Doubt and Statistics – Lesson 7

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[Rabbi Michael Abraham] Okay, we need to look there, I don’t know, maybe. In any case, the importance here—I’ll show you in a moment, later on, the practical implication, and then you’ll see how important this definition is. My claim is that the point, the focal point of the issue, is that in a majority not before us, it is always a generalization from a sample. That’s really the claim. “Before us” and “not before us” are just indicators. The essential difference is not whether it is present in front of me or not present in front of me, but whether I used a sample or whether I know the whole reality. I didn’t make a sample and generalize from it; rather, I know the entire relevant reality. That’s the difference: was a sample used? That is really the difference between a majority before us and a majority not before us. Now look, this reminds me—maybe before that, just for a second—the question is, I said earlier that in both cases, in both cases, I use the principle that whatever separates, separates from the majority, even though usually, again, people associate that—or that expression is used—in the context of a majority before us, not a majority not before us. In principle, you can say it about a majority not before us too, but now you can understand why that expression fits a majority before us better. Because with a majority before us, I actually know information about this very piece as well. The whole question is where it came from—did it separate from the part that I know to be kosher, or from the part that I know to be non-kosher? In the case of a barren woman, or a woman who gives birth at nine months, or something like that, the woman herself did not separate from any group known to me. The two known groups remain where they were, and the woman did not separate from them; she does not belong to them. I want to draw conclusions about this woman from information I have about those groups over there. She did not separate from there. Okay? And therefore, really, the concept of separating—yes, whatever separates, separates from the majority—belongs more to a majority before us than to a majority not before us. Therefore the antithesis, fixed status, which is the antithesis of whatever separates, separates from the majority—in fixed status we do not assume that whatever separates, separates from the majority. According to most approaches, and this is the straightforward reading, the law of fixed status applies only to a majority before us, not to a majority not before us. But that’s for another time; we’ll still get to it.

In any case, maybe I’ll just illustrate a bit that point that is so easy to miss. What we really saw is that the difference between a majority before us and a majority not before us is not the question of how I relate the minority, or how strong it is, or how I relate the minority to the majority. The difference is the question of how the majority came into being. How was this whole picture created in the first place, according to which there is a majority with one property and a minority with another property? After that, the question of how I apply it to the case before me—that doesn’t matter. Once there is already a majority of eighty percent and a minority of twenty percent, okay, the case before me probably belongs to the majority and not the minority. That I say in both cases. Therefore the difference between a majority before us and a majority not before us is the question of how the majority was formed in the first place.

This reminds me, simply because it’s a similar logical mistake, of the same kind of mistake. In logic they distinguish between several kinds of inference. One kind of inference is deduction. That’s from the general to the particular. Yes, I say: all human beings are mortal, Socrates is a human being, conclusion: Socrates is mortal. Okay? So the conclusion here follows necessarily from the premises. Therefore it is customary to think that deductive inference is certain inference, secure inference, yes—there can’t be a mistake there. Now Stuart Mill has a famous challenge to deduction. His challenge to deduction basically says: true, if all human beings are mortal and Socrates is a human being, then the conclusion that Socrates is mortal follows necessarily. But how do you know that all human beings are mortal? How do you know that? If you don’t know that with certainty, then clearly you also can’t state the conclusion with certainty. All the certainty you have regarding the conclusion is because it follows necessarily from the premises. But if the premises themselves are not certain, then the conclusion also cannot be certain. Therefore, Stuart Mill basically argues that you cannot attribute certainty to a conclusion that comes from deduction. Not because the deductive process is not secure—it is secure. But because the premise you started from is not secure. After all, where does it come from? How do you know that all human beings are mortal? Of course, that is the result of a generalization from a sample. That is a majority not before us. It is a generalization from a sample. The human beings you know died, so you assume that all human beings are mortal. I don’t know—you didn’t check all human beings, and you also don’t know what will happen in the future to those human beings who have not yet died. Okay? But you assume that if most, most human beings who have lived until now have died, then apparently all human beings are mortal. From that point onward it is deduction, and the conclusion follows necessarily, all true. The big question is how you arrived at the premise on which you build your inference. How do you know that all human beings are mortal? You got to that by generalizing from a sample. Okay?

Now, basically, it is clear that Mill is right. The conclusion is not necessarily true. It necessarily follows from the premise; it is not necessarily true. But the premises themselves depend on how I arrived at them. Usually a general premise on which one can build a deduction is the result of induction. And therefore it cannot be certain, because induction is never something you can be sure is correct. And in that respect, and this is indeed correct, therefore no conclusion can really be certain even if it came from deduction. Why? Because the premises of the deduction are not certain.

