Doubt and Probability—In Halakha, Thought, and Beyond—Lecture 12
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
🔗 Link to the original lecture
🔗 Link to the transcript on Sofer.AI
Table of Contents
- From doubt to probability and the rules of clarification
- Presumptions as reality-based evidence dependent on circumstances
- “It is better to dwell as two,” estimations, and criticism of rabbinical court conservatism
- Majority as a formal rule versus reality-based presumptions
- Majority in the community, Yitzhak Baer, and Haym Soloveitchik
- Why the halakhic decisors add reasoning alongside the verse
- Plato, democracy, and majority as not a measure of truth
- Representing the public will and the difficulty of measuring it
- Majority in a religious court according to Sefer HaChinukh and halakhic truth
- The distinction between democratic majority and halakhic majority and its implications for the community
- The status of “laws of the public” in the Shulchan Arukh and criticism of the authority of halakhic decisors
- Returning to halakhic majority and the three laws derived from “follow the majority”
- The topic in Chullin 11a: a majority present before us and a majority not present before us
Summary
General Overview
The series moves from dealing with situations of doubt and the rules for deciding them to the question of probability in Jewish law through rules of clarification, and especially through the laws of majority. The text distinguishes between rules of clarification, decision, and conduct, and emphasizes that certain presumptions, such as the presumption that a person does not repay before the due date and “it is better to dwell as two,” are non-formal assessments of reality that depend on circumstances and therefore can change when reality changes. In contrast, the law of majority is presented as a formal halakhic rule whose source is the verse “follow the majority,” and from there a distinction opens up between democratic majority in a community, which is not about clarifying truth, and halakhic majority, whose purpose is to clarify truth. Finally, three laws connected to “follow the majority” are presented, along with the topic in Chullin 11a, which distinguishes between a majority present before us and a majority not present before us.
From doubt to probability and the rules of clarification
The continuation of the series moves from describing doubt, the ways doubt arises, and different kinds of doubt, to the rules of decision and conduct in situations of doubt, and from there to rules of clarification, which bring the discussion closer to the question of probability in Jewish law. Three kinds of rules are described: a rule of clarification, which clarifies an uncertain reality or law; a rule of conduct, which instructs what to do without clarifying; and a rule of decision, which allows Jewish law to treat a doubt as though it has been resolved even though factually it has not been resolved. The move to rules of clarification is presented as the central point of connection between doubt and probability, with the typical link between probability in Jewish law presented through rules of majority.
Presumptions as reality-based evidence dependent on circumstances
The text presents presumptions such as the presumption that a person does not repay before the due date in Bava Batra as a mechanism of clarification based on an assessment of human nature rather than on a formal rule, a verse, or authority deriving from its very appearance in the Talmud. In a case of an oral claim without a document, the burden of proof is on the claimant, but within the repayment period the defendant is not believed when he says, “I repaid,” because of the presumption that a person does not repay before the due date, and the burden of proof shifts to him even though he is in possession. The text states that evidence of this kind is straightforward because it rests on experience and familiarity with reality, but it has no “holiness,” and so a change of circumstances changes the evidence—for example, when people repay early in order to avoid interest and the economic reality causes people to repay within the term.
“It is better to dwell as two,” estimations, and criticism of rabbinical court conservatism
“It is better to dwell as two” is presented as a presumption based on an assessment of reality—that a woman wants a relationship almost at any price—and the text argues that it is not formal and depends on the reality of its time. A case is brought of an annulled marriage in a panel where on the wedding night the husband fled abroad and lived with another woman, and the marriage was annulled by force of an estimation that she had not married on that basis, since she had not received any relationship at all. The text argues that nowadays the assumption that a woman wants a relationship at any cost is not true, and adds that in the case described the assumption would not apply even on its own terms, because no relationship ever existed. Sharp criticism is directed at the paralysis and conservatism of rabbinical judges who attribute a kind of “sacred” status to the presumption, and it is noted that some rely on a quotation attributed to Rabbi Soloveitchik that the presumption of “it is better to dwell as two” is “a presumption that came down from Sinai,” while the text states that the quotation was meant to reject proposals to annul marriages in cases of women chained to dead marriages, not as a factual statement about the nature of the presumption.
Majority as a formal rule versus reality-based presumptions
The text sets these reality-based presumptions up as specific pieces of evidence dependent on circumstances, in contrast to the law of majority, which is a formal halakhic rule with principles of application and a source in the verse “follow the majority.” The Talmud looks for a source for the law of majority because it is a formal rule and not merely an assessment of reality, and therefore it requires a source and a framework of application that does not disappear so easily when circumstances change. From here the goal of the continuation is presented: to deal with the topic of following the majority—its logic, source, uses, forms, and when it does and does not apply.
Majority in the community, Yitzhak Baer, and Haym Soloveitchik
An example is brought from Haym Soloveitchik’s book Responsa as a Historical Source, which deals with extracting historical information from responsa of halakhic decisors, and in that context a claim by Baer in the journal Zion is raised that the rule of deciding by majority in community ordinances is an influence of Roman law. The text states that Yitzhak Baer is right against Soloveitchik insofar as democratic majority decision in a community is not derived from “follow the majority” and is not a Jewish invention. A dispute among medieval authorities (Rishonim) is presented on the question whether majority determines matters in the community: Rabbenu Tam requires unanimity, whereas most of the medieval authorities—the Or Zarua, Rashba, Rosh, and others—rule that the majority decides and cite the verse “follow the majority,” and it is noted that the view that the majority decides was accepted in practice around the fifteenth century and entered the Shulchan Arukh.
Why the halakhic decisors add reasoning alongside the verse
The text emphasizes that even the Rosh and Rashba, although they cite “follow the majority,” also add the argument that it is impossible to function otherwise, because requiring unanimity gives the minority a veto power and prevents decisions from being made. From this the conclusion is drawn that the verse alone is not a sufficient source for majority decision in a community, because “follow the majority” belongs to a mechanism of decision aimed at legal truth in a religious court, whereas in a community we are dealing with a mechanism of social administration. The practical reasoning is needed in order to justify extending the idea of majority into a domain that is not about clarifying truth but is instead a condition for the existence of public life.
Plato, democracy, and majority as not a measure of truth
Plato’s position in favor of rule by philosophers rather than decision by the masses is presented, and the question is examined why democracy does not prefer a mechanism of wise experts in order to reach correct decisions. The text presents two common arguments against the Platonic proposal—the difficulty of defining who is wise in the political sphere and the impossibility of relying on the integrity of the wise—but says that these arguments are unnecessary because they mistakenly assume that the purpose of democracy is to reach truth. The text states that the purpose of democracy is to realize rights and reflect the will of the public, and therefore majority in democracy is not an instrument of truth but a mechanism of representation, and even if the public decides to hand power to experts, that would be because the majority wanted it, not because truth itself required it.
Representing the public will and the difficulty of measuring it
The text describes a field in mathematical economics that deals with the question of how to represent the public will when it is split into different desires, and brings examples showing that majority decision does not always represent the public will optimally, such as a case in which an issue is cardinal for the minority and marginal for the majority. It notes a mathematical theorem according to which, under several basic conditions, there is no single method that satisfies several criteria for representing the public will simultaneously. Despite the complexity, democracies adopt majority as a simple and intuitive mechanism, not as a guarantee of correctness but as an efficient way to decide what will count as the public will.
Majority in a religious court according to Sefer HaChinukh and halakhic truth
Sefer HaChinukh, commandment 78, is cited regarding the command to incline after the many, linking the rule to situations of dispute among sages in Torah law and to a private legal case between Reuven and Shimon. Sefer HaChinukh states that following the majority applies when the groups are equal or close in Torah wisdom, because it makes no sense for a larger group of ignoramuses, even as numerous as those who left Egypt, to outweigh a small group of sages. Sefer HaChinukh explains that when wisdom is evenly balanced, a greater number of opinions is closer to the truth than a minority, and therefore even if, in the listener’s view, the majority is not the truth, one must not depart from the path of the majority. The text adds that there are disputes among the halakhic decisors as to whether in practice one follows the majority of wisdom or the majority of persons, and notes that the accepted ruling is that the majority of persons decides, in order to avoid endless disputes over who is wiser.
The distinction between democratic majority and halakhic majority and its implications for the community
The text argues that majority in the community is not derived from “follow the majority,” because the verse deals with a tool for reaching truth in a religious court, whereas the community seeks a functional decision that represents the collective will so as to enable administration. Therefore Rabbenu Tam can reject majority decision in the community without ignoring the verse, and the medieval authorities who validate majority in the community do so by force of the need to function, not by direct derivation from the verse. The text argues that even if “follow the majority” is mentioned in the communal context, this is not an application of the halakhic law of majority but a social extension, and consequently the considerations of “majority of wisdom” from Sefer HaChinukh will not apply there; one goes instead after the majority of persons.
