Majority in Halacha and in General, Lesson 1
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- Yitzhak Ben-Aharon, the 1977 elections, and the distinction between determination and justice
- Condescension, tolerance, and pluralism
- Plato, rule by the wise, and the arguments against it
- Capitalism versus socialism as a value-based decision
- Majority in a religious court versus majority in a community and in a state
- Yitzhak Baer versus Haym Soloveitchik and the historical source of communal governance
- Rabbeinu Tam, the Rosh, and the rationale of “you simply can’t manage otherwise”
- Types of “majority” in Jewish law and their connection to “follow the majority”
- Mechanisms of public representation beyond simple majority rule
- Politics versus Jewish law and rabbinic authority in exile
Summary
General Overview
The text distinguishes between two different questions about majority rule: whether the majority determines, and why; and whether the majority is right, and why. It argues that confusing the two creates unnecessary disputes. It presents the story of the statement attributed to Yitzhak Ben-Aharon after the 1977 elections and concludes that there is a difference between not honoring the people’s decision and not accepting it. From there it moves to a principled clarification: in a democratic majority, the goal is not to arrive at truth or at “what is most correct,” but to reflect what the public wants, based on its right to determine its own fate even if it makes a mistake. Against that backdrop, it argues that trying to ground communal majority rule in the verse “follow the majority” is a questionable extension, and that the halakhic discussion of communal decision-making arose historically because authority was concentrated in the hands of the rabbi in exile, and is not binding as Jewish law in the principled sense.
Yitzhak Ben-Aharon, the 1977 elections, and the distinction between determination and justice
The text says there is no problem with saying that the people made a mistake, because a majority can also be wrong. The real problem is attributed more to the phrase “replace the people,” which sounds condescending, even though the intent was figurative and expressed frustration. It cites a letter by Uri Zar from Mishmar HaEmek in the newspaper Haaretz, claiming that “replace the people” was never said, and that Ben-Aharon said on the night of the political upheaval that if this was the people’s decision, he was not prepared to honor it—distinguishing between an obligation to accept a democratic decision and the absence of an obligation to respect it. The text argues that the confusion is between the question of whether the majority determines—which cannot be denied within the legitimacy of democratic rules of the game—and the question of whether the majority is right, where it is permissible and even legitimate to think that the majority is mistaken.
Condescension, tolerance, and pluralism
The text rejects the claim that merely saying “you’re wrong” is condescending, and presents that as the basic logic of disagreement. It argues that when people see a moral problem in saying that the other side is wrong, the value driving them is not tolerance but pluralism, because tolerance allows one to say “you’re wrong” and still let the other person act as they see fit. It adds that from a pluralist point of view, it makes no difference whether this is the view of the majority or the minority, because in any case there is no real meaning to “right and wrong,” at most only some technical rule of the game.
Plato, rule by the wise, and the arguments against it
The text presents the Platonic proposal to entrust decisions to wise people or professionals, and even a weighted version in which votes would carry weight according to education or intelligence. It presents three typical responses to that proposal: the difficulty of defining and measuring what kind of wisdom is relevant to each decision; the fear of abuse of power because of interests and biases; and the claim that some decisions are value-laden rather than factual, so there is no relevant “function” of expertise that could settle them. It says that even the value-based argument depends on the philosophical question of whether there is truth in morality, but even if there is moral truth, it is still hard to build a mechanism that gives extra weight to those who are “morally right.”
Capitalism versus socialism as a value-based decision
The text argues that the fundamental debate between capitalism and socialism is a value-based argument between freedom and equality, not a factual argument about outcomes, and therefore data and observation do not settle the heart of the issue. It describes the capitalist position as focused on freedom even at the price of inequality, and “essential” socialism as focused on equality even at the price of shared poverty, distinguishing this from “apologetic” socialism that promises prosperity. It uses this example to show that there are questions in which “wisdom” is not a relevant criterion, because the decision is about which value the public wants to prioritize.
Majority in a religious court versus majority in a community and in a state
The text argues that “follow the majority” was said about a religious court, where the search is for halakhic truth, and therefore the majority is a decision rule aimed at coming closer to the truth, even if it does not guarantee it. It claims that majority rule in a community or a state is not a mechanism for finding truth, but a mechanism for representing the public will, because the democratic assumption is that both the individual and the public have the right to decide their own fate even if they make mistakes. It explains that the public question arises because there are conflicting desires and there is no direct way to define “what the public wants,” so decision mechanisms are adopted, and majority rule is a simple and primitive mechanism among other possibilities.
Yitzhak Baer versus Haym Soloveitchik and the historical source of communal governance
The text presents a historiographical dispute: Yitzhak Baer argues that methods of governing Jewish communities in Europe were influenced by Roman law, whereas Haym Soloveitchik sharply objects and argues that Judaism itself is the source of following the majority, by virtue of “follow the majority” and rabbinic stories such as the Oven of Akhnai. The speaker agrees with Yitzhak Baer and argues that democracy does not derive from “follow the majority,” because these are two different ideas: in democracy the question is the will of the public, not normative truth determined in a religious court.
Rabbeinu Tam, the Rosh, and the rationale of “you simply can’t manage otherwise”
The text describes how the medieval authorities (Rishonim) discussed how a community makes decisions: by a vote of all members, or through the “best men of the town.” There the question arose whether to follow the majority. It presents Rabbeinu Tam’s view, which requires unanimity and does not allow the majority to bind the minority, and the response of most of the medieval authorities (Rishonim) against him. But it emphasizes that the writings of the Rosh and the Rashba repeatedly add a practical rationale: without majority rule, “the community would never agree on anything,” and therefore a community cannot be governed. It concludes that this recurring practical reasoning shows that even those who disagree understand that extending “follow the majority” from a religious court to communal governance is not a textual knockout proof, but an extension made out of functional necessity.
Types of “majority” in Jewish law and their connection to “follow the majority”
The text distinguishes among several laws of majority in Jewish law: “follow the majority” as a statistical tool for clarifying reality; “its majority is like its entirety” as a halakhic mechanism in which a majority within a whole is treated as though the whole were that way; and nullification in a majority, where prohibited matter is nullified within a majority of permitted matter. It argues that statistical majority belongs to a process of approaching the truth, and so it makes more sense to derive it from “follow the majority,” whereas “its majority is like its entirety” and nullification in a majority do not have the same structure of truth clarification. It mentions the well-known discussion of whether majority is clarification or conduct-guidance, and uses the image of “statistics” to emphasize the simple intuition of using majority for clarification.
Mechanisms of public representation beyond simple majority rule
The text says that there are many mechanisms for representing the public will beyond a simple majority rule, and describes the existence of a mathematical-economic literature that formulates criteria for a representative mechanism. It mentions a book by Shmuel Nitzan from the Open University, which presents such criteria along with the mathematical impossibility of satisfying all of them together, and from there the need to compromise on some of them in order to approach an “optimal” representation. It gives a principled example of proposals such as giving weight to the intensity of harm to a minority when an issue is acutely important to it, as opposed to the majority’s relative indifference.
Politics versus Jewish law and rabbinic authority in exile
The text argues that questions of communal governance are political questions, not halakhic ones, and that their referral to Jewish law arose historically because authority was concentrated in exile, when religious courts and rabbis effectively filled governmental roles. It says that when a rabbi answers the question “what should be done,” his answer is automatically perceived as Jewish law and enters frameworks such as the Shulchan Arukh, but in the speaker’s view this does not carry binding halakhic force; at most it has the weight of wise counsel or custom. It concludes that someone who refuses to accept majority authority in a community is not necessarily violating a halakhic problem, even if that is practically unreasonable, and ends by arguing that these sections of the Shulchan Arukh are not binding “halakhic Torah” but rather a product of communal customs and structures of authority.
Full Transcript
[Rabbi Michael Abraham] Greetings and blessings. And majority. The concept of majority appears in all sorts of contexts, in Jewish law of course, but also beyond Jewish law. We’re used to decisions being made according to the majority, and so on. And I wanted to touch a little on a few basic principles of this concept, maybe also to warn about a few difficulties. There’s a statement attributed to Yitzhak Ben-Aharon after the 1977 elections, that he said the people made a mistake and the people need to be replaced. And to this day, it seems to me, that’s still quoted as some kind of eternal disgrace, as this sort of arrogant statement or whatever, all kinds of expressions of that sort. But I started looking a bit into what exactly this was about.
[Speaker B] What did Yitzhak Ben-Aharon say—that the people made a mistake?