So similarly, that is what I want to claim here. You infer that the woman before me is barren. How do you infer it? Because whatever separates, separates from the majority. Most women are barren, and this woman—the rule is that we follow the majority—therefore this woman too is not barren. Most women are not barren, therefore this woman too is not barren. Stuart Mill would ask you: but how do you know that most women are not barren? You didn’t check—how do you know? Induction, right? Or in other words, generalization from a sample. That is exactly the claim. Since there is a generalization from a sample here, there is an Achilles’ heel in this process. Following the majority is based on some kind of speculation. You assume that the examples you know are a representative sample, and therefore what happens there is apparently true of the whole population. But that is an assumption that may be true and may not be true. In the background there is some assumption that is difficult to justify. That is to say, maybe it is true, maybe it is not true, but there is something very problematic here.

By the way, that is one of the reasons—maybe the main reason—for the accepted assumption that a majority not before us is weaker than a majority before us. Why? Because with a majority not before us, you assume that the sample was representative, that what you encountered in the sample is also true of the population as a whole—an assumption that is not certain to be correct. Who said it’s correct? With ten stores, you do not assume that. I checked; there is no induction here. I checked: there are nine kosher stores and one non-kosher one. Therefore there is no element here of induction or of generalization from a sample. In that sense, a majority not before us seems more speculative, based on some assumption that is not itself justified.

By the way, notice: all our laws of nature are like this. Our laws of nature are the result of generalizations from a sample, of induction. And you always have to assume that the sample you encountered is a representative sample. Okay? Now true, if, say, regarding gravity, you observed that all objects with mass fall toward the earth. Now there you saw it with all objects—it isn’t eighty-twenty or ninety-ten or some distribution; it’s all the objects. That already sounds a bit stronger, to say, okay, if that’s the case then apparently all objects with mass fall toward the earth. The assumption that the sample is representative sounds more reasonable, because if it were not representative, then how did it happen that with all the stones they fell toward the earth? I would have expected that instead of seventy percent it would be ninety percent because it’s not a representative sample. If all of them fall, then the assumption is that it probably is representative too—but even that is not certain, only stronger. It could happen, by chance, that the stones here were special and they all fall; maybe stones in Australia don’t fall? So it is true that it sounds more convincing, but it is far from certain. Still, that is of course David Hume’s problem of induction.

So therefore, many, most of the medieval authorities (Rishonim) and later authorities (Acharonim) assume that a majority not before us is a weaker majority, because it is built on some kind of assumption or generalization, induction. The problem of induction exists there. In a majority before us, the problem of induction does not exist. Later I will get to a weakness that also exists in a majority before us. It is not true that a majority before us is flawless and a majority not before us is based on some unjustified assumption. A majority before us also has a defect, and it is not at all clear how much better or worse it is than a majority not before us. I’ll just say—I’ll get to that later, because I still need a bit more explanation first.

[Speaker B] And if the two of them clash, what happens? What? If the two of them clash.

[Rabbi Michael Abraham] Usually the majority before us prevails, but not because it is stronger, rather because you have complete information. Think of it this way: say most women in the world give birth at nine months, and you come to a fishing village in Greece where you know that there are a hundred women, or a hundred births so far, and most of them gave birth at seven months. Now a child comes before you—or even a woman, you know what, even a birth that hasn’t happened yet—a pregnant woman comes, and you ask yourself when she will give birth, at nine months or at seven. Most women in the world give birth at nine months, so the majority not before us says nine. And the majority before us of this village says seven.

[Speaker B] But if it’s a new woman, that’s a majority not before us.

[Rabbi Michael Abraham] Right. No, yes, it’s a majority not before us, but from this village. That’s why I said—meaning, if I ask a question about the child who was already born, then it’s a majority before us. I’m asking whether he was born at nine months or at seven months. Now clearly—I don’t know, to me it’s clear by reasoning, I don’t remember an explicit source at the moment, but it seems obvious—that a majority before us, otherwise really I have proof, yes? After all, is most meat in the world kosher or not?

[Speaker B] Yes, most animals are kosher.

[Rabbi Michael Abraham] No. Most meat in the world is not kosher.

[Speaker B] No, yes yes.

[Rabbi Michael Abraham] Slaughtered meat—after all, most animals are not slaughtered properly. Not because of defects that make them non-kosher, but because—

[Speaker B] Yes yes yes, the animal is not kosher.

[Rabbi Michael Abraham] Okay, but if I have a city with ten stores, nine kosher and one non-kosher, we follow the majority of kosher stores. Why? Because here I have specific information about this city, and the general laws of nature of the world are less important. It’s a bit similar to lawyers’ lex specialis, that the more specific rule always overrides the broader rule, because with something specific you know something focused about this environment, so clearly that is better information than general information about the whole world. Therefore I think that in this context—but not because a majority before us is stronger, rather because a majority before us speaks specifically about the population I’m interested in.

[Speaker B] But doesn’t that make it stronger precisely for that reason?

