The Majority Principle in Halakha and in General, Lecture 3

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[Rabbi Michael Abraham] Same thing: in a religious court, each one… the differences come from one sage being wiser and another less wise. Meaning, somebody here is mistaken. Because the question is: what did the Holy One, blessed be He, intend? That’s the question. When I come to interpret the Torah, I ask: what did the Holy One, blessed be He, mean when He wrote this? The wiser someone is, the greater the chance that he’ll hit on what the Holy One, blessed be He, intended. In civil law, if we were asking what the legislator intended, it would be similar. But if we agree that the legislator doesn’t determine things anymore—once he enacted the law, that’s it, now the law itself is what binds—then interpretation is no longer about that. Interpretation is still phrased as “what did the legislator mean,” but we don’t actually go ask the legislator, “What did you want?” Why not? Why not? Instead, based on the language of the law, you try to identify it. Why? If you really wanted to know what the legislator meant, then ask him. Why don’t you ask him? Because you don’t really want to know what the legislator meant. Once he legislated, he finished his role. Now it’s the law. Now the question is how to interpret it. Fine, there are differences of opinion; these think this way and those think that way. Why isn’t that the same thing? It’s not the same thing. You don’t ask the Holy One, blessed be He, what He meant? I can’t ask. If I could ask, I would ask. Or maybe if I could, I would ask. But okay. Still, the Sanhedrin—they don’t have to be the wisest; it goes according to the majority. Again? The Sanhedrin—they’re not like a panel of three. Right, that’s what Sefer HaChinukh says. There you follow the majority of people; it doesn’t matter who is wiser and who is less wise. So that means that in the Supreme Court too, they don’t have to be the wisest—and they aren’t—so that’s what I said: I’m not sure. It depends on how you understand the mode of operation of that court or that panel. For example, regarding representativeness of the court, I think there is definitely room to demand that it be representative in relation, say, to the public. By the way, that’s only regarding the High Court of Justice. In ordinary judging, fine, okay—but that’s what people are talking about, after all. That’s really what they’re talking about. We’re talking about the fundamental, value-laden decisions. The fact that they don’t separate between those two instances—that’s another dispute, yes. By contrast, with the Sanhedrin, I’m not sure it’s the same thing. Meaning, even if you support a representative court, it doesn’t necessarily follow that the Sanhedrin too should be representative. Because in the Sanhedrin they want to know what the Holy One, blessed be He, means, not what the public thinks or believes. The Supreme Court is not supposed to hit on some objective truth. It is supposed to—at least according to those who think it should be representative, and in my view maybe to some extent as well—yes, but there are those who say it really shouldn’t represent the public. Fine, I’m only saying there’s no necessity to infer from one to the other. Personally, I do think it should represent the public. I think so because I think these disputes—the fact is that these disputes are value disputes. They’re not interpretive disputes about what the legislator intended; that’s nonsense. In the end, these disputes—it reminds me, we once talked about this, about the mini-markets, the “mini-market law.” There was a split of opinions there. Naor, the President of the Supreme Court—Naor, she opens the ruling by saying, “This is not at all a matter of religious versus secular people; it’s a legal matter.” And then she writes what she writes. Now, what was the actual division of opinions in the end? The three secular judges wanted to invalidate the law, and the two religious judges were in favor. After she wrote in the first sentence—that’s how she opens her ruling—“This is not a matter of religious and secular.” Come on, what is that? You want to tell me this is an interpretive dispute? Obviously there’s a worldview dispute here, and that’s fine. People have worldviews; I can’t demand that people ignore their worldview. But that’s exactly why I think there is a lot of logic in asking for proper representation of the public there. This is not a dispute over the intention of the legislator. That’s not the point there. By the way, just today on the way here I heard that one—it’s been driving me crazy for two days—they’re talking about the woman whose entry into the country was prevented, that student who wanted to come in even though she had been active in BDS. BDS—I don’t remember what it stands for. There was an appeal in the Supreme Court. Yes, the appeal on the district court. There had been a district court ruling. I didn’t understand from the outset—obviously you can’t prevent her entry. What, because of opinions you can stop her from entering? That’s complete absurdity. I couldn’t understand what they were even thinking. If she was going to carry out activity, I understand. But what I heard on the way here was: because she had been active. She had been active, she had headed an organization, and there was suspicion—suspicion—that she was going to do activity here. I don’t know, I wasn’t impressed that way. No, leave it—I want to see you when you arrive in the United States and immigration tells you, “Not approved, dear fellow, get back on the return flight,” and you say, “Excuse me, I want to appeal to the Supreme Court.” Who would let you? I wouldn’t be able to appeal, just as she couldn’t appeal. But my hosts in the United States could appeal. Why? Here the municipality appealed—no, Hebrew University. The university joined and appealed. Yes, it joined. I’d like to see that in the United States. I don’t know if you know: the CEO of Israel Aerospace Industries, Yossi Weiss, just finished his term. In the Air Force thirty years ago. During his entire tenure—and there are endless joint projects with the biggest American companies, Boeing, Lockheed Martin—he was not in the United States a single time. Do you know why? He didn’t get a visa. No, they don’t say. Why? Just because. Just because. There was clearly no reason? Just because. Just because. Surely if his hosts had gone to court, they wouldn’t have told them they had no standing. They can go to court. What do you mean? Why are there these subjectivity rules here? I don’t know whether this will now reach the Supreme Court. I only heard it on the radio on the way here; I didn’t read anything. No, I heard on the radio, I heard on the radio that they’re saying exactly that. The hosts are claiming: you can’t prevent her entry. If you prove she engaged in activity, then fine, then you’re allowed to deport her. But to prevent her from entering now? No—again—no, I understand. No, the hosts. No, it’s complicated. They already had this two weeks ago. No, I’m saying—ah, okay. Interesting question. I don’t know. Though that’s more or less the answer they’ll get. It’s not just an opinion. That’s the answer—they mean the one they found there. I don’t know. American hosts constantly insult the president and nobody prevented them from entering. No, that doesn’t mean anything. It’s like what we said about a convert. You say to a convert that you obligate him to keep the commandments, but the Jews who are already Jews—most of them don’t keep the commandments—so how can you demand that of a convert? That’s not a difficulty. Someone who wants to join always faces higher demands