Q&A: Individual and Majority — Is the Law According to the Majority?
Individual and Majority — Is the Law According to the Majority?
Question
Hello Rabbi,
I looked into the rule that when an individual disputes with the majority, the Jewish law follows the majority, but I didn’t find anything clear on this topic. I’ll briefly write up what I found, and I’d be glad for the Rabbi’s response — especially if you have proofs either way (from tannaitic and amoraic sources).
There are those who held (Mishpatim Yesharim, Pri Chadash) that this rule is the Torah law of “to incline after the majority,” and therefore it applies only to face-to-face deliberation and formal voting, as in the Sanhedrin. Others (Radbaz, Shakh) held that this is a Torah-level rule but extended it to disputes among halakhic decisors even though there is no face-to-face debate, etc. And others held (Rashba, Rema) that this is an independent rule not derived from the verse.
As I understand it, the most plausible view is the third possibility. The rule arose because there was no single Torah center and disputes multiplied, and therefore a need developed for many rules of halakhic decision-making. Here are some proofs:
It is impossible to deny the great differences between the Sanhedrin (a majority that is present before us) and disputes among halakhic decisors (a majority that is not present before us) — there is no hearing of arguments, no discussion at the time of decision, and it is hard to count those who disagree.
Further, we find many rules that conflict with this law, and that does not fit the character of Torah laws (especially in a religious court, where the majority always decides), for example the rules: the Jewish law follows Beit Hillel, the Jewish law follows the lenient opinion in mourning, the Jewish law follows Rav in matters of prohibition, and many, many others (and it is hard to say they all apply only to rabbinic laws). The exception is even stated explicitly in the Talmud (Avodah Zarah 7a): “Granted, that the Jewish law follows Rabbi Yehoshua ben Korkha was necessary, for you might have said that where an individual disputes with the majority the Jewish law follows the majority; therefore it teaches us that the Jewish law follows the individual.” And the Get Pashut (beginning of rule 5) also showed that in several places in the Talmud they ruled like an individual. There is also the well-known Talmudic passage about “in the place of Rabbi Eliezer,” etc., where people followed his opinion against the majority.
I also saw that Rabbi Brandes proved from the wording of the Tosefta in Berakhot (4:15) that Rabbi Akiva said that the Jewish law follows the majority even when there had not been a formal count regarding the disputed matter, and that this too is a new formulation for following the majority (“the Jewish law follows the majority” as opposed to “incline after the majority”).
Conclusion: this rule is not from the Torah, it has many exceptions, and it is difficult to apply (since it is hard to count, and hard to decide whether we follow a majority in number or in wisdom, etc., and what do we do when the majority does not share the same reasoning). So it would seem that this is a rule of thumb intended for situations of doubt, and that apparently is how the Rema understood and ruled (Choshen Mishpat 25:2, based on Rashba 1:253), when he wrote that this is one of the rules of decision-making for someone who is uncertain about the law and is not capable of deciding based on the proofs.
Of course there is no need to mention that in practice, throughout the generations, halakhic decisors did not always rule according to the majority…
[And the Shakh wrote even more strongly (Choshen Mishpat 66:126). As mentioned, he held that the rule is of Torah origin, and nevertheless wrote: “But what can I do? In my humble opinion the words of Maimonides are primary and compelling in the Talmud, and the proofs of Tosafot and the decisors who challenged him are, in my humble opinion, not proofs, as I shall explain. And it is obvious that we do not follow the majority of decisors in a place where it is evident to the eye from the Talmud that the law is with the minority, especially since the decisors ruled that way only on the strength of their proofs, and once the matter is refuted, the building falls.” And likewise Rabbi Asher Weiss: “What appears clear in this is that in truth, although the Torah said the Jewish law follows the majority, this is not the exclusive foundation upon which the line of the law rests. For although we derive from ‘to incline after the majority’ that we follow the majority, we nevertheless see that there are forces stronger than a majority, such as witnesses, monetary presumption, and on one side majority and proximity — we follow proximity (see Bava Batra 23b). So we see that although following the majority is a Torah law, there are other forces stronger than it in evidentiary and presumptive power. If so, it should not be surprising that this is likewise true regarding majority in legal decision-making. And even in a religious court we saw above that there are views that we follow the majority in stature against the majority in number. And I have already said elsewhere that knowledge of the truth is preferable to all the proofs in the world, and one who knows on his own that something is lenient or stringent is not required to act either according to witnesses or according to majority, but rather according to his immediate knowledge. Therefore the amoraim have the power to establish the Jewish law according to an individual when, through the power of their Torah, they determined that the reasoning of the individual is more persuasive, since this is clear to them through their Torah and the depth of their holy understanding. Examine this well.”]