[Rabbi Michael Abraham] Not necessarily. Again, what does “stronger” mean? If they clash head-on, then it will prevail. But if, for example, I need to know whether we follow the majority in monetary law, okay? Then someone could come and say: look, maybe with a majority before us we do follow the majority, but with a majority not before us we do not. And by the way, there are people who wanted to say that. Then you could say it is only because a majority before us is stronger than a majority not before us. They are not clashing with one another; rather, the question is what each one does as compared to the other. I spoke about this. Now here I’m not sure that a majority before us is stronger than a majority not before us, because as I said, I’ll show you additional defects that exist in a majority before us as well. Okay? But the accepted view is that a majority before us is stronger. There is also proof for this from the Talmudic text. Because after all, the Talmudic text says that “follow the majority” — the Talmudic text we just saw—“follow the majority” teaches a majority before us. Right? And then the Talmudic text asks: and from where do we know a majority not before us? Now if a majority not before us were stronger than a majority before us, then it would be an a fortiori inference; what question is there? If a majority before us comes from there, then certainly a majority not before us comes from there. Therefore generally—and that is what Rabbi Shimon Shkop writes—generally the medieval authorities (Rishonim), or the later authorities (Acharonim), the medieval authorities (Rishonim), assume that a majority before us is stronger. And therefore the fact that “follow the majority” says that we follow a majority before us still leaves open the question whether we follow a majority not before us. Okay? In contrast, Rabbi Shimon Shkop himself argues that in Maimonides’ view he proves that a majority not before us is stronger. How does that fit with the Talmudic text? Let’s leave that aside for now, because as I said, in the Talmudic text itself there is anyway a puzzle as to what the conclusion of the Talmudic text is, so there you can insert whatever you want.

But how can one explain the idea that a majority not before us is stronger than a majority before us? One possible explanation is the following. I’ll illustrate it through an example. Once there was a confrontation in the Likud faction in David Levy’s time. David Levy complained—he had a faction within the Likud party—that the members of his faction were not getting positions. None at all. Thirty percent of the central committee were in his faction, let’s say—I’m just throwing that out now, I don’t remember the numbers—and they were not getting any positions. So the people there told him: what do you want? Democratic elections, they held a vote, and the majority decides, and everything is fine. You get your votes and we follow the majority. Very reminiscent of arguments going on today—it’s one standard. So David Levy told them: fools of the world. If you follow the majority, that means that when there is fifty-one against forty-nine percent, say two factions, one with fifty-one percent and the other with forty-nine percent, what percentage of the positions will the majority faction get? One hundred. One hundred percent. All the positions. Because on every single position they will hold a vote, and the fifty-one percent majority will defeat the forty-nine percent minority, and thus it turns out that one hundred percent of the positions are given to the faction that has fifty-one percent. In other words, this means that following the majority is a very bad mechanism for representation. Following the majority distorts representation. By the way, this is almost at the heart of the arguments going on today. I won’t get into that here.

The claim basically is that—another example, yes, another example also somewhat touches on what is happening today. Another example is always the Supreme Court. The Supreme Court has fifteen judges. Okay? Of them, there is a percentage of religious judges—today at least; once there was one “religious seat,” but today the percentage of religious judges is more or less their percentage in the population, maybe even more. Okay? And nevertheless, in most decisions where there is a difference—which is almost all of them—decisions where there is a difference between religious and secular people, the ruling goes in the secular direction. Not in seventy percent of decisions versus thirty percent, but in one hundred percent or ninety-five percent. Why? For exactly the same reason: because there is always a secular majority on the panel. The fact that thirty percent of the panel is religious—what does that mean? In one hundred percent of the cases the secular majority will decide against the religious minority. So what does it help me that there is one religious judge out of three? In zero percent of the cases will Jewish law be ruled in accordance with him. Unless, say, out of the fifteen judges, let’s say—say thirty percent are religious for the sake of discussion in the population—you put in five religious judges and set up the panels in such a way that in thirty percent of the panels there will be a religious majority. A religious majority. Not that thirty percent of the judges are religious, but that in thirty percent of the relevant cases—yes, those relevant to the dispute between religious and secular—there will be a religious majority. That would lead to representation. But that isn’t done. Whoever determines the panel makes sure that there is always the right panel.

[Speaker D] Rabbi, but the Rabbi is assuming there is no mutual persuasion here. After all, the fact is that in order to issue— the Rabbi is assuming that everyone is fixed in their opinion and there is no mutual persuasion.

[Rabbi Michael Abraham] No, no, I’m speaking here in broad strokes, of course, I don’t mean to get into the details right now. Obviously there are differences of opinion among religious people too, and among secular people too. I’m trying in general to illustrate—

[Speaker D] No, I mean to say that if there are thirty percent religious judges and they make their voices heard with thirty percent of the decibels and thirty percent of the arguments, maybe they will change the opinions of the majority.

