Majority in Halacha and in General 2, Lesson 5

Table of Contents

• [0:01] Introduction: the difference between a majority that is present before us and a majority that is not present before us
• [1:04] Defining a majority that is present before us and a majority that is not present before us
• [2:41] The source of the statistical multiplicity of a majority that is not present before us
• [5:04] A practical example: David Levy in the Likud Central Committee
• [7:47] A dispute about Jewish law in monetary cases: Rav versus Shmuel
• [9:30] Presumptive status as statistical evidence and a majority that is not present before us
• [12:18] The ox example: buying an ox for plowing or for slaughter
• [23:06] Summary: an essential difference between what is present and what is not present before us
• [25:06] Returning to the question of statistics
• [26:06] The example of kosher and non-kosher shops
• [27:31] A majority that is present before us on top of another majority that is present before us
• [28:55] The source of majority in the Talmud and in a religious court
• [30:32] The likelihood that a single judge is accurate
• [32:40] The halakhic reason to follow the majority
• [38:20] Differences between a majority that is present before us and a majority that is not present before us
• [48:04] A majority that is not present before us as empirical
• [49:32] The difficulty of sampling and empirical generalization
• [51:07] The difficulty of testing judges’ correctness through experiment
• [52:31] The assumption of a priori reasoning and trust in the majority
• [53:38] A majority that is not present before us versus a majority that is present before us
• [55:13] Rationalism versus empiricism in the Talmud

Summary

General overview

The text redefines the distinction between a majority that is present before us and a majority that is not present before us, and argues that the difference between them is a difference in kind and not necessarily in strength. It presents the passage in Hullin as searching for a source for a majority that is not present before us and not finding a single clear source, and suggests that this structure reflects a situation in which everyone practically agrees that we follow the majority, but they argue about the foundation for it. It then claims that within a majority that is not present before us there is an internal distinction between a neutral majority and a presumptive status in which belonging to the minority seems implausible, and it connects this to the question of why money is sometimes extracted on the basis of presumptive status even though Jewish law follows Shmuel that in monetary cases we do not follow the majority. Finally, it proposes a conceptual framework: a majority that is present before us rests on a priori reasoning that is not the product of experiment, whereas a majority that is not present before us rests on empirical generalization, and this gap explains both the Talmudic passage in Hullin and the difficulty raised by Rabbi Shimon Shkop.

The passage in Hullin and the source for following the majority

The passage in Hullin tries to understand why we follow a majority that is not present before us and assumes that the Torah source is a majority that is present before us, from the verse, “Follow the majority.” The Talmud does not succeed in deriving from that a majority that is not present before us and is left without a final answer, and Rashi suggests possibilities such as a law given to Moses at Sinai, logical reasoning, or an extension of the verse. This structure is presented as a kind of fixed game in which it is obvious that majority is accepted, and the only question is how to justify it, similar to the discussion in Hullin about the source of presumptive status.

The distinction between a majority that is present before us and one that is not present before us

A majority that is present before us is described as a majority that is actually before us, such as a religious court in which two judges obligate and one exempts, and Jewish law follows the majority. A majority that is not present before us is described as a majority that does not depend on a concrete group standing before us but on general knowledge about the way the world normally works, such as that most women are not infertile by nature. The majority remains one that is not present before us even if in practice a thousand women are examined, because the category is determined by the type of knowledge involved and not by the size of the investigation.

Rabbi Shimon Shkop and Maimonides on the strength of a majority that is not present before us

It is reported in the name of Rabbi Shimon Shkop that according to at least Maimonides’ approach, there are medieval authorities (Rishonim) and later authorities (Acharonim) who want to say that a majority that is not present before us is stronger than a majority that is present before us. Rabbi Shimon Shkop argues that the movement of the Talmudic passage in Hullin seems to point in the opposite direction, because if a majority that is not present before us were stronger, then one could have derived it by an a fortiori argument from the verse “Follow the majority,” and there would have been no need for a separate source. From this he concludes that the two kinds of majority are not necessarily stronger and weaker but different in character.

The legal force of a majority that is not present before us, and the David Levy parable

A parable about David Levy in the Likud Central Committee is brought to show that a majority that is not present before us can produce a legal conclusion of one hundred percent, even though the majority itself is only seventy percent or fifty-one percent. In each individual decision, the majority wins, and therefore across all positions or decisions, the minority may wind up with no representation in practice. The explanation is presented as legal force and not as statistical force, because Jewish law applies the majority to every individual case that comes before it when there is no concrete information.

Majority in monetary law, presumptive status, and a distinction within a majority that is not present before us

A dispute between Rav and Shmuel is presented as to whether in monetary cases we follow the majority, and as a matter of Jewish law the ruling follows Shmuel that we do not follow the majority in monetary matters. An example is brought from Bava Batra of the presumptive rule that a person does not pay before the due date, and on the strength of that rule money is extracted, even though it seems to be a behavioral majority. The claim is that within a majority that is not present before us there is a distinction between a neutral majority, where there is nothing strange about belonging to the minority, such as most women not being infertile by nature or most people who buy oxen buying them for plowing, and a majority in which belonging to the minority seems implausible and demands explanation, such as the claim that someone paid before the due date. Presumptive status is presented as a kind of majority with logic behind it that turns the minority claim into something exceptional, and therefore there is “evidence against him,” and he is required to explain himself.

A majority that is not present before us regarding the nature of the world, versus a majority produced by human choice

It is argued that the fact that most women are not infertile by nature rests on physiology and the nature of the world, whereas the majority regarding buying oxen for plowing is a product of human choice and of time and place. It is emphasized that a majority that is present before us is always accidental and local, like nine kosher shops and one non-kosher shop, and does not derive from a law of nature. A majority that is not present before us can be either natural or choice-dependent, and therefore the connection between the division of present/not present and the division of presumptive status/majority is not a complete overlap.

The commandment of “Follow the majority” in Sefer HaChinukh

In Sefer HaChinukh, commandment 78, the reason is presented for inclining after the majority of sages when the level of wisdom is equal or close, because a greater number of opinions accords more with the truth than the minority. The Chinukh then adds that the need for majority decision strengthens the maintenance of the religion and prevents a situation in which the Torah becomes many Torahs according to each person’s limited understanding. A synthesis is proposed according to which choosing one view for the public stems from a social-halakhic need, and choosing the majority specifically stems from the assumption that the majority is closer to the truth.

Rabbi Shimon Shkop on a majority of judges and nine shops

Rabbi Shimon Shkop in Sha’arei Yosher, at the beginning of Gate 3, raises a difficulty with the comparison between a majority of judges and a majority of shops if majority is understood as a clarification of reality. He says that with judges there is room to speak in terms of a majority that is not present before us, that the majority are more aligned with the truth than the minority, whereas with nine shops there is no parallel to such a consideration. He adds the claim that with nine shops one could seemingly reject any given shop by saying that there are nine others against it, and therefore the majority does not “clarify” reality in any simple sense.

The law as counting sides, and majority as a formal scheme

An explanatory suggestion is brought that majority is not necessarily statistics, but a rule of following the greater number of possible sides, similar to the view attributed to Rashba that a double doubt is based on a majority of sides. According to this framework, in the case of nine shops there are nine sides toward permissibility and one side toward prohibition, and with judges there are two sides for one determination and one side for the other, so Jewish law follows the majority. The explanation is meant to establish a common denominator between judges and shops without making the ruling depend on an empirical assumption about the “accuracy” of the majority.

Majority, statistics, and a priori reasoning

It is argued that the tendency to see a majority that is present before us as statistical, and a majority that is not present before us as non-statistical, is the opposite of the truth proposed here. A majority that is not present before us is described as an empirical generalization based on a sample and on accumulated human experience, whereas a majority that is present before us cannot be grounded experimentally and therefore rests on a priori reasoning. In the case of nine shops, it is argued that there is no way to construct an empirical experiment that would test the claim of belonging to the majority, and therefore relying on the majority is a rational wager and not a law of nature.