Bottom line — how does the Rabbi understand this rule? Is it of Torah origin or rabbinic? Does it also apply to disputes among halakhic decisors? Is it for cases of doubt or certainty? And what are the proofs?
Thank you very much!! (Also for the fascinating and enlightening website…)
Answer
I think you’ve mixed together different rules here. You’re talking about following the majority, not about “when an individual disputes with the majority, the Jewish law follows the majority.” “Individual and majority” is apparently just a particular case of following the majority (when there are three against two, that’s not “individual and majority” but rather “majority and larger majority”).
“Individual and majority” usually describes a rule in understanding the Mishnah. When Rabbi Judah the Prince states one opinion anonymously as the view of the majority (he presents it in plural form), he is signaling to us that the Jewish law follows it. This has nothing to do with following the majority, because the plural form in the Mishnah is sometimes the opinion of a single sage. It is simply a code through which Rabbi signals to us whose view the Jewish law follows.
Following the majority is indeed a rule derived from “to incline after the majority,” so it is obviously of Torah origin. But it was stated only regarding a dispute in a religious court. As for a majority among halakhic decisors, the situation is more complicated, and the decisors have already discussed this rule at length and there has been a lot of back-and-forth about it from many angles. Bottom line, it is as obvious to me as an egg that there is no obligation whatsoever to follow the majority in disputes among halakhic decisors, for several reasons: 1. The rule of following the majority applies only where there is doubt. If I have my own position, then I am not in doubt, and therefore no obligation applies to me to act according to the laws of doubt (as in the well-known story of Rabbi Jonathan Eybeschutz and the priest). See my article on autonomy in halakhic decision-making (link below), where I also brought the sources you cited (Shakh, Maharshal) and others, all explained this way. 2. The decisors did not sit in a joint discussion and did not hear each other’s views. 3. There are other rules, such as “the Jewish law follows the later authority” (which is connected to point 2, since the later authority usually saw his predecessors). 4. Some made the law depend on the stature of the decisors involved (majority in wisdom or majority in number). 5. Who says you have seen all the decisors from all generations? Many of them did not write their views in books, and even if they did, who says you saw them? 6. A general remark: all the rules of the Talmud (except for this rule itself) are not mandatory, but only a general direction. When it is clear that it is not correct to obey the rule, then one does not obey it.
See my above-mentioned article (and I believe I also refer there to an article by Rabbi Elisha Aviner on the subject, with part of which I disagree). Link:
Discussion on Answer
– Regarding what I wrote about Rashba, let me sharpen it: in responsum 1:253 he does not write that a majority is created only after give-and-take, unlike what is quoted in Beit Yosef (so apparently, as I said, there are two different majority rules with different parameters).
– What you wrote about “the Jewish law follows the later authority” is seemingly not a proof, since this rule does not appear in the Talmud itself (according to the Talmudic Encyclopedia).
– What is the source for the assertion that the rules in the Talmud are only a general direction? (Regarding the rule that the Jewish law follows the majority, I did indeed mention that the Talmud itself does not always act in accordance with it. But what about the others?)
A few comments:
1. From “to incline after the majority” we derive a majority that is present before us, but regarding a majority that is not present before us there are two interpretations in Rashi on Hullin. According to one of them, this is a law given to Moses at Sinai, and according to the second, that too is learned from “to incline after the majority.” In both cases, following the majority is based on logic. The existence of a verse does not mean there is no logic.
2. “When an individual disputes with the majority, the Jewish law follows the majority” is not a halakhic rule. The only rule is following the majority, which is of Torah origin (and is said even among the opinions of doctors). There is no hint to the existence of an additional rabbinic rule, and no reason at all to assume there is one. Therefore there are two possibilities for understanding the Talmud in Berakhot: a. it means that the Jewish law follows the majority; b. it is just a conventional turn of phrase, and the real meaning is the interpretive rule I mentioned regarding Rabbi’s anonymous formulation in the Mishnah. In other words, the wording is that of the Gemara, not that of Rabban Gamliel’s sons.