[Rabbi Michael Abraham] No, but if it’s in a panel of a hundred—if it’s in a place where the issue depends on the judge’s values, whether he is religious or secular, then he won’t persuade him, he won’t make him religious. It’s not an argument. It is true that even the religious do not always agree on the same thing, nor do the secular. I’m talking about cases where, say, very clearly, values are involved. You’re reminding me of the last ruling of Miriam Naor, the former president, okay? Her last ruling was the supermarket ruling. In the supermarket ruling there were seven judges, five secular and two religious. The five secular judges ruled in the secular direction, the two religious judges ruled in the religious direction. By the way, that happens in very many of the—there are lots of examples of this. That did not stop Miriam Naor from saying that the question is a purely legal question with no connection to values, that everything is professional. It’s unbelievable. It is fake from within. Now I’m not accusing a judge of using his values; that’s the nature of the world. But don’t deny it—that’s simply a lie. And example after example, you can check it. It works, it works in a whole long series of examples.

So for our purposes—fine, but let’s get back to our matter—the claim, ultimately, is that David Levy’s claim was a correct claim. Fairness says that if you have thirty percent of the votes, you should get thirty percent of the positions. Following the majority will give one hundred percent of the positions to the majority faction even if the majority is tiny. That may be the power of a majority not before us. What happens with a majority not before us? With a majority not before us, every woman who comes before me I will decide is not barren. After all, I know that there are twenty percent barren women among women. But if every single woman passes before me and I have to decide about each one, I will decide about all of them that they are not barren, because on each one I apply the rule of a majority not before us. In contrast, with pieces of meat it is less simple. With pieces of meat, after all, I know that there are twenty percent non-kosher pieces in this city, or ten percent, okay? There it is not so simple to decide that about one hundred percent of the pieces I will say they are kosher. There are, for example, disputes among the medieval authorities (Rishonim)—the Rosh and the Rashba in Bedek HaBayit, and all the well-known discussions—regarding following the majority in dry mixed with dry, a mixture of dry items with dry items: among the medieval authorities (Rishonim) there are disputes about what happens with the last two pieces, where one forbidden piece is mixed into many permitted pieces—what happens with the last two pieces? With the last two pieces, if one of them is the forbidden one, then there is one forbidden against one permitted; there is no longer nullification by majority. A situation like that can exist only with a majority before us. There are ten pieces before me, one of them is not kosher, and I know all of them: nine are kosher and one is not kosher. Now the question is which one is the non-kosher one. Here it is already very far from simple to say, okay, eat all ten because after all we have a majority. In a majority before us, there is a non-kosher piece before me; I cannot ignore that fact. In a majority not before us, each and every case that comes before me is, from my perspective, one hundred percent permitted, because I apply the law of nature to this case. And that is despite the fact that I know this law of nature has exceptions, meaning there is a minority that does not behave this way. But from my perspective, since it is a law of nature, then as if in one hundred percent of the cases I decide that certainly it is permitted.

So that may perhaps explain why a majority not before us is stronger in its application—not in terms of statistical strength, but in its application—than a majority before us. Because with a majority not before us, from my point of view it is one hundred percent; it is the nature of the world. It is not something accidental. With a majority before us it is something accidental. I happen to live in a city where the distribution of stores is nine against one. There is another city where the distribution is the reverse. There is no law of nature in the world that stores are distributed nine kosher and one non-kosher. That is an accident. It just happens that in this city this is the situation. There is nothing in the nature of the world that compels reality to be this way. In contrast, women giving birth at nine months—it is not accidental that most of them give birth at nine months. The laws of nature create this; it is the nature of the world. There is a reason that this happens. Another way to see why a majority not before us has a side that is stronger than a majority before us is that with a majority not before us I have a positive reason to assume that this woman will give birth at nine months, because the nature of the world is that women give birth at nine months. That means there is a force that causes me to infer the conclusion that this woman will give birth at nine months and not at seven, because the natural mechanism in the world is such. In the case of most stores, there is no mechanism; it is simply a reality that happened to arise here. There is nothing that compels reality to be specifically this way. There is no force pushing the piece to be kosher, but there is a force pushing the woman to give birth at nine months: the laws of physiology. Okay? So those are considerations that can perhaps explain why there is a side according to which a majority not before us is stronger than a majority before us, which is Maimonides’ position according to Rabbi Shimon Shkop. That is what Rabbi Shimon Shkop claims.