The status of “laws of the public” in the Shulchan Arukh and criticism of the authority of halakhic decisors
The text states that the rules for communal decision-making that entered the Shulchan Arukh are not halakhic rules, and that this is a “fatal error,” because these are questions of how to run a society and not matters of Torah law. It explains that historically the referral of such questions to halakhic decisors stemmed from the loss of sovereign institutions such as monarchy and the Sanhedrin and the concentration of powers in the halakhic sphere, similar to a situation in which the collapse of governmental authority causes powers to pass temporarily to others. The text argues that today, when there is a state and there are governmental institutions, there is no reason to ask halakhic decisors about such questions, and that requirements such as the agreement of an “important person” have no meaning in decisions that are not halakhic. It responds to the claim that Rabbenu Tam may reflect a deep moral conception by saying that Rabbenu Tam has no superior authority over others in a sphere that is not Jewish law, and suggests interpreting his position as a withdrawal from applying the laws of majority to the communal context, not necessarily as a positive demand for unanimous decision.
Returning to halakhic majority and the three laws derived from “follow the majority”
The text returns to the focus on halakhic majority learned from “follow the majority” and presents three laws connected to the verse. The first is following the majority, such as in the case of nine kosher shops and one non-kosher one and finding a piece of meat, where the piece is treated as kosher by virtue of the majority of shops and the rule that whatever separated is presumed to have separated from the majority. The second is nullification by majority in a mixture, such as a forbidden piece falling into a pot of permitted food, where the text notes that rabbinically one needs sixty, but on the conceptual level it is nullified by majority; and it is brought that Rabbi Chaim explains this through the conception that in a religious court of three, the ruling of two is not enough unless the third is nullified to the majority so that the ruling will count as coming from all three. The third is that the majority is like the whole, such as the law of impurity among the public regarding the Passover offering, where if most of the public is impure it is considered as though all are impure and they offer it on the first Passover, and it is brought that later authorities also connect this principle to “follow the majority” in a way that emphasizes that the majority is treated like the whole.
The topic in Chullin 11a: a majority present before us and a majority not present before us
The text opens the topic in Chullin 11a: “From where do the rabbis derive this matter, that one follows the majority? For it is written: ‘Follow the majority,'” and raises the Talmud’s question about the distinction between types of majority. It explains that a majority present before us is a majority standing before us, such as nine shops and the Sanhedrin, and therefore it can be learned from majority in a religious court because the judges are before us. It explains that a majority not present before us is a majority that is not a defined group before us but rather general knowledge about the world, and it brings the example of a minor boy and a minor girl in levirate marriage, who may live together until they grow up even though there is a concern that she may be barren or he may be incapable, because most men are not incapable and most women are not barren. The text concludes that the Talmud looks for a source for a majority not present before us, which is not simply learned from majority in a religious court, and declares that the continuation of the discussion will be postponed to next time.
Full Transcript
[Rabbi Michael Abraham] Up to now, the title of the series has been “Doubt and Probability.” Up to now I’ve been talking about doubt. From here on, we’ll start seeing the connection to probability, if there is one at all. Because at the stage after I described the situation of doubt—how we decide that there is doubt, how we map out the different ways in which we are in doubt, the different kinds of doubts—we moved on to discuss the rules of decision and conduct in situations of doubt. I said there are three main kinds of rules: a rule of clarification, a rule of decision, and a rule of conduct. A rule of clarification is a rule that helps us clarify the uncertain reality or the uncertain law. A rule of conduct is a rule that tells us what to do even though it does not clarify the doubt; it tells us what to do in the absence of the ability to clarify the doubt. And a rule of decision is a rule that tells us that on the halakhic level we can treat the doubt as if it has been decided, even though factually it has not really been decided, but Jewish law sees it as a doubt that has been resolved. Those are the three types.
I spoke a bit about the last two types in the last few sessions. I talked about rules of conduct and rules of decision. And now I want to get more into rules of clarification, and that moves us from the question of doubt to the question of probability, if at all. In other words, when we talk about probability in Jewish law, we usually connect it to the rules of majority. Before I get into matters of majority, there are certain reasonings that also function as rules of clarification. Those reasonings are really certain kinds of majority. One example of this is the presumption that a person does not repay before the due date. Right, the Talmud in Bava Batra: if Reuven sues Shimon to repay his debt, meaning he claims that he borrowed from him and should repay the debt, and Shimon says, “I repaid,” then in principle he is believed because the burden of proof is on the claimant. The claimant wants to extract money from him, so the burden of proof is on the claimant. We’re talking now about a case with no document, nothing at all, just oral claims.
But the Talmud says that if this litigation takes place within the term, meaning before the repayment date has arrived, then the defendant is not believed when he says, “I repaid,” because there is a presumption that a person does not repay before the due date. In other words, if he still had time to hold onto the money and he claims that he already repaid it now, he is not believed, because a person usually keeps the money as long as he can; he does not pay before the time when he is obligated to pay. So that is the presumption that a person does not repay before the due date, and therefore in such a case the defendant is not believed unless he brings proof. But the burden of proof is on him, not on the claimant, even though he is the one currently in possession.
What is the nature of this evidence, this presumption that a person does not repay before the due date? It is basically just an assessment of human character, right? Human nature is that people will keep the money as long as they can and won’t part with it before the time, before they are required to. That assessment is apparently based on our experience, our familiarity with the human soul, and so on. But this rule is not a formal rule. It is a rule that tells us, “This is how people behave.” The same with “it is better to dwell as two”—that too is a presumption that a woman basically wants a relationship almost at any price. In other words, no matter what the costs are, what it would require of her, how much of a poor catch this husband is—if that is what enables a relationship, then she wants it almost at any price. And again, this is simply an assessment of human nature, in this case of women; it is not some formal mechanism.
So in that sense there are all kinds of presumptions or proofs of this type that are based on our understanding of reality or of human nature, and their force does not come from the fact that they appear in the Talmud or that there is some verse that says them. There is neither this nor that. Rather, it simply comes from understanding reality. In other words, if we look at reality and see that it behaves in a certain way, then that becomes a presumption, and that presumption is evidentiary—it is a clarifying rule. Because in essence this rule tells us that the person did not repay. Or that the woman does want this relationship. So it is a rule that clarifies reality for us, and it is based on our experience and our acquaintance with reality, not on any halakhic source, verse, exposition, or formal rule of one kind or another.
These rules are, on the one hand, very simple. You don’t need a source for them, because just look at reality and see that this is how things are. On the other hand, there is nothing sacred about them. In other words, if suddenly I arrive in a reality where the situation is different, then of course this rule has no force, because it is not a rule rooted in Jewish law, some binding thing such that if reality is different then changing it would amount to changing Jewish law—so now you’d need a Sanhedrin to change it. No. If reality is different, then obviously the rule is different. That is both its strength and its weakness. Its strength is that it is not a formal thing; it is simply an assessment of reality that every person makes in every context. It is not something unique to Jewish law. And its weakness is that it is obviously dependent on the factual situation that prevails here. If we are in a different reality where the factual situation is different, then no. There is no holiness at all in this rule, and the rule will change.
That is as opposed, for example, to the rule of majority, following the majority, where there are already formal principles that tell us how to apply the rule, when to apply the rule, and it is not always dependent on an assessment of reality or on changing circumstances. Changes in circumstance will not always change that rule, because this is already a halakhic rule that also has a source in a verse, as we will see later, and so on.
I’ll perhaps bring an example that at least some of you have probably heard from me before, or examples. One example: what happens if in our place people do repay within the term? Right? If someone took a mortgage from the bank and suddenly some large inheritance falls into his hands, then he may well repay the money before the due date. Why? Because he doesn’t want to pay the interest and so on, fees through a legal fiction and the like—so you can take interest without calling it interest, but bottom line, a person who can get rid of that interest may repay, may return the debt within the term. So what, are we then going to tell him—if the bank sues me and I say I repaid—are we going to tell him, you’re not believed because there is a presumption that a person does not repay before the due date? There is an explicit Talmudic statement. What do you mean? Look at reality and see: in this kind of situation, people do repay within the term. So if the reality is different, then spare me the Talmudic texts—that piece of evidence is not correct, it does not exist. This is an example of the fact that these specific kinds of proofs we are talking about are proofs that depend on circumstances. If the circumstances are such-and-such, then there is proof; if the circumstances are different, then there is no proof.
Another example: the presumption of “it is better to dwell as two.” Right? This is an example. Once I sat on a panel that annulled the marriage of a couple who were young, wild, foolish kids who got married at, I don’t know, I think 18. And on the very night of the wedding, the husband ran abroad. Meaning he did not come to the hotel. She waited for him at the hotel; he did not come to the hotel that night. And after some time it turned out that he was actually living abroad with another woman in some house they had rented there. I don’t know exactly what. In short, the whole story was ridiculous.
