The Meaning of a Majority: Does the Majority Decide? (Column 66)

With God’s help

In recent days a stormy election campaign has been underway in France. Marine Le Pen threatens to win the presidency, and reporters and commentators are unanimous that this is an apocalypse (at times it sounds as though we are dealing with something like the Nazis’ rise to power in 1933). Because of journalists’ built-in bias to the Left, I do not have a shred of trust in the tendentious descriptions portraying her as some racist monster. Look at similar descriptions here of Miri Regev, Bibi, Liberman, Smotrich, or in fact of the State of Israel as portrayed in the mainstream press, and you will understand what such journalistic descriptions are worth and how far they should be accepted. In some cases these are false and slanted depictions driven by political agenda, but in my impression in most cases it is simply stupidity and a lack of understanding of the concepts involved (such as racism, etc.). But that is not what I wanted to discuss here.

Among other things, people are asking these days whether the French election will once again demonstrate the public’s rebellion against the establishment (a euphemism used by journalists who themselves are the establishment, whose real meaning is: rebellion against their own left-liberal indoctrination), as in Brexit in Britain, Trump’s election in the United States, and more. Even those who ask this question generally assume that the public is mistaken and that its decisions will bring humanitarian and political disaster upon us, and the only question is whether the public will make the same mistake again in France.

Replacing the People

It is hard not to recall the saying attributed to Yitzhak Ben-Aharon after he saw the 1977 election results—the political upheaval that brought Likud to power—that the people had erred and that the people should be replaced. We are used to ridiculing such a statement as arrogant and undemocratic, but it is worth examining whether that is indeed so. Can the public not be mistaken? That is certainly possible. Alternatively, is it not reasonable that the majority is mistaken? That is, is the majority by its nature closer to the truth than the minority? Here too the answer is not trivial.

Regarding the above statement attributed to Yitzhak Ben-Aharon, a man named Uri Yizhar from Mishmar HaShivah wrote some very pointed words in response in Haaretz:

In an article reviewing the course of Yitzhak Ben-Aharon’s life, it was said that following the Labor movement’s loss to Likud in the 1977 election, he said: "If this is what the people want—then the people must be replaced."

This never happened, nor anything like it. On Israeli television on the night of the upheaval, after hearing the television exit poll, Ben-Aharon said that if this was the people’s decision, then he was not prepared to respect it. This segment was rebroadcast on the day of Ben-Aharon’s death, 19.5.2006, on Channel One’s program "Yoman".

There is a fundamental difference between the claim that one must "replace the people," and what Ben-Aharon actually said. In a democratic regime there is an obligation to accept the people’s decision in an election, but there is no obligation to hold it in esteem.[1]

In other words, the public can be mistaken, but there is a democratic obligation to respect its decisions even if it has erred.

The Meaning of a Majority

In the next two columns I will try to address these questions through Uri Yizhar’s remarks, on two levels: 1. Does the majority decide? I will discuss here the meaning of democratic elections and majority rule. I will elaborate and clarify the obligation to respect the majority’s decision. 2. Is the majority right? Here I will examine the assumption implicit in his words that following the majority is not necessarily the best way to reach the truth or the most correct decision. That is, the majority can be mistaken.

Rule by Philosophers

Already Plato raised the proposal of entrusting rule in the state to philosophers, that is, to wise people. On its face this is a very sensible proposal, since we all want the best and wisest decisions to be made. Seemingly, the best way to arrive at a correct and rational decision is to entrust it to wise people.[2] A more moderate version of this proposal would be to weight each person’s vote according to his intelligence. That is, when some public vote is held (such as elections to the Knesset), each vote would count according to the IQ of the person casting it. Thus the more intelligent a person is, the more influence he would have over the decision, which ostensibly would improve the quality of society’s decisions.

One can of course question our ability to measure the relevant wisdom, and I will address this below. But at least on the theoretical plane the question remains. Assuming that it is indeed possible to measure the relevant wisdom and assign weight to each voter according to his wisdom, is Plato’s proposal (or my softened version) really a good one, and should it be adopted, or not?

Two Common Answers

Usually two objections are raised to this outrageous proposal. The first is that we have no way to determine who is wise for this purpose. What is the wisdom required for voting in an election, and how can it be measured? How can wisdom at all be determined objectively? Education is certainly no guarantee of wisdom (it has already been said that there are pieces of nonsense so infantile that you will hear them only from academics). But this is only a technical problem, since what is really assumed here is that if there were indeed a way to define such wisdom, the Platonic proposal would be correct and worthy.