Well, in any case, I return to our matter. The claim ultimately is that the difference between a majority before us and a majority not before us is that a majority not before us is based on generalization from a sample, whereas a majority before us is based on direct observation. Yes, we talked about this in the previous series—that laws of nature, which usually, if you ask a person on the street, including scientists by the way, they’ll tell you that laws of nature are the result of observation. Empirical science, the laws of the natural sciences are empirical sciences, a result of observation. Nonsense. No law of nature is the result of observation. A law of nature begins from observation, but the observation is always made on a sample. And your assumption that this sample is representative—that is really the assumption of induction—is an assumption you bring from home. True, we have indicators to try to create a representative sample, or diversity in the evidence, or all kinds of things—philosophy of science deals with this somewhat—how to increase my confidence that the sample is representative. But I can never be certain. And therefore the problem of induction always accompanies the laws of nature, okay? Laws of nature are not the result of observation. A majority before us is the result of observation—and specifically a majority that has nothing to do with the nature of the world, something completely accidental. Only accidental things are the result of observation. Laws of nature are never the result of observation. That sounds strange at first glance, but it seems to me that after what I explained earlier it is self-evident. Okay? Science is not observation. On the contrary, random things that have no connection to science are the result of observation. Think about it, it also makes a lot of sense. Because if it were not the result of observation, how would I know it is true? After all, it is something accidental; there is no logic behind it. I need to know that in this city the distribution of stores is nine against one. How would I know that? Only if I saw it. With a majority not before us I have indications that this is how things happen even without observation. And therefore precisely there I do not need observation; precisely in science one needs less observation than in random phenomena, phenomena that are not connected to the nature of the world and to the laws of nature. Okay, now I want to—I—

[Speaker E] want to go now into the question of what happens in a religious court.

[Rabbi Michael Abraham] I mentioned earlier that the Talmudic text—maybe, you know what, I’ll do something else—no, fine, I’ll do it like this. The Talmudic text brings two examples of a majority before us. One example is nine stores; the second example is the Sanhedrin, meaning majority in a court. Now what?

[Speaker E] The Talmudic text—

[Rabbi Michael Abraham] says that a majority in a court is a majority before us, explicit Talmudic text, okay?

[Speaker E] Now look how Sefer HaChinukh, how Sefer HaChinukh explains why we follow the majority in a court. And choosing the majority is according to the similarity—

[Rabbi Michael Abraham] “when the two opposing groups know the wisdom of Torah equally, for it cannot be said that a small group of sages should be overruled by a large group of ignoramuses, even if they were as numerous as those who left Egypt.” Sefer HaChinukh is not among the great believers in the wisdom of the masses, okay? Meaning, he says that if there is a difference or gap in Torah level, in intelligence, in wisdom, between the judges, then we do not follow the majority. We follow the sages. If I have three sages and six hundred thousand ignoramuses, who is right? The six hundred thousand because they are many? They can be as many as those who left Egypt—what do I care. Whoever is wiser is probably more correct. Therefore the rule that in a religious court we follow the majority was said only in a place where the sages are equal in their Torah level and in their intelligence. Equal meaning more or less, of course; it is hard to be exact here, but there are no clear gaps in their level, okay? “But when the wisdom is equal, or approximately so, the Torah has informed us that a greater number of opinions will always agree with the truth more than the minority. And whether they agree with the truth or not according to the listener’s opinion, the law requires that we not depart from the way of the majority.” Okay? Then regarding the Sanhedrin he disagrees, he makes an exception for the Great Sanhedrin, but for our purposes that is less important.

What is he really assuming here? He assumes that the majority in a court—the rule of following the majority in a court—what is its purpose? To arrive as optimally as possible at the truth, right? That is basically the assumption. So let’s see how one arrives at the truth in the best way. If among the judges there are, I don’t know, one, two, or three who are exceptionally wise, standing out in their wisdom, and there are many others who are less so, no matter how many, then we will follow the wise ones. Why? Because following the majority is not an end; it is a means. It is a means to arrive at the truth. But if the sages disagree with many ignoramuses, or less wise people, significantly less wise, then we will follow the sages because they will lead us to the truth, not the majority. Meaning, the majority has instrumental value. If it leads us to the truth, we follow the majority. But if it is clear that the majority is not an indication of truth, then we do not follow the majority. Where do we follow the majority? When the judges are more or less on the same level, the same Torah level or level of talent and so on. There I follow the majority because usually the majority comes closer to the truth than the minority. That is Sefer HaChinukh’s assumption.

There is a dispute about this, and that dispute continues all the way down to the later authorities (Acharonim): what happens in a court that is not equal, not equal in Torah level? Do we count feet or do we count heads? What is the deciding majority? Is the deciding majority the majority of wisdom, or is the deciding majority the majority of people? It is commonly ruled that we go by the majority of people, but there are later authorities (Acharonim) and medieval authorities (Rishonim) who argue no, we go by the majority of wisdom. And if there are very wise judges against others, then Jewish law will follow them even if they are in the minority. But Sefer HaChinukh says no. So let’s go for a moment with Sefer HaChinukh. So Sefer HaChinukh is basically—Sefer HaChinukh is basically arguing—no, Sefer HaChinukh, sorry, Sefer HaChinukh says yes. Sefer HaChinukh says wisdom determines, not the majority of people.