Now in the religious court this dragged on for years, in the Chief Rabbinate court this dragged on for years—what to do, get him to give her a divorce bill, they tried to beg him, he wanted them to pay him money in order for him to give a divorce bill, and the Rabbinate chased after him and tried to raise the money and this and that. It was completely absurd. I didn’t even collect all the blunders they made there; you could write an encyclopedia about what happened in that case. Really. It was a bunch of idiots. I mean, the judges were bigger idiots than the couple.
Anyway, we sat there and in the end we said: this marriage is void. There is no need for a divorce bill, no need for anything; the woman is not married. Why not? Because there is an estimation that she did not marry on that basis. What do you mean? If he does not live with her, then obviously her consent to accept the betrothal is null and void. So immediately questions came up: yes, but the Talmud says “it is better to dwell as two,” meaning a woman wants a relationship at any price. If the husband has boils, if the husband is—I don’t know what—abusive, if the husband is whatever, it doesn’t matter, the woman wants a relationship at any price. And therefore the presumption of “it is better to dwell as two” basically prevents annulling the betrothal when the goods the woman received are not exactly first-rate. Fine—a woman is prepared to accept any merchandise, so long as she has a relationship.
So here two claims came up. First: not true. Regarding people today, it is simply not true. It is not true that a woman wants a relationship at any price. There are partners she will not want. I don’t know what it was in the time of the Sages, or in the time of the medieval authorities, or in the time of the later authorities, or I don’t know where—in Casablanca in the seventeenth century, or in Europe in the twelfth century, or in Iraq in the fourth century. What do I care? Look at women today and you’ll see: women today, the average woman, is not willing to marry just any husband. In other words, it is not true that at any price she is willing to marry. It’s simply not true. So what can you do? But the Talmud says “it is better to dwell as two.” Fine, it says it. So what if it says it? There is nothing sacred about it. It is an assessment of reality. And if our present reality tells us that the assessment is different, then the assessment is different. There is no reason at all to adopt the assessments that appear in the Talmud when in our reality those are not the correct assessments.
Beyond that, there specifically, in that case, my claim was: what does “it is better to dwell as two” mean? It means a woman is willing to pay any price for a relationship. But here that is exactly the point—she did not get a relationship. The man already on the first night did not show up; he fled abroad. So he did not give her a relationship. I mean, fine, tell me that if he gives her a relationship she is willing to pay any price—let him abuse her, let him have boils, let him be an idiot, let him be whatever you want—but at least he gives her a relationship. Then you can say that a woman is willing to consent at any price in order to receive a relationship. Even if I accepted that—I don’t accept it, because women today do not consent like that—but let’s say I did. But here she did not get a relationship. So what are you talking about? What kind of crooked reasoning is this, to say “it is better to dwell as two,” and therefore the woman clearly consented? Because she is willing at any price to have a relationship. What relationship? He ran away and lived with another woman in America on the first night of the marriage. Not after some time—right away. So what presumption of “it is better to dwell as two” is there here? The presumption of “it is better to dwell as two” is itself the thing that says the woman would not consent to such a situation. Not only is that not evidence against us; that is the evidence for us. Because everything the woman is willing to pay is in order to get a relationship, but if she did not get a relationship, then what are you talking about?
Now it is simply unbelievable, the stupidity of the judges there. Never mind. In any case, it was some kind of frozen conservatism. It’s not necessarily a lack of intelligence; sometimes maybe that too is there, but I don’t think that was the point there. The point there was a kind of conservatism, a sort of paralysis that refuses to act against the sacred religious principles of “it is better to dwell as two.” Unbelievable.
In this context, of course, various judges and liberal rabbis always want to use “it is better to dwell as two”—that is, they want to use this estimation to annul marriages in all kinds of cases, say where a woman is chained to a dead marriage by a husband who refuses to release her. So there were proposals saying: if she had known that he would refuse to give her a divorce bill and drag her around by the nose, she would not have consented to the betrothal. Since that is so, there is no betrothal; there is no need for a divorce bill; the marriage is void. Various proposals of that sort. And of course that very much threatens the stability of the household, and all the conservative systems are deeply alarmed by these proposals—and perhaps with some justice, by the way, because sometimes they really did take them too far.
And so they say, absolutely not, and they start coming up with these kinds of excuses—that “it is better to dwell as two” is a presumption that came down from Sinai. Meaning there is no possibility of assessing whether it is really relevant here or not. Not only that, they even quote Rabbi Soloveitchik in an article or somewhere as having said that the presumption of “it is better to dwell as two” is not an assessment of reality, but a presumption that came down from Sinai. Now since I regard him as an intelligent person, it is obvious that he himself did not believe what he said. Right? That is obvious. Otherwise it would simply be total foolishness. Someone who says that is an idiot. So he apparently said it as a kind of rhetorical flourish, a saying like that, in order to reject one proposal or another, but obviously he did not literally mean it. I don’t know—to me that is obvious. An intelligent person cannot really mean such a statement.
But of course everyone loves to quote Rabbi Soloveitchik when it suits them—even the heretics of Modern Orthodoxy: look, your rebbe also says this. So in that context they are always quoting Rabbi Soloveitchik, all those people who quote nothing else of his.
Anyway, for our purposes, what I really want to say is that presumptions or proofs of this type are specific kinds of evidence; they are not rules. They are assessments of reality, and assessments of reality depend on reality. If reality has changed, then the assessment of reality will be different. On the other hand, if that really is the reality, then I do not need a verse to tell me that there is proof that the person did not repay. There is no such verse. So what? Nor is there a tradition from Sinai about this presumption. It is simply an assessment of reality that a person does not pay money if he is not required to pay it. That’s all. Plain common sense. So that is the strength of this kind of evidence, and that is also the weakness of this kind of evidence.
As opposed to that, the proofs of majority, for example, are proofs that receive some kind of formal status. And therefore the Talmud really asks: what is the source for the evidentiary power of majority? And it brings the verse “follow the majority”—we’ll see that Talmudic passage in a moment—but it looks for a source. Why look for a source? Because the rule of following the majority is a formal rule. It is not a rule that changes according to circumstances. It is not necessarily a rule that changes according to statistical calculations either, and that is already a hint of what is coming. Rather, it has some sort of formal standing. Of course there really has to be a majority in reality. In a reality where there is no such majority, we won’t say that we follow the majority. But in a reality where there is such a majority, even in a place where perhaps it is not justified to rely on it, we will rely on it. This rule has some sort of formal status.
And therefore from now on I want to enter into the topic of majority, following the majority. What does that mean? What is the logic of it? What is its source? Where is it used? In what forms is it used? When yes and when not? I want to deal a bit with this issue of majority. This is really the typical rule of a clarifying rule, a statistical rule in Jewish law.
So I want to begin with a topic of following the majority that is actually a different topic, in order to get it off the table. I once saw in a book by Haym Soloveitchik—yes, the son of Rabbi Soloveitchik—he is a professor of history at the Hebrew University, and he wrote a book called Responsa as a Historical Source, a kind of academic study booklet that tries to show how we extract historical information from responsa of halakhic decisors. In other words, how from responsa literature we can extract historical information.
Just one interesting point I saw there, as an aside unrelated to us. For example, when you see two manuscripts, one sounds reasonable and makes sense, and the other is garbled—what is the original and what is secondary? So he claims there that the garbled one is the original. The garbled one is the original. Why? Because usually people do not garble a sensible text; people correct a garbled text. Therefore it is likely that the original text was the garbled one, and the sensible text is simply someone who corrected the corruption. Because if the original text had been sensible, there would be no reason for someone to corrupt it. Of course there are corruptions due to similar-looking letters or copying errors and things like that, so errors can happen. But when the corruption is not of those types, but really something nonsensical as opposed to something sensible, then the nonsensical thing is the original. And you should think very carefully about why it actually does make sense. That is just an interesting remark. I had never thought about it until I saw it there in the book. Among philologists it is apparently a known principle; I found that out afterward. But just an interesting remark.
Anyway, back to our subject. In this book he takes a topic—mainly one topic—of following the majority in community ordinances and the like, and through it he tries to teach the students, the learners, how to derive historical information from halakhic responsa. Now when he enters this topic of following the majority in communities, he brings an article there by Baer—yes, a very well-known historian—from the journal Zion, who argued that the rule of following the majority in Jewish law, meaning that communities make decisions by majority, is a rule drawn from Roman law. In other words, this is an influence of Roman law on Jewish law.
And Soloveitchik argues against him: what are you talking about? We invented this. It says “follow the majority.” We invented this rule. Why does he think we need Roman law? And of course people often say that we invented democracy too, and following the majority—“follow the majority,” and so on and so on.
Now in this dispute, Yitzhak Baer is right, not Soloveitchik. We did not invent either democracy or following the majority in communities. I don’t know whether it was borrowed from Roman law, because I’m not an expert in Roman law. But we did not invent it. And it is not taken from “follow the majority.”
