This Is the ‘Spasst Nisht’ Doctrine: The Prohibition of Civil Courts (Column 448)
With God’s help
Disclaimer: This post was translated from Hebrew using AI (ChatGPT 5 Thinking), so there may be inaccuracies or nuances lost. If something seems unclear, please refer to the Hebrew original or contact us for clarification.
In the previous column I briefly discussed what I called “spasst nisht” considerations. I argued there that sometimes, even without a substantive halakhic permit, a given law is nullified with the claim that it “spasst nisht”—meaning, it is unreasonable to behave that way, at least in today’s reality. I brought several examples of the implicit use of such arguments, such as saving the life of a gentile on Shabbat, and more. Usually these arguments are wrapped in ostensibly substantive halakhic reasoning, but in many cases those reasons don’t hold water and certainly don’t lead to the full practical conclusions we actually adopt. This indicates that in the background stands a “spasst nisht” consideration; yet because of its vagueness and the risks of various slippery slopes, decisors tend not to put it on the table. They prefer to wrap it in quasi-halakhic arguments.
In the comments there, a claim was raised that such considerations are insufficient, since halakhic thinking requires a substantive reason to change or repeal a law. Of course, behind these claims lies the aforementioned concern about slippery slopes—for with such arguments one could indeed cancel broad swaths of halakhah altogether. In that context, they mentioned my swimsuit example, that is, a type of argument that says the original prohibition assumed certain premises that no longer obtain today, and therefore today it is void or different. This is what I once called “conservative midrash.”
But it’s important to understand that behind “spasst nisht” arguments there always stands this kind of conservative midrash: Had the Sages known today’s reality, they would not have forbidden it. What is the difference between this and “conservative midrash” as I defined it there? Essentially I am claiming that if the Sages lived today, they would not obligate the destruction of statuettes. True, this is not a rabbinic prohibition, for it is explicitly stated in the Torah in several places; but the Sages did not hesitate at times to “manhandle” even explicit prohibitions (see the rebellious son, the condemned city, and more) and thus remove them from the practical plane. It is reasonable that they would do the same in these cases.
The problem is that in the absence of the Great Court or some authoritative body, it seems there is no entity today that can actually do this. That is, even if conservative midrash is one of the built-in mechanisms within halakhah and is not reform at all, there is still a need for authority to implement it. Annulment of explicit Torah prohibitions, or prohibitions decreed by a Sanhedrin, itself requires an authorized body (a Sanhedrin): a matter enacted by a vote requires another vote to permit it. Therefore, conservative midrash is not sufficient to ground a change in halakhah. In many cases, debate over halakhic change reveals agreement about the need for change, except that questions of authority prevent it. Admittedly, questions of authority are not as clear-cut as one might think, and it is a fact that Sages over the generations did change laws when necessary in various ways. Still, when we come to argue for halakhic change, the issue of authority breathes down our necks.
Therefore I added in the previous column that even if we lack the authority to change, sometimes a moral consideration can override a fixed law without changing it. This can stem from deciding a conflict between halakhah and morality (both being the will of the Almighty), or from a “freezing” mechanism which, as I showed in the third book of my trilogy, does not require formal authority and is therefore open also to contemporary scholars.
In this column I wish to address another example that touches on spasst nisht considerations—albeit of a somewhat different sort. As we shall see, even here it’s not clear whether indeed spasst nisht is being used or whether this is an ordinary intra-halakhic interpretive move based on substantive reasoning, and it’s also not clear that there is a sharp difference between the two. I refer here to the application of the prohibition of “arka’ot” (civil/secular courts) in our day. As I will try to show, this is a spasst nisht drama in four acts (or generations).
Halakhic Background: The Prohibition of Civil Courts and Lay Judges — Spasst Nisht, Generation I
The Gemara in Gittin 88b expounds on the beginning of Parashat Mishpatim:
“It was taught: R. Tarfon would say: Wherever you find assemblies of idolaters, even though their laws are like the laws of Israel, you are not permitted to resort to them, as it says: ‘And these are the ordinances that you shall set before them’—before them and not before idolaters; alternatively, before them and not before laymen (הדיוטות).”
Cases must be brought before qualified judges; this excludes gentiles, or unqualified Jewish judges (laymen)—even if they judge according to Torah law.
