Dispute and Truth – Lesson 5 – Part I
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- Two concepts of majority: democratic versus religious court
- Majority in a community and the logic of necessity versus the verse “follow the majority”
- Sefer HaChinukh, commandment 78, and deciding law according to the majority
- Plato, the weight of wisdom, and limiting the scope of the religious court
- Strengthening the endurance of religion, “Torah as many Torahs,” and responsibility for error
- Do not deviate, Derashot HaRan, and a broader truth that includes obedience
- Chullin 11a: a majority present before us and a majority not present before us
- Defining majority: direct information versus generalization from a sample
- Maimonides, Rabbi Shimon Shkop, and the weakness of a majority present before us
- Resolving the classification of a court majority as a majority present before us and a priori calculation
- The Chinukh’s condition: equality in wisdom, and continuing to the discussion of the majority of halakhic decisors
Summary
General Overview
The text distinguishes between two kinds of majority: a democratic majority, meant to represent the will of the public on the basis of equal rights, and a majority in a religious court, meant to aim at truth based on the verse follow the majority. It argues that following the majority in community decisions is not learned from follow the majority, but is instead a necessary logical principle for any decision-making mechanism, and it criticizes the claim that attributes this to Haym Soloveitchik. It then cites Sefer HaChinukh, which defines the majority in a religious court as a probabilistic, systematic tool for reaching truth when the judges are comparable in wisdom, but also justifies obedience to the majority even when the majority seems mistaken, in order to prevent “Torah as many Torahs” and to strengthen the endurance of religion. Finally, it delves into the topic in Chullin about a majority present before us and a majority not present before us, explains the difference between them through the question of direct information versus generalization from a sample, and tries to resolve why a court majority is classified as a majority present before us even though intuitively it seems like a majority not present before us.
Two concepts of majority: democratic versus religious court
A democratic majority is meant to express public opinion in a dispute, and so it rests on a principle of equal rights rather than on an attempt to reach the truth. Majority rule in communal decisions, like the seven good men of the city or a vote of the community members, works according to that same democratic principle of representing the community’s will, and is not really connected to follow the majority. Majority rule in a religious court is learned from follow the majority as a mechanism that increases the chance of reaching the truth when there is disagreement among judges. The text argues that one cannot learn democratic majority from the majority of a religious court, because the aims are different: truth versus representation.
Majority in a community and the logic of necessity versus the verse “follow the majority”
The halakhic decisors who justify following the majority of decisors against Rabbeinu Tam cite the verse follow the majority, but also add that there is no other way, because without majority rule every person would have veto power. The text concludes that for them the verse serves as an illustration, while the real argument is a logical one: a social body needs some decision-making mechanism so that every decision is not paralyzed. It argues that this is not really an essential Jewish law question but a question of community management that was brought to halakhic decisors only because there was no other address, and so they have no unique authority over it. It rejects the position that attributes the principle of communal majority to follow the majority, and argues that Haym Soloveitchik is not right on this point.
Sefer HaChinukh, commandment 78, and deciding law according to the majority
Sefer HaChinukh, in commandment 78, defines an obligation to incline after the majority when a dispute arises among sages over a general Torah law or over a private legal case between litigants, and cites “majority is of Torah origin” from Chullin 11a. The Chinukh makes following the majority conditional on the two disputing groups being equal, or nearly equal, in Torah wisdom, and states that a “small group of sages” is not dragged after a “large group of ignoramuses,” “even if they number like those who left Egypt.” The Chinukh explains that when the sages are evenly matched, the larger number of opinions agrees “always more with the truth” than the minority, and so the majority is the optimal algorithm for approaching truth, even without a guarantee. The Chinukh adds that everywhere outside the Sanhedrin one also examines the relative wisdom of the disputants, whereas in the Sanhedrin “we always act according to the words of the majority,” because they are in a number mandated by the Torah and because they are all great sages.
Plato, the weight of wisdom, and limiting the scope of the religious court
The text presents the Platonic implication of a majority aimed at truth: decision-making should be given to the wise, and even a minority of sages can outweigh a huge majority of ignoramuses. It connects this to the idea of “weighting” the vote according to wisdom in the context of clarifying truth in a religious court, and distinguishes this from democratic majority, where every finger counts equally as a matter of rights. It argues that a religious court deals with Jewish law and legal judgment, not with matters of social policy such as building a wall around a city, where the “seven good men of the city” are the ones who decide. It criticizes the phenomenon of asking rabbis for “Torah wisdom” guidance on matters like opening a kiosk or a shoe store, and argues that such decisions are not supposed to be handed over to a religious court or to halakhic decisors.
Strengthening the endurance of religion, “Torah as many Torahs,” and responsibility for error
The Chinukh explains the commandment to incline after the majority as a need “to strengthen the endurance of our religion,” because if each person practiced according to what he himself grasped as true, every individual would say “my reasoning says so” even against the whole world, and that would lead to destruction and make the Torah into “many Torahs.” The text emphasizes that the Chinukh’s subtext assumes a value of halakhic autonomy, according to which a person is really supposed to act according to what he sees as true, and only in order to prevent destruction is a binding procedure of majority rule established. It illustrates the difficulty by noting that a great sage like Rabbi Akiva could think the Sanhedrin is wrong and even be right, yet still be obligated to obey in order to prevent division and ensure one Torah. The Chinukh states that even if the sages sometimes do not aim at the truth, “Heaven forbid,” the sin is on them and not on those who obey, and he cites Horayot: if a religious court erred in a ruling and an individual acted based on their words, the court must bring the offering and not the individual, “except for the cases explicitly explained there.”
Do not deviate, Derashot HaRan, and a broader truth that includes obedience
The text suggests that the Chinukh is moving in the direction of Derashot HaRan, which explains that even if a certain act is “true” in terms of its particulars, violating do not deviate is itself part of the halakhic fabric and creates a defect. It describes the “naturalist” approach in Derashot HaRan, according to which a transgression can cause “physical destruction,” and explains that disobedience to the Sanhedrin is also a transgression that damages, so that even eating something kosher according to one’s independent ruling can still lead to a defect because of do not deviate. It concludes that the justification for obeying the majority even when it appears to err is that halakhic truth also includes the obligation to obey the institution of the Sanhedrin. It adds that a Sanhedrin ruling is especially necessary where practical fragmentation is harmful, such as a public decision about going to war, whereas in many areas disagreements can remain without destruction, and he even sees the total abolition of disagreement as an “apocalypse.”
Chullin 11a: a majority present before us and a majority not present before us
The Talmud in Chullin 11a asks, “From where is this matter that the rabbis said: go after the majority?” and brings the verse follow the majority. The Talmud states that “a majority present before us, such as nine stores and the Sanhedrin, is not what we are asking about,” and asks instead about “a majority not present before us, such as a minor boy and a minor girl—where do we know it from?” and from there develops a discussion searching for the source of a majority that is not before us. The text notes that the Talmud does not find a clear source for a majority not present before us, and Rashi suggests that it is either a law given to Moses at Sinai or that it is learned from a majority present before us, while the text emphasizes how strange that is if it really could have been learned that way from the outset.
Defining majority: direct information versus generalization from a sample
The text defines a majority not present before us as a majority that describes “how the world usually works,” such as “most women give birth at nine months,” and it is based on induction and generalization from a sample under the assumption that the sample is representative. It defines a majority present before us as a majority based on direct, concrete information that is before us, such as nine kosher stores and one non-kosher one, without any need to infer from a sample to the world as a whole. It suggests that this helps explain intuitively why a majority not present before us is seen as weaker, because generalization from a sample includes a speculative element about whether the sample is representative, even though in practice high accuracy can be achieved through modern sampling methods such as polls. It adds that elections themselves are not “following the majority” but simply determining the result, and cites the joke about Rabbi Yonatan Eybeschutz that distinguishes between following the majority in a case of doubt and a case of certain knowledge.