I’ll continue for a moment with Soloveitchik’s presentation. He brings various responsa of medieval authorities (Rishonim) who dealt with the question whether one really follows the majority in decisions of the community, say among the seven good men of the city, or just an assembly of the community that wants to make a decision—to impose a tax, or divide the tax, or establish some institution or another, community decisions. And the question is whether the majority decides. This is a question that was asked; various medieval authorities addressed it—the Or Zarua, Rashba, Rosh, Rabbenu Tam, and many, many others. And it turns out there is a dispute among the medieval authorities on this issue.
The view of Rabbenu Tam, for example, is that the majority does not decide. Only unanimous decisions are binding. The majority cannot impose its opinion on the minority in such a case. But the view of most of the medieval authorities—and here too there is a majority and a minority—is that the majority does decide. The Rosh, Rashba, Or Zarua, and others write that the majority decides. Not only that, they bring the source for this law that the majority decides from “follow the majority.” There is a verse, after all, “follow the majority,” and therefore we know, we learn from here, that in community decisions as well, the majority is what determines.
By the way, this dispute continued for several centuries, and was not decided until the fifteenth century. More or less, the view was accepted that the majority really does decide in community ordinances, and that is how it also entered the Shulchan Arukh, and that is how it continued afterward. So in the end it was somehow decided one way or another, but this is a dispute that lasted several centuries.
So what about Rabbenu Tam? What did Rabbenu Tam say about this verse of—
[Speaker C] “follow the majority”?
[Rabbi Michael Abraham] What? Rabbeinu Tam never heard of the verse “follow the majority”? What, he doesn’t know that the majority decides? I’ll say even more than that. The Rosh, and the Rashba, and others—in basically all the responsa I’ve seen that talk about the majority deciding and bring the verse “follow the majority”—in all of them they say: it says “follow the majority,” and besides that, you also can’t run life any other way. What are you going to say—that you always need unanimity? There’s never a unanimous decision. If the majority can’t determine things for the minority, then you’ve basically given the minority veto power. So what, it makes more sense that the minority should decide? In other words, you can’t function that way, and therefore you have to say that the majority is what determines things. And then the secondary question comes up. I asked about Rabbeinu Tam—didn’t he know the verse “follow the majority”? Now I’m asking about the Rosh and the Rashba: why isn’t the verse “follow the majority” enough for you? Why does each of you add, “yes, and besides that you also can’t function this way”? He adds some argument from reason as well, beyond the verse “follow the majority.” Why? Why isn’t that enough for you? If I were to ask why one has to recite Grace after Meals, then how is a halakhic decisor supposed to answer me? Because it says, “And you shall eat and be satisfied and bless,” period. What, does he also need to add, “and besides that, you need to thank the Holy One, blessed be He, for the food, and this is a very elevated thing for someone who recites Grace after Meals,” and so on and so on? Nothing of the sort. It says, “And you shall eat and be satisfied and bless,” and therefore one must recite Grace after Meals. In ethical works they can explain to you why it’s also a tremendously important thing. But no, halakhic decisors don’t deal with that. So why here, in the halakhic question of whether we follow the majority in communal enactments—why there do the decisors not suffice with bringing the source of “follow the majority,” but always add some common-sense argument as well, some practical reasoning about how you can function this way, and so on? That means that not only Rabbeinu Tam, but also the medieval authorities (Rishonim) who disagree with him and say that yes, we do follow the majority in a community—they too understand that the verse “follow the majority” is not a sufficient source for this. You need to add some further reasoning here. Why not? Why does the verse “follow the majority” not constitute a source for the idea that one must follow the majority in a community? So in order to understand this issue—I already spoke about this once in the past—in order to understand it, I want to ask another question, the question Plato asked. Why, basically? Well, it’s not exactly a question—he offered a proposal, not a question—but it raises a question. Plato argued that yes, in the Greek city-states too there was democracy, and they followed the majority, they voted in the town square and followed the majority. Sorry—and they followed the majority. Plato argued that one should follow, one should give the decision to the wise men; why on earth go after the majority? So he says that really there should be rule by philosophers. The wise people are the ones who should make the decisions. Within the group of wise people, how should they decide? I don’t know—maybe the wisest decide, maybe they go by majority—but why in the world go by majority? Because the wisdom of the masses is, all in all, mass wisdom and not all that wise, so to speak. In other words, it’s not really a recommended rule for reaching the right decisions. I would adopt the opposite rule: if the masses say this, do the opposite. In any event, Plato basically argued that decisions should be entrusted to philosophers, to wise people, and not to the majority. Now today, if you say that to people, they’ll be horrified. I mean, the principles of democracy say that the majority is what decides—unless it’s wrong, but generally the majority decides. And the question that arises is: why, really? Why not adopt Plato’s proposal and let the wise determine things? The decisions would be better. If you want a more moderate proposal, then say maybe at the ballot box, when we cast our vote, each one of us drops in a slip, and the weight of the slip should be calculated according to the intelligence of the person casting it. Give extra weight to smart people. Let’s say each ballot gets a weight according to the IQ of the person who put it in. So do some kind of weighted majority—but give some weight to the wisdom of the person casting the vote. That’s just a more moderate proposal, but in principle it’s still a Platonic idea. If you want to get correct decisions, then you should give the decision to the wise. So when I’ve tried this in the past and asked people seriously, why not? Why go by the majority, give everyone equal weight, let the majority decide—why not let the wise make the decisions? Usually two kinds of answers come up. One answer is: who says you know who’s wise in this context? What, if someone is a genius mathematician, does that necessarily mean he makes the right political decisions? I’d bet that usually it’s the opposite. In other words, mathematical intelligence actually interferes with making the right decisions. The fact that most people of that type tend to lean left—and the left is, of course, a mistake—so apparently the intelligence needed to make political decisions is the opposite, in my opinion. But fine, you can argue about that. The point is, there’s no reason to assume that mathematical intelligence, or scientific intelligence, or whatever kind—literary, doesn’t matter—that that is the right measure of wisdom in the political context. And therefore they tell us: look, it’s true that the wise should make the decision, but how will you determine who the wise are? What criterion can determine what the relevant wisdom is for political decisions? And political decisions themselves come in all kinds. There are security decisions, economic decisions, all kinds of decisions. So each time you need to decide who the relevant wise person is, or what the relevant kind of wisdom is, whose possessor you’ll give the right to decide this question. Since you can’t determine who is wise and who isn’t wise—and certainly in this postmodern age, everybody is wise to the same extent anyway—since that’s the case, there is basically no way to implement the Platonic proposal. That’s one kind of answer. A second kind of answer that I usually get when I ask this is that you can’t trust the integrity of those wise people. Meaning, even if I could determine who the wise people relevant to the question at hand are, or what the wisdom relevant to the question at hand is, who says those wise people who were given the right to decide for all of us won’t exploit it for their own personal interests? Who said those wise people are also righteous people? In other words, smart people may know what the right solution is, but they won’t make the right decision because it doesn’t suit their interests. They’ll prefer to advance their private interest even if for the public as a whole it isn’t the best decision. And therefore you can’t trust the honesty, the integrity, of those wise people, and so you can’t entrust the decision to them. Fine, so you’ll say maybe we should choose wise people who are also righteous. Maybe. Fine. But then the question returns: how do you know who is righteous and who isn’t, who is wise and who isn’t? In short, those are the two types of answers usually given to this question. Why not entrust the democratic decision to the wise? Why give all the idiots in the street equal standing, or a ballot of equal weight in the box? I think those answers may be correct, but they’re unnecessary. In other words, you don’t need them. You don’t need them because the question is flawed from the outset. The question itself is based on a mistake—Plato’s question. Why? Because Plato was looking for the way to get the best decisions, and then he says, obviously majority rule is not such a great criterion for getting the best decisions. I’ve got a better criterion: give the authority to decide to wise people. That will bring us closer to the optimal decision in terms of the correct or wisest decision in the given situation. The point is that a democratic majority is not really meant to… it isn’t proposed as a mechanism that will lead us to the truest decision, something like the wisdom of crowds—not at all. Our decision, or the policy, to give the decision to the majority and not to the wise stems from a conception of rights. The goal is not to reach the best decision, but to reach the decision that reflects the will of the public. Because the democratic conception is that the state should be run according to what the public wants, not that the state should be run in the best way—the best way in the sense of the most correct, the wisest. No. The state should be run in the way the public wants. That’s the…
[Speaker C] So that’s Plato’s question—why really go by a criterion of rights?
[Rabbi Michael Abraham] Plato didn’t ask questions; Plato declared things. Plato argued that the decision should be entrusted to the wise.