This law is ruled across the halakhic codifiers, and the Sages saw in this prohibition a substantive foundation of halakhah; violating it is like planting an asherah by the altar. This is hardly surprising, for if one goes to be judged before gentile courts, all of halakhah is uprooted from its place. Our entire engagement with halakhah is so that we will apply it in our lives. But if we deal with it and then go to be judged before gentiles or laymen, we have nullified the essence of the halakhah. True, this prohibition applies even if their laws are like ours, and many have already noted that. If the judges are Jews, this is apparently a kind of biblical safeguard; if they are gentiles, there is a concern of honoring their idols and of demeaning the Torah.
It should be noted that qualified judges are only judges with ordination (semikhah), ordained man to man back to Moses. Any other judge, no matter how learned, is disqualified from judging as a matter of law.[1] The Gemara there in Gittin introduces, in this context, the rule of “shlichuteihon” (“we act as their agents”), whereby the Babylonian judges, who lacked ordination, had permission to judge. That permission was granted to them by the ordained judges in the Land of Israel, who appointed them as their agents. This appointment applied only to certain areas (common cases involving potential monetary loss).
At first glance, this looks like a decision by the ordained judges in the Land of Israel to appoint the Babylonian judges as their agents. But simply, it does not seem that there was truly such a formal decision. I assume the premise is that it is unreasonable to leave a Jewish public without an effective judiciary, and therefore the Gemara says it is obvious that the ordained judges in the Land of Israel would want the Babylonian judges to judge as their agents. This is a legal fiction meant to meet a need. A legal fiction, by definition, turns the desirable into the actual; that is, if it is desirable to have judges—then there are judges.
Already here one can say there is a spasst nisht consideration, for the very basis for permitting lay judges (i.e., Torah scholars who are not ordained) to judge is grounded in the premise that one cannot leave an entire public without judges and courts. By virtue of this consideration, they uproot a Torah law that allows only ordained judges to judge—despite all the superlatives attached to those who violate this prohibition.
There are several clear indications for understanding shlichuteihon as a fiction. Two of them arise in Tosafot s.v. milta in Gittin there. The first emerges from their question:
“If so, how do we act as their agents when now there are no experts in the Land of Israel—who will grant us permission? One must say: we act as the agency of the early ones.”
We continue the rule of shlichuteihon also for later generations down to our time. One must recall that an agent cannot act by the power of his principal after the principal has died. Therefore, once the ordained judges in the Land of Israel ceased to exist, it would seem that the shlichuteihon enactment should lapse. And yet, many generations after there has not been a single ordained judge anywhere (to this day), Jewish judges continue to judge throughout the world by virtue of that elusive agency.
It seems reasonable that this extension is based on the fact that we are not really dealing here with appointment of agency. It is a legal fiction grounded in a spasst nisht claim. Even after there are no ordained judges, it remains clear that leaving a public to function without a judicial system is spasst nisht; therefore, lay judges are permitted to judge even without a formal halakhic permit. This is the first indication of spasst nisht reasoning in this context.
A second indication is the scope of matters to which we apply the shlichuteihon enactment. As noted, the Gemara itself indicates it was instituted only for common cases involving loss. In that same Tosafot in Gittin they raise another question:
“‘In common matters…’—such as admissions and loans; and that we accept converts even though a convert requires three experts, as it says in Yevamot 46b: ‘Mishpat’ is written concerning it.”
Their question is how we accept converts nowadays, since conversion must be done before a court; that is a constitutive condition (without a court the conversion is void). As a matter of law, a court for conversion is a court of three ordained judges, and today we have no ordained judges. Moreover, the shlichuteihon enactment does not apply to conversion, since it is neither common nor a case of loss.
Tosafot answer:
“R. Y. says that we act as their agents, for it counts as if it were common; and in ‘HaCholatz’ it also appears that they accepted converts in Babylonia.”
We apply shlichuteihon also to conversion because it is like a common matter. What does “like” mean—either it is common or it is not. It seems that in practice it is not common, but it is spasst nisht that at certain times and places there would be no possibility at all for one who desires to convert. Therefore we waive the condition that conversion be before an ordained court, and again this is done in contravention of Torah law.[2]
In passing I’ll note that, as is known, commentators dispute whether the rule of shlichuteihon is a rabbinic enactment or a Torah law. Both sides are quite puzzling. On the one hand, the wording plainly indicates an enactment. Ordinary laws of agency cannot apply to judging, and certainly not when the principal is dead. So how can one say it is biblical? What is its source? On the other hand, how can one say it is rabbinic, for it is inconceivable that judges valid only rabbinically would effect a conversion—would that person be biblically a gentile and rabbinically a Jew?
