliberation in a beit din is to discover the halakhic truth. In other words, to determine something that is fundamentally qualitative. The disputants differ about that truth. How should we decide among them so as to approximate the correct decision as well as possible? Clearly, ideally one ought to follow the qualitative majority, because what we are seeking is wisdom, and the wiser person can find it more reliably. Yet for technical reasons some disagree and hold that one should follow the majority of people. Even so, the aim remains to come as close as possible to the correct halakha.

What happens when what we are looking for is not truth but something else entirely? Here it is not clear that majority is even a relevant parameter. We will discuss this in the next chapter.

C. Majority Rules in Rabbinic Literature

Introduction

The Talmud and the early authorities derive several principles related to following the majority from the verse “follow the majority.” In this chapter we will examine some of them, and we will see a further development of the principle of majority decision, one that already comes closer to its appearance in democratic society.

Rov de-Ita Kaman and Rov de-Leta Kaman

In tractate Chullin, Babylonian Talmud, 11a and following, the sages derive from this verse the two laws of following the majority in matters of prohibition: rov de-ita kaman, a majority present before us, and rov de-leta kaman, a majority not present before us. In both cases we are dealing with decision and clarification in a doubtful situation, in light of the majority of similar cases. For example, suppose we find a piece of meat in the street and do not know whether it is kosher or non-kosher. If most of the stores in the city sell non-kosher meat, the meat is forbidden; if most are kosher, the meat may be eaten. This is a majority present before us, since all the stores are before us in the city. By contrast, there are types of majority not present before us, such as the fact that most women give birth after nine months of pregnancy and not after seven. In this case there is no defined collection of women before us with respect to which we must decide about one of them. We know that the way of the world is that most women give birth after nine months, and therefore we decide about any specific woman that she too probably gives birth after nine months. This is a majority not present before us.

Which Is Stronger?

Later authorities disagreed about which of these two types of majority is stronger. Most early and later authorities see the majority present before us as stronger. That is the conclusion that emerges from the straightforward reading of the Talmud in Chullin. By contrast, Rabbi Shimon Shkop, in his Sha’arei Yosher, gate 6, explains that the majority not present before us is stronger, and he even interprets the Talmud accordingly. He also finds several early authorities, including Maimonides, whose words can be read to support this approach.

Why is he so insistent on this direction? The explanation lies in the mechanistic difference between the two kinds of majority. A majority present before us is a statistical majority, and we decide that the object under discussion belongs to the group to which most items of that kind belong—for example, pieces of meat or butcher shops. By contrast, a majority not present before us is a law of nature. When we decide that a certain woman gives birth after nine months rather than seven, we are not assigning her to the group of women who give birth after nine months, because no such group is before us. Rather, we are drawing a conclusion that, according to the laws of nature, it is likely that she gave birth after nine months. In such a situation, we will decide about each and every woman that she gave birth after nine months, and halakhically this decision will be treated as certain.

We can illustrate this by the “David Levy effect” from the political sphere. At one of the meetings of the Likud Central Committee, David Levy argued that his faction was not properly represented in the institutions of the party. If his faction made up about 30 percent of the members of the committee, the number of positions given to it was negligible. His opponents argued that the committee operated democratically, and the various positions were filled by votes decided according to the majority. If his faction used its strength, it would receive fitting representation.

David Levy replied with a correct argument, and it is important for our purposes: each position is decided by a vote in the committee, and in every vote the majority determines the result. It follows that 100 percent of the positions are filled by the majority faction, even if it makes up only 51 percent of the members. In every vote they will defeat their opponents and appoint whomever they prefer. Such a process, then, does not reflect the true balance of power among the various factions in the committee. If they were to decide on distribution of positions in proportion to the strength of each faction, representation would be fairer. The present situation is a case of “tyranny of the majority” and not democracy.