A majority of judges, testing truth, and the DNA example

It is argued that even the assumption that in general the majority of judges are correct cannot be verified in the ordinary empirical way, because there is no “independent” truth against which to test them, and therefore this too is a priori reasoning, like the case of nine shops. An example is brought from the United States, where DNA evidence made independent retrospective testing possible and led to acquittals, as an exceptional case in which such testing is possible. It is argued that if one were to conduct a systematic experiment to test the accuracy of a majority of judges, that would create a majority that is not present before us, but in practice the halakhic rule rests on rationalism and not on empiricism.

Reading the passage in Hullin as a debate between rationalism and empiricism

A reading is proposed according to which the Talmud in Hullin recognizes a source for a majority that is present before us as a rationalist foundation supported by a verse, but struggles to find a source for a majority that is not present before us, which in its essence is an empirical generalization. From this, it is argued, we can understand why the Talmud does not succeed in deriving a majority that is not present before us from a majority that is present before us, because these are two different kinds of knowledge. Rabbi Meir, who is concerned for the minority view, is connected especially to a majority that is not present before us, because statistics and empirical generalizations include assumptions that justify concern for the minority, whereas with a priori reasoning that has been confirmed by the Torah, he does not have the same reservation.

We’re in the topic of majority. Last time I tried to define the difference between a majority that is present before us and one that is not present before us. We saw the passage in Chullin that tries to understand why we follow a majority that is not present before us. And it says that our source in the Torah for following the majority is a majority that is present before us, and therefore it can’t derive from that a majority that is not present before us. In the end we’re left without a final answer, and Rashi suggests two possibilities: either it’s a law given to Moses at Sinai, or it’s logical reasoning, or an extension of the verse. But I said that the structure of the passage suggests that this is really some kind of rigged game. Everybody knows we follow the majority. You can discuss where we learn it from, but we don’t really learn it from there. Just like the earlier passage in Chullin about presumption: how do we know we follow a presumption? There too they bring some source, but it’s clear to all of us that this isn’t really the source it came from. Where is that in Chullin? Page 10, 11, I think—that’s majority, if I remember right. I just want to remind you of the distinction, because I’m going to use it today too.

The difference between a majority that is present before us and one that is not present before us. A majority that is present before us—the example the Torah gives is judges. Meaning, there’s a dispute in a court: two judges say Reuven is liable and one says Reuven is exempt, so we follow the majority. The Talmud says that this is a majority present before us. Present before us—here in front of us. It’s a majority that is before us: there are three judges here, two of them say one thing and one says another, so we follow the majority. What is a majority not present before us? Most women are not barren in that sense. There are such women, but it’s a minority; meaning, most women are not like that. So that’s statistics. Yes, in a moment I’ll get to the point that it’s statistics. A majority not present before us means that it’s not about a certain concrete group of items or people in front of us, where we have clear information about them. Rather, we know more or less how the world works. Usually, in the world, women are like this. It’s not that I have ten women in front of me and I know how many of them are barren in that sense and how many aren’t, and then I know I can assume there’s a majority of one kind and not the other. Rather, from my experience, from my familiarity with the world, I understand that usually this is the situation. You have the option of doing it—you can take a thousand women and check. You won’t have time to do that. No, no, no, it won’t help. Even if I had time, it would still remain a majority not present before us. I’ll explain in a moment—that’s an important point. It would remain a majority not present before us even if I did it. In fact, that’s already been done. It’s not just “if I do it.” Not me, but humanity did it. That’s how we accumulated this information, but we’ll see that in a minute.

In any case, I mentioned—I think—that Rabbi Shimon Shkop talks about this, that according to at least Maimonides, and after that he brings other medieval authorities and mainly later authorities who want to say that a majority not present before us is stronger than a majority present before us. And he says that the flow of the passage seems to suggest the opposite, because the passage in Chullin that we saw last time derives a majority present before us from the verse “follow the majority,” and then it says, yes, but where do we know a majority not present before us from? Now if a majority not present before us is stronger than a majority present before us, then what’s the problem? The verse tells me the law for the majority present before us, and the majority not present before us is stronger, so all the more so we follow the majority not present before us. If the Talmud says that for a majority present before us we have a source from a verse, but for a majority not present before us we can’t derive it from there and now we have to figure out where it comes from, then its assumption is that this is not stronger. Maybe he only wanted a source? What? It’s stronger, just there wasn’t a source for it. If it’s stronger, then you don’t need a source if it’s stronger, because all the more so from a majority present before us. After all, it’s stronger. If with a majority present before us—the weaker one—the Torah says to follow it, then with a majority not present before us—which is stronger—all the more so. No source needed. If you need a source, that means you can’t derive one from the other. Why? Apparently because the majority not present before us isn’t stronger. Maybe you don’t need a source, but still to clarify where it comes from. Fine, so that was my comment in the previous class. But I’m saying: Rabbi Shimon Shkop argues that because they look for a source and don’t succeed in deriving it from a majority present before us, you see that it isn’t a stronger majority. According to the Talmud it comes out different.

Okay, so that was the conclusion at the end of the previous class: that the difference between these two kinds of majority is not a difference in strength but a difference in kind. A majority present before us and a majority not present before us are two different kinds, and not necessarily one stronger or weaker than the other. But before that I asked: what is the logical basis for saying that a majority not present before us is stronger? A majority present before us—it seems to me the intuition, and that’s what also comes out from the Talmud and the medieval authorities, is that it’s before us, so it somehow imposes itself on us more. It’s obvious; we see it with our own eyes. The other thing is more like a kind of impression about the world in general, so maybe people see that as weaker, although even that isn’t clear, and we’ll come back to it.

But before that I asked: what is the logic behind Maimonides’ approach, that a majority not present before us is stronger? So I said—I brought that example of David Levy in the Likud central committee, now we’re really in current affairs—and I said that with a majority not present before us, every item that comes before us we decide about according to the majority. So our assumption is basically that all items in the world have the character of the majority. That’s not really true, but that’s our legal assumption. I said that if David Levy has thirty percent in the center, let’s say—thirty percent of the people are his, and the other seventy percent are others—and now he wants representation in the party institutions, then for every executive role they hold a vote and the majority determines who gets the role, so it comes out that one hundred percent of the executive roles go to the majority of the seventy percent, right? Because on every vote the majority of the seventy will overcome the minority of the thirty. So what comes out is that even though the majority is only seventy percent, or even just fifty-one percent, the result is one hundred percent. Meaning, they get one hundred percent of the power. And that’s basically an analogy for what happens with a majority not present before us. With a majority not present before us, say I say most women are not barren in that sense. Every woman who comes before me, I’ll assume she is not barren in that sense, even though it’s clear that in the world there are also women who are. But I have no concrete information, so every woman who comes before me I basically assume belongs to the majority. With a majority present before us, I know: before me there are women, or judges, or whoever it may be, who are of the minority type, who do not belong to the majority. And so there I won’t necessarily apply that to everyone.

I brought the approach of Rashba and Ra’ah. There are disputes among the medieval authorities that when you take pieces of prohibited food mixed into permitted food, you have to leave some over, and for example not eat the last two pieces. Why? Because with the last two there is no longer a majority. Meaning, you can’t ignore the fact that there is a minority of pieces that belong to the minority, that is, that are non-kosher, and therefore you can’t assume of every piece that it belongs to the majority. You assume that the majority belongs to the majority. So the advantage of a majority not present before us over a majority present before us is maybe because it serves us for the entire legal conclusion. It’s not a statistical advantage; rather, the legal conclusion from it is stronger than the legal conclusion from a majority present before us. Because the legal conclusion applies to everything. But no, here it’s because I have a deficiency, I have no choice, I can’t check every… Fine, that’s why I’m saying: its force is not statistical force, but legal force. On the legal or halakhic level, from a majority not present before us I derive a one-hundred-percent conclusion, not an eighty-percent conclusion.