Maimonides, Rabbi Shimon Shkop, and the weakness of a majority present before us
The text explains that Rabbi Shimon Shkop, in Shaarei Yosher, points out that according to Maimonides the picture is reversed: a majority present before us is weaker and a majority not present before us is stronger, to the point that in Maimonides’ view, in capital cases a majority not present before us is effective while a majority present before us is not. It explains that a majority present before us may indeed give a certain distribution of stores, but it requires heavy assumptions in order to apply it to a specific piece of meat, such as equal odds of separation and loss from the different stores, the size of the stores, and the quality of the bags. It illustrates the distinction between probability that comes from information and probability that comes from lack of information through the example of an unknown coin, and parallels this to the distinction between a doubt involving “one piece” and a doubt involving “one piece out of two pieces” in the context of a provisional guilt-offering. It adds another indication from a case where it is known that a forbidden minority is present, and therefore some medieval authorities (Rishonim) hold that when only a few pieces remain, there is no longer a majority one can rely on, whereas a majority not present before us continues to apply to every new case.
Resolving the classification of a court majority as a majority present before us and a priori calculation
The text presents Rabbi Shimon Shkop’s question on the Chinukh: if the justification for majority rule in a religious court is that “in most cases the majority was right,” that sounds like a majority not present before us, yet the Talmud classifies the Sanhedrin as a majority present before us. It argues that there is no real possibility of making a sample-based generalization from “cases in which the majority was right,” because there is no independent feedback to determine whether a ruling was true, aside from rare exceptions such as the arrival of DNA evidence showing wrongful convictions. It suggests that the real basis for following the majority in a religious court is an a priori probabilistic calculation about the quality of judges, not empirical statistics from a sample, and therefore it resembles a majority present before us, which is an assumption about the case at hand rather than a generalization about the world. It concludes that the majority in a religious court is “really a majority present before us” because it rests on an assumption about the validity of the decision-making mechanism in the case before us, similar to the assumption that the piece of meat belongs to the majority of stores.
The Chinukh’s condition: equality in wisdom, and continuing to the discussion of the majority of halakhic decisors
The text returns to the Chinukh’s condition that the majority aims at truth only when the disputants are roughly equal in level, whereas when there is a gap in wisdom, a minority of sages outweighs even a vast majority of ignoramuses. It adds that there are later authorities (Acharonim), such as the Shakh and the Chazon Ish in Choshen Mishpat section 25, who discuss what happens in a dispute among halakhic decisors outside a religious court and whether one follows the majority, and notes that the Rema in the Shulchan Arukh writes that one does, though the discussion breaks off at that point.
Full Transcript
[Rabbi Michael Abraham] Okay, we’re starting. Last time I spoke about two concepts of majority. There’s a majority whose purpose is to discover the truth, and there’s a majority whose purpose is to express, or serve as a measure of, the opinion of the public in a case of disagreement. A democratic majority is basically a majority whose point is to represent what the public thinks, and therefore in that situation the Platonic question of rule by philosophers doesn’t arise. In the end, everyone has one finger with equal weight, because the basis of the whole matter is rights, not reaching some truth. And every person has the right, no matter how talented he is and so on, every person has the right to influence life just like every other person. That’s the value-based conception underlying democratic majority. I said that this is also what lies at the foundation of the Jewish laws dealing with decision-making in a community. When in a community, with the seven good men of the city, what today would be called the city council, or even in a vote of the whole community, the fact that we follow the majority is basically a democratic principle, and on the face of it it has nothing to do with follow the majority. Rather, it’s a principle whose purpose is to reflect or express what the community wants, what the community wants to be done, because that’s what we’re supposed to do. I talked about the historical debate over whether this was borrowed from Roman law or not borrowed from Roman law—I don’t know—but it really is not based on follow the majority; that much I do know. And here I think Haym Soloveitchik is mistaken. It wasn’t derived from follow the majority. I mentioned that even the halakhic decisors—it’s most decisors—the question of whether here we follow the majority, if most decisors hold that we follow the majority against Rabbeinu Tam, when they explain their view, they bring the verse follow the majority, but afterwards they always also add that besides that there’s no other way. You can’t function if you don’t follow the majority, because that gives every person veto power. Anyone who objects is basically imposing a veto on the decision, so it’s like saying to follow the minority, which is even less reasonable than following the majority. There’s no such option. But why do they need to add that reasoning and not just say: there’s a verse, follow the majority, that’s it? When someone asks me why I need Grace after Meals, they tell me because it says, “And you shall eat, be satisfied, and bless.” They don’t explain to me why Grace after Meals is terribly important and impossible to do without. That’s the law because that’s what the Torah commands, period. It seems that even those who disagree with Rabbeinu Tam and hold that we do follow the majority in community decisions understand that this is not learned from follow the majority. When they cite the verse follow the majority, that’s an illustration, but in the end what they really mean to argue is something based on logic: when you need to make decisions in a body that contains many people, you somehow need to decide on a mechanism for how decisions are made, otherwise no decision will ever be made. And so the claim ultimately is that a democratic majority, and majority rule in decision-making within social mechanisms, is a majority whose purpose is to discover the truth—sorry, it’s a majority whose purpose is not to discover the truth but to represent the opinion of a public. In contrast, follow the majority, that verse, is a verse that basically tells me how I am supposed to aim, in the optimal way, at the truth. And that question has nothing to do with democratic majority, but rather with majority in a religious court. When there are disagreements among judges, we are told follow the majority, go after the majority of judges because that is the mechanism that gives you the highest probability of getting close to the truth. There’s never a guarantee, and it doesn’t have to be and isn’t necessarily correct, but if you need to choose a general mechanism, the mechanism of majority is what gets you closest to the truth. And that is what is learned from follow the majority. Therefore the verse follow the majority basically tells me that the majority serves as an indicator of what the truth is, and there’s nothing to learn from that for democratic majority, majority in communities, and all sorts of things of that type. I think I remarked—I don’t remember anymore, but it seems to me I did remark—that in my view this isn’t really a halakhic question at all, the question of what communities do and how they make decisions in communities. What does that have to do with Jewish law? People asked the halakhic decisors because there was no one else to ask, but it’s not really a question entrusted to halakhic decisors; they have no authority over it. It’s not a question in Jewish law. Okay, but that’s a side remark. What I want to do now is really move on and get a little deeper into majority in a religious court, and try to understand how this works. So there’s a basic source for this that can be found in Sefer HaChinukh. Okay, not yet. It’s looking for me. Good. In Sefer HaChinukh, commandment 78, yes, follow the majority, the commandment of inclining after the majority. So the Chinukh writes as follows.
[Speaker B] Ah,
[Rabbi Michael Abraham] It just came back to me, there’s no duplicate, okay, now I think it’s sorted out.
[Speaker D] It’s running away.