[Rabbi Michael Abraham] The people made a mistake and the people need to be replaced.
[Speaker B] Right after—
[Rabbi Michael Abraham] —that the Alignment—
[Speaker C] lost, and Begin won.
[Rabbi Michael Abraham] The truth is, the first part didn’t seem problematic to me at all. The people made a mistake?
[Speaker D] Yes, what—
[Rabbi Michael Abraham] Can’t it be that the majority is wrong? So what’s the problem?
[Speaker E] You sound to me—
[Rabbi Michael Abraham] a bit hard on the majority like that? Yes, you’ll see in a minute. You don’t know me well enough. So to me that seemed clearly a completely legitimate and possible matter, maybe even more than merely possible. “Replace the people” is of course some kind of statement…
[Speaker B] But today what’s in fashion is the wisdom of the masses.
[Rabbi Michael Abraham] Yes, we’ll get to the wisdom of the masses too. The masses, not mass-produced nonsense, so to speak. But we’ll get there. In any case, “replace the people” already sounds like a somewhat more problematic expression, but again, I don’t think anyone seriously imagined that he literally meant replacing the people. It’s just an expression. He meant: instead of replacing the government, they should have replaced the people. Figuratively. A matter of frustration. Yes, exactly. He was in shock. Could be, yes. But I’m saying that overall I really didn’t see a big deal here. I mean, I don’t know why everyone pounced on him so much. I found some kibbutznik from Mishmar HaEmek, a man named Uri Zar, who wrote a response in Haaretz. When? Back then? Yes. So he says this: In the article surveying the life path of Yitzhak Ben-Aharon—it was probably later, from some retrospective perspective—it was said that following the Labor movement’s loss to Likud in the 1977 elections, he said, “If this is the will of the people, then the people must be replaced.” It never happened, nor was it even a parable. There’s no such add-on, as Rabbi Chaim says. In the Israeli television broadcast on the night of the upheaval, Ben-Aharon said, after hearing the results of the television exit poll, that if this was the decision of the people, then he was not willing to honor it. That’s what he said there. This segment was rebroadcast on the day of his death in 2006, eight days after his death, on the news journal. There is a substantive difference between the claim that the people should be replaced and what Ben-Aharon actually said. In a democratic regime, there is an obligation to accept the people’s decision in elections, but there is no obligation to hold it in esteem. Or in other words, there is no problem at all with saying that the people made a mistake. That’s legitimate, and in many cases it’s probably even true. And of course, you accept the majority’s decision. But “honor,” again, is also a concept that can be interpreted in two ways. Not honoring the decision can sometimes mean not implementing it, and then maybe that really is illegitimate. But not honoring it in the sense of not giving it respect, not valuing it—that’s completely fine. So I’ll use this opening in order to start discussing two questions. The first question is whether the majority determines, and why. And the second question is whether the majority is right, and why. And the “why” here is in even bigger parentheses, because first of all you have to decide that it is right, and only then can you look for an explanation. And basically the claim in that argument, or the confusion in that discussion, seems to me to be between these two questions. Meaning, if you say that the majority does not determine—that, and we’ll get to that too, and also to the connections between them. So let’s start from that point and then we’ll roll on from there. So as I said, to say that the majority does not determine—that’s a statement that is not legitimate. Again, under the assumptions and the accepted rules of the game, at least in our setting.
[Speaker B] What does “in our setting” mean?
[Rabbi Michael Abraham] What? What does “in our setting” mean? Just in any democratic country. Not in Judaism? No, no, I was talking politics—Yitzhak Ben-Aharon. I’ll still get to Jewish law and those matters, but right now this is just background. To say that the majority is not right—there’s no problem with that at all. It may be true, it may be false, but it is certainly legitimate. In other words, we’re talking here about the question of legitimacy, not only the question of truth. Maybe I’ll put it this way.
[Speaker E] Why is that legitimate, exactly?
[Rabbi Michael Abraham] What do you mean? It’s condescending? I think they’re mistaken—what’s condescending about that? Is it forbidden to think someone is wrong? What’s arrogant about that? When I think X, and someone says not-X, then in my eyes he’s mistaken. Is that condescending? That’s logic.
[Speaker B] So all religious people are condescending like that.
[Rabbi Michael Abraham] A lot of people do in fact claim that, and there too I don’t understand what the problem is. What, today to say that someone is mistaken is condescension? That’s one of the indications I often use to show that the basic value underlying all these statements is not tolerance but—
[Speaker E] pluralism.
[Rabbi Michael Abraham] And we’ve already talked about the difference between tolerance and pluralism. Because if we were really talking about tolerance, there’s no problem at all saying you’re wrong—just that you’re wrong, but you act according to what you think, and I respect that. But to say that you’re wrong—that’s not a problem at all. If people see a problem in saying that the other person is wrong, then that means you’re not talking about tolerance, you’re talking about pluralism. Meaning, you basically don’t believe that there is any right and wrong at all. But then again, the question is not what you say about the majority, but what you say about any other opinion. What difference does it make whether it’s the majority or the minority? There’s no right and wrong either way. What the majority determines may be some rule of the game or another, but it’s not… there’s no issue of justice here if you start from a pluralist point of view. So all those protests, in my view, really have no value. But I do want to touch a bit on these two questions. I’ll start דווקא with the question whether the majority determines, and then afterward we’ll talk about whether the majority is right. A shorter question: whether the majority determines. I think we’ve already spoken in the past about Plato’s proposal of rule by philosophers. Plato, when he proposed a regime for the state, for the city-state, for the Greek demos, basically suggested that those who should decide are the philosophers, or the wise people. Today philosophy is a narrower concept than it was then. The philosophers of that time meant lovers of wisdom—that’s the literal meaning. Today philosophy is a specific field people work in. But basically, to give the right to decide to the wise people. A perhaps more moderate version would be to hand it over to professionals, depending on the field of the decision—say, to entrust decisions to professionals in the relevant field. There’s an even softer version that perhaps sounds a bit more reasonable to the modern ear—although that too would probably be rejected out of hand—and that is perhaps to weight your vote by your intelligence. Education, intelligence, whatever—choose some relevant metric. But not in a one-or-zero way, okay? Not, say, the top one percent of the wise decide everything. Rather, whoever belongs to the highest percentile would have greater weight than someone in the third or fourth percentile, and so on—some function that gives greater weight to wisdom and grants extra weight to the wise. A variation on Plato’s version. But still, at the root of things there stands a proposal that on its face sounds reasonable, right? Why not let wise people decide? We want good decisions. Why not give wise people at least more weight, not necessarily total authority over us? On this matter there are two typical responses from past experience, and I’ve asked people this, and I’ll ask here too: what do you say about this proposal?
[Speaker D] It’s not—it’s not workable.
[Speaker B] Why? Because if you talk about IQ, for example, let’s say an objective test like IQ, then today there’s also emotional intelligence. They’ll come at you with all kinds of claims about—
[Rabbi Michael Abraham] which kind of intelligence is relevant to these decisions. Okay.
[Speaker E] I’d take it a bit more extremely. There’s—
[Rabbi Michael Abraham] there’s an issue—
[Speaker E] one thing that—
[Speaker C] people don’t notice, which is that even if you are—
[Rabbi Michael Abraham] a wise person, you have certain tendencies,
[Speaker C] and you don’t have to infer from the fact that the public chose that this gives weight. I think there’s something even more basic, like what you heard him say—it’s our desires.
[Rabbi Michael Abraham] Okay. You heard what he said.
[Speaker D] In the end, what they—
[Speaker C] want, not what hits upon some truth.
[Rabbi Michael Abraham] That has nothing to do—
[Speaker C] with truth, it’s what they want. I want to live—what, that’s not true or false—I want to live in that way. Most people want to live like that,
[Rabbi Michael Abraham] want—
[Speaker C] they want socialism, whatever.
[Rabbi Michael Abraham] We’ll get to that in a moment. There are two—yes?
[Speaker D] I wanted to say something like what he said, and beyond that, regarding the statement of… I’m not talking about what you said concerning rule by the people. Beyond that, there are questions in which truth is not relevant.
[Rabbi Michael Abraham] So that’s an expansion of what he said earlier.
[Speaker D] Let’s say now there was some kind of personal interest—
[Rabbi Michael Abraham] I’m now going to expand on that, now I’m going to expand—
[Speaker D] it—
[Rabbi Michael Abraham] on that, now expand on your point.
[Speaker E] A moral order of priorities?
