Q&A: Majority in Prohibitions
Majority in Prohibitions
Question
An old question has been with me regarding majority in matters of prohibition, and I thought I would wait until an opportunity arose—but a person’s curiosity is stronger than many delays, and since I saw in the new column that you make use of the kind of reasoning that lies at the basis of the question below, I’ll take that as the opportunity. I read the columns on the site that deal with majority.
The Torah law is to follow the majority, whether in a religious court in monetary matters, or in a religious court in matters of prohibition, or in prohibitions outside a court context. It is clear that if a religious court (let us assume the judges are all equally competent) rules in monetary matters to obligate one party and exempt the other, then it makes sense to follow the majority. The alternative is to follow the minority, and that is presumably less just. As the saying goes: “Democracy is the rule of the minority.” Here the halfway line of 50% is special and clearly distinguished.
But when dealing with prohibitions, the picture is different. If the harm in permitting a prohibition is worth twice as much as the harm in forbidding something permitted, then one should require a majority of two-thirds and a bit in favor of permission in order to follow the majority and permit. Otherwise the expected harm is positive. Therefore, from the Torah’s rule to follow the majority (for example in a religious court regarding prohibitions), it would seem to follow that the problematic nature of permitting a prohibition is exactly equal to the problematic nature of forbidding something permitted. The point is that we have no a priori reason to think the two harms are equal, since they are completely different from one another. The Torah’s revealing that the harms are equal is surprising to exactly the same degree as any other ratio between the harms. Therefore, whatever line the Torah had set would be equally understandable to us, just as the majority line is now understandable to us. If so, it is very surprising and interesting that the line is such a nice, neat, friendly round line like 50%. It is unlikely that all the sages of Israel thought this was a completely arbitrary number, like the number of bulls on the festival, for which there is no point seeking explanations. And another question along these lines: in a religious court, the majority is not merely something just above half; the smallest majority is 36 out of 71, that is, 0.507. And the sages came and inferred by reasoning that the same law applies even to 0.506, which implies that this is not only the Torah revealing the ratio, but also rabbinic reasoning that the law follows any majority whatsoever. In other words, the sages themselves did see something special about the 50% line.
As far as I understand from your reply here https://mikyab.net/posts/73804#comment-55778, there is no explanation for this point, although of course you sensed the issue. To be sure, this is not an objection but a question, because I too admit that the 50% line is a priori possible just like any other line, but it is still surprising (very, very surprising) that specifically this nice symmetrical line was chosen.
Answer
You’ve anticipated what comes next. I too felt this in connection with that discussion, and the next column is intended exactly for this (it is already almost ready). Briefly, I would answer that if one wants a sweeping and uniform rule—after all, there is no way to assess the harms—it makes sense to set it at half rather than at any other number. There is an alternative, namely to leave it to each individual case, but Jewish law does not work that way. Of course, that does not mean that if there is a clear case in which the harms can be estimated, we would not depart from this rule. As for the rest, I suggest it be discussed there.
Discussion on Answer
By the way, something that is very strange to me is that in my searches at the time I couldn’t find anyone who had put a discussion of this question in writing. Even though presumably many dealt with it from different angles, since there is no field in Torah more thoroughly plowed than majority, and this is a very simple question. Even in yeshiva I raised the point with a few teachers, and they brushed me aside like windblown chaff, saying that the Torah tells us, in the law of majority, what to regard as true for purposes of practical conduct, and therefore any assessment of harms is simply irrelevant.
Everything you mentioned has nothing to do with the Torah.
The Torah says the opposite: that one should not follow the majority: “You shall not follow the many to do evil, nor shall you respond concerning a dispute to incline after the many to pervert justice” (that is, the excuse of majority is invalid according to the Torah).
And the Torah commands us to pursue justice, and justice has nothing to do with majority or minority.
One could even say that following the majority is a perversion of justice, and the Torah commands: “Do not pervert justice.”
If you don’t go according to the majority of judges, then according to what do you decide? Apparently you will have to say there is a single judge. And what will you do, for example, with a verse like: “And the judges shall inquire היטב, and behold, if the witness is a false witness, he has testified falsely against his brother”? What if some of the judges investigated and think he is a false witness, and some do not?
Wonderful. I no longer know whether on this site I should recite only blessings over Torah study or also blessings of enjoyment.