3. There is no distinction whatsoever between a majority in a religious court or in the Sanhedrin and a majority among halakhic decisors. In both cases we follow the majority, and in both cases this is by force of “to incline after the majority,” except that regarding decisors this is only a principled statement, while in practice we do not do it, for all the reasons I explained in the previous message.
4. All the qualifications that were mentioned regarding following the majority among halakhic decisors are qualifications on the verse “to incline after the majority” (as stated, there is no other majority rule). But in a religious court all the conditions are met (there is discussion among them, there are no decisors whose opinion was never written, etc.), whereas among decisors they are not. That is the entire difference. So there is no difficulty with the exceptions. They stem from the nature of majority in a religious court.
5. The rule of “individual and majority” is an interpretive rule and not really a rule of legal decision-making. It is a code that Rabbi used in writing the Mishnah: if he wanted to leave an anonymous ruling in accordance with a certain opinion, he would present it in plural form. After all, in many cases this is an individual opinion merely presented as the opinion of “the sages.” So this has nothing to do with the rule of following the majority. Of course, the choice to use this particular code stems from the fact that the Jewish law follows the majority (“to incline after the majority”).
6. The rule “the Jewish law follows the later authority” appears in the Geonim and the medieval authorities. So what? If it is correct, then it is correct.
7. The source for that is looking at how decisors relate to all these rules. Even a highly specific rule like “the Jewish law follows Rava against Abaye except for six cases,” Maimonides rules like Abaye in other places too (such as “do not form separate factions,” and according to some views also “if he did it, it is ineffective,” and others). And the Gemara itself says that one does not derive from general rules even where it is said “except.” And with this many difficulties raised by commentators and decisors are resolved, but this is not the place to elaborate.
8. The rule that the Jewish law follows the majority has no exceptions whatsoever. It applies only where you are in doubt. If you have a position, you rule according to your own understanding. And even if there is a specific rule that decides the halakhah (“the Jewish law follows so-and-so against his colleagues”), then again we are not in a case of doubt, and therefore the rule to follow the majority does not apply.
On the one hand, you claim that the obligation to follow the majority applies only when they held a formal count (and then we follow the majority even when it is clear to you that you are right and the majority is wrong), but on the other hand, between the lines it seems that you do think one should follow the majority of halakhic decisors when one is in doubt. Where do we get such a thing from? (According to my approach, it is seemingly obvious.)
—
If I understood you correctly, because you do not accept that there is an additional rabbinic rule, you hold that following the majority of halakhic decisors in a case of doubt is a kind of partial application of the Torah law, since many conditions are not met (there is no give-and-take, maybe we haven’t counted everyone, etc.). How do you jump from a Torah law that is a rule for a definite situation to a partial application of it intended for cases of doubt?
—
Also, you write that all the rules of the Talmud are only a general direction, but seemingly from your words following the majority is actually Torah law and not a Talmudic decision rule? It would seemingly be simpler to say that this is one of the rules of decision-making (which are not Torah law), and therefore they are often excepted (the reasoning of the individual is persuasive, or there is another decision rule).
And if in your opinion following the majority in a case of doubt is Torah law, how can you place before it the rule “the Jewish law follows so-and-so against his colleagues” for example, since of course that is a rabbinic rule? It seems that in your view following the majority is the last rule one turns to, and if it is Torah law then seemingly it should be the opposite.
—
According to your approach, every time in the Talmud there is some tilt toward following the majority, it is either: a. an interpretive rule for the Mishnah, b. following the majority when there was a formal count, c. following the majority in a case of doubt?
—
I would also add: if there are decision rules like “the Jewish law follows so-and-so against his colleagues” or “so-and-so is worthy to be relied upon in pressing circumstances,” why shouldn’t there also be, as I suggest, a decision rule instructing us to follow the majority even when there was no formal count?
—
In your opinion today, if I find myself in a state of doubt, am I Torah-obligated to follow the majority of halakhic decisors? (Provided there is no other rule. But of course the question returns: why is this rule not first on the list if it is Torah law?)
—
I suggest looking here at Rabbi Brandes’ article, which argues that following the majority when they did not stand for a formal count is one of the many rules of decision-making:
Thanks
I already wrote in the past that the Torah’s law is that it is forbidden to go according to the majority.
