Q&A: Following the Majority in Prohibition and Permission
Following the Majority in Prohibition and Permission
Question
Hello Rabbi,
The Talmud in Chullin 11a derives the rule of "follow the majority" from the case of nine kosher shops and one non-kosher one, based on the verse "… incline after the majority."
But the verse is speaking about deciding a legal ruling in a court, and the jump from there to the laws of prohibition and permission seems very puzzling to me.
After all, the whole point of a trial is to decide one way or the other, and therefore a verse is needed to instruct us to rule according to the majority (and not according to some other method, such as wisdom or seniority, for example).
But in the laws of prohibition and permission, if we are dealing with a significant minority such as 9 against 1, then seemingly there is no reason not to act according to the laws of doubt (to be lenient in rabbinic cases, and stringent in Torah-level cases).
Likewise with the laws of ritual impurity: we should have been stringent in a private domain and lenient in a public domain.
What is the mechanism that allowed the Sages to interpret this verse this way?
I thought that perhaps in the case of a court they understood that following the majority is obvious (contrary to what I wrote above), and therefore: if it is not needed for the matter of a court, apply it to another matter… but that seems forced to me, and in fact I have not found any hint of this anywhere.
Thanks in advance.
Answer
Even in court it is possible not to decide and instead to follow the laws of doubt. At least in criminal law (capital punishment and lashes, or decisions of the Sanhedrin on prohibition and permission). In civil law you have to decide, because even non-decision is a decision in favor of one of the sides.
I don’t understand why one should follow the laws of doubt rather than the majority. Why is that preferable? The consideration of not failing is not the only one. There is also the consideration of not burdening people and not demanding excessive demands of them (to be stringent over every drop of prohibition).
I didn’t understand the connection to the laws of ritual impurity. That is what we do there.
The mechanism is reasoning. Especially since the conclusion of the passage there is that there is no source for a majority that is not present before us, and Rashi writes that this is a law given to Moses at Sinai (which is unlikely) or simple reasoning.
Regarding the comparison between majority in a court and an ordinary present majority, see columns 79 and 613 (discussion of a majority of aspects). Also 226 and 228.
Discussion on Answer
Since there is no natural dividing line, they set it at 50%. I don’t see any problem with that.
As I understand it, there are two different concepts here (before Jewish law has been ruled):
– nullification by majority
– following the majority
Nullification by majority is a very reasonable thing, since in practice people use it in many areas, not only in Jewish law: if a small piece of waste falls into food, people do not worry about it. The condition, however, is that the majority be a very large one: no one would eat a meal made up of 49% waste and 51% food. Likewise today, everyone boards a plane even though there is a one-in-a-billion chance that it will crash. But no one would board a plane (even once in a lifetime) if the chance of crashing were one in ten.
Following the majority means that even though the majority is narrow, there are situations in which the minority is disregarded. That makes sense when one must take a position. Otherwise, it is a major and non-intuitive novelty. Therefore, in Jewish law a verse is required. And indeed, "incline after the majority" is said regarding a majority of judges, but as I said above, a court is expected to decide; otherwise the court has no significance at all, which is not the case in a private decision about prohibition and permission. There we should have reverted only to nullification by a large majority, not to following the majority.
One more comment: if commandments have significance in reality (metaphysically, a Platonist approach), then there is no rationale for nullifying a prohibition by a narrow majority, as I explained above (the airplane analogy).
But if commandments have no consequences in reality, and the only measure is the level of obedience to God’s command, then it could be that for every action one must define its status (forbidden or permitted), and that definition can indeed be determined by the majority.
Even if there are consequences in reality, one could still argue that we should be stringent in every situation. Why take the risk of eating pork? So in any case it is clear that Jewish law allows taking risks in order to live a reasonable life. They drew the line at fifty-fifty. Beyond that, even if there is spiritual harm, if Jewish law permits it then perhaps that cancels the spiritual harm.
Sorry if I wasn’t clear, but I meant the opposite: if there are consequences in reality (the metaphysical kind), it is hard to understand the reasoning for placing the line in the middle. And the proof is the airplane analogy.
If there are no consequences in reality, then one can place the line in the middle in order to live normal lives without violating the divine command.
Or in other words: according to the Platonist approach, it is hard for me to understand the reasoning for being so lenient, since we are making life easier for ourselves at the cost of a flaw in some "other place" that will occur with a probability of (for the sake of discussion) 49%.
You were clear. I was arguing that even if there are real-world consequences, one could still claim that nothing should be permitted based on any majority unless there is certainty.
I’ll try one more time…
We agree (I think) that one cannot demand following the majority in prohibition and permission unless there is some prior rationale that following the majority (with the line drawn in the middle) in prohibition and permission is at least reasonable.
Assuming that prohibition and permission have consequences in metaphysical reality, how is it reasonable a priori to place the line in the middle rather than somewhere within a large majority that has the power to nullify?
"Even in court it is possible not to decide"
But a court is expected to decide. To rule according to the laws of doubt means not to rule, because without a court each person would in any case have to act according to the laws of doubt in a case of uncertainty.
It seems to me that the reasoning is not simple at all when we are talking about a significant minority such as one against two, or perhaps 51 kosher shops against 49 non-kosher ones. It seems to me that there is a rationale for nullification by a large majority, not by a narrow majority. True, one has to define what counts as a large majority that has the power to nullify, but one against two certainly cannot be considered nullification by a large majority.
In other words: there is a rationale for nullification by majority, but not for following the majority, unless one is forced to take a position.
As for ritual impurity: in a case of nine frogs and one creeping thing, my understanding is that we also follow the majority there, and there too I am asking why.