The second objection is that if we give the decision to the wise, they will use that authority for their own interests. That is, the fact that someone is wise does not mean that he is thinking about all of us. We fear that he will use his wisdom for his own interests, and therefore he will not necessarily make the right decisions for all of us. Here too this is a technical problem. This objection as well actually assumes that in principle the Platonic proposal is a good one, but there is concern that it will not succeed. If we were to entrust the decision to an intelligent computer program (devoid of interests), that could be perfect.

These two objections implicitly assume that Plato’s proposal is correct. Rule by philosophers really is the proper and just form of government; there are merely technical problems in implementing the idea.

The Mistake in the Question

But a second look shows that, in truth, there is a mistake in raising the question, or in the Platonic proposal itself. The assumption behind this proposal is that we are looking for a mechanism that will give us the most correct decisions. But that itself is the mistake, and therefore the Platonic proposal should be rejected out of hand. Even if we find a mechanism that measures wisdom, and even if we neutralize interests (create a perfect program), it is still not right to let philosophers rule and make decisions for all of us.

The reason is that the assumption underlying democracy is that we are not looking for the most correct decisions, but for decisions that reflect the will of the public. What lies in the background here is not the conception that the majority is right, but a conception of rights according to which every citizen, as such, has an inherent right to participate in making the decisions that affect him. Again, not because that is how we will reach the best decisions, but because it is his right. If a given citizen chooses of his own will to entrust the decision to someone else (which is essentially what we do in a representative system of government), there is no principled problem with that. Thus, for example, Haredim vote in elections according to the rabbi’s instructions, and their members of Knesset vote (ostensibly—if you can believe it) according to the directive of some Council of Sages. But the fundamental right belongs to the citizen himself.

Our conclusion is that Plato’s proposal is fundamentally mistaken, and not only because of technical reasons. It is based on a false assumption. Even if the philosophers sat and made the very best decisions, that decision still would not reflect the will of the public, and therefore it would not be the binding decision.

The Meaning of a Democratic Majority

Contrary to what those with a halakhic background are accustomed to thinking, the democratic majority is not a way of reaching the truth, but a way of expressing the will of the public. Assuming that a citizen has a right to influence his fate, then the decision society makes for him should fit his wishes. If the decision applies to all citizens, it is difficult to tailor it to everyone’s will. Of course, if all citizens agree there is no problem, but in a situation of disagreement among individuals and groups, a decision that is meant to express the public will requires a mechanism to determine what the public will is in such a case. What does the public want when there is a dispute?

For example, suppose a proposal for some diplomatic agreement is on the table, and part of the public opposes it while another part supports it. The agreement binds everyone and is supposed to be signed on behalf of everyone. Here we cannot proceed according to the wish of each citizen, and one decision must be made for all. Therefore, in such a case we need to create a mechanism that defines what the public will is in a situation of dispute. The accepted practice is to adopt the mechanism of following the majority. But following the majority is not based on viewing the majority as a clarifier of truth; it is based on the fact that the majority is a reasonable criterion for expressing the collective will of the public as a whole.

There can of course also be other mechanisms or criteria. For example, one could weight each citizen according to the number of years he has lived, according to the degree of his contribution to society, according to how critical this decision is for him, according to how strongly convinced he is that it is right or wrong, and so forth.[3] But one can see that the proposal to weight a citizen’s standing according to his degree of wisdom is irrelevant within democratic discourse. This is because in democracy we are not looking for the correct decision, but for the decision that reflects the will of the public.

Halakhic Implications

The rule of following the majority in Jewish law is derived from the verse "follow the majority" said regarding a religious court. When there are differences of opinion in a religious court, we follow the majority. In its plain sense, this is based on the idea that the majority is a criterion of truth (this is also what Sefer Ha-Hinukh writes in commandment 78).

In Jewish law there are several different principles that involve decision by majority. There is the rule of "following the majority," that is, making decisions on the basis of probability (without entering into the differences between a halakhic majority and a probabilistic majority). For example, if a woman has given birth and we do not know in which month, the halakhic presumption is that the birth was in the ninth month (this is a majority not present before us). Or in a case where we found a piece of meat in the street, the assumption is that if most of the stores sell kosher meat, the piece is kosher (this is a majority present before us). In addition, there is a second rule of nullification by majority in a mixture, meaning that the minority component in a mixture is nullified and takes on the identity of the majority (for example, a piece of pork that fell into a pot containing pieces of kosher meat—strictly speaking, the entire mixture may be eaten). There is also a third rule, that the majority counts as the whole: if some requirement is fulfilled by most of the individual cases, this is considered as though it were fulfilled by all of them (for example, if the majority of the public is ritually impure on Passover eve, the Paschal offering is brought in impurity and not deferred to the Second Passover).

