Q&A: They Took a Vote and Decided
They Took a Vote and Decided
Question
In disputes between the House of Shammai and the House of Hillel, we find several times that “they took a vote and decided” appears as one of the opinions. I looked and found the following: Eruvin 13: they took a vote and decided that it would have been better for man not to have been created. Shabbat 13: the House of Shammai outnumbered the House of Hillel, and they enacted the Eighteen Decrees on that day. Mishnah Mikvaot, chapter 4 mishnah 1: both one who intentionally leaves it and one who forgets—this is according to the House of Shammai and the House of Hillel, who declare it pure in the case of forgetting. Rabbi Meir said: the House of Shammai outnumbered the House of Hillel.
And in all sorts of other places I found by searching the Talmud that “they took a vote and ruled,” not regarding a rabbinic enactment but regarding established laws. [Mishnah Yadayim 4:3: “What novel teaching did you have today in the study hall?” He said to him: “They took a vote and decided: Ammon and Moab tithe the poor man’s tithe in the Sabbatical year.” Shabbat 81a: “Zonin came to the study hall. He said to them, ‘My masters, what is the required size for toilet stones?’ They said to him, etc.—they took a vote and decided: a handful.” Likewise regarding the Sanhedrin (which had moved to Usha): Rosh Hashanah 15b: “Our rabbis took a vote in Usha: an etrog follows its picking both for tithes and for the Sabbatical year.” Beitzah 5b: Rabbi Eliezer had a fourth-year vineyard and wanted to declare it ownerless for the poor. His students said to him: “Rabbi, your colleagues have already taken a vote concerning you and permitted it.” (And who were “your colleagues”? Rabban Yohanan ben Zakkai. Maybe he was head of the Sanhedrin.) Yevamot 92b: Rabbi Yannai (the Amora) said: “In the fellowship they took a vote and decided: betrothal does not take effect with a yevamah.” Kiddushin 53a: Rabbi Yohanan said: “They took a vote and decided: one who betroths with his share, whether from offerings of the highest sanctity or offerings of lesser sanctity, has not effected betrothal,” while Rav said: “It is still a dispute.” Makkot 21b: Rabbi Yannai (the Amora) said: “In the fellowship they took a vote and decided: one who plows with mixed species is flogged.” Temurah 7a: Rabbi Yannai (apparently the same Amora) said: “In the fellowship they took a vote and decided: one who consecrates a blemished animal for the altar violates five prohibitions.” Niddah 51b: Rabbi Yohanan ben Nuri said: “They took a vote and decided that they may not be bought with second-tithe money and do not contract the impurity of foods.”]
My questions:
A. If in a certain generation the Sanhedrin took a vote and issued a halakhic ruling on a Torah-level law, does that also bind later generations—for example, after the Sanhedrin ceased to exist? To disagree with it at a later time, would one specifically need a court, or could, say, Rav Aha son of Rava in his own day sit in his room and rule differently for himself and for the public? If not, then what practical difference does this vote make, which the sources report and from which they prove things?
B. What significance does a vote have when it is not by the Sanhedrin? What does it mean: so-and-so came to the study hall, etc., and then they took a vote and decided—or “in the fellowship they took a vote and decided”? Does that bind the minority? Does it bind future generations? Can that study hall or that fellowship bring all the debates of Abaye and Rava before them one by one and decide them? In Kiddushin 53a above, Rabbi Yohanan said “they took a vote and decided,” and Rav said “it is still a dispute.” That implies that if they took a vote and decided, then even for us it is as though there had never been a dispute here at all.
C. If they were already taking a vote, then why didn’t they decide all the disputes? And how, for example, did a dispute remain in which Rabban Yohanan ben Zakkai had an opinion, without his setting up his Sanhedrin and reaching a decision? I saw in Kelim, chapter 2 mishnah 2, a dispute among Rabbi Ishmael, Rabbi Akiva, and Rabban Yohanan ben Zakkai. And why, when the House of Shammai and the House of Hillel had an opportunity to put matters to a vote, didn’t they settle one dispute after another in all their disagreements? If they can stand for a vote once and have found a trick for reaching a decision, then they should spend all their days doing that and eliminate all disputes. It may be that in order to decide they need to hear one another and debate one another, etc., and only then decide—but presumably in every dispute between two schools in one city, each side had already heard everything the other side had to say, and they don’t need to sit down again and argue in depth; they could just vote very quickly, like committees in the Knesset, at breakneck speed when there’s no communication in the room. And even if they do need to debate, let them be so kind as to sit and debate and decide.
Answer
Let me preface this in light of your discussion with Shatzal. It seems to me that there is a difference between “they took a vote and decided” and “they took a vote and the former outnumbered the latter.” “They took a vote and decided” can be understood as meaning they reached agreement, that is, one side retracted. “They took a vote and the former outnumbered the latter” is a ruling based on majority. That also seems to emerge from the wording of the Talmudic passages you cited.
A. It certainly is binding. I didn’t understand the question. That is the meaning of “do not deviate” regarding everything established by the Sanhedrin. See Maimonides, chapters 1–2 of the Laws of Rebels. Only a Sanhedrin can overturn the words of an earlier Sanhedrin, and even that only under certain conditions.
