Lesson from Shevat 11, 5767
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- [0:05] The development of communal institutions and the concept of small cells
- [2:18] Understanding the concept of majority versus democracy
- [4:05] The leaders of the community and oligarchy in decision-making
- [5:51] The debate between Baer and Haym Soloveitchik over the source of majority rule
- [9:35] The transition from unanimous rule to majority rule in the 13th century
- [13:40] External influences on Jewish law – the example of Persian mysticism
- [19:25] Interpreting the verse “incline after the majority” and the three laws
- [20:27] A majority that is before us – following the majority of cases
- [23:27] Nullification by majority – the example of a pile of grain
- [24:50] The majority is like the whole – the Passover case with a majority of impure people
- [26:53] The need for three judges on a religious court – source and justification
- [28:38] Expanding the verse “incline after the majority” to different contexts
- [29:50] Decision by the majority of the community versus the minority
- [32:51] Weighing voting rights according to intelligence
- [38:02] The Rosh’s responsum on the majority of the middle group and the community
- [47:31] The need for the minority’s presence in making decisions
- [49:14] The history of the authority of the seven leading men of the town
Summary
General Overview
The text presents the development of communal institutions in the Middle Ages and the question of how a small public body governs itself and makes decisions. It argues that following the majority was not self-evident in Ashkenaz in the 11th–13th centuries, and brings a scholarly dispute between Yitzhak Baer, who links the emergence of majority decision-making to the influence of Roman law in the 13th century, and Haym Soloveitchik, who argues that the mechanism already existed in the 11th century and that there was no documented “quiet revolution” in the 13th century. The text emphasizes that majority rule is not democracy, because the decision is made within an oligarchic elite of the “leaders of the community,” and shows how medieval authorities (Rishonim) expand the verse “incline after the majority” beyond a religious court in order to anchor necessary communal authority, including when the minority does not participate, constructing a combination of verse and reasoning to enable community governance without a paralyzing veto.
The conception of the public as communal institutions
The text states that the conception had already taken shape that communal institutions have significance because the public splits into smaller cells, each of which is worthy of being called a public, and communal institutions therefore exist within it. It raises the question of how each such “small public” is run, who decides, and how decisions are made.
Unanimity, majority, and legal influences in the Middle Ages
The text says that the idea that “we follow the majority” seems obvious today, but in the 11th–13th centuries it was not at all obvious. It cites Yitzhak Baer (an article in Zion XV), who argues that until the 13th century Europe did not follow the majority at all, but required unanimous decisions, and that in the 13th century a change took place due to a shift from Christian Germanic law to Roman law, in which the mechanism of majority decision-making was already built in. It describes the earlier situation as either decision by an oligarchy, or by force—meaning whoever seized control decided—or, if there was a forum of more than one person, it had to be unanimous, and it emphasizes that “the concept of majority did not exist” in this sense.
Majority rule is not democracy, and who the “leaders of the community” are
The text emphasizes that even after the concept of majority is accepted, this is still not full democracy, because the question is “a majority out of whom,” and there is no assumption of equality. It distinguishes between a majority within a religious court, which is not democracy but an internal mechanism within an authorized institution, and voting in the Greek polis, which was also not modern democracy. It says that communities did not have elections, and decisions were made by the “leaders of the community,” a small group of people such as wealthy men, those close to the government, and Torah scholars, in varying balances, and sometimes even without a formal institution, simply by clarifying the position of the “relevant people.” It warns against anachronisms and says that the public may have something to say and may protest, but one should not leap from that to democracy, because the institutions are oligarchic.
The dispute between Yitzhak Baer and Haym Soloveitchik, and Brisker ideology
The text presents Haym Soloveitchik’s claim in his book Responsa as a Historical Source, where he argues against Baer and shows that majority decision-making is not an innovation of the 13th century but already exists in the 11th century. It attributes to Haym Soloveitchik a “Brisker” ideology of disconnecting Jewish law from its environment, and gives the impression that as a historian too, he still seeks to show that history does not really affect Jewish law, and that the concept of majority could not have been taken from Roman law because Jewish law already has the verse “incline after the majority,” Talmudic passages, and Geonim. It adds cultural context about Ashkenazic Jewry of the Tosafists as a disconnected environment that barely read anything from the outside world, unlike Spain, where there was intellectual culture.
The claim of a “quiet revolution” and the conclusion regarding the 11th century
The text quotes Haym Soloveitchik’s claim that if German Jewry moved in the 13th century from unanimous rule to majority rule, then this would have been “one of the quietest political revolutions in history,” because people accustomed to a veto right would not lose it without protest. One would expect to find in 13th-century responsa literature opposition, claims that an ancient custom had been abolished, and struggles over taxes. It says that according to Haym Soloveitchik there is no trace of this in the 13th century, whereas it does appear in the 11th century, and therefore he places the introduction of majority decision-making at the beginning of the formation of the communities. It explains that the difference between the 11th and 13th centuries is significant, because if it begins with the formation of the communities, it appears to be built into halakhic culture, but if it begins only in the 13th century, it looks like something borrowed from outside.
Ideas from outside and the principle “accept the truth from whoever says it”
The text argues that even if the idea of majority was borrowed from outside, that does not invalidate it, and it brings the metaphor of “converting” melodies among the early Hasidic masters. It gives the example of Rabbi Shabbetai Donnolo the physician, who in the introduction to his commentary on Sefer Yetzirah says that only after he learned Persian mysticism from a Persian sage did he understand the kabbalistic books, and yet his commentary was accepted without being disqualified. It also cites Maimonides (through Rabbi Abraham son of Maimonides) on the Talmudic passage in Pesachim about the dispute between the sages of Israel and the sages of the nations of the world, whose purpose is to teach “accept the truth from whoever says it.” It explains how an external idea can open a new angle of reading that allows one to see in the Torah and the Talmud what had not previously been emphasized, to the point that what is learned can become a “Torah-level law” through a renewed reading of the verse.
“Incline after the majority” in the Sages: religious court, majority in mixtures, nullification by majority, and the majority as the whole
The text states that in the Sages’ reading, “incline after the majority” is a law about a religious court: the majority decides, and in capital cases a majority of two is needed, while elsewhere a majority of one is enough. It says that the Talmud expands from the verse to derive three more principles: following the majority, nullification by majority, and the majority as the whole. It explains that following the majority includes a majority that is before us, such as a piece of meat in a city where most shops are kosher, and a majority that is not before us, such as the rule that “most women give birth at nine months,” which is used for legal decisions even when the total cases are not “before us.” It presents nullification by majority as a law of mixture in which a minority element, such as one stalk of priestly tithe, is nullified in the majority of ordinary grain, and it presents the majority as the whole as a law in which a majority counts as the whole—for example, offering the Passover sacrifice in impurity when most of the Jewish people are impure, or the communal bull offering for an erroneous ruling when most of the public sinned following a ruling of the religious court.