than throwing out someone who is already inside. If someone is a criminal, I won’t accept him as a citizen of the country because he’s a criminal. But if he’s already a citizen and asks to enter, it doesn’t matter—same thing. Still, joining the club is harder than… it’s easier not to let you join the club than to throw you out once you’re already a member. So joining completely, and even just visiting—still. Fine, I don’t know, I’m not an expert in American law, but I’m sure that if an appeal is filed there, the court relates to the appeal. But who can file the appeal? His hosts. Why don’t they have standing? They want to bring him to the United States—they go to the courts. And he himself? I don’t think so. They work with him. They’re not just some random body, I don’t think so. I don’t know, I’m not a lawyer, but it doesn’t seem so to me. If I want to host him and you don’t let him in, what do you mean? It’s my economic interest; I work with him. Never mind. Okay. In any event, in this context I think we once talked about the Talmud in Eruvin, with the heavenly voice regarding Beit Hillel and Beit Shammai. They disagreed for three and a half years and didn’t manage to reach a decision, and the Talmud says that a heavenly voice came forth and said, “These and those are the words of the living God, but the Jewish law follows Beit Hillel.” So I said there: why didn’t they just vote? Let them vote—what’s the problem? Beit Hillel were the majority. So why not vote? Tosafot says that Beit Hillel were the majority, but Beit Shammai were sharper. The Talmud says they were sharper. The Talmud in Yevamot says that Beit Shammai were sharper. Tosafot says that because of that, here they couldn’t decide, and therefore they needed a heavenly voice. Because they were the majority—no, actually Tosafot says this; Tosafot explains the dispute this way, and I say that therefore there’s also no difficulty as to why they needed a heavenly voice, since “it is not in heaven”—that’s a question Tosafot himself asks elsewhere. Why did they go by a heavenly voice if “it is not in heaven”? My claim is that this isn’t difficult. “It is not in heaven” applies when you have the possibility of deciding according to the rules of Jewish law; then you’re forbidden to turn to heaven. But where you don’t have any possibility—where you’re stuck with the rules of Jewish law—then you turn to a heavenly voice. What else can you do when you’re stuck? Now why were they stuck? That I explain based on this Tosafot in Eruvin 6a. Tosafot says there that Beit Shammai were sharper—wiser, more acute—and Beit Hillel were more numerous. And that was exactly the dispute in Sefer HaChinukh: the wise minority against the less-wise majority. And now the question is whether you count feet or count heads. That was exactly the issue. Now when the heavenly voice decided, it said, “These and those are the words of the living God, but the Jewish law follows Beit Hillel.” What does “the Jewish law follows Beit Hillel” mean? Apparently they decided that you follow the majority of people and not the majority of wisdom. And indeed that is how most halakhic decisors learn it, and it is a possible source for their position. But it depends on how you understand the continuation of the Talmud. Because the Talmud goes on to say that they ruled like Beit Hillel because they were agreeable and humble, and they would mention the words of Beit Shammai before their own words. There are those who say that this was a reward for good behavior—that they were pious and nice and treated Beit Shammai respectfully, and as a reward the Jewish law was ruled in accordance with them. And that changes things. That is the plain sense of the language of the Talmud. Or maybe it’s a judicial temperament? A judicial temperament that moderates the claims—they… But the question is: does that get you closer to the truth or not? That’s the question. According to that approach, no—it’s an educational matter. Why? I think underlying it is the view that there is no such thing as halakhic truth. If so, both are right—“these and those are the words of the living God.” So how should we decide? Let’s at least gain an educational value. But the Ritva, in his principles of the Talmud, seems to imply—not entirely clear what he means, but it seems to me that this is what he implies, and afterward I saw others say this explicitly—that they ruled like them because they were closer to the truth. Why were they closer to the truth? Because they stated the words of Beit Shammai first—and so what? That means they heard Beit Shammai’s opinion before formulating their own. And because of that, although they were less brilliant, this method gets you closer to the truth. Now if so, it turns out that even according to the halakhic ruling there in the Talmud, the purpose of the vote is truth. Because according to the first explanation, the purpose of the vote is not truth, because there is no truth. Fine—you have to decide in practice, so you say: okay, let’s go with the more courteous ones; at least we’ll gain an educational benefit. Then indeed it comes out that according to the Talmud’s conclusion we follow Beit Hillel even though they were not the wisest. So where is Plato? The wise are supposedly closer to the truth. If we are not seeking truth, fine. But according to the Ritva’s reading, the Talmud’s conclusion is that although we rule like Beit Hillel—which would seem to fit the view that we are not seeking truth but rather following the majority, or peace, or whatever—he says no: we follow Beit Hillel, but still on the basis that the goal of the majority is to reach the truth. But why? Not because they are the majority, but because their method of forming an opinion was more open, more balanced. And therefore they got closer to the truth. So even over how to understand the Talmud’s conclusion there is a dispute. The question is whether in the end we follow the majority of wisdom or the majority of people. And of course there is a dispute—after all, there is a dispute among the medieval authorities (Rishonim). If the Talmud’s conclusion were unambiguous, there would be no room for the medieval authorities (Rishonim) to disagree on this issue. I assume each of them can explain that passage according to his own position. In any case, the assumption is that if we are indeed looking for the truth, and if there is no one here who has a methodological advantage like Beit Hillel had over Beit Shammai, then indeed the majority is an indication of truth. That has been my assumption all through the last class. And that is what I now want to examine a bit. Wait, something here stops me. What was the original question—why didn’t they vote? Meaning, the assumption is that in principle you follow the majority. Wait—the assumption is that majority rule has power in a court, but the assumption is that ordinarily, when sages disagree in matters of Jewish law… This is in the Sanhedrin—what do you mean? It’s in Jewish law. What? There was a dispute in the Sanhedrin. Ah, in the Sanhedrin. By the way, even not in the Sanhedrin—at least in the Shulchan Arukh, in section 25, it says that you follow the majority of opinions. The commentators there and also the Chazon Ish discuss this at length, that if they did not sit together and deliberate, the majority has no significance. If they sat together and deliberated, then the majority has value. In the Shulchan Arukh, you follow the majority. The Shulchan Arukh says you follow the majority even without that condition. But the commentators say that you follow… Why don’t we always follow the majority and count all the halakhic decisors? Some of them at least raise a technical