[Rabbi Michael Abraham] From me. Ah, there. It keeps running away from duplicate to PC only. You have to duplicate the screen—it runs away, I don’t know why. Anyway, so listen. To incline after the many, and this is when a dispute falls between—
[Speaker B] the sages over a law from the laws of the whole Torah, and likewise in a private legal case, meaning in a case that would arise between Reuven and Shimon, for example. Yes, he’s talking—
[Rabbi Michael Abraham] about two types of decision-making. There’s decision-making, say, when the Sanhedrin sits and wants to establish some general Jewish law, not a case that came before it, and there too there can be disagreements. And also in an ordinary religious court, when there is a disagreement among the judges about a particular case brought before them, there too you have to figure out what to do when a dispute arises. For example, if there is a dispute among the city’s judges, some finding liable and some exempt, one must always incline after the majority, as it says, follow the majority. And in explanation, our sages of blessed memory said: majority is of Torah origin. That’s the Talmud in Chullin 11a; we’ll get to it in a moment. But the Chinukh writes that when there is a dispute among sages, one must incline after the majority. And I said that in a dispute of that kind, the question that interests us, the question we are looking for, is: what is the truth? Who is right? It’s not like democratic majority. A religious court sits and looks for what the law is in a certain case or in a general matter. There is disagreement between the majority and the minority. So we ask: okay, who is right? And the Torah says: follow the majority. Apparently the majority is right—or at least there’s a higher chance that the majority is right. And the reason for choosing the majority, as seems likely, is when the two groups in dispute know the wisdom of Torah equally. When do we follow the majority? When the judges are more or less on the same level. Yes, on the same Torah level. For it cannot be said that a small group of sages will not outweigh a large group of ignoramuses, even if they number like those who left Egypt. All right? In other words, there are two sages against six hundred thousand ignoramuses. Should we follow the majority? Obviously not. What is this? This is Plato, right? He’s basically saying that we really need to hand the decision over to the sages. In a place where there is disagreement among the sages, and they are all sages, and there’s a disagreement among them, then we follow the majority. But if not, then really the sages should decide. That’s a very Platonic conception. Why? Because if we’re talking about majority in a religious court, the role of majority in a religious court is to discover the truth, not to express what the public wants. And there Plato is right. If the goal is to discover what the truth is, then I’m searching, and apparently the majority of sages will hit the truth more often. But where the wisdom is equal, or approximately equal—in other words, where the judges are at roughly the same level of wisdom, or close to it—the Torah has informed us that a greater number of opinions will always agree with the truth more than the minority. All right? He says it explicitly, right? That the majority in follow the majority—why do we go after the majority? Because it agrees with the truth more than the minority. In other words, we are looking for an algorithm that gets us as close as possible to the truth. That’s the point. And follow the majority offers us that algorithm. But it’s an algorithm for seeking the truth. Therefore there is nothing to learn from here for democratic questions. And whether they agree with the truth or not, in the opinion of the listener—I as the listener say: wow, the majority here definitely made a mistake. Fine, usually the majority is right, but here it’s clear to me that they were wrong. It doesn’t matter. The law requires that we not depart from the path of the majority. Even though I think that in this case the majority erred, we still must follow the majority. This can be explained in two ways: one, who says you’re right? In other words, the minority who think like you also thought the majority was wrong. Fine, join the minority, and still the majority is right. You could say that once we already have a rule, we don’t depart from the rule, which is a kind of lo plug. Okay, we can formulate it this way or that way. What? Two formulations. Right, two formulations. No, I tried two formulations. One formulation says: you too are a minority, so maybe you’re not right. The fact that you think the majority is wrong—the minority also thought the majority was wrong. That’s why there is a dispute, and apparently the majority is nevertheless right and you were the one who erred along with the minority. That’s one possibility. The second possibility: maybe not, but fine, there is lo plug. Once the rule is that we follow the majority, we don’t start playing games. But this arrangement—
[Speaker B] is that only in a private case?
[Rabbi Michael Abraham] For example? I’ll get to that, I’ll get to that. For so it is said everywhere except in the Sanhedrin, where we do not examine, when they disagree, which group knows more, but we always act according to the words of the majority among them. And the reason is that they were of a number required by the Torah, and it is as though the Torah explicitly commanded: after the majority of these, do all your affairs. And moreover, they were all great sages. Even regarding the Sanhedrin there is no such distinction between whether all are equally wise or not. In the Sanhedrin we always follow the majority. Either because there everyone really is wise in any event—that’s the claim or the assumption—or because there we have an explicit scriptural decree of the Torah. Either way, that’s the point. So he is basically saying this: here is a first implication of the distinction I made. I distinguished between democratic majority and majority in a religious court. The majority in a religious court is meant to discover the truth, and democratic majority is meant to represent what the public wants. One implication of that is Plato. Should we hand the decision over to the wise—or, as I mentioned last time, give different weight to the vote of the wise, in a slightly more moderate formulation than Plato’s—so weigh your raised hand together with your intelligence or something like that? So he says yes: in the context of majority in a religious court, the answer is yes, we need to go with Plato, because we are looking for the truth, and a minority of sages outweighs a group of ignoramuses, even if they number like those who left Egypt. Okay? We want the truth. In democratic majority none of this is relevant. If there are two sages and 600,000 ignoramuses, the 600,000 ignoramuses are the ones who decide, because everyone has a right to influence how society will conduct itself, what the decision will be, and so Plato is wrong there. Okay, so that’s the first implication. When you go—
[Speaker B] with that approach, you would expect, you should narrow the scope of the court’s activity. The religious court should discuss only halakhic matters. Any public matter—who says the truth of the court is better than—
[Rabbi Michael Abraham] Right, and in fact the religious court deals with Torah, the religious court doesn’t deal with other things.
[Speaker B] In legal matters, yes, but in practice often it’s not like that. Why not?
[Rabbi Michael Abraham] Where have we seen a religious court dealing with things—
[Speaker B] Here, laws of the public and so on—
[Rabbi Michael Abraham] What do you mean by laws of the public? If they want to build a wall around the city, the religious court doesn’t need to decide that; the seven good men of the city decide that. Public matters that enter halakhah are something else. The Sanhedrin can establish binding public enactments because they are halakhically binding. Fine, that’s a rabbinic enactment; there is do not deviate. What? The Torah itself says that a decision that—this isn’t entrusted to the Sanhedrin because they will discover the truth. It’s entrusted to the Sanhedrin because the Torah said that going out to war is according to the Sanhedrin. Fine. I’m saying: the Sanhedrin and religious courts deal with Jewish law; they don’t deal with other things. The fact that today people go ask rabbis all sorts of things under the heading of “Torah wisdom,” whether to open a kiosk or open a shoe store—fine, those are people’s decisions. Those things are not supposed to be handed over to a religious court or to rabbis or halakhic decisors. Okay. And from the roots of this commandment—I’m continuing to read in the Chinukh—that we were commanded in this in order to strengthen the endurance of our religion. For if we had been commanded to uphold the Torah according to what each of us could grasp of the truth of its intent, then every single Jew would say: my reasoning tells me that the truth of this particular matter is such-and-such. And even if the whole world said the opposite, he would have no permission to do the matter contrary to the truth as he sees it. And destruction would result from this, for the Torah would become like many Torahs, because each person would judge according to the poverty of his own understanding. But now that we have been explicitly commanded to accept the view of the majority of sages, there is one Torah for all of us, and our endurance through it is greatly strengthened. And we must not move away from their opinion no matter what. And thus, when we carry out their command, we fulfill the commandment of God. And even if the sages sometimes do not aim at the truth, Heaven forbid, the sin will be upon them and not upon us. And this is what our sages of blessed memory said in Horayot: that if a religious court erred in a ruling and an individual acted on the basis of their ruling, they bear the obligation of the offering and not the individual at all, except in the cases explicitly explained there. He says several interesting things here. First of all, why do we need to follow the majority? Because strengthening the endurance of religion requires it, so that everyone doesn’t just do whatever he wants. Now there’s an interesting point here, because in the subtext he’s really dealing with the opposite assumption. He says that in principle everyone should have done what he thinks. That’s what should have been. And more than that, he wouldn’t have had permission not to do what he thinks, even if the whole world and his wife think otherwise and all the sages of Israel think otherwise. If I think this way, that is what I ought to have done. That’s what he says: he has no permission to do the matter contrary to the truth as he sees it, even if everyone—yes, even if the whole world says the opposite. Why? Later we’ll talk about the duty of autonomy, but yes, that’s the assumption. Except that, fine, there’s a problem—it will create destruction. If everyone basically does what he wants, the Torah will become like two Torahs, and therefore a procedure was established that produces a bottom line that binds everyone. And that procedure is following the majority. And there too, following the majority as we said means majority of wisdom—majority of people if they are equal in wisdom, and if they are not equal in wisdom, then majority of wisdom. In other words, we are indeed trying to aim at the truth. But there is a qualification: that truth is supposed to be one. Now this is problematic, because if I am obligated to follow the majority of the Sanhedrin—say I’m a Torah scholar qualified to issue rulings—and it may well be that I am wiser than the whole Sanhedrin even though I’m not sitting there. Such things have happened before. Rabbi Akiva went abroad, and the Talmud says he left no one like him in the Land of Israel, and he intercalated years outside the Land of Israel. Rabbi Akiva. He was the son of converts. He did not sit on the Sanhedrin. Even though—despite the fact—that he was the greatest sage of that generation. There was no one like him left in the Land of Israel. And he was not on the Sanhedrin. Now when the Sanhedrin issues a ruling and Rabbi Akiva hears it and says they’re talking nonsense—he has to obey. Why? In this case, if we’re talking about truth, then the truth is apparently with Rabbi Akiva; he is the greatest sage, but he does not sit on the Sanhedrin. And that’s what he says here: in order to prevent destruction we give up the value of truth. We say: okay, the Sanhedrin is the determining institution; what they determine binds everyone. I’ll still get to the question of autonomy and the duty to rule independently.
[Speaker E] In the Land of Israel or outside the Land of Israel? What? A sage in the Land of Israel—do they decide according to him?