[Speaker E] Now the question that arises here is—

[Rabbi Michael Abraham] what is the nature of this majority.

[Speaker E] Is this a majority before us or—what kind of majority? A majority of wisdom?

[Rabbi Michael Abraham] The majority in a court. The judges.

[Speaker E] The judges—

[Rabbi Michael Abraham] are sitting before us. The three judges are sitting before us. Two say Reuven owes Shimon, and one says not. So ostensibly this is a majority before us; they are present before us. But notice how Sefer HaChinukh says it. Look again at the sentence I underlined: “that a greater number of opinions will always agree with the truth more than the minority.” What is that?

[Speaker B] He says that one should follow the majority because in most cases the majority is right.

[Rabbi Michael Abraham] Exactly. And if you examine many, many decisions of many panels that split, say, two against one, you will find that in most cases the majority was right and not the minority. I am of course phrasing it in my own language, but he says that “a greater number of opinions will always agree with the truth more than the minority.” So here there is—it’s an explanation—it is simply a majority not before us.

[Speaker F] And that is on the assumption that all the sages are equal in their wisdom?

[Rabbi Michael Abraham] Yes, in the case—I mean, I would only check cases where the panels were more or less equal in wisdom. In such panels, usually the majority will come closer to the truth than the minority. Sometimes it will be otherwise, but in most cases the majority will get closer. Now notice: what is the majority and minority here? Is it a majority of judges against a minority of judges? No. According to Sefer HaChinukh, it is a majority of cases in which there was a split, a dispute among judges. In most cases the majority was right; in a minority of cases the majority erred or the minority was right. The majority and minority here are not the judges within the court, two against one, but the cases in which the majority is right versus the cases in which the majority is wrong—and in most cases the majority is right. Now is this a majority before us or a majority not before us? Unambiguously not before us.

[Speaker B] Not before us, if that’s the case. Unambiguously.

[Rabbi Michael Abraham] Why? Because I examine this on the basis of phenomena in the world; these are not cases that come before me. I say: reason says that in most cases the majority of sages will be more correct than the minority. Not because I checked here and saw three judges—which one is right and which one is not—and then I say okay, so apparently this case belongs to the majority and not the minority. I do not have direct observation, right? This is the result of some kind of generalization. It is not that I have all the cases before me. Think about it: the case now before us, the majority ruled that Reuven owes, and the minority ruled that Reuven is exempt. Now I want to know whether the majority was right. How do I know? I say because in most cases the majority is right. Is this case one of those majority of cases? No. After all, this is a new case. It is like the barren woman where I want to decide whether she is barren or not. Let’s say that in previous cases I saw that the majority was right in most cases. Now a new case comes before me. I want to know what happens here—was the majority right here too? I say okay, if usually the majority is right, I will assume that here too the majority is right. That is really a majority not before us.

[Speaker C] Rabbi, can’t one say that it is even more fundamentally not before us, because with judges in general, what does “right” even mean? How do you even know that one of the judges in the world is right? On what basis do you know he is right? When was it ever determined that someone is right? How can you determine whether judges are right or not right? It’s not a factual matter, it’s a value matter. What does “right” mean?

[Rabbi Michael Abraham] No, no, that is not connected to values, but that is an excellent question. And I will get to it—I don’t know if today already—I will get to it, but I will give the opposite answer from the one you gave. That is the reason why this is a majority before us and not a majority not before us, but we’ll soon see. By the way, there was such a story, yes? The famous example here is DNA in the United States. Once DNA became admissible evidence in court, they checked various cases of, say, murderers who were convicted, rapists who were convicted. They checked those cases in which there was also DNA evidence that could be tested. They checked, and it turned out that there were quite a number of cases in which there had been an error in the ruling. And that was a very rare case in which one could check whether the ruling had been correct or not correct. But of course, usually that does not exist; we’ll see this in a moment.

[Speaker B] For our purposes, Rabbi, wait a second—according to Sefer HaChinukh, if this is a majority not before us, how do we learn it from “follow the majority”?

[Rabbi Michael Abraham] Okay, that is what I’m asking. And according to this Sefer HaChinukh as well, it comes out that the majority in court is a majority not before us. Now in the Talmudic text itself, it’s not only the question of how we learn it; the Talmudic text itself says that it is a majority before us if it is—what do we learn from “follow the majority”? A majority before us. In what? Such as stores and the Sanhedrin. Meaning, those are the two examples of a majority before us. So it is not merely a difficulty from the flow of the discussion or from how we know that the majority here determines it. It is a frontal contradiction to the Talmudic text. The Talmudic text says that a majority in court is a majority before us.