[Rabbi Michael Abraham] A moral order of priorities, and it could be that a moral order of priorities… fine, but from my point of view, then let morality be the criterion. But there is some criterion according to which we would hand the decision over to people—even if it’s not intelligence, wisdom, morality, whatever. We’ll decide on some bundle of criteria, some set of criteria, define some function, and weight accordingly. So at this point, other than Shmuel, the two responses I usually aim at have come up here. I’ve done this little experiment several times. One answer says it’s very hard to decide what the relevant wisdom is, what kind of wisdom, how to measure the wisdom relevant to making political, policy, security, economic decisions—whatever. There are lots of decisions that a government needs to make, or that a society needs to make. Each of these decisions requires a different kind of skill. But even for one specific decision, I’m not sure we know how to identify what the needed skills are in order to make it. Not because there are many decisions, but because for each decision, theoretically, we’d need a different function even before implementation. I doubt whether that’s even feasible. Meaning, even for one specific, well-defined decision, I’m not sure we can formulate well what kind of wisdom is relevant, decisive, or pertinent to that decision. So that’s one argument: that it’s not workable. The second argument is that even if it were workable, and we could define the relevant wisdom and give extra weight to those who possess it, there is concern that they would abuse it. We’re all human beings; even wise people are human beings, and they can use the power given to them—they are, after all, making decisions for all of us—for their own personal benefit and not for the good of society as a whole. So again, that’s more a question of implementation than a principled question. It’s hard to trust human beings because they have biases, they have interests, and they’ll act in favor of their own interests. Even if perhaps they know what the right decision would be—assuming that we have some criterion for determining what the relevant wisdom is, and can classify people along that axis—where they stand on that axis of relevant wisdom—even if that’s true, we still have some concern that this power would be abused. I’ll expand this a bit now, because at first I thought that’s what you meant, and then that’s what Arik said afterward: there are certain decisions where it may even fall between those two answers. There are certain decisions where this is not a question of wisdom at all—not morality and not any other criterion—it’s a value decision. If I ask whether to be socialist or capitalist, then contrary to what we usually hear in debates on this point, we always hear arguments about who is right and who is wrong. But at the root of the dispute, the basic dispute, there are indeed aspects where you can discuss right and wrong—but the basic dispute here is a dispute between two values. A moral dispute. The question is whether to strive for freedom or to strive for equality. Capitalism is freedom and socialism is equality. Capitalism, socialism—at different levels or degrees of equality, whatever. The question is what we want. Someone who is interested in freedom—an ideology—and this will create inequality in society. Fine. I’m talking about the value of equality; I’m striving for the value of freedom, not for the value of equality. So this kind of claim that it will create inequality in society is irrelevant. I’m saying this again because usually when you hear such an argument, the capitalist will say: what do you mean, it creates even more equality, or whatever, or that it compensates in some other way. But the fundamental point of capitalism is not located on that plane at all. Even if you’re right about everything, it doesn’t matter. Because my basic moral value is that a person has the freedom to do what he wants. Within certain limits, of course—not to harm others—but you can’t restrict a person’s freedom. That’s the capitalist foundation, and there’s no point arguing here about outcomes and what it will do and who’s right and who’s wrong, and bringing facts and data. All the facts and data, everything we see with our own eyes, doesn’t affect anybody. And in this case, rightly so. Rightly so, because the dispute is on the value plane and not on the factual plane. The question is: if I endorse freedom, then I’m willing to pay the price of inequality. Again, it may be that I also recognize the importance of equality. It’s not that someone who supports freedom completely denies the value of equality, okay? It’s just that the value of freedom is higher on the scale. So if he has to pay in the currency of equality in order to gain freedom, then fine. And vice versa. The capitalist will say that the economy will grow if it’s capitalist, and socialism always produces a lousy economy. There are lots of such claims; there’s probably even something true in them. Fine, but let’s not even argue about that, because the factual discussion, again, is not relevant. And there is the true socialist, as opposed to the apologetic socialists, who always remind you that socialism will create heaven on earth, that we’ll all enjoy it and there’ll be economic prosperity. Essential socialism does not rely on that. Essential socialism relies on the fact that I want equality. Even if we all become poor—right, yes.
[Speaker C] Even if we all become poor, we’ll be poor together.
[Rabbi Michael Abraham] That’s the claim. I’m presenting it, of course, in an extreme form, but the dispute between capitalism and pure socialism is a value dispute. Now, on the question whether to adopt socialist or capitalist policy, what relevance is there to measuring anything at all? Morality, wisdom, education—it makes no difference. The whole question is which value you want to guide our policy, to underlie our policy. It’s a value dispute. In such a dispute, how would you weight people’s opinions? Essentially, there is no way. Not because I don’t know how to identify the relevant skills—the skills are not relevant. Yes, and the first claim was that I don’t know how to identify or formulate criteria for what the relevant wisdom is, but the assumption, the subtext, was that there is relevant wisdom, only I don’t know how to formulate it or quantify it. Okay? The second claim was concern over interests. This third claim says: there are questions for which there is no such function. Not that I don’t know how to formulate it—there is no such function. Now, even here it’s not entirely simple. This brings us back to philosophical questions that I think I also dealt with in the past—the question whether in the value world there is truth or there is no truth. Because that—
[Speaker E] itself does matter. Right.
[Rabbi Michael Abraham] If you say that there is truth and falsehood, or right and wrong, also on the value plane—and I belong to those who do say that—then the third argument is already weaker. It’s not entirely baseless, because I still think that here indeed the difficulty of formulating criteria for how to give someone extra weight—it sounds terrible. True, that’s only a practical problem, but it’s such a substantial practical problem that I don’t see any way to solve it.
[Speaker E] The issue of interests?
[Rabbi Michael Abraham] No, no. The issue of questions that don’t depend on facts and wisdom. So even if I say there is moral truth, I’m a kind of moral realist, who says there is a morally correct answer and a morally incorrect answer—whether the value of freedom overrides the value of equality or not. That’s a question that perhaps has a correct answer.
[Speaker C] And even if we assume there is a right and wrong and that one overrides the other, a person can still say: okay, maybe you’re right and maybe that’s correct, but I want to live this way. And the majority wants to live this way, not according to what’s correct.
[Rabbi Michael Abraham] Yes, so then you’re returning to the previous plane, more or less. So these three arguments, perhaps with the exception of the third—but as I showed in the end, the third also enters the same issue—basically all accept Plato’s claim. Plato’s claim. They are basically saying: really, we should hand this over to the wise.
[Speaker E] Except that—
[Rabbi Michael Abraham] —it isn’t practical. Meaning, you can’t identify the wisdom, maybe they’ll have self-interested biases, maybe in the whole realm of morality and values I don’t even know how to weight things. Fine. But still there is truth, assuming Elijah the Prophet arrives and tells me what the moral truth is, a live broadcast from the Holy One, blessed be He, then Arik too—based on his earlier claim—should agree that if so, we should decide the way Elijah the Prophet says.
[Speaker D] I think there’s still some question of value emphasis in them. Okay. No, again, then that’s already a different debate.
[Rabbi Michael Abraham] I’m saying: assuming there is an answer of proper and improper—
[Speaker D] proper, assuming there is in principle such a thing as right and wrong in value questions, there are still certain questions whose structure is epistemic.
[Rabbi Michael Abraham] So I’m saying: assuming every moral question has an answer of proper and improper, it is still clear that even those who raise the third claim basically accept the Platonic claim.
[Speaker E] With self-interested biases—if you say morality is important, then they have an appeal to be moral,
[Speaker D] then—
[Speaker E] it won’t be a self-interested tendency.
