Majority in Halacha and General Principles 2, Lesson 4

Table of Contents

• Clarificatory majority and constitutive majority
• The source of majority in the Talmudic text, Chullin 11a, and its expansion into an evidentiary tool
• Common sense, statistics, and the need for Torah “authorization”
• Presumption as a parallel to majority, and the “From where do we derive this?” discussions
• A “stacked game,” a supporting verse, and the end of the passage with Rashi
• A majority that is before us and a majority that is not before us: definitions and implications
• The strength of majority, Maimonides, Rabbi Shimon Shkop, and examples from the laws of doubt

Summary

General Overview

The text draws a distinction between two kinds of following the majority: a majority that clarifies or reveals, whose purpose is to reach factual or halakhic / of Jewish law truth, and a majority that creates or constitutes, whose purpose is to establish a norm even if it does not reflect some external truth—as in a democratic context, where the majority determines what the public wants. The point of departure is that in the context of a religious court, majority is a clarificatory tool aimed at the true ruling, not at realizing the “rights” of judges to shape the law, and from there the discussion examines the expansion of majority as a general evidentiary tool in Jewish law, as emerges from the passage in Chullin 11a. Throughout, the text points to a certain oddity in the Talmud’s search for a “source” for majority and for presumption, because these are principles of common sense and statistics that every person uses in life, and it proposes that the passage functions to a large extent as a supporting verse, meant to place them within the halakhic framework. Later, the difference is discussed between a majority that is before us and a majority that is not before us, both in terms of the structure of the passage and in terms of legal-halakhic considerations, while bringing up internal tensions such as Rashi’s comments at the end of the passage, references to Rabbeinu Tam’s approach regarding a constitutive majority, and positions about the relative strength of the different kinds of majority in Maimonides and Rabbi Shimon Shkop.

Clarificatory majority and constitutive majority

The text states that in the democratic context, following the majority is not because the majority is correct but because the majority determines what the public wants, and therefore even if the majority’s conclusion is mistaken, it is still binding. In that context, the majority is a creative majority, not one aimed at truth outside itself, but one that produces the normative “truth.” The text states that in the context of a religious court, majority is a clarificatory majority whose purpose is to reach the true ruling and the true reality. A religious court deals both with clarifying facts and with clarifying Jewish law, out of an aspiration to truth and not out of any claim of judges’ rights to shape the content of the law. The text sets as a starting point for further discussion the expansion of this clarificatory majority beyond the religious court, since the Torah uses “follow the majority” as a tool for clarifying halakhic truth.

The source of majority in the Talmudic text, Chullin 11a, and its expansion into an evidentiary tool

The text brings the Talmud in Chullin 11a, which asks, “From where is this matter that the rabbis said: go after the majority?” and answers from the verse “follow the majority.” It explains that the intent is not only the resolution of a dispute among judges, but a general evidentiary tool in Jewish law, both in prohibitions and in monetary law. The text presents the Talmud’s distinction between a majority that is before us, such as nine shops and the Sanhedrin, and a majority that is not before us, such as a minor boy and a minor girl, and describes how, in the case of a piece of meat found in the marketplace of a city whose shops are mostly kosher, we follow the majority. The text focuses on the Talmud’s question regarding a majority that is not before us, through the example of a young levir and a young yevamah, where it is impossible to know whether one of them is incapable of childbearing, and the concern is that if they are unable to have children then the law of levirate marriage would not apply, and their marital life would then be the prohibition of a brother’s wife. And nevertheless, the Jewish law relies on the majority. The text concludes that the Talmud assumes that “follow the majority” is a clarificatory principle of truth, and not merely a technical procedural rule, and therefore it serves as a fundamental source for evidentiary inference based on majority even outside the framework of a religious court.

Common sense, statistics, and the need for Torah “authorization”

The text raises a difficulty regarding the very search for a source for majority, because every person uses statistics and the assumption that what usually happens is probably what happened here—for example, the assumption that planes do not usually crash. Science and medicine as well are built on statistical reasoning. The text suggests that the need for a verse is not in order to permit the use of logic, but in order to bring such principles into the halakhic sphere as binding tools, and it distinguishes between commands that need a command in order to become a Torah-level commandment, and tools for dealing with reality. The text states that “follow the majority” is not an independent positive commandment but a tool within the judges’ commandment of “judge your fellow with righteousness,” and following the majority is a means of realizing just judgment, not the fulfillment of a commandment in itself. The text brings an earlier distinction from previous lectures, according to which Rabbeinu Tam, when dealing with a constitutive and normative majority of public opinion, requires one hundred percent, because one does not coerce an opposing minority; but when dealing with a clarificatory majority, this is a factual rather than a normative question.

Presumption as a parallel to majority, and the “From where do we derive this?” discussions

The text compares the search for a source for majority to the search for a source for presumption in the passage in Chullin 10b: “From where do we derive that the rabbis said: establish the matter on its presumption?” It cites a source from the verse regarding blemishes in houses: “The priest shall go out of the house … and quarantine the house for seven days.” The text explains the Talmud’s question: perhaps the blemish shrank immediately after the priest left, in which case there was no longer the required measure for quarantine; and the answer is that we maintain the presumption, even though this is a matter expected to change, and therefore the house is quarantined for a week in order to check for change. The text argues that presumption too is a rule by which every person naturally conducts himself, because otherwise it would be impossible to manage life or even to speak about facts observed a minute ago. Therefore the question of why the Talmud is looking for a source remains pressing. The text connects this to two foundations of scientific thinking: the assumption that what was will continue to be, which resembles an original presumption, and the inference of a general law from a sample, which resembles constructing a majority. It notes that it would be tempting to connect this to David Hume’s critique of induction and statistics.

A “stacked game,” a supporting verse, and the end of the passage with Rashi

The text argues that the Talmud is not really considering the possibility of not following majority or presumption; rather, it is looking for a source in order to show that this is part of Jewish law. So to a large extent this is a supporting verse, where the rule is already known in advance and the exposition is an added conceptual layer. The text raises the possibility that the real question was whether one is allowed to rely on statistics in order to take the risk of violating a prohibition, but states that if that were the question, then the passage does not provide an answer when it tries to bring proof from the majority of judges. The text describes how, in the majority passage, the Talmud brings various sources and rejects them, and in the end does not find a source, and then it quotes Rashi, who explains: “Rather, certainly it is a law given to Moses at Sinai, and we rely on the majority, even where it is possible. Alternatively, ‘follow the majority’ implies both a majority that is before us and a majority that is not before us, for what difference is there between this one and that one?” The text presents Rashi’s words as somewhat strange relative to the structure of the passage, which emphasizes the inability to derive the case that is not before us from the case that is before us, and proposes understanding that Rashi is not claiming it is the same mechanism, but that both are grounded in common sense, and therefore even without a fully formal source we continue to follow the majority. The text emphasizes the point of “even where it is possible” as examining whether we follow the majority even when it is possible to refrain and be concerned for the minority, and connects this to later questions about whether there is an obligation to investigate when that is possible.