Rabbi Haym of Brisk’s explanation of nullification by majority based on the law of a religious court
The text brings Rabbi Haym of Brisk’s argument that for a religious court of three, it is not enough to say “so that there will be a majority,” because three judges are required as part of the very definition of a religious court, not merely as a means of decision. He asks how a ruling decided by two judges can be valid if three are required, and answers that from here we learn nullification by majority: the minority opinion is “nullified” to the majority and becomes like them, so that, as it were, all three issued the ruling. It notes a possible difficulty from the idea of something still being distinguishable within a mixture, but leaves that as a point for discussion.
The difficulty of applying “incline after the majority” to a community, and the distinction between truth and rights
The text argues that the Talmudic expansions of “incline after the majority” do not provide a direct basis for majority decision-making in a community over an individual’s property and life. It explains that in a religious court the question is who is right and what the truth is, and therefore it makes sense that the majority is more likely to be correct, whereas in democracy the question also includes rights, and a person has the right to determine his own fate even if he is mistaken. It uses the hypothetical example of “weighting voting rights according to intelligence” to show that deciding “who is right” is different from deciding about rights, and illustrates a limit on coercion with the example of “pink pants,” where there is no need for one collective decision and therefore no justification for forcing the majority’s view.
The Rosh’s responsum: grounding majority decision-making in the community in both reasoning and verse
The text brings a responsum of the Rosh (also referred to here as Tashbetz) to the question whether “two or three of the middle group in the town” can exempt themselves from the community’s agreement or from a ban. It quotes the Rosh: “Know that concerning the affairs of the many, the Torah said, ‘incline after the majority,’” and rules that in every matter on which the community agrees, we follow the majority and the individuals are obligated to comply. It emphasizes that the Rosh also justifies this with simple reasoning, because otherwise “the community would never agree on anything,” and therefore individuals cannot be allowed to undo communal agreements. In this way he combines a broad scriptural claim with the practical justification that communal life has to be manageable.
The minority’s presence in the discussion and the concern about “voting with one’s feet”
The text cites the responsa Lev Sameach by Rabbi Abraham Aligri of Turkey in the 17th century on the question whether all members of the public must be present for a communal decision, or whether a majority is sufficient even without the minority. It brings the Hazon Ish’s claim in Hoshen Mishpat, section 25, regarding the Shakh, that in halakhic ruling one does not follow the majority of books, partly because not all sages wrote books, and mainly because a majority has significance only after sitting together and hearing the minority’s arguments. It presents the speaker’s own principled view that without genuine listening and real discussion, a majority has no legitimacy, and he gives a personal example involving the “Kinneret Covenant” as a refusal to grant legitimacy without an attempt at mutual persuasion.
Lev Sameach’s responsum: majority even without the minority, so as not to paralyze the public
The text quotes Lev Sameach: “For if not, we would leave no room to find ‘incline after the majority,’ since those who do not want it will flee… and thus be exempt,” and says that this is “something reason cannot tolerate.” It explains that tying the validity of the decision to the presence of the minority would allow the minority simply not to show up and thereby impose its will, and therefore the decision is valid even without them, subject to conditions of prior notice and good faith so that the majority cannot manipulate the process. It notes that in the words of the Hatam Sofer and others one finds the view that non-attendance is like granting a power of attorney to the decision, and that all this is built as an expansive interpretation of the verse “incline after the majority.”
Authority without central government and the emergence of the dilemma in the 11th century
The text argues that before the formation of the communities, the question did not arise in its full form, because central government supplied authority, and in the West there was the Exilarch, and in an authoritative model such as the Sanhedrin there was the ability to enforce and suppress challenges. It presents the absence of central rule in the 11th century as the moment when each community stood on its own and needed a “halakhic anchor” to build authority vis-à-vis the public, because there was no longer a higher authority delegating power and enabling simple coercion.
“The small ones must listen to the great ones” and the checks on oligarchy
The text cites the wording of a responsum from the 11th century describing a custom in which “the small ones listen to the great ones,” where the “small ones” are the ordinary citizens and the “great ones” are the elite, and it rules that the small ones must obey the great ones in whatever they decree, and even “if they cry out, the small one is nothing… for their great ones are more numerous than they,” meaning the advantage is social status, not numerical count. It adds that there is still some reservation: if “the small ones are more numerous than the great ones” and refuse to listen, there are medieval authorities (Rishonim) who derive from the Talmud in Avodah Zarah that an enactment is not valid if it “did not spread through most of the public,” and from this certain checks are derived on the power of the “seven leading men of the town” when most of the public does not accept their decision.
Full Transcript
[Rabbi Michael Abraham] We had actually reached the point where we came to the conclusion—or to the general rule—that the conception had already taken shape that communal institutions have significance. We said that the foundation of the matter is the idea of splitting the public, or the public institution, into smaller cells, each one of which on its own is worthy of being called a public, and therefore all the institutions exist within it, and so on. And of course now the next question that comes up is: how is each such little public run? Meaning, who decides, how are decisions made, and so on. We grew up on the idea that you follow the majority, and “incline after the majority,” and it seems to us like something totally obvious. But it turns out that at least in the 11th, 12th, even the 13th century, this was still far from obvious. There is a very well-known historian named Yitzhak Baer, who wrote an article in Zion XV, and there he discusses the beginning of the institutionalization of Jewish communities in medieval Europe, and he argues that until the 13th century they did not follow the majority at all. A unanimous decision was required. A unanimous decision was required, and in the 13th century, because of influences that came from outside, the legal system changed. Up to that point the law there had basically been German law, some kind of Christian law—Christian Germany—and we are talking about Ashkenaz at that time. And in the 13th century Roman law came in. And Roman law already had this mechanism of majority decision-making built into it. But until that time this whole idea simply was not in the air at all. It was completely clear that either some oligarchy made the decision, or force did—meaning, whoever took control was the one who decided—or, if there was some forum of more than one person, it had to be unanimous. In other words, the concept of majority did not exist.
Now, you have to understand well that when we talk about the concept of majority, we still are not talking about democracy—at least not full democracy—even after the concept is accepted. Because democracy includes not only accepting the essence of majority rule or giving the majority the right to decide, but also the question: a majority out of whom? I mean, you can talk about a majority within a religious court; that has nothing to do with democracy. That’s a very clearly defined institution that has authority, and nobody else does. Within it, how do decisions get made? The majority decides. In a whole society, you can talk about voting like in the Greek polis, where everybody gathers in the town square—everybody, except the slaves, everyone who had rights. That also wasn’t really democracy in the sense we mean today. But at least the free classes gathered there and voted, and decisions had to be made by vote. Here we are not necessarily talking about that. There are various hints here that that was not the situation.
