Disagreement and Truth – Lesson 5 – Part B

[Speaker A] Said

[Rabbi Michael Abraham] The angel, according to what seems to him.

[Speaker C] Yes, but now someone—

[Rabbi Michael Abraham] —who acts according to what the trackers say: I went with Dad, he went with Mom, I went with the gang. Okay, anyway, back to our topic. The claim against following the majority among most halakhic decisors is that the decisors generally don’t sit in one forum and exchange views and arguments. Unlike judges in a religious court, where each one hears the arguments of the other judge—Maimonides even has very detailed procedures for exactly how this is done, at least in capital cases, exactly how it’s done, from the least senior to the most senior, and they hold one vote and then another vote and all kinds of things like that. Among halakhic decisors, a large number of them don’t know the arguments of the dissenting decisors. Some do, but there isn’t some kind of deliberation where they exchange arguments with one another and formulate a position together. From the Chazon Ish, for example—and I think the Shakh says this too—it follows that because of that, there’s no reason to follow the majority. Following the majority is relevant in a place where everyone in the forum knows everyone else’s arguments, and this one decides this way and those decide another way, so I follow the majority. But in a place where we never exchanged opinions at all, who says that if they had heard my argument they wouldn’t all have been persuaded? They didn’t think about my argument. So what does it help me that they’re the majority? Why is that relevant?

[Speaker D] Here it turns out, we say, if they had gone to each other and there was a scholar who came out against the majority, and I—I don’t see. Then the Jewish law follows him.

[Rabbi Michael Abraham] Like the Talmud says, Jewish law follows the later authority—from Abaye and Rava onward, Jewish law follows the later authority. Why the later authority? The assumption is that there is decline of the generations, that’s true, but he heard everything his predecessors said, and they didn’t hear what he has to say. And there’s an advantage even to someone who, in himself, is less of a Torah scholar—but if he hears someone else’s positions and the other person doesn’t hear his position, he has an inherent advantage. And we’ll talk about this too in the dispute between Beit Shammai and Beit Hillel; there too you can see that this story worked that way. So if that’s the case, when we talk about the search for truth, about following the majority as an indicator of truth, there are various implications. The assumption is that if you want the majority to be a measure in the search for truth—here’s another practical difference. In a democratic majority, for example, they don’t need to listen to each other’s arguments and so on. It’s good if they listen, but it’s not a condition for following the majority, because in the end every person has the right to listen or not to listen, and the right to decide whatever he decides. Okay? By contrast, in a halakhic majority, where the search is for what the truth is, the majority has meaning only if everyone heard the arguments, weighed them, and in the end reached the conclusions they reached. If there’s a disagreement, we vote. Right, one more anecdote in this context. Once—do you know the Kinneret Covenant, yes? Some covenant of understanding between religious and secular people. There was such an initiative, with many participants from various directions, and once a group from the Hartman Institute that was dealing with this came to Yeruham, when I was teaching there in the yeshiva, and they asked me to speak with them. Yisrael Harel, I think, organized it. So I told them that I would never in my life sign such a covenant. Why wouldn’t I sign such a covenant? Because such a covenant is basically a license for ignoramuses. What do I mean? You, the secular person, want me to respect your position and you’ll respect mine, and we’ll all be respectable and dance the hora. But I don’t respect your position—what can I do? I think you’re wrong. If you want to hear my arguments, and I’ll hear your arguments, and each of us will seriously consider the arguments he hears from all sides, and in the end we’ll reach different conclusions from one another—I’ll sign every covenant in the world with you. I respect your position, and if you think differently, that’s perfectly fine, because that’s what you think; that’s your position. But if you want permission from me not to hear arguments, and for me to respect your position when you form it without hearing what I have to say, I’m not willing to respect that. Why should I respect that? Now that doesn’t mean he doesn’t have the right not to listen to me and to form a position however he likes—no problem at all. And at the ballot box, his finger is equal to my finger. Why? Because he has the right to make his decisions, and he has the right to influence what the state will look like exactly as much as I do. Here, it doesn’t depend on listening and it doesn’t depend on any other parameter. Everyone makes his decisions however he makes them. But regarding the question of who is right, or whom I respect, that’s an entirely different question. If you don’t hear my positions, why should I respect your conclusion? I think that if you had seriously heard my positions, that would not have been your conclusion. That’s what I think. So let’s test it and see. What?

[Speaker A] Didn’t listen seriously?

[Rabbi Michael Abraham] No, I’m saying—I think that if he had listened seriously, as I said, if he had listened seriously to my positions and arguments, I think there’s a good chance he would have been persuaded. That’s my opinion.