“You shall not follow a multitude to do evil, nor shall you testify in a dispute so as to incline after the multitude to pervert justice.”
It is as if the Torah is saying: do not use the argument “incline after the majority.” That is not how one judges.
And in general, the Torah itself is based on the fact that the majority does not determine things, but Moses our rabbi does. As opposed to the majority.
A formal count is binding where there is a law of following the majority, meaning in a religious court. If halakhic decisors came today and voted to a majority, in my opinion that would not obligate. Certainly not when I have my own position. Maybe it would obligate when I do not have a position.
The Torah rule speaks about a situation of doubt, not certainty. When opinions in a religious court are divided, that is a situation of doubt, since we are talking about a ruling that is supposed to come out of the court, and no such ruling yet exists. In such a case, it does not matter whether one of the litigants or one of the judges has his own opinion. By the way, this is not my own invention. From this verse they derive the rule of following the majority in cases of doubt (a majority present before us, and perhaps also one not present before us).
“The Jewish law follows so-and-so against his colleague” is not rabbinic. The sages have authority to decide halakhot, and they chose to decide this way. Once they made such a decision, the situation is no longer defined as doubtful, and therefore the rule of following the majority does not apply. An analogy is the permission to rely on an individual opinion in pressing circumstances. After all, one should follow the majority, and even when the sides are equal there are laws of doubt (a Torah-level doubt is treated stringently). I have always wondered: what is the permission to violate the law in pressing circumstances? And if there is such permission, then let us violate it even without an individual opinion. I argue that the explanation is that pressing circumstances can count as a non-doubtful situation (because we have a mode of decision), and therefore the rules for doubtful situations (such as treating Torah-level doubt stringently) do not apply.
—
Indeed, that is correct: when the Talmud follows the majority, it is in one of the three situations you described.
—
There is no reason there could not be such a rule. It just doesn’t exist in practice. There is no indication whatsoever that such a rule exists.
—
I answered above: in my opinion, no. If you are in doubt, you have to act stringently according to the laws of doubt. I’m not sure one may rely on the majority of halakhic decisors leniently at all when one is in doubt.
Thank you, and have a good week. Things are starting to become clearer to me.
—
Just one final clarification.
We do find places where halakhic decisors ruled leniently, even in Torah-level matters, based on a majority (though usually together with additional considerations, as Get Pashut rule 5 pointed out). How did they do that? Do they simply disagree with you and hold that the majority of decisors does have some status? (For example, Radbaz and Shakh explicitly think so, and even hold that it is Torah law.)
I have to say that even in your words I keep seeing a bit of ambivalence: on the one hand, you say emphatically that a majority among halakhic decisors has no significance, but on the other hand you did write “maybe it would obligate when I have no position,” and when I described the three possible situations of majority in the Talmud, one of them being following the majority in a case of doubt (not as a rule in the Mishnah and not when there was a formal count), you agreed that such a thing exists (and if such a rule exists in the Talmud, then clearly it is binding), and in one of the earlier messages you wrote, “as for a majority among halakhic decisors, the situation is more complicated.”
Maybe it is simply obvious to everyone (except for the Shakh and Radbaz) that there is good logic, even without a source, that when there is a clear majority one is obligated or permitted to follow it even leniently? Or maybe everyone relied on precedents of ruling according to the majority (and then it would have some status by force of custom or something like that)?
—
Or perhaps my assumption is wrong, and in practice people really do not rule according to the majority at all (except for the Shakh, Radbaz, and those who hold like them), and the combinations cited by Get Pashut were in fact decided by majority in wisdom (based on the well-known doubt-rule, “if one of them was greater… follow him”), or because the majority was simply more convincing, and so on?
The Shakh absolutely did not rule according to the majority and did not think that this is what one should do. He writes in several places that he rules according to what seems correct to him. True, his method is to take the medieval authorities and draft them into the correct opinion (in his view). And that is how he often forces them and turns the picture around so that the majority inclines toward his own opinion. See what he says in sec. 25, subsection 19, where he says that in principle we follow the majority, but only when it is before us, etc. — which of course never happens. But from the content of his rulings it clearly emerges that he is a very independent decisor who follows his own view against medieval authorities and against the whole world.