It seems to me that the only way out of this thicket is to say that we are dealing with a legal fiction that has biblical force. There is here an implied appointment of agents, and the one who appointed the agents was the Torah itself, not the ordained Sages in the Land of Israel. True, we have no scriptural source for this—but we do have the spasst nisht reasoning: the Torah itself is not prepared to allow a situation in which a Jewish public functions without an effective judicial system. Therefore it is clear that the Torah itself permits lay judges to adjudicate.
But this is only the beginning of the spasst nisht issue regarding lay judges. Now we turn to the law of the “courts of Syria.”
Civil Courts in Syria (Arka’ot shel Surya): A Survey
Here I’ll give a brief, concise overview of the concept of “civil courts in Syria” (arka’ot sheb’Suriya) according to common interpretations. That will suffice for our needs. The Gemara at the beginning of the third chapter of Sanhedrin (23a) mentions “civil courts in Syria” in two contexts. The Mishnah there discusses the procedure called zabla (“this one selects one [judge]”), in which each litigant chooses a judge and those two choose the third. Among other things, the law is brought there that each litigant may disqualify the judge chosen by the other. The Gemara asks:
“‘This one disqualifies the other’s judge…’—Does he have the power to disqualify judges? R. Yohanan said: They taught this with regard to the civil courts in Syria, but not with respect to experts.”
That is, each litigant can disqualify a lay judge but not an expert (ordained) judge. A lay judge is one serving in the “civil courts in Syria.” Rashi explains that these were judges who were not expert in Torah law (though they were Jews, of course). This is the accepted interpretation, and I will assume it here.
The general principle in halakhah is that “the borrower is servant to the lender,” and therefore when a dispute arises between lender and borrower over the venue of adjudication, the lender chooses the venue.[3] But if the lender wants to litigate in the civil courts in Syria, the sugya earlier establishes that the borrower has the right to object and demand adjudication elsewhere before expert judges.
Now arises the question how they were appointed, for there is a prohibition to appoint an unfit judge (i.e., one lacking the appropriate character and/or expertise). Several commentators there explain that this is because in the Syrian community of that time there were no expert or learned judges. This differs from Babylonia, where, as we saw, there were learned judges—but they were not ordained (since there is no ordination outside the Land). In other words, the civil courts in Syria were constituted of appointed Jewish judges who were not learned in the laws. The lay judges in Babylonia were well-learned Torah scholars (the Amoraim of Babylonia), but they were not ordained. These are two types of lay judges. Above I dealt with the Babylonian type; now I focus on the Syrian civil courts.
In any case, the sugya indicates a permit to establish a court with judges who are not expert in the laws, in a place where there are no expert judges. This is indeed how the Rema rules (Choshen Mishpat 8:1):
“And in towns where there are no sages fit to be judges, or where all are unlearned, and they need judges to adjudicate among them so they won’t go before gentile courts, they appoint the best and wisest among them (according to the judgment of the townspeople), even though they are not fit to be judges. And once the townspeople have accepted them upon themselves, no one else can disqualify them.”
There is a well-known dispute whether such judges may also legislate their own laws (which don’t conform to Torah law, since they don’t know it) or only judge by natural equity and estimation. The Chazon Ish (Sanhedrin 15:4) writes:
“Even though there is no one among them who can judge according to the laws of the Torah and they are compelled to appoint one endowed with human moral sense, they are not permitted to adopt the laws of the nations or to legislate laws. For the judge who judges each case before him according to what appears to him is in the category of compromise, and it is not apparent that they have forsaken the fountain of living waters to hew broken cisterns. But if they agree to laws, behold they desecrate the Torah. And on this it is said: ‘which you shall set before them’—and not before laymen… And there is no difference between appearing before non-Jews and a Jew who judges by fabricated laws; and this is even more repugnant, that they replaced the laws of the Torah with vain statutes. And if the townspeople agree to this, their agreement has no substance; and if they coerce it, their judgment is robbery, and they are raising a hand against the Torah of Moses.”
The context is, of course, very contemporary. He is directing his words at the courts of the State of Israel, which adjudicate according to a foreign legal system of their own making (the Knesset); therefore one cannot legitimate their use under the rubric of the Syrian civil courts.
I will note that the Meiri there implies otherwise, for he writes:
“In the civil courts of Syria, who were not expert in Torah law, but who judged by estimation and by statutes and ordinances.”