[Rabbi Michael Abraham] No, no, no, it has nothing to do with outside the Land. The obligation to follow the majority is not an obligation dependent on the Land. With the Sanhedrin it’s a different discussion, because the Sanhedrin sat in the Land of Israel; there is no semikhah outside the Land. That’s something else. But it’s not because the obligation to follow the majority exists in the Land of Israel. Sanhedrins exist only in the Land of Israel. A religious court sitting outside the Land also follows the majority. That’s not— The Chinukh, then, basically assumed that if I think the truth is such-and-such, that’s what I ought to have done. And again, why? Because the Chinukh’s conception is that the goal in halakhic clarification is truth. And if I think this is the truth, I don’t care if the whole world says otherwise, okay? Except that where the Sanhedrin said what it said, everyone has to obey. Now I’ll say more than that: there are places, or areas, contexts, in which you can leave the disagreement standing and it won’t cause any destruction at all. In those places, as I see it, there are people who dream—yes, the vision, the utopia they aspire to is that the Sanhedrin will return and resolve all the disputes here and determine what is right and what is not right, and the Torah will stop being like two Torahs. In my view, that’s an apocalypse. I mean—not now, but when that happens, absolutely not. The end of disagreement is destruction in my eyes. I think the Sanhedrin has a completely different role. The role of the Sanhedrin is not to turn the Torah into one Torah, except only in places where fragmentation can be harmful. If there are certain issues where a uniform decision must be made, you can’t let everyone do what he wants. A state decision whether to go to war—something someone asked about earlier, okay? Not everyone who decided yes goes to war, and whoever decided no doesn’t go to war. You can’t function that way. That’s a public decision, and for a public decision one ruling must be made and it must bind everyone. There the Sanhedrin will determine what needs to be done. But there are many other things—laws of kashrut, one kind of kashrut or another—you think this way, he thinks that way, no problem. You do what you think; he does what he thinks. Maybe in a place where they suddenly stop eating at each other’s homes because in my view it isn’t kosher and in your view it is kosher, perhaps there too the Sanhedrin would decide to intervene and establish some fixed standard that binds everyone—maybe. But there’s no vision of abolishing disputes and turning everything into something uniform, absolutely not. Yes, what does need to be abolished is disputes in the social sense, the quarrels that are created. Where that leads to social disintegration, the Sanhedrin would presumably intervene and set a standard that binds everyone. But that does not mean there is some aspiration for the whole thing to be uniform, that everyone should do the same thing—absolutely not. There is a duty of autonomy, and that’s what I told you—even here, where he says the opposite, in the subtext you can see that he really does believe in a duty of autonomy. He says: if I think this way, then basically it would be forbidden for me to listen to all the others, even if everyone says the opposite of me. Forbidden—not merely that I wouldn’t be obligated—because this is the truth, and I need to go with the truth. But where that leads to destruction, then no: I give up truth in order to prevent destruction. But in principle there is a duty of autonomy; a person should do what he thinks. What? Yes, that’s the rebellious elder; it’s part of the same issue. He says more than that, he adds: and even if sometimes the sages do not aim at the truth, Heaven forbid—think about Rabbi Akiva hearing the Sanhedrin. He is wiser than all of them, and the majority determined something, and Rabbi Akiva says this is a mistake. And he has to obey them, while knowing that what they are doing is a mistake, and he is probably right too because he is the greatest sage, yes? And even so he has to obey them. So we need to explain to him: wait a second, what happens here? After all, the whole meaning of halakhah is some sort of truth. If we do the right thing, the world will be repaired; if we do the wrong thing, the world won’t be repaired. So am I ruining the world? We need to explain to Rabbi Akiva what the justification would be. He? No, everyone agrees about this. What do you mean, he? Everyone agrees about this. No, everyone agrees that Rabbi Akiva is the greatest of the rabbis. The Sanhedrin agrees about that too. There’s no dispute.
[Speaker B] But he’s an individual.
[Rabbi Michael Abraham] Yes, but he’s outside the Sanhedrin. The Sanhedrin can—
[Speaker B] It could be that it agrees to that.
[Rabbi Michael Abraham] Yes, yes, let’s assume that’s an agreed fact. We’ll still talk about this a bit, about these things. So what happens in such a situation? There is Derashot HaRan. I think Sefer HaChinukh is moving here in the direction of Derashot HaRan. Derashot HaRan talks about this. He brings the view of the naturalists, who say that if you commit a transgression it causes some kind of actual physical destruction. In other words, if you eat forbidden food, then something in your body will go wrong. Okay? Fine, that’s the naturalists’ view; many disagree with it, and I don’t think it’s correct. But he says: even according to that view, you need to understand that do not deviate is also a transgression. When you do not obey the Sanhedrin because you think the truth is otherwise, then when you do that, your right hand will function properly. It won’t be damaged because you ate something kosher. But your left hand will be damaged, because there is do not deviate. That too is a transgression, and that transgression also damages. In other words, the point is that do not deviate is also part of the halakhic fabric. And when you make decisions in order to do the truth, the truth is not only what the laws of the Sabbath say—say this is a discussion in the laws of the Sabbath—but also the obligation to obey the sages. And if you do not obey the sages, then a defect is created by violating the prohibition of do not deviate, just as violating the Sabbath laws of selecting can create a defect. And so they are basically saying to Rabbi Akiva: listen, maybe you are right on the substantive issue, but if you do not obey the Sanhedrin, then you are also causing destruction. That too is not truth in a broader sense. And therefore you need to obey them. And that is what he says: even if the sages sometimes do not aim at the truth, Heaven forbid, the sin will be on them and not on us. In other words, don’t be troubled by the fact that they are not aiming at the truth, because the obligation to obey them is also part of the truth. Okay? That is basically the claim. But maybe there is here—
[Speaker C] a question of weighing harms—which destruction do I prefer? If the destruction of the—
[Rabbi Michael Abraham] So the Torah tells you: do not deviate. And you must obey the Sanhedrin, and the Torah made those calculations. And the Chinukh tells you: the Torah itself tells you that the value of do not deviate overrides other values. All right? Now what is basically his claim? When we follow the majority—that’s what he says—the Talmud in Chullin 11 says that we follow the majority, follow the majority, and therefore in the Sanhedrin we follow the majority. What emerges from the Chinukh, basically, is that the majority in the Sanhedrin, or in religious courts generally, is meant to get as close as possible to the truth. It is not a guarantee; they won’t always hit the truth. That’s what he says there—even if, Heaven forbid, the majority does not hit the truth, and that can happen—but still it is clear that in most cases the majority of sages gets to the truth more than the minority. And therefore if I need to establish some sweeping principle, a sweeping mechanism, I say: the majority decides. And I take into account the possibility that sometimes that will lead me to do something mistaken. Fine, that’s life. Let’s try for a moment to think about following the majority in a religious court in terms of following the majority in Jewish law generally, because that will sharpen things for us a bit. The Talmud in Chullin—which he himself mentioned—the Talmud in Chullin 10 or 11, let me find it in a second. Yes, the Talmud on 11a—what does it say? The Talmud there discusses all kinds of decision rules: following the majority, presumptions, all sorts of things like that. All of Shaarei Yosher—rather, let us derive the other one. So the Talmud there on page 11 gets to the law of majority. “From where is this matter that the rabbis said: go after the majority?” Yes, from where did the sages learn that one must follow the majority? From where do we know it? Because it is written: follow the majority. The verse says follow the majority, so that means we follow the majority. The Talmud says: “A majority present before us, such as nine stores and the Sanhedrin, is not what we are asking about. What we are asking about is a majority not present before us, such as a minor boy and a minor girl—where do we know it from?” What does that mean? Jewish law divides the law of majority into two categories. There is a majority present before us and a majority not present before us. A majority present before us is like nine stores. What does that mean? There are ten stores in town, of which nine sell kosher meat and one sells non-kosher meat. I found a piece of meat in the street. May I eat it? In principle, yes. Why? Because most of the stores in town are kosher, and go after the majority—we follow the majority. That is called a majority present before us, a majority that is before us. There are ten stores before us; we know that nine are kosher and one is not kosher, and we assign this piece of meat to the majority that is before us. What is a majority not present before us? Yes, a majority not present before us is basically a claim about how the world usually functions. For example, most women give birth at nine months. Yes, the sages thought pregnancies ended at one of two times, either after seven months or after nine months. The question is whether the woman gives birth at seven or at nine. Now in most cases a woman gives birth at nine, but there is a minority that gives birth at seven. Now a child was born. Was he born at nine or at seven? In most cases—
[Speaker B] we don’t—
[Rabbi Michael Abraham] know, but most children are born at nine. So I go after the majority and say: if I don’t know, I assume that this child too was born at nine. That majority is a majority not present before us. Why? Because here we are talking about some principle that is not based on information before us like the ten stores—where we know there are nine kosher and one not kosher, so everything is before us. Here, no. Here we have some information about how the world works, and that information tells us that women generally give birth at nine, so apparently this woman too gave birth at nine. Okay? That is called a majority not present before us. The Talmud says that when we came to look for the source of the law of following the majority, it brings the verse follow the majority, as majority—follow the majority. The Talmud asks: but follow the majority teaches me only a majority present before us, which is like the majority of the ten stores. But what about a majority not present before us? And then an entire discussion begins about where we learn a majority not present before us. All right? In the end, by the way, the Talmud does not find a source. The Talmud does not find a source, and it also doesn’t offer a logical argument, it doesn’t say anything. It found nothing, and that’s it, and then it is silent. Rashi senses the issue here—that’s on a later page—and Rashi says that either this must be a law given to Moses at Sinai, even though the Talmud says nothing, or that a majority not present before us is learned from a majority present before us. That’s very strange, because if one is learned from the other, then what was the whole discussion for? After all, the whole discussion begins with: we learned a majority present before us—where do I know a majority not present before us from? They try all sorts of sources, reject them all, found nothing. No, no—so it’s learned from a majority present before us.