claim: you can’t know what each one said, because you can’t go through all the books and know what all the books said on this question and then count. How would you know? You could miss hundreds of people; many didn’t write books—what about them? Do we go by the majority of books or the majority of people? Those are technical issues. What do you mean? Are you saying the assumption is that you need to know all the opinions of all the rabbis who ever lived? No, only in the same generation, no? No—why? Why should that matter? It’s a fundamental halakhic question, not a question about a particular case—it’s a principled halakhic question. Fine, like Beit Shammai and Beit Hillel—they only knew the people alive then; they couldn’t know what all people said. But if it’s in the Sanhedrin, then there’s no problem. Exactly—that’s the point, because the Sanhedrin is whoever sits in the Sanhedrin. And that is what the commentators on the Shulchan Arukh say: technically you can’t carry this out. But still, at the conceptual level it comes out that you follow the majority not only in the Sanhedrin but in every halakhic dispute—in principle, if we had all the opinions before us, we would be supposed to follow the majority. That too is an interesting question; I’m not sure I agree even at the conceptual level. But it is written in the Shulchan Arukh, and the commentators say yes, but there are technical problems, and therefore there are rules of decision that existed earlier—meaning, when there is a dispute between this authority and that authority, the Jewish law follows a certain rabbi. Where there was apparently no clear majority, but one sage against another sage, they established a rule for how to decide. Where there was a majority, then majority rules. And an anonymous Mishnah usually means many sages—that is a decision of the many. But my assumption all along has been that the majority, given that they are more or less equal in wisdom and that there are no methodological differences, hits the truth. Now I want to speak a bit about the relationship between majority and truth. Not necessarily only among people equal in wisdom, but also more generally. Let’s start with a case where they are not necessarily equal in wisdom—just the majority of people. A story I once talked about, about the surveys that atheists are so fond of, showing that among the educated public there is a majority of non-believers, whereas among the less educated, less intelligent public—I don’t know exactly how they define it—there is a majority of believers, and therefore obviously belief is false, some foolish superstition. My anarchistic tendency is usually to say that the majority is an indication of error—that usually the minority is right, and when there is a dispute between minority and majority, usually the minority is right. Why? Simple: there is a pyramid of talents, and there are very few smart people and many stupid people. So if there is a dispute between the few and the majority, the few are probably right. Where is the mistake in that picture? The mistake is that the distribution is not a pyramid but Gaussian, like a bell curve. There are very few who are very smart, very few who are very stupid, and in the middle there are all sorts. It’s a bell curve, roughly speaking. So it’s not a pyramid; there are two sides here—it’s a kind of pyramid with both a narrow base and a narrow top. And there’s another mistake I see: the assumption that the stupid don’t distribute—that intelligence clusters around one opinion. Meaning that between the minority that holds X and the majority that holds Y, it’s not as if that minority is made up of some smart people and some stupid people, and the majority too is made up of some smart people and some stupid people. And also—but here I can at least understand that there is some reason to assume there may be some correlation in the direction that intelligence will cluster around one opinion, assuming intelligence is relevant to the question. But there is a stronger question, it seems to me, from a stronger direction: even in things where intelligence is clearly relevant to the question, I don’t think that usually the stupid—or at least not always the stupid—will necessarily be wrong. Even the stupid, in what is relevant, will say something random, for our purposes. Sometimes they will say something with a correlation above fifty percent in favor of… Right, and therefore statistically there will be many stupid people who are wrong and few smart people who are right. Statistically, into the minority too some stupid people will slip, and into the majority too some… Why? But if the statistics—assuming we’re talking about majority and minority, then it has to be a question with two possibilities, right?—then the stupid will split half and half. No, not half and half—that’s exactly the point, no. Why? If a perfectly stupid person gives a random answer—not perfectly stupid, an ordinary stupid person gives a random answer—what is a random answer? He rolls a die. Someone who rolls a die, what will happen? In half the cases he’ll be right, in half the cases he’ll be wrong. So the stupid will split. Not necessarily, but it’s very plausible that the stupid split half and half, and the smart tilt to one side, and together they form a majority. Fifty percent of the stupid plus the smart. Yes, that’s an interesting claim. Okay, here I really need to define “stupid” differently, but you’re right. Correct. If it’s someone stupid who errs systematically, not someone stupid who gives a random answer. It’s like—I once saw an article in Iyun by Dr. Yael Cohen from the Hebrew University, “How to Extract the Truth from Any Liar.” You know those riddles where you have two paths, one to heaven and one to hell? At each stands a guard, and you can ask one of them one question, and you know that one is a liar and one tells the truth—how do you know which is the path to heaven? You ask one of them what the other would tell you if you asked him, and then you do the opposite. Right? So now she says: what happens if you have one guard? At a fork in the road there is one guard. You need to ask him one question—how do you discover the truth? I say: no problem. You don’t know whether he is a liar or truth-teller, but he’s either a liar or a truth-teller, right? You ask him: what would you answer me if I asked you? You don’t ask him directly which is the road. You ask him: what would you answer me if I asked you where the road is? Then again, you should do what he tells you. Because minus times minus is plus, and plus times plus is plus, so you should do what he tells you, right? Now she asks the third question: what happens if the person standing there is inconsistent? That’s the random one. Someone who is neither a pathological liar nor a pathological truth-teller, but does whatever he feels like—sometimes this way, sometimes that way. She shows there in a logical argument that even from such a person you can extract the truth. So you ask him one question—not one question, a compound question—but you can show with a truth table that if you formulate the question correctly, then whether he is a liar or a truth-teller, he’ll be forced to tell you something. Why? Because that question is built in such a way that it is only one question, not two. So it’s not like a compound question where he can decide whatever he wants—lie on both, tell the truth on both, lie on one—he can do whatever he wants and you don’t know. But with one question, either he is a liar or he is a truth-teller. Now when you construct the question such that the answer to it is, whichever way you look at it, something consistent with the truth, then