A majority not present before us is exactly parallel to the phenomenon of “tyranny of the majority.” The majority produces a 100 percent result. Every woman who comes before us will be judged to have given birth after nine months, because the law of nature applies to her as it does to every other woman. Thus, with respect to every woman, we have a decision that halakhically counts as certain, even though in fact it is clear that a substantial number of women give birth after seven months. By contrast, in a majority present before us, even if all the pieces of meat in the city were to come before us for decision, we would not decide that all of them are certainly kosher. Some of them surely belong to the minority group that actually exists in the city.⁹

The conclusion from all this is that in both of these cases the purpose of the majority rule is to decide the character of an event or a particular object whose halakhic status is doubtful. This role is similar to the role of the majority in a beit din, and therefore it is not surprising that the Talmud derives it from there.

We will now see that there are two further principles related to majority which, according to most commentators, are also derived from this verse: nullification by majority in mixtures, and the rule that “the greater part counts as the whole.” Their function is apparently different from that of majority in a beit din and in ordinary prohibitions. Later in our discussion, when we deal with communal enactments, we will see why these distinctions are important for the law of following the majority as well.

Bitul be-Rov

The law of bitul be-rov, nullification by majority in a mixture, is relevant where a mixture contains two types of things, one forbidden and the other permitted. If most of the items in the mixture are permitted, the forbidden element is nullified, and according to some opinions it even itself becomes permitted—see the responsa Oneg Yom Tov, Orach Chayim 4—and likewise in the opposite direction. Regarding a dry mixture of discrete objects, some of the early authorities saw this mechanism as simply another expression of the rule of following the majority and nothing more—see Rosh on tractate Chullin, chapter 7, section 37, who disputes Rashba on this. But regarding a liquid mixture of two fluids, this is certainly a different principle.

The early authorities write that this law too is derived from the verse “follow the majority.” See, for example, Rashi on Babylonian Talmud, Chullin 98b, s.v. “by Torah law,” and similarly Babylonian Talmud, Beitzah 3b, and Babylonian Talmud, Gittin 54b, s.v. “they may not be added.”

Rovo ke-Kulo

The rule of rovo ke-kulo, that the greater part counts as the whole, deals with a situation in which halakha imposes a requirement on an entire collectivity, but in practice the requirement is fulfilled only with respect to part of that collectivity. In such cases, if that part constitutes a majority of the items belonging to the whole, it is treated as though the requirement had been fulfilled for the whole. For example, it is permitted to offer the Passover sacrifice in a state of impurity if the whole community is impure. The Talmud says that even if only most of the community is impure, the sacrifice may be offered, by the rule that the greater part counts as the whole.

Some later authorities wrote that this rule is only another expression of following the majority, but on the face of it it is an additional principle, one that is not equivalent either to following the majority or to nullification by majority. Rabbi Chaim, in the stencil notes, writes that this law too is derived from the verse “follow the majority.”

How Are These Laws Derived from the Verse “Follow the Majority”?

Unlike the rule of following the majority in a beit din and nullification by majority in prohibitions, whose purpose is to clarify the truth in a doubtful situation, these two types of majority do not deal with a doubtful situation. Their function is to assign a single name to a mixed and complex situation. Below we will see the important significance of this distinction.

Later authorities devote considerable attention to the question how all these different and varied principles can be derived from the same verse that instructs us to follow the majority of judges in a beit din.¹⁰ On the face of it, they are entirely different principles.

Several later authorities explain that the principle of nullification by majority is learned from the laws of majority in a beit din because halakha requires that monetary cases be decided by three judges. Now if two judges hold one opinion and a third holds a different one, the majority opinion that becomes law has been adopted by two judges and not by three. But halakha requires that the verdict in monetary cases be rendered by three judges. It follows that the rule of following the majority means not only that the minority does not count, but that it is nullified, and is therefore regarded as though it too holds the majority view. In that way we have three judges.

As for the rule that the greater part counts as the whole, some derive it in the same way. An alternative explanation of why the opinion of two judges suffices is that if there is a majority among the judges of the beit din, it is as though we have the whole court. Therefore, even without nullification by majority, one can understand why a majority of opinions suffices and a unanimous decision is not required.