[Speaker C] And I said that it still remains: why in medicine would no one ever think to say, “let’s vote,” and I…
[Rabbi Michael Abraham] We’ll get there in a minute, we’ll get there in a minute. When Plato offered this proposal, everything I’m saying before the critiques is first of all descriptive. When Plato offered this proposal, it’s clear that he was looking for a way to get the most correct decision, right? That was his goal. And as a result he says, okay, so let’s entrust the decision to the wise. Meaning, the way to implement this—how we’ll arrive in the most optimal way at the best decision—we’ll entrust the decision to the wise. I’m arguing that I’m not discussing the question of how to arrive at the best decision, and so this proposal of entrusting the decision to the wise doesn’t arise in the first place. I’m arguing that in democracy the decision—and I’m not just saying this as my personal view, I’m saying this is the democratic conception, this is how democratic states function—they are not looking for the most correct decision at all. They are looking for the decision that reflects the will of the public. Because there is a liberal-democratic conception here that says a person has a right to determine the mode of conduct of the state of which he is a citizen. And in that sense, a wise person has no advantage over a fool. Everyone has the right to determine, or to influence the determination of, the path the state follows. This is a conception of rights, a moral conception; it is not an epistemic conception, not a philosophical conception that says let’s see what path will lead us to the truest decision. It’s a moral conception that says every person has a right to influence equally the policy adopted by the state to which he belongs. And therefore there is absolutely no reason in the world to entrust the decision to the wise, even though entrusting it to the wise might lead us to the most correct decision. Because we do not want the most correct decision; we want the decision the public wants. And therefore there’s no point in looking for excuses why we don’t entrust the decision to the wise, because the question “why not entrust the decision to the wise?” assumes something that is simply false. The question doesn’t exist. You don’t need to look for answers. It assumes that we’re looking for the best decision. That’s not true. We’re looking for the decision that reflects the will of the public.
[Speaker D] But the question is also whether the public itself—if it thinks it isn’t getting the best decision—the public thinks this is the best decision. Go prove to it that it’s mistaken.
[Rabbi Michael Abraham] If the majority of the public wants to entrust the decision to the wise, there’s no problem. Then, democratically, the decision will be entrusted to the wise.
[Speaker D] Right, that’s the…
[Rabbi Michael Abraham] But that—
[Speaker D] What the public doesn’t want is that. Yes, but it seems to me that that’s what the public thinks it’s doing, no? The public thinks it’s appointing the best things and the best decisions because in its view this is the best government, this is the best cabinet, and so on and so on. Why not? That’s what they think, no?
[Rabbi Michael Abraham] Why not? Nobody thinks that. What, does anyone really think elected officials are the smartest people? Have you gone crazy? What, people live in la-la land? Obviously they’re elected officials; obviously they were chosen because of what I want.
[Speaker D] Right, they’re not wise, but what you want—say right now we want the right, let’s say, we want the radical right, and then you say now that the majority of the Israeli public thinks and understands that the radical right is the decision…
[Rabbi Michael Abraham] No problem—but that’s because the majority of the public wants it, not because it’s really the correct decision.
[Speaker D] Certainly, but I’m also saying that apparently it also depends a little on—they think it’s also something correct. No, it doesn’t depend on—
[Rabbi Michael Abraham] That’s what I’m saying: it doesn’t depend on that. That’s exactly the point. Obviously every person, when he votes, votes for whoever will do what he thinks is most right. But not because the elected person is the wisest, but because the elected person’s platform is what I want. That’s why I vote for him, even though he isn’t wise. That’s not important. He does what I want, so I vote for him. When there is a majority that votes for someone, then that someone is elected not because that is the most correct path, but because that is the path the majority of the public wants. It’s true that each individual in the public wants it because he thinks it’s the right path—that’s irrelevant. But in the end, in the end, we adopt that path because it is what the majority of the public wants, not because it is the right path. This is a very important point, and therefore—but—
[Speaker D] It’s a little hard for me to separate it completely; it’s a bit hard to separate the—
[Rabbi Michael Abraham] Because always—it’s completely and a bit—
[Speaker D] I’m saying it’s not the same thing.
[Rabbi Michael Abraham] Why is it different—I don’t know how to quantify it—but it’s not the same thing. It’s not the same thing because if it were the same thing, then the public would withdraw from elections and appoint a hundred wise men there to make the decisions. The public does not withdraw.
[Speaker D] Right, right, but even if we go your way—say we do go this way—who appoints the wise? The public too.
[Rabbi Michael Abraham] Obviously! The public appoints the wise, and from then on go home. So that’s kind of what the public does.
[Speaker D] No, that’s not what the public does.
[Rabbi Michael Abraham] It appoints agents who will do what it wants. It doesn’t appoint wise men to make decisions. I decide—I, the public—and I appoint someone who will carry out my decision. I’m not appointing someone to decide. That’s exactly the point. Now again, this is of course completely schematic, because what do you mean—obviously the elected officials are making decisions all the time, they don’t go back to the public every time and ask. Yes, but that’s only a technical issue. A technical issue because you can’t do that. So once every four years I appoint someone who will do what I think should be done, but I didn’t really appoint him because he’s wise and will make the best decisions, but because he will make the decisions I want him to make. That’s why I appoint him.
[Speaker C] But if we were to undertake some long campaign of public explanation and tell the people: look, statistically, scientifically, if we choose the wise people and let them decide, the results will be more correct; if we use democracy, the results will be less correct, objectively—and we do this for a few years, civics classes like that for everyone—it could be that everyone would really be convinced in the end.
[Rabbi Michael Abraham] No problem. If everyone is convinced, then we’ll move to a regime in which the wise decide. But once again, we moved to it because the majority decided that it wants that. So it doesn’t matter. How the majority implements its will is already a technical question. Whether to do it through elections every four years or by appointing a council of wise men for life to make the decisions—it doesn’t matter. As long as in the final analysis we are the ones deciding what we want to happen.
[Speaker C] Okay, in any—
[Rabbi Michael Abraham] event, the point I want to make is that the two kinds of answers offered to this question are basically answers that assume that indeed we are looking for the most correct path. Only what? We don’t have the option of appointing wise men because I suspect they lack integrity, or because it’s impossible to determine who is wise and who isn’t. But theoretically, if I could find wise and righteous people, whom everyone agreed were the wise people for this matter, then indeed the decisions should be entrusted to them. And I claim: not true. Even then the decisions should not be entrusted to them, unless the majority of the public decides that it wants that—no problem. But still, they are entrusted to them not because that is the most correct decision, but because the public wanted them to decide. Therefore in the final analysis democracy means implementing the will of the people, the will of the public. That is the basis of democracy, and not that it is the mechanism for reaching the most correct decision. It isn’t.
[Speaker C] So basically that’s Korach’s claim, no? What? Korach basically wants that.