Now I want to sharpen this a little more, and we’ll come back to it when we get to “we do not follow the majority in monetary matters” in one of the coming classes. There I think this distinction will be significant, but I’ll already mention something here. There is a dispute between Rav and Shmuel on the question whether in monetary law we follow the majority. Shmuel says we do not follow the majority in monetary matters; Rav says we do. In several places, in Bava Kamma and on page 27 and elsewhere. Practically, Jewish law rules like Shmuel, that we do not follow the majority in monetary matters, because the law follows Shmuel in civil law, and in monetary law we rule like Shmuel.

Now there are places where it would seem that we clearly do follow the majority. For example, the Talmud at the beginning of Bava Batra discusses repayment within the term. A person sues me, saying that I borrowed money from him, and I say that it was… The loan was on Sunday, the loan was for thirty days, an ordinary loan is thirty days. He comes to me after a few days and says, where’s my money? And I say, what do you want, I already paid you back. So the Talmud says I’m not believed. Why am I not believed? Because there is a presumption that a person does not repay within the term. Meaning, a person who has the money can hold onto it for thirty days; he doesn’t get rid of it after a few days. Usually you keep the money as long as you can. And by force of that presumption—notice—he is the claimant, the money is with me, I am the defendant, I am the current holder. The burden of proof is on him. Usually the Torah says “by the testimony of two witnesses a matter shall stand”—you need two witnesses to extract money, right? But here the Talmud says no, this presumption is enough to extract money: there is a presumption that a person does not repay within the term.

Now this is a question already raised by several later authorities, and students have asked me about it more than once. What do you mean? After all, this “presumption that a person does not repay within the term” is a type of majority. They call it a presumption, but what is a presumption? It means this is how the world operates. Most of the time people don’t repay a debt before the deadline. What’s the difference between that and, say, the presumption that a woman is not barren in that sense? Or the presumption that—I don’t know—any trait you want, that there is a presumption about human beings that they react violently when frustrated? I’m just saying. What is a presumption? It’s the expression of some statistic. You ran the statistic, found that this is the majority, and you say… Okay, so there is a presumption that this is the state of affairs. Why is that not called following the majority? Seemingly here we are extracting money on the basis of a majority, but the law is like Shmuel that we do not follow the majority in monetary matters. This presumption is about behavior, right? Okay, and with majority too, the dispute between Rav and Shmuel is also about behavior. About why people buy oxen. That’s really the original dispute. But a presumption is something more like… Right, but the Talmud doesn’t make that distinction. But the Talmud doesn’t make that distinction. And behavior and the nature of the world are the same thing in the Talmud. No, no, so maybe they called it a presumption but didn’t call it a presumption… Right, every presumption. But this isn’t an original status quo presumption; it’s clearly a clarifying presumption. Yes, but like the presumption that the ritual bath has the required amount—we measured it… No, that’s an original status quo presumption. Yes, same thing here: I knew that at a certain point he owed me the money, so I continue with that same presumption that he still owes me until it becomes clear that the situation changed. No, you’re saying in general he’s the current holder. If you claim “I paid,” then you’re the current holder regardless. So even if you say “I paid after the term,” who says that? So do I have to prove it? After all, the only presumption is that I owed; now I want to claim that I paid. So why do we need this point that paying within the term is illogical? If I paid after the term, after thirty days, that’s a change in the situation. Why? Why? After all, I owed—so why shouldn’t I have to prove it? Right, that’s the dispute whether one who lends to his fellow in the presence of witnesses must be repaid in the presence of witnesses or not. If I must repay in front of witnesses, then I’m indeed not believed to say “I paid.” But the law is that you do not have to repay in front of witnesses.

In any case, I think the point is this. Take the dispute between Rav and Shmuel: a person bought an ox and went to plow his field with it, and the animal dropped dead. It died. So he goes to the seller and says, what kind of ox did you sell me? An ox worth nothing—it was sick or whatever, it died on the spot. The seller says, I thought you bought the ox for slaughter. An ox for slaughter doesn’t have to survive long; take it and slaughter it, who cares. Or it was a goring ox—not that it died; in that case we’re talking about a goring ox, okay? What do you care if it’s a goring ox? You slaughter it and that’s it. He bought an ox and says, yes, but I bought an ox for plowing, not for slaughter. So the Talmud says that in the end the dispute is about whether we follow the majority in monetary law. Most people buy oxen for plowing and not for slaughter, okay? And therefore the question is whether we follow the majority in monetary matters or not. That’s with regard to a majority of behavior. Here too it’s behavior—why people buy oxen. It’s not the nature of the world; it’s not some trait of the world itself. Or “most women are not barren in that sense,” like the majority I mentioned earlier. All those majorities, by the way, are majorities not present before us. They are majorities not present before us because they’re not talking about a concrete group standing before me, but rather about how the world behaves in general.

But what I want to point out here is that even within a majority not present before us, there is a distinction between two kinds of majority. There’s a majority like “most women are not barren in that sense” or “most people buy oxen for plowing and not for slaughter.” If someone comes and says, “I bought an ox for slaughter,” would that strike us as strange? Would we demand an explanation from him—why did you do that? People buy oxen for plowing, what do you mean? What do you mean you bought an ox for slaughter? Who ever heard of such a thing? Obviously not. People do buy oxen for slaughter. True, usually the nature of the world is such that more oxen are needed for plowing than for slaughter. But if a person comes and says, “I bought it for slaughter,” he has not said anything strange. Fine, okay, so he belongs to that segment that nevertheless buys oxen for slaughter and not for plowing, right?

But if a person comes and says, “I repaid the debt within the term,” this is not a neutral majority/minority situation. Here he is telling us something strange. We’ll ask him, wait a second—why did you do that? After all, you have money you can hold onto for another month. Why repay within the term? Why did you do that? What’s the logic? A normal person doesn’t do that. Okay? So in reality, what case is this—he comes to him when? Within the period? Within the period. And why is he coming? He still has time to wait. He wants the money, what do you mean? But he doesn’t have to give it back. Correct, he doesn’t have to. But he volunteered to pay it back—that’s what he claims: “I really paid.” He wasn’t obligated. He could tell him, come back in another two weeks, or come back when the month is over, right? But he didn’t say that. He said, “I paid.” Okay? He says that he paid. Now the question is whether he is believed or not.

What if he comes at the end of the term and says, “I paid two weeks ago”? Then he has a migo. That’s the next case in the Talmud. If he comes after the end of the term and says, “I paid within the term,” he has a migo, because he could have said, “I paid after the term.” But that’s a complication in its own right. And if he says “I paid after the term,” does that work? What? “I paid after the term”—does that work? That depends on the dispute whether one who lends to his fellow in the presence of witnesses must be repaid in the presence of witnesses. Meaning, if you lent me money in front of witnesses, the question is whether I have to bring witnesses that I repaid you. In practice you don’t need to bring witnesses, and then he is believed, yes.

I don’t think it’s all that strange, because if for example money happened to come his way, he says: I don’t want to hold onto it, I’m returning it. Fine, that’s a dispute about reality. What difference does it make? The Talmud says that this is the strange case. Okay? A person doesn’t part with money. We’re used today to the fact that in our world there is interest. You can call it by all sorts of names, but there is interest—investment permit and this and that, right? When there is interest, a person has a reason to pay early. If he has the money, he doesn’t want interest to accumulate, so he pays early. In a world without interest, that’s unreasonable. If I owe you money, and I have the money, it costs me nothing to hold onto it another month or another two months. Why would I give it to you now? I can do business with it and earn more money. So people don’t earn? Of course they earn. No, I’m talking about doing business, not interest. It’s a world of commerce, not just moving money around. There may be no interest, but money has value. You can make use of it. That’s where interest comes from. Why do people pay interest? Because money can be used. It’s the other way around. It’s not that money has value because people charge interest. People charge interest because it has value.