The discussion was generally about the question of how a decision is made within the institution that makes it. Meaning, there is some given institution that makes the decision. There were no elections. It wasn’t… these were the leaders of the community, whatever you want to call them. Now, the leaders of the community means more than one person. If there is a king, there is no problem—whoever disagrees, he kills him. But if there are leaders of the community, that’s a group of several people. The question is how decisions are made there. So that’s where the discussions begin to arise: do we follow the majority, or do we need unanimity? That is why one has to be careful not to jump from majority rule to democracy. It’s not that. There is no equality here. There is majority rule among those who have the right to decide. Who were these leaders of the community, or the important people of the community? We know this even as recently as a hundred years ago, not only 800 years ago. Some of them were simply very wealthy people, some were close to the government, some were Torah scholars. Each place had some balance, some mix of all these parameters, and that gave a person the right to participate in the deciding institutions.
In any case, it is not even certain that this was always a very clearly defined institution. Many times when a decision had to be made, they asked the relevant, important people, and if it seemed they agreed, then that was what would be done. It wasn’t always some orderly institution that convened every so often and issued decisions, legislation, and so on. We have to be careful about anachronisms. We shouldn’t look at this with our own modern eyes. The question is who decides, and within what institution. Was there equality there? No, there wasn’t. Various things like that—no, not yet. True, in at least some forms you do see something a bit beyond that, when people talk about what happens with the public. The deciding institution made a decision—what do we have to say about that? It’s clear that it’s the deciding institution, meaning, no, the claim is not that we all need to stand there and vote; in most places, at least, there is no such claim. But still, it may be that part of the community will not accept it, part of the community will protest, will object. One person from the community, I don’t know, most of the community, a minority of the community—what do they have to say מול the institutions? So here you do already see some development, and certainly the public does have something to say. We’ll get to that later. But still, I say again: don’t jump from that straight to democracy. The deciding institutions were oligarchic according to the parameters I mentioned before.
All right. So Baer, as I said, argued that majority decision-making is really a concept that came in during the 13th century through the influence of Roman law. Haym Soloveitchik, in the book I already mentioned once or twice, Responsa as a Historical Source, argues with him at length, and it seems to me that he proves beyond any doubt that this is not correct. His ideology is interesting, because after all he is Rabbi Soloveitchik’s son. And Rabbi Soloveitchik’s son as a historian—that’s really astonishing as a story, because the Briskers—you know, Rabbi Soloveitchik is a descendant of the Brisk dynasty—the Briskers are characterized by completely disconnecting Jewish law from the environment in which it operates. Jewish law is some kind of bubble that operates according to its own rules, its own logic, with no commitment to the outside world. That’s why “the view of ordinary householders is the opposite of Torah opinion” is such a beloved saying—although its source is in the Shakh, it’s very beloved in Brisk. And so this is basically a school of thought that leaves Jewish law entirely in a bubble. It imposes on reality ways of thinking that are all taken from the study hall. It basically refuses to recognize the influence of reality on the study hall.
And actually today I was thinking about this point—that I haven’t read that much of Haym Soloveitchik; he didn’t write all that much. But the few things I have read were amazing. He is a professor of history, a historian through and through, and yet he always remains a Brisker. Meaning, he keeps showing how history did not affect Jewish law, or if it did, it was temporary and didn’t make it into the Shulchan Arukh—constantly. It’s unbelievable. And even here in this case—why did I think of this? Because this is what suddenly made the penny drop for me. He argues here against Baer, which is fine, and he brings good evidence, but the ideology behind it is hard to hide. Basically his claim is: it cannot be that we took the concept of majority from Roman law. Jewish law doesn’t need Roman law in order to have the concept of majority. There is a verse, “incline after the majority,” there are Talmudic passages, there are medieval authorities (Rishonim)—sorry, Geonim—and so once again he disconnects Jewish law from its historical context. In his view, Jewish law often influences history more than it is influenced by it. That’s at least my impression from the few things I’ve read. It’s interesting. Someone should maybe do a study on Haym Soloveitchik himself one day.
In any event, in the course of his polemic with Baer, it revolves around a responsum that I already mentioned once or twice before, which he dates—and basically proves belongs—to the 11th century, not the 13th century as Baer and others thought. Also Alon, in his book Hebrew Law, dates it to the 13th century, but here he proves that it belongs to the 11th century. And then he begins arguing with Baer, and he makes several very interesting points. This is not the place to discuss whether the Jews read the books of the jurists and the canonists. You have to remember, we are talking about Ashkenazic Jews, meaning the Tosafists or a bit before them. Jews from the Tosafist study hall read almost nothing. They didn’t know the Pythagorean theorem. These were Jews who were completely cut off from their surroundings, and there also wasn’t much to read around them. That environment was pretty backward compared to the Spanish environment. In Spain there was intellectual culture, especially Muslim Spain. In Christian France and Germany there wasn’t much to read besides the Crusades.
So he doesn’t want to discuss that, and also not to claim whether in the early 13th century the ideas of Roman law were even floating in the atmosphere of Christian Germany. But he says—and I’m quoting loosely—if German Jewry passed during the 13th century from unanimous rule to majority rule, which is Baer’s claim, then this was one of the quietest political revolutions in history. People who had been accustomed for centuries to a veto right—every person had a veto right if there is no majority rule. If there is no majority rule, in a certain sense that’s tyranny of the minority, because the minority has the right. If you divide the property and everyone takes his share, that’s one thing, but if you remain a partner and don’t allow the partnership to move, if you constantly oppose, then that’s what happens. So he says: people who had been accustomed for centuries to a veto right lose it without raising a protest against the deprivation of their most basic right, both politically and financially—taxes. One would expect the responsa literature of the 13th century to be full of protests or struggles reflecting resistance to this transition: minorities refusing to obey the new regime and claiming, on what basis did they change the old regime and abolish ancient custom, a custom received from their fathers, and their fathers from their fathers, the mighty ones of old, and so on. In short, he says there is nothing of the sort. In the responsa literature of the 13th century you don’t see any trace of this issue. Where do you see it? In the 11th century. You see it in the 11th century, and that is one of the answers to what we discussed back then, and therefore one of his arguments against Baer. He argues that this entered in the 11th century.
Now, what difference does it make whether it came in during the 11th century or the 13th century? Why are these 200 years so important? Because in the 11th century the communities were only just beginning to form in the first place. Before that, the question simply didn’t exist. So this isn’t a question of whether it was 200 years earlier or 200 years later. The question is: is this something built into our thinking, or into our culture, that when a question comes up that requires a decision, you decide by majority? If that’s how it was from the start, then it isn’t that it had been that way since Sinai in actual practice—for there were no communities before the 11th century, so only in the 11th century did it start functioning in practice. But “11th century” here really means from time immemorial in principle—that’s what 11th century means in this context. Whereas if you say it was in the 13th century, then it is obviously something borrowed from outside. Meaning, it is something that we basically did not know; communities operated by unanimous rule and not by majority decision for, say, 200 years, until Roman law enlightened us and we began to understand that you can also decide by majority.