A majority that is before us and a majority that is not before us: definitions and implications

The text defines a majority that is before us as a majority where the whole reality is “present before me,” such as a city with ten known shops, nine kosher and one non-kosher, where the information is complete and the doubt is from which shop the piece of meat found came. The text defines a majority that is not before us as a majority not present before us, but functioning like a law of nature or the way the world works, such as “most women give birth at nine months” or “most women are not incapable of childbearing.” It explains that the knowledge here does not come from mapping all the particulars, but from understanding the way the world works. The text argues that the Talmud sees here a substantive difference and not merely a technical one, since it parallels the shops with the Sanhedrin as a majority that is before us, and sets the minor boy and minor girl as a majority of a different kind. The text suggests two considerations for the legal difference: with a majority that is before us, there is a present minority that cannot be entirely ignored, whereas with a majority that is not before us, there is no present minority, and therefore one gets what he calls the “David Levy effect,” in which every individual case is decided according to the majority even though a minority exists in the world. In addition, in a majority that is not before us there is a positive natural reason to assume it, because this is how the world operates, and not merely a local accidental majority. The text gives an example from public life through a story about David Levy, describing a situation in which 51% receive 100% of the positions in repeated votes, and compares this to a majority that is not before us, where in every particular case one always rules for the majority, so that in practice the majority “decides one hundred percent of the cases.”

The strength of majority, Maimonides, Rabbi Shimon Shkop, and examples from the laws of doubt

The text argues that according to the structure of the passage, a majority that is before us appears to be “stronger,” because it is derived from a verse, whereas a majority that is not before us seems to require an additional source. But it then brings, in the name of Rabbi Shimon Shkop, the claim that the structure of the passage itself leads to that impression. The text notes that Rabbi Shimon Shkop proves that there are approaches—chief among them that of Maimonides—in which a majority that is not before us is actually stronger, especially in capital law, where one follows a majority that is not before us and not a majority that is before us. From this it concludes that there is no simple hierarchy, but rather a difference in kind. The text illustrates a legal difference that is not probabilistic through the distinction between “one piece” and “a piece from among two pieces,” and the law of a provisional guilt offering, explaining that when the prohibited item is present before me, the matter is more severe even if the probability may be identical. The text cites Rabbi Shimon Shkop’s claim that with a majority that is before us, “this is not statistics at all,” and presents some reservation about that claim, saying it is hard to understand. But it concludes that the continuation of the discussion will try to argue that there is also a difference at the statistical level, and that in this respect Rabbi Shimon Shkop is “right,” and this will be examined later on.

We’re in the topic of majority, and until now I’ve spoken about two different applications of following the majority. One of them is a clarifying majority, or a majority that reveals, that tries to uncover the truth; and the second is a creating majority, a majority that creates the truth. And I said that in democratic contexts, following the majority is not because the majority is right, but because the majority determines what the public wants. So even if the conclusion of that majority is a mistaken conclusion, that’s still what binds. Meaning, in the end the public has to do what the people want. And how do we know what the people want if there’s a dispute? The simplest criterion is to go after the majority. So that’s a creative or constitutive majority. It’s not trying to hit upon some truth outside itself; rather, it actually produces the truth we’re talking about. With a majority in a religious court, the claim was that this is a revealing majority. The goal of following the majority among judges is essentially the attempt to reach the true ruling. And therefore the true ruling, the true reality, the true Jewish law—when a religious court sits, it deals both with clarifying facts and clarifying Jewish law, and our goal is to know what the truth is. There’s no issue here of the judges’ rights to shape the content of the law. It’s not a matter of rights. It’s not like the democratic context. Therefore, in the context of “incline after the majority” in a religious court, the majority is basically a clarifying majority. It’s our tool for reaching the truth.

And that’s the point of departure for the part I want to deal with today, namely the question of majority as a clarifying tool in a broader context. Because when the Torah itself says “incline after the majority,” it uses majority as a way of clarifying the halakhic truth. The majority of judges clarifies the halakhic truth. And the Talmud in tractate Hullin 11a says: “From where is this matter that the Rabbis said, ‘Go after the majority’?” Where does this idea come from, that the sages said to follow the majority? In what context? So it says, “From where do we know it? As it is written: ‘Incline after the majority.’” It says in the verse, “Incline after the majority.” “Go after the majority” is not only following the majority as we understand it in the democratic context we discussed, and not necessarily only in a religious court, but as some kind of evidentiary tool in Jewish law generally. In prohibitions, and also in courts dealing with monetary law, there is a tool of clarification. One of the proofs available to judges is majority evidence, and that’s what the Talmud is talking about here.

Let’s just see the example. The Talmud says: “A majority that is present before us, such as nine stores and the Sanhedrin, is not what concerns us. What concerns us is a majority that is not present before us, such as a minor boy and a minor girl—where do we know it from?” If I have a piece of meat that I find in the marketplace, and most of the stores in the city are kosher, then I follow the majority. But that’s obvious, because that, says the Talmud, we learn from “incline after the majority.” So that’s simple. Or in the Sanhedrin, where it means following the majority of judges. What interests me, asks the Talmud, is a majority that is not present before us. That one is a majority present before us; this one is a majority not present before us, like a minor boy and a minor girl. What does that mean? It’s talking about a levir and a widow bound for levirate marriage who are both minors, and they leave them living together until they grow up. Because as long as they’re minors, it’s impossible to know—one of them may be incapable of having children. And once one of them cannot have children, the law of levirate marriage does not apply, because the whole point of levirate marriage is to “establish a name for his dead brother,” to have children who will carry on the dead brother’s name. And if the law of levirate marriage does not apply, then it turns out that this minor is marrying his brother’s wife, which is a forbidden sexual relationship.

Now, maybe once they grow up, we’ll know whether they’re incapable of having children, because we’ll see that they don’t have children. But as long as they’re minors, I can’t know that. So how can they be allowed to live together? She’s his brother’s wife. It could turn out to be the prohibition of his brother’s wife if there’s no law of levirate marriage here. And then we follow the majority. And that’s a majority that is not present before us, as the Talmud says, and we follow the majority. And that, the Talmud asks, where do we learn from? Okay? That’s basically the discussion in the Talmud.

First of all, what’s the point of departure for this discussion? The point of departure is what I said before: that “incline after the majority” is not just one of the rules of a religious court. You could have said: the Torah said that when there’s a disagreement among judges, the majority decides. Fine—but what does that have to do with the question of a minor boy and girl, stores, and a piece of meat? What does one have to do with the other? Here it’s some rule in procedural law or legal decision-making, and there it’s a question of what the truth is. Rather, the Talmud assumes that “incline after the majority” with regard to a religious court is a mechanism whose purpose is to clarify the truth. Right? That’s what the Talmud assumes. It isn’t some legal rule that says, okay, what do you do when judges disagree. Rather, there’s some general principle here: we want to clarify the truth in some question; there’s a majority on one side, so we follow the majority. It’s a tool for clarifying truth. And therefore the Talmud says: if so, then this is the source from which we can also learn ordinary evidentiary law—just generally, when I want to know the status of a piece of meat I found, I follow the majority of the stores. We learn that from “incline after the majority.” So that’s the connecting move between what we did until now and what I’m going to do today.

Okay, so what I’m doing now is taking this majority, the clarifying majority and not the democratic majority—the halakhic majority, basically, the clarifying majority—and now we’ll see how it expands. It started as a rule of decision in court, but the Talmud says that as a result of that, or apparently from that, what comes out is that there’s basically a principle—call it a statistical principle. Yes, a statistical principle that says that majority is basically a means of clarifying reality.

Before I go on, the context of this discussion really is a little strange. What do you mean, where do we know that we follow the majority from? Let’s say there are places in the world that don’t accept the Torah or never heard of it. Okay, so they don’t follow the majority? Is there anyone who doesn’t follow the majority? If we don’t follow the majority, we can’t take a single step in the world. Every single thing in the world, we assume behaves the way it usually behaves. That’s called following the majority. When I board a plane, I assume the plane won’t crash. Sometimes a plane can crash, but usually planes don’t crash. So do I need authorization from the Torah in order to get on a plane? Every normal, rational person relies on statistical considerations, right? Our whole science is built on things like that. Medicine, of course, is built on things like that. You do some statistical study and draw conclusions, infer the general law. Why do we need authorization from the Torah in order to carry out a sensible thought process? Right? Do we need authorization from the Torah to use reason? If we need authorization from the Torah to use reason, then you can’t even begin this topic, because this topic itself is based on reason.