[Speaker E] If—
[Rabbi Michael Abraham] it can be learned from a majority present before us, then what was the whole discussion about?
[Speaker E] To Hillelo he said to you, look, listen to what common practice says. What does common practice say? Fine, okay, this…
[Rabbi Michael Abraham] We don’t follow common practice if it has no source. What? Every presumption is a majority that is not before us. Which presumption?
[Speaker B] Presumption—the very whole issue of presumption.
[Rabbi Michael Abraham] A presumption is not exactly a majority. The question of what the difference is between them is a question I’m not going into right now. A presumption is not exactly a majority. The Talmud’s claim is that the majority in a religious court, since regarding it the verse says “follow the majority,” the majority in a religious court is classified as a majority that is before us. It’s similar to the majority of the stores. Right? Because it says “follow the majority”; from there we derive the law of majority, and on that the Talmud asks: wait, from there you can derive only a majority that is before us, like the majority of the stores. Why? Because the Talmud assumes that the majority in a religious court, about which the verse says “follow the majority,” is similar to the majority of the stores—it’s a majority that is before us, and not a majority that is not before us. Okay? But that’s not correct. Let’s go back to the Chinukh. The Chinukh brought this Talmudic passage, right? As the source for following the majority. What does the Chinukh explain? Why do we, in a religious court, follow the majority?
[Speaker B] In most cases the majority is right, no?
[Rabbi Michael Abraham] It’s the best mechanism we have for getting close to the truth with the optimal chance. That’s a majority that is not before us; it’s not a majority that is before us. When we classify it as a majority that is before us, usually someone who follows the plain meaning of the words says: a religious court is a majority that is before us—look, the people are right here in front of us, there are three judges here, two say this, one says that, the majority is before us just like the stores. That’s not true. Because the majority we follow is not the majority of the judges. The majority we follow is really this: we look at all the cases where there were disagreements among judges. Okay? And in every place there is a majority and a minority. And the claim is that in most of those cases, yes, the majority was right. The majority is right. Now, that’s a majority that is not before us; it’s not a majority that is before us. True, we’re talking about a majority of judges, but the majority that decides the question here is not the majority of the judges; rather, it’s the majority of the cases in which disagreements appeared. And in them—say there were a thousand such cases—if in 900 of those cases the majority was right, then we have a majority that the majority is right. The majority that appears—the majority of the judges—that’s the question. It’s not the rule of decision. Is the majority right or the minority? The ruling is decided by the majority, but not the majority of judges; rather the majority of the cases in which there were disagreements among panels. That is the majority that decides the question. The majority of the judges is the question: do we follow the majority of judges or the minority? But the majority that decides, that we follow, is the majority of the cases in which there were disagreements. Okay? So that’s a majority that is not before us. And that’s what Rabbi Shimon Shkop asks on the Chinukh. He says: how can the Talmud say, according to the Chinukh we just saw, that the majority in a religious court is accepted because that is our way of reaching the truth, because in most cases the majority was right? If so, that doesn’t fit with the Talmud in Hullin, which the Chinukh himself brings as the source. Because the Talmud in Hullin treats it as a majority that is before us. But according to the Chinukh’s explanation, it’s a majority that is not before us. Okay? So what, then? Look, I think that if you dig a little into Rabbi Shimon Shkop, this is what stands behind what he says, though he formulates it somewhat imprecisely. But it seems to me that this is the principle he means, and it’s a very interesting principle. There’s a great deal of confusion in understanding the concepts of a majority that is before us and a majority that is not before us. There are all kinds of explanations, this one and that one. I’ll tell you what I think the correct explanation is. A majority that is not before us is a majority that basically deals with the question of how the world behaves. Say, whether a woman gives birth at nine months or at seven months. If an ordinary woman is barren by nature—most women are not barren by nature; they can give birth, okay? And so on. Most acts of intercourse are attributed to the husband—various ways the world tends to behave. Okay? That’s a majority that is not before us. How do we arrive at that determination? A statistical determination, right—induction. What does that mean? We take some sample—this is how science works, right? We take some sample, assuming that the sample is representative, and we see whether in that sample most women give birth at nine months, or most are not barren by nature, or whatever it is we’re checking. So if that sample is representative, we assume that this is the situation in the whole world. Right—therefore we assume that this is the situation in the whole world, correct? We generalize from a sample, on the basis of a sample. And the assumption is, of course, that the sample is representative. Because if you take a biased sample, then it’s not valid to infer a general conclusion from it. Now, what happens in the case of the majority of the stores? In the majority of the stores there is no natural law in the world that most stores in the world are kosher; the opposite. Usually most stores in the world are not kosher, right? Check the whole world and do statistics among the stores—most stores sell non-kosher meat. Most of the world consumes non-kosher meat. So what happens in this city? In this city we have concrete information—exactly. We have information that is before us; that is a majority that is before us. This information is before us. And the majority we arrive at—that there are nine kosher stores and one non-kosher one—is not the result of a generalization from a sample. Rather, it is the result of direct information. I simply know that this is the case. Once I know that here there is a certain distribution—nine to one, say, of kosher stores—then the majority in the whole world, that most stores in the world are not kosher, is not relevant, not interesting, because in this particular case I already know the distribution. I don’t need to infer conclusions from what happens in the whole world. I have direct information. That is called a majority that is before us. A majority that is before us means a majority that is not created by generalization from a sample, but rather is a majority resulting from direct information present before us—before us, literally. It is before us. That is a majority that is before us. A majority that is not before us is a majority that basically speaks about the whole world. Now, the whole world is never before us. Therefore, by definition, a majority that is not before us is always the result of generalization—scientific induction or generalization from a sample. Okay, that’s the point. There really is an interesting question… which of the two kinds of majority is preferable? Which one is stronger?
[Speaker E] The one that is before us, obviously.
[Rabbi Michael Abraham] In the Talmud in Hullin it sounds like you’re right. Why? How do I know? Because the Talmud in Hullin says that from “follow the majority” we derive a majority that is before us. Where do we know a majority that is not before us from? Do you know from where? By an a fortiori argument. No! Because a majority that is not before us is weaker than a majority that is before us, right? Because otherwise, if I have a source for a majority that is before us, then certainly I can derive from it also a majority that is not before us—because a majority that is not before us is stronger? No. You see that after I have a source for a majority that is before us, the question of a majority that is not before us is still considered an open question. Meaning that a majority that is not before us is weaker—that’s what it seems. But Rav Shimon… no, no, I’m not getting into the question right now of how large the majority is. I’m not getting into the question of how large the majority is. Assuming it’s the same in the case of before us and not before us, the question is which of them is stronger. Okay?