These explanations are disputed, and they all depend on how we understand the mode of operation of the majority in a beit din. This is not the place to enter into the details.

D. Majority in Communal Enactments: a Majority that Creates and a Majority that Reveals

The Emergence of the Communities: Historical Background

All the types of majority laws we presented in the previous chapter appear already in the Talmud itself. But we also find a new kind of majority, one whose main development appears only in the literature of the early authorities. To understand the background to this, a brief historical introduction is needed.

Until the eleventh century of the common era, the Babylonian exile functioned to a large extent as a kind of embodiment of the Jewish people as a whole, with central institutions—the Reish Galuta, who stood in place of a king, and the heads of the great yeshivot—and a fairly autonomous government. Each community belonged to the Jewish nation and stood, to one degree or another, under the supervision of the central institutions of the people. From the eleventh century onward, this Jewry dispersed to the ends of the earth. Jews arrived in various places and found themselves within frameworks of isolated communities that were not part of a national structure.

This situation raised several far from simple questions. First, what is the status of such a community? Does it have authority to enact regulations? Does it have coercive authority? At the root of all this stands the question whether such a community can be regarded as a public body. Until that period, it was clear that a public body meant only the entirety of Israel, and that the institutions were what represented the public as a whole. From the eleventh century on, each community stood on its own. In order to give force to its institutions, a conception began to form of the community as a sub-public. That is, each community was seen as an independent public body, and therefore institutions were also needed to govern and lead these public bodies.

The early authorities who discuss the status of the communities and their institutions create the halakhic infrastructure needed to ground their standing by drawing on all-Israel categories. Some derived the authority of communal institutions and the force of their enactments from the authority of a king or from that of the Great Beit Din. The seven municipal leaders fulfilled these functions with respect to the public of their communities.

This fascinating subject required a good deal of interpretive creativity, and it found broad expression in the responsa literature of the early authorities.¹¹ The halakha on these subjects reached final crystallization only in the fourteenth century, and even later.

The Theoretical-Halakhic Infrastructure: The Jewish Polis

In fact, one can see in the process of communal formation something like a microcosmic reflection of the gradual formation of political theory. First, a community gathers: a group of people interested in living their lives with a certain degree of partnership. A public comes into being. After that, people begin to define a process for making decisions on behalf of the whole community. For this purpose there are communal assemblies in which decisions are made. When it becomes clear that it is difficult to reach decisions unanimously, as would theoretically be preferable—we will return to this below—they decide on representative government. Institutions and forms of rule are defined, which guide the activity of the representatives and their obligations toward the body of citizens.¹² After that arises the question of following the majority, both the majority of the citizens and the majority of the rulers, that is, the city leaders. Often these various questions arise all at once and not in this order, but the process is quite similar in most places.

Among the questions that arise in these contexts, a prominent place is occupied by the issue of decision-making and resolving disputes, both within the public itself and among the representatives, the city leaders. To modern eyes it seems obvious that in the case of disagreement one should follow the majority, but in its time this position was far from self-evident.

The historian Yitzhak Baer argued, in an article published about sixty years ago,¹³ that the pattern of majority decision in Ashkenazic communities began to take shape in the thirteenth century with the penetration of Roman law. Until that period, he claimed, the non-Jewish environment did not decide according to the majority at all, but required unanimity. According to his view, Roman law introduced the concept of majority decision into the general legal world of Ashkenaz, and from there it entered the Jewish community and halakha as well.

Professor Soloveitchik, in chapter 9 of his book mentioned above, rejects this claim outright and brings clear proof that it is mistaken. By means of a brilliant analysis of various responsa collections, he shows that this rule had already been practiced from the eleventh century onward, that is, from the very beginning of the formation of the Jewish community. Moreover, he argues that even without this evidence, Baer’s claim has no basis. The concept of majority had long been accepted in Israel, and there was therefore no need to import it from a foreign legal system. As we saw above, the Talmud itself is full of discussions of following the majority, and the Torah already contains the command: “follow the majority.”