But what counts as a majority? Is it more than fifty percent? That’s what the Torah has to clarify. Yes, but that you could derive from the court. How can you derive that from the court? That’s exactly what we’re learning, after all. Sure, but I’m saying—but if that’s the question from the start… But you’re saying that this is really what the Talmud wanted to know. Not the law of majority in general, but whether fifty plus epsilon also counts as a majority. But if that were really so, then the Talmud didn’t bring a source for it. Because with judges, first of all, it’s generally two against one—that’s sixty-six percent, not fifty-one percent. So what are you saying? By logic. Okay, so if you have logic, then why do you need the sources? In the example it’s nine stores. What? The example is nine stores. Right. Nine stores—nine against one—that’s Torah-level; what difference does it make? Torah-level too, so what? The Talmud rejects it. The Talmud says: no, from there you can’t learn it because that’s a majority present before us; from there you can’t learn it because that’s nine to one. Not because it’s a majority present before us—it’s not because… Rather, it’s clear that we’re dealing with majority in general.

Like “Honor your father and your mother,” right? It’s the same kind of thing. If there were no commandment, would you honor your parents? No, that I don’t know, because there’s an obligation to honor parents—that’s something else. That’s an important point. Meaning, many times the Torah commands us with a commandment—say, a moral commandment. The moral commandment is something that basically we would understand we should do even without the Torah. That’s not the question. Why, then? Because the Torah has to tell me that this is also a Torah-level positive commandment or prohibition. If I would do it in general, I’d do it because it’s a moral obligation—you have to be a decent human being. But that still doesn’t mean there’s also a halakhic dimension here. Without the Torah commanding it, it can’t become halakhic. How do I know that honoring parents is also a positive commandment? In other words, that it’s something the Torah demands of me, and not just a matter of being a decent human being? So the Torah has to say, “Honor your father and your mother.” So here too. To follow—there is a halakhic direction to follow the majority, even if it’s… like we have…

What do you mean a halakhic commandment? I don’t think the question here is a question of commandment, that someone who follows the majority is fulfilling a positive commandment. “Incline after the majority” is not a positive commandment. “Incline after the majority”—what you need is “Judge your fellow with righteousness”; that’s the commandment. Judges have to judge justly. How do you judge justly? You follow the majority. And following the majority is not itself a commandment—following the majority is… Exactly, it’s a tool. It tells him, “Judge your fellow with righteousness.” How do I know what “with righteousness” means? I use statistical considerations, right? That’s the justice available to me. Everyone uses statistical considerations. The dimension of commandment in this is written in “Judge your fellow with righteousness”; it’s not written in “incline after the majority.”

But morality and reason also change with the times. I don’t think this aspect has changed. Statistics always worked. I can’t imagine someone who didn’t use statistics—again, you don’t have to be an expert statistician—but someone who says, what generally happens is probably what happened here. You’re talking about morality and reason in themselves—of course they change. Fine, okay, and then what? So therefore what? Honoring parents didn’t change. Okay, honoring parents existed then too. That doesn’t answer the question, but never mind. For me that isn’t the important point. I just think the focus of my question here is precisely because we’re dealing with facts, with reality. And when dealing with facts, we go by the best of our understanding; we don’t need authorization from the Torah to deal with facts. Commandments, however close they may be to what we would have understood on our own, always require a Torah commandment. Without a Torah commandment, you can’t turn it into a positive commandment or a prohibition. You can say it’s proper or improper to behave that way, but when we want to bring it into the halakhic sphere, then you need a commandment. Okay? That’s why I’m speaking about tools for dealing with reality.

Couldn’t you say that in the legal or halakhic context, only unanimity—only one hundred percent certainty—counts? So I said, that takes us back to the first part of the previous classes. I said there that according to Rabbeinu Tam, with a constitutive majority and not a revealing majority, with a constitutive majority then indeed Rabbeinu Tam’s position is that you need a one hundred percent majority. Meaning, you can’t go with less than one hundred percent. But there it’s precisely because we’re not dealing with facts; we’re dealing with a situation of how I determine what the public wants. Rabbeinu Tam says: if twenty percent object, you can’t impose on them the opinion of the eighty percent majority. The question is normative; it’s not a factual question. But the clarifying majority, what we’re discussing here, is a factual question.

No, but here in the Talmud, the Talmud went to certainty. If you had nine stores selling pills and one selling cyanide, you wouldn’t take one. One in nine, right? Okay. Even though one in a hundred you would take. What? One in a hundred you would take. Okay. No, so I’m saying, the Jewish law innovated here that you don’t need to go for one hundred percent certainty. Let’s put it this way: to go for one hundred percent certainty is always to go for zero. It’s like in a constitution—say, to change a law you need a special majority, say seventy percent of the Knesset. What you’re basically doing there is giving thirty percent of the Knesset veto power. When you say not to follow the majority, what you’re really saying is to follow the minority.

But how did we know it could be treated as certain, that it clarifies? Maybe it’s just a practice that this is how we operate, as I said—we can’t determine. But that’s exactly the question: who says it really clarifies the truth? Maybe this is just how we act. It says “incline after the majority,” so that’s how we act. Then you have no source. If that were the question, I go back to what I said earlier: if that were the question in the Talmud, the Talmud did not answer it. No, but if we say that there’s a practical difference in Jewish law whether this is considered merely a practice, just how we behave—in Jewish law there are also rules of conduct, not everything goes by factual truth. So you can’t know. It says “incline after the majority,” right? We follow the majority. And how do you know that the majority is really the truth? If that were the question, then there’s no answer to it in this passage. That’s why I say, in the end the question is why this is correct. It seems to me that that’s the plain meaning of the passage—not halakhic questions, but really questions like: what, to bring a source from the Torah for statistics? That seems strange.

Actually, I don’t know; I’m just making a remark. On the previous page there’s a whole series of passages here in the first chapter of tractate Hullin, about various evidentiary principles in Jewish law and where they’re learned from. So in the previous passage, 10b: “From where do we know this that the Rabbis said, ‘Establish a matter on its presumption’?” Where do we learn that something remains in its prior status? Okay? Now here I’d say maybe it’s more understandable what the Talmud is looking for, because maintaining a prior presumption is not statistics; it’s a normative rule. Meaning: how do we treat this halakhically? But look at the source they bring. Rabbi Shmuel bar Nahmani said in the name of Rabbi Yonatan: Scripture says, “Then the priest shall go out of the house to the entrance of the house, and quarantine the house for seven days.” Right? The priest sees the plague there, sees what has happened, goes out, closes the house for seven days. After seven days he comes back and checks the house to see whether to declare it irredeemably impure, whether to demolish it, what to do.

But maybe between when he went out and when he came back, the mark shrank below the required size? When he quarantines the house, say he sees the mark here. Now he goes to the entrance of the house, closes the door, and locks the house for seven days. The moment he closes the door, maybe the mark already became smaller. And once it’s too small, there’s no law to quarantine the house. Right? So who told you the mark is still there in the same size as it was three seconds earlier? The answer is because we establish it according to its prior presumption, right? The presumption is: you saw such a mark, so the assumption is that even a few seconds later it’ll still be there. But notice, we’re talking here about a mark whose size is expected to change. Because why do they quarantine the house? They quarantine it for a week in order to see whether the size changes. Which is far more far-reaching. Meaning, here it’s really something where who knows? And even so, the Talmud says… the Torah says to go out and close the house, so that means we do not worry. What we saw remains as it was, so long as we have no proof that it changed. And that assumption is called establishing a matter on its prior presumption.