The straightforward reading of his language suggests they could also legislate.
The debates on this are many and long; oceans of ink have already been spilled, and I will not enter into them here. I will only say that the reasoning of the Chazon Ish seems simple, for otherwise we have uprooted the entire law of “before them”—and not before laymen—which, as we have seen, is a core foundation of halakhah. See, for example, Rabbi Yaakov Ariel’s article in Techumin vol. 1 (and his ensuing debate there with Judge Bezek), among much else.
Another important reservation is raised by the Netivot HaMishpat in his Hiddushim 23:13, on the above Rema:
“This applies in a place where there are no Torah scholars, and they objected to them in order that they not go to gentile courts, as above, siman 8:1. But in a place where there are Torah scholars it is forbidden to appoint an unfit judge, and even a single individual can object.”
The permission to appoint unlearned judges is only where there are no learned judges. That indeed is the plain sense of the Gemara, and the reasoning seems simple—though on this too Judge Bezek and those of like mind disagree.
The Source of the Syrian Civil Courts — Spasst Nisht, Generation II
The problem that arises from all this is the question of the source. There is a clear and severe prohibition on appointing judges who are not ordained, and certainly those not expert in law. Suddenly there appears the concept of the “civil courts of Syria,” which seems to trample that law with no source. It appears to be mere reasoning. How can that be?
It seems to me this is the next step in the spasst nisht progression regarding lay judges. We saw that the authority of learned but unordained judges is based on spasst nisht—that it is inconceivable that a Jewish public would remain without an effective judiciary. From here the rule of shlichuteihon was born. We also saw that halakhah extends this authority to fields and times not included in the original enactment—and again by virtue of that same spasst nisht reasoning: it is unreasonable to leave important matters without the ability to adjudicate. As noted, this extension was made from reasoning alone, without a source and without permission from the ordained judges (unlike the Babylonian judges, who operated when there were ordained judges in the Land of Israel, so one could claim they received authorization from their ordained colleagues). The next step in this process is granting permission to judges who are not expert to judge in a place where there are no experts—even if they generate an alternative judicial system to halakhah.
As we saw, there is here no law based on a source, and it does not seem there was any special enactment (as shlichuteihon was enacted by the ordained). It was a given situation: in Syria there were unlearned judges, and ex post facto this entered into halakhah by virtue of spasst nisht reasoning, as above.
The Debate over the Courts of the State of Israel
As I already mentioned, there is a stormy debate surrounding recourse to the legal system of the State of Israel. This is a system operating on the basis of state law—a legal system that is not halakhah. It obviously does not recognize halakhah and is not bound by it. It is staffed by judges who are not expert in halakhah, and of course they need not be, since they are not judging by it. Finally, there are in the State of Israel plenty of judges who are expert in halakhah; but as noted, that is not the criterion for appointing state judges.
From all the above it would seem simple that there is no permission to appoint such judges or to resort to them. We have learned judges available, and even were that not so, here we are dealing with an alternative legal system and not merely judging by natural justice.
Surprisingly, the debate still rages in full force. Roughly speaking, it is a debate between halakhic decisors of various stripes (Haredi and Religious-Zionist) and religious judges (foremost among them Yaakov Bezek and Menachem Elon). The decisors almost all agree that this is a full prohibition—in other words, the state courts have the status of arka’ot (of gentiles; not the Syrian civil courts). The judges, by contrast, argue that their status is like the Syrian civil courts or like disqualified judges whom the litigants (in this case, through a decision of the public at large) have accepted upon themselves. Some also argue that the prohibition regarding arka’ot depends mainly on the identity of the judge (Jew or gentile, idolater or not) and less on the legal system he applies, among other arguments.
Without entering the debate, I will say that in my opinion the judges’ arguments are very implausible (see in the above debate of Rabbi Ariel with Judge Bezek). Their arguments almost empty of content the obligation to follow halakhah and to appoint fit judges. Therefore, at least for me, it is quite clear that it is prohibited to resort to that system, and its law is like that of gentile courts (Syrian civil courts, in a case where there is no justification and permit for appointing them, are like gentile courts; see Rabbi Ariel there).
