Friday, November 11, 2011

Rav Gedalia Nadel Z"L on the Rule of the Majority.

As I am learning Hilchot Ma’achalot Assurot with my chavruta and we are reaching the chapters that deal generally with Ta’aruvot, mixtures of forbidden and permitted foods, we decided to go over a shiur that Rav Gedaliah Nadel (RGN) gave in Kolel Chazon Ish on the subject of Rove – the rule of the majority. The shiur is printed in Rav Shailat’s Betorato Shel Rav Gedaliah and was approved by him. We found it to be very helpful. I will present here in my own words my understanding of his approach. I think it is important to see how a real original Torah thinker deals with a complex subject and I am hoping that I will learn something myself working through the issue this way.

There is an accepted basic general rule in cases of mixtures of forbidden and permitted foods, Issur and Heter that according to torah law (de’oraita) the minority is subsumed by the majority - -
מדאורייתא ברובא בטיל (TB Chulin 98b) . The rule (Bitul henceforth) has many detailed variations and arguments among the rabbis as to its application, whether it applies to all mixtures, whether they are of the same type of food or also when two different types are mixed together, does it apply to both dry with dry and wet with wet (liquids) mixtures and so on. The idea behind this rule is, as explained by Rosh (Chulin chapter 7 letter 37) that although when a mixture of Issur and Heter occurs, for example one piece of unslaughtered meat among two kosher pieces, we know that the forbidden meat is present and logically we would say that when one picks one piece to eat there is a possibility that it is the forbidden one and considering that neveila is an Issur Torah, a safek (when the Issur is not known) would be prohibited. The Torah however tells us (Gezeirat Hakatuv) that we consider it as if the Issur became Heter and we can even eat the whole mixture. In other words not only are we allowed to eat each piece on its own, but we may even eat the whole all at once (e.g. eat all the pieces) where the prohibited is necessarily also consumed.

The question is what is the source of this rule? If it is a Gezeirat Hakatuv where is it found in the Torah? Rashi in Chulin says that it is based on the verse in Shemot 23:2
לֹא-תִהְיֶה אַחֲרֵי-רַבִּים, לְרָעֹת; וְלֹא-תַעֲנֶה עַל-רִב, לִנְטֹת אַחֲרֵי רַבִּים--לְהַטֹּת.
Thou shalt not follow a multitude to do evil; neither shalt thou bear witness in a cause to turn aside after a multitude to pervert justice;

I will not go here into a discussion about the plain meaning of the verse versus the Midrash; suffice it to say that the Rabbis read the last three words אַחֲרֵי רַבִּים—לְהַטֹּת as telling a court, a Beit Din to decide according to the majority rule (see the first Mishnah in Sanhedrin 2a). Rashi is telling us that the rule that we follow the majority in a court ruling can be extended to Bitul. But where is the similarity? A court is trying to determine the truth. There is only one truth and the Torah tells us that we must accept the truth as seen by the majority. The other opinion is therefore not the truth; it is wrong, null and void and therefore non-existent. In a mixture, the prohibited food remains there though only in a minority, but it is present in some quantity. How does the unslaughtered meat become slaughtered meat? More surprising yet, is that we do not find this comparison in the Gemara. It is only the Rishonim who develop this comparison between courts and food mixtures. The Rosh as we saw sees this as a Gezeirat Hakatuv which traditionally is understood to be a rule that does not necessarily have a rational explanation. Had the Rabbis in the Talmud told us that it is so we would have been forced to accept it and assume that it is a tradition going back to Moshe, but how can Rishonim develop an irrational comparison?