[Rabbi Michael Abraham] In a certain sense, although he wasn’t speaking in the name of the public, he was speaking in his own name. But yes—“the entire congregation is holy.” Yes, “the entire congregation is holy,” but he was talking about his own congregation, his two hundred and fifty; he wasn’t talking about all the Jewish people. At least that wasn’t his actual policy. Maybe in his thoughts, in his declarations, that’s what he said—maybe. Fine, could be, not important. So what I basically want to say is that in democracy we follow the majority not because the majority is the means of determining what is right, but because the majority reflects what the public wants. Now even that is not a trivial statement. There is a field in mathematical economics—I once did a panel at Bar-Ilan with Shmuel Nitzan, he was a professor of economics at Bar-Ilan, now I think he’s emeritus already—we once did a joint panel. He wrote a book for the Open University, gave it to me to read, and it really was very interesting. And we did a joint panel on this issue of following the majority, and then I suddenly discovered an entire field in mathematical economics that tries to propose different ways of expressing what the public wants. Because it’s very far from simple. Meaning, say the entire public wants something—then there’s no problem. The entire public wants it, and that is the public will, so that’s simple. But that is almost never the case. There is almost no issue on which the whole public wants the same thing. There is a majority and a minority. Now, it’s not always the case that following the majority is the optimal expression of the public’s will. That’s one proposal. There are others. All kinds of proposals. For example, what if for the minority this question is cardinal, while for the majority it’s marginal? So the majority says X and the minority says Y. And from the minority’s point of view this is really a matter of life and soul, absolutely non-negotiable. And from the majority’s point of view, it’s not all that important that it be Y, even though they prefer X. It could be that in such a situation there is logic precisely in going with Y, not X. Or whatever—various approaches like that. By the way, there are theorems, all kinds of theorems in this field: what can be done, what can’t be done, when the majority expresses the public will and when it doesn’t. There’s one very interesting theorem—I’ve forgotten its name by now—a theorem that says there are something like five or six criteria for a position that could count as representing what the public wants. And there’s a theorem that no such position exists. Given very basic and simple conditions, there is no position—there cannot be one—that will represent the public and satisfy all five or six conditions. There’s a mathematical theorem that such a position cannot exist. It’s fascinating. In any event, for our purposes, because this is so complicated, what people generally do in democracy is choose a simple mechanism to represent what the public wants. That mechanism is the majority. What the majority wants is considered by us to be the public will. Okay? That is basically the mechanism chosen to represent the will of the public. Because if the public does not want one thing—if there are different people who want different things—then you somehow need to determine a measure, or mechanism, or algorithm, that determines what the public will is in this case. And that is a question one can debate: how do you represent what a public embroiled in disputes actually wants? Standard democracies adopted the path of majority, which is an intuitive and simple path, although not always ideal and not always truly reflective. But it is the simplest path. And therefore it was decided that the majority determines. Okay, that is basically the claim. And notice that the decision that the majority determines is actually a decision whose basis is not that the majority is right, but that the majority is the most faithful representation we have, or the most efficient representation we have, of the public will. That is what the public wants, and therefore that is what will be done. Now, if that really is so, it follows that in democratic contexts the majority is not really a majority that serves as a criterion of truth—it is not a criterion for reaching the truth—but rather the majority is the means of representing what the public wants. What happens in a religious court? Why do we follow the majority there? So let’s look, for example, at the Sefer HaChinukh, commandment 78, “to incline after the many.” “And when a dispute falls among the sages in law, from all the laws of the Torah, and likewise in a private case, meaning in a case that may be between Reuven and Shimon, by way of example”—that is, either a dispute among judges over whether Reuven is right or Shimon is right, or a halakhic dispute over a question not specifically tied to one concrete case—“when a dispute arises among the judges of their city, some ruling to obligate and some to exempt, one must always incline after the majority, as it says, ‘follow the majority.’ And in explanation our sages of blessed memory said: the majority is Torah-level.” “And choosing the majority is, according to what appears, when the two disputing groups are equal in their knowledge of Torah wisdom.” Yes—when the majority and the minority are composed of sages whose Torah level is roughly similar. “For it cannot be said that a small group of sages should not overrule a larger group of boors, even if they were as numerous as those who left Egypt.” Yes—if within the religious court there is one who is a genius, a Torah prodigy, and two who are ignoramuses, it cannot be that a majority of fools should overrule the opinion of a minority that is much wiser than they are, even if the number of fools is six hundred thousand—like those who left Egypt. “Like those who left Egypt.” What difference does it make to me how many fools there are on the side of the majority? Obviously the sage is right, not the majority of fools. “But where the wisdom is equal, or nearly so”—meaning if it’s more or less similar—“the Torah has informed us that the greater number of opinions will always agree more with the truth than the minority.” What does the Sefer HaChinukh say? That where the sages are more or less on the same Torah level, the Torah tells us we should follow the majority. And why? The Sefer HaChinukh says: because usually the majority will be right. Not always. But if I need to decide on one criterion, then I choose to follow the majority. Because it is a criterion that will lead me closer to the truth with a higher probability. Right? The Sefer HaChinukh says: “And whether they agree with the truth or not according to the understanding of the listener, the law dictates that we not depart from the path of the majority.” Meaning, the majority is not always right, but because there are always disputes and you can never know what justice is, we follow the majority. Why? Because statistically the majority is usually the one that is right. “And what I say, that choosing the majority is always when the two disputing groups are equal in the wisdom of truth. For so it is said everywhere, except in the Sanhedrin, where we are not exacting when they disagree,” etc. Fine? So that is except for the Great Sanhedrin. But generally in a religious court it is obvious that this law of following the majority is said only where the sages are more or less at the same level. But if there is a minority of greater sages and a majority of lesser sages, then we follow the minority. Or in other words, what determines things is the majority of wisdom, not the majority of people. Or the majority of heads, not the majority of feet. Fine? That is what the Sefer HaChinukh argues. That is a matter of dispute—there are disputes about this among the halakhic decisors, among the medieval authorities (Rishonim) and later authorities (Acharonim). It starts with Beit Hillel and Beit Shammai, who apparently already disagreed about this. But this dispute continues all the way to the later decisors. The question is: what happens in a religious court—if there is one great sage and a majority of lesser sages, does what determines things is the majority of wisdom or the majority of people? Today it is commonly ruled that the majority of people determines things. Probably because otherwise there would always be arguments over who is greater, and we’d never get out of it. So you need some path that is agreed upon and simple on the legal level, and therefore they say you count feet, not heads. Because otherwise we’ll never get out of it. But on the principled level, everyone would apparently agree with what the Sefer HaChinukh says—that really we should have followed the minority of sages and not the majority of fools. It’s only because there are disputes, for all the reasons I mentioned earlier, that we always go after the majority. Why is that really so? Because in a religious court, says the Sefer HaChinukh, our goal is to arrive at the correct ruling. Agreed? In other words, the goal of deliberation in a religious court is to arrive at the true and correct ruling, the will of God. Therefore, if our goal is to arrive at the correct ruling, then the logic says to adopt the path that will lead us to the truest ruling. Says the Sefer HaChinukh, what would that path be? If there is rough equality in the wisdom level of the judges, then we go after the majority. But if not, then we go after the wise—the Platonic proposal. The wise will decide even though they are a minority. So in effect he adopts the Platonic proposal. But notice: he adopts the Platonic proposal in a religious court because in a religious court the goal of the deliberation is to reach the most correct decision. But what happens in decisions we make in the community? Or in the state? A democratic majority. But in the community too, the decisions there—the disputes there—are not halakhic disputes. They are disputes about what to do, whether to establish an institution, how to distribute taxes, all kinds of things like that. Those are not halakhic decisions. Those are political, social decisions; you need to make a decision together. Now should we follow the majority there or not? We saw that this is a dispute among the medieval authorities (Rishonim). Why? Because the verse “follow the majority,” as the Sefer HaChinukh explained, tells us that we go after the majority there because the majority is the tool for reaching truth. But in democratic disputes—decision-making in a state or in a community—the goal there is not to reach the truest decision. The goal there is to reach the decision the public wants. What does that have to do with the verse “follow the majority”? As the Sefer HaChinukh said, the verse “follow the majority” teaches us that the majority hits the truth more than the minority. Okay—but in a place where I am not trying to hit the truth, why in the world should I use the verse “follow the majority”? What is the connection at all? Therefore Rabbeinu Tam really says that decisions in a community must be accepted unanimously. The majority cannot coerce the minority. I asked: what, did he not know the verse “follow the majority”? Of course he knew it. He just claims that this verse is not an instruction that pertains to decisions in a community. That verse deals with decisions in a religious court. Because there they are looking for truth, while in decisions of the community they are looking for the decision the community wants. Why in the world go after the majority—who said the majority determines things? Therefore he says no. The medieval authorities (Rishonim) who disagree with him—the Rosh and the Rashba and others who disagree with him—I noted that they too, although they bring the verse “follow the majority,” do not suffice with that. They say: “follow the majority,” and besides that, you can’t function any other way. You can’t live if the majority doesn’t determine things and instead every decision has to be accepted unanimously; no decisions would ever be made. Therefore there is no choice but to follow the majority. So really we see—I asked why they need to add that. Let them just say “follow the majority”; that’s the source, we go after the majority, finished. No. They too understand, like Rabbeinu Tam, that the verse “follow the majority” doesn’t really teach this. It deals with a religious court. So why apply that rule also to decisions in the community? After all, in the community we are not looking for the most correct decision. Okay, but we will go after the majority because the majority represents what the community wants. You can’t function otherwise. If you do only what the whole community wants, down to the last person, you won’t do anything. Therefore we have no choice but to accept the majority as the measure of what the community wants. You can’t function otherwise. And therefore we broaden “follow the majority” from a rule that speaks about decision-making in a religious court to a rule that also deals with social and political decision-making. But that is an extension. It is an extension that