The Practical Difficulty
The major problem is that such a situation is a dead end. There is no realistic possibility of appointing judges expert in halakhah and, of course, causing the legal system in Israel and the general Israeli public (even the Jewish segment within it) to operate according to halakhah. The alternative is to establish private halakhic courts that will adjudicate among those who so desire (usually religious people), leaving the legal arena in the hands of the secular public. That is apparently today’s situation, and therefore it is conventional that resort to the secular court is conditioned upon permission from a rabbinical court (when there is no choice)—just as halakhah requires regarding turning to gentile courts. I stress that this is the situation in the overwhelming majority of the religious public, not just the Haredi public. I mean the great majority of the Torah-oriented segment of the religious public (certainly not only the hardline Religious-Zionist camp).
I have already written here that this situation is very problematic. Torah law, in many cases, is conducted in an unreasonable and unmethodical way. There is no authority to summon witnesses; the state’s laws are unclear to the rabbinic court even where they must be taken into account. They lack enforcement authority. They rely on the authority of the state as mediators (and indeed they have the parties sign a mediation agreement before litigation). There is no uniformity in the law and therefore no legal certainty. In the Haredi public, where they ostensibly are stricter about this prohibition, private “police forces” are established (sometimes including violent measures), the courts are affiliated with various factions, and there is not much trust in their decisions (there are claims of bias in favor of in-group members), and more. It is no wonder that many Haredim, in truly significant cases, still turn to the state courts—and not always with permission from a rabbinic court. And of course this offers no solution for litigation between a religious/Haredi person and a secular person who refuses to litigate in rabbinic courts (unless permission is granted to litigate in state court in such cases—but even that greatly complicates matters and hinders that public’s access to the courts).
Furthermore, in this picture religious people ostensibly cannot serve as judges or attorneys (which, of course, is not what happens in practice; see below). Such a policy does not allow the religious public to influence the state’s legal system, and the result is that this itself pushes it in a more secular direction. Influence over a state’s legal system belongs to every citizen and every community in a democracy, and such a situation is indeed unreasonable. I have not yet mentioned the fact that in the Knesset, which legislates the laws—the mother of all impurity according to this outlook—there certainly serve religious members of Knesset who, rightly in their view, try to influence the legal system and the state’s laws as much as they can. It is illogical to permit involvement in legislation while forbidding activity under it and within its framework.
Deciding the Debate — Spasst Nisht, Generation III
From all the above, a solution seems to emerge and is called for—one that is theoretically complex but practically the simplest: permit going to state courts for any matter and without the need for prior permission. There is no obligation to resort to rabbinic courts. How can one transgress the severe prohibition to resort to arka’ot? Because of spasst nisht. It is inconceivable that a public remain without an effective legal system, and since the only option that exists in our current situation is a secular legal system, there is no choice but to recognize it and cooperate with it.
True, there are important distinctions between the situation in Talmudic Syria and our situation today. We have an alternative legal system, not merely judging by natural justice. We have learned judges available, whereas the state courts appoint judges who are not learned in halakhah—and therefore, ostensibly, there is no halakhic permit for this. But in the final analysis, there is a decisive similarity to the situation in Syria then: our only alternative, if we act according to halakhah, is the absence of a legal system. Therefore those distinctions are irrelevant. They were stated for their social context then, when it was clear that if there were learned judges one would not appoint laymen. But that is not our situation today. Most of the public today is not bound by halakhah and is not interested in its legal system. Therefore the spasst nisht reasoning exists today despite the differences.
I remind you that even in Talmudic Syria there was no real halakhic solution. They too innovated a solution due to on-the-ground constraints; therefore, clinging to what they instituted is meaningless. If anything, one should adhere to the principle that stood behind their solution—not to comparisons between the situations as such. Just as the people of Syria and the Talmudic Sages adopted a solution contrary to halakhah because of a spasst nisht consideration, so should we in our time. That is the proper continuation of the Talmudic law.
Is This a Spasst Nisht Argument?
It would seem that in our case the situation is better than a mere spasst nisht argument, for we have a Talmudic sugya to lean on: the sugya of the Syrian civil courts. If so, my recommendation is the application of a Talmudic source and not deviation from halakhah due to spasst nisht.