[Rabbi Michael Abraham] Right, that’s what I said: if I could somehow measure it—a moral-meter, so to speak—check which people are moral and which aren’t, then in principle it would be possible to let the wise decide, because I would choose wise people whose interests would not distort their decisions, at the principled level. Since I don’t have that, there’s a technical problem here. And that’s exactly my point: all these problems are only technical, but on the principled level all these arguments basically accept Plato’s proposal, the Platonic assumption. So I want to deny Plato’s claim itself. I want to argue that these three interpretations, or explanations—call them excuses—they’re true, but they’re true and unnecessary. Unnecessary because the whole question is misguided to begin with. Meaning, there is no question. We don’t need excuses. There’s no such add-on of Rabbi Chaim. What Plato is basically assuming is that a democratic vote seeks the most correct decision for us, under the given circumstances, for this particular public—the most correct decision. And then, of course, the obvious proposal immediately arises: okay, so let’s give it to the people who have the highest chance of hitting on the right decision. And then all the discussions begin—technical problems of one kind or another. If we solve the technical problems, then maybe this could happen. By the way, there may even be ways of solving some of those problems—ask people hypothetical questions about some imaginary fox-country, and what do you think such-and-such a country should do, when it has nothing to do with them personally. Try to extract an unbiased answer from wise people. Theoretically one can imagine such things. But that’s not the point. I just want to say that in principle the problem is only technical, and the assumption is that the problem is only technical. Why? Because there is a subtext here, a more basic assumption, which says that the purpose of a democratic majority is to find the most correct answer, to get as close as possible to the truth. And then of course it’s natural to say: okay, let the wise decide—they’ll get closest to the right answer, with all the reservations. But I claim that this is wrong. A democratic majority is not seeking truth. And here, in order to explain this a bit—
[Speaker E] Wait—Plato’s point is that a democratic majority does seek truth?
[Rabbi Michael Abraham] Yes. That’s why he proposes going to the wise. That’s why he proposes going to the wise, because they will get closest to the right answer.
[Speaker B] But replace “truth” with “what’s best.”
[Rabbi Michael Abraham] For me, what’s best is also the truth. What? That’s also—
[Speaker C] truth.
[Speaker B] Fine.
[Rabbi Michael Abraham] And then I say that’s not correct either—not even what’s best.
[Speaker B] I assume “what’s best,” yes, because if you tell that same majority that they’re not the wisest, that this is what’s best—not that these people definitely know with certainty what’s—
[Rabbi Michael Abraham] —best, fine, so they—
[Speaker B] would also agree that you should turn to the wise because that’s what’s best.
[Rabbi Michael Abraham] You’ve set up the proposal from within itself. Why? Because then you’re basically saying we follow the majority of the entire public, not the majority of the wise. Convince the entire public to vote according to the Council of Torah Sages—fine—and they’re great Torah scholars, maybe yes, a collection of wise people of that kind. Fine, but that’s not Plato’s proposal. Because Plato’s proposal says: give the wise veto power. Not that we agree that they should decide. If we agree that they should decide, no problem—that was our decision. We haven’t relinquished the reins from our own hands; rather, we’ve become convinced that this really is best for us, so fine—decide for us.
[Speaker B] No, I’m not saying you need to go ask them how to vote. I’m saying if we begin from the assumption that the masses know that the decision of the wise is what is best—
[Rabbi Michael Abraham] also—
[Speaker B] for them, then there’s no problem at all.
[Rabbi Michael Abraham] Right, so what’s the issue? Then if they say that’s what—
[Speaker E] is good for them, then—
[Rabbi Michael Abraham] you’ve arrived at a democratic decision. So why are you proposing the Platonic proposal?
[Speaker B] No, because you’re saying the majority does not want the truth, the majority doesn’t want the truth.
[Rabbi Michael Abraham] Not that the majority doesn’t want the truth.
[Speaker B] No, but that’s not what interests it.
[Rabbi Michael Abraham] No, that’s not the purpose of a democratic vote.
[Speaker B] That’s what—
[Rabbi Michael Abraham] the majority wants, but that is not the purpose of a democratic vote. The purpose is not to reach the correct or suitable or best answer. No, that’s not the purpose. There is a debate among scholars—a very interesting debate—over who has priority rights, so to speak, over the idea of following the majority. There is an article by Yitzhak Baer, the historian, from I think the 1940s—he wrote it a while ago, I don’t remember exactly—where he argues that the methods of communal governance, as they developed in Europe, were borrowed from Roman law. Following the majority, taking votes, making decisions by voting, and so on—this was borrowed because of Roman influence. Roman law, of course, was the prevailing law, the dominant one—perhaps even the only one, you could say. That was his claim. And indeed, this whole matter of communal administration begins—we talked about this once—around the 11th or 12th century. That’s when this discussion begins; you can also see it in the responsa literature. And it more or less reaches crystallization in the 14th or 15th century. So it is really still quite reasonable to attribute it to Roman law.
[Speaker D] Haym Soloveitchik, the grandson—
[Rabbi Michael Abraham] of—Professor of History—and he strongly objects to that article that—
[Speaker D] Wait, what is he? He’s the son of—he’s the son of Rabbi Soloveitchik.
[Rabbi Michael Abraham] The son of Rabbi Joseph B. Soloveitchik?
[Speaker D] Whose grandson is he? Whose grandson?
[Rabbi Michael Abraham] Whose grandson? Well, his name is Yitzhak, after all. So he strongly objects to this matter; he’s a real Soloveitchik type, a kind of Brisker historian, almost an academic Brisker type.
[Speaker C] He’s a professor of history?
[Rabbi Michael Abraham] History. And he comes out strongly against that article of Yitzhak Baer and says: what are you talking about? We invented this idea. It says “follow the majority.” We know that in the Sanhedrin we follow the majority. Where does this absurd idea come from, to say that we took the notion of following the majority from Roman law? To this day they teach in schools that we are the cradle of democracy—I mean Judaism. “Follow the majority,” and we follow the majority, and Rabban Gamliel and Rabbi Yehoshua and all those stories and the Oven of Akhnai and all those developed myths. Therefore, we essentially invented the concept of majority rule and following the majority and democratic voting and so on, and the wicked Greeks only tried to steal it. Well, that’s not correct. I agree דווקא with Yitzhak Baer on this point, and I want to explain why. When the medieval authorities (Rishonim) deal with this question of following the majority in a community, they give reasons. The question arose there—how should decisions be made in a community? There were communities that held a vote among all the members, and there were communities that worked through representatives, what they called the “best men of the town.” And they would vote in that smaller council which—again, there were usually elections, not always, sometimes there were wealthy patrons, whatever—but there was some smaller council, and it made the decisions. And there too the question arose whether to follow the majority, and how exactly to make decisions when there are disagreements.
[Speaker C] So either—
[Rabbi Michael Abraham] the whole community, or the seven best men of the town. And still the question arose whether to follow the majority or not. And then the discussion begins. Rabbeinu Tam’s position is that one does not follow the majority. Unanimity—only unanimity. If it’s not unanimous, it’s not binding. Most of the medieval authorities (Rishonim) go against him and write very clearly: what do you mean? “Follow the majority”—and what was Rabbeinu Tam thinking? Didn’t he know “follow the majority”? Hadn’t he learned Talmudic texts? Where does this come from? The whole Torah is Talmudic texts anyway.
[Speaker C] Rabbeinu Tam—
[Rabbi Michael Abraham] after all, is the one who says not to divide your time one-third Scripture, one-third Mishnah, and one-third Talmud, but rather that everything is found in the Babylonian Talmud, mixed together. That’s Rabbeinu Tam. So him—I trust. I learn Torah from the extremes. In any case, Rabbeinu Tam obviously knew this, because it appears in the Talmud too, and I assume he learned a little Torah as well. So the question is: how does he ignore such a basic cornerstone? How can that be? It sounds completely absurd.
[Speaker B] But in the Talmud there are many examples where we don’t follow the majority.
[Rabbi Michael Abraham] For example? Like what?
[Speaker B] For example, two witnesses versus a hundred and twenty witnesses. No, the hundred and twenty witnesses have the same weight as the two witnesses. That’s not—that’s not following the majority.
[Rabbi Michael Abraham] What? That’s not decision-making. Why not? Those are laws of evidence. What? Laws of evidence, not decision-making in a religious court. Laws of evidence. By the way, where we’re talking about—for example even in evidence, when you’re not dealing with the formal laws of testimony but, for example, there is a dispute among doctors whether someone should fast on Yom Kippur—we follow the majority if there is a dispute among doctors. And in every place that is not the formal laws of evidence, even though we are indeed trying to find evidence for what the truth is in that context, we follow the majority. In the laws of testimony there is something special; it belongs to the laws of evidence, in the laws of testimony.
[Speaker E] Here we’re talking about running a community.
[Rabbi Michael Abraham] What? Yes. We’re talking about running a community—agreements, what to do, what kind of building they’ll put up, or whatever, all kinds of things like that.
[Speaker D] Right. Things outside themselves. It could be that Rabbeinu Tam held that a community has no halakhic / of Jewish law power at all. Meaning, if I’m sitting somewhere and there are another thousand Jews there, if I want to join them then whatever they obligate me with is binding on me, but if I say I don’t want to join you, then… But you did join—you’re there.