[Speaker B] Imagine an election poll versus the actual election. Think of the poll as not before us and the election as before us.
[Rabbi Michael Abraham] Yes, but an election is not a majority—not one that is before us and not one that is not before us. An election? An election is not a majority at all. An election has nothing to do with either a majority that is before us or a majority that is not before us. There is no question there of following the majority. In the case of a majority that is before us and a majority that is not before us, I have a question before me about what to do, and I do it according to the majority. In an election, that is the result. I don’t have to decide something in light of the majority that emerged; the majority produced the result. There’s no “before us” here. It’s neither before us nor not before us; it simply doesn’t belong at all to the category of following the majority.
[Speaker E] It is before us, because every single person expressed his will.
[Rabbi Michael Abraham] No, no, it’s not before us and not not before us. Because it’s not a question that I… you know what, it’s the famous joke. Like all good stories, they tell it about Rabbi Yehonatan Eybeschutz: a priest came to him and said, why don’t you follow us? We are the majority! “Follow the majority”—the Christians. Right? So he said to him: I follow the majority when I’m in doubt. If I’m not in doubt, I don’t follow the majority. What do you mean? If I find a piece of meat in the market with a top-level kosher seal, okay? Most stores in the city are non-kosher. Am I allowed to eat it? Why? We follow the majority; most stores are non-kosher. But it has a seal! Because I have no doubt. Right? This piece of meat is not in doubt. When I have a piece of meat and I don’t know what it is, then I go to statistics; if I know what it is, I don’t need statistics—I know the answer. Right? Meaning, there are situations that are not connected at all to following the majority, in places where the majority does not decide a question before me. In elections, the result of the election is a defined result; it doesn’t create some majority that now helps me decide some other question about what to do. The election already decided it itself. If I had another question, and I asked myself what the correct opinion is, say—okay?—and we held a vote, and I assumed that most people hold the correct opinion, that would be a case of following the majority. Whether it’s before us or not before us could be discussed. But in an election it’s not that I have a question and the election determines some majority that will decide what I do about that question. No—the election is the answer. There is no question here that I am following the majority on. The question was what the majority is, and here is the answer: the majority says such-and-such.
[Speaker E] Okay? But in an election you always have to accept that this is a certain answer, right or left, it’s not…
[Rabbi Michael Abraham] That’s the result of the election, but not that I decide some other question on the basis of the election. I’m asking what the result of the election is. It’s like asking: when I ask the question, how many women in the world give birth at nine months? Okay? Is that a majority that is before us or not before us? Not before us. It’s neither this nor that—it’s determining the majority itself. A majority that is before us and a majority that is not before us means: I have before me a woman who gave birth, and I ask myself: did she give birth at nine months or at seven? After all, there is a majority that is not before us, that most women give birth at nine months, so the woman before me probably belongs to the majority. That is a question of following the majority. But to establish the very fact that most women give birth at nine months—that is neither a majority that is before us nor one that is not before us; it’s simply establishing a fact.
[Speaker E] And that’s a presumption. What you’re saying is a presumption.
[Rabbi Michael Abraham] A presumption—the majority doesn’t matter to me…
[Speaker E] To me, but it’s not a matter of majority.
[Rabbi Michael Abraham] The presumption that women—most women give birth at nine months. It is a fact that most women give birth at nine months; that is not a presumption. When I want to determine whether most women give birth at nine months, that is neither a majority that is before us nor a majority that is not before us; it’s not a question of majority at all. I want to determine a fact, so I check and ask what the fact is. That’s it. Following the majority is always a question: a certain woman comes before me—did she give birth at nine months or at seven? After all, there is a fact that most women in the world give birth at nine months. Since there is a law of following the majority, then with regard to this particular woman about whom I asked the question—I say she probably also gave birth at nine months. That is called following the majority in the case of a majority that is not before us. But to establish the fact that most women in the world give birth at nine months—that is not a question of following the majority; it is establishing the majority itself. It is neither a majority that is before us nor a majority that is not before us. Okay, okay, so I’ll return here, I’ll return to us. So basically I asked: which is stronger? So from the passage it comes out that a majority that is before us is stronger. And the intuition for that is understandable. All in all, here you have some sort of generalization from a sample. Say you want to determine that most women give birth at nine months. You chose a sample, and you generalize on the basis of the sample. Who says the sample is representative? Maybe not. Here there is some speculation that you can never really know, right? Therefore this is basically a majority that is based on a very non-simple assumption. By the way, today there are sampling techniques that help us deal with this much better. We already have statistical and factual knowledge that helps various pollsters determine how to make a sample that will be representative. And by the way, their success is phenomenal—despite the bad name they get, phenomenal. You take five hundred people and tell me the election result with an error margin of three percent, I don’t know, more or less. That’s phenomenal. You’re talking about a result of, I don’t know, five million voters on the basis of a sample of five hundred. For us, because our political situation is so evenly balanced, an error of one percent can change the whole election, because the question is whether it’s 61–59 or 59–61. But when you examine the level of precision of the pollsters’ forecasts—the precision is phenomenal. They always say this is the pollsters’ Yom Kippur—nonsense. The pollsters succeed time after time. There are no misses. They succeed amazingly. There was, I think, one mistake once regarding Yesh Atid, when they predicted thirteen instead of nineteen—some of the predictions there, that’s a significant error. Nothing. Other than that there were no mistakes at all. The precision is amazing. Anyway, for our purposes, the question… Bennett always loses. He became prime minister after he lost. Until he gained. Thanks—that’s like in soccer: they play ninety minutes until Germany wins, so it’s the same… The claim, in the end, is that in a majority that is not before us there is a certain speculative dimension, and therefore it is very reasonable to assume that it is weaker than a majority that is before us. That is also what comes out of the Talmud. But Rabbi Shimon Shkop shows there that in Maimonides the picture is the opposite. Of course, if that’s what comes out of the Talmud, then in Maimonides it will be the opposite, right.
[Speaker C] In a majority that is before us there are additional assumptions too—meaning, there too there are, say in that case we assume that the meat came from one of the stores.
[Rabbi Michael Abraham] Okay, so let’s really go in that direction. When we talk about a majority that is before us, okay? Maimonides’ view is that a majority that is before us is weaker. A majority that is not before us is stronger. How he works that out with the Talmudic passage is not important right now. But a majority that is not before us is stronger, and therefore in capital cases, for example, they follow a majority that is not before us, but they do not follow a majority that is before us according to Maimonides. You…
[Speaker D] You don’t decide according to a majority of judges who rule to…
[Rabbi Michael Abraham] Yes, they do follow the majority—a majority of two. They follow the majority. Yes, yes, but that’s a majority in a religious court. That’s a majority in a religious court. But in evidentiary law, a majority that is not before us is effective, while a majority that is before us is not effective in capital cases according to Maimonides. So never mind, this is Rabbi Shimon Shkop in Gate 3; whoever wants can look there, he elaborates on this matter, and he argues that according to Maimonides one sees that a majority that is before us is specifically the weaker one and not the stronger one. Why? Really, like was noted here earlier, in a majority that is before us there are also non-simple assumptions. You find a piece of meat in the market, okay? And you say, fine, there are nine kosher stores and one non-kosher one. Now here the majority is solid—I know it as direct information, it’s not a generalization from a sample like most women give birth at nine months. Wonderful—the majority is completely solid. The only question is whether it is relevant to the piece of meat. I don’t know—maybe not much at all. Because you have to assume, for example, that the chance of a piece coming from each store is equal. You have to assume that the number of pieces of meat in all the stores is more or less similar, and there is a dispute among the halakhic decisors about what happens when one store is much, much larger—does that change the law or not? You have to assume that the chance that the piece would be lost from each of the stores is the same. Maybe there’s one store whose bags tear more easily. You took the meat in a bag—and how did the meat fall? After all, I found it in the street. How did it fall? Because a bag tore. Or maybe there was one store whose bags were less good; they tear more easily. So how can you know at all that even the distribution is ninety-ten? That part is clear—you know that by direct information. It’s not a generalization, not a sample, not representative, nothing of the kind. That’s certain, no problem at all. The big problem is what that distribution says about the piece of meat. That’s the question. And here there are very far-reaching assumptions. Very far-reaching assumptions. Look, for example—I’ll give you an example. Say you have a fair coin. Okay? A fair coin means you know that there is a fifty-percent chance it will land on heads or on tails. And you have to bet whether it will land on heads or on tails. You’ll bet on the assumption that it’s fifty percent, right?