There is a Gemara that, at first blush, seems to tie the rule of majority in courts to other Halachik situations of Rove. The Gemara in Chulin 11a says:
מנא הא מילתא דאמור רבנן זיל בתר רובא מנלן דכתיב (שמות כג) אחרי רבים להטות רובא דאיתא קמן כגון ט' חנויות וסנהדרין לא קא מיבעיא לן כי קא מיבעיא לן רובא דליתיה קמן כגון קטן וקטנה מנלן

  • -        What is the source of the rabbi’s rule: follow the majority?
  • -        You are asking for the source? Isn’t it written, follow the majority?
  • -        I was not asking about a majority that is present e.g. nine stores and Sanhedrin. I was asking about a majority that is not in front us, e.g.  Male and female minors.
The Gemara sees the case of majority rule in courts as comparable to the one of nine stores and therefore the latter can be deduced from the former. The comparison may be explained that when we accept the court’s majority rule it is because we assume that there is a strong probability that the opinion of the majority is correct and the contrary opinion is non-existent. So too, when there are nine stores selling Kosher meat and one Non-kosher and one finds meat in the street that must have come  from one of the stores and is now in doubt from which store it came from, the probability is that it came from the nine and not the single non-kosher one. In either case probability works for the majority – he probably found Kosher food and so too the court majority ruled correctly. That is not so in the case of Bitul; we always have the forbidden mixed with the permissible. How do we deduce from the courts that the forbidden – which is still present – is seen as non-existent? We still have no good explanation how the case of Bitul can be compared to the court case.

Rabbi Chaim Brisker (Chidushei Hagrach LaShas – stencil – Baba Kama 27b) suggests that there is Bitul in the case of the Courts. The Torah requires that a Beit Din be composed of a certain number of people, three for monetary matters, twenty three for capital cases and so on. In a case of a disagreement, when we follow the majority, aren’t we deciding a ruling without the required minimum of Dayanim? The Torah however teaches that if the minimum members are present, even when they are not unanimous, they can still rule and the ruling is binding. That shows that the minority opinion is not seen as non-existent but rather as agreeing with the majority. In other words, we see the minority as being forced to adopt the opinion of the majority and now we have a unanimous ruling by the required minimum Dayanim. It is an ingenious suggestion but works only if we assume that there must be a minimum of, for example, 23 Dayanim deciding the case.  We can also alternatively understand that the Torah requires a minimum of Dayanim deliberating a case and if a majority agrees they can then decide and rule according to that majority as long as 23 partook in the deliberations. Reb Chaim’s proofs from various sources, Tosafot in Baba Kama 27b and Sanhedrin 30a are not convincing. (RGN presents strong rebuttals which I will not discuss here).

In our discussion so far we have assumed that the reason for following the majority in the case of the courts and the nine stores is based on probability. This assumption needs to be reassessed.

1.      We can demonstrate that the Gemara in Chulin 11a did not see it that way. The Gemara accepts the comparison of the nine store case to the courts but does not agree to compare the case of the male and female minors to it. The latter case is one of Yibum – levirate marriage – with the involvement of a minor. A brother’s wife is considered an Erva –intimate relationships are forbidden with her - even after the brother’s death. If however the couple had no children, there is a positive commandment for the surviving brother to marry the widow.  The Mitzvah of Yibum supersedes the Issur Erva because, as the Torah explains, the brother is required to establish the deceased brother’s name – namely give him an heir. In the case that either the surviving brother is a minor or the widow is one, there is a possibility that either one will grow up sterile and thus will be unable to fulfill the intent of the law. We however do not worry about it and say that the majority of children do not grow up sterile and rely on the rule of following the majority. That being a probability why does the Gemara not accept it as similar to the majority rule of the court which we suggested is also based on probability? Why would relying on a probability of something occurring in the future רובא דליתיה קמן be less of a probability?  It shows that the Gemara was on a different track and probability was not the reason for this rule and when the Gemara differentiated between a majority that is present and one that is not, some other principle was involved in its thinking. Should one suggest that the Gemara was basing its question on a Gezeirat Hakatuv, namely that we see the Torah uses the case of the courts to set down the rule of Rove and that is a majority that is present that would also negate the comparison to the nine stores. A Gezeirat Hakatuv which supposedly has no rationale should not allow for deductions and extrapolations. The rule would apply only to the case where it is used and nowhere else.
2.      In the case of the nine stores, we described it as one finding a piece of meat in the street in a town where there are nine kosher butchers and one non-kosher one. It is only in that case that we follow Rove. In the case where one bought a piece of meat from one of the stores not knowing which store it was, the rule of rove does not apply and the meat is considered non-kosher. The basis of this ruling is a verse in Devarim 19::11
וְכִי-יִהְיֶה אִישׁ, שֹׂנֵא לְרֵעֵהוּ, וְאָרַב לוֹ וְקָם עָלָיו, וְהִכָּהוּ נֶפֶשׁ וָמֵת; וְנָס, אֶל-אַחַת הֶעָרִים הָאֵל.