[Speaker C] Here the power of the media comes in, because it creates a different kind of bias of—

[Rabbi Michael Abraham] Fine, let’s not get into the practicalities. Look, there are many practical problems around this issue. But what I want to say is that if the goal is—this is meant to sharpen the distinction I made here—if the goal is to strive for truth, then there are conditions for following the majority. For example, that they sit together in one forum and exchange views, because otherwise the majority is not a measure of truth. But if we’re talking about a democratic majority, then there’s no such condition that they listen to one another. It’s good if they listen, just so the discussion will be more substantial. But if not—that is, if someone wants not to listen—that’s his right. He’s a citizen here, and he has the right to influence what happens here. So there’s no such condition. So here’s another implication of this distinction between a majority whose purpose is to attain the truth and a majority whose purpose is to express what the public wants. My recording stopped in the middle, my whole computer froze. And that—what? I’m on Wi-Fi. I’m on Wi-Fi. Yes. So the claim, in the end, is that if the majority is striving for truth, there are various conditions. So it’s important to us, when we talk about following the majority, that we’re talking about dispute and truth—that’s really the issue. In a place where the dispute is in the democratic context, then the dispute is not connected to questions of truth. Dispute is one thing and truth is another. In a democratic majority, the rule is generally that if the majority says something, it’s probably a mistake until proven otherwise. That is, that’s the assumption in democracy. In the context of a religious court, it’s something else. In the context of a religious court, the reasonable assumption is that the majority is more correct than the minority—more likely to be correct. We’re dealing with the relationship between dispute and truth, because for us the discussion is about what happens in Jewish law or in a religious court, where the real question is: what is the truth? And then the dispute is supposed to be decided by the majority if the majority really is a measure of truth. And for that, all kinds of conditions have to be met: that there be shared deliberation, that they be equal in wisdom, and so on—all the things we’ve spoken about until now. What you’re saying, I didn’t understand. Each judge states his opinion, and we go after the majority. By the way, just as an example—I’ll give you one. You know there’s what’s called the doctrinal paradox. Do you know the doctrinal paradox? Three judges are sitting over a dispute between two litigants about a contract. They signed a contract. Reuven claims that Shimon did not fulfill a clause in the contract. All right? And Shimon raises two claims: first, this contract doesn’t obligate me; this clause doesn’t exist in the contract; the contract doesn’t impose that obligation. And second, in any event I actually did it even though I wasn’t obligated—whatever, okay? Those are two claims. Now the judges have to sit and decide who’s right. In order to rule against Shimon, they need to decide two things: first, that the contract includes such a clause, and second, that he didn’t fulfill it. All right? Now the distribution of opinions among the three judges can be arranged in such a way—you can make a table—that on each of the separate questions there is a certain majority, but when you check the bottom line, the majority takes you in the opposite direction. Say one judge says that there is such a clause and Shimon did not fulfill it. So Shimon is guilty, all right? Another judge says Shimon indeed did not fulfill it, but there’s no such clause, so he’s innocent. A third judge says Shimon did fulfill it, but there’s no such clause, so he’s also innocent. So in practice he comes out innocent, right? But if you examine each of the questions separately, you discover that there is a majority for the claim that there is such a clause, and a majority for the claim that he did not fulfill that clause. Meaning, if you check the questions one by one, he comes out guilty. That’s what’s called the doctrinal paradox. Now here there’s a very interesting point, because if the purpose of the majority is to determine what the truth is, then there’s a lot of logic in proceeding question by question, because we want to know whether there is such a clause, and if there’s a majority of the judges against a minority, then the majority says there is such a clause. And if the question is whether he fulfilled it or didn’t fulfill it, again, we check among the judges and see: there’s a majority that he didn’t fulfill it. Therefore, if my goal is to get to the truth, there’s great logic in proceeding question by question and not by the bottom line. You can argue about it a bit, but not by the bottom line.

[Speaker A] They want to produce a bottom line?

[Rabbi Michael Abraham] No problem, let them produce one. But when I combine the views of the three judges, the decision of the religious court can be determined question by question and not by the bottom line. By the way, there was such a story—I saw such a thing with my own eyes, as it were, in a ruling of the High Court of Justice. There was exactly such a story. I analyzed it; it appears on the website in one of the columns. There really was a doctrinal paradox there. Someone abducted children—someone abducted children from his wife, no matter, there was a story there with two such decisions, and the distribution of opinions was exactly like that. There was a doctrinal paradox there. And it was obvious to everyone that we go by the bottom line—we follow the majority on the bottom line and not question by question. All right? And again, that says something about this being procedural rather than aimed at truth. Because if I needed to determine what the truth is, then ostensibly that’s what it means. You can argue about it a bit, but ostensibly that’s what it means. Okay, back to our topic. So if I sum up: in practice, the role of the majority in a religious court is to strive for truth. The striving for truth is done by way of a majority present before us, because this is really a matter of a priori reasoning and not generalization from a sample. True, generalization from a sample is also a way to reach the truth, but not in the context of a religious court. In any case, the majority in Jewish law is a majority whose purpose is to uncover the truth. And following the majority in order to uncover the truth has conditions: that there be a shared deliberation, that they be more or less equal in wisdom, and so on. Next time I’d like to get into the topics of “these and those” in Eruvin and in general, where we’ll see expressions of everything we’ve talked about until now.