But here too we have to understand: why does he come to inspect it after seven days? To see if it changed. But if we maintain its prior presumption, that means what was is what will be. Exactly—that’s what I asked. So we see that on the one hand there’s an assumption that a matter remains in its prior status, and on the other hand we do not rule out the fact that it can change. And to declare the house irredeemably impure you need to see that it really did change. The presumption is not enough. That’s what the Torah says. Okay? So that’s exactly the game here. On the one hand, there is a practical possibility of change; on the other hand, we assume that we go by the prior presumption. So long as nothing has been proven, it remains the same.

True, but if there’s a chance of increase and decrease in it—even if there’s a chance of increase and decrease, so what? You assume there wasn’t—there was no increase or decrease. No, you can assume there was an increase; why assume there was a decrease? Right, what’s the difference? If the thing changes, it can change upward or downward, so it’s not… It could be that it rises and falls and is monotonic with the… But I’m saying, I don’t care. As long as the thing can rise and fall, you should worry that in those five seconds something happened. Why does that matter? Then the question is, why are you quarantining the house? Maybe there’s no mark there at all by the time you quarantine it. Or maybe there is. Exactly. So how can you quarantine it? But I’m saying again: this rule too, that we follow a presumption, is simply a rule that we follow in life all the time. We saw something, we go somewhere else—we always know: there and there I saw such-and-such. Who says it’s still there? Another minute may have passed and it could have changed. You saw it a minute ago or an hour ago. How do you know? Every normal person behaves that way. You assume there is a presumption.

By the way, also in legal systems. In legal systems there is some presumption and we assume it exists until proven otherwise. Presumptions are not the exclusive property of Jewish law. Meaning, this too is some rule that basically we all follow in a reasonable way. I don’t think any of us even paused for a moment, when reading that verse about the priest, and thought: wait, how does the priest go out and close the house? He saw it half a minute ago—maybe in that half minute the mark changed. That’s not the kind of difficulty that crossed anyone’s mind, I assume, when you read the passage. Why not? Because it’s obvious to us that we don’t deal with… You can’t operate on the assumption that what you saw was true only for the exact instant you saw it. From that point onward, you can’t know. You assume it remains the same, even though it can change. It remains the same until it is proven to have changed.

Now I would ask myself why the Talmud is looking for a source for that. And it’s true that this will connect to what comes next, so that’s why I’m dwelling a bit on this introduction. Look: basically these two things, both following a presumption and following a majority, are really principles of inference that we use in life, in science, and in all kinds of places like that. And yes, the assumption that if the sun rose every morning until now, it will also rise tomorrow—that’s basically an assumption akin to an original presumption. What was will probably continue to be unless proven otherwise. Right? So that’s one scientific assumption: what was is what will be. Meaning, if I found laws in the situations I observed until now, then apparently that’s the general law and it’s also true going forward. And the second assumption of scientific thinking is that I draw conclusions from a sample. I do experiments on a number of cases and say, oh, so if that’s the case then this probably represents some general law, and I infer the general law from that. In a certain sense, that’s creating a majority before following the majority. And once I created the general law, I assume it is true in every situation. And that’s called following the majority.

Now, this is a subtle point. I produce the general law by a process of generalization, and that generalization gives me a general law that I apply to individual cases probabilistically. It’s not exact, because if you have a counterexample then you destroy the whole thing. Okay, but I assume that if I saw—no, this is statistics. That’s why I shifted from the word “majority” to the word “statistics.” I do some statistics and say—and by the way in medicine it’s even with counterexamples, because in the end you say: okay, you have seven out of ten parameters for determining a diagnosis. It’s less exact; it’s not physics. Okay? In any event, those two elements of scientific thinking are basically the two elements for which the Talmud here is seeking a source.

It would be very tempting to connect this to the questions raised by David Hume. David Hume basically undermined these two forms of scientific reasoning. He says yes, his problem of induction basically says: who told you that what has been until now will continue from now on? That’s your hypothesis; you can’t call it an observed fact. What you saw in observation is what you saw. Everything you infer beyond that is your own hypothesis or your own mode of thinking. How do you know it’s true? And statistics—same thing. There’s a minority and a majority, so obviously the minority can also be the case. I found a piece of meat—it could be not kosher. So what—who told you it’s kosher? There’s statistics. Who told you statistics is really a good instrument for clarifying reality? About that we’ll see in a moment—maybe there are answers.

In any event, these Humean problems, for skeptical philosophers for example, really do arouse a lack of trust in these modes of reasoning, in this common sense, in these methods of scientific thought. And the Torah wants to say that in the halakhic context, we are not troubled by things like that. In the end, if this is common sense, then we go with it. But it seems to me that this is still not enough. The Talmud uses much more far-reaching rules and doesn’t look for where their source is. If it’s common sense, the Talmud isn’t troubled by whether common sense works or doesn’t work. I don’t think that appears at all. It’s obvious. For the Talmud, common sense is the ABCs. There weren’t philosophers in the Talmud in that sense.

That’s exactly what I said yesterday. There’s this bad dream of a philosopher, you know, he’s sitting in a dark movie theater, then they turn on the lights and shout, “Is there a philosopher here?” You know, they do that for a doctor. Doctors are needed; philosophers nobody needs. Philosophers feel they want someone to need them at least once, so maybe if I sit in a dark theater they’ll turn on the light and ask, “Is there a philosopher here?” Yesterday I showed why you need a philosopher in yesterday’s class. Anyway, so there weren’t philosophers in the Talmud, in short.

It seems to me that what the Talmud is doing here is some kind of rigged game. You can also see it from the progression of the passages—when you read through them, you’ll see it’s a rigged game. Meaning, it is completely obvious to the Talmud that we follow the majority, we follow presumptions, and nobody ever thought to doubt that. The Talmud is trying to bring a source for it in order to convince us that it’s part of Jewish law. But it’s clear that there was never really an option not to use it, as we’ll see in the passage about majority; the Talmud says that explicitly. In the case of presumption, that’s more of an impression, but in the passage on majority it is explicit in the Talmud, and we’ll soon see it.

That’s why I say that this search for a source is not really, not truly, a search for a source like in other contexts. It’s what’s called a verse used as support. Meaning, the rule is known. I know it, and I’ll act that way either way. I’m only looking to see whether I can maybe find a source for it. But it’s obvious that we will behave that way. I’m saying, if in Jewish law where there’s a ten percent chance that it came from a forbidden place, I would prohibit it—it’s monetary law. If there’s a law saying it’s forbidden to eat it, I can’t turn that into permission. So it is an innovation that I follow the majority there. My friend, I go back and say: if that is the question—meaning, one could indeed have raised the following question. The Talmud’s question could be this: okay, clearly statistics says that this piece is probably kosher. But who says that this statistic can be relied on and that one may take the risk of eating something forbidden? If that were the Talmud’s question, then there’s no answer to it in this passage. They want to bring it from the majority of judges. What do you prove from the majority of judges? The majority of judges somehow have to reach a decision. This piece of meat that you found—throw it in the trash. There’s no such option there. Because with a majority of judges, you rule for this one, you rule against that one, you rule for him. I need to take money from one person and transfer it to another. And if it could be a mistake? Of course it could be a mistake, but you follow the majority. I’m saying if you don’t follow the majority, then you’re following the minority, which certainly isn’t logical.