does not really constitute an application of the verse “follow the majority.” We use it as an illustration, or something like that. But really this is a completely different rule. It does not come out of the verse “follow the majority.” It comes out of life—from the fact that you cannot behave any other way. And therefore, for example, what will happen in a community where there is a minority of sages? Would we apply “follow the majority” there as the Sefer HaChinukh said—that if the minority is wiser, we go after the minority? No. Even though the Rosh and the Rashba bring “follow the majority,” in a religious court they can agree with the Sefer HaChinukh that we should go after the minority of sages, but in a community, even though we brought the verse “follow the majority,” we will not go after the minority of sages. Because in a community we are broadening the verse “follow the majority” into a democratic majority, a majority that represents what the public wants, not a majority that determines what the truth will be. And therefore there too, even if there is a wiser minority, we will go after the majority. Because we are not looking for the truest decision. And therefore democratic majority—what I’m claiming is that Yitzhak Baer was right and Soloveitchik was not, when he says that a democratic majority is really not a derivative of “follow the majority.” I don’t know whether it was taken from Roman law or not; I have no idea. But it is not drawn from “follow the majority.” Even the medieval authorities (Rishonim) who bring “follow the majority” do not really learn it from there, because you can’t learn it from there. They bring the verse as inspiration, as an illustration, but it is obvious that at bottom we do it because you can’t live otherwise. I’ll say more than that—and I also spoke about this in other series in the past—all these rules that eventually entered the Shulchan Arukh about how to conduct social or political decision-making are actually not halakhic rules at all. They are not halakhic rules. They have no business being put into the Shulchan Arukh. The fact that they entered the Shulchan Arukh was a fatal mistake. They have nothing to look for in the Shulchan Arukh; these are not laws at all. It has nothing to do with Jewish law. The medieval authorities (Rishonim) were asked how decisions should be made in communities because who else were they going to ask? There was no king, no Sanhedrin, no state institutions to determine how decisions are made in the community. So they asked the halakhic decisor. They were used to asking him all questions. So they also asked him questions not in Jewish law—questions about how to make value-based decisions. So they asked the halakhic decisor about that too. And he answered. If they asked him, he answered. But that does not mean that the answer he gives is a halakhic answer. They asked him because there was no other authority. The example I always think of in this context is that in Poland, not so many years ago, a plane crashed with most of their government on it. What do you do in such a case? Usually in orderly states there are three branches. There are three branches: legislative, executive, and judicial. In Israel there are only two—for now two, not sure that’ll remain the case—but certainly not three. Meaning, we don’t have a legislative branch. We have an executive branch and a judicial branch. But in orderly states there are three branches. So when there are three branches and one of them crashes, what do you do? Obviously that authority flows into the other two branches until they reorganize. They recreate the third branch, and then go back to functioning in the normal way. That is what happened in Jewish history. In Jewish history we lost the monarchy, we lost state sovereignty. All that remained were halakhic institutions—the Sanhedrin, and after that halakhic decisors, and that’s it. We no longer had political institutions, social institutions, an executive branch and a legislative branch in the secular sense—we didn’t have them. We had only a halakhic branch, and then what happens is that all authority flowed into the halakhic branch, and the head of the Sanhedrin basically also became the king and became everything—that’s why he was from the house of David, and so on. But all of that was an artifact of the fact that we had lost the monarchy and sovereignty. And since that was the case, we became accustomed to directing all questions to the halakhic authority. And therefore throughout the generations people directed questions to the halakhic authority even on matters not touching Jewish law. For example, whether the majority determines things in a community—what does that have to do with Jewish law at all? It’s a question of how a society conducts itself. It has no halakhic source, and it has nothing to do with Jewish law, and no halakhic authority established it, because there was no Sanhedrin at that time, so it has nothing to do with Jewish law at all. There is absolutely no reason in the world to relate to these “laws” that appear in the Shulchan Arukh—they have no status whatsoever; it’s just a mistake that they appear there. It has nothing to do with Jewish law at all. And therefore in those places they asked the sages because they were the authority that existed. But now, for example, that we already have a state, and sovereignty, state institutions, there is absolutely no reason in the world to ask halakhic decisors such questions. Halakhic decisors have nothing to say on this matter—how decisions are made, whether the majority determines things or not. Because majority decisions in a community are also supposed to require the agreement of an important person—that’s the halakhic tradition; an “important person” was usually the local rabbi. This has no meaning whatsoever. The king did not need the agreement of some important rabbi. If there is secular authority, it makes the decisions in the secular sphere; it does not need anyone’s approval for that. Our tradition is distorted in this context because it was formed entirely during a period when we had only the halakhic branch and not the other branches. But one has to free oneself from these fixations.
[Speaker C] In principle I completely agree with the Rabbi, but still, very often the decisions stem from a broader philosophical-moral outlook. For example, it seems logical to me perhaps—the Rabbi will surely disagree with this—that Rabbeinu Tam’s surprising position, that in a community the majority cannot decide and only if everyone agrees—that is a very clear statement against the concept of a public. He doesn’t buy this artificial construct. He would sign on to that book—what’s it called? Imagined Nationality?—and he would say, what is a public? Each person has his own rights, and the fact that you are a public and ninety-nine point nine percent of you decided something makes no impression on me whatsoever, and that doesn’t—
[Rabbi Michael Abraham] Okay, so what’s the claim?
[Speaker C] But that’s an outlook you could say comes from a deep moral perspective, and apparently also a Torah one.
[Rabbi Michael Abraham] Fine, that’s his outlook, but it doesn’t obligate me in any way, because the question is not a halakhic question.
[Speaker C] But the Rabbi says that about all Jewish law too—about other laws as well the Rabbi says, with all due respect—
[Rabbi Michael Abraham] No, I say that even in the halakhic sphere, if someone is not the Sanhedrin, he has no formal authority, but he does have substantive authority—he’s an expert. But here, in this context, there is no expertise; it’s each person and his outlook. It has nothing to do with Jewish law at all. So Rabbeinu Tam has no advantage over me or over you here.
[Speaker C] He’s more connected to the sources of the sages, he has Rabbeinu Tam’s outlook and not that of the other—
[Rabbi Michael Abraham] I don’t see any advantage in that. I don’t know. Certainly not something that would subordinate me to him. I mean, it doesn’t seem so to me. In any case, for our purposes, the claim is that here Rabbeinu Tam is really making a negative statement, I think—at least that’s how I understand it. The majority has no authority. Why? Because it doesn’t come from “follow the majority.” Consequently it’s only unanimity. Meaning, he’s not saying that only unanimity determines things, but rather that the majority has no authority because it doesn’t come from “follow the majority.” From this point on, do whatever you want. What do you want from me? I understand this as a kind of withdrawal, not as a positive halakhic statement, but as a negative one. The laws of majority cannot be applied here. That’s all. Do whatever you want, whatever you decide.
[Speaker D] The majority can’t—
[Rabbi Michael Abraham] force its opinion on the minority. That does not mean he requires a unanimous decision. That’s a different interpretation. Again, we’d have to look at the text itself; I’m not sure I’m right about his intent, but I can certainly interpret it that way as well. In any event, for our purposes, what I want to say is that when we speak about following the majority in democracy, this has no connection whatsoever to “follow the majority.” It does not come from there, and it has nothing at all to do with Jewish law. Whether it comes from Roman law or somewhere else, I have no idea, but it has nothing to do with Jewish law at all. Therefore leave aside the topic of democratic majority and community decision-making; I’m not dealing with that at all. It has no bearing whatsoever on the laws of majority in Jewish law, nor on statistical factual clarifications, nor on evidentiary rules and non-evidentiary rules, because it is not a halakhic rule at all. More than that—even that rule is not supposed to clarify anything, because the goal is not to clarify the truth; the goal is only to say what the public wants. So it makes no sense to speak there of evidentiary rules; there is nothing to clarify. A rule that comes to clarify the question of what the truth is—you can ask whether it is an evidentiary rule. But a rule that says this is what the public wants—what does that have to do with an evidentiary rule? It does not come to clarify anything. It does not come to clarify whether Likud is more right or Alignment is more right. That’s irrelevant. It comes to say whom I want to be there. That’s all. Therefore it makes no sense to discuss it in the language of an evidentiary rule, a decisional rule, a conduct rule—it has nothing to do with the matter at all. This whole discourse is simply irrelevant to democratic majority. Irrelevant. Therefore I want to return and focus on the majority we are dealing with. And that is majority in the halakhic sphere. And majority in the halakhic sphere is learned from “follow the majority.” And from this verse, the Talmud and the medieval authorities (Rishonim) and later authorities (Acharonim) learn three different principles. One principle is following the majority—for example, the majority of stores or something like that. I found a piece of meat; I don’t know if it’s kosher or non-kosher. If most of the stores in the city are kosher, then we follow the majority and the piece of meat is kosher. So that is learned from the verse “follow the majority.” That is called “go after the majority” or “following the majority.” “Anything separated is presumed to have come from the majority.”
[Speaker B] Excuse me, Rabbi—despite the fact that the sages greatly extended the use of “following the majority” from the Torah, where it focuses on judges, and used it regarding stores and all questions of prohibition and permission, that seems much further removed and disconnected than general agreement in a community, or a majority supposedly in a community. No, that I don’t agree with.
[Rabbi Michael Abraham] No, that’s not more far-fetched. I really don’t agree. But let’s talk, because in both of these cases—even if only because of the simple fact that in both cases I’m trying to figure out what the truth is. Is this piece kosher or not kosher? In a democratic majority, I’m not trying to figure out what the truth is at all. I’m simply trying to find out what the public wants. In that sense, the two are completely alike. We’ll still see the differences between them. Therefore this belongs to Jewish law, not to democratic majority. Of course, even within Jewish law there are different kinds of majority rules, and we’ll still talk about them. But it definitely does belong to the same category, unlike democratic majority. So one thing is following the majority, or “whatever separated is presumed to have separated from the majority.” The second principle is nullification by majority. Right? A forbidden piece falls into a pot of permitted food, so it is nullified by majority. Rabbinically, you need sixty so that there won’t be any taste, but on the basic level it is nullified by majority. This too does not appear in the Talmud, and the medieval authorities (Rishonim) write that it is learned from “incline after the majority.” The rule of following the majority does appear in the Talmud, where they learn it from “incline after the majority.”