B. The accepted view in Jewish law is that a majority has significance even outside the Sanhedrin. Admittedly, that is a binding ruling for the people of that generation, but in the next generation they can be counted again and change it, because it is not a matter requiring a formal quorum count. In my opinion, such a majority does not carry much significance unless we are talking about all the sages of Israel, in which case one could discuss whether they perhaps have a status similar to that of a Sanhedrin (like the Talmud).
C. I do not think there is any need to decide every question. Only in matters where it is important to formulate a uniform position for the entire public is it important to decide. Beyond that, a gathering of all the sages is rare—certainly in their day, with the means of travel then in use. To do this for all disputes was probably not practical.
Discussion on Answer
In those laws, every court means the Great Court. In general, to overturn a determination of the Sanhedrin you need a Sanhedrin.
In Maimonides it is clear that he is speaking also about a court that comes after it, meaning in the future. There is clear evidence for this there, and that is also how all the commentators and halakhic decisors understood it. For example, see there the discussion with the Raavad about Rabban Yohanan ben Zakkai and the annulment of adorning the marketplaces of Jerusalem with fruit. At the moment I’m writing this from memory. If you look inside, I’m sure you’ll see it.
See also the Kesef Mishneh at the beginning of the chapter, where he discusses Amoraim who disagree with their predecessors and with Tannaim.
That it is speaking only about a Sanhedrin is also proven by his discussion of how it is possible to be greater in wisdom and number if there are always seventy.
In the Talmud in Kiddushin it is proven from the Gemara itself that “they took a vote and decided” means he actually retracted from his reasoning. The Gemara brings proof that they “took a vote and decided” (and that it is not “still a dispute”) from Rabbi Yehuda, who interprets verses the opposite way from what he had thought previously. That is an explicit retraction in reasoning, not just acceptance that the majority ruled against him.
From the Gemara itself, without Rashi, it’s not really proven. There the Gemara indeed proves that Rabbi Yehuda retracted, but the Gemara did not assume on its own that he had retracted; it found evidence. If Rabbi Yehuda retracted, that means Rabbi Yohanan was right that “they took a vote and decided.” But from Rabbi Yohanan’s phrase “they took a vote and decided” it does not follow that Rabbi Yehuda retracted; it only follows that the halakhah was decided in accordance with the majority.
In addition, it is possible—though a bit forced—that if the matter was decided by majority, then from that point on the individual is forbidden to rule against them, like a rebellious elder against the Sanhedrin. Therefore Rabbi Yehuda ruled from then on according to the view upheld in practice, even though he himself did not hold that way. For the Gemara, that is enough to prove Rabbi Yohanan’s point that the dispute was nullified, but it doesn’t mean Rabbi Yehuda himself was convinced.
As I also wrote above: the term “nimnu” means they stood for a count / vote (maybe it can be interpreted otherwise; that needs checking), and that clearly proves there is an issue here of following the majority.
No, my claim was that Rabbi Yehuda interpreted verses like the opposing opinion, not merely that he ruled in practice like it. That shows he changed his mind also in the underlying analysis, not just in conduct.
[Maimonides wrote: “If the Great Court, etc., judged a matter, and another court arose after them and another reason seemed correct to it to overturn it, then it overturns it.” Above, in section A, you explained his words simply to mean that the later court is also a Great Court, but an ordinary court cannot overturn the words of the Sanhedrin that stood many years earlier.
It seems that Rabbi Elchanan Wasserman and the Hazon Ish disagree about this. Rabbi Elchanan Wasserman, in Kovetz Divrei Sofrim chapter 2, said that the agreement of the majority of the sages of Israel to accept the Talmud is binding with formal authority because it has the force of a ruling by the Sanhedrin, and only another Sanhedrin can disagree with it. The Hazon Ish does not accept this; rather, any court that exists “in those days” can disagree with the Great Court that existed in ancient years (and the Talmud is binding by virtue of substantive authority). The Hazon Ish infers this from Maimonides’ wording (as I tried to infer above), and Rabbi Elchanan rejects that and proves directly that every “court” in those laws means the Great Court (as you argued above).
Rabbi Elchanan Wasserman’s wording in section 4: “And it is necessary that those who disagree also possess the power of the Great Court.” The Hazon Ish’s gloss at the end of section 129: “This is not so; rather, any court can disagree with the Great Court.” And Rabbi Elchanan rejects this and concludes: “It is explicit from this that by ‘court’ in general there he means a court of seventy-one.” ]
Above I showed this from Maimonides’ wording, since he assumes we are speaking of a court of 71. That is also clear from all his language there. The Hazon Ish’s words are very difficult, and were I not hesitant, I would say that he wrote this for the sake of our own time as well (as was his way, to devise rationales for contemporary needs, like “two thousand years of Torah”).
Thanks.
“Nimnu” means they counted / took a vote; if one side retracted, what does counting have to do with it?
A. In Maimonides I know only that as long as the Sanhedrin exists, its authority remains in force. But where does he say there that a Sanhedrin of an earlier generation binds later generations on Torah-level law until they too establish a Sanhedrin? In chapter 2, halakhah 1, Maimonides says: “If the Great Court (Sanhedrin), etc., judged a matter, and another court arose after them” (it doesn’t say “Great Court”) “and another reason seemed correct to it to overturn it, then it overturns it.” Does that mean that the later court must also specifically be a Sanhedrin?