So the claim is that with majority, there is a difference between “most people buy an ox for plowing” and “most women are not barren in that sense,” or all those majorities of the nature of the world. When a woman comes and turns out to be barren in that sense, that isn’t strange. There are such women. In the minority. Yes, there are such women; we know there are such women. There’s nothing strange here. We wouldn’t say to ourselves: wait, impossible, how can that be? How can she tell me that? It’s not plausible. Why not plausible? What’s the problem? Or a person says: I bought an ox for slaughter and not for plowing. We don’t say to him: wait, but ninety percent of people buy oxen for plowing—how can you buy one for slaughter? Don’t you know there are people who buy oxen for slaughter? So true, that’s only ten percent, but there is nothing strange about it. The statistics say it’s only ten percent. But when a person says, “I repaid within the term,” that is strange. What’s the difference?

In the Talmud in Bava Batra, where a person is sued and he says, “I repaid within the term,” there is evidence against him. Because most people do not repay within the term. But this is not a statistical majority; rather, there is a reason why people do not repay within the term. It’s not logical to repay within the term. When you tell me “I repaid within the term,” you’re saying something illogical. Bring evidence. There is evidence against you. But if you tell me “I belong to the minority of women who are barren in that sense,” okay—do I have evidence against you? There is no evidence against you whatsoever. There are such women. There is nothing implausible here. Why aren’t you…? If I tell you I’m six foot five. “Impossible, most people are shorter than that.” What do you mean impossible? Some people are and some people aren’t; I belong to the minority that is. Do I need to bring evidence? Did I say something implausible? Is there evidence against me? Absolutely not. No evidence against me whatsoever. I belong to the minority because that’s what I am—what can I do?

So that kind of majority, where there is a rationale behind it such that it’s implausible to belong to the minority—that is the majority that does extract money. That is the majority called a presumption. “There is a presumption that a person does not repay within the term” means: it’s just not plausible that you repaid within the term. Again, that doesn’t mean it never happens. There are here and there people who repay within the term. It doesn’t mean it never occurs. But it does mean there is a presumption against you because it’s not plausible. You need to explain yourself or justify why you nevertheless did it. As opposed to the majority “most women are not barren in that sense”—a woman who is barren in that sense does not need excuses. She belongs to the minority that is. Therefore there is no evidence against her when she makes that claim, okay?

So within a majority not present before us—both of these, by the way, are majorities not present before us—within that category there are two types. One type is just a majority: this is how the world is, but not because there is some reason. Does the Talmud distinguish between them? I claim yes, because by force of this latter majority we extract money—“there is a presumption that a person does not repay within the term”—whereas an ordinary majority does not extract money. What about the presumption “better to sit as two than to sit alone”? “Better to sit as two” means that a woman wants to remain in a marriage, so is it implausible that a woman wants to leave or something? Why is that a presumption? There, it is in her nature. Since it is in women’s nature that they want a partnership. In their nature. That is the Talmud’s assumption—leave me alone right now with questions of chauvinism. I mean, men also want partnership. But what the Talmud assumes is that this is not some accidental thing. You can say something accidental—people are like this, there are women who are barren in that sense. No. The nature of a woman is that she wants partnership. If you say you don’t want partnership, that’s strange. You need to explain why.

Yes. Rabbi Soloveitchik claimed that this was something… No, he claimed it was a law given to Moses at Sinai, that it came from Sinai, and therefore you can’t touch it. I already told you, that is totally implausible. I don’t believe he believed it himself. But what I’m saying is not a claim about where it comes from, whether from Sinai or not. I’m saying it makes sense in terms of how the world functions, because the laws of nature—in this case psychological nature—basically dictate the matter. It’s not some thing people just choose, or some random fact. But in the minority, there is nothing strange about saying you belong to the minority.

Now I want to move on. I want to sharpen this point a bit more, because in fact a majority present before us and a majority not present before us differ in a way very similar to what I just described. What I described just now was two kinds of majority not present before us. “Most women are not barren in that sense” is not present before us, and “most people do not repay within the term”—that too is a majority not present before us. I am not talking about some concrete group of people where I know these repaid within the term and those after the term. Rather, I know that the world operates in a certain way. That’s a behavioral majority and a majority of reality. Yes, but no, we’re not making a distinction between them. The Talmud doesn’t distinguish between them. A majority of behavior and a majority of reality—“most women are not barren in that sense” is a majority of reality, and even there there’s nothing strange about belonging to the minority. Right, that’s what I’m saying. No, not with plowing either. Most people buy for plowing; I bought for slaughter. Okay, so what? That’s still a majority of reality and not only a majority of behavior. Behavior can be strange, and therefore that’s the compelling majority. Buying for slaughter or for plowing—isn’t that behavior? Why not? I decided to do this or that. Why isn’t that behavior? It is behavior. If you define that anything of this sort is not behavior, then what you’re saying is tautological.

But what claim does it make that when he says “I bought an ox for slaughter,” it bothers the other side? In that example specifically… No, that matters. He comes to the seller with complaints: “What did you sell me, a goring ox?” And the seller tells him: “You bought an ox for slaughter, so what do you care that it gores?” But you’re saying that he is claiming the minority position—yes, but I’m one who buys an ox for slaughter. Right. What obligation does that create for the other side? Exactly. That’s why they say we do not follow the majority in monetary law in that case, because it’s that type of majority where there is no problem at all with belonging to the minority. It’s not strange when I say I belong to the minority. Therefore in that case we do not follow the majority in monetary law. And it’s also not strange and it doesn’t create a problem with respect to the other side. I bought it for slaughter—why should that bother anyone? Here, when he wants to rescind the sale… He wants to rescind the sale—what do you mean? If you sold me a goring ox, take it back and give me my money. And the seller says, what do you mean? I sold it for slaughter; what do you want? So you’re claiming—he is claiming—that I bought an ox for slaughter, right? There are people who claim that. What is he claiming toward the one who sold it to him? What? That the ox was for slaughtering? What? What claim is he making against the seller? What? He says he bought it for plowing. No, I’m asking: if he comes with the minority claim. I come with the minority claim. I’m claiming that he belongs to the minority, that he bought it for slaughter. No, he claims he bought it for plowing.

So this distinction—and that’s exactly why it’s so confusing—is also really the distinction between a majority present before us and one not present before us. Because a majority present before us is a majority that doesn’t belong to the nature of the world at all. I have a majority of stores, right? Nine are kosher and one is non-kosher. That’s contingent. In this city, that’s the distribution. In another city it may be the opposite—nine non-kosher stores and one kosher, right? It depends on the people, on the residents, on the market, okay? So there is nothing in the nature of the world saying that selling non-kosher meat is strange. It’s not strange. If there are customers, I sell non-kosher meat. Most shopkeepers there sell kosher meat. So a majority present before us is by its essence a majority that has nothing to do with the nature of the world. You understand? Because if it did belong to the nature of the world, it wouldn’t be present before us; it would be true everywhere. A majority present before us is a contingent majority. I know specifically about this group or this place that I have certain information. So that information says there’s a majority that do this rather than that. A majority not present before us is by its essence not about some particular place. A majority not present before us is about how the world behaves everywhere, okay?

So therefore, there really is room for uncertainty, for example—one second—if most people buy for plowing and not for slaughter. If there are places where they don’t—where the land isn’t suitable for plowing at all, they eat meat, but what can they do with oxen? It’s all rocks, the whole terrain is stone. Then there won’t be a majority of people buying for plowing, right? So in fact that too depends on place. And now there really is room to wonder, according to this, how much that is really a majority not present before us. But I’m saying that on the principled level, even if you say that all over the world most people buy for plowing, still it is a majority not present before us, but it does not arise from the nature of the world. It does not arise from the nature of the world. There is nothing in the nature of the world that causes that result. People could just as well have done the opposite. If they had chosen to be industrialists rather than farmers, they would buy for slaughter and not for plowing. It’s a matter of human decision, not something built into the laws of nature. By contrast, “most women are not barren in that sense”—in a woman’s physiology, it is clear that a healthy woman is not barren in that sense. Now true, sometimes there are women who are. But from my knowledge of female physiology I can assume that this is not what usually happens, okay? So there is something in the nature of the world producing this majority. With a majority not present before us, that can happen. With a majority present before us, it never does. A majority present before us is always something incidental, okay? And the fact that today people no longer buy for plowing proves the point? Yes, indeed. With a majority present before us… So we’re back to the question what is statistics and what is not; in a moment we’ll see that there are arguments both ways.

