MAJORITY RULE


MAJORITY RULE, deciding a matter according to the majority opinion. In the field of the halakhah this rule is applied in three principal instances:

(a) determination of the binding law according to (the view of) the majority of halakhic scholars;

(b) adjudication of dispute by the majority decision of the courts' judges; and

(c) imposition by majority decision of the community, or its representatives, of a communal enactment (see *Takkanot ha-Kahal), binding on all members of the community. The basis for the majority rule is to be found in the exegesis of the scriptural phrase, aḥarei rabbim le-hattot (to "follow a multitude…" Ex. 23:2).

In Deciding the Halakhah

In the Talmud the phrase aḥarei rabbim le-hattot was converted into a decisory canon: "where there is a controversy between an individual and the many, the halakhah follows the many" (Ber. 9a). The sages of the Talmud explained the existence of this rule as a practical necessity, for if the Torah had been given in the form of an exhaustive codex, "the world could not have existed" (TJ, Sanh. 4:2, 22a; cf. Mid. Ps. 82:3). The halakhic opinion that has prevailed is that the law is decided in accordance with the view expressed by a majority of the scholars, and this is so even if in a particular matter a heavenly voice (see *Bat-Kol) should declare that the law is according to the minority opinion (BM 59a).

The individual may continue to express his opinion that the majority has erred, but may not instruct in practice according to the minority opinion; if he actually instructs others to follow the minority opinion, he becomes (when there is a Sanhedrin) a *zaken mamre (i.e., a "rebellious scholar"; Maim., Yad, Mamrim, 3:5–6). If a majority of scholars should arrive at the same conclusion but each for a different reason, some scholars hold this to be a majority opinion which is binding while other scholars hold the contrary view (Maggid Mishneh, Ishut 7:12; Maharik, resp. nos. 41, 52, 94, 102).

Some of the geonim and rishonim took the view that a minority opinion is to be preferred above a majority opinion of scholars of lesser wisdom. This question first arose in a responsum of Hai Gaon concerning a court decision on the concrete matter in issue, and not as concerns deciding of the halakhah in general (Ge'onim Kadmoniyyim, resp. no. 144; Ramban nov. Sanh. 23a; Sefer ha-Ḥinnukh, no. 67). Some of the scholars opposed this opinion, holding that the law is always as decided by the majority (Haggahot Asheri, Av. Zar. 1:3; Siftei Kohen, supplementary note to YD 242), while other scholars laid down that whenever the minority opinion is qualitatively superior to the majority opinion, the position is as if opinions are divided equally and either may be followed (Ramban nov. Sanh. 23a; Ritba, RH 14b). In the Shulḥan Arukh, the most authoritative code of Jewish law, determination of the halakhah is generally made by application of the majority rule, the author (Joseph Caro) having adopted for himself the principle that the binding halakhah was to accord with the opinion held in common by any two of three great halakhists preceding him, namely Alfasi, Maimonides, and Asher b. Jehiel – or with the majority opinion selected on a different basis if a particular matter had not been dealt with by the three above-mentioned scholars. See *Codification of Law.

Decision by the Court

Within its plain meaning and read within its context, the above-mentioned scriptural passage (Ex. 23:2) has reference to a judgment of the court. The sages of the Talmud derived therefrom an additional interpretation relating to the field of criminal law – in which there is need for a specific majority, i.e., of two at least: "Thou shalt not follow after the many to do evil – I conclude that I must be with them to do well. Then why is it written [to follow] after the many to change judgment? [It means that] thy verdict of condemnation shall not be like thy verdict of acquittal, for thy verdict of acquittal is reached by the decision of a majority of one, but thy verdict of condemnation must be reached by the decision of a majority of two" (Sanh. 1:6 and cf. Mekh., Kaspa 20). Some scholars explain the need for a specific majority in matters of the criminal law on the basis that in matters of the civil law no judgment solely condemns or solely absolves, since any suit involves two litigants and what is to the one's benefit is to the other's detriment; whereas in criminal law matters the judgment is condemnatory, i.e., to the detriment of the accused (Tos. to Sanh. 3b).