Now in truth, even that is not so terrible. This is a bit of a balance against Brisker thinking. We talked about this in the first classes this year: the fact that something is borrowed from outside does not necessarily invalidate it. There are many things that seem to me pretty clearly to have been borrowed from outside, and still, once they came inside—like the “conversions” of melodies by the early Hasidic rebbes, who would buy a melody from a shepherd and convert it. As a metaphor, many ideas come from outside, and that still doesn’t disqualify them. It could be that people found something vital in them. It could be that they found some angle of vision there that, once they saw it, they also found it in the Torah. We’ll see that later as well. Let’s say this whole idea of majority came from Roman law. Now we go back—the Torah says “incline after the majority,” and the Talmud expands this greatly, as we’ll soon see, expands this principle of “incline after the majority” a great deal. So now Roman law opens our eyes to another aspect, such that once we hear it from there, we then read it into the Talmud or the Torah. True, until there was some surrounding culture that drew our attention to the issue, maybe we never awakened to it. But that doesn’t necessarily mean it contradicts anything. It doesn’t necessarily mean it’s a foreign import or some alien graft. Very often something from outside helps us see things we would not have seen without it.
An example—I think I gave this example when we discussed it at the beginning of the year—there is a commentary on Sefer Yetzirah by Rabbi Shabbetai Donnolo the physician. All the editions of Sefer Yetzirah that we know today are printed with that commentary. In the introduction there he writes—this is the early Middle Ages, I think—he writes that for many years he tried to read those books, apparently kabbalistic works, and understood nothing. He was a great traveler; he wandered around the world on fascinating voyages of discovery, apparently. Among other places he was in the deserts of Persia, and there he found some Persian sage, a non-Jew, who taught him Persian mysticism. And he says: then I understood everything written in those books. Now this appears in our editions as a commentary on Sefer Yetzirah—the insights, or the consequences of the insights, that he received from that Persian sage. And that certainly does not invalidate them. It just means that apparently there was some perspective there that we did not have. And now that we have it, we can—not only can anyone adopt it just because it’s useful, why not, compare them to Jethro’s books if you want. Right, yes.
As Rabbi Abraham son of Maimonides brings in the name of his father regarding the Talmudic passage in Pesachim: there it says there was a dispute between the sages of Israel and the sages of the nations of the world whether the sphere revolves and the constellations stand still, or… whether the heavens move or what stands still. Maybe the stars move and the heavens stand still, or the opposite. Maybe that’s how to describe it; I don’t know. In any case, that too was in Greece—meaning, in Greece they had everything. And in that dispute, in the end, the sages of Israel conceded to the sages of the nations of the world. So Maimonides writes, both in the Guide and Rabbi Abraham son of Maimonides in a responsum quoting him, that this whole passage is really meant to teach us one thing only—not whether the constellations stand still or move. The only thing it is meant to teach us is: accept the truth from whoever says it. Meaning, if they are right, then they are right.
Now here it’s more factual, so it’s easier; it’s basically a scientific question, let’s call it that. So it’s easier. But in a Torah context, and perhaps even a halakhic context, it’s really harder to digest—and still, if we truly see something useful, then first of all we can take it as an enactment, as something new that is good and useful. If the sages adopt it, then it will be an enactment. But sometimes it isn’t even just an enactment; it becomes a Torah-level law. Why? Because the thing that came from outside opens our eyes to some angle that until then had been blocked—we simply hadn’t noticed. Once you look from that angle, suddenly you see that in fact “incline after the majority” in the Torah also means that in a community you have to follow the majority. Soon we’ll see why a special innovation is needed here. And then we say, fine—if so, we already read the verse “incline after the majority” differently, in a way that without that outside influence perhaps we would not have read it. But after that influence—and all of us in the end operate within some kind of influence, contrary to what the Briskers thought, or what the Briskers repress—then in the end what we see in the Torah is the interpretation we give it. So if our glasses are made up of many things that have influenced us, okay, so what? Those are our glasses. There’s nothing wrong with that.
All right, that was just a bit about the ideology. Let’s get back to our subject. So basically the claim is that this really already begins in the 11th century, and I think on this point he is right regardless of ideology—practically speaking. That is, his proofs are good proofs, and I think in the end he is right that it begins in the 11th century. The question is really: why not? The Torah says “incline after the majority,” there are Talmudic passages from long before the 11th century. Where does it say this in the Torah? “Incline after the majority.” So what’s the argument? Did Baer not know that? I admit, I don’t know him so well, but I assume…
[Speaker B] The plain meaning of the Torah isn’t that; it’s the opposite.
[Rabbi Michael Abraham] “Do not follow the majority to do evil,”
[Speaker B] “incline after the majority.”
[Rabbi Michael Abraham] The question is how you read the continuation—whether it is still under the force of the “do not.” “Do not follow the majority to do evil; incline after the majority.”
[Speaker B] In any
[Rabbi Michael Abraham] case, fine, there are different interpretations here, I agree. But after the Talmud there are no different interpretations. Meaning, the Talmud established something very unequivocal about this—several very unequivocal things—and that is long before the 11th century. So what is the argument about? What are we talking about here? What’s the problem? So really, what does the Torah say here? In the Torah—at least according to the Sages’ reading, and again I say, the plain meaning can go in several directions—in the Sages’ reading of the Torah, and for our purposes that is enough in order to describe the historical development, “incline after the majority” is a law about a religious court. Meaning, in a religious court that is sitting in judgment, there are three judges or twenty-three, depending on the case, and the majority decides. In capital cases you need a majority of two; everywhere else a majority of one is enough.
But the Talmud takes that same verse, “incline after the majority,” and derives from it many other things too—let’s say three additional types of things. One type is following the majority; the second is nullification by majority; and the third is the majority as the whole. These are three different principles. The later authorities (Acharonim) discuss in quite some detail, and disagree among themselves, as to how these three different principles are derived from the verse “incline after the majority.” I’ll try to explain so you can see how many things we hide behind this statement about following the majority—and none of them is the majority we are looking for here in the community. That will be the punchline at the end, but in a moment.
So the first point is “incline after the majority” in a religious court, where we follow the majority of the judges. The second point is following the majority in the laws of mixtures. Following the majority in the laws of mixtures—for example, I’m walking in a city, I find a piece of meat in the street, and I don’t know whether it is kosher or non-kosher. Now most of the shops in the city are kosher shops, so I am allowed to follow the majority and I can eat that meat; I can assume it is kosher. Today that sounds shocking to us and all that. Glatt kosher? Yes, you can eat it. If most of the pieces of meat are kosher, you can eat it. That is called the law of following the majority.
Within the law of following the majority—and I’m showing you the variations here—within that law, it is actually split into two. This is still the first law out of the three. It is split into two. There is what the Talmud calls a majority that is before us and a majority that is not before us. A majority that is before us is what I just described. Meaning, there are ten shops before us, nine of them kosher and one non-kosher, and there is a piece of meat in the street. It definitely came from one of those shops, I just don’t know which one, so I assume it came from the majority. That is called a majority that is before us. The majority is before us. “Before us” in Aramaic means right here in front of us.