with one question—let him decide what he wants, whether he’s a liar or truth-teller—but I make sure that both a liar and a truth-teller will have to answer me in the same direction, because otherwise some paradox arises or something like that. And therefore you can extract the truth even from such a person. Where’s the bug? And why don’t they do a polygraph like that in the police? The bug is that the person can decide to be inconsistent. Meaning, he can decide: okay, it comes out that if I say yes I enter a paradox, so whether I’m a liar or a truth-teller I have to say no. Now I’ll say yes and enter the paradox. Is anyone forbidding me from entering a paradox? So that’s exactly the same point as Arik’s. I accept the point; I hadn’t thought of it. So the point is, let’s go for a moment with your model, and afterward let’s think, in light of your point, what it means. What do we do now if we truncate the Gaussian? There is some place where there is a filter—university, whatever. You filter people, fine, you accept only those who pass a certain threshold. Let’s say we take the upper half of the population, the upper half of the Gaussian. And let’s say the filter is perfect for the sake of discussion, one hundred percent, an excellent filter. Okay? So we filtered the upper half of the Gaussian. Now here, if there is a dispute among the members of the upper half of the Gaussian, then the minority is right. Here we don’t have the lower tail; here we only have the upper tail. So if there is a minority against a majority, then it is a minority of smart people against a majority of stupid people. Okay? What happens if we filter the lower half of the Gaussian? Those who tried to get into the university and failed. Not including those who aren’t in university because some never tried. Those who tried and failed. Fine? So that is a filtering of the lower half of the Gaussian. There, the majority will be right, not the minority, correct? Because the upper part of the Gaussian consists of the smarter as opposed to the stupider, right? Now let’s go back to the atheists’ statistics. Okay? In the upper part of the population, the minority are believers. In the upper part of the population, the minority is right. In the lower part of the population, the majority are believers. In the lower part, the majority is right. So it works out. If we think this way, clearly this statistic proves that belief is true. Well, of course that’s nonsense, and the other thing is nonsense too. These surveys are nonsense in every direction. And really, the main reason—beyond Arik’s point, which is a correct point and I hadn’t thought of it—is that there is of course a bias here that appears, by the way, in Jewish law as well. The bias that says that when opinions are formed in a way that is not independent, you can’t count opinions. Even in the “wisdom of crowds,” where you want to ask how many leaves there are on a tree, and the assumption is that this somehow distributes around the correct answer—there are errors above and below, and therefore if you take the average you get close to the correct answer—that only works if everyone answers independently of the others. Otherwise you don’t have the law of large numbers; it’s not Gaussian. But if the answers depend on one another, then there is no wisdom of crowds, because it’s not really a crowd. Crowds and not-crowds, as it were. Fine? One person answers, and everyone copies the answer of one person—or many copy the answer of one person—so it doesn’t really distribute, right? Now what happens in disputes of this sort is that obviously not everyone forms an opinion independently. Not the religious and not the atheists, not the believers and not the atheists. You are a reflection of your native landscape, as they say; there is a culture in which you grow up and there is more or less a high correlation. Therefore you can’t treat all these opinions as independent opinions, and so majority and minority have no meaning at all in such matters. Still, if a certain opinion was accepted in a certain population, then it is more plausible that it fits its characteristics. The question is how that majority was formed; it could also come from historical reasons. Right now we have some distribution of opinions in the public, and the question is where it comes from—it can come from a thousand places. Not necessarily, but that doesn’t mean there is nothing there. So I’m saying: you can’t bring proofs from here. To bring some proof from here is not compelling; it is not absolute proof. Statistically it doesn’t even have weight. You don’t know where it came from. In the end, today people form opinions one after the other. There is a very high correlation; there is no indicator here that the distribution is in any Gaussian form or that the law of large numbers applies here. So these are two opinions, not eight million opinions in general. In Jewish law, by the way, it is also like this. Meaning, a student and his teacher in a court are not counted as two voices; they are counted as one voice. Because the student will follow the teacher, and Jewish law takes this into account. Therefore if you do—or even in matters of textual version: say there are several Torah scrolls and there is a difference in wording among the scrolls. There is a mistake in one of them, and we now don’t know where. We have some Torah scrolls with this version and some with that version. How do we decide? We follow the majority. That is what many halakhic decisors say: we follow the majority. But if these are Torah scrolls copied from one another—when I wrote this Torah scroll I looked at that scroll and copied from it—then they are not counted as two; it has no significance. Right? So it is clear that in a place where opinions are formed independently, there may be some room to follow the majority. But where the opinions depend on one another, there is no significance to following the majority. Now all this is in a place where there are stupid people and smart people and Gaussian distributions and all kinds of things of that sort. But as Sefer HaChinukh says, in a place where they are more or less equal in wisdom—say in the Sanhedrin or in a religious court where there sit three Torah scholars on roughly the same level—then there is no room for any of these considerations, neither Gaussian nor anything else. They are all more or less the same, and there are disagreements among them. And here it is quite clear that the majority hits the truth. And Sefer HaChinukh indeed says that: that the majority hits the truth. Right? In a place where their Torah wisdom is more or less similar. But if they are wise… What? Yes, yes, yes. It doesn’t matter, by the way. No, yes. Meaning, if they are wise in the sense that they are correct more than fifty percent of the time. Not even exactly fifty percent. There is a somewhat subtler calculation. It depends on the size of the majority. Depends what majority you have. Two against one requires a certain percentage. Fine, we’ll do that later. It’s a calculation of when the majority really guarantees truth, given that, say, a judge is at level p. Suppose in 0.6 of cases he is correct. Fine? p equals 0.6, meaning sixty percent of the cases he is right, so p is 0.6. A judge who is at 0.5 is worth nothing, because even an ignoramus can tell you the law with fifty percent success. But anything above fifty percent already indicates expertise. And if you are very expert, then it’s eighty, ninety percent—I don’t know how much. If you are less expert, then fifty-five percent, sixty percent, and so on. So judicial expertise can be somewhere between fifty and one hundred. Okay? Different levels of expertise. Then the question is: what p do you need so that a majority of two against one will ensure truth? What p do you need? In short, there are all sorts of interesting calculations here. It’s all theoretical. There aren’t really such charts, right? What? No, but it could give you some rough indications as to how much confidence you can place. Fine, we’ll talk about that. In any event, I’m now talking about a case where there is no distribution of wisdom. There is a distribution of being right or not being right. Because even a person at a given level of wisdom is sometimes right and sometimes wrong. But the people are more or less on the same level. There is no distribution in the wisdom of the people. What happens there? And there Sefer HaChinukh assumes that this is what the verse means, “incline after the majority,” because in most cases the majority is right. The question is whether that consideration really stands up to scrutiny. Once Rabbi Shabtai from the kollel at Bar-Ilan asked me: look, if a judge is right in, say, sixty percent of cases, then what is the probability that two judges are right? 