[Rabbi Michael Abraham] What do you mean? You use the community’s services. A member of a community isn’t just “I live here.” A member of a community also makes use of it—there were community services: slaughtering, asking the rabbi questions, classes, whatever, a teacher, lots of things. Those are community services. It’s not… And there’s a definition of a community member, someone who has to make decisions together. That’s about the majority; that’s about someone who really is a member of the community.
[Speaker E] Even if he isn’t a member, he still benefits from the services…
[Rabbi Michael Abraham] Maybe. There are ideas like that today too—people who don’t want to pay taxes to the state but want the services the state provides. In any case, Rabbeinu Tam’s claim sounds, on its face, very strange. I’ll read you a passage from a responsum of the Rosh, who disagrees with Rabbeinu Tam, and there’s also Rashba; there’s more than one responsum of the Rosh and more than one responsum of Rashba and other medieval authorities (Rishonim) too, the Tashbetz as well—there are several responsa from the medieval authorities (Rishonim), and with all of them you can literally see, one after another, the same formulation. I’ll read you the wording: “As for what you asked—whether two or three of the middle-ranking members of the city can exempt themselves from the agreement made by the community, or from a decree of ban that they impose regarding some matter—know that concerning the affairs of the many the Torah said, ‘Follow the majority,’ and in every matter on which the community agrees, we go after the majority, and the individuals must uphold whatever the majority agrees upon for them. For if not, the community would never agree on anything, if individuals had the power to nullify their agreement.” You can’t make decisions otherwise. What, does everyone get veto power? No community would manage to make any decision. It’s not practical. Therefore the Torah said, in every matter involving agreement of the many: follow the majority. This argument in the Rosh—tell me, maybe it just slipped out—but it comes back in the same language in the Rosh and in Rashba and in all the medieval authorities (Rishonim). I don’t know, all the medieval authorities (Rishonim)—I went through them one by one—and with all of them it comes back. What’s strange here? Just say it plainly: we all know the Talmudic texts about “follow the majority.” Follow the majority, period. What else do you need to add? Suppose someone says, “Look, I don’t think one needs to recite Grace after Meals.” “And you shall eat and be satisfied and bless”—there’s Torah, there’s Talmud, it’s ruled as Jewish law, finished. Why do you need to persuade him that Grace after Meals is something terribly important because you have to thank the Holy One, blessed be He, for the food, teach him some thought, explain all these… persuasive arguments, like, “Guys, it’s just not practical not to go after the majority”? That means the Rosh too understands that Rabbeinu Tam’s words are not absurd. Rabbeinu Tam requires unanimity, and that does not flatly contradict “follow the majority.” The Rosh says, listen, but it’s not practical. You’re right that there’s a distinction between this and “follow the majority,” and in principle one could have distinguished and not learned it from “follow the majority,” but we have no choice except to apply “follow the majority” to this as well, because otherwise no community would be able to function. And as I said, this repeats in the Rosh and the Rashba and in all the responsa that deal with this. All of them, after bringing “follow the majority,” the law of the kingdom is law, or various add-ons to the law of the kingdom is law, or all kinds of things like that—they always add: besides, it’s impossible to manage otherwise. And the question is: why? I only understand from this that even the majority view among the medieval authorities (Rishonim), the one that disagrees with Rabbeinu Tam, also understands that you can’t just pull out the “follow the majority” card and that’s it, and beat Rabbeinu Tam by knockout. Is it an explicit error against a Mishnah? No, it’s not an explicit error against a Mishnah. It’s a dispute in judgment. Why? Here I return to the point where I started before—where I began the answer. There is a big difference between majority rule in a community and majority rule in a religious court. “Follow the majority” was said about a religious court, when there are differences of opinion among judges in a religious court. There’s a major difference between that and a majority in a community. Why? Because in a religious court we are looking for the halakhic / of Jewish law truth. If we are looking for the halakhic / of Jewish law truth, the Torah says: follow the majority. And later we’ll see why—whether it’s because the majority is correct; that will already bring me to the second question, whether the majority determines because it is right. But right now I’m dealing only with the question of whether the majority determines. The question of whether the majority is right—we’ll discuss afterward, okay? But when we’re looking for the truth, the Torah tells us that the majority is the criterion. Fine? You want to know what the relevant Jewish law is in this case—go after the majority. Of course that doesn’t mean the majority is always right, but it does mean that if we need to set one sweeping rule that will always bind procedure-wise in cases of disagreement, logic says: go after the majority, since usually that will also bring us closer to the truth. Sometimes we’ll miss, but that’s the price—we’re human beings. If we want to establish a criterion, that is the more reasonable criterion. A majority in a community is not looking for the truth. A majority in a community is like a majority in a state, meaning: it’s a majority for how to run our lives. What is the difference between a majority about what Jewish law says and a majority about how to run our lives? What’s the difference? The difference is that democratic voting, or following the majority when we’re discussing a question of running a community or a state, aims to reflect what the public wants. It is not trying to find what the correct decision is, or what is best for the public—not even that—but what the public wants. And the basic assumption is that a person has the right to decide his own fate. That is a decision that accepts as a fundamental value the autonomy of the person, who has the right to decide his fate, even if he makes mistaken decisions.
[Speaker E] Even if he wants to kill everybody—aside from that?
[Rabbi Michael Abraham] No, no, I’m not talking here about harming others. I mean when he makes decisions about his own life—so even if he harms himself, say, not others, then at least within certain limits a person has the right to make decisions about his own path and act as he understands, even if he’s wrong. Tolerance versus pluralism, what I mentioned earlier. But when we’re talking about decision-making in a state or a community—and I’m talking only about decisions that are public decisions, not what each person will eat in his own house, that’s not a community decision—what the community will do on a certain issue, tax payments to the king, how we divide it, whether to build a wall or not, whether to build another mikveh or not, questions of community conduct, what today we’d call political questions, economic, social, political, policy, security, whatever it may be. Like a state—for now, a state and a community are the same thing. There we have a problem, because when there are disagreements, what we actually want is this: just as an individual has the right to determine his own fate by his own hands, meaning whatever he decides—it is his right to act that way—so too with a public. But when there are disagreements, how do you know what counts as “what the public wants”? The public wants many things: this one wants X and that one wants Y; there are disagreements. What are we supposed to do? How are we going to discover what the public wants? Not what the correct decision is, but what the public wants. Notice: even for an individual person, his ability or right to make decisions about his own path is not because he is the most right. “The heart knows its own bitterness,” like the reasoning in the Talmudic text, that when a person decides for himself whether to eat on Yom Kippur, say, or something like that, we trust him because the heart knows its own bitterness. A person feels his own medical condition. Again, that’s an indication that he’s right. I’m talking about something else. I’m talking about his right to be wrong. To be wrong too. His right to make decisions, even where he’s making a mistake. But it’s his right—he makes decisions about his own fate, not anyone else. Of course a public also has such a right, to make decisions about its own fate. These are not halakhic / of Jewish law decisions; they are decisions about how to run our collective life. But when there are disagreements, we have no way of knowing what the public wants. What does it want? This one wants it this way and that one wants it differently.
[Speaker B] But you’re talking about public questions. Right. In public questions they generally don’t ask the individuals at all. Usually there are elected representatives—wait—there are people who have more authority, people who have more power, and they determine it. They don’t ask the individuals at all. So what difference does it make what the majority wants or doesn’t want? That’s not true.
[Rabbi Michael Abraham] That’s not true. Even those individuals who decide were chosen by the public. And the whole system of representative government received its validity because the public agreed to it. Once the public agreed to it—fine—that this is how we decided to conduct ourselves, it is still our decision. What you said before, that I trust them to make the most correct decisions, or I trust them because it’s most efficient and we can’t all gather for every decision—it doesn’t matter; I still decided that. That too counts as my decision—I, the little citizen, decided my own path. It’s my decision.
[Speaker B] No, your question was how can one know what the majority of the public wants. Right. So I’m saying that question is irrelevant, because the public is no longer part of the game. Fine, they voted, they chose, but right now their representatives…
[Rabbi Michael Abraham] No, no, no. That question arose, as I said, already in the period of the communities, on two levels. There were communities where voting took place in the town square, like in Athens. There was voting on every decision—what do we do? So yes, the citizens had to express their position. But that same question also arose when there were disagreements within the elected institution—the Knesset, the government, the seven leading townsmen. There too—fine—now there are disagreements among the representatives we appointed. So what do you do then? Do you also go after the majority? Who says? We’ll see in a moment.