The Talmud in Hullin brings a source for the first rule from the verse "follow the majority". Some of the medieval authorities (Rishonim) write that the second rule as well is derived from there (in different ways, not always clear and not always agreed upon). Some later authorities (Acharonim) wrote this about the third rule as well. Against this background, it is very interesting that there is one halakhic context in which a long-standing controversy arose regarding following the majority: communal decision-making. There, the connection to the verse "follow the majority" is not agreed upon, and perhaps does not exist at all. It now seems that the explanation of this puzzling matter also lies in understanding the democratic majority as I presented it above.

An Implication: The Concept of the Community and Decision-Making within It

The departure of the Jewish people into exile occurred in stages. First, we lost our political autonomy in the Land of Israel, but the overwhelming majority of the people was still here. Afterward, a substantial part of the people went into exile, but the majority of the people still lived in Babylonia, under a fairly autonomous Jewish leadership and legal system. In Babylonia there was a hierarchical national structure, even if not political independence. In such a situation the concept of the community had still not crystallized, because in essence this was still a cell within an active and effective national organism. But toward the end of the first millennium and the beginning of the second CE, the dispersion of the people from Babylonia began, and then small independent cells began to form around the world, organized as communities as we know them today. Such a community lived its own life, and there was no Jewish government or Jewish legal system above it to which it was subject. Such a community made decisions by itself and for itself.

It is no wonder that only beginning in the eleventh century did the halakhic decisors begin seriously to discuss how decisions are made in a community. Naturally, they turned to the familiar mechanisms, foremost among them the mechanism of following the majority. Most decisors held that the majority is determinative in communal decisions, but some objected to this. For example, Rabbenu Tam held that the majority has no significance and that communal decisions should be made unanimously.[4] This dispute was finally resolved only toward the end of the Middle Ages, and since then it has been accepted that communal decisions too follow the majority (as ruled as well in the Shulchan Arukh and its commentators, Yoreh De'ah sec. 228). It seems to me that on the substantive level, only then was the democratic character of Jewish life established.

What is interesting is that most of the medieval authorities who discuss the question of communal decision-making cite as a source for following the majority the verse "follow the majority", but many of them are careful to add an additional rational consideration. For example, in the Rosh’s responsum that deals with this matter (kelal 6, sec. 5), he writes:

And you asked: whether two or three of the average townspeople can exempt themselves from an agreement made by the community, or from a decree of excommunication enacted concerning some matter. Know that with respect to a matter of the many, the Torah says: “follow the majority.” In every matter on which the community reaches agreement, we follow the majority, and the individuals must uphold whatever the majority agrees upon for them. For if not, the community would never be able to agree on anything, if individuals had the power to nullify their agreement. Therefore the Torah said, regarding every matter that is agreed upon by the many: “follow the majority.”

And so too in several responsa of the Rashba. The question is why the Rosh does not suffice with the verse "follow the majority", and adds the consideration that if we do not follow the majority, it will be impossible to reach agreements. Is this the rationale of the verse? After all, the verse deals with a religious court, and the explanation brought by the Rosh is not really relevant to the case of a religious court. He is speaking about communal decisions.

In my article Midah Tovah on parashat Mishpatim, 5767,[5] I expand on this subject. Among other things, I argue there that a majority in a religious court is meant to reach the truth, as opposed to a majority in a community, which is a democratic majority whose purpose is to express public opinion (and not to hit upon the truth, as explained above). In my article I show several implications of the different conceptions of the law of majority, and especially of the question whether its purpose is to uncover the truth or to express the public will. For example, the decisors disagreed whether in a religious court one follows the majority in wisdom or the majority in number (for example, if the head of the court, who is greater in wisdom, disagrees with his two colleagues who are lesser than he). My claim is that if what we seek is the truth, there is logic in following the majority in wisdom (this is precisely Plato’s proposal), and even those who do not advocate that view refrain from it only for technical reasons. By contrast, in a community, as I explained, there is no reason at all to adopt Plato’s proposal, since there the decisions do not come to uncover truth but to define the public will.

This is probably the reason that Rabbenu Tam thought that the rule of "follow the majority", whose concern is clarifying the truth, cannot teach us about the way decisions are made in a community. There is no source in the Torah that teaches that the majority is the way that best expresses the public will, and therefore, if there is a dispute in a community, the majority cannot impose its view on the minority. That would be an infringement of the right that every citizen in a community or democratic state has to decide regarding his own fate. Rabbenu Tam’s conception prefers liberalism and concern for individual rights over democracy as majority rule.