0.6 squared—thirty-six percent. The more judges you want, the less likely they are to be right. Of course that’s not correct; you need conditional probability. But that’s what he asked. And I ask a different question. The Talmud in Chullin distinguishes between two kinds of majority: a majority that is “present before us” and a majority that is “not present before us.” What is a majority present before us? A majority of shops. We once talked about this with the meat. Yes, exactly. I think in judicial law too we talked about it, where it’s part of following the majority. If I found a piece of meat in the market, and there are nine kosher stores and one non-kosher one, then I’m allowed to assume that the piece is kosher and I can eat it. Following the majority. Now strictly speaking there is also the issue of meat left unsupervised, but in principle one can follow the majority. Okay? If the majority are non-kosher, then of course not. There was once a thought in the Talmud that women give birth either at seven months or at nine months. There are two due dates for women, as it were, and most women give birth after nine months and not after seven months. That is called a majority not present before us. What exactly is the difference between a majority present before us and one not present before us? There are different formulations, but it seems to me that what lies behind the difference is that a majority not present before us is a majority in the nature of the world, whereas a majority present before us is an accidental, incidental majority. Meaning: most women give birth at nine months—that stems from some assessment about the woman’s physiology. The physiology of the woman, of her pregnancy, is such that usually after nine months it ends. There are other cases, but in most cases it is after nine months. There is no rule in the world that most pieces of meat are kosher. That is an accidental majority. In this city, by chance, I know that out of ten stores, nine sell kosher meat. So in this case I know that there is a ninety percent chance that this piece is kosher, but that’s not a matter of the nature of the world. That is the difference between a majority present before us and a majority not present before us. Is there a practical difference? There are many practical differences. There are things involving fixed cases, many—many practical differences, differences in issues. The Talmud in Chullin asks: from where do we know this law that we follow the majority? Where do we know that we follow the majority? Chullin 11a. So the Talmud says: it is written, “incline after the majority.” The Talmud says: that works for a majority present before us; from where do we know a majority not present before us? Then it brings many possibilities and in the end does not find one. So Rashi says there that this is a law given to Moses at Sinai, which is also somehow an extension of “incline after the majority.” And the Talmud remains unresolved there, meaning it is not clear from where we derive it. We derive a majority present before us from “incline after the majority,” but not a majority not present before us. What is the difference between the two majorities? Let’s try to understand the difference between them, and then maybe I’ll explain the problem there. Which one is stronger—a majority present before us or a majority not present before us? The tendency is: present before us. Why present before us? Because it is in front of me. What is in front of me is stronger; I see it. It is commonly accepted that a majority present before us is stronger, and apparently the Talmud itself implies this. Because the Talmud derives a majority present before us from “incline after the majority,” and then asks from where I know also a majority not present before us. Now if a majority not present before us were stronger, then I would know it by an a fortiori inference. Rather, it is clear to the Talmud that a majority present before us is stronger, and if the verse deals with that, I cannot derive from it the other kind. In Maimonides, however—you can see this, as Rabbi Shimon Shkop writes—you can see that a majority not present before us is stronger. In capital cases they follow a majority not present before us and not a majority present before us. And as is well known: if in the Talmud it comes out that a majority present before us is stronger, then in Maimonides it will be written the other way around. That’s obvious. You don’t need to look at Maimonides to know that; it’s obvious that that’s what will be there. Now the question is how to explain such a thing. I once thought it could be explained this way. We talked about it once—I called it the “David Levy effect.” What does Maimonides say? He doesn’t say anything. He simply rules a law, and from that it follows. He doesn’t say explicitly that a majority not present before us is stronger; he just rules some law from which that follows. Maimonides doesn’t explain; it’s a law code. What is the David Levy effect? David Levy once came to the Likud central committee and said: listen, my faction in Likud doesn’t get representation in executive positions. I don’t know—say thirty percent for the sake of discussion—we have no representation at all. They say to him: what do you want? There’s democracy, there’s voting, and the majority decides. What’s your problem? So he tells them: fools of the world, that’s exactly my problem—democracy. When we vote on each position, then for each position the seventy percent overrules the thirty percent, and so one hundred percent of the positions are given to the seventy-percent majority. Right? Exactly like the Supreme Court, as we said earlier. In the Supreme Court there is representation—say, I don’t know, maybe twenty percent religious in the population, so for the sake of discussion twenty percent of the judges are religious. That means that one hundred percent of the decisions will be secular. Representation doesn’t help at all. What you need is that in twenty percent of the relevant cases there will be a religious majority among the judges. That would be proper representation. Not that there are twenty percent… And we know, after all, that the President of the Supreme Court determines the panel, who sits on each decision. And therefore he can effectively determine what the result of that decision will be, and that is what happens in many cases. If they did it by lottery and set the parameters so that in twenty percent of the cases the religious judges would have the majority, that would be fair. Fairness is not exactly