So continuing the question: what is the size of the sample? No, no, there is no sample. It’s not a matter of sample size. It could be a sample of only ten things in front of me, but if it’s a sample of a hundred thousand things in front of me it’s more… It better reflects what happens in the world, you mean. You’re right statistically: the larger your sample, the more valid the generalization you make on its basis. But that is not the difference between a majority present before us and one not present before us. No connection. A majority present before us can concern a hundred thousand items and can concern ten items, and a majority not present before us can also concern ten items. So the difference is not sample size; the difference is the type of majority. I’ll get to that in a moment and I hope it’ll become clearer.

What I want to say for now is that it is very tempting to say that the difference between a majority present before us and one not present before us is really the distinction I described earlier between two kinds of majority. A majority present before us is a majority where belonging to the minority is not strange. Not terribly strange. There is one non-kosher shop and nine kosher shops, and I found a piece of meat. Someone claims it belongs to the non-kosher shop. There is nothing strange about that. There are pieces of meat that belong to the non-kosher shop. There is nothing in the nature of the meat making it kosher. If there were something in the nature of the meat causing it to be kosher, then that would be a strange claim. But here it is contingent—this is simply the distribution of shops in this place. By contrast, with a majority not present before us, I am not drawing on some sample in front of me. Rather, I’m saying there is a claim about the world—how the world behaves. So in such a situation the intuition is that there really is something in the character of the world causing things to happen this way.

But—and here I’m bringing you back to what I said earlier—the distinction I made earlier was entirely within the category of a majority not present before us. There are two types of majority not present before us. Not every majority not present before us is what I described here. There is a majority not present before us rooted in the nature of the world: most women are not barren in that sense. There is a majority not present before us rooted in human behavior: people choose slaughter or choose plowing. That is not a majority rooted in the nature of the world, in the sense that there is no worldly cause producing that result. That’s where I distinguished between majority and presumption within this whole area. Therefore it is related to the distinction between a majority present before us and one not present before us, but it is not identical to it. That is, a majority present before us is always of the type that does not belong to the nature of the world. A majority not present before us can be of that type or of the other type.

Can I use one inside the other? If I have a piece of meat before three judges, and two say: most shops are kosher, so this piece is kosher; and the third judge says, I know from some other claim… then is that a majority present before us on top of a majority present before us? Why isn’t that two different types? No, no—present before us. The judges too are present before us. No, he says: I know that most shops are kosher. So “most shops are kosher” is a majority present before us, and the majority of judges is also a majority present before us. So yes, what you’re saying is a majority present before us on top of a majority present before us. But there could also be a dispute about a majority not present before us. If they argue whether most people buy for slaughter or not, then here you have a dispute among judges—which is a majority present before us—about a topic involving a majority not present before us. Yes, such a thing is possible. Meaning, a style of butchering in the Talmud—the style in which the meat was cut indicates, three-cornered cuts and all those things, yes. In any case, this is a little related to what we discussed one of the previous times.

Question: does it matter whether the majority not present before us is one in a billion or seventy percent? No—fifty-one percent? Fifty point zero one for this whole discussion? No. The decisors do speak about an evident majority and an evident minority, so yes, they make some halakhic distinctions. But from the basic law of majority itself, it doesn’t matter. Fifty plus a tiny fraction is enough. That’s the difference between a majority present before us and one not present before us.

Now let’s go back into the court. Up to now this was introduction. What happens in court? The Talmud says that this is the source for a majority present before us: if there is a dispute among the judges, we follow the majority, right? The Talmud itself brings the verse “follow the majority” as the source for the law of majority. What kind of majority is that? The Talmud says it is a majority present before us, right? Look at Sefer HaChinukh, commandment 78. I think I already mentioned it: the commandment to incline after the many. He says: to incline after the many. This applies when a dispute falls out among the sages in any matter of Torah law, and likewise in a specific legal case—meaning, a case between Reuven and Shimon, by way of example, and so on—to incline after the majority always, as it says, “follow the majority.” And choosing the majority is according to what is comparable, namely when the two disputing groups are equal in Torah wisdom. If they are all Torah scholars more or less at the same level, the judges, then we go after the majority. For we do not say that a small group of sages will outweigh a large group of ignoramuses, even if they are as numerous as those who left Egypt. Right—we count heads, not legs; we already discussed that. But where wisdom is equal or approximately equal—meaning more or less the same level—the Torah informs us that the greater number of opinions will always agree with the truth more than the minority. And whether, in the listener’s view, they agree with the truth or not, justice requires that we not depart from the majority. Okay?

What is he really saying? He says: why do we follow the majority in court? Because usually the majority gets closer to the truth. There—what the Torah… Yes, but these are not masses, these are expert judges. A little different, but never mind. The Torah says that the majority of judges are more likely to hit the truth than the minority. Someone once asked me—maybe we’ll discuss this later—suppose a skilled judge has, say, a seventy percent chance of getting the truth right, okay? Now if I want two judges to get the truth right, the product of the probabilities is forty-nine percent. So that means the more judges there are in agreement, the less… the less chance they’re right, right? One judge has seventy percent; two judges have forty-nine percent. The opposite. Huh? That’s the probability they won’t get the truth right. Yes, the probability they won’t get it right. Of course that’s mistaken, but for our purposes, what the Chinukh says is that following the majority is based on some assumption that the majority is more likely to hit the truth. Okay? That’s his assumption.

The conclusion from that is that if, for example, there is a majority of judges—because in the end following the majority is an indication; it is not a self-standing rule. It’s our way of getting as close as possible to the truth. In a place where that won’t lead us close to the truth, then no. Then we’ll follow the majority of wisdom and not the majority of judges—the majority of heads and not of legs. So that’s like Beit Shammai then, no? What? What we said? Right—we once discussed that this seems to be a dispute between Beit Shammai and Beit Hillel, but it comes out oddly, because here the Minchat Chinukh brings this and there is a large dispute, and in practice Jewish law does not follow the Chinukh here. And all of this is said after the law was already fixed like Beit Hillel. Seemingly, if this is a dispute between Beit Hillel and Beit Shammai, then how can medieval authorities disagree about it? It is already decided. Fine, I already remarked on that when we discussed it then.

Just see one more comment on the continuation. “And among the roots of this commandment is that we were commanded in it to strengthen the preservation of our religion. For if we had been commanded to uphold the Torah according to whatever each person could attain of the true intent of its meaning, then every Jew would say: my reasoning tells me that the true understanding of this matter is such-and-such. And even if the whole world says the opposite, he would have no permission to act contrary to what he regards as truth. And from this destruction would result, and the Torah would become many Torahs. For each one would judge according to the poverty of his understanding. But now that we have been explicitly commanded to accept the view of the majority of sages, there is one Torah for all of us, and this is a great source of our preservation, and we are not to depart from their view,” and so on. What is he saying? He says that the reason we follow the majority is to enable religious society to function. Because if everyone does his own thing, and in every dispute we do not decide according to the majority, you can’t operate like that. Torah becomes two Torahs.

Now that’s strange. Before, you gave me a very good reason why to follow the majority: because the majority is correct. So why do I now need technical explanations saying that this depends more on peace than on truth? Right? The first explanation bases it on truth. The majority is more correct. The second explanation says: no, there won’t be peace; you won’t be able to run a society this way unless you follow the majority. So what is it? Is the basis truth or peace? The answer, I think—and we discussed this once too—is that even if the truth is with the majority, that still doesn’t necessarily mean I personally have to act that way. If I think like the minority, even if intellectually I understand that the majority is probably right, still my conclusion is that in this particular case the minority is right, okay? So in principle I would go with my own view. I would go with the minority. What do I care that the majority is against me? The Torah says no: we follow the majority. Why? A: because the majority is right. But that’s not enough. B: even though the majority is right, I could still say: fine, the majority is right from the chair of the UN secretary-general. But when I am in the actual case and I think otherwise, I’ll follow my own view. The Torah says yes, but that will create chaos. Therefore we have to establish one opinion that everyone accepts. Which opinion is that? The majority opinion. Why? Because the majority is usually right.