So there are two sides here. The innovation is that I have two values, and one of the values is the money staying with the person who… It’s not a value; it’s a rule of conduct. But once I know that this money belongs to someone else, what do you mean? Why shouldn’t I give it to him? Is following the minority more logical? When I follow the majority I don’t know—it’s not one hundred percent clear that this is the truth. “Know” doesn’t mean certainty. “Know” means I know. Not certainty, but it’s not certain that this is the truth. I don’t have certainty that it’s the truth. I didn’t say I have certainty. Again, so how can I extract the money? Listen, listen. I didn’t say I have certainty; I said I have knowledge. Knowledge and certainty are not overlapping things. Of course I have knowledge. Do you have knowledge that there was a mark there after you stepped out the door? I don’t have knowledge. Of course you do. You have knowledge—it just isn’t certain. But clearly, common sense says the mark is still there even when you closed the door. What do you mean it’s a scriptural decree? Not a scriptural decree—it’s common sense. You’re identifying knowledge with certainty. And when the court ruled, is that certain? It’s knowledge, not certain knowledge. And a court can make a mistake. All our knowledge is not certain. Fine, that’s what we can do—what can we do? But it isn’t a shot in the dark; we’re not drawing lots. Do you really think there’s only a fifty percent chance the court was right? I think there’s a higher chance, but I don’t have knowledge. That’s called knowledge. That’s called knowledge; it’s just not certainty. It’s called knowledge.

In all our contexts in life we don’t know things with certainty. I ask someone the time, he says eight-thirty. For all you know, maybe he’s a liar; maybe it’s really three o’clock. How do you believe him? Is there a scriptural decree in the Torah that you have to believe a person when you ask him the time? No. Rather, if it’s a reasonable person you ask the time. When there is a clash between two values—what clash is there? I have one value, that the money belongs to the person holding it. That’s not a value; I’m trying to clarify what the truth is. It’s not a question of value. Once I know the truth, then the value arises, because if the truth is that the money belongs to him, then the value is to leave it with him and not give it to someone else.

Maybe because this is not clarification of the truth? So I’m saying, I don’t know how you conduct yourself in life, because in life too we act by statistics—not because I know this is the truth, but because I say that in most cases this is the truth. Right, and that’s called knowing. Let’s say in most cases—that’s called knowing. You’re equating me with certainty; it’s not the same. Knowledge does not mean certainty. To know that this is very likely the truth—that’s what I call knowledge. I do not mean to know that this is certainly the truth. Nothing is certain. That’s what it means to know; we have no better tools than that.

So it’s a halakhic innovation that such knowledge is sufficient. I’m saying: such knowledge is sufficient for what? To extract money? But then every such case is something different. So how do you learn from one to another? So because you heard this with a court, how do you know that with pieces of meat you’re also allowed to do it? Seemingly with pieces of meat logic says leave it there. Ask someone on the street who never studied Jewish law. There’s a serious prohibition against eating non-kosher meat. Okay, you found a piece of meat on the street—would you eat it? Are you crazy? Where’s your fear of Heaven? Right? That’s what I would say instinctively. What? And with judges he’d also tell you not to follow the majority—where’s your fear of Heaven? No, with judges it’s obvious you follow it, and with pieces of meat not? What are you talking about? Because there it’s dangerous, it’s a prohibition. So how does the Talmud learn that from this? Because the Talmud understands that there is a general principle here of following the majority. It isn’t a question of whether to take risks into account or not; rather, there is some general principle here: in Jewish law, do we follow the majority or not? And I’m saying that this whole clarification does not really put the option of not following the majority on the table at all. Obviously we follow the majority. The discussion is just theoretical-hypothetical—let’s try to find a source for this matter. You’ll see that at the end of the passage they don’t find one. They don’t find a source. Does anyone imagine that we therefore won’t follow the majority? Of course not. So Rashi there says that we follow the majority even without a source. That is explicit in the Talmud in this passage.

Why don’t they say, “It is logical”? What? They don’t say that. Right, they don’t. Very interesting. Because I think here they don’t say that because from the outset the discussion was like this: I already know this is logical, and I know we follow the majority, and up till now we’ve followed it. But in the end they do say it’s logical. No, in the end they do say it’s logical. No, obviously. But the Talmud does not say, “Why do I need a verse? It’s logical.” The Talmud leaves it at: there is no source. Why doesn’t it say, fine, we didn’t find a source—why do I need a verse, it’s logical? It doesn’t say that. And when it doesn’t say that, it’s because that was the point of departure of the discussion. Everywhere else you ask yourself why something is true and bring a verse. Then you say, wait, actually there’s a logical reason—why do I need the verse? Here it’s not “wait, wait.” That’s where you started. It’s obvious that majority is logic. I’m only asking whether I can also find a source for it. It’s this kind of theoretical study-hall question: I wonder if I can find some source in the Torah. If I succeed, great; if not, nothing happened—I’ll go right on following the majority.

Look how the passage proceeds. So yes, we are basically asking where we know from that we follow the majority. They bring the verse “incline after the majority,” and then say no: from “incline after the majority” you can learn only a majority present before us, like a piece of meat among stores or a majority in a court. But what interests us is a majority not present before us, like the case of the minor boy and girl, and that you can’t learn from the stores. And again, notice the same thing. What are these formal distinctions? In the end, the Sanhedrin and the stores are not the same thing either. So how can you learn the majority of stores from the Sanhedrin? The Talmud assumes that the other majority, of the minor boy and girl, is essentially different from the majority of the court—and unlike the majority of the stores. The majority of the stores is like the court; it’s called a majority present before us. But the majority of the minor boy and girl is something else. That you can’t learn. What does “can’t learn” mean? Every normal person in the world follows the majority in the case of the minor boy and girl too. Rather, obviously we’re looking for a formal source; it’s not a question of whether we’ll actually do it. Of course we’ll do it. We’re looking for a formal source.

And still, it really is an interesting question where this idea comes from. Let me just finish the structure of the passage and then we’ll get into it a bit more. So the Talmud brings various sources from which we might rely on this—for example, that you execute a murderer. How do you know that he wasn’t already mortally wounded in a place hidden by the sword, in which case he was a person doomed to die anyway, and then the murderer wouldn’t really be liable for capital punishment? In short, every normal person behaves this way. These aren’t proofs at all; every normal person understands this. And then the Talmud ends by saying that in fact they do not find a source. There is no source. And then Rashi says there—after explaining that the entire Talmudic discussion basically rejected all the sources, that there is no good source for this matter—he says: “Rather, it is certainly a law transmitted to Moses at Sinai, and we rely on the majority even where clarification is possible. Or alternatively, ‘incline after the majority’ implies both a majority present before us and a majority not present before us, for what difference is there between this and that?”

Now that Rashi is bizarre. The Talmud begins and devotes almost a page, a whole page of Talmud, to telling you: we have a majority present before us, but from it you cannot learn a majority not present before us. Let’s search: we have source one, source two, and all of them we reject. We are left without a source. A majority not present before us—that is the whole thing we were searching for—and it can’t be learned from a majority present before us because it is very different; that’s the Talmud’s assumption. And then it ends: okay, we didn’t find a source. Fine—so what’s the difference? If there’s a majority present before us, let’s also learn from that a majority not present before us. Then what did you do with the whole passage? The whole passage you told me no, there’s a difference. If I only knew a majority present before us, I couldn’t derive from it a majority not present before us, therefore I need a separate source. And then you tell me, no, actually I was just playing games, but really it’s the same thing. That structure is strange.