Then there is a majority that is not before us. What is a majority that is not before us? That is something having to do with the nature of the world, the laws of nature. It’s not some numbered set of objects or shops standing before me, where I know exactly where the majority and minority are and can say that if I have a piece of meat before me, it probably came from the majority of the shops. Rather, it’s something else. For example, in the past women gave birth at seven months and at nine months. The end of the seventh and the end of the ninth were considered normal births. Most women gave birth at nine months. That’s what it says in the Talmud: most women give birth at nine months. Now we don’t have ten women standing before us and we’re discussing one of them, where, say, eight gave birth at the end of the ninth month and two gave birth at the end of the seventh, and I ask whether this woman belongs to the eight or to the two. If that were the case, it would be similar to the previous case. But here that’s not the case; this is something different.
Here we are talking about a situation where all the women in the world are not standing before us. We know in general that ordinarily a woman gives birth at the end of the ninth month. So now a woman comes before me and has given birth. I need to ask myself whether she gave birth at the end of the seventh month or at the end of the ninth. We didn’t count; we don’t know how many months she was pregnant, and there can be various halakhic implications to whether she gave birth at the end of the seventh or the ninth month. For example, if she married twice, maybe the child is from the first husband or from the second husband. It could be the end of the seventh month from the second husband or the end of the ninth month from the first husband, if there was a gap of a month or two between the divorce from the first and the marriage to the second. That is exactly why one has to wait three months between marriages—because of this issue. So here this is called a majority that is not before us. Why? Because the majority is not before us. We don’t have most of the women standing here in the hallway so I can point and say that eighty percent are like this and twenty percent are like that, and one woman detached from that flock and I’m asking what her status is. No. There is some general law of nature saying that women generally give birth after nine months and not after seven—most women. So I say: fine, then if a woman comes before me and has given birth, she probably gave birth at the end of the ninth month and not at the end of the seventh. Or other majorities of that sort.
So that is one type—well, one type B, so to speak. The first category is following the majority, and that splits into two: a majority that is before us and a majority that is not before us. Two situations, but what they have in common is that we follow the majority; we decide the individual case before us according to the majority of the cases surrounding it, whether directly or theoretically.
The second type derived from this verse is the law of nullification by majority. Nullification by majority is another law. In nullification by majority, let’s say there is a pile of grain, and most of the stalks there are either priestly tithe or ordinary grain, and one stalk of priestly tithe fell into it. According to Jewish law, that stalk of priestly tithe is nullified in the majority of ordinary stalks, which are permitted to be eaten. The priestly tithe may be eaten only by priests. So this is called the law of nullification by majority. It is a different law. It is not the same idea as following the majority. It is not that I have some isolated object before me and I’m asking from which group it came—from the majority group or the minority group. Those were the two previous questions, and in both previous questions that is essentially what we were asking. Here there is no isolated object before me. I have a pile of grain before me, and I ask: what is inside this pile? Inside this pile there is one stalk that is priestly tithe and lots of grain that is ordinary. May I treat the whole thing as ordinary grain, because the minority is nullified? Or not? That is the concept of nullification by majority. Some connect it to the previous concept—that is a dispute among the medieval authorities (Rishonim). But in a liquid mixed into liquid case, certainly not. In dry mixed into dry, maybe yes. But for example with liquids that blend together, certainly not. That is the second type.
The third type of law derived from this verse is the rule that the majority is like the whole. What does that mean? For example, regarding Passover, when most of the Jewish people are impure—you’re not supposed to offer the Passover sacrifice in impurity. But it is possible to offer the Passover sacrifice in impurity. What happens if only a majority are impure? Not everyone is impure—most of the Jewish people are impure. Can the Passover sacrifice be offered? The answer is yes. The Talmud says yes. Why? Because of the third law. Not nullification by majority, not following the majority, but the rule that the majority is like the whole. The meaning is that if I have most of the Jewish people, it is as though I have all of the Jewish people. The majority counts as the whole. You see, this is a third law. It is not the same thing as any of the previous laws. It is something else. The majority counts as the whole.
Or another example: if a religious court ruled that an action should be done which in fact is forbidden according to Jewish law—the religious court made a mistake—and it instructed the public to do something that according to Jewish law is forbidden, then if the entire public did that act, the religious court must bring the communal bull offering for an erroneous ruling. What happens if only most of the public erred because of the court’s instruction, not the whole public? The Talmud says: the majority is like the whole. If most of the public erred, it is as if the whole public erred.
Now notice, here there is no—say, in the laws of nullification by majority, which may be a bit similar to this concept, you need some defined mixture. Everything has to be inside some specific bowl. And if everything forms one overall unit, then I say the minority is nullified into the majority. This is one unit, and that whole unit takes on the status of the majority. Here it’s not like that. Part of the Jewish people are in the Diaspora; there is no mixture here. They are not inside one single unit. It is just that if I have the majority, it is as if I have the whole. This is a third thing, something completely different. And all three of these things are derived from the verse “incline after the majority.” How? As I already said, the later authorities (Acharonim) disagree about that, and there is a great deal of discussion among them. I’ll give you one example of something that may be relevant for us later.
[Speaker B] Rabbi Haym of Brisk argues, Grandfather…
[Rabbi Michael Abraham] His father, Rabbi Chaim Soloveitchik, argues regarding a religious court: why do you need a court of three? Usually people explain that it’s so there can be a majority. Meaning, if there are two, then it could be one against one, and you can’t decide. If there are three, there will always be two against one, so even if there are disagreements there will still be a decision. But that’s not really so. There is a derivation in the Torah, and that derivation says that in monetary cases you need at least three judges. There is this halakhic rule that a religious court needs three judges. Fewer than three judges is not a court. Aside from that, there is also the principle that it should be an odd number so there can be a decision. But the number three itself is a required number, at least according to some opinions, even apart from the question of decision-making. Now Rabbi Chaim of Brisk asks: suppose there are two judges against one. So let’s say we follow the majority; we have the rule of following the majority. We learn that from a court, right? There is the rule to follow the majority, so the ruling goes like the two. How many judges issued that ruling? Two. But you need three. So will the ruling be valid? You need three judges, not two. That’s what the Torah requires. Not for the sake of decision-making—notice—fewer than three is not a court. So how can this ruling be valid? Rabbi Chaim says: from here they learned the law of nullification by majority. Meaning, we have to say that the Torah teaches us that if there are three judges here, and two are against one, that counts as a judicial ruling. Apparently the one changes his skin, so to speak—he is nullified to the majority, to the two, and becomes like them. And now we supposedly have a court of three that issued the ruling. From here they learn, although the verse is talking about judges, which would seemingly teach us only the first law, the law of following the majority—from here they also learn the law of nullification by majority. That’s how Rabbi Chaim explains it. This is “the majority is like the whole,” a kind of mixture like terumah mixed with ordinary produce.
[Speaker B] Someone might come and say: wait, wait, I have a solution to the problem. That grain of terumah that you put into the lump has a slightly darker shade.
[Rabbi Michael Abraham] So if it’s recognizable, it could be that this isn’t called a mixture.
[Speaker B] It’s only in a case where it’s not recognizable, where it changed.
[Rabbi Michael Abraham] As you mentioned, that’s rabbinic.