By the way, there is an interesting Mordechai in tractate Hullin. The Mordechai asks: in a court there are three judges sitting there, two say Reuven owes, one says Reuven is exempt. So we follow the majority. Says the Mordechai: what do you mean? But this is fixed status. After all, the judges are in their places; no one separated and went outside. What happens in stores? In stores, the piece of meat separated from one of the stores and is now in the street. So I ask where it separated from, assuming that it separated from the majority group. But if I ask—I’m getting a bit ahead of myself—but if I ask about a piece of meat inside a store: I went into a store, took a piece of meat, and forgot from which store I took it. Here we do not follow the majority. This is the law of fixed status. Because the piece did not separate from the stores; the doubt arose while the piece was still in its place. Only afterward did I take it outside. But the doubt arose at the moment when the piece was still in its place, so this is the law of fixed status; there is no separation here. It did not separate. Consequently there it is like a case of doubt; it has the law of doubt, and we do not follow the majority. That is the law of fixed status. We’ll discuss it further. The Mordechai asks: what happens in a court? There too the judges are sitting fixed in their places; no one separated from the seat of the court.

[Speaker B] No, but there is no doubt in reality; there is only knowledge of how to proceed. There is no doubt who said liable and who said exempt. Right? We just don’t know what to do, so we listen to the majority.

[Rabbi Michael Abraham] Why? Just because the question arose—what does that have to do with following the majority? What? So what does that have to do with following the majority? What does it have to do with following the majority at all?

[Speaker B] It has to do with following the majority because the majority is usually right.

[Rabbi Michael Abraham] Like Sefer HaChinukh. That is what Sefer HaChinukh answers. Sefer HaChinukh says that indeed, on the face of it, Sefer HaChinukh’s motivation for saying what he says is very understandable. From the fact that I have here two judges saying that Reuven owes and one judge saying that Reuven is exempt—what does that have to do with questions of following the majority? In what way is this similar to stores? In stores I have a question where the piece of meat came from, from a kosher store or from a non-kosher store. After all, it probably came from the majority stores. But here, what is my question? Who is the majority, who is the minority—what does that have to do with whatever separates, separates from the majority? Therefore Sefer HaChinukh indeed says: leave it. The majority and minority are not a majority of judges and a minority of judges. It is a majority of cases in which the majority was right versus a minority of cases in which the majority erred. And now the question is: this case before me, where there is a majority against a minority, does it belong to the majority in which the majority is right, or to the minority in which the majority is wrong? So the majority and minority under discussion are a majority and minority of cases; it is not a majority and minority of judges. That is Sefer HaChinukh’s solution.

Except that Sefer HaChinukh’s solution is difficult, because in the Talmudic text itself it says that a majority among judges is a majority before us, not a majority not before us. The Mordechai, of course, assumes the simple reading of the Talmudic text, that it is a majority before us. Then he says: wait, but the judges are fixed in their places, so why on earth do we follow the majority? This should be a case of fixed status. And he has there extremely strange answers. He claims that the judges’ voices, when they say Reuven owes or is exempt—the voice separated. The judges are sitting in place, but their voice flew through the air and left the seat of the judges, so it separated. I am sure this is a metaphor. It is hard for me to believe that he literally means that there is some actual physical separation of the matter here; that is simply bizarre. In my view he certainly does not mean that. But in any case, I brought this only to illustrate why Sefer HaChinukh interprets against the Talmudic text. The explanation for why to interpret against the Talmudic text, the motivation for interpreting against the Talmudic text, is very understandable. Because in the Talmudic text itself it is really not clear at all how this belongs to a majority before us. What is the connection between majority in the Sanhedrin and majority among stores? So Sefer HaChinukh found an excellent explanation. The only problem is that this explanation turns the majority in court into a majority not before us, while the Talmudic text says that the majority in court is a majority before us.

[Speaker E] Here a question came up: how can we understand this majority? Here—

[Rabbi Michael Abraham] Well, the truth is that here I need a bit of time to explain it, so maybe we’ll stop here. We’ll stop here, and I’ll give the explanation next time. If there are questions or comments. Rabbi, I don’t think that even when you discover—when there is DNA technology—it turns the discussion, supposedly, retrospectively—Rabbi, Rabbi?

[Speaker C] Yes. Rabbi, I don’t think that even when there is DNA technology, it turns the discussion, retrospectively, into who was right and who was not right. Because even the judges who ruled that he was guilty, and in the end it turned out he was not guilty, were right, because they did not say it with certainty; they could never say it with certainty. If they could not say it with certainty, then they are saying: in light of the data, the correct thing is to convict him. But they cannot know—they are not God—they do not know with certainty. The fact that retrospectively it was revealed to be incorrect, still, if you ask them, did you make a mistake, do you beat your breast, do you repent—I don’t think so.