And Yet: A Distinction Between the Talmudic Sources and Their Application

Professor Soloveitchik there raises two questions: first, whether the concept of majority was foreign to the Jewish environment and mentality, as it was foreign to the surrounding non-Jewish environment in which Jews lived; and second, whether, according to the political theory prevalent at the time, the use of majority decision was naturally called for in relation to communal governance.

To the first question he answers, as noted, in the negative. Following the majority is a principle that appears in the Torah and is extensively and concretely applied in the Talmuds and afterward. Regarding the second question, he argues that since in that period communal institutions tended to be viewed as a kind of beit din, it is clear that the solution of following the majority was the natural one, since the law was originally stated with respect to a beit din.

It seems, however, that the very raising of the second question indicates that this connection is far from self-evident. The principles of majority as they appear in the Talmuds were described above, and in themselves they cannot be simply applied to communal enactments, for several reasons. Soloveitchik himself raises reasons rooted in the fact that communal leaders did not meet the criteria required of those chosen to be judges. It is therefore hard to see what justifies subsuming these institutions under the halakhic category of a beit din. But here the answer is simple, because in responsa from that period the beit din appears together with the king. From the Second Temple period onward, the Great Beit Din held two “hats”: the religious and the civil. The nasi of the Sanhedrin also possessed, to a considerable extent, powers of a king¹⁴—specifically in Babylonia there was some separation between the Reish Galuta and the heads of the yeshivot. The communal institutions function as the king, and by their authority the beit din is also chosen, the court that directs the community’s religious conduct. True, the enactments of the institutions have halakhic force, but the laws of the king have such force as well. Viewing the seven municipal leaders as a beit din is a kind of model, one that tries to cope with a monarchy that has many heads.

But the real problem lies at a more fundamental point. The meaning of majority and majority decision in the context of decision-making about the conduct of a community, or about policy, is entirely different from majority decision in a beit din. As we saw, the purpose of the majority in a beit din is to clarify an uncertain reality. We cited Sefer HaChinukh, which wrote that the majority is a means of coming as close as possible to the truth. But in the communal context the situation is entirely different. The discussion is not conducted in order to clarify some truth, but in order to reach a binding decision. For example, if the question on the table is how to act against some enemy, or how to manage the assets of the community, we are not seeking any truth here. The goal is to adopt a decision that will bind all the members of the community. If there is a citizen who wants to conduct the matter in a certain way, then even if we prove to him with signs and wonders that there is no logic at all in proceeding as he advocates, that does not negate his right to demand influence over the decision that will be adopted. He retains the right even to make mistakes with respect to his own property and person, and the issue here is not one of truth or falsehood.

For the very same reason, even if the majority of the public adopts a mistaken decision—not from a halakhic standpoint—that decision still has full force. It is what they want, and they are entitled to do so. In decisions of this type there is no logic at all to giving wisdom greater weight, because we are not trying to hit upon some theoretical truth, but to give expression to the rights of all members of the community in the management of their affairs. The village fool has the same right as the greatest genius. The basic assumption is that each citizen is entitled to influence over the management of his affairs, even if he is mistaken in his way.

If so, the claim that in such decisions there is a law to follow the majority cannot possibly be derived from the laws of the beit din. In a beit din the judges do not possess rights; rather, the institution as a whole is trying to reach the truth in the optimal and most correct way. What has this to do with questions of policy and with the conduct of communities? Even if in a beit din we follow the majority, in these questions it would actually seem more reasonable to require unanimous decisions, because each person has a right to manage his affairs as he understands them.¹⁵

Of course, such a mode of conduct is impossible. But that is a practical argument. Even if we conclude from it that one must decide according to the majority view, this would not be an extension of the law of majority learned from majority in a beit din; it would simply be a different law of majority.

In other words: in questions of communal conduct, the decision creates the truth, whereas in the decision of a beit din the ruling reveals it, or tries to reveal it. The source in the Torah teaches us that majority is a good means of revealing the truth. But how do we know that majority is also the means of creating a valid decision in matters of policy?