[Speaker B] So in the case of three judges, where is the minority opinion coming from? It’s recognizable; you can identify it.
[Rabbi Michael Abraham] Theoretically yes, although outwardly you’re not allowed to say it. Maybe that’s connected. You’re not allowed to say: I was among those who acquitted, I was among those who found liable.
[Speaker B] It’s forbidden. In either direction. What? It’s not always in that direction.
[Rabbi Michael Abraham] No, fine. But still, in the end, once it already exists, regardless of whether that’s the motivation, once it already exists, now perhaps there is a mixture here. Maybe because it’s recognizable it’s only rabbinic, so on the Torah level it isn’t. Okay, what happens in our case now? We’re looking for the question of majority in a community. Do we follow the majority in a community? Well, here of course you have to distinguish between a majority of the communal leaders or the deciding institution, and a majority of the public as a whole. Let’s talk right now even about a majority of the public in general, because really some of the questions I mentioned earlier arise in situations where the minority rebels against the institutions’ decision—not inside the deciding institutions, but a minority of the citizens does not accept the institutions’ decisions. Can we compel them in this matter? So let’s say the entire public decided, representatives were chosen, the entire public decided by majority, and the minority does not accept the rule of the majority. Can we derive this law of following the majority from the principles I mentioned earlier? One of the principles I mentioned earlier: following the majority, nullification by majority, or “the majority is like the whole.” It seems to me we can’t, for several reasons.
[Speaker B] Take judges, for example—two against one is nullification by majority.
[Rabbi Michael Abraham] Meaning, “incline after the majority.”
[Speaker B] Right, so from that you can also learn about the community.
[Rabbi Michael Abraham] I think I’ll explain why I think you can’t learn from there about the community. First, this matter of following the majority of opinions was said only regarding a court. The question is why not extend it by logic to a place that is somehow similar? The answer depends on things connected to contemporary political philosophy or modern theories of the state. What is the meaning of the majority in a democracy, for example? In a court, the question we ask is: who is right, what is the truth? That’s the question we ask in court. They say: listen, if two say this, it is more reasonable to assume that they are the ones who are right, so you’re told to follow the majority. The answer is that democracy is not about who is right, or not only about who is right. Let’s say the majority is right—but I don’t want to. I have rights. In a democracy it could be that absolute justice is with the majority. What they recommend is an obviously just policy, absolutely just, moral, everything is correct—but I have the right not to be moral; I don’t want to be moral. That’s between me and the Holy One, blessed be He, between me and whatever it may be. It’s my money. It’s my right; I want to determine my fate with my own hands.
[Speaker B] The question is whether you can live in a community.
[Rabbi Michael Abraham] No, no, that’s a nice argument—the question is whether it comes out of the model of a court. We have to understand this well. I’m not saying there’s no logic to it; of course there’s logic to it. The question is whether you can learn it from a court. I think not. And this is a very important point, because a lot of times the proposal comes up—and I also thought about it a lot—why don’t we weight voting rights according to intelligence? Give an intelligent person more weight at the ballot box and we’ll reach better decisions. I think the instinct of most people today recoils from such a thing. I never understood why until the penny dropped. And the penny is very simple: if we were asking what the most just decision is, then that really would be a correct proposal. Maybe there’s no practical way to determine it, never mind technically, but in essence that would be the right decision. But that’s not the question. We are not asking who is right. Every person has the right to determine his own fate even if he is mistaken. He has the right to make a mistake. In court it’s not like that, because in court the judge is not talking about his right to rule as he thinks; we are dealing with the litigants, and the question is who is right. When I ask who is right, then I have an indication: if two are against one, presumably the two are right. But in a community we are not asking who is right. In a community we are giving the majority authority to decide for the minority what to do with its property, for example, or what to do with its way of life, or even with what is on its plate sometimes. That is something completely different. That’s why, for example, a very common limitation is that in democratic contexts they do not enter what is on your plate, even though Jewish law does deal with what is on your plate. Why? Because Jewish law deals with the question of who is right, or what is the right thing to do. Democracy doesn’t deal with that question; it deals with the question of what I have the right to do, or what right others have to dictate to me what to do. And here the right really stops at the point where it is my plate or my personal domain. In decisions that all of us have to make together at once—those are decisions, let’s say, whether to make some agreement or other with our neighbors, return territory, not return territory—decisions of that type cannot be left to each person to do whatever he wants; only one thing can be done.
[Speaker B] Aren’t there perhaps specifically examples of decisions where the kind of consideration involved is like that of a court? What is really right and just for the Jewish people?
[Rabbi Michael Abraham] But that’s what you think. But someone else—
[Speaker B] thinks otherwise.
[Rabbi Michael Abraham] No. Someone else thinks—you’re right—that my policy will lead to war, and I want it. War. Your views, even though you are the majority. So I’m saying: in a place where one decision has to be made—either we make this agreement or we don’t make this agreement—there is no choice. There’s simply no other way. It can’t be that everyone will do whatever he wants.
[Speaker B] Why? If you—
[Rabbi Michael Abraham] If you give—if you demand one side, what de Tocqueville pointed out in the nineteenth century, you are really saying tyranny of the minority. That if the minority votes against an agreement, then it is right. That makes no sense at all. Why give the minority—actually, you know what, don’t give the majority power, but then you’re giving the minority power. In effect, what you’re doing is giving the minority power. Okay. So therefore logic says that in such a case we follow the majority. But you have to notice carefully: that’s a logic that says—this logic does not come out of that logic of a court; it’s something else. Maybe it’s very sensible.
[Speaker B] But where is the boundary?
[Rabbi Michael Abraham] What do you mean, where is the boundary?
[Speaker B] When do we follow the majority?