[Rabbi Michael Abraham] I have no criticism or accusation toward the judges.

[Speaker C] No, no, I’m saying it didn’t make them not right or yes right.

[Rabbi Michael Abraham] It made them not right because they thought—and he did not murder.

[Speaker C] No, who says that when a judging panel says something, it is saying: I know, I am determining the facts of reality with certainty? I’m not—I’m saying what the correct thing is to do, what the right course of action is, in light of this lack of—

[Rabbi Michael Abraham] certainty.

[Speaker C] I think one should act this way. The fact that reality turned out otherwise does not mean—

[Rabbi Michael Abraham] Semantics. In the end the judge, the judge ruled that Reuven murdered. If the judge ruled that Reuven murdered—

[Speaker C] No, he did not rule that Reuven murdered; he ruled that in light of the data we treat him as if Reuven murdered.

[Rabbi Michael Abraham] Is that what is written in the ruling?

[Speaker C] What is he, a prophet or what? After all, there is a possibility that not; he knows there are sides suggesting not.

[Rabbi Michael Abraham] In the end he ruled that Reuven murdered, despite the possibility that not. Beyond a reasonable doubt.

[Speaker C] Does the Rabbi know such a judge, who says: I know, I have a feeling, I am one hundred percent sure? No—he said the probability is very, very high.

[Rabbi Michael Abraham] I didn’t say one hundred percent. I said the judge—in a criminal trial, the rule is that it has to be beyond any reasonable doubt. Right, exactly. So beyond any reasonable doubt means that Reuven murdered him. Given the data they had, it was beyond any reasonable doubt. It could be that half a percent says maybe not, but as far as I’m concerned, Reuven murdered him. That’s all.

[Speaker C] He behaves as though he murdered him, not—

[Rabbi Michael Abraham] —that he really knows. Not “as though”—he murdered him. Not “as though”—he murdered him, period. It’s just that it isn’t certain, okay? It’s ninety-nine and a half percent, okay, but still, as far as I’m concerned, he murdered him and I hang him for that. I hang him because he murdered him. And if the ninety-nine point zero—

[Speaker C] And in the end, statistically it turns out that it was the zero point nine percent, out of the zero point one—so I was mistaken? I wasn’t right?

[Rabbi Michael Abraham] No, you weren’t right.

[Speaker C] No, you were right that it was beyond any reasonable doubt. At the time, it was beyond any reasonable doubt.

[Rabbi Michael Abraham] Listen, you can argue about semantics, but that really doesn’t interest me. What difference does it make whether you call that being right or not being right? It turned out that Reuven didn’t murder him. If he had known that fact, he wouldn’t have convicted him, right?

[Speaker C] He would have factored it into the data, and he certainly would not have convicted him.

[Rabbi Michael Abraham] Right. That’s all. In light of the reality that turned out differently.

[Speaker C] Does he need to repent or does he not need to repent?

[Rabbi Michael Abraham] Fine, that’s relevant to the question of whether I would blame the judge. That doesn’t interest me; I’m not blaming him.

[Speaker C] No, I’m talking about the topic we’re discussing today, about majority that separated, not majority that separated. I want—we wanted to say that there’s an element here where you can’t really determine at all whether judges are right or not right. To say that the majority is right—because you have no sample that establishes that.

[Rabbi Michael Abraham] Sometimes it was discovered—I brought DNA evidence.

[Speaker C] So what I’m saying is, when the Rabbi assumes that “right” means what the correct facts of reality are—I’m saying that “right” means what is the correct way to act in light of the existing data, which includes a certain degree of doubt.

[Rabbi Michael Abraham] No, that’s just not correct. You can define things however you want, but the relevant discussion is the one I’m talking about. You can define the concepts differently and have a different discussion. The discussion I’m talking about is the question whether Reuven murdered him. That’s the question. Because if he didn’t murder anyone, nobody wants to kill him. The judges say: according to the data in our hands, beyond any reasonable doubt he murdered him, and afterward it turns out they were mistaken. And if they had known that, he would not have been executed. That, as far as I’m concerned, is what’s called a mistake. You can define that as not a mistake, and then it won’t be a mistake—I have no problem with that, I don’t care, it’s semantics. But the discussion I’m conducting is this discussion. And now the question—we’ll talk about this more next time—is how one can check whether a judge was mistaken or not mistaken. Not in the sense that he is always right for his time, as the phrase goes, “truth for its time”—there was that whole thing about Jenin, “the truth for its time.” I’m not talking about that. I’m talking about the question whether it’s really possible to check, even in my sense, whether the judge was right or mistaken. We’ll talk about that more next time.

[Speaker D] Okay, let’s stop here.

[Speaker E] Thank you very much, good night,

[Speaker C] Sabbath peace.