[Speaker C] The rule of nullification by majority appears in the medieval authorities (Rishonim), who learn it from “incline after the majority.”
[Rabbi Michael Abraham] How do they learn that? What? How do they learn it? I didn’t understand. In a religious court?
[Speaker C] I eat all the pieces, let’s say, according to the view that one may eat all the pieces. How do you learn from that what “incline after the majority” means? Why does that clarify the truth? Here you know that you’re acting contrary to the truth—you are definitely eating a piece of pork.
[Rabbi Michael Abraham] Maybe I’ll say it in one sentence. Rabbi Chaim, for example, argues—and some later authorities (Acharonim) discuss this issue, how exactly it is derived; there are different approaches—but Rabbi Chaim, for example, says, and I think Rabbi Shimon too in a somewhat different style, that in a religious court—say, in monetary law—you need three judges. Right? That’s the rule. God, God, God, never mind—at the beginning of Sanhedrin they derive that in a religious court for monetary cases there need to be three judges sitting there. What happens if two judges obligate Reuven and one judge exempts him? We cannot, Rabbi Chaim says, issue the ruling on the basis of two judges, because the Torah wants three. Therefore, if we follow the majority in a religious court, the meaning must be that the third judge is nullified to the first two, and it is considered as though there is a ruling here that emerges from three judges. So from here they derive the law of nullification: the position of that judge becomes nullified and turns into the same position as the majority. And now that position has emerged from a court of three, not of two. And that is the source for… nullification by majority. That, for example, is the suggestion of several later authorities (Acharonim).
[Speaker C] But why—why can’t two be enough? Why is that obvious?
[Rabbi Michael Abraham] Because the court of three requires three to sit.
[Speaker C] But he argues that it doesn’t.
[Rabbi Michael Abraham] He argues that the ruling has to come out of three—not just that all three sit and deliberate, while two can issue the ruling.
[Speaker C] Where did you get this strange idea from?
[Rabbi Michael Abraham] It’s not a strange idea, it’s an idea—you can say it this way, and you can say it that way. The sages apparently understood that this was the idea, because the fact is that they derived from here the law of nullification by majority. Meaning, they apparently understood the majority in a religious court this way.
[Speaker C] That’s only the medieval authorities (Rishonim), not the Talmud. Right, I said that.
[Rabbi Michael Abraham] Well, but—
[Speaker C] We’re strict about the medieval authorities (Rishonim), so now we’ll say that because the medieval authorities (Rishonim) said it, then we…
[Rabbi Michael Abraham] Boom! I said that this is what the medieval authorities (Rishonim) say. I didn’t say anything else. I’m saying that this is what the medieval authorities (Rishonim) say. You can disagree, no problem. But the rule of nullification by majority exists. That’s in the Talmud. The question of where it is derived from is a different discussion. On that, the Talmud says nothing. So if you have a different suggestion, by all means. The third rule that comes up here, connected to the law of majority, is the rule that “most of it is like all of it.” That is a third rule. This rule basically says—suppose they wanted to offer the Passover sacrifice. If a person is impure, then he cannot offer the Passover sacrifice. Okay? But if the entire public is impure, then they do offer the Passover sacrifice, because impurity is permitted for the public. What happens if most of the public is impure? Meaning, if a minority of the public is impure, then that impure minority is pushed off to the second Passover, and the majority offers the first Passover. But if most of the public is impure—not all of it, most of it—they offer it on the first Passover. Why? Because of the rule that most of it is like all of it. There is no nullification here, because the minority is recognizable; there are people here who are impure and people who are not impure—there’s no mixture here. There’s also no following the majority here, because there isn’t some item that separated and I’m asking whether it separated from the majority or the minority. This is a third rule: most of it is like all of it. What does that mean? If most of the public is impure, as far as I’m concerned it is considered as though the entire public is impure. And when the entire public is impure, then impurity is permitted for the public and one can offer the first Passover. This is a third rule called “most of it is like all of it.” About this too, the later authorities (Acharonim) ask—and this is not even in the medieval authorities (Rishonim). Here the later authorities (Acharonim) say that it too is derived from “incline after the majority.” And the question is why—how do they derive this from “incline after the majority”? They bring a foundation very similar. Again, the principle is that… similar, but in a certain sense the opposite. Meaning, they derive it the way you, Shmuel, wanted to derive it. The ruling comes from the two, not that the third joins them. But what does the fact that two are enough mean? After all, in principle you need three. The fact that two are enough means that most of it is like all of it. Even if there are only two, it is considered as though the ruling came from three. Notice: the difficulty is the same difficulty, but the answer is a different answer. The previous answer was that the third judge becomes nullified to the first two, and it is considered as though he too stated their position. Here they say the opposite: precisely because he is not nullified—he is not nullified—there are only two here, and nevertheless that is enough; we follow the majority. Why? Because most of it is like all of it. Even if there are two judges, it is considered as though the entire court is issuing this ruling. From here they derive the idea that most of it is like all of it. Fine, you can argue how necessary that is, but for our purposes these are the three laws derived from “incline after the majority.” Now, I said that only the first rule, of following the majority, appears in the Talmud as being derived from “incline after the majority.” All of the rules appear in the Talmud, but only this one appears in the Talmud as being derived from “incline after the majority.” The passage is in Chullin 11. And the Talmud says this: “From where do the rabbis derive this matter, that we go after the majority?” Right? Where do we know this rule from, that the sages said we follow the majority? From where? “As it is written: incline after the majority.” It says “incline after the majority,” so from here we learn that one follows the majority. The Talmud asks: “A majority that is before us, such as nine stores and the Sanhedrin, is not what we are asking about; what we are asking about is a majority that is not before us, such as a minor boy and a minor girl—from where do we know that?” And then a whole discussion begins about where that is derived from. The Talmud makes a distinction here between two kinds of majority. There is a majority that is before us and a majority that is not before us. Right? Present before us and not present before us. A majority that is before us—the example is the case of the stores. Right? I found a piece of meat in the street; in this city… there are ten stores, nine kosher and one non-kosher, so the halakhic rule is that fundamentally the piece is kosher. One may eat it, because we follow the majority of stores. This is called following the majority, and this majority is called a majority that is before us. What does that mean? This majority stands before us. We know—there are ten stores in front of us, and we know them. Nine of them are kosher, one of them is non-kosher, so this majority is before us. And that is a majority that is before us. The Talmud says: this majority can be learned from “incline after the majority,” because there too, in “incline after the majority,” which is a majority in the Sanhedrin—that is, in a religious court—it too is a majority that is before us; the judges are before us. So the majority in the stores can also be learned from the majority in the Sanhedrin, because both are a majority that is before us. But what I asked about, says the Talmud, was not a majority that is before us, but a majority that is not before us. What does that mean? For example, a minor boy and a minor girl. What is the case of a minor boy and a minor girl? There is a minor girl who was married and whose husband died, and she had no children. And the deceased husband had a minor brother. Now this minor brother is supposed to marry her in levirate marriage. So the Talmud says that they grow up together. Meaning, they live together, grow up, and then they do the marriage when they are adults. When they are adults. But they begin living together immediately. The Talmud asks: why? After all, when they grow up it may become clear that the woman is barren or that he is infertile—in other words, that they cannot have children. Now if she is barren, then she is forbidden to enter levirate marriage, because she cannot establish a name for the deceased brother, and if that is so then he is forbidden to her because he is her husband’s brother. A brother’s wife—that is a forbidden sexual relation. Only where there is the commandment of levirate marriage, where they are capable of having children, is there a commandment of levirate marriage. But if they cannot have children, then there is no commandment of levirate marriage; it is the prohibition of a brother’s wife. So how is it permitted to let this minor boy and minor girl live together? Whether they are infertile or not only becomes clear when they are adults. So for the time being we still do not know. Therefore the Talmud says: because we follow the majority. Most women are not barren, most men are not infertile, and therefore we follow the majority and let them live together. This majority, says the Talmud, is a majority that is not before us. Why? Because there is no defined group of people here where I know that among them ninety-two are not infertile and eight are infertile. No. I only know that there is such a general rule in the world, that usually people are not infertile, male or female. That is called a majority that is not before us. And the question the Talmud is dealing with is: from where do we know that we follow a majority that is not before us? Because that cannot be learned from a religious court, since a religious court is a majority that is before us. That is the Talmud’s question. I’ll stop here; we’ll continue next time. If anyone has a comment or a question, you’re welcome.
[Speaker C] You left us in suspense.
[Rabbi Michael Abraham] Very good, that’s good. Okay, have a peaceful Sabbath. Thank you very much. Peaceful Sabbath.
[Speaker C] Thank you very much. To you too.