I think what Rashi means is not that it’s the same thing. Really, you cannot derive a majority not present before us from a majority present before us. He means that both are common sense. They really are different mechanisms; you can’t learn one from the other. If you ask me what the source is for following a majority not present before us, the source is not a majority present before us. But because common sense says we follow the majority, then what difference does this majority make and what difference does that majority make? This is common sense and that is common sense. It’s not the same common sense; it’s not the same principle. But he’s saying: obviously in the end what Rashi is saying here is that the game is a rigged game. We follow the majority regardless of whether or not we find a source. So here we didn’t find a source—fine, what difference does it make? Obviously, if common sense did not tell us to follow a majority present before us—if it wasn’t common sense but only a verse—then I wouldn’t know it with respect to stores either. Because what’s written there is a rule in court. In court there’s a rule of decision that if there’s a disagreement among judges, you follow the majority. Who told you this suddenly becomes some general evidentiary law in Jewish law, that when I find a piece of meat I follow the majority of the stores? Rather, clearly there’s some reasoning here, some common sense. You say that obviously a normal person follows the majority—what can you do? So he says, if that’s so, then also with a majority not present before us. He isn’t really making a comparison. I think many later authorities get tangled up with this Rashi because they don’t understand—at least I think so—that the point of departure of the passage was exactly this: we’re playing here. The Talmud is basically playing a game. It’s obvious that we need to follow the majority; that’s not the point. The question is whether I can find a formal source for it or not. It’s a purely conceptual passage; it has no practical consequence whatsoever.

A law transmitted to Moses at Sinai—is this talking about a majority not present before us, and also a law transmitted to Moses at Sinai that includes both? Both and both. Maybe; I don’t know. It could be either way. Rashi is noncommittal about that and I don’t know.

And Rashi there says, “even where clarification is possible.” Right. Meaning, even in a place where it would be possible not to follow the majority. For example, in the case of a mortal wound hidden by the place of the sword, in all the cases brought as a possible source, the Talmud says: you can’t learn from there. Because there you had no choice; you couldn’t proceed any other way. So maybe where there’s no choice, you follow the majority. If you do have a choice—a piece of meat, throw it in the trash—then you do have a choice. The Torah tells you to execute a murderer. Yes, you can’t execute a murderer if you’re always going to worry that maybe there was already a fatal puncture hidden by the sword. So there, you follow the majority. But who says that where you have the option not to follow the majority but rather to take the minority into account, do you still follow the majority there? That’s the issue of whether you can or cannot clarify.

But I asked, where clarification is possible. That’s a whole separate topic. If a male and female levir today can do a DNA test, maybe they should—it’s a major question even in a rabbinic-level doubt, if clarification is possible, whether one may be lenient or whether one must clarify and not enter into a rabbinic-level doubt. And also in a Torah-level double doubt. In a Torah-level double doubt too there is a dispute among the halakhic decisors whether, when you can clarify, you’re allowed to be lenient on the basis of the double doubt or whether you are obligated to clarify. The Hatam Sofer and Rabbi Akiva Eiger and others.

So that’s the structure of the passage. Now I want to get a bit more into the concepts. What does it mean, a majority present before us and a majority not present before us, and what’s the difference between them? In the simple literal sense, a majority present before us means a majority that is before us. Let’s say there are ten stores in the city; nine of them are kosher and one sells non-kosher meat. Then we have the whole situation before us. There are ten stores, and let’s say the city gates are locked, meat can’t come in from outside—there are all kinds of assumptions there, that only these stores are relevant to the piece of meat I found. The situation is completely known; it is before me. There are ten stores; I know all the stores. Nine are kosher, one is not kosher, and now I ask: what is the law regarding the piece that separated from one of the stores and that I found on the street? That is called a majority present before us: the majority is present before me.

I know they’re open. What? I know they’re open—the stores. Yes, they don’t have to be open right now, but they are open in principle; the meat could have been there from yesterday too. I know they’re open—it’s not just general knowledge that… No, yes, not only open—I know the stores that sell meat here, and I also know which one is kosher and which… and which one isn’t kosher, and the whole reality is known. Okay? That’s a majority present before us.

A majority not present before us is a majority that is not before us, and usually it is identified with a law of nature. A law of nature is a majority not present before us. For example: most women give birth after nine months and not after seven. In the time of the sages they thought there were two, maybe there really were too, I don’t know—two types of pregnancy in a woman. There are babies born after seven months of pregnancy and babies born after nine months of pregnancy. But most women give birth after nine. That was the reality. Now, how do you know that? If all the women in the world were laid out here before you and you knew about each one whether she gives birth at seven or at nine, that would be a majority present before us. But you don’t know; you don’t know the women, nor all the women who gave birth. Rather, you understand that this is the nature of the world. The nature of the world is that most women give birth at nine and not at seven. That’s called a majority not present before us. Or most children—most women are not incapable of having children, as in the case of the minor boy and girl—that’s a majority not present before us. Why, how do you know that most are not incapable of having children? Because I see around me, in life, that generally women do have children. There’s a minority who don’t, but generally women do have children. So most women are not incapable of having children. But I don’t know—I didn’t do statistics on the whole world. I understand that this is the situation; I understand that this is the nature of the world. The nature of the world is that a normal female body is a body that can bear children. The minority is exceptional. So that’s called a majority not present before us.

Why can’t one be learned from the other? Seemingly, after all, the Talmud says we can learn a majority present before us from stores. But we’re asking about a majority not present before us. The Talmud assumes that a majority not present before us is something else. Why is it something else? You can’t say it’s only a formal distinction, some technical distinction. Otherwise there could also be a distinction between stores and judges. Clearly, from the Talmud’s standpoint, there really is a substantive distinction here. This is exactly the point: I want to say that what Rashi says, “what difference is there between this and that,” can’t mean they’re really the same thing; the whole assumption of the passage is not like that. Rather, Rashi means: this is common sense and that is common sense, and they’re different. Okay?

In what sense is this more different than the difference between the stores and the judges? Why are the stores and the judges similar, while the minor boy and girl—meaning the fact that most women are not incapable of having children—that’s not similar, that’s another kind, a majority not present before us? The distinction between present and not present before us is a substantive distinction. First—here there are two doubts. What? Here it’s one doubt and there two doubts. Why two? Because with a majority present before us you have one doubt: is it from the one store or from the nine stores? Right. With a majority not present before us it means that you have, first, is it this or that, and second, does this statistic even obligate us; do you say that the statistic itself is questionable? Okay, we’ll get to that in a moment. It may be that you’re right; I’ll phrase it a bit differently.

So the question really is why the Talmud says you cannot derive a majority not present before us from a majority present before us—that’s one question. And the second question is: which is stronger? Which majority is stronger, if any? So the assumption, as Rabbi Shimon Shkop says in Sha’arei Yosher, is that clearly a majority present before us is stronger. Why? Not by logic, but from the structure of the passage. Because the passage says that if “incline after the majority” teaches me to follow the majority, I would go only after a majority present before us, and I would not know a majority not present before us. Now if a majority not present before us is stronger than a majority present before us, then all the more so: from the verse I’ll learn a majority present before us, and a majority not present before us, which is stronger, certainly should be followed. It’s not stronger; it’s different. Okay, so that’s the conclusion, but I’m on the way there right now.