A majority is only required in the event that a judicial decision has to be made in a concrete case before the court, whereas in deciding the halakhah in the criminal law field – outside the context of instant litigation – a simple majority of one suffices as it does in all other cases (Resp. Radbaz, Li-Leshonot ha-Rambam, no. 1690).

The amoraim question how a judgment in a civil law matter, arrived at by majority decision, should be worded. It was decided, in accordance with the opinion of R. Eleazar, that the judgment must be written in the name of the court without mention being made of the names of the judges favoring one view or the other (Sanh. 30a; Maim., Yad, Sanh. 22:8); similarly, that a judgment given by a majority decision must be signed also by the judge dissenting therefrom (TJ, Sanh. 3:10; Avkat Rokhel, no. 19; Mabit, vol. 2, pt. 1, resp. no. 173; ḤM 19 – Urim, n. 4). Hai Gaon's opinion (see above) that a preponderance of wisdom should be preferred above numerical majority, also with reference to court decisions, and even that the opinion of one individual may prevail against that of the many, remained generally unaccepted in later generations. Even those who favored wisdom above a numerical majority as the basis for deciding the halakhah, agreed that the majority opinion was to be preferred as the basis for a judgment by the court in the concrete matter before it (Sefer ha-Ḥinnukh, no. 67; Ramban nov. Sanh. 23a).

Communal Decisions and Enactments

The view that has prevailed in Jewish law is that communal resolutions and enactments are passed by a decision of the majority and bind the minority (see Elon, in bibl., 11 n. 34).

This general view was dissented from by Rabbenu Jacob *Tam, who held that only after an enactment had been passed by the whole community might the majority lay down fines for transgression thereof, and that the minority could not be compelled by the community to comply with a decision of the majority to which it had been opposed (Mordekhai, BK 179 and BB 480). The doctrine of aḥarei rabbim le-hattot has been relied upon by the scholars in support of the right to pass a communal enactment by majority decision (Rosh, resp. no. 6:5).

According to some of the scholars, the ordinances of a guild or an association – as distinguished from communal enactments – must be passed with the consent of all members in order to be binding (Ramban, nov. BB 9a; Nimmukei Yosef, BB 9a; Leḥem Rav, no. 216).

In the case of a judicial tribunal, it was laid down that a majority decision is not binding unless all the judges have participated in the proceedings and the judgment is that of the majority of the full complement (Sanh. 5:5). Some scholars deduced therefrom that also a communal enactment passed by majority decision is not binding unless the minority has participated in the proceedings (Rashba, vol. 2, resp. no. 104; Maharik, resp. no. 180; Maharit, vol. 1, resp. no. 58). Since this ruling, if followed, might enable the minority to impose its will on the majority by absenting itself from the discussions of the community, it came to be laid down in the course of time that the decision of the majority shall be binding despite the minority's nonparticipation in the discussions leading thereto. The scholars supported the conclusion either on the basis of a presumption that the absentee minority impliedly agrees to accept the decision of the majority which exerts itself to participate (Mishpat Shalom, no. 231; ibid., Kunteres Tikkun Olam, "vav"), or on the basis that the minority impliedly delegates authority to the majority (Hatam Sofer, ḤM, resp. no. 116); custom too is relied upon by some scholars in support of the majority rule of those participating in the proceedings in communal legislation (Mabit, vol. 1, resp. no. 264). If the community has delegated authority to its representatives, the latter decide by majority decision, but only if the minority too is present (Penei Moshe, vol. 2, resp. no. 110; Birkei Yosef, ḤM 13:7).

[Shmuel Shilo]

Halakhic Decision-Making and the Importance of Minority Opinions

The determination of practical halakhah by the majority does not contradict the concept of freedom of expression nor detract from the importance of any view, even if that view is a lone view.