The need to establish one opinion and not leave everyone with his own Torah—that is for the sake of peace. But which path should we choose? Specifically the majority opinion? That is because the majority is more likely to hit the truth, okay? Just as an aside… there are all kinds of cases where the rabbi in his own place can rule like Galileo or something and the whole world disagrees with him. Right, right. Only if they sat as a court. We discussed this in previous classes. Galileo or whatever—where the rabbi in one place could say poultry with milk is permitted. Right, right. Or the… We talked about this last time, or the time before, that when they sit together and deliberate and exchange views, then there is a rule that you have to follow the majority, and the minority has to submit its opinion to the majority. Because once you sat in judgment, in court, and there is a majority, the minority also signs the ruling. Not only that, he is even forbidden to say that he belongs to the minority. “Do not go as a talebearer among your people,” says the Talmud. But where there are decisors spread around the world who say, I think differently, and so what if the majority disagrees with me? If they had heard me, I would have convinced them all. Who says not? Therefore I… So I’m saying, this enters into the issue called “one who errs concerning the commandment to heed the words of the sages.” The Talmud at the beginning of Horayot page 2 brings a case where a person should not listen to the majority if it is clear to him they are wrong, and listening to them is called “one who errs concerning the commandment to heed the words of the sages.” There are huge disputes about this, because on the one hand it says “about the right that they tell you is left and the left that they tell you is right.” I won’t enter that now, but it’s a complicated passage.

In any case, that’s what the Chinukh says. On this, Rabbi Shimon Shkop in Sha’arei Yosher, at the beginning of Gate 3, says the following. He begins with the Chullin passage: from where do we know majority, present before us and not present before us? Then he brings Maimonides, that a majority not present before us is stronger. He challenges him from the Talmud—how can that be? And then he says this: “And it seems to me, in my poverty, to explain this matter as follows. Truly, in the case of nine shops selling slaughtered meat and one selling carrion, which we derive from the verse ‘follow the majority,’ if we say that this is because it clarifies and determines the actual reality, it is very difficult to understand what similarity there is between the matter of the nine shops and the majority of judges. For in the case of judges it makes sense to say that when the majority of judges converge on one opinion, it is more likely that they have hit the law than the minority that disagrees, as Sefer HaChinukh wrote in commandment 78. But in the case of nine shops, if we say that according to our reasoning it is more likely in reality that the piece of meat found came from the nine slaughtered-meat shops, this clarification is not similar to the reasoning that a majority converging on one opinion is right. And further, this matter, of saying that because the majority disagree with the individual they are more likely to be aligned with the truth, is itself a majority not present before us, like most animals are kosher and most women are not barren in that sense—and that is what is more fitting to be so rather than the reverse.”

He makes two claims. The Talmud links the majority among judges to the majority among shops—it’s a majority present before us and it learns it from judges. So the Talmud learns shops from judges. He says: why? There is no connection between these two things. First, with a majority of judges, as the Chinukh explains, we follow the majority because there is reason to say the majority is correct. In the case of the nine shops, so what? Who told you to follow the majority? Why? Who says that the majority of shops determines the nature of this piece? In a moment I’ll clarify this a bit more. I don’t understand the claim. One second, in a moment I’ll clarify. He says no—it’s not a clarifying majority. That’s his first claim.

The second claim is stronger. He wants to say that a majority among judges is actually a majority not present before us. Why? What is a majority present before us? A majority present before us means I have before me a group—for example shops—and I know that nine of them are kosher and one is non-kosher. I have a piece of meat and I ask: from which shop did it come? Or I ask about some particular shop what it is, whether it is kosher or non-kosher. So I have complete information about a very specific group before me, and the item I’m interested in is one from within this group. I am only asking whether it belongs to the majority group or the minority group. That is a majority present before us. That is always how a majority present before us works. With a majority not present before us, it doesn’t work like that.

Or take court—it doesn’t work that way. In court I have three judges before me, right? Now what—one judge walks out and I ask whether he belongs to the majority group or the minority group? That would be the rule of following the majority in a majority present before us, right? I have three judges before me; two said liable, one said exempt. Now a judge comes out. I ask myself whether he belongs to the group of the two or the group of the one. That would be similar to the majority of shops, right? I would say he belongs to the majority group and not the minority group. But the question in court is not that. I am not asking about the identity of a specific judge. I’m asking what the halakhic truth is. The halakhic truth is one of the three judges’ views, and I am asking to which judge… What does that have to do with it? It’s not similar at all.

So what is it then? According to the Chinukh it is a majority not present before us. Why? Because what is really the group, the event-space, the group within which I’m discussing majority and minority? It is all the judges in the world, all the panels in the world that were divided in opinion, say two against one. And I claim that in that larger group of cases and judges and panels, in most cases the two were correct. And now I say: the panel before me too is a case of two against one, so here too I will claim that the majority is right and not the minority. That is plainly a majority not present before us. So what if the judges are before us? Like the piece of meat, and like the woman before me whom I’m judging whether she is barren in that sense or not—she too is before me. The question is whether the majority and minority relative to which I am classifying her—whether they are before me. Not whether the object I am discussing is before me. The object is always before me.

That is a majority not present before us of the first type. Not present. It is a majority not present before us of the first type. So you said that majority here is in reality. Yes, but there is a reason there why the majority is right, because there really is a statistical calculation that the majority is right. That’s reality. Fine, I don’t know what first type and second type mean. But everything you defined. Yes, I just don’t remember which was first and which second, but you said this is reality, this is how it is, and not behavior. Okay, yes, this is not behavior, right. It’s not behavior, right. It is just reality, and even reality where the opposite is strange. Meaning, to say that the minority happened to be right is strange; that requires explanation. It happens, but it requires explanation. I understand.

There’s some barrier you’re putting in front of us. If each judge here writes his opinion on a paper—liable, liable, exempt—and the papers come out and the judges leave, and you say, okay, what is the ruling? That’s like shops, there really is… Why? There are the papers. No, the fact that the papers are before me doesn’t matter. I’m not asking the question whether there was a paper here before me, and whether it belongs to the group of two papers or the group of one paper. That would be like shops. Listen, listen—that would be like shops. But if I ask: I have three papers, and now I ask what the law will be, I’m not asking what this paper is or what that paper is. I’m asking what the law will be. I have two papers of one kind, and what do I care about the papers? I’m asking now: what is the law? So what does the Chinukh say? Usually two papers are more right than one. What is this “usually”? What is that group—the large group versus the small group? It is the group of all panels that ever found themselves in dispute in the world. That is the group. And that group is not before me. That is a majority not present before us. Unequivocally a majority not present before us. Unequivocally.

In the case of nine shops and one shop, right? That’s a majority present before us. So he says “usually in the world,” okay, if I have a thousand and ten… No, it has nothing to do with “usually in the world.” Here in this city I have nine kosher shops and one non-kosher one. If I ask what this shop is, it belongs to the majority. Not because there is a majority in the world, but because here in this city there are nine kosher shops. There is no need to invoke the world at all—that is exactly the point. This is a majority present before us, and the Minchat Chinukh is completely right.

Now he continues and says more than that. He wants to claim that when we come to judge in the case of nine shops and determine that the separated meat came from the nine shops that sell slaughtered meat because among the greater number it is more likely for this event to happen—this clarification is not true. What? It’s not a clarifying majority at all. Why? “For with respect to each shop among these ten shops we can decide that it did not come from it, because there are nine others against it.” About every shop you want to posit—did this piece come from that shop?—after all there are nine other shops, the majority, so it is likely that it did not come from that shop. So for every single shop you can conclude that it did not come from that shop. So this majority in fact clarifies nothing. Then how did the Talmud learn a majority present before us from…? That’s his question? Yes, yes, that is exactly his question. And then he wants to make the following argument. He says that the similarity between both shops and judges is not a clarifying majority. He disagrees with the Chinukh. It is not a clarifying majority. Rather, he says, we have to look at the sides—the possible grounds—for deciding this way or that. The theoretical, intellectual possibilities.