[Speaker C] That’s a new question now.
[Rabbi Michael Abraham] No—you can be right in fifty percent of the cases. Now when they bring before you a coin about which you know nothing. Nothing. Not that it’s fair, not—nothing at all. By the way, it was published not long ago that no coin is really fair. When they checked all the coins they examined—dozens and dozens of coins—it was published that there is a slight bias to one of the sides. Never mind, but what is bias?
[Speaker E] It’s not fifty-fifty.
[Rabbi Michael Abraham] It’s not fifty-fifty. Toss coins—it won’t come out fifty-fifty on heads and tails. What? It’s completely deterministic; it’s not statistics at all. Okay, never mind, let’s leave that. Never mind. Now I’m saying: suppose I have a coin about which I know nothing. Okay? Nothing at all. I don’t know if it’s fair or not. They tell me: you have to bet. What do you bet on, heads or tails? Still fifty percent, right? But this fifty percent that you assume here is because I have nothing else. For reasons of symmetry I’ll bet on fifty percent. Okay? But you can’t say that this is the result of statistics—that’s nonsense. The fifty percent here is the result of lack of information, not of information. Right? With the fair coin, true, I don’t know what the result will be, but the distribution is information I have in hand. I know that the distribution is fifty-fifty. Okay? In contrast, with a coin about which I know nothing, the distribution itself is the result of lack of information. It’s not really fifty-fifty; I don’t know what the distribution is there. For reasons of symmetry I assume fifty-fifty. I have to bet; I have nothing else. That’s what I’ll do. Exactly. And that is an a priori result, not a result of information. Right? Meaning that basically we have two kinds of use of statistics—so to speak, statistics. One use is using statistics out of knowledge. A second use is using statistics out of lack of knowledge.
[Speaker E] But here too, if you see once that it falls on heads, once on tails, and you see too much accumulation of those things, you learn from that.
[Rabbi Michael Abraham] Fine, if you have the ability to perform trials and learn, sure. I’m saying you don’t have that ability. You have a coin; you don’t know what’s with it. Now bet on what it will fall on. Fine. So there is—it’s like, for example, there is a difference between the doubt of one piece and the doubt of one piece from among two pieces. I have one piece and I don’t know whether it is forbidden fat or permitted fat. Right? That’s a doubt of one piece. I have the doubt of one piece from among two pieces—what is that? I have two pieces; I know that one is forbidden fat and one is permitted fat. I just don’t know which is which. In both cases I assume it’s fifty percent—it’s a doubt. But the doubt of one piece from among two pieces is a doubt for which one brings a provisional guilt-offering—a Torah-level doubt. For the doubt of one piece, one does not bring a provisional guilt-offering. There is a difference between those two doubts. Why? Because with one piece from among two pieces, there is forbidden fat right there before your eyes in the situation. You know there is a fifty-percent chance that you are eating forbidden fat here. And maybe not. With one piece standing before you, it may be that there is no forbidden fat here and it never was forbidden fat; you know nothing about it. Since you don’t know, it could be forbidden fat and it could be permitted fat. But you can’t really say that statistically there is a fifty-percent chance that it is forbidden fat. In the first case you can say that statistically there was a fifty-percent chance that you ate forbidden fat. In this case too, I’ll bet on fifty percent because of lack of information. But that’s all—just because it’s lack of information. I return to a majority that is before us. In the majority of the stores, I know that ninety percent of the stores are kosher. That I know by personal information—direct knowledge. No generalization, no sample, nothing. But the question is what does that say about the meat? Nothing. I know nothing about the distribution of loss of pieces of meat from the stores. I know the distribution of the stores. But what does that say about the meat? How do I know the patterns of separation, let’s call it, of the meat from the stores? I have no information about that. And here I decide that it’s ninety-ten out of lack of information, not because of information. Therefore according to Maimonides it is weaker. I’ll give you another indication. You know, this is what I once called the David Levy effect. David Levy. What do I mean? Once in the Likud Central Committee, he complained that his faction—say it had thirty percent, I don’t remember anymore, and this was the claim. Say it was something like thirty percent. He says, look, I have thirty percent support in the central committee and zero percent of the executive positions. Our faction doesn’t get executive positions. You want—we’re a democracy, we vote, and democracy decides. The majority decides. He says, fools of the world, that’s exactly the problem. For each of the positions they hold a vote, and suppose it’s fifty-one against forty-nine. Fifty-one percent will decide on one hundred percent of the positions going to their party. Right? On every position we hold a vote, and in every vote there is a majority of fifty-one against forty-nine. So it comes out that if you have a majority of an epsilon above fifty percent, you get one hundred percent of the positions. The method of…
[Speaker C] The election system in the United States.
[Rabbi Michael Abraham] What? Yes, okay.
[Speaker C] David Levy once said that he wanted the minimum wage to be above the average or something like that.
[Rabbi Michael Abraham] Yes, there are lots of jokes about him, I’m not… some of them are just nasty; he was an intelligent man in my opinion. Is he still alive?
[Speaker B] Very dear—there are still improvements… Is he alive?
[Rabbi Michael Abraham] I thought he passed away, no? No? Okay, sorry—reports of his death were premature, in short. Anyway, the claim—what does it basically mean? In a majority that is not before us, think of it as another way of looking at it: in a majority that is not before us, every woman who comes before me, I will say she gave birth at nine months. Even though there are women who give birth at seven months, it’s not a defined pool of women. Every woman who comes before me—most women give birth at nine months—I will declare that she gave birth at nine months. But in a majority that is before us, suppose there are ten pieces of meat and I know that nine of them are kosher. According to most of the early authorities already—the Rashba and also Torat HaBayit, the Ra’ah—you may not eat the last piece, and even the last two pieces. Because you know there is a non-kosher piece here. Each one that comes before you, as long as there is a majority, you can rely on the majority; eat the piece on the assumption that it is from the majority. When only one or two remain, who knows—maybe that’s the forbidden one. Here there is no longer a majority. Among those that remain, you don’t know, and therefore you may not eat it. You cannot ignore the fact that there is a minority standing right before your eyes. In that sense, a majority that is not before us is stronger than a majority that is before us. That’s another way to explain it.
[Speaker E] So what does that mean? If there are three pieces of meat, one non-kosher and two kosher, can you eat all three together?
[Rabbi Michael Abraham] I said, there are such views, and there are many views among the medieval authorities (Rishonim) that say no. You have to leave one or two—whether rabbinically or by Torah law, I’m not getting into all the… There are many distinctions and disputes about it. But for our purposes, what I only want to show is that there is also a weakness in a majority that is before us, contrary to what you assumed earlier, that a majority that is before us is obviously better because it is before us. That’s true with respect to the question of the distribution. I know the distribution here for certain, unlike a generalization from a sample, where who knows if the sample was representative. But the question is: what does that distribution imply about the piece of meat? Following the majority—not the majority itself, but following the majority—a majority that is not before us can definitely be said to be stronger. Okay? A majority that is not before us has to be understood as a majority of how the world behaves. There is something in a woman’s physiology that causes her to give birth at nine months and not seven. Therefore there is an active reason, for every woman who comes before me, to assume that she gave birth at nine months, because it is likely that her body is built in the way women’s physiology is built. In stores there is nothing in the pieces of meat that causes them to be kosher. I just happen to have some information about the distribution of the stores. There is nothing here—it’s a weak majority when you look at it that way. What does this mean for our purposes? Let’s go back for a moment. So we already understand what a majority that is before us is and what a majority that is not before us is. Let’s try to return to the religious court. This majority that we follow—the majority of judges—Rabbi Shimon Shkop asked about the Chinukh: after all, it’s a majority that is not before us. Because basically we do not follow the majority of the judges; we follow the majority of the panels that there have been from time immemorial in which there were disagreements, such that in most cases the majority was right. And therefore I assume that here too the majority was right. Okay? How do you know? That’s an assumption.
[Speaker C] How…
[Rabbi Michael Abraham] How do you know that in most cases the majority was really right? There’s no way…
[Speaker C] To prove it.
[Rabbi Michael Abraham] There is no way at all to know whether a religious court ruling that was accepted is correct or not. All you have are the proofs, and the proofs also stood before the judges.