their side there, it seems to me. At least not in these matters, I think. In any event, the claim is that in the end there is a dictatorship of the majority here. Meaning, they don’t give the minority even the share that represents it. Why not? Superficially, what’s your complaint? This is democracy, the majority decides, and we follow the majority. So every time they vote on each position, the seventy percent defeats the thirty percent, and they send their representative, and so on for each position. The tyranny of the majority, exactly. So this David Levy effect—he is right, of course—that effect is relevant to a majority not present before us. With a majority not present before us, let a woman come before us and say that for some halakhic reason I need to decide whether she will give birth at seven months or at nine. Okay? If I need to decide when this woman will give birth, I will decide that she will give birth at nine months. Then another woman comes before me, and I will also decide that she will give birth at nine months. All women will give birth at nine months. Thus every woman who comes before me in succession—I will decide in one hundred percent of cases that they will give birth at nine months. Right? Because in the end that is the law of nature. I know there is a minority that doesn’t, but for every woman who comes before me, if there is no special indication, what can I do? I automatically decide that way. And that is exactly the David Levy effect. Meaning, a majority not present before us means that one hundred percent of my decisions will be according to the majority. One hundred percent. I will ignore the minority. Okay? By contrast, with a majority present before us, I have before me pieces of meat, a collection of pieces of meat, and I know that among them nine are kosher and one is non-kosher. Like the stores—let’s talk about a piece in a pot, okay? Here the Rashba writes, the Ra’ah writes, and several medieval authorities (Rishonim) write—whether at the Torah level or rabbinic level, there are various disputes—you can eat the first nine, but you cannot eat the tenth. Why? Because one non-kosher piece is definitely here. So you don’t know which one, and each one you take you may assume is kosher. But there is definitely one non-kosher one here. You cannot say that all ten are kosher, because you know that one here is non-kosher. It is in front of you. You cannot ignore a datum that is in front of you. More than that: the Rashba and the Ra’ah there say that you should even leave two. Because after you have eaten eight and two remain—among those two, if there is a non-kosher piece circulating in the mixture, then if the non-kosher one is one of those two, there is perhaps not even a majority anymore. So when you take one out of the two, you can no longer assume. Fine, but I could make a statistical calculation that most likely there isn’t even one among those two. That calculation is not made in Jewish law, they say. Fine, but in any case the important point for us is that when the minority is present before me, I cannot ignore it. I will not make the decision in one hundred percent of cases according to the majority when the majority is present before us. With a majority not present before us, I do. Therefore a majority not present before us is stronger. A majority not present before us carries the assumption that in each and every case that will be the result. Statistically that is not true; statistically here it is ninety percent and there it is ninety percent. But halakhically, that is what will happen because of the David Levy effect. And therefore in effect it means one hundred percent of the decisions—that is how I will decide. In the case of something before me, I cannot ignore that before me there is also a minority. I didn’t quite understand the connection between the points. The first question was which one is stronger, and the meaning was, if I understood correctly, which of them there is a stronger argument to say should receive legal force? No, I didn’t explain. There is no stronger argument. “Stronger” means that it determines one hundred percent of the cases. But that wasn’t the first question. One could say there is a stronger argument for a majority present before us. There is no stronger argument for either. That’s the simple assumption. Both are ninety percent statistically. Why is there no argument? But the whole exposition of the Talmud there was that it learns from “incline after the majority.” The difference is a halakhic difference, not a rational-probabilistic difference. Statistically this is ninety and that is ninety percent. I’m saying there is no difference between them on the statistical level—how much I would bet that this is the outcome. No, not on the statistical level, on the level of the legal rationale—what should I decide according to? No, once you see that from a majority not present before us you rule on one hundred percent of the cases, then I say: legally, I see it as a stronger majority. Not statistically—legally I see it as stronger. And this is… It’s like the difference between a case where prohibited status has been established and one where it has not. Meaning, if I have one piece and I don’t know whether it is forbidden fat or permitted fat, then I have a fifty percent doubt and I have to be stringent, because for a Torah-level doubt we rule stringently. If I have two pieces and I know one is forbidden fat and one is permitted fat, that too is a fifty percent doubt about each piece I take—I took one of them. Fine? So it is fifty percent, and in both cases I need to be stringent. But there, I think they were lenient only in the second case. Only where prohibited status had been established. Why? Because the doubt where prohibited status has been established is considered more severe. Again, statistically it is about fifty percent. But halakhically, that is considered more severe. Why is it more severe? Because there is a prohibition before me in the mixture. Here there is a chance that maybe this is prohibited and maybe not, but there I know there is a prohibition; the only question is whether what I took is the prohibited one or not. From a legal perspective that is seen as something more severe. Fine? It is not a statistical difference; it is a difference in halakhic reasoning. In any event, that is the difference between a majority present before us and a majority not present before us. Now let’s return to a court. In court, “incline after the majority” is said about a court. And the Talmud in Chullin says that from the verse “incline after the majority” we derive a majority present before us. A majority not present before us—maybe yes, maybe no—but a majority present before us is learned from there. So clearly, a court is conceived by the Talmud as a majority present before us. Right? Why is it a majority present before us? The three judges are before us, divided two against one. We have the three judges before us, apparently. But there is a Mordekhai in Chullin, and the Mordekhai asks: why isn’t this a case of fixed status? What is the law of fixed status? In Jewish law, what happens if, say, the piece of meat was not something I found in the street, but in the store itself? I enter a store, take a piece of meat, and I don’t remember which store it was. There are nine kosher stores and one non-kosher one. If I found the piece lying outside, in principle I may eat it. If I took the piece from the place of fixed status—meaning from the store itself—I may not eat it. Anything fixed is treated as fifty-fifty. Why? Because it is found in the place of fixedness. The claim is that you only follow the majority when the