So I say: shops. I have a piece of meat that separated from the shops. I ask: what is this piece, kosher or non-kosher? Because I don’t really care which shop it came from. Which shop it came from is only a means of clarifying whether it is kosher or non-kosher. What interests me is whether I can eat it, okay? So I say: I have ten possibilities. There is a possibility that it came from shop A, a possibility that it came from shop B, right? Possibilities. Grounds. There are ten possibilities. The majority of the possibilities are that it came from a kosher shop, right? Each such possibility casts itself, as it were, upon the piece; it tries to pull the piece toward it, trying to make me conclude that the piece is kosher. I have nine possibilities that lead me to think the piece is kosher, and one that leads me to think it is not. We follow the majority of the possibilities. This is not statistics, he says; it is law. It is a law that if there are ten grounds, follow the majority. He says the same exists with judges. With judges too, when I ask what the law is, what are my grounds? I, as someone who is not one of the judges but from the outside: Judge A said this is the law, so I have one ground for saying this is the law, right? Judge B says this is the law, so I have another ground for saying this is the law. But Judge C disagrees and says that the law is that. So I have two grounds for saying this is the law and one ground for saying that is the law. So this is similar to the shops. Neither of them clarifies. Again, this is not the Chinukh. The Chinukh explained that I go after the majority because usually the majority is right. He claims that cannot be, because that would make it a majority not present before us. Therefore he says no—the explanation in judges is different, and then you can also learn shops from judges. Both of them are really law and not probability. And in that sense they really are similar. The Torah’s law tells us that if we have different grounds for deciding a question, we go after the majority of the grounds.

This is somewhat similar to what Rashba writes. Rashba explains that in a double doubt we rule leniently even in a Torah-level doubt, because there is a majority of grounds for leniency. There is one doubt whether something is permitted or forbidden, and even on the side that says it’s forbidden, there is another side saying it’s permitted and another saying it’s forbidden. Fine? So there are basically three sides to forbid—never mind—three sides to forbid and one side to permit. So we follow the majority of the sides. Rashba understands a double doubt as based on majority. So again, these are simply possibilities leading me one way or another. You draw a binary tree and say: here it says permitted, here it says forbidden, forbidden, forbidden, permitted. I count at the bottom of the tree how many places say forbidden and how many say permitted, and I follow the majority of the labels.

And that answers the Talmud’s difficulty, that it learned a majority present before us from… He brought the Chinukh, who explained it in a way that makes it a majority not present before us, because usually the majority is right. And to that he objects and says: that doesn’t fit the Talmud, because according to the Chinukh, how did the Talmud derive from that the case of the shops? The Talmud says it is a majority present before us. Right. Judges are a majority present before us. The Talmud says this is a majority present before us. And the Chinukh explains it in a way that makes it a majority not present before us. He says: that can’t be; the Chinukh is not logical. He proposes another explanation. It does not go by that reasoning that usually the majority is right, okay?

Fine, but really what? How will he explain the rule that if everything is fixed, if I enter the shop… No, no, leave fixed cases aside. We’ll get to fixed cases at some point, maybe. Even there there is some proposed explanation, but let’s leave that for later.

What I want now is to explain—and I don’t have all that much time left. First of all, it’s pretty clear that the Chinukh is right. I mean, what does it mean, “we follow the majority”? Ask anybody: usually the majority gets closer to the truth. Now of course that is not guaranteed, and sometimes the minority can be right. Certainly if there are differences or gaps in wisdom or halakhic skill, then it won’t work that way. But if I have to set a general rule and I go after the majority, I set that rule because usually the majority is right. And I spoke about this in the first classes when I opened this series. I said that majority in court is a majority whose purpose is to uncover the truth, unlike democratic majority whose purpose is to create the truth, to generate the truth. Okay? So that seems like the plain simple meaning; it’s very hard to deny that.

And therefore Rabbi Shimon Shkop too, when he starts, starts with that. He says: but this is difficult in the Talmud, it cannot be, so we need to offer his formal explanation with counting grounds and all sorts of things. I want to argue that the Chinukh is right, and that Rabbi Shimon Shkop is also right. Everyone is right. And the Shev Shema’teta is also right. And I want to explain.

Look, now I’m getting to statistics. When we ask what the relation is between majority and statistics, the first tendency is to say that a majority present before us is statistics. Why? Because with a majority present before us, I have a clearly defined population—ten people. I did statistics and saw that nine of them are of one type and one is of another type. Now one of them comes before me and I ask who he is. So the probability is nine-tenths that he belongs to the majority, right? So that’s statistics. A majority not present before us—I don’t have some defined group on which I performed statistics. How is a majority not present before us constructed? A majority not present before us is usually built on a generalization from a sample. You take a sample. Say you want to know that most women are not barren in that sense. You say: take the fifty women you know, look at them; say among them forty-something are not barren in that sense and maybe seven are. You say: assuming this sample is representative of all women in the world, I infer from this the rule called “most women are not barren in that sense.” And now I apply that rule to all the women in the world, assuming I checked a sample and that the sample is representative and I am allowed to generalize from that sample to the whole group, right?

But now notice what comes out. A majority not present before us, then, is really empirical at its foundation. Specifically a majority not present before us is empirical. What does empirical mean? You investigate a sample group, assume it is representative, meaning there is no bias or something of that kind, and then you infer a conclusion about the entire group—that is generalization. In a majority present before us, there is no possibility of generalizing from a sample. Let me show you. Look for example at the shops majority. I found a piece of meat lying in the market, and there are nine kosher shops and one non-kosher shop. Now they want to tell me that this piece is most likely kosher. Rabbi Shimon Shkop says this clarifies nothing—not true. I say not for his reason, but he is right. Not because he said that against each shop there are nine other shops—that’s a statistical mistake. But he is right in the basic claim. You will not succeed in setting up an experiment that tests this thesis. Where did you get this thesis from? This thesis is not a generalization based on experience. It isn’t. Try to design an experiment where you take a sample of lost pieces of meat and test whether they really came from the majority group of shops. Because that’s really what I need to check, right? How do you do that? After all, a piece that gets lost gets lost on its own. Nobody deliberately makes pieces get lost. If you do it deliberately, then it’s no longer randomly distributed; it will be worthless, because whichever piece you decide to lose is the one that will be lost. There’s no way to run an experiment here. You can’t make a sample of cases and see—in these five or ten or twenty cases, did the pieces usually come from the majority shops or the minority shops—and then decide from there what the general rule is in such cases. There is no such thing. There is no way here to generalize from a sample.

So what then? Then yes, it’s absurd in a way: the claim that this piece I found belongs to the majority group. It’s an a priori intuition. It is not an empirical result. It is not the result of observation, or empirical testing, or sampling and generalization. Rather, it is simply obvious to my reason that if most shops here are kosher and I have no other information, I would bet that this piece is kosher. But to tell you that this is the result of an experiment, of an empirical investigation, of a sample and generalization—absolutely not. It’s not a law of nature.

Now we understand much better why a majority not present before us is a law of nature, while a majority present before us has nothing to do with laws of nature at all. It is simply a collection of contingent cases, accidental reality. A majority present before us does not come from statistics; it is specifically non-statistical, contrary to what I said earlier. A majority not present before us is statistical, only the statistics are not performed on the whole group but on a sample from within it, and after I do statistics on the sample I generalize to the whole group.