Early Jewish law, as reflected in the sources, is characterized by its anonymity and its uniformity. Prior to the era of *Hillel and *Shammai, halakhic disputes were rare, since any problem which arose was resolved by the Sanhedrin, which enjoyed complete judicial authority (Sanh. 88b; Tosefta, Sanh. 7:1). From the generation after Hillel and Shammai – i.e., the beginning of the first century – and until the end of that century, following the destruction of the Second Temple and a concomitant decline in the status of the Sanhedrin, the halakhic world split into two schools of thought – the School of Hillel and the School of Shammai (see *Bet Hillel and Bet Shammai). Each school practiced the law in accordance with its own beliefs, while differences even extended to legal questions with fundamental and basic ramifications:

When the disciples of Shammai and Hillel, who had insufficiently studied, increased in number, disputes multiplied in Israel and the Torah became as two Torot (ibid.).

Practically speaking, this period of pluralistic halakhic rulings could not continue for long, as it led to the possibility that families belonging to one school of thought could not marry into the other, thereby dividing the nation into two separate endogamous groups. At the beginning of the second century, when the center of Jewish law moved from Jerusalem to Yavneh, with Rabban Simeon ben Gamaliel II as its head, the original uniformity in practical application that had previously existed in the halakhah was restored.

In deciding between the opinions of the School of Hillel and the School of Shammai, the Sages ruled that "both are the words of the living God, but the law is in accordance with the School of Hillel" (TJ, Ber. 1d).

It was this trend toward deciding between opposing views that led to the early stages in the process of redaction of various legal collections which later constituted the basis for the redaction of the Mishnah. Nevertheless, during the process of redaction of the Mishnah, the divergent views and disputes among the various tannaim were preserved and recorded. One reason for this is stated explicitly in the Mishnah itself (Eduyyot 1:5), namely: that should a later court of law see fit to rule in accordance with the individual opinion, it would be at liberty to do so. In the words of the Tosefta: "Rabbi Judah says: Why is the minority view recorded [in the Mishnah] alongside the majority view…. So that a [later] court that agrees with the minority view can rely on" (Tosefta, Eduyyot 1:4).

Rabbi *Samson of Sens (France, Palestine; 12th and 13th centuries) interprets the aforementioned sources as follows:

Even though the individual opinion was not accepted in the first instance, and the majority disagreed with the individual, a later generation may arise, the majority of whom might agree to the opinion of the individual, and then the matter will be decided in accordance with their opinion. All of the Torah was transmitted to Moses in this fashion: there are considerations to purify and considerations to render impure. (Moses) was told: How long will we have to clarify every situation? He said to them: "The rule is according to the majority; however, both opinions are the words of the living God."

According to this interpretation, there is no such thing as an absolute and unequivocal ruling. In every case there are multiple considerations. While the final ruling in halakhic decision-making is indeed determined by the majority, a different majority at another period in time might arrive at a different conclusion. In the Supreme Court of the State of Israel, this justification for citing minority opinions has been presented – on the basis of the sources cited above – as an explanation for the crucial need to present minority opinions in fundamental court rulings (FH 13/80 Hendeles v. Bank Kuppat Ha'am 35 (2) PD 785, p. 796; HC 669/85 Kahane v. Knesset Speaker, 40 (4) PD 393, 404–420 per Justice Menachem Elon).

An additional explanation, that is both connected to and founded on the previous one, is the pluralistic nature of the halakhah – not in terms of practical actions, but in terms of opinions. The halakhah accepts uniformity in halakhic decision-making as an operative necessity. On the theoretical plane, however, it considers each and every opinion as important, and it sees the importance of presenting the full spectrum of halakhic views. A sage who disputes the opinion of his fellows – even after the Sanhedrin has ruled against his opinion – may continue to adhere to his opinion, so long as he does not rule accordingly for others. Such a sage will not be considered to be a "rebellious elder" (Mishnah, Sanhedrin 11:2).

This position, which sees the multiplicity of opinions and the importance of transmitting all of those opinions to the learning community as a value, may be found in the words of halakhic authorities of later eras.