[Speaker C] More in terms of reasoning.
[Rabbi Michael Abraham] You have no feedback at all, yes, you have no independent feedback that could check it. Say I wanted to make a generalization. After all, if this were a majority that is not before us, then basically what it would have to be is a majority that is the result of generalization from a sample, right? I would have to take a sample of cases in which there were disagreements of majority and minority, and they ruled like the majority, and check in those cases how many times the majority was right. Suppose I discovered that in 90% of those cases the majority was right; then I would generalize and say: in most cases the majority is right. Correct? That is how I should operate. Now try to think how one would do that, and you’ll see that it’s impossible. It’s impossible to do it. Every case that comes before me—now let’s take the sample. I selected ten cases from the past where there were disagreements. Now I want to check in those ten what the distribution was: when was the majority right and when was the majority not right? I need to examine each such case to see whether the majority was right or not. How am I going to check? How am I going to check? I can look at the proofs, just as the judges looked at the proofs. I have no independent source that will give me feedback. It’s not like with women—I can check how long she was pregnant. Right? So I have no independent way to check this thing. By the way, there was one very well-known exception to this in the United States: once DNA was accepted as valid evidence, as admissible evidence, they started checking various people who had been convicted of murder, say, or other such offenses, and suddenly they discovered that there was a very significant percentage—I don’t remember the exact figures—but a very significant percentage where the DNA evidence said that the conviction had been mistaken. That raises quite a serious question mark about convictions by courts, and about the skill of courts, and what that skill means. But usually we don’t have the way. The evidence was also before the judges, and they ruled as they ruled; I have no independent way to check whether they were right or not right. So how do I reach the conclusion that the majority is usually right? This cannot be a generalization from a sample, right? It’s an a priori reasoning, right? I assume—if you like, it’s a statistical calculation. Suppose the… Rabbi Shabtai once asked me this. Suppose that a judge’s skill is measured by p. Okay? In what percentage of cases he is right. p between zero and one. Fine? So a judge who is at one-half is a judge worth nothing—you may as well toss a coin. Right? If he is right in half the cases. But a judge who is right in 60% of the cases is already better than random, right? A judge who is right in 80% of the cases is already not a bad judge. A judge who is right in 95% of the cases is already a good judge. So let’s represent it by a number p that determines the quality of the judge. Okay? So suppose we have a judge of quality p. Now we have three judges, two of whom support one direction against one. The question is what is good.
[Speaker E] The question is whether that’s good. Good means above half. What does good mean? That his decision is not correct?
[Rabbi Michael Abraham] A judge who is right—that’s a good judge. So now we have two judges against one, and suppose that all of them have quality p, just for simplicity. Okay? Three judges of equal quality, as the Chinukh says, so we follow the majority, right? Why would I follow the majority? Basically it’s a statistical calculation. He once asked me: after all, if one judge has quality p, then there is a chance of 1-p that he is mistaken, right? And a chance of p that he is correct. What is the chance that two judges are correct? p squared. So if a judge’s quality is 70%, then p squared is 0.49. Meaning the chance that two are right is smaller than the chance that one is right. So why do we follow the majority? The chance that one is wrong is lower than that…
[Speaker B] That is of course a mistake.
[Rabbi Michael Abraham] Do Bayes’ formula and you’ll see that it’s a mistake. But for our purposes, what this basically means—what this basically means—is that following the majority in a religious court is the result of an a priori statistical calculation, not the result of generalization from a sample. If you do the calculation correctly, you will discover that the majority is more likely to be right than the minority. Not with p squared—it doesn’t work that way. It’s p to the third… What?
[Speaker C] If all three are right, or two are right, versus one or zero…
[Rabbi Michael Abraham] Yes, so you need to do the full probability formula; you need… it’s p squared times 1-p, as against p times 1-p squared, twice. Okay, never mind. In short, the calculation… What? No, if all are right then there is no question. Our whole discussion is always when there are two against one. We don’t take into account the possibility that all three are right. All three can’t be right because we are talking only about a case where there is a split of opinions, two against one. So there are two possibilities: either the one is right or the two are right. Anyway, for our purposes,
[Speaker B] What…
[Rabbi Michael Abraham] What basically happens is that when we decide that the majority is right, it is the result of an a priori statistical calculation and not the result of generalization from a sample. And therefore it is a majority that is before us. Simple. It’s not different from a generalization. It’s not statistical at all; it’s not statistical in the sense of being based on observed frequencies. It’s not statistical. Okay? It’s a probabilistic calculation, fine, but it’s not a statistical calculation. It is not the result of a sample from which I generalize—a representative sample—and then say, in most cases, the majority is right.
[Speaker B] I…
[Rabbi Michael Abraham] I’m not, in fact, going to the majority of panels or the majority of cases and checking whether in most of those cases the majority was right or not. That simply isn’t true. It can’t be done.
[Speaker B] It’s only a way of representing the idea.
[Rabbi Michael Abraham] What I do is go to this particular panel. On the assumption that each judge has quality p, do the calculation and you’ll find that the two are right with higher probability than the one. That’s all. I’m not going to any majority and not to panels and nothing. And therefore this is a majority that is before us, and our Chinukh is right. The difficulty is not a difficulty.
[Speaker B] Basically every human behavior is a majority, why not? Say, from physics.
[Rabbi Michael Abraham] That usually, when a person sees a tiger, he is afraid. What’s the problem with checking that? Check how many people, when they see tigers, are afraid or not. What’s the problem? Is there some human behavior you can’t check? Of course you can—in psychology they do statistics. You know, I once heard Kahneman—Daniel Kahneman—in his book he wrote once: people are very afraid of crocodiles. You know that far more people have died from mosquitoes than from crocodiles. From malaria. Where is his mistake?
[Speaker C] The case…
[Speaker B] Not the fear…
[Rabbi Michael Abraham] No, the fear is fine; I want to fear what is more dangerous—that’s actually correct. The cases? Obviously. Among the people who were in an area where crocodiles threatened them, more people there died than among people who were in an area of mosquitoes. Rather what happened? Simply, almost none of the people are in an area of crocodiles. So what’s the big deal? Meaning, in the cases where the crocodile threatens you, it is much more dangerous than when a mosquito threatens you. So it’s just a statistical error. Anyway, never mind, let’s not go down that route with the…
[Speaker E] Another deadly mirror image: in flights there are many more than in traffic accidents. Why? Because there are far fewer casualties in flights than casualties in traffic accidents.
[Rabbi Michael Abraham] The question is how many…
[Speaker E] Pilots there are versus how many passengers on the road?
[Rabbi Michael Abraham] The question is what the size of the overall group is. You can’t check in absolute terms how many were injured in flights versus how many were injured in traffic accidents. You have to check how many out of those who flew were injured, and how many out of those who drive were injured.
[Speaker E] In the accumulated total of a year, you’ll know exactly what happens.
[Rabbi Michael Abraham] No problem, you’ll know exactly—check it. Because very often they quote the number: look how many people died in plane accidents versus how many died in car accidents. That says nothing. The question is what percentage of those who flew died, versus what percentage of those who drive died. That’s the question. Fine, not important. I’m only saying the question has to be formulated more precisely. Okay, so let’s leave these anecdotes. For our purposes, what does this basically mean? That the majority in a religious court really is a majority that is before us. It is not the result of generalization from a sample. It is the result of an assumption. And our assumption is that the majority is right, just as our assumption is that this piece of meat came from the majority stores and not from the minority stores. That is not the result of generalization from a sample; it is the result of an assumption, and therefore it is a majority that is before us. That is the reasoning for why we basically follow the majority. We follow the majority because usually the majority is right. But this itself is a consideration that must be taken with a grain of salt. As the Chinukh says: first, because we are seeking the truth, right? So first, that is only when the disputants are more or less equal in level. But if there are very great sages on one side and ignoramuses like those who left Egypt on the other, that doesn’t interest me. Second—and this is written by several later authorities (Acharonim), the Shakh and afterward the Hazon Ish and others, in Hoshen Mishpat, section 25—what happens if, say, there is a dispute among the halakhic decisors, not in a religious court. In general, in a certain topic / passage there is a dispute among the halakhic decisors—do we need to follow the majority? So the Rema in the Shulchan Arukh writes that yes.