The subject is the law of the sanctuary cities. The Torah allows for an accidental murderer to escape to one of those cities and remain safe from a vengeful relative of the victim. The Torah defines “accidental” and then adds a negative condition; should the murderer have lain in wait for his victim, he would not be eligible for sanctuary. That seems to be limiting what would be considered intentional murder to only when the murderer was lying in wait. One opinion is that it limits a case of someone throwing a rock into a group of ten people that contained one person who, if killed, the murderer would not get the death penalty. Even though the great majority of the people made the murderer eligible for the death penalty, that one ineligible one in the group saves him from that fate. The rule of Rove does not apply here because when the Rove is stationary we look at each individual as one of two (similar to the odds in dice) and therefore the exempting person is matched to each of the group individually. We now have an even possibility rather that Rove. The same applies to the nine stores in our case. If probability is the underlying basis for majority rule, how does it work here? How does this situation affect the probability of the murderer killing the one that exempts from death penalty rather than one of nine regular people? If again we would see this as a Gezeirat Hakatuv, how then can we extrapolate to the case of the nine stores and make it into a general rule that כל קבוע כמחצה על מחצה? 
3.      The entire premise that the majority of the Dayanim is correct is questionable. A difference of opinion amongst Dayanim is usually subjective. The case that presents itself has many nuances and to decide which of the two petitioners is telling the truth or his perception of what really happened is correct depends on intuition and other non-objective analyses; attitude, demeanor, body language and so on. A majority does not have a better chance to get at the truth than the minority. There are cases too that can be decided either way based on the text and the rules of interpretation. (We find in Hilchot Mamrim 2:1 that a later supreme court may overturn the ruling of an earlier one based on their own interpretation. My addition DG).  Clearly there is more than one truth. We must therefore conclude that the majority rule has nothing to do with the probability that they are correct. It is just a practical rule where decisions are required and we follow the majority right or wrong otherwise we would never arrive at a conclusion.
To answer the questions we presented, RGN introduces several what I consider revolutionary ideas and unique approaches of integrating Halacha, Philosophy and Psychology. RGN explains that the generally accepted idea that Gezeirat Hakatuv has no rationale is incorrect. When there are two or more ways to look at something, the Gezeirat Hakatuv, the Torah tells us the path to choose.  Without the Torah we would be at a loss how to proceed as each path has its own logic. However, the path chosen by the Gezeirat Hakatuv itself, the choice it made, tells us what the thinking behind that choice is and we can use that rationale for other similar situations.