If they really were two things of the same kind, only one stronger and one weaker, then I’d say that a majority not present before us is the weaker majority. Right? Now Rabbi Shimon Shkop in Gate 3 proves that the position of Maimonides, and others among the later authorities, is that a majority not present before us is stronger. Meaning, for example in capital cases Maimonides says that we do follow a majority not present before us, but we do not follow a majority present before us. In capital law, we execute a person based on this majority, but not on a majority present before us. And then he says: how does that fit with our passage here? And of course the obvious answer is that there is no hierarchy here of stronger and weaker; rather, they are two different things. In capital law it may be that this works and that doesn’t, but not because one is stronger or weaker.

But before I get to that, I’ll give you an example of a consideration for why a majority not present before us might be stronger—even if not statistically, then legally. This is the story of David Levy; maybe I mentioned it here once, I don’t remember. David Levy was once in the Likud central committee, and now we’re in current-affairs territory with Likud, and he complained there—he complained that his people, his faction in Likud, were not getting executive positions. “My faction, none of my people gets chosen for executive posts, for party positions, in the government,” or whatever exactly it was. So they tell him: what do you mean, what do you want? There’s democracy here, there’s a vote. Vote, and the majority decides. That’s what we do. So he says to them: fools of the world—what do you mean, the majority decides, and therefore fifty-one percent get one hundred percent of the positions? Right? Because every position comes up for a vote. Now the fifty-one percent beat the forty-nine percent and place one of their people in that position. Then the next position comes up. Again there’s fifty-one against forty-nine, and they place one of their people there too—and one hundred percent of the positions are filled by fifty-one percent of the people. Right? That’s called democracy? So he says: that democracy is not representative.

By the way, some arguments of this sort have also been raised against—today less so—but, say, against appointments to the Supreme Court. African Americans in the United States. African Americans in the United States. Meaning, the claim is—they’ll tell you: what do you mean, there was always some religious judge, there was always this kind of “religious judge seat” for many years. Now already, I’m saying, it changed, but there used to be one religious judge. What do you want? There’s one religious judge, there’s a seat for a religious judge. Fine, we understand that’s not enough. That’s not really the proportion of the religious population. Now if we appoint according to their proportion in the population, is that okay? Still no. Why not? Because if there’s a minority of twenty percent, say religious judges, in one hundred percent of the cases the secular majority will determine the ruling. So you won’t get twenty percent of the rulings going in a religious direction and eighty percent going in a secular direction.

It’s like in the supermarket ruling, which always amuses me, the supermarket ruling from a year or so ago. In the supermarket ruling, the Court President there—was that Hayut already? I don’t remember if it was already Hayut—the President opens the ruling by saying: this is not a matter of religious versus secular; this is a purely legal question. Then she analyzes everything, reaches a conclusion, and then you see the distribution of the opinions: the religious judge was against, and the two secular judges were in favor. In other words, that’s what’s signed at the bottom. Okay, so it’s the same thing.

The only way to make the majority and minority representative is if we draw lots so that in twenty percent of the panels there will be a religious majority. That comes closer to representing the public accurately. If twenty percent of the judges are religious, that still means zero percent of the decisions—because they’re always in the minority. If you create a distribution such that when choosing judges, in twenty percent of the cases—or in the contentious cases, the cases where there’s a difference—in twenty percent of the cases you establish that there will be a religious majority, that would produce representation. But that’s never done.

Okay, so that system is actually one of the indications for what I said earlier, that the majority expresses what the public wants. A majority is often not a good parameter, not a successful one. Okay, so that’s another example of it.

Now, how does this relate? We tried to infer from the minority onto the presumption—to combine the minority with the presumption and make it fifty-fifty, yes. In any event, I’m going back to a majority present before us and a majority not present before us. With a majority not present before us—for example, most women are not incapable of having children. Every woman who comes before us and we need to decide whether she is incapable of having children or not, we’ll decide that she is not incapable of having children, right? Because we follow the majority. Then it comes out that in one hundred percent of cases we’ll decide that the woman is not incapable of having children. Even though it’s obvious that there are women in the world who are incapable of having children too, right? But we follow the majority.

So it’s like the two pathways. Anyone who comes before me—if he walked on this path with impurity or the other path without impurity, I don’t know. So we say, fine, he’s pure; a doubt of impurity in the public domain is pure. Then the second one comes—he walked on the other path. One walked on the left path, one on the right path—he too is pure. One of them is definitely impure, because there is an impure path. Right—but each individual case that comes before me I decide according to the majority, just like David Levy. So it comes out that the majority really decides one hundred percent of the cases.

Okay, what happens with a majority present before us? With a majority present before us it’s not exactly like that. Because with a majority present before us, if there are pieces of meat before us—say there was some epidemic of lost pieces of meat in the city, so all the pieces suddenly disappear. One comes before me, then a second, then a third. In the end, let’s say there are ten stores, each one selling one hundred pieces of meat. Okay? Nine hundred pieces of meat came before me; I declared them all kosher. The next hundred I will no longer declare kosher. Because one hundred out of the thousand before me are not kosher. So according to Rashba, for example—and this depends on a dispute among the medieval authorities whether it’s Torah-level or rabbinic—according to Rashba, when there is nullification by majority or following the majority in a doubtful case of pieces of meat, then yes, you’re allowed to eat if there is a majority of kosher pieces. But leave the last two. Why? Because you can’t eat all of them. It’s clear to you that one piece is not kosher, so you can’t eat all the pieces before you—if you do, you definitely ate something forbidden, right? That’s the significance of a majority present before us. In the end, with a majority present before us we will not declare all the cases permissible. Cases that come before me—I’ll follow the majority, but I will not permit all the cases. There won’t be a David Levy effect. We’ll preserve representation.

But with two people. Of the other one? Maybe yes, apparently yes. Fine, it doesn’t matter; I just want to illustrate. I don’t mean that we’ll eat all the way to the end. So with a majority not present before us, in one hundred percent of the cases that come—even if all the women in the world came before me, one after the other, I would declare all of them women who are not incapable of having children. All of them. Why? Because there is no minority before me that is present as such. So it’s a law of nature.

A law of nature generally—more than that, I’ll tell you—when I decide that a woman is not incapable of having children, I’m saying there is something in her nature that causes her not to be incapable of having children; it’s physiology, the biological makeup of a woman. So I have a positive reason to assume that she is not incapable of having children, unless there is some defect there. Right? With pieces of meat I have no positive reason to assume—I know that the stores here are mostly kosher, but there is nothing in the piece itself that causes it to be kosher. A law of nature means the world operates this way, so there is a positive reason to make that decision, because I know this is how the world works. With a majority present before us, it’s not a law of nature at all. There’s another city where there are nine non-kosher stores and one kosher one, or ten non-kosher stores. There is no law of nature that pieces are generally kosher. Here, based on the information I have, I can assume that this piece is kosher. That’s much weaker than saying: I know positively that this is the nature of the world, this is how the world works.

And therefore there is definitely room to argue that a majority not present before us is stronger, if all of them really came before you… and then—why is that not present before us? No. That’s Rabbi Chaim’s difficulty, and it’s not correct. He brings this difficulty in the name of Rabbi Chaim, and I think they’re mistaken; it’s not right. If one out of ten in a pot is non-kosher, do you throw one out and permit it? Two? Same thing—two. Because once you’re left with two, there’s no longer nullification. One kosher and one not kosher—there’s no majority nullification there. So you throw out two; you throw out two. Fine, there are disputes—Rashba and Ra’ah in Bedek HaBayit there. Two, or do you eat until you get to two? No, you throw those two out. No, I said you throw one out. If you throw one out from the start, that’s enough. After all, you have nine before you. No, you can’t throw one out. What I’m saying is, you throw out two. Because you can’t eat once you’re left with two—then you can’t assume there’s a majority of kosher left. I’m saying it’s a dispute; I’m not…

With a majority not present before us, you don’t say there is a minority; you say that generally every person… How do I know there are women incapable of having children? I don’t know. No, obviously I know. I know there are, but I don’t know that in every hundred people—if I gather some random group, I’m not sure there will be women incapable of having children in it. I agree. So in the totality of the world’s women there are such women—that’s obvious—but that’s not the same thing as a majority present before us. Okay.