piece has separated from the group, and then I assume it belongs to the majority group. But if the piece remains in its place, it has not left the place, then my doubt is about the place, not about where the piece came from. I know where the piece came from; I just don’t know what the status of that place from which it came is. About that I have a doubt. There it is halakhically fifty-fifty, again. I have a good friend, my study partner, who would always come to me with some new reasoning about fixed status. I’m laughing now, but with some reasoning why fixed status is specifically fifty-fifty and we don’t follow the majority. So I told him: if you would be willing to drink poison based on that probability, then we’ll talk. Bring me a probabilistic rationale on which you would also be willing to drink poison. He never had a rationale on which he would be willing to drink poison. But why? I didn’t understand—it’s supposed to be a halakhic rationale. No, no—he was arguing on statistical grounds. He wanted to claim that the statistical calculation should be different in such a case. In any event, that is the law of fixed status. And the Mordekhai asks: if the court is a majority present before us, because the three judges are before me, but they are in the place of fixed status. It’s not that one judge left and I ask whether he belongs to the majority faction or the minority faction. If I had a doubt about the judge—whether he belongs to the majority side or the minority side—that would parallel the pieces of meat. But here the three judges are sitting in their place, and I am not asking what the nature is of that judge who separated from this panel of the majority. I am asking what the law is. So what does this have to do with “whatever separates is assumed to have separated from the majority”? Here it is fixed, so it should be fifty-fifty, and it should have been forbidden to decide according to the majority. So he says there something strange. He argues that the voice, when they stated the Jewish law, separated from them. Meaning, we are not speaking about the judges themselves; we are speaking about what they say. What they say is a voice, and it separates from them outward, and then I ask to what to attribute it. It sounds like a very strange sort of thing. What, I’m asking about the voice? What does that matter? Why should I care about the voice? If they wrote and didn’t speak, then what? I understood that in some way… What? It doesn’t seem to me to matter. If they wrote in a book and the book is in court, it didn’t separate from anywhere. It separated from them—it doesn’t matter; they’re sitting on this chair, can they separate from the chair? It seems like technical pilpul. And the question won’t return? Why does it have to be related—maybe I missed something—to the issue of fixed status and whether it separated? What is he saying—that all that we derive from “incline after the majority,” the idea of following the majority, not from “incline after the majority”? Yes. “Incline after the majority” is from a court. Right—ah, from a court they derived fixed status as fifty-fifty? No. From a court they derived “whatever separates is assumed to have separated from the majority.” Ah, okay, he’s asking how they learned that from there if it’s fixed. Yes, okay. There is another question in Chullin: how do they derive the law of nullification from “incline after the majority”? It is not stated explicitly in the Talmud. The Talmud says that “whatever separates is assumed to have separated from the majority” is learned from “incline after the majority,” but the medieval authorities (Rishonim) also derive the law of nullification from “incline after the majority.” So on this there is a well-known explanation by Rabbi Shimon and Rabbi Chaim. They say that a court has to sit, and the ruling has to be on the basis of three judges, where two are against one. And that teaches the law of nullification. It means that the minority who held otherwise is nullified and becomes like the majority. Therefore it also teaches the law of nullification. Fine, one can argue about this; it is probably a dispute in Tosafot and others. That is their claim. In any case, for our purposes, the major claim—and this is what Rabbi Shimon Shkop asks against Sefer HaChinukh—is that Sefer HaChinukh’s words are extremely puzzling, what I said earlier. He explains “incline after the majority” by saying that the majority usually hits the truth, right? That’s what we’ve said until now. But if that were so, then the majority in a court would be a majority not present before us. What is Sefer HaChinukh’s reasoning? His reasoning is: what is their sample space? A majority among which cases? He says: let’s take all the panels, all the circumstances, all the cases, and check among all of them, and in all the panels where there was a dispute between majority and minority, let’s examine all those in which the majority was right and all those in which the majority was wrong. The assumption is that in most cases the majority was right, correct? That is Sefer HaChinukh’s assumption; it doesn’t matter where he gets it from, that is his assumption. What does that mean? It means, essentially, that this is a majority not present before us. We are not talking about the majority of judges—two against one on this panel of three. We are talking about the majority of panels in the universe, in history, whatever, and I ask: does this panel before me belong to the population of the majority, or does it belong to the minority population in which the majority was wrong—which would be the minority? This is a majority not present before us, not a majority present before us. What Sefer HaChinukh is really saying is that the nature of the world is that usually the majority is right. So this is a majority in the nature of the world, a majority not present before us, not a majority present before us. A tremendous difficulty. Meaning, this Sefer HaChinukh goes against the Talmud. And it goes against the Talmud not because the Talmud says there is no chance that the majority is right—not because it says it is not true that usually the majority is right. I don’t know what the Talmud thinks about that. But the verse “incline after the majority” is not saying that, according to the Talmud. Because otherwise you could not derive from it “whatever separates is assumed to have separated from the majority.” Whether the majority is right or not can be discussed separately. Maybe on statistical grounds it is true that the majority is right. But that is not what is written in the verse “incline after the majority” according to the Talmud, because otherwise you could not derive from here the rule of separation from the majority. So Rabbi Shimon Shkop offers another explanation, and it is a very involved explanation. Yes. But we just saw a moment ago that there is already a difficulty with this Talmudic analogy anyway, right? Why is this considered not fixed but rather separated? And the answer— I’ll explain, I’ll explain. It has nothing to do with fixedness or separation. The majority—what Sefer HaChinukh is really saying—is a majority not present before us. First of all, in a majority not present before us there is no fixed-status issue. The fixed-status question doesn’t arise according to Sefer HaChinukh, except that Sefer HaChinukh contradicts the Talmud. The fixed-status question doesn’t arise because in a majority not present before us there is no fixed status. The woman being fixed in her place is not relevant to whether she will give birth at seven or nine months. And there is no place of people here, no group located in some place like the stores. Everything is