Q&A: A Proposal Regarding Majority Rule in a Court as a Non-Present Majority
A Proposal Regarding Majority Rule in a Court as a Non-Present Majority
Question
Hello Rabbi,
Following the last lecture on doubt and statistics, I wanted to ask about the view of the Sefer HaChinukh and the explanation that the Rabbi rejected regarding the understanding of majority as a “non-present majority.”
Could one suggest that the truth a religious court reaches according to the Chinukh is not truth in reality, but rather legal truth? If we define legal truth as a process of inquiry and investigation, applying halakhic methods and rules of decision, then perhaps we could examine the functioning of the court through experiments (even thought experiments).
Obviously there is a lot problematic about this (there is also a great deal of discretion in halakhic ruling that cannot be measured, so my suggestion strips away most of the value in the ruling process and leaves only a dry “procedure” or algorithm of investigations in court, and even there one can still err, in my humble opinion. The Rabbi often mentions, in the context of the relationship between Jewish law and secular law, that in Jewish law too there are things that are “accepted” and things that clearly “cannot be done”), but is there any obstacle to defining the majority in court that we are looking for in this way?
Answer
Do you mean to check, on the basis of a sample, whether usually when there is a dispute in a religious court the majority gets the truth right? If that can be checked, then it would indeed be a non-present majority, but the Gemara says that this is a present majority. In other words, your suggestion leaves the difficulty in place, whereas I resolve it, so why accept it?! But even on the substance of the matter, I do not agree that this can be tested empirically. How would you know what the legal truth is? Who would determine it? Will you make a statistic based on the majority of halakhic decisors? If so, then you are assuming what you are trying to prove: that in Jewish law we follow the majority. So there is no point in such a process, because you can simply follow the majority in the specific panel currently under discussion, and that’s that.