Now if that really is the difference, then to what does the majority of judges belong according to the Chinukh? Completely to the category of a majority present before us, exactly like the shops. Why? Propose to me an experiment that would establish what you are saying: that usually the majority of judges are right. Can anyone suggest an experiment to test this? To take a sample of cases and see. There is no way. No one ever did such an experiment. There’s no way to do it. Because after all, how do I know whether the judges were right? If there were appeals? That doesn’t help. Who says the Supreme Court was right on appeal? That proves nothing. There were appeals, but who says the lower court or the higher court was right? You have no objective independent way of knowing what the reality was except by the evidence the judges themselves used. I have no way of checking the judges independently. The judges said this piece was non-kosher—let’s see whether they were right. How am I going to check? I have the evidence they had before them. I can decide whether they were right or wrong logically. I cannot test this by a sample and see.

Where was such an experiment effectively done? In the United States, when DNA evidence became admissible. The famous legal discussion. Once DNA was admissible as evidence, they began checking all sorts of people who were already sitting in prison. A lot of murderers were let free there—well, not murderers; rather, it turned out that many people who had not committed murder were imprisoned for murder. Why? Because it turned out that the courts had not been right. How did this become clear? Because we had an independent means of checking whether the judges had been right or not. But usually that is not the situation.

So where do we get this principle from, this assumption that usually the majority hits the truth? Really think about it: where do you derive that principle from, that assumption? It is an a priori assumption. An a priori assumption. We have no way to test it from experience. We could perhaps try to stage deliberate cases where we know what the truth is—to cook up a fake murder, bring it before a panel of judges, and see whether they decide there was a murder or not—and then try. But nobody ever did that. By the way, if they did that, it would become a majority not present before us. I’m not claiming it’s impossible to do. If they had done it, maybe it would be possible. If they had done it, then it turns into a majority not present before us. But so long as they have not done it, my trust in the majority opinion is the result of a priori reasoning. It is not the result of generalization from a sample. That is a majority present before us. It is exactly like the shops, exactly.

And therefore the Chinukh is right that when we follow the majority it is because probably the majority is right and not the minority. And Rabbi Shimon Shkop is also right that the nine shops and the majority of judges do not “clarify the truth,” in the sense that this is not statistical. In my view it does clarify the truth, but it is not statistical. It is not a scientific claim. It is an a priori intuition. It’s philosophy, not science. That is really the claim. A majority present before us is philosophy; a majority not present before us is science. That is the difference. And under this distinction there is no doubt that judges are exactly like shops. No question at all. It’s obvious.

And then everything works out. You don’t need all Rabbi Shimon Shkop’s gadgets or anything like that. But then it really turns out that the difference between… and this sheds new light on the whole passage in Chullin, where the Talmud speaks about a majority present before us and a majority not present before us. And it says that a majority present before us is learned from the verse. And what does the verse say? That we follow the majority because usually the majority is the truth. How do we know that? A priori reasoning. From where does a majority not present before us come? We have no source. What is a majority not present before us? A scientific generalization. Where do we know that the law of gravity is true from? Is there a verse about that? The Talmud looks for a verse for that and doesn’t find one. Right? Because that is a scientific generalization. We checked cases and generalized and found a general law. That is what the Talmud is looking for when it asks about a majority not present before us. The Talmud is looking for science “from the Torah, from where?” and it doesn’t find it. So it says, okay, Rashi says there at the end: we don’t find one. Fine. But obviously it’s true. We don’t find a source, but obviously it’s true.

So really the question is exactly the difference between rationalism and empiricism, or between philosophy and science. The Talmud learns that there is a source for philosophy—that one may use philosophy in the legal realm, a priori reasoning. But that one may use science in the legal realm—I don’t need a verse for that; that’s obvious. It’s like in every other area of life. We use it. Why wouldn’t we use it there too? Meaning, what lies behind the Talmud’s move in Chullin is really that ancient and great philosophical dispute between rationalists and empiricists. That is really the point. The rationalists are prepared to accept a majority present before us. The empiricists—those who want an experiment in order to verify the thesis—will not accept a majority present before us. A majority present before us is a fantasy from their point of view.

By the way, I had arguments with people, people who wouldn’t accept this. Really, after they understood what I was saying… Once I gave a lecture to judges in the District Court—in the Central District, Finkelstein’s district, the Central District. Fine? There were several people there—Gronis, for example, was there that day. And he argued: what do you mean? After I explained that it really doesn’t come from a sample, he said: then who says it’s true? What do you mean? So that’s empiricism. Meaning, if I don’t have… Huh? What did he say? I don’t know, I’m not sure. We didn’t have enough time to argue. But the point is exactly this, and it’s a very interesting way of looking at the Talmud. The Talmud here is basically discussing—we’ve already talked more than once, I think—about the dispute between empiricism and rationalism. Meaning, the question is whether I’m really prepared to rely only on observation, or whether I’m also prepared to rely on things that seem logical to me. Fine? This is a major philosophical dispute.

And in modernity the pendulum shifts from rationalism, which dominated the Middle Ages, to empiricism, with the rise of modern science and observation and all that. Then all sorts of empiricists come along—we talked about this, like Hume, for example—and suddenly see that our so-called empiricism also contains all sorts of assumptions that themselves are not based on observation. Then things start getting complicated. And that, it seems to me, is exactly the move of the Talmud in Chullin. The Talmud says: on the one hand I have rationalism, I have a verse. From where do I derive empiricism? You can’t derive it from rationalism, because it’s something else.

And Rabbi Meir, by the way, takes account of the minority. Rabbi Meir, who takes account of the minority—that is with a majority not present before us, not with a majority present before us. Because there there is no verse. When we have rules that are a priori intuitions, Rabbi Meir does not take account of the minority. But when I’m speaking statistically, then he says: okay, fine, there’s also thirty percent that are not. And therefore he combines that with presumption and various other things. So that is with a majority not present before us, not with a majority present before us. Why? Because there it is a matter of observation. And observation, with all due respect, sounds very convincing to us, but within observation there are generalizations and all kinds of assumptions, and who says one may rely on them? And Rabbi Meir says: I take account of the minority, because this is observation. Something that is an a priori intuition—at least after the Torah said so—that I accept, I don’t argue with it. But observations and generalizations and things like that—who says? Maybe it’s true, maybe it’s not. In the end the Talmud finds no source. And after it finds no source it says: fine, but obviously we follow it because obviously it’s true.

Yes. And is there a majority not present before us that is stronger? So I said: it’s different, not stronger. It’s different. In some contexts that difference will be an advantage; in other contexts that difference will be a disadvantage. So there is no stronger or weaker here. It’s different. Simply different. This is statistics and that is philosophy; this is science and that is philosophy.

There may be a very impractical but logically valid way of turning it into statistics in the case of a majority present before us: take the same case and submit it to a hundred panels of ten judges, and if all hundred panels reach the same ruling, say that statistically that makes it necessary, exactly like… But you are assuming the judges are right in what they say. I remember an aggadic story saying that the translation of the Septuagint was valid and precise because statistically it’s not plausible that seventy people… Yes, but that’s a majority not present before us, not a majority present before us. But seventy people can’t all err in the same way. But the assumption that seventy people can’t all err is itself an a priori assumption. How do you know that? You have no way of knowing whether they erred or not, even with the seventy. How do you know they were wrong? They all agreed on the same ruling. So what? Maybe they were all wrong. You assume not. That’s an a priori assumption. You always begin from an a priori assumption. You’ll never get out of that.

That’s like Gronis, by the way, in that same argument. He tells me: but take, say, a majority of judges, two against one. Then there is a probabilistic calculation that says the majority is right. Let’s say the quality of a judge is p, with p greater than one-half, because one-half is just a random shot in the dark, right? A judge worth nothing has a fifty percent probability of being right, not zero. A judge with zero probability of being right is actually a wonderful judge—let him rule and we’ll do the opposite. A judge who is right with probability one-half is the worst judge. So suppose a judge has probability p of being right. Do the calculation of the probability that two judges are right versus one, and you’ll get that their probability is greater. So why isn’t that a probabilistic majority? So isn’t that an a priori intuition? I told him: yes, but how do you know that the judge’s quality is p? Where do you get p from? Once you know p, you can do calculations. But how do you know it’s greater than one-half? Not how do you know that it’s…