See for example his words in Choshen Mishpat sec. 66, subsection 126:
“And the first reasoning is primary, etc. Indeed this is the opinion of very many decisors, especially the Rosh in a responsum (klal 94, no. 5), who wrote that one should not rule like Maimonides (Laws of Hiring 2:3) but rather like Tosafot, who brought well-known proofs for their words. And the Beit Yosef himself ruled later in sec. 301:2 not like Maimonides, and so too he ruled in the Shulchan Arukh later at the beginning of sec. 95:1 anonymously. But what can I do? In my humble opinion the words of Maimonides are primary and compelling in the Talmud, and the proofs of Tosafot and the decisors who challenged him are, in my humble opinion, not proofs, as I shall explain. And it is obvious that we do not follow the majority of decisors in a place where it is evident to the eye from the Talmud that the law is with the minority, especially since the decisors ruled that way only on the strength of their proofs, and once the matter is refuted, the building falls.”
I think there are quite a few decisors who hold that there is some status to a majority among halakhic decisors. Unfortunately, it is common among decisors to think that if there is a dispute among decisors then that is a state of doubt, and they do not understand that a state of doubt is when you yourself are uncertain.
My opinion is that a majority among halakhic decisors has no status. Even if theoretically there were such a law, in practice there are conditions that are not met (as I detailed above). And even if the majority had some status in certain cases, that would only be where I have no position of my own. I don’t think I wrote anything different anywhere.
Thank you for the response. Let me sharpen where my question comes from.
—
The source of the law requiring us to follow the majority is the verse “to incline after the majority” (Exodus 23:2). The Talmud (Hullin 11a) defined that this obligation applies only to “a majority present before us, such as nine stores and the Sanhedrin,” but not to other halakhic matters (where majority is apparently learned from logic). That is, the law of majority says that judgment is to be decided according to the majority of judges in the court, and this is how Maimonides (positive commandment 175) and Sefer HaChinukh (78) brought it as halakhah.
—
However, in the Talmud there appears the rule “when an individual disputes with the majority — the Jewish law follows the majority” (Berakhot 9a), and they also taught: “the Jewish law follows only the view of the majority” (Eduyot 1:5), and this is also mentioned in the Tosefta (Berakhot 4:15).
—
I understood this to be a different rule, not derived from the verse “to incline after the majority,” but rather rabbinic, and dealing with disputes among halakhic decisors — meaning even when they did not dispute face-to-face and did not stand for a formal count, unlike a religious court (and apparently that is also the case in the Tosefta, where the rule is mentioned in the context of a dispute without a formal count).
It is also hard to say that this is a Torah-level rule, because there are so many rules of decision-making that conflict with it (I gave some examples, such as the Jewish law follows Beit Hillel, the Jewish law follows the lenient opinion in mourning, the Jewish law follows Rav in matters of prohibition; and we also saw many times that the Talmud itself rules like the individual opinion and states so explicitly).
But it is also clear (as you wrote) that this is only a rule for cases of doubt (otherwise it would not have so many exceptions).
And in my opinion this is also how Rashba understood it (and Rema, Choshen Mishpat 25:2, brought it as halakhah), since in Choshen Mishpat 13 the Beit Yosef quoted him saying that “majority” exists only after give-and-take, whereas in Responsa 1:253 he held that one should follow the majority in a case of doubt [though it should be noted that what is quoted in the Beit Yosef also appears in the Responsa of Ritva, no. 85, and it may be that the original quotation is from Ritva].
—
From your words I understood that you hold that the rule “the Jewish law follows the view of the majority” is just another formulation of the Torah law of “to incline after the majority” (as Pri Chadash, Orach Chayim 496:11, and Mishpatim Yesharim 1:238 understood), and therefore it simply does not exist when there is no give-and-take and no formal count (although Radbaz [4:116, 1187] disagreed even with this and held that even without a formal count, etc., it is still Torah law). Seemingly this is difficult in light of the Tosefta I mentioned (though I assume one could answer it).
Likewise, if this is a Torah-level rule, how can it so often have exceptions? (Perhaps you would answer that because it is only a rule for cases of doubt that is why — but since when are there such rules of doubt in the Torah?)
Also, I understood from your words that you distinguish between the rule “when an individual disputes with the majority, the Jewish law follows the majority” and the rule “the Jewish law follows the view of the majority.” In other words, the second rule is the Torah law of following the majority, while the first is a rule of interpretation within the Mishnah itself. But in context (Berakhot 9a) it is not mentioned as a rule in the Mishnah but as a broader rule.