The idea behind the Gezeirat Hakatuv of following the majority is that when a person is confronted by a mixture, the majority is dominant and is seen as the totality. For example, if a field is green but has some minor patches of yellow, a person that looks at the field refers to it as a green field.  A rice dish that has some vegetables mixed into it is referred to as a rice dish notwithstanding the other minority ingredients. This idea applies to all cases whether it is a court or a food mixture. It does not mean that the minority opinion in the case of a court is non-existent but rather the majority opinion that the court ruling follows is representative of this court. We see this in our day to day life too. The current Supreme Court is the Roberts court and its decisions are referred to as that court’s decision although there were dissenting opinions. The same applies in a mixture of permissible and forbidden foods. The forbidden food is there, in fact if more forbidden food falls into the mixture, enough for it to now constitutes a majority, the mixture becomes forbidden again – Chozer Veni’ur (see Rosh above a little further).  But while the forbidden food is in the minority, we refer to the whole mixture as permissible. Without the Gezeirat Hakatuv we would consider every mixture as questionable, every court ruling that has dissenters as unresolved, and the rules of Safek would apply – De’oraita lechumra and Derabanan lekula. If the subject matter is a Torah prohibition we would act strictly while if a rabbinic rule leniently.  The Gezeirat Hakatuv tells us to choose the side of the majority and act accordingly. We look at all “mixtures” as being uniform, whether it is a court with dissenters or a food mixture.

Now the two cases of the “nine stores” become clearer. When the piece of meat is found in the street, we look at all the town’s butchers from where this meat came from as one entity that is Kosher. The one store that is not kosher does not stand out in that whole. However, when a person doubts into which butcher store he entered to purchase, worrying that he might have bought it in the non-kosher one, we have two choices. We can look at the stores and see them as above or we can argue that when then person entered the store to buy meat, this store was a well-defined location that does not become one with the other store and therefore is not seen as one entity. The fact that he does not remember which store it was leaves the question open and the safek remains. It should therefore be treated as a Safek would. We therefore have the Gezeirat Hakatuv of, וְאָרַב לוֹ וְקָם עָלָיו, to teach us that indeed the second position is the Torah’s choice and it remains a Safek. There is a rationale for this choice and a very important one. A person who knows that there is a non-Kosher butcher amongst the town’s butchers is very much aware of that. This is very much on his mind. When a question develops in which store he purchased, a question mark will always remain in his mind. On the other hand when a piece of meat is found in the street, the whole focus is on this particular piece of meat. There is no awareness that it might be forbidden as most of the meat in town is kosher. Following the majority fits well with the persons perception. RGN explains, and to me this is the most important point, that Mitzvot are there to influence our behavior and our thinking. Human nature and perception therefore play a central role in how Halacha deals with all Mitzvot. There is no intrinsic Issur just as it relates to the self -control of the observant religious person. Permitting one to eat something that in his perception there still is doubt about its permissibility is counter-productive when self-control is the objective. Rav Sheilat in a note comments that RGN repeated this point in many of his shiurim.

Finally, the Gemara in Chulin that differentiates between the cases of the courts and the nine stores and on the other hand the case of Yibum of minors can also be understood with this reasoning. While the courts are seen as one entity and the decision ignores the dissenting minority, that is not so with the case of Yibum. The possibility of a minor becoming sterile is rare but that possibility is not part of a group or entity where the overwhelming majority can swallow it up and thus ignore it. Here we need to turn to probability, a totally different concept. The Gemara therefore looks for a different comparison.  אחרי רבים להטות would not cover this case.
I believe that we learned two very important ideas from this discussion of Rove by RGN. The first is that a Gezeirat Hakatuv has rationale and that rationale can be applied to other cases. The second is the idea that, as Mitzvot are for the betterment of humans and not to placate God, as we apply the practical rules of a Mitzvah, we look at how it affects the person who performs the mitzvah. It is not the actual reality that plays a key role but rather the perception of the person affected. These are very Maimonidean concepts! We also learned that we must not separate learning from its applications in real life and take into account the influence it has on the person who is committed to Halacha.
I left out a few other references that RGN addresses such as a Mordechai in Chulin who quotes a rabbeinu Yakar and a Tosafot in Baba Kama that suggests that Rabbi Meir who takes into account the minority does so only in cases similar to Yibum of a minor. They add to the theses of RGN and strengthen it but it would be an impossibly long post and possibly distracting from the main point.

Shabbat Shalom.


1 comment:

  1. Interesting idea. See these blog posts which deal with the concept of Kavua: