Majority in Halacha and in General 2, Lesson 3

Table of Contents

• The laws of majority in Jewish law and their sources
• Majority in a religious court as an indication of truth according to the Sefer HaChinukh
• The development of communal decision-making in the Middle Ages and the dispute among the medieval authorities (Rishonim)
• The Rosh and the Rashba, Tosafot’s reasoning, and the claim that the verse alone is not a sufficient basis
• Criticism of decisive halakhic rulings without a basis, and the consequences for trust in the internet age
• Rashi on Eve, “whoever adds detracts,” and safeguards versus attributing them to Jewish law
• A community rabbi, authority, and majority enactments with an “important person”
• Probability, sages, and judges as the basis for assuming the majority is accurate
• Majority, reasons, and the question whether we count the ruling or the rationale
• “Two giving one reason from two verses,” and Rashi versus understanding the reason itself
• “These and those are the words of the living God,” Rabbenu Tam and the Maharal, and the weight of reasons
• Captivity to the outcome, conversion, and a multiplicity of questions collapsing into two camps
• The doctrinal paradox, following the bottom line, and the challenge of seeking truth
• Jewish law as bottom line versus reasons: Amoraim and Tannaim, and the example from Ketubot
• Authority rather than truth as the key to understanding adherence to halakhic rulings

Summary

General Overview

The text distinguishes between the laws of majority in Jewish law and majority rule in communal and democratic decisions. It argues that a majority in a religious court is understood mainly as a rule of thumb for getting closer to the truth, by virtue of “follow the majority,” as explained by the Sefer HaChinukh, whereas a democratic majority is meant to reflect the will of the public, not to uncover truth. Based on that, it argues that “follow the majority” is not a direct source for the democratic management of a community, and that the dispute among the medieval authorities (Rishonim) over the authority of the communal majority reflects that gap. Rabbenu Tam requires unanimity and concedes that there is no binding halakhic source for communal majority rule, only at most an enactment. The text then criticizes halakhic decisors who present sharp, definitive rulings without a clear basis in order to create governability, warning that this erodes trust, especially in the internet age, and it illustrates this with Rashi on Eve and the principle that “whoever adds detracts.” Finally, it examines the relationship between majority and reasoning versus majority and bottom line, through the Rema, the Shakh, the topic of “two giving one reason from two verses,” the doctrinal paradox, and a discussion of “these and those are the words of the living God” through Rabbenu Tam and the Maharal, arguing that many reasons can be correct at the same time and that the ruling is reached by weighing their relative force.

The Laws of Majority in Jewish Law and Their Sources

The text opens by presenting the areas in Jewish law where majority rules apply, including following the majority, nullification by majority, and “part of it is like the whole of it,” and it attributes the basis of following the majority to the derivation from “follow the majority,” which is said regarding a religious court. The text distinguishes between two fundamental uses of majority: one as an indication of truth and the other as an indication of the collective’s position and will. It argues that in a democratic context the purpose of majority is to reveal the will of the public, not the truth, and therefore rejects the Platonic proposal to give greater weight to the votes of sages, because that assumes that the goal of the decision is truth rather than representation of will.

Majority in a Religious Court as an Indication of Truth According to the Sefer HaChinukh

The text attributes to the Sefer HaChinukh and to the common approach the idea that a majority in a religious court serves as an indication of what is closer to the truth, even though the majority can be mistaken, and presents this as a fixed rule of thumb that is preferable to following a minority. The text argues that this means “follow the majority” cannot serve as a source for democratic majority rule, because these are two different kinds of majority with different purposes. It notes that at the end of the previous session a reservation was raised about simply identifying the majority with truth, and it promises to return to that point later.

The Development of Communal Decision-Making in the Middle Ages and the Dispute Among the Medieval Authorities (Rishonim)

The text describes a historical process in which, at the end of the first millennium and the beginning of the second, with the dispersal of communities and the absence of a central national hierarchy such as a Sanhedrin or an Exilarch, the halakhic decisors built mechanisms for decision-making at the community level, not only in halakhic matters but also in administrative ones. It says that most halakhic decisors held that one follows the majority in a community, and that by the 14th–15th centuries this approach had clearly prevailed, though Rabbenu Tam required unanimity. The text explains that Rabbenu Tam does not rely on “follow the majority,” because he understands that the verse deals with a majority whose purpose is truth, whereas a communal decision represents will and therefore cannot be derived from there.

The Rosh and the Rashba, Tosafot’s Reasoning, and the Claim that the Verse Alone Is Not a Sufficient Basis

The text argues that the Rosh and the Rashba, and most of the medieval authorities (Rishonim) who disagree with Rabbenu Tam, bring “follow the majority” together with additional considerations, such as the practical need to make decisions, and do not rely on the verse alone. It concludes from this that even those who disagree with Rabbenu Tam understand that the verse by itself is not a sufficient basis for communal majority rule, because it is speaking about a different kind of majority. The text presents Rabbenu Tam’s position as something close to direct democracy by unanimity, and notes that the argument against him is that a community cannot be run that way. But it emphasizes that Rabbenu Tam insists that halakhically there is no binding source, and therefore one should institute an enactment rather than present it as Jewish law.

Criticism of Decisive Halakhic Rulings Without a Basis, and the Consequences for Trust in the Internet Age

The text argues that halakhic decisors and rabbis sometimes give sharp answers even when there is no clear source or consensus, out of fear that otherwise there will be no governability, and it identifies this as a historical pattern that is not new. It says that today this no longer works, because the internet quickly exposes contradictions and alternative views, and the public concludes that it has been told things that do not faithfully reflect the actual state of Jewish law, and loses trust in the halakhic decisor. The text presents Rabbenu Tam as a model of speaking the halakhic truth while also presenting what seems reasonable on the human level, and connects this to examples of egalitarian questions in prayer quorums, where it is argued that there is a broad range of sources but what people hear are definitive positions that push parts of the public away.

Rashi on Eve, “Whoever Adds Detracts,” and Safeguards Versus Attributing Them to Jewish Law

The text cites Rashi’s interpretation of Eve and the serpent as a source for the idea that adding to a command leads to detracting from it, phrased as the principle that “whoever adds detracts.” It argues that the problem is not making a personal safeguard, but presenting it as a divine command, because when it becomes clear that the extension is not actually correct, commitment is harmed even to the genuine halakhic core. The text explains that the motivation of halakhic decisors to present positions as Jewish law is the fear that if they present them merely as an opinion, people will not listen. But it argues that the price is loss of authority even in places where there really is an unambiguous prohibition.

A Community Rabbi, Authority, and Majority Enactments with an “Important Person”

The text distinguishes between an outside opinion about how a community conducts itself and the authority of a community rabbi who was empowered to determine communal norms, and it presents a model in which even a community rabbi should honestly say, “This is not forbidden, but it is not appropriate, and therefore we won’t do it,” when that is in fact the position. The text refers to medieval enactments in which decisions were made by majority but sometimes on condition of the consent of a rabbi or an “important person,” and it presents the argument that an “important person” sometimes means a wealthy person, and that sometimes only the rich voted. The text says that the agreement of an “important person” is not required by strict law, but is a pragmatic rule meant to prevent the tyranny of the majority and preserve the reasonableness of the decision, and it calls this a rule of common sense with no binding halakhic source.

Probability, Sages, and Judges as the Basis for Assuming the Majority Is Accurate

The text presents a dependence between the force of a majority and the probability that each individual is right, and illustrates that if the individual is correct at a very low rate, then a majority of “idiots” does not bring us closer to the truth. It argues that with judges the assumption changes, because we are dealing with intelligent people, or at least with people presumed reliable, and so the probability that they will decide correctly is higher. The text formulates that the concept of a “sage” is definitional in the sense that, in the relevant context, a sage is defined as someone who decides correctly in most cases. It attributes to Dan Ariely the claim that many people make incorrect decisions, and responds that this describes foolishness, not wisdom.

Majority, Reasons, and the Question Whether We Count the Ruling or the Rationale

The text raises a halakhic question: if the purpose of majority in a religious court is truth, why do we follow the final ruling when two judges agree on the result but for different reasons, so that there is no majority for any one reason? It cites the Rema in the Shulchan Arukh, section 25 paragraph 2, who rules that one follows the majority even when the majority do not agree for one and the same reason, but each for his own reason, as long as they agree on the basic ruling. The text presents the Shakh, who distinguishes between a ruling derived from books, where “the majority is not before us,” and a case where the majority are deliberating together. He argues that when the majority are not together, we worry that the minority might have persuaded them, but when all of them are in one forum, it is obvious that we follow the majority even without a single common reason. The text illustrates this through capital cases in the Sanhedrin, where one cannot demand a “choir” singing one identical rationale, and it points to the judicial procedure in which reasons are first raised and the words of those who acquit and those who convict are recorded, and only afterward is a vote taken.

“Two Giving One Reason from Two Verses,” and Rashi Versus Understanding the Reason Itself

The text cites a passage in the Talmud in Sanhedrin according to which, when two judges give one reason from two different verses, they are counted only as one, and it presents this as a challenge to the idea that only the bottom line is counted. It cites Rashi, who explains that the problem is that “certainly one of these verses was not written for this,” because “two verses were not written for one reason,” and therefore one of them is making a demonstrable mistake. From this it concludes that reducing them to a count of one stems from concern over error in the source, not from a principle that only reasons are counted. The text cites Maimonides in Laws of the Sanhedrin, chapter 10, Jewish law 5, with the wording “even from two verses,” and the question of the Rammakh, who suggests deleting the word “even” in order to align the text with the logic that the problem is specific to two verses for the same reason.

“These and Those Are the Words of the Living God,” Rabbenu Tam and the Maharal, and the Weight of Reasons

The text returns to the topic of “these and those are the words of the living God” in Eruvin and presents a monistic reading versus a pluralistic one, while saying that the discussion still leaves a difficulty as to how to understand “these and those” in a monistic reading. The text brings a dispute between Rabbenu Tam and the Maharal regarding the Sanhedrin entrance test of “forty-nine reasons to declare the creeping thing pure,” where Rabbenu Tam calls this “empty hair-splitting,” because the creeping thing is impure, while the Maharal argues that the reasons for purity are genuinely correct reasons, except that the reasons for impurity carry greater weight, and therefore the ruling is impurity. The text argues that a judge must seek reasons from every direction and not become “a prisoner of the bottom line,” and it illustrates this with public debates, with the example of the sticker “Rabin has no mandate to return the Golan,” and with the example that chocolate is tasty but fattening, to show that both sides can have valid reasons and that the real argument is about their relative weight.

Captivity to the Outcome, Conversion, and a Multiplicity of Questions Collapsing into Two Camps

The text describes a human tendency to subordinate all reasons to the desired result, and calls this being “prisoners of outcomes.” It gives an example from a public debate about conversion, where one could formulate fifteen independent questions that should have produced an enormous range of possible positions, but in practice only two groups emerged, answering consistently “yes” or “no” to all the questions. The text argues that this phenomenon appears among halakhic decisors as well, and shapes rulings as though all the reasons move together, contrary to the complexity one would expect from a judge.

The Doctrinal Paradox, Following the Bottom Line, and the Challenge of Seeking Truth

The text presents the doctrinal paradox through the example of a contract dispute involving two basic questions: interpretation of the contract and the factual question whether the act was actually performed. It describes a situation in which there is a majority on each of the two underlying questions, but voting on the bottom line produces the opposite result. The text says that in the legal world, and also in Jewish law, it is accepted to go by the bottom line, and it sees this as a challenge to the idea that majority is meant to reveal truth, because truth would seemingly be determined by deciding each component separately. It adds an anecdote from a real Supreme Court case involving a dispute under the Hague Convention, where two different exceptions determined the bottom line even though there was no majority for either exception, and says that this illustrates the paradox in practice, since on each exception there is a majority against applying it, yet the overall result is determined otherwise.

Jewish Law as Bottom Line Versus Reasons: Amoraim and Tannaim, and the Example from Ketubot

The text asks whether Jewish law binds us to the reasons or to the result, and cites the rule that Amoraim do not dispute Tannaim, but they can rule like one Tanna in one case and like another Tanna in another case. The text presents an example from Ketubot 12b, in the dispute between Rabban Gamliel and Rabbi Yehoshua over a woman’s credibility regarding the marriage contract, and describes a ruling that distinguishes between a case where there is a migo and a case where there is no migo, such that one rules like Rabban Gamliel in one case and like Rabbi Yehoshua in another, even though the two Tannaim themselves do not make the law depend on migo. The text concludes that this shows that authority is connected to the bottom line and not necessarily to the framework of the reasoning, and it adds the example of Shmuel, who offers a reason “better than all of them” regarding saving life in Yoma.

Authority Rather Than Truth as the Key to Understanding Adherence to Halakhic Rulings

The text argues that the inability to dispute Tannaim does not necessarily stem from the assumption that they cannot err, but from the allocation of legal-halakhic authority. It says that from this follows the possibility of accepting the rulings of the Gemara and the halakhic decisors without necessarily adopting their meta-halakhic theses or their underlying philosophical framework, and it illustrates this with the question of a socialist versus capitalist outlook. The text concludes by saying that when one is genuinely seeking truth, a major question arises as to why one should not follow the reasons, and it suggests that there may be explanations for that, but the matter remains challenging.

We’re in the topic of following the majority, or in general the laws of majority. I spoke a bit about the different majority rules in Jewish law: following the majority, nullification by majority, and “it is considered as the whole.” I said this is learned from “follow the majority,” which is stated regarding a religious court, and we’ll get back to that later. I distinguished between two uses of following the majority, or deciding by majority. One use is as an indication of what the truth is, and the second use is as an indication of what the collective says or wants. In the context of a democratic majority—and that was one of the points I emphasized—it seems that the purpose of the majority is to reveal what the public wants, not the truth. And therefore I said that the Platonic proposal to go with rule by philosophers, or to give smarter people extra weight in voting, has no basis. There’s no need to look for excuses for it, because that proposal assumes that we are looking for the truth. Then people say, fine, if we’re looking for the truth, why shouldn’t the wise get extra weight? But if we say no, we’re looking for what the public wants—whether it’s true or not true is not the issue—but democratic rule is supposed to reflect what its senders want, what the public wants. And if there are disagreements and we need to decide what the public wants, then the simplest criterion is the criterion of majority: follow the majority. I said that in “follow the majority” regarding a religious court, the purpose of the majority—this is what Sefer HaChinukh says, and this is the accepted way of thinking—the purpose of the majority is to serve as an indication of the truth. Or is the truth inside the majority? What? Or maybe not—last time, at the end of last time, I said that wasn’t correct, but in a moment we’ll see. Sefer HaChinukh, and the accepted approach, is that the reason we follow the majority in a religious court is because the majority is an indication of what the truth is likely to be. And again I say, it doesn’t have to be that way. Obviously the majority can make a mistake. But if I’m looking for some rule of thumb, what will bring me closer, then presumably following the majority is better than following the minority. And they want some fixed rule. So we follow the majority because that’s how you get closer to the truth; that’s how Sefer HaChinukh explains it, and we’ll come back to that later. From this I said that the verse “follow the majority” also cannot be the source for following a democratic majority. I described how, in the communities that began to develop at the end of the first millennium and the beginning of the second, the Jewish people began to disperse and questions started to arise about how a community ought to conduct itself. There was no longer a central government, a Sanhedrin or whatever, or an Exilarch, that basically imposed norms downward; instead there began to be a collection of communities in all sorts of places, communities and villages and cities, and each one started managing itself. Then the halakhic decisors gradually created a system of decision-making within the framework of a community—not within a hierarchical system of Sanhedrin and local courts. There was no longer a hierarchy, no national structure. What they started creating was basically a miniature version of what had existed on the larger scale, and they turned the community into the basic unit, and they wanted to anchor the rule that we follow the majority even in community decisions. I’m not talking about halakhic decisions; I’m talking about administrative decisions. So that we follow the majority—that is the view of most halakhic decisors. It’s a bit funny that even on this there’s a majority and a minority. Rabbenu Tam says it has to be unanimous. Meaning, it is not enough to follow the majority. But let’s say by the end of the Middle Ages, the 14th–15th century, it had already been decided very clearly that communities too go by the majority. So why Rabbenu Tam? What, he doesn’t know the verse “follow the majority”? So what I said was that “follow the majority” tells you that the majority is a criterion for truth. But Rabbenu Tam says: a majority decision in a community is not a decision that operates by criteria of truth, but by the criterion of what the public wants. A person has a right to determine his own fate. But I also noted that the halakhic decisors who disagree with Rabbenu Tam—the Rosh and the Rashba and most of the medieval authorities (Rishonim) who disagree with Rabbenu Tam—always bring the verse “follow the majority” together with some additional rationale. Meaning, they always say: and besides, without that it would be impossible, because if we don’t go by the majority, decisions can’t be made. They always add little supplements like that. Why don’t they just suffice with citing the verse “follow the majority,” full stop? Because they too understand, despite disagreeing with Rabbenu Tam, that the verse “follow the majority” by itself cannot really serve as a basis for following a majority in a community, because this is a different kind of majority. Following the majority in a religious court is a majority that seeks truth, or whose purpose is to reveal truth; following the majority in a community is a majority whose purpose is to represent what the public wants. And therefore these are two different things. So for Rabbenu Tam it’s almost direct democracy, that it should be unanimous, that the whole community should say yes. Right, but then no decisions get made. That’s everyone’s claim against him, basically. Right, but I’m saying: but Rabbenu Tam—why? Rabbenu Tam says: true, impossible, impossible, so I don’t know, draw lots. But practically speaking, I can’t tell you that halakhically the majority decides. So what’s the source? He doesn’t have a source either. So enact an ordinance. Decide, enact an ordinance. It has nothing to do with Jewish law. No problem—enact an ordinance, what does that have to do with me? Enact an ordinance. But I’m saying, you’re asking me a halakhic question; halakhically there is no source for it. And he’s right. Now the other medieval authorities, the Rosh and the Rashba—what I said was that they ostensibly do bring a source: “follow the majority.” But that’s why I showed that in the interpretation there is always an added remark, another rationale for why to follow, why this verse determines the matter. Because they too feel that this verse is not really a genuine source. And by the way, since you asked, I think this is true today as well in many cases, and in my opinion it’s a big mistake that halakhic decisors and rabbis make when they are asked a halakhic question. Now, in Jewish law you can say this way or that way; there is no clear source, certainly no agreement on certain questions, and they give a simple answer. A clear answer. This is what one must do, or this is forbidden, or something like that, because they understand that otherwise there will be problems. And so this is often accepted; people did it many times and they still do it today, this is not a new invention. What is new is that today, in my opinion, it is not correct to do this. Because if you do it in a way that does not really reflect the halakhic situation, our global village with the internet will very quickly discover that you were selling them nonsense. Then they’ll say, what do you mean? But here, that person says otherwise, and there are opinions like this, and there’s this rationale—who knows? Where did you get the idea that this is such a simple matter of Jewish law? They lose trust in the halakhic decisor. Instead, what you should do is what Rabbenu Tam did. I’m with Rabbenu Tam, by the way, not with the Rosh and the Rashba. I, the little one. I’m with Rabbenu Tam—not in the sense of not following the majority in a community; you have to follow the majority in a community, you can’t run things any other way. But Rabbenu Tam told the truth. He said: look, halakhically there is no way out. There is no source. Meaning, there is no source that obligates following the majority. True, if you ask me for my personal opinion, what makes sense, you understand on your own what makes sense. Obviously if we don’t go by the majority, it’s impossible to function. But I can’t insert that into Jewish law, otherwise I’m lying. I can’t tell you that this is Jewish law, because it isn’t Jewish law. This often comes up with questions of equality in prayer quorums, all kinds of things like that—it’s very common. Because these questions, at the root level in their sources, are open questions. You can do almost anything in terms of halakhic sources. And halakhic decisors express very firm positions, as though it’s obvious what is permitted and what is forbidden. And I think that’s a big mistake, because they lose the trust of at least part of the public. The public discovers that it isn’t true. In Jewish law there is room to do this and room to do that, and you’re telling me it’s forbidden? Then I don’t believe you anymore. And then even in places where Jewish law really does have an unequivocal statement, people won’t listen to them. I once brought the story—or maybe Rashi—about Eve, yes, that the serpent wanted her to eat from the tree, and she told the serpent that the Holy One, blessed be He, had said not to touch the tree, whereas the Holy One, blessed be He, had said not to eat from it, not not to touch it. So the serpent pushed her against the tree and said: see, you touched it and nothing happened. And then she ate. In other words—and Rashi says this teaches us that whoever adds, subtracts. Meaning, if the Holy One, blessed be He, said not to eat, then say that it is forbidden to eat. If you want not to touch, no problem. But don’t say that the Holy One, blessed be He, said not to touch. The Holy One, blessed be He, said not to eat. If I make a fence and say I’m also not touching so that I won’t come to eat, that’s perfectly fine. Because then if he pushed her against the tree and nothing happened, that would be perfectly fine; that’s her own fence, it isn’t a command of the Holy One, blessed be He. But she expanded it, she was too ultra-religious, she put everything inside Jewish law, inside what the Holy One, blessed be He, said—and then they showed her that it wasn’t true. And the moment it turned out not to be true, she lost her commitment also to the part that really was Jewish law. That’s the price one pays, basically. Because then, in a place where a halakhic decisor comes and tells the community, look, this is forbidden, they won’t accept it even in a place where it really is forbidden. They’ll say, fine, that guy keeps pushing nonsense into Jewish law, we don’t believe him anymore. Because if it’s actual laws, fine—he has authority, we accept his view. But if it’s his personal opinion, we have personal opinions too, why should we accept his? By the way, that is the motivation of halakhic decisors to act this way. Because they understand that if they don’t present it as Jewish law, then people won’t listen to them—because why should they? Everyone has opinions. But I’m saying the price paid for that is very heavy. Better to take the first risk. Meaning: say what the Jewish law is, say what in your opinion it would be advisable to do, but present it that way. Then people will decide. At least they’ll trust that when you really say something is halakhically forbidden, then they’ll listen. Otherwise you lose that too. So I’m saying that basically the same thing is happening here. The Rosh and the Rashba are basically adopting the practice of inserting non-halakhic principles into Jewish law, even though it doesn’t really emerge from Jewish law. Because they understand there’s no choice, and they’re right that there’s no choice. But I think it isn’t right to present it that way. Even if there’s no choice, then say there’s no choice—but don’t say that it comes out of “follow the majority.” And Rabbenu Tam says no, it doesn’t come out of “follow the majority”; do what seems right to you. There is a ruling that says that every rabbi in his own community—A rabbi in his own community is something else. Again. A rabbi in his own community is—well, this is just a side point—but a rabbi in his own community really is authorized to decide halakhically what happens in that community from a halakhic standpoint; that’s what he was appointed for. I’m talking about a question asked not to the community rabbi. We ask someone: what do you think, how should our community conduct itself? If it’s the community rabbi, then he says it not because that is the Jewish law, but because he has the right to decide, because he is the one appointed to make that decision. They’re afraid of the internet, so what? There’s nothing to do? I didn’t understand. They’re afraid that on the internet it will be written in the paper that this rabbi said such-and-such. No problem: the rabbi of a community also has to say it this way. With the rabbi of the community, after he says it this way, he also has the authority to say that this is what we will do, since he is the rabbi of the community; he decides how, say, the synagogue behaves, okay? Only he—if he is a wise person—will say what the truth is. He’ll say: look, this isn’t forbidden, but in my opinion it’s not appropriate to do this, and therefore we won’t do it. He too has to present it honestly; the difference is that unlike an opinion from some other rabbi, which I can then accept or not accept because it isn’t binding Jewish law, the community rabbi has authority—at least depending on the contract with the rabbi, whatever, but generally the community rabbi has authority to determine; that’s something else. So in many places in the Middle Ages, the ordinance is according to the majority, but with the agreement of the rabbi or something like that, of an important person. Yes, right. So first of all, why do they need the agreement? And second, in many places only the wealthy voted, not everyone… An important person… Right, when it says “an important person,” it means someone with a lot of money. Look, the point is that the agreement of an important person is obviously not law from the outset. It’s all an invention. It’s all an invention. Following the majority is an invention, and the qualification that we go by the majority only if there is agreement of an important person is also an invention. There is no source for either of them. That’s what I’m saying—it’s part of the same thing. What happened is simply that they feared there would be a majority that would take over—a genuine majority—but it would reach wrong decisions, would harm the rights of the minority, what happens today in democracy, the tyranny of the majority. So what the halakhic decisors demanded, since they had already taken for themselves the authority to express an opinion in these matters, was that we want there to be agreement of an important person, who will see that this decision is reasonable—that’s all. So there won’t be tyranny of the majority. But again, these are all rules with no source in Jewish law; this rule too is just a rule of common sense. So the assumption is that people are not mistaken most of the time when we say “follow the majority.” Not most of the time, but rather that the majority of people are, probabilistically, closer to the truth than the minority, in most cases. The question is whether the decisions of people, decisions of judgment, most of their decisions are… Look, I think it depends on the question of what percentage chance the individual person has of being right; we’ll get to that. Meaning, if the individual person is a complete idiot and is right in ten percent of cases, okay? And now you have two idiots against one idiot, then generally the one idiot is the one who’s right, correct? Because the other two are probably wrong. But when we’re talking about judges, then with judges you’re multiplying the chances; the chance they’re right is the chance squared when there are two judges. And judges, not by accident, are supposed to be wise people. So I’m saying, with judges, since—and we’ll get to this later too—since we’re talking about wise people, or people presumed reliable… Is that the guarantee that he’ll decide correctly? No, that’s the guarantee that in most cases he’ll decide correctly, or with high probability. But why? That’s what is called a wise person. It’s not objective, it’s definitional. It’s definitional, not objective. If he doesn’t decide correctly, then he isn’t wise. Dan Ariely built an entire career showing that decisions are not correct. First of all, I have a few reservations about his career. But beyond that, the fact that people make bad decisions is because they are foolish, not because they are wise. He built a career showing that people are foolish. Do wise people make correct decisions? Part of what he wants is to teach them to be wise. I’m saying it’s a definition, not a claim. Someone who makes incorrect decisions is not wise; that’s simply the definition. By definition, a wise person makes correct decisions, otherwise he isn’t wise. Maybe he solves mathematical problems, he’s a genius, he knows how to solve mathematical problems—but in the contexts relevant to us, he is not wise. Should we say, or can we say, according to Rabbenu Tam’s approach, that what we called the social convention and the agreement should be introduced here—that the whole public agrees that this is the way to make a decision, or that the whole public decides this is what is reasonable. But this is not a halakhic principle. No, it’s not Jewish law. But it’s an agreement. Obviously that’s what it is. Obviously that’s what it is; it’s not part of the social convention in the sense of some naturally given thing, because otherwise where did it come from? In Jewish law it isn’t the social convention, but rather a decision that everyone—even though it isn’t really Jewish law—accepts. Obviously, it’s a legal fiction. A fiction that people agree this is how they want to decide. Like in democracy. Right, right. I think that’s true. The only point is that it isn’t a halakhic principle. Therefore Rabbenu Tam thought he could accept such a thing. Jewish law that differs from Jewish law has no source in Jewish law. Common sense—I’ll tell you that too, and that’s obvious. So the principle of following the majority in a religious court, basically, in the end its purpose is to reveal the truth, and the assumption is that the judges are people who understand what they’re doing and make reasonable decisions in the halakhic context, and therefore the rationale says that most likely the majority is more correct than the minority, and so we follow the majority. Now there is an interesting halakhic implication that I wanted to touch on a bit now in connection with this. If indeed the rule is that the majority in a religious court is intended to reveal the truth—by the way, that isn’t completely agreed upon, we’ll talk about it a bit later—the rationale says, and I think this is the accepted approach, then I would expect the criterion on which we base our decision to be the criterion of truth. Where would this have practical implications? A halakhic implication, I mean. For example, if there are three judges discussing a certain case, say they are discussing whether Reuven murdered or did not murder, okay? Judge A says: Reuven murdered, and I have such-and-such reasons. Judge B says: Reuven murdered, but I have different reasons, not the reasons of the first judge. And the third judge says that Reuven did not murder, and he too has his rationale, he also has reasons—everyone, like the judge’s wife, yes, “you’re also right,” everybody has reasons, okay. Now the question is whether the majority decides in such a case. If we are looking for the truth, this is very far from simple, because after all, in the end the question is whether the reasons are correct. The halakhic implication is only an implication, a result. But I’m asking: if Judge A gave reason X, the other two judges don’t accept reason X; that means there is no majority for the reasons. Exactly; both of them reject reason X, correct? Judge B gave reason Y; the other two judges reject reason Y; and what comes out is that, when you ask yourself what the truth is, in the end the reasons are the basis of the ruling. When you ask yourself what the truth is, ultimately you have to examine the reasons, and the ruling will emerge from that. Now each of the reasons is in the minority, and so in such a case it’s not clear whether one can follow the majority. Therefore in the case of murder, by the way, it’s a bit easier to explain this—although even there it’s not simple at all—because in a murder case, in the end it boils down to the factual question of whether he murdered or didn’t murder. But if, say, the question is whether he is liable to death for this murder, it depends on what his intentions were; it depends on circumstances, whether he did it with his left hand, in an unusual manner, indirectly, I don’t know, by confinement, all kinds of things like that—then these are already halakhic questions. And with halakhic questions you basically have two against one with respect to each of the three reasons, right? So it comes out that in the determination of what the truth is, none of the reasons is correct. So how am I to decide? It could be that the overlap won’t be zero. What do you mean? It could be that A says reasons X and Y, and the second says Y and Z—they agree on Y. No, no, anything is possible, but I drew a picture where it’s not like that. There can be scenarios where there is no problem, but the point is that there can be scenarios where there is a problem. The question is what do we do with them. So I’m saying, in such a place, if the criterion really is truth—the majority is basically meant to reveal the truth—then I would expect us to examine the ruling on the level of the reasons, not on the level… In such a situation, basically, we would not follow the majority. Reasons too have probabilities. Factually, the question is whether he murdered or not; now there are two people saying he murdered, two judges saying he murdered, and one judge saying he didn’t murder. You could say that if both reached the factual conclusion that he murdered, then it doesn’t matter through what different reasons, both think that’s the reality. And if the majority is right, then that’s the reality. But if you ask a halakhic question, then the disagreement is only about the reasons, and for each reason there are two against one, so all the reasons are not correct. Execute him? Well, the point is that I would expect, if the majority really is an instrument for revealing the truth, I would expect us to follow the reasons and not the ruling. Now on this matter there is a Shulchan Arukh in section 25, laws of judges, paragraph 2, where the Rema has a long gloss with various laws touching on this issue. He says: “And so too, if there was one against many, we follow the many in every place, also in rulings of prohibition and permission”—not only in a religious court, we follow the majority of halakhic decisors—“even if the majority do not agree for the same reason, but each has his own separate reason.” Exactly the case I was talking about, right? Meaning: there is a majority, but the majority is based on… judges or halakhic decisors relying on different reasons; so in effect, each one does not accept the reasons of the other. Wait, here we’re talking about a halakhic question and not a factual one, so all the more so. Could be, yes. Yes. Obviously also in a halakhic question; the question is whether the question is factual as well. “But rather each has his own separate reason; since they agree on the main ruling, they are called the many and we follow them.” In short, we follow the bottom line of the halakhic decisor and not the rationale. That appears to undermine the claim that the majority is indeed supposed to reveal the truth, because that isn’t the truth—or at least there is no majority on that point. You should have—or maybe passive omission is preferable, or I don’t know, leave money in its presumptive possession, depending on the case, or leave the person with a presumption of innocence, the alleged murderer with a presumption of being acceptable—you should not have been able to go by such a ruling. Now this is true both in a religious court and in matters of prohibition and permission. The Shakh there, on the spot in subsection 19, writes: “In my books, in Shakh on Yoreh De’ah section 242, I concluded that in a Torah-level prohibition we do not follow the majority if they agree to permit on the basis of two reasons.” If they have two different reasons, then they really are not counted as two, okay? Then he says: “This is a matter about which we are uncertain. Nevertheless, it seems that this is specifically when we come to permit a matter about which we are uncertain from the books; therefore, since the majority are not before us, we are concerned that perhaps in this matter the truth is with the halakhic decisor who is stringent.” Since they are not sitting in one forum, but are books written in different periods, in different places, and now we need to decide a practical question before us, we cannot follow the majority because they didn’t discuss it with one another; perhaps the minority would have convinced the majority. They didn’t hear him, they didn’t see his reasons—especially if he came later than they did, say, then they didn’t even read his reasons. Therefore, says the Shakh—and this is really already a technical point—under those circumstances there is no choice: you cannot follow the reasons, because there was no discussion about the reasons. Therefore, he says, in such a case you really don’t count them that way. But when the majority are before us—if everyone is sitting in one forum and discussing together, and each presents his reasons and the others agree or disagree—then obviously we follow them, even though they do not agree for the same reason. Obviously we follow the majority even if they do not agree for the same reason. “For we have nowhere found”—we haven’t found anywhere—“that in a Sanhedrin or among judges the majority need to state one reason.” Where have we heard such a thing, that a Sanhedrin sitting, say, in capital cases—in capital cases you need twenty-three judges, right? Now imagine a case where fifteen judges want to convict someone of murder or Sabbath desecration—let’s take Sabbath desecration, not murder; Sabbath desecration isn’t necessarily a factual question, it’s a halakhic question, whether he performed an act that incurs stoning. Fine? That’s the question. Now fifteen people out of the twenty-three say he performed a halakhically forbidden act and is liable to death, okay? Only one says he violated the labor of threshing, another says selecting, another says winnowing—there’s an issue of prior warning, never mind, but let’s sketch the picture generally. So fifteen say he is liable to death, and the other eight say he did nothing wrong. Now if we examine the reasons, then the eight are actually the majority; the fifteen are each presenting one person’s argument. And beyond that, as I said before, even among the fifteen there are fourteen against each one of them, plus the other eight. Clearly you can’t execute anyone. Says the Shakh: where do we find such a thing? Where do we find that in the Sanhedrin everyone has to do it in chorus? Obviously each one presents his own reasons, and we count the decision by the bottom line. That’s what the Shakh says, and therefore he says it can’t be otherwise. Then he brings an interesting Gemara, tractate Sanhedrin. The Gemara there discusses the question of a religious court that judged in two rounds; Maimonides describes this too in capital cases. In the first stage, each one presents reasons and they hold a discussion among all the judges. In the second stage, after everyone has heard everyone else, they vote. Then a person can decide his opinion after hearing all the reasons—which is exactly to implement what the Shakh is saying here, that when you want to create a majority, each person has to hear the reasons of the others so as to give them a chance to persuade him. So what if the majority thinks that way, if it hasn’t heard the minority and seriously weighed their view? And we spoke about Beit Hillel, who seriously considered the view of Beit Shammai before making a decision; therefore in such a case the majority does not determine it. So the Gemara says: they record the words of those who acquit and the words of those who convict. After the first discussion, when everyone has presented his reasons, they write in the protocol the words of those who acquit and the words of those who convict. Then the Gemara discusses why they write the words of those who convict and why they write the words of those who acquit; not important. In the end the Gemara says: no, it is so that two should not state one reason from two verses. That there should not be two judges who state one reason to convict or acquit, learned from two different sources, from two different verses. What’s wrong with that? As Rav Assi asked Rabbi Yohanan: if two stated one reason from two verses, what is the law? He said to him: they are counted only as one. Meaning, if someone says that so-and-so is liable or something like that, and they both bring two different verses to say he is liable, then they are counted as one judge, not as two. Ostensibly this goes against what we just saw, because here we see that they follow the reasons and not the bottom line. In the bottom line both say he is liable, but if it comes from different reasons they are counted as one judge. Says the Shakh: but look at Rashi there. Rashi says there: “And the case that two say one reason from two verses, this is as Rashi explained: because certainly one of these verses does not come for that purpose, as we maintain that two verses were not written for one reason; therefore one of them is mistaken.” End quote. After that he brings Hagahot Ashri, which says the same thing, etc. What is he saying, basically? He says it isn’t because we follow the reasons; rather, if you bring me two different verses—now pay close attention—we’re not talking here, say, like in the case I described before, where there’s a debate about someone who desecrated the Sabbath, and one judge says he violated selecting and another says he violated trapping. Okay? That is certainly not what is being discussed here. The issue here is that both say he violated selecting. But one learned the labor of selecting from verse A, and the other learned the labor of selecting from verse B. “Reason” here means law, not rationale, not logic; “reason” here means what law he violated. So if the same law emerges from two different sources, then they are counted as one view. Why? Because one of them is mistaken. The Torah did not write the same point in two different places. Either it wrote it here or there, right? We always say: why do I need two verses? Meaning, if there is one verse that says this point, and you bring me another verse saying the same thing, then you ask: wait a second, why do I need that? Clearly that verse comes to teach something else. In other words, these two opinions really cannot coexist; it is impossible that the Torah said the same thing in two places. There is a clear, demonstrable error here. Fine. Therefore, says Rashi, we count them as one judge, because in the end only one of them can really be right that he violated the labor of selecting. From here we learn that when you state two different reasons—not two sources for the same reason—then of course they are counted as two views, right? And this emerges contrary to the simple reading of the Gemara, seemingly. But Rashi says: obviously, when you say two different reasons—this one says he violated selecting, that one says he violated winnowing—then certainly he is executed, even though these are two different views; the other one said he didn’t violate winnowing and he said that he did violate winnowing. So here we see the principle the Shakh is saying; that is why the Shakh brings this. After that he brings a Maimonides with a very interesting formulation. In Laws of Sanhedrin, chapter 10, he brings this Gemara in law 5: “Two who stated one reason, even from two verses, are counted only as one.” Two judges who state one reason, even if from two verses, are counted as one reason. What do you mean “even”? That’s backwards. Right, it sounds backwards. This is noted there by the Ramakh, Rabbi Moshe HaKohen of Lunel—what do you mean “even”? The claim is that Maimonides is basically saying that if two say from one verse two reasons, then they are counted as two, but if they—and “even” if they say one reason from two verses, sorry, yes sorry, the other way around. Right, and even if it is one reason from two verses, they too are counted as one. Now the Shakh says this is backwards, because if it is one reason from two verses, then one of them certainly made a mistake, and therefore they are counted as one. But if it is two different reasons from two verses, what is the problem? It could be that both are right; this reason could be correct and that reason could also be correct. Must the judge state his law? Yes, he can’t just say liable or not liable? Liable. Yes. So we said this proceeds in two rounds. In the first round they even record the reasons of each judge. And then there is discussion. Exactly, and that’s why they write it down. The Gemara explains that this is why they write it down, so we can see there aren’t two judges stating one reason from two verses. Now in this Maimonides it would seem to say exactly what I said before: that if it is two judges coming from different reasons, they are not counted as two but as one—even if it’s a different source, not because one of the sources is erroneous, but because there is no agreement on the reasons. You don’t have two people in the same party here; you have three, say. So these are three different parties, every two oppose the third, and none of them has a majority. Never mind that in the bottom line there are two against one, okay? So that’s what is written in Maimonides. He says—but this can’t be, it goes against the Gemara; where do we find such a thing that in a religious court each one has to state a different reason, in a capital court? One would have had to kill him because of winnowing, another because of selecting, another because of sifting. He says: what do you mean? Obviously it doesn’t work that way. Therefore he says the word “even” cannot be in Maimonides. The version can’t be “even”; rather: if they state one reason from two verses, then they are counted as one. But clearly if not, they are counted as two. He deletes the “even.” Fine. So for our purposes, what comes out is this: if you say one reason from two verses, then you are counted as one because obviously one of the verses is incorrect; you can’t count them as two. But if you say two reasons, each from its own verse, then it is counted as two opinions—even though there too I would have expected that not to be the case. Because if we are looking for the truth, then neither of the two reasons has a majority. So what is the rationale? Wait, wait, we’ll get there. Okay? In this situation, where even though the assumption is that one is mistaken, the panel is not disqualified—the panel of three judges is not disqualified because each one went his own way. You’re allowed to make mistakes. You’re allowed to make mistakes, and he is not disqualified. More than that: if you are a halakhic monist—I talked about this a little last time—then every time there is a dispute among judges, one of them is mistaken. So every panel that was not unanimous should have been disqualified. If you believe there is one halakhic truth, then by definition one of the two is mistaken. You can say you don’t know who is mistaken. Right, here you don’t know who is mistaken. There are two sources, you don’t know which one; you only know that one of them certainly is. It’s like two paths. You walked on two paths and one of them contains impurity; you know that you walked on one impure path, but you don’t know which path is impure. So I’m saying, the Shakh qualifies it, but still he remains with the conception that different reasons are counted as one majority camp, not as one voice. On the contrary, as a camp with several votes, even though in truth there isn’t really a majority on the level of the reasons. Even from the same verse? What? Two that came out of the same verse? Yes, it says so explicitly. In the case of two reasons: if two people derive the verse differently, that is fine. If they derive the same reason from two verses, that is not fine. Why? Because one verse can be expounded for several things; there is no necessity that it is a mistake, both could be right. Still, there was room to say exactly what I said earlier. Suppose one verse is expounded to two different reasons, or never mind, two reasons from two different sources. After all, each side does not accept the other’s interpretation, right? So why is that different? Why, if they convict based on two different reasons, are they then counted each separately? In the end, if you ask whether this reason is correct, there are two against it and one for it, for each of these reasons. Why is that different? It’s not certain that it is a mistake. Fine, but there are still two against it. In the end, the reason does not have a majority; and if you are looking for truth, then you should take the reasons that are true, not just the ruling. The ruling is a result. In the end, then, it’s not so simple. That’s why I think—because if you say you need twenty-three reasons from twenty-three sources, then what if they all say—No, if they all say the same reason then that’s perfectly fine. If they all say the same reason, then there is a majority. What happens if they all give different reasons? From the same sources? Or from the same source? No, now I’m asking even not from different verses. I’m saying there are different reasons here. Leave the sources aside now. There are different reasons, and from the very fact that the reasons are different, clearly one is mistaken—or at least it isn’t agreed upon. Forget mistaken, there is a majority against it. So how do you follow the majority? In such a case everyone agrees that we do follow the majority. So how? In such a case every reason is in the minority. So how do we follow the majority if we are looking for the truth? Here one has to pay attention to something I mentioned in passing at the end of the previous class. Okay, every reason is in the minority. Now I’m checking what the probability of the results is. The probability of the results, not of the reasons. Probability of the results. This reason has one out of twenty, its probability is one-twentieth. The second—the result is one-twentieth. I understand your argument; it depends on various assumptions, I need to think about it some more, it depends on assumptions. The question is what the probability of the results is; who says the result is a correct result if they execute him for different reasons? You are treating it as the same result, but it’s not certain that it is the same result. But to execute him for different reasons, I don’t know if that is the same result, because according to his own reason he should not die. But I need to think about that more; it’s an interesting question. In any event, I think that on this point one has to notice the following. We spoke last time about the topic of “these and those are the words of the living God,” with the passage in Eruvin where Beit Hillel and Beit Shammai disagreed, and I said there are two ways to read the passage. One way is a monistic reading: “these and those are the words of the living God,” but there is only one truth, and therefore the Jewish law follows Beit Hillel. The second is a pluralistic reading, which says there is no one truth—in other words, “these and those are the words of the living God,” and both are right. Then the question is: why does the Jewish law follow Beit Hillel? In the end, we were left with the question that in the monistic reading I understand why the Jewish law follows Beit Hillel, but I don’t understand why “these and those are the words of the living God.” Then I said there is a difference between tolerance and pluralism, and we discussed it once, and I just want to sharpen it a bit because I don’t think I got to this. There is a disagreement between Rabbenu Tam and the Maharal about a Gemara, the Gemara that says that someone chosen for the Sanhedrin was tested on whether he could provide 150 reasons to declare a creeping creature pure. This was an entrance exam for the Sanhedrin. So Rabbenu Tam asks: what do we need this empty sophistry for? The creeping creature is impure, it says so explicitly. Why do I need to test him on that? Am I choosing for the Sanhedrin a Purim rabbi, some witty casuist? What is the meaning of this? The Maharal says: this is not a Purim rabbi. The Maharal says that to sit in the Sanhedrin you really do need to be able to provide 150 reasons to declare the creeping creature pure, because there are such reasons. They are correct reasons. It’s just that there are also 150 reasons to declare the creeping creature impure, and the Torah said that those too are correct. Like the judge’s ruling. The Torah said that the reasons to declare the creeping creature impure carry greater weight than the reasons to declare it pure, and therefore in the bottom line the creeping creature is impure. But that doesn’t mean the picture is monolithic or monochromatic, and it doesn’t mean there aren’t other colors, that there aren’t considerations for purity—quite the opposite—and I think this is very true. The Maharal is basically saying that a judge, in order to sit in judgment, has to know how to look for all the reasons from all directions, not to be taken captive by the ruling he wants. Now you’re just going to dismiss all the reasons everyone raises against this? Examine each reason. In the end you’ll arrive at the bottom line and have to decide, either he’s a murderer or he isn’t. But don’t be held captive by the bottom line—and this is very common. You can see it in public debates; I think we discussed this too once. I brought the story that once I was driving in a car with a sticker during the Rabin government. I saw some car with a sticker: “Rabin has no mandate to return the Golan.” I already told this once. So I asked myself whether the driver of that car was a person of the left or the right, and my answer was: I have no idea. I can’t know. Now obviously he’s a right-winger, right? But no, in principle I have no idea. Why? Because the question whether he has a mandate to return the Golan or not can be interpreted on two levels. The return of the Golan itself can be discussed on two planes: first, whether it is politically, militarily, religiously, whatever, the right thing or not; that’s one question. The second is whether he has a mandate. “Has a mandate” means he promised differently before the election. It’s a question of democratic morality: does one see things differently once in office? Yes—now I see it differently. Am I allowed to go against what I promised the voters, or must I go back to the voters and say: look, I changed my mind, let’s have new elections? Okay? That’s a question of political morality. The first question is political, military, religious, ideological—different and independent. So in principle, if the question whether Rabin has a mandate to return the Golan or not is a question in political morality, a right-wing person could say yes, he does have a mandate, or say no, he doesn’t. It depends on his moral position; it has nothing to do with what he thinks about returning the Golan. Therefore, on a question that depends on an issue like this, which depends on two independent questions, I would expect there to be four groups. Right? Those who think morally he has a mandate, but it isn’t right to do it; morally he has a mandate and it is right to do it; it is not moral to do it but it is right; it is not moral and it is not right. Four groups. How many are there really? Two, of course. Meaning, there is the group that says he is not allowed to do it and it also isn’t right to return the Golan, and there is the group that says he is morally allowed and it also is right to return the Golan. We don’t find the diagonal of the matrix; it is unpopulated. There are no views that say yes to one question and no to the other. Why not? Because people are captive to results. People who want to reach the conclusion that Rabin should not return the Golan will attack him morally and militarily and ideologically and religiously and every other way from every direction; and so too those who do want it. And almost nobody—there are a few who do, at least one I know—but almost nobody says: look, on this dimension I think yes, on that dimension I think no, and then in the bottom line I have to decide what outweighs what. Okay? My favorite chocolate example in this context: two people are arguing whether to eat chocolate. One says eat the chocolate because it’s tasty, and the other says don’t eat the chocolate because it’s fattening. Who is right? Both are right. It is both tasty and fattening. So the reasons on both sides are correct reasons. There are 150 reasons to purify and 150 reasons to render impure. In the end you will have to decide whether to eat or not to eat, and that will depend on the question of what weight you assign to each reason. Do the reasons of health carry greater weight than—greater than the reasons of health? Usually—and this is the point, and this is the 150 reasons to purify and to render impure—usually when judges sit in court, or rabbis, or halakhic decisors, or Torah scholars, all the reasons they raise are generally correct. Nobody is talking nonsense. The real argument is about what weight you assign to each reason. In other words, we have 150 reasons on this side and 150 reasons on that side, and then I ask: okay, how significant is this compared to how significant that is? And that determines the bottom line. I think that is what “these and those are the words of the living God, and the Jewish law follows Beit Hillel” means. “These and those are the words of the living God” means that both the 150 reasons of Beit Shammai and the 150 reasons of Beit Hillel are correct. And that is really true. There is no logical contradiction in this and no problem. It is simply true. That is what happens in almost every argument. When you hear an argument between two intelligent people, generally neither of them is talking nonsense. The reasons in both directions are correct. The question is which reason outweighs which; that’s where the argument is. And if you are a monist, then in that dispute there is one truth. One is right and one is wrong, if you are a monist. I, for example, am a monist. Okay, but that’s another discussion. Therefore, in the end, on the level of reasons, when I say these 150 reasons, it does not mean that the 150 reasons for the opposite side are not correct. I want to say this: I am a monist, and still when I say there are 150 reasons to render impure, it does not mean the 150 reasons to purify are not correct. It means that in my view the 150 reasons to render impure carry greater weight than the 150 reasons to purify. That’s all. Therefore, when in court I argue from different reasons—yes? not the same reason for both of us, as I said, where one of us is mistaken, but different reasons—then it is not correct to assume that if I say he violated throwing, I thereby said that he did not violate selecting. There are reasons that he violated selecting. I just think the reasons in favor of throwing are stronger. Okay? Therefore we can be counted as two. We can be counted as two because it may be that both of us are right on the level of reasons. Fine? Therefore they are counted as two. So this is not a contradiction. In a place where two reasons come from one source, that cannot be, because there it is clear that one made a mistake. There are no tricks there. Unless each one who brought his reason says this is throwing and not selecting. Yes. Then maybe it would be different. Right. Although then one could always assume—you can’t always, but you could assume—that if so, he is captive to a result. Because usually people don’t speak nonsense. If he said there is a side by which it is selecting, he can’t say there is no such side. He can say that throwing is stronger. If you say no, then I would go even one step further and say: I suspect you may be captive to results, as I said earlier. It’s a general human tendency to be captive to results. When you believe in a certain result, you recruit all the reasons in that direction. You’ll see that generally—I spoke about this in the context of conversion, I think. I once wrote in Makor Rishon a response, in the context of Rabbi Sherman there, where they invalidated all Rabbi Druckman’s conversions, and the judge from Ashdod and all those stories. So I said that on this question, I can pull out of my sleeve in the speed of writing fifteen questions that need to be answered in order to reach a conclusion about what you think of that conversion. I wrote them there. Fifteen questions that need answers in order to arrive at a conclusion about this conversion. Now it turns out: how many groups should there have been in the population, or among the halakhic decisors? Two to the fifteenth power. Two to the fifteenth is about thirty-five thousand, something like that. Okay? Thirty-five thousand opinion groups. In the end, everyone has to decide which reasons outweigh which, and in the bottom line decide whether he is for this conversion or against this conversion. How many groups were there in practice? Two. Those who opposed this conversion answered no to all fifteen questions; those who supported this conversion answered yes to all fifteen questions. The questions are independent. They were independent questions. Yet somehow there were only two groups. Why? Because this means that all of us suffer from this. We are captive to a result. When we think the correct result is this one, then all the reasons are drafted in that direction. It is hard for us to think in a complex way. To say: look, from this side it is like this, from that side it is like that; in the end I have to weigh what overrides what. That is what is required of a judge in the Sanhedrin. That is what the Maharal says. That is why he must be able to produce 150 reasons to purify. Because he has to understand that there are also other reasons, even though in the bottom line the creeping creature is impure. Therefore, in our case, when the reasons are different reasons, the judges really are counted as two, even though the reasons are different and even though I am a monist. I think there is a halakhic truth. True, there is a truth, but the reasons are correct reasons in both directions. The final decision is a question of relative weight. Now look at something interesting. There are cases where—until now I said that once the reasons are different, they are counted as two. And why? Because if you stated reason A, that doesn’t mean that the person who states reason B is mistaken from your perspective. You can agree that reason B is correct; you just think reason A is stronger, right? Therefore to form one camp of those who hold reason A and those who hold reason B is perfectly fine. That camp has two opinions, and that’s fine—they don’t contradict one another. They only use different weights for the reasons, but everyone can join the reasons. But there are situations where this won’t work. For example, what is known in the literature as the doctrinal paradox, and in logic and law as the judgment paradox. The judgment paradox basically says: there can be three judges sitting in judgment, and before them come two people who signed a contract between them. An example, yes? They signed a contract. Now Reuven claims that Shimon breached the contract. Okay? Now the judges have to decide whether that is what happened or not. He has to pay if he breached the contract, or something like that; the question is whether he breached the contract. Now there are two questions under discussion here. First: does the contract even obligate him to do this? Maybe it doesn’t follow from the contract that he had to do what Reuven is demanding. Second: assuming that the contract obligates him to do this, did he in fact do it or not? That is a factual question. The first question is one of contractual interpretation. The second is a factual question. Okay? Now the distribution of opinions in the court is as follows. Judge A says: the contract obligates him to do this, but the act was done. He did what the contract obligated him to do, therefore he is exempt. In other words, with respect to the interpretive question too, the contract obligates this act; the plaintiff is right on that point. But factually the plaintiff is not right. In my opinion, he did what the contract required him to do. So from his standpoint, the defendant is exempt, right? Judge B says: the contract doesn’t obligate this at all; that’s a mistake in interpreting the contract, it doesn’t obligate this. You ask me about the act? The act was not done, but it was voluntary; he didn’t have to do it. Okay? He too exempts him, right? So now there are already two, which is obviously a majority out of three judges. The third says: the contract obligates him to do it, and he did not do it, and therefore he has to pay—he obligates him. But he is in the minority. The first two say the defendant is exempt, and the third says the defendant is liable. So in the end he comes out exempt, right? Now let’s examine the reasons. On the interpretive question, does the contract obligate him? There are two against one that the contract does obligate him, so the contract obligates him, right? Agreed. On the factual question, did the person do the act or not? There are two against one that the act was not done. So if the contract obligates him and the act was not done, then why is he liable? What? Maybe I got mixed up here. I didn’t hear—you hear—that the act was not done, that the act was not done. Then, on the level of reasons, it should have come out that he is liable, while in the bottom lines he comes out exempt. Assuming these two aspects are independent of one another. Yes, they really are independent: one is a question of interpreting the contract, and the other is the factual question whether he did it or not, two completely different things. So here it is much worse than what we saw in Sanhedrin or in the Shulchan Arukh, because here there is a frontal contradiction. In the context of the reasons, the judges expressed their opinions exactly as we said before, and they said unequivocally: the contract obligates, and the person did not do it. Did not do it. Okay? There is a majority for each of those. So the result should be that he has to pay. But when we count bottom lines, the result is that he doesn’t have to pay; he’s exempt. So what do we do now? If we go by the reasons, then we should obligate him. If we go by the bottom line, we should exempt him. So do we go by the reasons or not? The accepted view both in the legal world and in Jewish law is that we go by the bottom line. And that’s strange, because in a case like this, we can no longer use the explanation I gave earlier. The explanation I gave earlier says that basically, with respect to the reasons, we all agree; the question is the weighting. But here it isn’t a question of reasons we all agree on. These are two layers in the discussion. There is a factual layer and a layer of contract interpretation. In principle, if I am really looking for the truth, the truth is not whether he is liable or exempt. The truth is: first, does the contract obligate or not? On that there is a majority. Second, is the truth that he did it or did not do it? On that too there is a majority. That is what should have been done if we were looking for the truth, and then it should have followed that we do not go by bottom lines. But we do go by bottom lines. What I want to claim here is that in the end you go by the probability of the result. I told you, I still need to think about it more, but it seems to me it depends on the definition. Maybe; I need to think about it more, maybe. The interesting point, by the way—I’ll tell you an anecdote. Some time ago I sat on a panel that annulled the marriage of some woman. After some time my son brought to me, on her behalf, from that woman’s side, that there was in fact a long background to this story that had already gone through civil courts—all of this we didn’t know at all when we were sitting there—that it had gone through family court, district court, and I think supreme court, really extensively. It went through three judicial instances. The husband claimed that the woman kidnapped their daughter. They lived in the United States and she kidnapped the daughter and moved to Israel and refused to return the child. He demanded that she return the child even before the divorce. He demanded that she return the child. This was the background to all kinds of things, and among other things it could have been one of the reasons he chained her and didn’t give her a divorce document. That’s why they reached us, because he didn’t give her a divorce document because he wanted to use it as leverage for her to return the child. So that changes things a little; it doesn’t change the ruling, because if the marriage is void then it’s void, but it changes my motivation for getting involved. Meaning, if he is right, then why should I get involved there and help her? Fine, but not important for our purposes—that was the story. Now what happened? I read some of the rulings there because it was very interesting. It turns out—and I’ll summarize it as the supreme court wrote it—that the legal situation, depending on the Hague conventions and all kinds of things like that, is as follows: in this situation one must decide first whether this counts as kidnapping. She took the child by force; there’s some story there—does such a thing count as kidnapping? That’s the first determination. But even if it counts as kidnapping, then the child has to be returned—that’s the Hague Convention. So first one must decide that there was kidnapping; if yes, then the child must be returned. But there are some three exceptions, two important for us. One exception is the welfare of the child, but that’s less important for us. The next two are acquiescence and consent. Meaning, if you prove that at the time of the kidnapping the husband consented—now he regrets it and wants the child back, but at the stage when the child was taken he agreed—then the child does not have to be returned. It’s not kidnapping. It is kidnapping now—it’s kidnapping because now—so they argue this is called kidnapping, but there is an exception of consent. Meaning, if there was consent at the time of the kidnapping, then there is no need to return. There is another exception, acquiescence. If at the stage of the kidnapping he didn’t consent, but later he heard about it and acquiesced—fine, what can you do?—and now he regrets it and wants the child back, then again there is no need to return the child. Fine, that is the legal situation, so let’s not argue with it. Okay. The distribution of opinions among the judges was as follows. One supreme court judge said: there was kidnapping here—everyone agreed this counted as kidnapping—the question was whether the acquiescence exception applied and whether the consent exception applied. Again the same story as before. One judge said: neither exception applies, and therefore the child must be returned. That, by the way, is how the two lower instances ruled. But this judge was in the minority in the supreme court. The supreme court reversed the lower courts’ decision. One judge said neither exception applied, and therefore the child must be returned. The second judge said the first exception applied but not the second; the third judge said the second exception applied but not the first. Neither exception has a majority. Exactly. Now according to the other two judges, the child need not be returned, and that is how they ruled. The supreme court reversed the decision and said the child need not be returned. But if you now check whether there was acquiescence, whether there was consent, there is a majority against the view that there was consent and a majority against the view that there was acquiescence. This is exactly the table I described in the story of the judgment paradox. It was fascinating, because they always present this paradox as something theoretical; here it was, literally in the supreme court, exactly what happened. Fine? And they went by the bottom line. In Jewish law too, by the way, they would apparently go by the bottom line. And this really does challenge the question: if you’re looking for the truth, then you should decide the questions one by one and not the bottom line. Here my answer is less good. Maybe these are procedural issues, efficiency. We get tangled up this way; who knows, if the reasons are contradictory it isn’t always clear, so maybe one can hang this on technical considerations. But on the principled level, it really shouldn’t happen. Maybe I just want to end with another point related to this. The question whether Jewish law is basically the bottom line or the reasons behind the bottom line—the thing I’ve been talking about all class—determines what it is that we are looking for a majority on. Are we looking for a majority on the reasons, or are we looking for a majority on the bottom line? You can see this from another angle as well. We know that Amoraim do not disagree with Tannaim. Right? And post-Talmudic medieval authorities (Rishonim) do not disagree with Amoraim. What happens when there is a dispute among Tannaim? Can an Amora rule like one Tanna against another Tanna? Obviously yes, in every passage we have that. Right? Because he has a Tanna who supports him, so he can stand against another Tanna. What happens if the Amora has a third view on the level of the reasons, but on the level of the ruling he agrees with Tanna A in case one and with Tanna B in case two, and that is how he decides the law, that is what is written in his Shulchan Arukh? Can he do that? Ostensibly, for each of his reasons there is a Tanna who says it, so he is not disagreeing with the two Tannaim. But on the level of the reasoning, he disagrees with both of them. His theory is a third theory against both of theirs. There are several examples of this; I just came across one now, and that’s why the penny dropped for me. A Gemara in tractate Ketubot 12b. The Mishnah there brings a dispute between Rabban Gamliel and Rabbi Yehoshua over a ketubah. A woman claims the ketubah, she wants two hundred. The husband says no, you only get one hundred. So Rabbi Yehoshua says, “We do not live by her mouth,” the woman is not believed. The details of the passage don’t matter right now. Rabban Gamliel says that the woman is believed. Now the Gemara later says that even when the woman has a migo, Rabbi Yehoshua says she is not believed. And Rabban Gamliel says she is believed even if she has no migo. In other words, the dispute is total. Rabban Gamliel argues that the woman is always believed because of certainty versus uncertainty in extracting money: the woman speaks with certainty, the husband with uncertainty, and the woman is coming to extract money. Rabban Gamliel says certainty against uncertainty, even to extract. We do not rule that way in practice. We rule that certainty against uncertainty does not help in extracting money; certainty against uncertainty is not preferred. Rabbi Yehoshua argues the woman is not believed because certainty against uncertainty does not help, and that is how we rule in practice. But, says Rabbi Yehoshua, even when she has a migo. And that is not correct. Meaning, the Gemara says that on this point we do not rule this way in practice, and that is what the Gemara says here and what all the halakhic decisors rule. We rule like Rabban Gamliel that the woman is believed when she has a migo, and we rule like Rabbi Yehoshua that the woman is not believed when she does not have a migo. Now this goes against both Tannaim. Rabban Gamliel doesn’t agree with this, because neither of them thinks that migo plays a role. One says in both cases she is not believed; the other says in both cases she is believed, because his rationale is certainty versus uncertainty in extracting money; it has nothing to do with the issue of migo at all. So when you rule in one case like Rabban Gamliel and in another like Rabbi Yehoshua, you are really presenting a third halakhic thesis against both Tannaim. Yet the Gemara in fact rules that way in practice, and that is what all the halakhic decisors bring down; and there are more examples of this. Once again, what we see is that for us Jewish law is the bottom line and not the reasons. The authority of the Tannaim extends to what they said should be done, and on that level, for each of my rulings I have some support: here I have Rabban Gamliel, here I have Rabbi Yehoshua. On the level of the reasons I can go with different reasons. By the way, in the famous passages—there are at least two such passages—Shmuel gives his own rationale against rationales that Tannaim had given. For example, “and live by them,” the passage about saving life in Yoma. Shmuel says: if I had been there, I would have said a rationale better than all of them, and the Gemara brings his rationale additionally as the practical law. Fine, even though all the Tannaim gave another rationale, and Shmuel is an Amora. There is another Gemara like this with Shmuel against various Amoraim; I don’t remember where. Shmuel is an Amora considered like a Tanna, no? Rav. Shmuel not. Same generation, but Rav is “a Tanna and may dispute,” Shmuel I don’t think so. In any event, once again we see that apparently Jewish law is the bottom line and not the reasons, but one has to be careful. This would seem to contradict the claim that the majority comes to determine the truth, because then ostensibly I should relate to the reasons. What is the truth? The truth is that if the reasons are those of the Tannaim, then the truth is that the Gemara is not right if the Tannaim are right, correct? So this is not just a technical adaptation of bottom lines. The point is that, on the level of authority, authority is not really about truth. The Tannaim are not right, and one may not disagree with them, because they state the truth, because they do not err; rather, because they have authority. This is a legal-halakhic determination, not a factual one. Therefore I have no problem there with adherence to the words of the Tannaim being adherence to the bottom line and not to the reasons. And this has many implications, by the way. For example, if someone shows me that Talmudic rulings or those of the greatest medieval authorities (Rishonim) imply a socialist conception—fine?—and I am a capitalist, am I allowed to be a capitalist? All the halakhic decisors, the Gemara, imply socialism. My answer is yes. Because the meta-halakhic thesis of the Gemara does not bind me. What binds me is its ruling. What the Gemara said with respect to practice—there’s no choice, I have to accept it. But that doesn’t mean I have to adopt its assumptions and framework, its conceptual framework. There, no—it has no authority on that level. And again, this does not contradict the fact that I am looking for truth. On the contrary, it only shows that the authority in question is not because the truth is with you, but because I accepted that authority upon myself and that is the framework of the discussion, that’s all. And precisely because of that we go by bottom lines. But in a place where we are really looking for the truth, then it remains a big question why we don’t go by the reasons, and I said there may be explanations for that.