[Speaker B] By the way, since you mentioned Athens, then why does Soloveitchik say it began in Rome? What? If you mentioned Athens, it preceded Rome. Right, what? But he says it was through…
[Rabbi Michael Abraham] Maybe not that it began in Rome, but through Rome—through Roman law it influenced the Jewish communities. I’m not sure he says the original right belongs to the Romans. It could be they drew something…
[Speaker E] They got it from Rome… learned from the Greeks, and built their culture. But that’s technical, that’s agreed.
[Rabbi Michael Abraham] It doesn’t matter, but the influence came through Roman law to the communities. They didn’t draw from the Greeks.
[Speaker C] “An unjust kingdom” is mentioned in the Talmudic text, and the intention is…
[Speaker E] “An unjust kingdom,” I think.
[Speaker C] One of the famous commentators—I read this—Rashi or Tosafot says the intention is Rome, because their culture, their strength, comes from Greece. Okay, so what did they do? No, so therefore it’s Roman law, but it’s not…
[Rabbi Michael Abraham] Why is it unjust? Is it forbidden to be influenced by Greece? What? I don’t know. In any case, what we actually have here is a problem that is completely different from the problem in a religious court. In a religious court I’m looking for what Jewish law says, what the halakhic / of Jewish law truth is. Here I’m not looking for anything outside of me at all. I’m looking for what I say. Now when I’m an individual person, what I say is what I say. But when there’s a public and there are disagreements within it, I’m looking for what the public says. I’m not looking for some answer hidden away in a Platonic world, the correct answer I’m trying to hit. If the public decides to go down the wrong path, then that is the decision that must be carried out. Because the public has the right to make decisions about itself even if they are not correct. So then what? The vote does not come to look for what the correct decision is. The vote comes to express what the public wants. Why? Because where there are disagreements, we need to establish some convention that will bring us to representation, in some model, of what the public wants. Of course it will never be one hundred percent, because there are disagreements, but you can establish various mechanisms that from our standpoint reflect what the public wants. By the way, there are many such mechanisms. Majority rule is the most primitive mechanism. There are many such mechanisms; there are books about this—in mathematical economics, in all kinds of places. There’s a very interesting book by Shmuel Nitzan, a professor of economics from Bar-Ilan, published by the Open University. He literally proves theorems there—beautiful mathematics—and points to, say, five criteria that the mechanism is supposed to satisfy in order to count as representative of the public. It has to satisfy five criteria—I don’t remember them right now, one, two, three, four, five. And there’s a theorem in mathematics that says it’s impossible—there is no solution that satisfies all five of those criteria. So there is no way to represent the public in a manner that is completely clear, as in: this is the public’s opinion. Again, I’m not talking about the simple point that obviously you can’t represent one hundred percent, but there is no representation that satisfies all the reasonable criteria one should demand from a representative mechanism. Okay, and then of course proposals begin to arise for optimal representation—that is, let’s give up criterion number two, or four, in certain cases, this one or that one, to get as close as possible to what we would want to count as representation. The criterion of majority rule is the most primitive, the simplest.
[Speaker E] What? Can you give an example of another possible method?
[Rabbi Michael Abraham] Well, for example—I don’t know—you can assign different priorities, you can give weight to those who’ve been around longer, you can, for example, take into account a minority to whom the matter is more bothersome than it matters to the majority. So if for the minority it’s very acute and for the majority not so much, then we’ll go with the minority. Again, the question is how you measure that, but I don’t even remember all the methods anymore. There are lots of methods; there’s the Condorcet method and all kinds of theorems in mathematics that propose various mechanisms for how to represent an opinion where there are disagreements, or where there is a public interest—how we get to a bottom line that best represents the whole. Again, when I say that majority rule is the most primitive, I mean the simplest. And of course in complicated systems we choose simple techniques—there’s no point, complicated techniques won’t work here. So in accepted democratic systems they go with the majority, and usually that’s the most natural criterion. But again, notice that the criterion of the majority here is not meant to get us closer to the truth. The criterion of the majority is meant to express what the public wants. That is something entirely different. Okay, before I continue, let’s go back for a moment to majority rule in a religious court. You mentioned earlier that from the law of “follow the majority” they learn some of this in the Talmudic text and other things in the medieval authorities (Rishonim) and later authorities (Acharonim), also various other laws of majority. There is a law of following the majority—“go after the majority,” yes. If most women give birth at nine months and a woman gave birth and I don’t know when, then I assume she gave birth after nine months. Yes? Most women are not infertile in that specific halakhic category; they do have the capacity to give birth. So if there is a woman about whom I don’t know, the assumption is that she is not of that category—that is, that she can give birth. Why? I know nothing about her, but I follow the majority; most women are like that. Therefore the assumption is that she too is like that. That’s one law of majority. There’s a law of “the majority is like the whole.” “The majority is like the whole” is a situation where, say, if all of the Jewish people are impure on the fourteenth of Nisan, you can’t bring the Passover offering in impurity—right? But if all of the Jewish people are impure, then impurity is permitted for the community, so they bring the Passover offering. What happens if there is only a minority that is impure, or a few impure people, or people on a distant road? That’s a passage in the Torah, so they are deferred to the second Passover, right. What happens if the majority of the public is impure? So the Talmudic text says: “the majority is like the whole,” meaning they bring the first Passover if the majority of the public is impure. Why? What kind of rule of majority is this? It’s not the rule of following the majority like in the case of women giving birth at nine months. It’s unrelated. In the case of women who give birth at nine months, you have a woman here and I don’t know when she gave birth—most women in the world… that’s statistics.
[Speaker E] And here you know, but here there’s no…
[Rabbi Michael Abraham] No statistics whatsoever. Why would you need statistics? The whole reality…
[Speaker E] …is known. There’s no statistical question here. It’s the rule of “the majority is like the whole.” “The majority is like the whole” means that if there is a majority within some whole, it counts as though it holds for the whole. Meaning, if most of them are impure, it’s as if all of them are impure—impurity is permitted for the community.
[Rabbi Michael Abraham] Meaning that impurity does not hold the community back in any way. Anything for which impurity would normally block it—if it’s communal, no problem, you can do it; sacrifices can be offered in impurity and so on, communal offerings. And Passover is not exactly a communal offering; it’s many individuals—there’s a big topic…
[Speaker C] …whether to define it…
[Rabbi Michael Abraham] …as a communal offering or an individual one, but for this purpose it counts as communal. So that’s “the majority is like the whole,” and there’s also nullification by majority. Nullification by majority means a piece of meat falls into a pot—a non-kosher piece of meat falls into a pot full of kosher meat—and it is nullified by the majority. That nullification by majority is not simple—we’ll see later—but on the straightforward level it’s not the law of “follow the majority,” but nullification by majority. Nullification by majority means that as far as I’m concerned, this piece too has become kosher. For now we’ll explain that too in a very imprecise way, and there are disputes about it; later we’ll also touch a bit on that issue. That’s the third law they learn, and that too they learn from “follow the majority.” The law of “go after the majority,” the first law, the Talmudic text says is learned from “follow the majority.” The Talmudic text in Chullin 11, and whether the majority is present before us or not present before us—we’ll get to that later too. The majority involved in nullification by majority, the medieval authorities (Rishonim) say is learned from “follow the majority.” And “the majority is like the whole”—I think that’s the later authorities (Acharonim). The later authorities (Acharonim) say that this too is learned from “follow the majority,” but there is no clear source for this in the Talmudic text or among the medieval authorities (Rishonim). In any case, somehow they hang everything on “follow the majority.” Okay? Now notice that even here it’s not so simple. The law that appears in the Talmudic text as learned from “follow the majority”—there the majority really is a tool for clarifying the truth. Right? I want to know when the woman will give birth, at seven months or nine? Most women give birth at nine, so I assume she too will give birth at nine months. Again, it’s not certain—nothing is certain—but probabilistically it’s more likely. So that’s my way of getting as close as possible to the truth. Right? That’s why they learn it from “follow the majority.” Since in all places where I’m looking for a way to get closer to the truth, we go after the majority—and that is learned from “follow the majority.”
[Speaker E] There was some famous conceptual inquiry whether this is policy or clarification.