It’s the same thing—that’s the claim. Which is why I’m saying there’s something in a majority present before us that is stronger. Every scientific law is a majority not present before us. What you’re basically saying is that in a majority present before us, you also have a minority present before us; and in a majority not present before us, you do not have a minority present before us. And that was the first difference. I said there are two differences between them. The first difference is that in a majority present before us, there is a minority right here before me. I cannot ignore the fact that there are non-kosher pieces here. In a majority not present before us, how do you know whether it’s here or not here? I’m not like the majority, as you said—I can ignore it, I follow the majority, it’s the David Levy effect. In one hundred percent of cases I determine accordingly.

The second difference I mentioned is that a majority not present before us is based on the way the world functions—it’s laws of nature. So that means something in the way the world works causes the situation to occur this way. Therefore there is a positive reason to assume it’s so. You see a woman, you know the physiological mechanism, and you say: so she probably is not incapable of having children, because a woman with such a mechanism is not incapable of having children unless something has gone wrong there. Whereas with pieces of meat, you see the piece of meat—do you know it’s kosher? Is there something in the world that causes pieces of meat to be kosher? Of course not. It’s an accidental majority. It just happens that in this city there are nine kosher stores.

The decision that the piece of meat is kosher is a halakhic decision. Meaning, if the sages were to say that this carcass or this torn animal is kosher, then it would turn from non-kosher to kosher. It didn’t turn into that; the sages say that it is such. They don’t turn it into such. I said: is this a structural majority? Does nullification by majority transform? The sages transform? No, no—I’m not talking about nullification by majority; I’m talking about following the majority. According to Rashba, nullification by majority in dry-with-dry is basically following the majority. Every piece you take is essentially considered to have separated from the mixture, and then you can assume according to the majority. It’s not nullification. Fine, this is the dispute between Rashba and Rosh.

The question is whether it changes reality at all. If they decided regarding ten stores and you found meat and they tell him, eat it—why? Because there’s monetary loss. But what are they really saying? That this is permitted property? You’re making an assumption. Who said? Statistically, take the risk if you eat. A person boards a flight and knows that statistically one out of a hundred planes crashes. But he says, economically, practically, there’s a greater gain here, so he takes the risk. You skipped over something there. Okay, you skipped over something. There is a discussion: whether in nullification by majority the minority really becomes like the majority, or whether it doesn’t become like the majority but I’m simply allowed to eat it. But nobody disputes that I’m allowed to eat it. I didn’t eat it. I don’t know—that may be your own view. In the halakhic authorities there’s no such view: you’re allowed to eat it, but you didn’t eat it. Right, you are right that the issue is whether it is “permitted” or merely “set aside.” Because the question is whether the prohibition disappears entirely, and then he says: this isn’t prohibited at all. Or no, there is a prohibition, but the Torah was concerned for the money of Israel and we won’t throw out the whole pot because of concern for one piece of meat.

And if he ate it, found a piece, and afterward some clarification came and it turned out that was the forbidden piece? Nothing. Obviously he is not considered an offender. It may be that he would need to bring some offering—but even that, if there was awareness at the beginning and awareness at the end, then even an offering there wouldn’t be; it wouldn’t be an inadvertent sin. That’s not correct. Let’s move on; it doesn’t concern us. Wait, that’s not our topic.

So look: in the end, apparently the majority not present before us, according to Maimonides at least and his camp, is a stronger majority. So why doesn’t the Talmud here derive it by an a fortiori argument from a majority present before us? A majority present before us is learned from stores, and you should be able to learn a majority not present before us a fortiori—it’s stronger. So indeed, as was said here earlier, one has to say that it’s not just stronger—it’s different. That’s the point. What I explained just now is not that statistically a majority not present before us has a higher chance of being right. That’s not what I said. The two explanations I gave just now don’t touch statistics at all. The chance of being right is still ninety percent, and of being wrong is ten percent. Both in a majority present before us and in a majority not present before us. This is not a statistical difference; it is a legal difference.

Legally, when a prohibition is present before me, it is more problematic to ignore it. It’s like the difference in the laws of doubt between a case where the prohibition has been established and a case where it has not been established. Let’s say I have one piece from among two pieces, or one piece alone. If I have one piece and I don’t know whether it is forbidden fat or permitted fat, then a Torah-level doubt is ruled stringently, right? What if there are two pieces, and I know one is forbidden fat and one is permitted fat, but I don’t know which is which? To eat one of them is also a Torah-level doubt ruled stringently, right? But there is a difference. In the case of one piece from among two, you bring a provisional guilt offering. In the case of one piece alone, you do not bring a provisional guilt offering. A provisional guilt offering is for doubtful prohibitions. Why? Because in one piece from among two, there is definitely a prohibited piece before me. I ate one piece; I don’t know whether I ate the forbidden one or the permitted one. But I cannot ignore the fact that there was a forbidden item on the plate before me—maybe I ate it. When there is one piece alone, I have a concern that maybe it’s forbidden and maybe not, but it could be that there is no prohibition there at all. On the side that it is not forbidden, then there is no prohibition there.

So here too, legally—and not statistically, because this is fifty percent and that is fifty percent—the claim is that there is something stronger in a majority not present before us, because in a majority not present before us the minority is not present before me, or there is some mechanism, as I said before, that causes the reality to be this way. But those are legal considerations and not probabilistic considerations. Probabilistically it is the same, apparently.

Okay? So why really is there a difference? The difference is a difference in kind. And if it is a difference in kind, then you can no longer make an a fortiori argument and learn one from the other. It’s a different kind. It’s not a matter of stronger or weaker. Therefore in Maimonides it may be that in capital cases we follow a majority not present before us and do not follow a majority present before us, and yet here in the Talmud, when they ask where we know a majority not present before us from, you cannot derive it from a majority present before us, because it is a different kind.

The question is: what is different in that kind? What exactly does that difference in kind do? And as I said earlier, the assumption is that statistically it’s the same. Rabbi Shimon Shkop—maybe we’ll see him next time—wants to say that with a majority present before us it isn’t statistics at all. In principle there is no statistical majority saying that this piece is kosher. There are nine kosher stores and one non-kosher one; I found a piece of meat—there is not really a genuine statistical majority that this piece is kosher. That’s what he wanted to argue. Whenever I read him, I never understood it. There isn’t a person in the world who doesn’t make that assumption. Forget all the side calculations. He makes all sorts of side calculations there, this side and that side—who knows, maybe it came from that store. Opposite every store there’s a majority of the other stores, that’s what he says. So if you assume this piece came from store A, there are nine other stores—why assume it came from A? If from B, same thing, there are nine others. You can’t assume it came from any particular store; therefore there is no majority. But it is always statistics. Yes. Yes. But in the end it’s a strange argument. Every person makes that calculation even with a majority present before us, and therefore the assumption is that statistically it’s the same. Rather, there are legal differences, as I said before. I’ll want to argue—and I’ll get to this next time—that even on the statistical level there is a difference. Rabbi Shimon Shkop is right. Okay, but we’ll try to organize that next time.