It should be noted that even the medieval authorities who disagreed with Rabbenu Tam probably agreed with him on this principled point, and therefore they always took care to add the rational argument alongside the verse itself. Even according to their view, the verse that deals with decision-making in a religious court (that is, striving for halakhic truth) does not teach us about a democratic majority (whose purpose is to define the public will), and therefore it should be seen at most as a distant source of inspiration for the law of democratic majority (the majority within a community). The main thing is the reasoning that says that without this it will be impossible to function.[6]

In my article I mention a dispute between the historians Yitzhak Baer and Haym Soloveitchik (see his aforementioned book): was democracy imported into general thought from the Torah, or was Jewish law in this matter influenced specifically by general thought? There I am actually inclined to Baer’s view, since as we have seen, the verse "follow the majority" (which Soloveitchik cites as the source of the democratic conception) has nothing whatsoever to do with democracy.

Summary: Back to Uri Yizhar

If we return to Marine Le Pen and Yitzhak Ben-Aharon, the conclusion is that there is indeed no impediment to criticizing the majority’s decision, but at the same time there is an obligation to accept it. The majority’s decision is the result of a mechanism that reflects the public will, and that is what is binding in a democracy. True, we have no guarantee that the majority in fact reflects the most correct decision, but we also do not need such a guarantee in order to determine that the majority is decisive.[7]

So in this column we dealt with the question Does the majority decide, and we saw that indeed it does. But at the same time we saw that this does not depend on the question whether the majority hits upon the truth or not. Seemingly, the question of majority and truth (Is the majority right) remains open. On the other hand, the laws of majority in Jewish law usually assume that a probabilistic majority does indeed constitute an indication of the truth. Thus, for example, we saw that in a religious court whose purpose is to uncover halakhic truth, the Torah instructs us to follow the majority. That is, the majority does indeed seem to be a criterion of truth, even if this has no connection to the democratic validity of the majority’s decision. It is no wonder that the Sages derived from this verse the entire body of majority laws, whose purpose in most cases (perhaps except for the rule that the majority counts as the whole) is to clarify the truth. In the next column I will try to go a bit more deeply into the question of the connection between majority and truth (Is the majority right) and show that this connection too is far from trivial.

[1] He adds there one more personal sentence that is less important for our purposes, but I will bring it here as well for completeness:

It seems that the upheavals and hardships Israel has undergone since 1977 can teach us that the justified punishment the people inflicted on the Labor Alignment in 1977 did not heal the ailments of society and the state, and Ben-Aharon’s words, even if they were spoken then as an angry reaction, were a kind of forecast that, sadly, has largely come true.

[2] There are versions that demand entrusting the decision to professionals. My assumption is that in matters of state, such as security and foreign policy, there are no experts. As Ben-Gurion said, experts are experts in what has been, not in what will be. Therefore I am dealing here with the question of entrusting the decision to wise people and not to professionals.

[3] These different mechanisms are discussed in the field of mathematical economics. There is a wonderfully fascinating book by Prof. Shmuel Nitzan, Preference and Social Choice, published by the Open University, which surveys the topic and presents a number of mathematical theorems with interesting and surprising conclusions about it.

[4] See Mordechai, Bava Kamma sec. 179, Bava Batra sec. 480, and also the responsa of Maharam ben Barukh, sec. 230, and others.

For a survey, see Menachem Elon’s Ha-Mishpat Ha-Ivri (vol. 1, chapter 19), as well as Prof. Haym Soloveitchik’s Responsa as a Historical Source, and also Wikipedia, s.v. 'Communal enactments'.

[5] It also appears in my book (with Gabriel Hazut), B'Tzel Ha-Hokhmah, Kfar Hasidim, 2010.

[6] Ironically, it is specifically the rule that the majority counts as the whole, which is usually perceived as the furthest thing from the meaning of the verse "follow the majority" (only some of the later authorities connect the two), that is the closest to the law of democratic majority. It essentially says that the majority gives its character to the whole aggregate. So too in a democratic majority, the will of the majority defines the will of the public as a whole.

[7] I would only note that a similar mistake arises with respect to the authority of the Talmud or halakhic authority. There too people tend to think that if the Talmud has authority, then it is wiser and does not err. There too this is not necessary. The Talmud has authority because that is what was decided by the Jewish people as a whole, but that does not mean that there are no errors in it, and perhaps not even that it contains more wisdom than any other sage. The binding force of a decision and its correctness are not coextensive principles.