To this I will say three things, which are of course three sides of the same coin: (1) What did the people of Syria themselves do? They had no prior source, and certainly none from Scripture or midrash. They surely operated by a spasst nisht consideration. Therefore, at least de facto, we too may make such a consideration. (2) As I noted, in the sugya of the Syrian civil courts no source is brought for this permit. If so, they acted without a source (but by spasst nisht reasoning), and therefore their precedent is not a relevant precedent in halakhic argument. If in the Talmud they deviated from halakhah or recognized de facto such deviation, that is not a precedent that justifies our deviation from halakhah. Therefore reliance on the Syrian civil courts does not justify my conclusion; it remains a product of spasst nisht reasoning. (3) What would we do had there been no sugya about the Syrian civil courts? My claim is that we would do exactly what they did (who, as noted, made that decision without such a sugya before them). Therefore, the existence of that sugya changes nothing in essence: the permit is, at its root, based on spasst nisht.
Spasst Nisht Reasoning and Conservative Midrash
At the beginning of the column I argued that at the root of every spasst nisht argument stands a conservative midrash. In our case too, such a midrash can be presented: the prohibition of lay judges was stated in a context where there was an option of a judicial system of ordained judges; but where the only alternative is the absence of any judicial system—that prohibition was not stated. This argument is quite similar to the swimsuit argument. When there is a spasst nisht situation, the implicit claim is that even the Talmudic Sages themselves would have permitted or would not have prohibited in such a case; therefore their prohibition does not exist in this new situation.
The Prevailing Rationales
I already noted that even in the most conservative communities, people resort to the state courts—some more, some less. My claim is that all these rationales are a façade. At bottom, decisors understand there is no other option, and therefore they permit it. The fact is that statements such as that judges and attorneys cannot be counted for a minyan (from the “pearls” of Rabbi Avraham Yosef), which would ostensibly be a straightforward halakhic corollary, are dismissed with scorn by virtually all rabbis and the public—even though they have no good reason for doing so. There is a blind eye turned to the religious and Haredi community’s cooperation with the legal system. Sometimes there are zealous outbursts of one sort or another—but mainly when it is convenient. When it is truly necessary, everyone goes to court. I have noted here more than once the astonishing phenomenon that with the opening of academia’s gates to the Haredi public, I was amazed to discover that the most in-demand and popular major among them is… law. No less. Academia is treif, and therefore from time immemorial there was a severe prohibition on studying there. And once the leash was loosened, the primary and first profession permitted is the very one where there is a direct, severe halakhic prohibition—without interpretations and without agendas. How can one understand this astounding phenomenon? To me it’s clear that this turning of a blind eye (a weak and unspoken permit from most rabbis) is rooted in the understanding that we have no other option but full cooperation with the state’s legal system and laws. Everyone understands that it is spasst nisht, and the loudly proclaimed rationales are an attempt to conceal this or to avoid admitting it openly. Sometimes “the heart does not reveal to the mouth,” and the decisor is not prepared to admit it even to himself. But in some cases I suspect he knows it quite well and uses the accepted rationales or simply ignores it, so as not to state openly that halakhah contains a permit of the spasst nisht sort. As noted, this is dangerous and prone to slippery slopes.
The Authority of Community Leaders — Spasst Nisht, Generation IV
Until now we dealt with legitimizing lay judges by virtue of spasst nisht reasoning. Now I will broaden the canvas further, but in a somewhat different direction: communal enactments.
Until the tenth century, most of the Jewish people were concentrated in Babylonia, where they had central governmental and Torah institutions. Not for nothing was the understanding that the scepter from Judah had passed from the king and the Nasi in the Land of Israel to the Exilarch in Babylonia (see Column 164 on the historical accident). Around the tenth century, the Jewish people began dispersing from Babylonia to the far reaches of the earth, and a new concept appeared on the historical stage: the community. Of course there had been communities before that, but an isolated community not within a broader national framework—at least as a phenomenon—appears first then. As a result, a discussion began among the decisors about managing the community, and responsa began to be written dealing with these questions.[4]
Among other things, the question of following the majority arose. In Column 66 I discussed this question and showed that when it was presented to the decisors, they tended to decide it on the basis of the verse “After the majority to incline (acharei rabbim lehatot).” I mentioned there the debate among historians whether Judaism has pride of place in majority rule in democracy (in my opinion, not necessarily). As I showed there, the decisors are divided over following the majority in communal enactments; Rabbeinu Tam, for example, holds that unanimity is required.[5] Most decisors (the Rosh, the Rashba, and others) ruled that one follows the majority, and they rely on Scripture; this is also the ruling in the Shulchan Arukh, Yoreh De’ah §228. But in quite a few responsa of the Rishonim you will find that after they cite the verse, they add a small supplement to their reasoning beyond the verse.