The same question is true with respect to the state. In democratic states today it is accepted that decisions are made by the majority. Sometimes “Platonic” questions are raised:¹⁶ why does every fool have a vote whose weight is equal to that of the genius, even if the latter is more gifted and educated? In fact, hidden here is an assumption similar to that of Rav Hai Gaon and Sefer HaChinukh, whose words were cited above—namely, that one should follow the majority of wisdom and not the majority in number. Usually the answers proposed to these questions, just as we saw above with regard to the halakhic question, are technical answers. They rest on the concern that if we begin depriving people on the basis of intelligence and education, we may continue to other, less justified forms of discrimination. But the essential answer to this claim lies elsewhere altogether. If the question were one of revealing the truth, such an argument would have force, as we saw with Rav Hai Gaon and Sefer HaChinukh in the context of a beit din. But in matters of policy we are dealing with an administrative decision in which everyone has an equal right. This is a decision whose foundation is rights, not a mode of discovering truth. Therefore what matters is the equal right possessed by each person, and not necessarily his ability to hit the truth.

Halakhic Sources

And indeed, when we examine the halakhic sources dealing with communal enactments, we find that even if they do draw on the categories of a beit din, this is usually accompanied by an additional and broader rationale.

Consider, for example, the responsum of the Rosh on this matter, Responsa of the Rosh 6:5:

As to your question: may two or three of the ordinary townspeople exclude themselves from an agreement made by the community, or from a ban that the community imposes concerning some matter? Know that with regard to the affairs of the many, the Torah said: “Follow the majority.” And in every matter on which the community agrees, we follow the majority, and the individuals must uphold everything that the many agree upon for them. For if not, the community would never agree on anything, if individuals had the power to annul their agreement. Therefore the Torah said, in every matter of agreement of the many: “Follow the majority.”

The Rosh discusses whether a communal enactment binds even one who does not agree with it. He brings a source from the verse “follow the majority,” and even extends it broadly and forcefully to every affair of the many, claiming that the Torah said this about all such matters. And yet he is not satisfied until he adds another consideration: otherwise the community would never agree on anything and it would be impossible to run a community. Is this an attempt to derive the reason for the verse “follow the majority”? Apparently not. The Rosh wants to expand the meaning of the verse, and he uses this consideration to ground the expansion. It seems that he is aware of the logical gap between the source and the application he proposes, and he uses the practical argument to bridge it.

The Presence of the Minority

In the context of communal enactments another frequent question arises: does the force of a majority decision exist only when the minority was also present? Many decisors hold that it does. The reason is simple: precisely because of the analogy to the laws of majority in a beit din, as we saw, without deliberation with the minority the majority decision has no meaning. If the minority is absent, it cannot try to convince the majority that it is right, and therefore the fact that the decision was reached by majority is not meaningful—see above in the discussion of the Kinneret Covenant.

However, in the responsa Lev Sameach, Choshen Mishpat 5—see Elon there, chapter 19, note 131—the ruling is the opposite, again on the basis of a practical argument:

For if not, we would have left no room to find “follow the majority,” since those who do not want to comply could flee from joining them and from assembling together to stand for the count, and in this way they would be exempt. That is something the mind cannot accept, and it is clear and evident.

On the one hand, he too invokes the reason of “follow the majority.” On the other hand, he raises a practical consideration: if we always require the presence of the minority, this enables them to impose their will on the majority simply by refusing to show up for the vote. Once again, the practical consideration serves as an interpretive tool for the meaning of the verse “follow the majority.”