[Rabbi Michael Abraham] Fine, we’ll get to that too, to such an inquiry. There is and there isn’t—we’ll get there. In principle, anyone on the street will tell you that in these cases you go after the majority. Policy, policy. I’d bet on it ten to one. Policy—I’d bet, I’d be willing to put money on it. That reminds me, I have a good friend, my former study partner, who would always come to me with some idea, some theory about a fixed case. And in a fixed case you go after the majority? Two out of ten? We’ll talk about that too. Every time he had a different theory. I’d tell him: would you drink poison based on that theory? When you come with a theory such that you’d drink poison based on it, we’ll talk. It’s not—bottom line—it’s statistics. Obviously it’s statistics. The question is how to relate to the statistics, what exactly is meant; we’ll discuss it. I spoke about this a bit when we studied that year—Gedaliah Nadel. That was the year when we dealt with this whole issue of majority. In any case, so we see that “follow the majority,” the verse “follow the majority,” basically tells us that in a religious court we follow the majority. The Talmudic text learns from here that when you’re looking for the truth, the majority is the criterion—or at least one of the criteria, that majority means closeness. Of course there’s a dilemma and uncertainty here, but in principle that’s one of the criteria: the majority. But now I return to majority in a community. A majority in a community, or a majority in a state—we’re not looking for the truth at all. We’re looking for a representative bottom line that tells me what the public wants. How can you learn that from “follow the majority”? Rabbeinu Tam is right. What does it have to do with “follow the majority” at all? You ask me what the public wants? I don’t know. I’ll tell you what I want—I’m the minority. I want to go to war now; that’s what I want. So the majority doesn’t want it—fine, they don’t want it, and I do want it. So what? Because they don’t want it, I also don’t want it? What? I don’t understand. I should act as I understand. Don’t I have the right to run my life as I understand? Fine, okay, they also have such a right. Okay, so rights are colliding; we need to decide what to do. But what does that have to do with “follow the majority”? There’s logic to going with the majority here, but it is not learned from the verse “follow the majority.” It has nothing to do with “follow the majority” at all. Like “the majority is like the whole.” What? But that’s actually similar, right. And therefore there too the derivation from “follow the majority” is really more questionable. I’ll come back to this when we get to those laws, but I brought it now only as background. So Rabbeinu Tam says: you can’t learn this from “follow the majority.” But more than that—even those who disagree with Rabbeinu…
[Speaker C] …Tam, as I mentioned before with the Rosh.
[Rabbi Michael Abraham] He isn’t satisfied with simply bringing the verse “follow the majority,” but says that besides that, it’s impossible to manage otherwise. And perforce the verse “follow the majority” is speaking about every matter involving many people, not only a religious court. That’s basically what the Maharam means. What does that mean? He’s saying: Rabbeinu Tam, in principle you’re right that one could not have learned this from a religious court, but it is obvious by reason that one cannot manage if one doesn’t go after the majority. You can’t make decisions. So therefore it’s obvious to me that the Torah intends us to go after the majority in every such matter as well, even in the matter of a political majority, in political decisions of a community or a state. But that is an extension made by the medieval authorities (Rishonim), and regarding that Yitzhak Baer says—and I’m not placing him into this whole group, I have no idea whether he thought through all this, but I think that in light of this he was right—Yitzhak Baer was right in saying that we did not invent democracy. That is not true, because the idea of democracy is an entirely different idea from “follow the majority,” no connection whatsoever. It’s a sensible idea, but it has no connection to “follow the majority.”
[Speaker E] So that’s not what…
[Rabbi Michael Abraham] Correct, that’s basically what the Rosh says. Obviously, “follow the majority” is a criterion for getting closer to the truth—that’s obvious, anyone will tell you that if the majority is such-and-such, then probably this case is too. It’s simple reasoning. Obviously that’s a way of approaching the truth, to the point that one can even ask why a verse is needed for that at all. And here enters the question whether this is policy or clarification, but that’s a different discussion. The question is why you need a verse for this. But fine, there is a verse for it, and from that verse you cannot learn that in voting one follows the majority, because voting seeks something entirely different. Who says it isn’t the Condorcet mechanism? Why specifically the mechanism of majority? Who says that maybe it should require unanimity, and if not, then the whole community dissolves? And that’s it—we said, the community dissolves, then I don’t want to belong to that community; let it dissolve. What sanctity does a community have if we can’t unify wills? So no, very well, but you can’t coerce me—especially since the whole point is that I have the right to determine my own path, or my own mode of conduct, by myself. And then in the name of the public you come with that very same idea and say: the public wants to determine for itself its own mode of conduct. What, at my expense?
[Speaker E] I also want to determine my own mode of conduct. It comes out, according to what the Rabbi explained, that both Rabbeinu Tam and the Rosh and the other medieval authorities (Rishonim) all started from the same assumption regarding “follow the majority,” except that they had some logic for extending it. What is Rabbeinu Tam’s logic for saying there’s no room to extend it? On the face of it, they’re right.
[Rabbi Michael Abraham] You have only its own novelty, no more; you can’t bring this from “follow the majority.” This extension is a very questionable extension. You could have told me: by reason it seems proper to act this way, because otherwise it’s impossible to manage. If you ask me a halakhic / of Jewish law question?
[Speaker C] That’s what…
[Rabbi Michael Abraham] …the Rosh says—that they extended it into Jewish law. Right, the Rosh puts it into Jewish law. I think that Rabbeinu Tam doesn’t accept that.
[Speaker E] This issue that they drew it out of the verse itself—is it possible that Rabbeinu Tam…
[Rabbi Michael Abraham] No, it’s more than just not from the verse itself. If it doesn’t come out of the verse itself, then it isn’t Jewish law. Your reasoning, with all due respect, can be answered by other reasoning. Why should your reasoning obligate me? For something to emerge as Jewish law it needs a source—a verse, a rabbinic enactment. We’re talking about a time when there was already no Sanhedrin. You can’t obligate people by creating new enactments. I assume that if there had been a Sanhedrin in that period, it would have determined that communities follow the majority. But Rabbeinu Tam says: fine, there is no Sanhedrin, so now what, you want to replace them? You have no authority, sorry. If you ask me a halakhic / of Jewish law question—let the law pierce the mountain—halakhically I cannot tell you that we follow the majority. The logic—I assume the logic was clear to Rabbeinu Tam too.
[Speaker B] But not to derive it from the verse.
[Rabbi Michael Abraham] Right, but then it’s not Jewish law. I’ll say more than that. I spoke about this in one of the earlier series: I say more than that—these questions of how a community is run are not halakhic / of Jewish law questions at all. What were they looking for in Jewish law all along? I have no idea.
[Speaker E] I wouldn’t turn to Jewish law in this area.
[Rabbi Michael Abraham] Why? What does it have to do with Jewish law at all?
[Speaker D] The religious courts took on the role of the king.
[Rabbi Michael Abraham] Yes, and that’s what we talked about then—that the religious courts replaced the role of the king once there was no monarchy anymore. So the Sanhedrin replaced it, and afterward “they act as their agents,” and the judges and the rabbi, and in the end all authority was concentrated into the only authority left to us in exile, which was the rabbi. And then what happened was that every question that arose about what to do was referred to the rabbi. So whatever the rabbi answers is perceived as Jewish law. And it’s simply written in Rashi script and printed in golden letters, so it’s Jewish law. That’s how it suddenly got into the Shulchan Arukh. Now when someone asks you a halakhic / of Jewish law question in a community—whether to go after the majority or not—you immediately flip through the Shulchan Arukh and Choshen Mishpat and section 163. To my mind that’s bizarre. Why should I care what they write there at all?
[Speaker E] I don’t care what they write. But one could say that it is a halakhic / of Jewish law matter because it touches on matters between one person and another. If, say, they obligate us financially and I don’t want to give money—then in monetary law? So what?
[Rabbi Michael Abraham] In monetary law, fine, sue me in monetary law. Okay, sue me. Fine. What do you want to litigate? That what? They want to take money from me for taxes; I don’t want to pay. Okay, you’re the judge—go ahead. “Follow the majority”—we extend that also to taking money from me? What “follow the majority”? “Follow the majority” is when there’s a minority and a majority in a religious court, and then the truth is with the majority; our assumption is that the truth is with the majority. That’s all. There isn’t any… We once talked about this—if you remind me—we spoke once about Alexander the Great who came to Africa and heard marvelous things. A courtyard or a house—do you remember? That’s a Midrash Rabbah in Vayikra Rabbah. The seller, excuse me, and the buyer claims he found a treasure hidden in the ground of the courtyard and that he must return it to the seller, because he didn’t buy that—he bought the courtyard—he wants to return the treasure. Now the seller refuses absolutely to accept the treasure. I sold you the courtyard and everything in it, so if you bought the treasure, it’s yours. So what do you do in such a case?