[Rabbi Michael Abraham] When the decision is not one single decision? When the decision that has to be made is not one single collective decision—for example, what color pants each person will wear. So 90% of the public really doesn’t like pink pants. Can it forbid the remaining 10% of the public from wearing pink pants? Seemingly it’s the same thing; what’s the difference between that and a peace agreement? The answer is that here each person can do what he wants. This is not a decision we have to make as a collective. Only in a decision we have to make as a collective, then there is no choice—we have to decide one way or the other. So what can you do? If you give the minority veto power, then not only are you not giving control to the majority, you are giving control to the minority. That really makes no sense. But with the pants, I’m not giving control to anyone; everyone can wear whatever pants he wants. So there we really will not impose it. If the question were who is right, then with pants too we would impose the majority opinion. That’s why in halakhic ruling there is much more room for coercion than in democratic ruling. Because in halakhic ruling we are discussing what is right to do, not what you have the right to do. There are questions of that kind there too, but maybe more marginally; there are many more questions of the first type. Why am I saying all this philosophy? Because we need to understand clearly: we are now discussing a new question. It has no source in the Talmud / Talmudic text, not in the Torah and not in the Talmud / Talmudic text. All the extensions the Talmud / Talmudic text made to the verse “incline after the majority” are of no help regarding the community. How can you decide for someone what he will do with his money? That’s not written in “incline after the majority,” or what he will do with himself in general. For that you need something else. So now look at a responsum of the Rosh, and this is in Tashbetz: “If two or three of the average people of the city”—average probably means ordinary citizens, as distinct from those in the deciding institutions, right, the great men of the city; there are the great ones and the average ones, the middle class—“can exempt themselves from an agreement that the community makes, or from a decree of ban that they make regarding something? Know that concerning a matter of the many, the Torah said, ‘Incline after the majority.’” Do you hear that right away? He says he takes the verse “incline after the majority” and applies it to every matter of the many. That’s already really a phrase that includes everything; you can put anything under it. But look at the continuation: “And regarding any matter on which the community agrees, we follow the majority, and the individuals must uphold whatever the many agree upon concerning them.” But he continues—if he had stopped here, then really it would not have been clear what “incline after the majority” means. “For otherwise the community would never agree on anything, if individuals had the power to nullify their agreement.” What will happen, says the Rosh? Exactly the consideration I mentioned earlier. If we do not let the majority decide regarding the minority, there will be no agreement in any area. Anyone who disagrees will say, okay, I disagree, and then there will be no decision. So what happened? We gave the individuals—not only did we not give the majority power, we gave the individuals power. “Therefore the Torah said regarding every matter”—regarding every matter of agreement of the many, notice—“therefore the Torah said, regarding every matter of agreement of the many, ‘incline after the majority.’” There is a very interesting play here. Anyone a bit used to the nuances, to halakhic formulations, can see it. He is playing here between source and logic. There is the source of “incline after the majority,” a kind of decisive and total statement: in every matter of the many, we follow the many, as it says, “incline after the majority,” period. But he didn’t stop there. Why didn’t he stop there? Because he too feels that this does not emerge from the Talmudic discussions. After all, it does not emerge from the verse; there is something here that has to be explained. The verse is not enough for this. So what does he do? He adds the logic—what logic? That “the community would never agree on anything”; if each person can decide, then what will become of us? We won’t be able to run anything. The circumstances force this. But wait—if the circumstances force this, then leave the verse aside and just state the logic. Say: look, gentlemen, life can’t be run this way. So true, the verse “incline after the majority” doesn’t say this, it doesn’t come from there. But since life can’t be run this way, I will institute this rule. It’s not as though he was shy about making enactments. So then why does he need the verse at all? What—the verse alone isn’t enough? Then use the logic. Meaning, the logic is very strong. Why do you need the verse? Why force the verse because you have a logical argument? The answer is that he isn’t forcing it; that’s how he read the verse. This is what I demonstrated earlier; it’s what I explained at the beginning of the lecture. After he arrives at that logic, he says to himself: after all, it cannot be that the Torah tells us “incline after the majority” if it can’t be implemented. So this logic, which says that we won’t be able to make decisions, really causes him to interpret the verse differently, to broaden the interpretation of the verse. So there is a very interesting dynamic here, which pretty precisely illustrates the mechanisms I spoke about earlier and also at the beginning of the workshop: there is a logic that is apparently born as a result of the circumstances, and because of it I return to the verse. I don’t say, okay, Roman law says so, therefore we’ll follow the majority. I return to the verse and say: ah, it says “incline after the majority”; that must mean every matter of the many, because of the logic. And in the end it comes out in the verse. I’ll give you another example.
[Speaker B] Meaning in the end this is as if it’s from the Torah?
[Rabbi Michael Abraham] Yes, yes, that’s what he says. “Therefore the Torah said, regarding every matter of agreement of the many, ‘incline after the majority.’” It’s all Torah-level law. That’s the point. It all becomes Torah-level law, even though it’s all logical arguments that he seemingly invents out of thin air—some would say from Roman law. There is a responsum called Lev Sameach by Rabbi Avraham Aligri from Turkey in the seventeenth century—we once talked about how Turkey was then a tremendous center of Torah learning. He says there—the discussion there was whether you need the presence of the entire public when voting on community matters, or whether a majority is enough. Meaning: does the majority rule even when the public at large is not present? The minority, sorry. Is it enough that there was a majority there in order to make a decision? What difference does it make to me whether the minority was there or not? And if the minority was there, what difference does it make? The majority will decide; in any case the majority would determine it, so you don’t need the presence of the minority. On the other hand, there were those who argued yes, the minority also needs to be present. Why? An example of this is that the Chazon Ish writes in Choshen Mishpat, section 25—there is a Shakh. The Shakh says that in halakhic ruling you do not follow the majority of decisors. Some say you do not follow the majority of decisors, the majority of books. You don’t collect books and say: one hundred say it is permitted, fifty say it is forbidden—we don’t follow the majority. Does Rabbi Ovadia rule that way? Possibly—not always, but he does tend more in that direction. The Shakh says no. The Chazon Ish asks: why not? So he gives several reasons. One reason is: who says all the sages wrote books? There were many sages who didn’t write books, so why should those who wrote books have special privilege? If you are going to follow all the sages, you can’t do that—the sages of all generations, right? You can’t do that, so why privilege the sages who wrote books? Fine, that’s one explanation. But the more essential explanation is that as long as we have not sat together, a majority decision has no meaning. A majority decision means that after the majority heard the minority, the minority tried to persuade it, and it didn’t succeed—meaning the majority still heard the considerations and nevertheless stood its ground. After everyone heard all the arguments and then we voted, the majority decides. But if you have not heard my arguments, then you are not a majority with respect to me. Why? Because if you had heard me, maybe I would have persuaded you. The very fact that this sounds so reasonable to us—it’s not; this is not something to be taken for granted every day. No, I mean that today substantive arguments sound so reasonable to us, and that is a warning sign. It’s a warning sign that we are not listening. Meaning, if we were used to listening and being persuaded, then it would be self-evident to us that the fact that we are the majority here still means nothing. Once a group came to me, from Yisrael Harel, from some forum about pluralism and all kinds of things of that sort, secular and religious people; I once gave them a lecture in Yeruham. I told them—at the time the Kinneret Covenant and so on was on the agenda—I told them that I would never in my life sign a covenant of that type, because a covenant like that only gives legitimacy to someone who does not deserve legitimacy. If someone doesn’t want my legitimacy, I don’t suppose anyone needs my legitimacy, so fine. But if someone wants my legitimacy, he won’t get it. He won’t get it because first of all I want him to talk to me. I’ll try to persuade him, he’ll try to persuade me, and after we hear all the arguments, in the end let’s say we don’t manage to persuade one another—I will sign with him any covenant of mutual respect you like. But I’m not willing to give a person a prize for laziness, or legitimacy for laziness. So if someone is not willing to hear me, why should I tell him that he is just as legitimate as I am? If he heard me, he would be convinced. So what am I doing—am I saying, never mind, you don’t need to hear me, here, take an exemption, here’s a covenant? Persuasion—so there isn’t this kind of politics, where each person comes, says his piece, and leaves. But then basically nothing will come into effect; the fact that you heard the other person won’t do anything to you. But in a culture where people actually listen to what is being said, then the question whether the minority is present in the discussion or not has a lot of significance. Only then does the majority have significance.