Rabbi Ḥayyim ben Bezalel Ashkenazi states that, if a halakhic authority were to rule in accordance with a particular opinion on one day, and in accordance with a different opinion on the next day – "this would not be evidence of any change or deficiency which would cause us to say that the Torah has become, God forbid, as two Torahs; on the contrary – such is the way of the Torah, and both are the words of the living God" (Vikku'aḥ Mayim Ḥayyim (Introduction), par. 7; Poland, 16th century).

Rabbi Solomon Ephraim of Lonshitz (Keli Yakar, on Deut. 17:2) applies the same statement to the legal decision of a judge in a case adjudicated before him. In his opinion, in every case there are considerations in either direction, and there is no absolute ruling of pure or impure, permitted or prohibited. That is why, when a court of law rules, we must always rely on its rulings; the court has ruled in accordance with the intellectual discretion of the majority of its members, a fact that endows their opinion with obligatory validity. This, however, does not detract from the essential truth of the opposing opinion, in and of itself. Rabbi Jehiel Michal Epstein (Arukh ha-Shulḥan, ḤM, Introduction; beginning of 20th century) sees the diversity of opinions as the glory of the Torah. He compares it to a choir made up of many voices:

For those who truly understand, all of the disputes of the tannaim and amoraim, the geonim and the posekim are truly the words of living God, and each of them have validity in the halakhah. In truth, that is the glory of our holy and pure Torah. All of the Torah is called "song," and the glory of a song is when the voices are different from each other. That is the essence of its beauty.

These words regarding the phenomenon of multiple opinions as an integral part of the world of the halakhah, have been cited and discussed at length in the rulings of the Supreme Court of the State of Israel by Justice Menachem Elon, in the Neiman case, in the Shakdiel case, and in the Kestenbaum case. In all of these cases he relied on those sources in order to establish the legitimacy of different and divergent opinions in the realm of halakhah, in the spectrum of political opinions in the State of Israel, and in the field of public administration in the State of Israel (EA 2/84 Neiman v. Chairman, Central Elections Committee, 39 (2) PD 225, 292–296; HC 153/87 Shakdiel v. Minister of Religious Affairs, 42 (2) PD 221, 263–264; CA 294/91; CA 294/91 Burial Society v. Kestenbaum, 46 (2) PD 464, 505–506).

[Menachem Elon (2nd ed.)]

BIBLIOGRAPHY:

A.H. Freimann, in: Yavneh, 2 (1947/48), 1–6; I.A. Agus, in: Talpioth, 5 (1950), 176–95; 6 (1953), 305–20; B. Reicher, in: Sinai, 33 (1953), 174–7, 244–6, 383f.; A.I. Zaslanski, ibid., 36 (1954/55), 451–4; I.A. Agus, in: JQR, 45 (1954/55), 120–9; ET, 9 (1959), 241–339; B. Lipkin, in: Ha-Torah ve-ha-Medinah, 2 (1960), 41–54; S. Federbusch, in: Mazkeret… T.H. Herzog (1962), 575–81; M. Elon, in: Meḥkarei Mishpat le-Zekher A. Rosenthal (1964), 1–54; M.P. Golding, in: JSOS, 28 (1966), 67–78; A.J. Blau, in: Torah she-be-al Peh, 10 (1968), 128–34. ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:227f., 320, 397, 443–44, 552, 562, 583f., 718f., 813, 820; 2:870–78, 947f., 1007, 1016, 1018, 1094f., 1212; 3:1465, 1553f.; idem, Jewish Law (1994), 1:256, 383; 2:485, 541f., 672, 683, 886f., 996, 1004; 3:1061–1072, 1147f., 1218, 1228, 1230, 1317, 1452; 4:1740, 1845f.; idem, Jewish Law (Cases and Materials) (1999), 493–522, 524–33; A. Grossman, "Majority and Minority in the Teachings of 11th-Century Ashkenazic Sages" (Heb.), in: Proceedings of the Sixth World Congress of Jewish Studies, Section B (1973), 135–140; J. Kaplan, "Majority and Minority in the Decisions of Medieval Jewish Communities" (Heb.), in: Shenaton ha-Mishpat ha-Ivri (1997), 213–280.


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