[Speaker B] So the African king…
[Rabbi Michael Abraham] …said: Do you have a daughter? Do you have a son? Let them marry each other and take the treasure. Wonderful. A brilliant solution. But the legal analyst of course immediately asks: what is the law really? The legal analyst always asks what the law is—but what is the law really? Forget the clever tricks. What is the law in such a case? More than that—why does this law not appear anywhere? I searched and found nowhere any ruling, anything that could help me decide this case. Why not? Because there is no law on this. It is not a halakhic / of Jewish law question. If you want to give it to him and he doesn’t want to take it, throw it into the sea. What do you want from me—that I should now decide that he has to accept it from you? If your right is being violated and you want protection from the religious court, then you go to the religious court and it will rule whether you have a right or don’t have a right, and it will protect you if necessary. But if you want to give it to him and he doesn’t want to receive it, then marry your children to one another or make some tiaras out of those banknotes. It’s not a halakhic / of Jewish law question. If you ask me what is proper to do, I don’t know, I’ll think about it. But if you ask me what Jewish law says, I shut my mouth. Jewish law says nothing about it. There are questions about which Jewish law says nothing. Not every question needs Jewish law to say something, even if there’s something sensible to do and maybe even something moral. So what? Morally it seems sensible to me, it seems to me this way—but I can’t tell you that it’s Jewish law. So Rabbeinu Tam comes and says: halakhically the majority cannot obligate the minority. If you ask me what is sensible, what is moral, it may be that I would join the other medieval authorities (Rishonim). I would tell them that it makes sense to go with the majority. The other medieval authorities (Rishonim) took an additional step. They say: if that’s the logic, then we extend “follow the majority.” And one really does need to understand how they do such a thing, but that’s what they did. Okay?
[Speaker D] And it does enter some halakhic / of Jewish law questions—if a ban is a halakhic / of Jewish law concept, “do not steal,” as there is a halakhic / of Jewish law concept there.
[Rabbi Michael Abraham] Okay, I don’t know how to answer that. So what do you want me to do now? First of all, “do not steal” is indeed a halakhic / of Jewish law question—I didn’t argue with that for a second. Okay, it’s a halakhic / of Jewish law question. And therefore what? What do you want me to do with that now?
[Speaker D] The medieval authorities (Rishonim) did want this. The majority says that it’s…
[Rabbi Michael Abraham] Okay, but I truly don’t understand on what basis they spoke—on what basis? The fact that they invent something doesn’t interest me. I am obligated to Jewish law, not to the Rosh. If the Rosh invents something, that’s his problem, not mine.
[Speaker B] But how do you know that “follow the majority” isn’t a halakhic / of Jewish law rule that relates to public matters? How do you know? Why not? How did you decide that it isn’t…
[Rabbi Michael Abraham] The Torah says, “Follow the majority.”
[Speaker B] The Torah says it about a religious court.
[Rabbi Michael Abraham] Why on earth are you deciding that it’s only…
[Speaker B] The Torah says it about a religious court, not me. You want to extend it.
[Rabbi Michael Abraham] In the Talmudic text too. The Talmudic text is an authoritative text.
[Speaker B] So if there were a Sanhedrin today, they could do this.
[Rabbi Michael Abraham] That—I have no principled problem with. But the Rosh is not a Sanhedrin. The Rosh is an interpreter. He cannot innovate Jewish law. He can say what is included in this law or that law. Fine?
[Speaker D] The other medieval authorities (Rishonim) also held that way.
[Rabbi Michael Abraham] I don’t know—I hold this way. It could be the Rosh didn’t hold this way; I hold this way. Why…
[Speaker E] …didn’t they hold this way? I don’t know. That the power of the majority—I don’t know—belongs to the second part and not to the…
[Rabbi Michael Abraham] That the power of the majority does not reveal what the truth is. If the majority is impure for the first Passover, then what? Does that mean the truth is now that the minority is also impure? The minority is pure, that’s all.
[Speaker E] With the meat it isn’t kosher insofar as, like…
[Rabbi Michael Abraham] Why in the second case are you talking about nullification by majority? Why does nullification belong here? Only following the majority belongs here. And in the Talmudic text, what appears is only following the majority. The claim, basically, is that there is some essential difference here, something that was really developed in the eleventh-twelfth century. Invented. You can find hints of it here and there already in the Talmudic text. But it was invented and defined from the eleventh-twelfth century onward, and settled in the fourteenth-fifteenth century when they decided that the law follows Rabbeinu Tam and closed the whole affair. Until then there were communities, there were disputes, and it wasn’t settled until the fourteenth-fifteenth century. And the point is that even the other medieval authorities (Rishonim) who disagree with Rabbeinu Tam basically agree that this is an extension—that it doesn’t really come out of the… Why? Because here we are not cracking the truth. A democratic majority is something else. I’m going back to Plato now. The point is that Plato is really making an assumption that at root is incorrect. There’s no point… whether or not this is found among the Sages, and then to look for explanations yes or no, why not. But if I’m not looking for the truth, then what are sages? Does a fool have no rights? Only a wise man has rights? A fool has the right to run his life, and a wise man has the right to run his life. And if we have disagreements, we’ll have to hold a vote. And you can’t coerce me even if you’re right, and you’ll prevent wars and the economy will collapse—I want to be me, period. That’s what I want to be, and it’s my right. So why do you say he’s not right? Who said he’s looking for democracy, Plato? What? Why do you say he’s not right? Who said he’s looking for democracy? He’s looking for the best way to govern a state. No, I’m not learning Platonic philosophy. If Plato was looking for that, then he’s right. The Platonic proposal regarding democracy is incorrect. He didn’t propose it regarding democracy. So I’m proposing it. Enough already with democracy. Exactly. What? So I’m proposing that that proposal… I’m proposing that proposal, and let’s reject it. I claim it’s incorrect. What exactly Plato did—I don’t know well enough. And I know that in Greece there was democracy, so I’m not sure you’re right.
[Speaker B] But that doesn’t matter to me because I…
[Rabbi Michael Abraham] I don’t care right now what Plato himself thought.
[Speaker B] This proposal could arise…
[Rabbi Michael Abraham] …even today. I claim it is incorrect; it misses something very fundamental in democratic thinking. In Greece there was democracy, but he came out…
[Speaker B] …against democracy; he didn’t say it was the right way.
[Rabbi Michael Abraham] Maybe you’re right and maybe not—I don’t know enough—but it doesn’t matter to me.
[Speaker E] Fine, that’s for the history. The main thing is that it doesn’t get to the truth. Right.
[Rabbi Michael Abraham] The point is that this concept really is a new concept—this following the majority—and if so, it was born long after Roman law, and therefore there is no obstacle to saying what Yitzhak Baer says. One last point, since I’ve only got another minute—let me just finish one point I opened with and didn’t complete. These questions of running a community are political questions. They are not halakhic / of Jewish law questions. So if in the Talmudic text, or the Sanhedrin, or whoever, established something—fine, there’s a rabbinic enactment—then it becomes Jewish law, it becomes part of Jewish law because it is binding. But if medieval authorities (Rishonim) or later authorities (Acharonim), or this rabbi or that rabbi, expresses his opinion, it has no weight whatsoever—not worth a garlic peel. Except insofar as you think he’s a wise person and it’s worth listening to him—and why not, that’s all fine, no problem. Or you decide to grant him the authority to decide—also fine, everything is fine. But just because someone said something in this area, that has no significance at all. From my point of view, those parts of the Shulchan Arukh are not part of Torah. They are not part of halakhic / of Jewish law Torah. Yes, it’s not part of Torah; you don’t recite the Torah blessing over them, it binds in no way, nothing. At most, there is some custom here. The custom of communities is to do what is written in the Shulchan Arukh. That is true.
[Speaker E] So now an example—like what?
[Rabbi Michael Abraham] I said—like following the majority. If I’m now sitting in a community and I’m the minority, I can refuse to accept the authority of the majority, and there will be no halakhic / of Jewish law problem with that. In my opinion it’s not sensible; I wouldn’t do it. But there is no halakhic / of Jewish law problem with it. There are, by the way, many other questions too—what happens with a ban and an oath, and who releases it and who doesn’t, all kinds of things of that sort—which are not… Those are political questions. And that also appears in Yoreh De’ah and in Choshen Mishpat in the Shulchan Arukh. Okay.