[Speaker B] Before listening—otherwise it’s just populitics anyway.
[Rabbi Michael Abraham] Right, right. That’s why I say, the claim was not only not to sign covenants, but not to sign covenants in order to bring about a situation of discussion and listening. After that I’m willing to hold votes and follow the majority and all that; before that I don’t even accept the authority of the majority. Meaning, in principle, I do not accept it—there is no legitimacy in my eyes to the majority as long as they have not heard my opinion, argued with me seriously, and not been persuaded. If they have, then fine, then the majority decides. But as long as they haven’t heard me, so what? What meaning is there in the fact that there’s a majority here? So what if there’s a majority here? Why does that mean anything if you’re not listening? No, I’m saying this on the principled level. Practically, if I now have to run the state somehow, there are other considerations. But I’m speaking on the principled level, on the level of legitimacy. So here, within the question of whether the minority has to be present or not, there is an answer very similar to what we just saw from the Rosh, in the responsum Lev Sameach. He says as follows: “For otherwise we would leave no room to find ‘incline after the majority,’ for those who do not wish to join them would flee from joining them and assembling together to be counted, and in this way they would be exempt; this is something reason cannot tolerate, and it is clear and obvious.” What is he really saying here? That it cannot be that we now require the opposite—that we make the validity of majority rule dependent on the presence of the minority in the discussion. Why not? Because, once again, that enables the minority simply to run away and not show up to the discussion, and thus impose its view. Right? What does someone who objects do? He won’t show up. And once he doesn’t show up, the decision has no validity. That is why in all procedural rules of managing boards, the decision is valid with whatever number is present, say after half an hour of waiting or something like that. Why? In order not to give a minority that objects the option of voting with its feet, of imposing its view with its feet. And this is again—and notice—“we would leave no room to find ‘incline after the majority.’” He doesn’t just state a logical argument and stop there. He says that because of this logic, we will never be able to carry out the rule of “incline after the majority.” This rule is so obviously correct that I have no doubt he means it on the Torah level, even though here he does not write that phrase explicitly, “the Torah said,” as we saw earlier in the Rosh. So this is Torah-level law. Why is it Torah-level law? Because the Torah tells us “incline after the majority.” How can this be implemented? If we really require the presence of the minority, and the minority can run away if it objects, then we will never be able to follow the majority. But the Torah did command us to follow the majority, which means that the Torah allows us to follow the majority even if the minority was not present in the discussion. Of course there are limits to this. You have to give notice that the meeting is taking place, enough time in advance. Meaning, it has to be in good faith; it has to be clear that the minority could have come. It can’t be that the majority manipulates the minority and doesn’t notify it at all so the minority won’t come vote, and that way they pass the decision by majority. There has to be prior notice and so on. But then if you didn’t come—and there are many responsa about this too, by the Chatam Sofer and even from the medieval authorities (Rishonim)—if you didn’t come, that is a sign that you gave some sort of authorization for them to decide, you gave them your power to decide. And again, all of this is interpretation of that same verse, “incline after the majority,” an interpretation that is a very, very large expansion even compared to the expansions—which are also large—that the Talmud / Talmudic text makes. So there is some very significant leap here in the interpretation of “incline after the majority” that the medieval authorities (Rishonim) make. They are aware that there is a leap here. They justify it with all kinds of logical arguments. And in the final analysis, without it, life cannot be run. This is such a compelling rule that in the end not only will it obligate—it will become Torah-level law coming from the verse “incline after the majority,” meaning that one must do this.
[Speaker B] Why—what is the meaning of majority in the seventeenth century?
[Rabbi Michael Abraham] No, the Rosh is the fourteenth century.
[Speaker B] What did they do before that? Tannaim, Amoraim, before that? So I’m saying, there was no community.
[Rabbi Michael Abraham] What do you mean, before that?
[Speaker B] When they wanted to decide in the community about—
[Rabbi Michael Abraham] There were the seven good men of the city; they would decide. Within the seven good men of the city, I assume that the seven good men of the city have the status of a court, and then they would decide. But even if not, as I mentioned at the beginning of this whole topic of communities, as long as there was central rule—up until the eleventh century there was central rule, also in the West—there was the Exilarch. The moment there is central rule, even if the community has no authority, we can always derive the authority from the Sanhedrin, which has authority to do whatever it wants. And therefore in the end, if the Sanhedrin determines that the seven good men of the city or the city court has authority because it is delegated by the Sanhedrin, the problem doesn’t arise there. Nobody challenged it at all. Whoever did challenge it became a rebellious elder; they take him to the Sanhedrin and cut off his head. Here the question begins to arise when there is no central rule. Each community stands on its own. Then we have no choice but to give this a halakhic anchor, to explain to you that according to Jewish law you are obligated to act this way. Otherwise how can I cut off your head? Not because some higher authority gave authority to the seven good men of the city, because there isn’t one anymore. That’s it. There are the seven good men of the city facing the community. And now the question is what to do—how do you build authority out of nothing? That is exactly the dilemma that begins in the eleventh century.
[Speaker B] How do you choose the seven good men of the city? How do you choose the seven good men of the city?
[Rabbi Michael Abraham] That’s an excellent question, and I hinted at it earlier. Maybe I’ll really end here with that point. In that same responsum from the eleventh century there are a few very amusing words that come together inside this terribly democratic responsum. And he says this: “And as for what you wrote, that in your place it is the custom for the lesser ones to obey the greater ones.” “Lesser” and “greater” do not mean age. Earlier we spoke about average and great and lesser. “Lesser” means the ordinary citizen. “Greater” means oligarchy. Not necessarily Torah scholars—wealthy people, those close to the regime, what you call the important people among the honored members of the community. “And they never protested against them; it is law that the lesser obey the greater in all that they decree upon them.” Just look where we are standing in relation to democracy. “And not only when they are silent, in which case they accept upon themselves the decree of their elders and certainly cannot protest; rather even if they cry out, the lesser are nothing, for their great ones are greater than they.” What does “their great ones are greater than they” mean? The seven good men of the city as against two hundred citizens. Meaning, their great ones are greater than they because they are the great ones, not because they are more numerous. All right? And nobody elected them. Now afterwards he goes on and somewhat qualifies this. “And if the lesser are more numerous than the greater and refuse to listen,” and so on—there are situations here where we won’t have time to get into it today—in which people learn from the Talmud, through the power of enacting ordinances. The Talmud / Talmudic text in Avodah Zarah says that an ordinance is not valid if it did not spread through a majority of the public, through a majority of Israel. From here some medieval authorities (Rishonim) learn—again, this is a pretty impressive logical leap—from here some medieval authorities (Rishonim) learn this principle of following the majority. And accordingly they indeed say that if a majority of the lesser do not obey the greater, those same seven good men of the city, then it may be that the greater will not be able to impose their decision on the public. Meaning, here you already have some brakes on oligarchic rule.