incidental. A majority in the nature of the world is not tied to place or non-place. That’s how the world behaves; it has nothing to do with whether this is in a fixed place or not. And therefore there is no law of fixed status in a majority not present before us according to almost all the medieval authorities (Rishonim) on the subject. But the Talmud says it is a majority present before us. The question is how I can see the majority in a court as a majority not present before us. I want to make the following claim. How does Sefer HaChinukh know that usually the majority is right? How do you conduct this research? You don’t know whether the majority was right or not. All you have is the evidence that was before the panel, and you weren’t there, you don’t know whether there was a murder or not. Now you want to do statistics, choose all the cases in which there was a dispute between majority and minority in courts, and check in how many of them the majority was right, right? That’s what you would need to do. There is no way to do that research. There is no way to do that research, right? Because you have no independent feedback that would tell you the result not through the judges’ eyes, with the direct aim of checking whether the judges were right or wrong. All you can do is see the evidence—but they saw the evidence too. Okay, you have no independent way of knowing this. Now look at how a majority present before us is formed and how a majority not present before us is formed. A majority not present before us is always formed by a sample. Always. I take a sample and, assuming it is representative, on the basis of the sample I infer a conclusion. Say that among the people I met, most women gave birth at nine months, and I assume those whom I met are not some special population but a representative sample of all the people in the world—assumption, fine. Then I infer that that is probably how things are. Say among the women I met, most gave birth at nine months; I assume they are not some special population but a representative sample of all women in the world. Assumption, fine. Then I infer that this is probably the nature of women in the world generally. A majority not present before us is always based on a sample. Why not on reasoning? Why not on reasoning? For example, even if not specifically in the case of pregnancy, there can be a majority not present before us based on reasoning. Suppose I say that… I mean, suppose… let’s ask: most people, most people who eat a certain food, say, won’t die afterward, even though it’s a food no one has eaten before, but according to analysis of the ingredients of that food—how do you know from analyzing the ingredients that those ingredients are dangerous? From a sample of people who previously consumed those ingredients, and you found that many died. You always start from a sample. Always. A majority not present before us is always built on a sample. Now a majority present before us is, by definition, never built on a sample. How would we check—do statistics now on pieces of meat lying in the market and ask yourselves how many of them came from the majority of stores and how many from the minority. There is no way to know. Because you never know where the piece came from. That’s exactly the question you are asking. You have no information that independently tells you where the piece came from. You have only the statistics of the number of stores, right? That is reasoning. It is not a sample. It is not an induction based on a sample. It is reasoning. For example, if in one particular store the bags tear more easily, then most pieces you find in the street will come from that store. You can’t know. You have no way of knowing. Or perhaps most klutzes shop in that store, so they drop pieces. I don’t know. Or they send children there, and children lose what they buy. Fine? So perhaps that is a cheap store, a population with many children shops there, they send the children to buy, and children usually lose things. In another place adults do the shopping, so they don’t lose things. You would need to know. If you have no other information, you assume it came from the majority of stores. That is not on the basis of a sample. You can’t make a sample here. There is no way to design an experiment by which you would manage to confirm or refute the claim that a piece of meat in the market came from the majority stores. You won’t succeed in designing such an experiment. Okay? I don’t know, maybe it’s possible, I once thought of something, but never mind. It is almost impossible. Now in a court, it resembles the majority-of-stores case. It does not resemble a majority not present before us. Because we have no real way of knowing what happens in most cases—whether the majority is right or wrong. In that sense it is exactly like the stores. It is reasoning. It is a probabilistic calculation, basically. You could sample the number of cases that were clarified retroactively. Ah. So after genetics came along and in the United States DNA was recognized as evidence, they indeed started checking cases where people had already been sitting in prison, and it turned out there were many cases where people sat in prison and were innocent. Did they check whether the majority was involved? Not the majority? No, not the majority. I think I once asked Professor Doron Menashe; he gave me some statistics on this, and apparently it wasn’t the majority. But it was many cases. Close to the majority? Meaning something… What? There were many cases. There were many cases. It wasn’t negligible. I don’t remember exactly. He still needs to check for me. I asked him some time ago; we talked about it. He dealt with this a bit. In any event, the claim is that since you have no way to check it, it is like the majority of stores. It is not a majority built on a sample. Now a majority not present before us is not defined by whether it is before us or not before us. A majority not present before us is built on generalization from a sample. A majority present before us is a majority from reasoning. That’s the difference. It doesn’t matter whether it is before us or not before us. In that sense, the majority in a court resembles the stores; it is a majority present before us. It is not a majority not present before us. And what Sefer HaChinukh says, that usually the majority is right, is reasoning—just like the reasoning that says that usually the piece separated from the majority stores. And that is not the result of an induction based on a sample. And that is what the verse says. The verse says: when you have probabilistic reasoning, follow the majority. A majority based on a sample is something else; that’s probability. It does not come from the verse “incline after the majority.” But it is also valid in Jewish law. Still, it does not come from the verse “incline after the majority.” And in this sense the majority in a court is a majority present before us. It is a majority present before us, sorry, not a majority not present before us. Because the general population to which I attribute it is not the product of a sample. So that is the claim. Therefore Sefer HaChinukh is right, and this is not difficult from the passage in the Talmud, and there is no need to reach the forced explanations of Rabbi Shimon Shkop. In other words, when I say that the majority is usually right, that is not the result of experience. That is basically what I am saying. That brings us back to our topic: whether the majority is right. The claim that the majority is usually right is not the result of experience; it is the result of reasoning—a probabilistic calculation. And that is what we will try to examine next time.