Thus, for example, I brought there the responsum of the Rosh dealing with this matter (Klal 6:5), where he writes:
“And that which you asked: if two or three among the average citizens of the town can exempt themselves from the agreement that the community will enact, or from a decree of ban that they will enact about some matter. Know that concerning the business of the many the Torah said: ‘After the majority to incline.’ And in every matter on which the community agrees, one follows the majority, and the individuals must uphold all that the many agree upon for otherwise the community will never be able to agree on anything if individuals have the power to nullify their agreement. Therefore the Torah said, in every matter of public agreement: ‘After the majority to incline.’”
He does not suffice with citing the verse “After the majority to incline,” but enters into the ta’ama dikra (the rationale of the verse) and adds a practical argument: if we do not follow the majority, there is no way to reach agreements. This appears in other responsa of the Rishonim on this subject as well, and in many of them, after citing the verse, they add the argument in some formulation. The question here is: why is this addition necessary? When the Rishonim speak of following the majority in a court, they do not trouble to add rationales and explanations. There the verse suffices.
To understand this, let us return to Rabbeinu Tam’s position. As noted, he held that in communal enactments one does not follow the majority (they must be passed unanimously). How does he reconcile this with the verse “After the majority to incline”? In Column 66 I explained that the verse proves nothing here, for it deals with majority in a court whose goal is reaching truth, and the directive there is to follow the majority because generally the majority is closer to truth. But the question regarding majority in communal enactments concerns a democratic majority, which is a different kind of majority whose purpose is to reflect the opinion of the public and not to reach truth. Following the majority here derives from a different reason and is defined differently from the majority in court. Therefore Rabbeinu Tam apparently does not see a necessity to learn from the verse that one follows the majority also in communal enactments. As we have seen, even those who disagree with him apparently understand that the verse alone does not prove following the majority in communal enactments; therefore they add the rationale.
What is the meaning of this rationale? Here we return again to the spasst nisht principle. Essentially, these Rishonim say that although the verse does not prove that one must follow the majority in communal enactments, there is no way to live and function reasonably without it. It is spasst nisht not to follow the majority; therefore one must follow the majority here as well. This is the fourth expansion of the spasst nisht principle, in the domain of courts—now expanding beyond the bounds of court and halakhic law. The principle is identical in all: anarchy is not an option.
[1] Admittedly, with regard to some monetary laws there are disputes among Amoraim and decisors at the beginning of Sanhedrin, and some opinions hold one does not need a court of three ordained judges, and perhaps not even one ordained judge.
[2] I once thought that specifically regarding this extension one might suggest an intrinsic rationale—i.e., without spasst nisht. As a matter of law, conversion also requires a sacrifice (the sprinkling of blood), and that is indispensable. Yet the Gemara in Keritot 9a says that even after the Temple was destroyed and sacrifices are impossible, one may convert without a sacrifice. It bases this on the verse “for your generations,” meaning there must be a possibility to convert in every generation, even without a Temple. If one takes this reasoning further, it can be applied also to ordained judges: precisely in an era when there are no ordained judges anywhere in the world, there must be some way to convert; therefore we do so even without ordained judges. Some decisors claim the Gemara speaks only about the sacrifice; but to me that is not persuasive, and certainly Tosafot themselves don’t use that rationale but the claim that it is like a common matter. In my opinion, even that very derashah itself is based on Tosafot’s spasst nisht reasoning.
[3] It is explained there that this is an enactment for the benefit of borrowers and the needy. Although this eases matters for the lender, the more we ease for the lender, the more likely lenders will be found who agree to lend to the needy. See the socialist wars against benefits for tycoons.
[4] I have already noted here (see, for example, in the above column) that the rules of community governance are not part of halakhah (and therefore even if you find some of them in the Shulchan Arukh, they are not binding). They entered it by mistake, in my opinion, because there was no other authority—aside from the decisors—to address them. Out of inertia, anything appearing in halakhic literature is considered halakhah. In origin these questions are public-policy questions, not halakhic ones, and their domain belongs to the king (i.e., the government), not to the decisor and the court.
[5] His words are cited in the Mordekhai Bava Kamma §179, Bava Batra §480, and in Responsa Maharam of Rothenburg §230, among others. For a general survey, see Menachem Elon, Jewish Law (vol. 1, ch. 19); see also Prof. Haym Soloveitchik, Responsa as a Historical Source; and in Wikipedia, the entry “Communal Enactments.”