As in the case we saw above in the responsa of the Rosh, here too the assumption is that the rule of “follow the majority” applies to communal enactments as well. But here the interpretation in light of the technical consideration is more readily intelligible. If we do not implement it in a sensible way, the command will not be implemented at all. And since the Torah has imposed on us the duty to follow the majority “in every affair of the many,” in the language of the Rosh cited above, the practical constraints become an interpretive tool for the commandments of the Torah. By commanding us to follow the majority, the Torah has also, implicitly, commanded us not to require the presence of the minority. By contrast, the Rosh’s interpretation was far more far-reaching, since it was meant to justify the very obligation to follow the majority, and not merely to define it with practical tools. Practical reasoning as an interpretive instrument already exists in the Talmud, but this is not the place to elaborate.

Returning to Professor Soloveitchik: Other Majority Laws as the Source of Democratic Majority Rule

It thus seems that the analogy made by the decisors from the laws of majority in a beit din to the laws governing communal enactments is problematic. The analogy is indeed made, but it is difficult to claim that the concept of majority in this context was already familiar in halakhic thought in the time of the sages. If so, the second question raised by Soloveitchik—how halakha came to apply majority principles to the case of communal enactments—still remains unanswered.

It seems that here we must return to the additional principles we presented above. True, the law of following the majority in a beit din cannot serve as the source for following the majority in communal enactments. But, as we saw, the sages and the early authorities also linked additional laws to the majority laws of the beit din. The law of nullification by majority can certainly be applied more fittingly in the context of communal enactments. Nullification is not a law whose purpose is to clarify a doubtful reality or a doubtful rule; rather, it is a law whose purpose is to give a name to a mixture, or to some collective entity, and the halakhic rule is that the majority gives the mixture its name. Something similar can also be seen in the rule that the greater part counts as the whole. If so, precisely these two extensions can serve as the source for following the majority in communal enactments, and not the rule of majority in a beit din. The beit din rule serves as an indirect and more basic source, because these two additional laws are themselves learned from it. But its extension to the case of communal enactment is not trivial, and it requires several interpretive intermediate steps.

We saw that the Talmud itself does not explicitly provide a source for these laws, and only the early and later authorities connected them to the verse “follow the majority.” But there is no denying that these laws are found in the Talmud, whatever their source may be. Professor Soloveitchik is therefore right in saying that there was no need to learn the principle of following the majority from Roman law or from any other external source.

Democratic Majority: a Majority of Rights (a Majority that Creates) and a Majority of Truth (a Majority that Reveals)

Let us emphasize again that it is precisely this principle, rather than majority decision in a beit din, that forms the foundation for the conception of majority rule in a democratic state. This is a majority grounded in the rights of each individual, not in some optimal mechanism for discovering the truth. For that reason, the view could never arise here that we should follow the majority of wisdom among the voters rather than the majority in number, as we saw among the decisors regarding majority rule in a beit din.

It is obvious that when majority decision is based on rights and not on truth, the right of the majority is reserved only for cases in which a decision must be made. In every other case, the right of the minority to act according to its own understanding stands against the tyranny of the majority.

In the conception of majority as clarifying truth, the majority reveals rather than creates, and therefore one should expect a broader measure of coercion. In such cases the majority will claim against the minority that it must act in accordance with the majority decision, because that is the best available approximation to the truth. Indeed, we saw that after a halakhic vote even the minority must act like the majority, even in halakhic questions that concern the individual. By contrast, in the democratic conception there is no place for a vote except in issues where a common decision is mandatory. There is no place for imposing aesthetic standards and the like on a minority, because in such cases each person retains the right to act as he understands and wishes. This is not a question of truth and falsehood, but of decision. But voting for the sake of decision is justified only in issues where a common decision is necessary—such as questions of policy, international agreements, territorial concessions, and the like—where there is no escape from deciding by majority, and not in personal matters. As noted, in these cases the majority creates the correct decision rather than revealing it.

According to our approach, this distinction is not between halakha and the democratic conception, but between different situations. Halakha too will adopt this position when non-halakhic decisions are at stake, such as decisions of policy and the management of public affairs. In such decisions, halakha too will not allow the tyranny of the majority and will not permit the majority to impose its view on the minority. Only in questions of truth and falsehood does the majority have the right to impose its view on the minority, at least under certain circumstances.¹⁶

Footnotes