Wednesday, November 17, 2010

Halacha is according to majority - even if view is not factually true

Ginas Veradim (O.H. 2:6): According to the Torah one needs to follow the majority in all matters—even though for a particular issue it is possible and even likely that the result is not true. One follows the majority even in such serious matters as marital issues which can cause mamzerim…. The Rambam’s words concerning the validity of a Sefer Torah fit in well with this. Since we are trying to ascertain the correct text, it is necessary to thoroughly examine all possible scrolls—and then follow the majority. A Torah which has been corrected to follow this majority view is considered as being the Torah which was given on Sinai. Any deviation from this “majority” text is considered completely invalid according to Torah law and it lacks the sanctity of a Sefer Torah… The scribes from the previous generations worked hard to determine an accurate text based on the principle of “majority”… Therefore, a Torah which has been corrected according to this established text should not be modified. It should be viewed as the text that was received from Sinai. Consequently, any deviation from this standard accepted text - even a small single letter - should not be used l’chatchila for public reading. It should be viewed as an ordinary Chumash as the Rambam himself writes. However if it were used for public reading then one can rely on those who are lenient and not require that the reading be done over from the beginning…


  1. The Chazon Ish YD 150:8 says that we only apply the rule of following the majority in a ruling within a Bais Din. A majority opinion doesn't outrule a minority opinion outside of a Bais din.

  2. Henoch,

    The role of rov poseqim is given different importance in shu"t depending on the author. Rav Ovadiah tends to give it more weight than Litvisher rabbanim do.

    I would say that the rule is only binding, as opposed to something to consider, when you can get people in the same room and physically vote. Such as when Batei Hillel veShammai met together in Chananiah ben Chizkiya ben Garon's attic.

    But even without such votes, among the reasons given for following Beis Hillel was that they were more numerous. And we also find yachid verabbim halakhah kerabbim among names cited in a mishnah, without knowing if they met in Sanhedrin and how the vote went. This seems to be a less formal, a rule-of-thumb application of the idea.

    To get back to the quote itself, I'm not sure the Ginas Veradim is being precise in terminology. He mentions the example of "such serious matters as marital issues which can cause mamzerim" among the cases where "one needs to follow the majority in all matters—even though for a particular issue it is possible and even likely that the result is not true."

    If the issue really is "truth", then in truth the offspring would be mamzeirim. No less than if a man disappears, beis din rules his agunah can remarry, she remarries, has children, and the first husband shows up. And yet while we do worry about significant minorities when it comes to a chance of mamzeirus, we don't here.

    I think (as people who follow Avodah well know) the point is that truth and law are different things. The law is set by rules of authority. Drift in the law is okay, even if based on a misunderstanding about precedent, for the very reason that it is defining law, not finding truth.

    That is the difference between the beis din that rules based on misunderstanding or not knowing previous rulings and one that rules because it seems clear the husband is dead when he wasn't. One is erring in how they understand existing law, accidentally using their authority to create new law. The other is erring in the application of the law.


  3. Micha mamzer is only prohibited if known as opposed to other halachos which are inherently prohited. that is why is why the unknown cases will not be exposed by Eliyyahu

  4. And previous Dorot of scholars and sages who dissented from these NOW authoritive texts, who ruled according to them, people who theologically differed from current prevailing majority are now in Gehinnom and heretics, their views no longer authoritative? What would happen to legal precedent if indeed one may halachically rule in matters of belief such as this? What of matters of belief about the mesorah? I know - many ask this question in one form or another (whether souls are shuttled between olam haba and gehinnom according to the latest psak by a Gadol for ex), but I think it always needs to be asked again and views clarified again whenever the "rule of the majority overrides empirical truth" is raised, on any halachic matter.

  5. It's a little more complicated than that.

    There is a gezeiras hakasuv that a safeiq mamzer may marry any Jew. However, not every doubt about mamzeirus is included. I was thinking about a shetuki when I wrote of worrying about minority possibilities WRT mamzeirus. It's that gemara that is phrased about yuchsin which triggered in my mind from the wording of your translation and Henoch's comment.

    ומה טעם אמרו שתוקי פסול? גזירה שמא ישא אחותו מאביו. אלא מעתה, שתוקי שתוקית לא ישא, שמא ישא אחותו מאביו!
    כל כי הני מזנו ואזלי? בת שתוקית לא ישא, שמא ישא אחותו מאביו! אלא לא שכיחא. ה"נ (הכא נמי) לא שכיחא! אלא, מעלה עשו ביוחסין.

    Safeiq mamzer is bedi'eved, once the children exist. Here we're talking about pesaq that includes lekh-chilah, where we hold
    ma'aleh asu beyuchsin not to run a remote risk of creating future mamzeirim.


  6. I not sure about how broadly to apply the concept of majority vs minority, however we see from the CI that I cited above that majority rule cannot be used as a hammer to demand conformity to a community that follows a Rav or a tradition that adheres to a minority view.
    See also Igros Moshe OH 1:186 where he says that a community that considers a certain activity (Heter Mechira) sinful (majority?), cannot view those who follow their own Rav to use Heter Mechira (minority?), as sinful. It would not even be able to be put in the category of 'machzik yidei ovrei aveira.'

  7. The example given of the RAMBAM's tatement concerning the correct textual reading derived from the reading of the rov of manuscripts is fundamentally different than deriving a halach l'ma'aseh from a majority of views on the subject.

    The former relies on a majority of evidence, I.E. the rov of the manuscripts have the same language. The latter relies on a majority of opinions not evidence. To quote (I think) Daniel Moynehan, "You are entitled to your own opinion. You are not entitled to your own facts".

  8. Pierre,

    Aren't you skipping around from matters of law to truth, from halachic decisionmaking to who believed what and would get punished for it?

    One doesn't rule in matters of belief. One rules about how to treat others who have different beliefs. In other words, no one "pasqened" that there will be a messianic king, and if someone who doesn't believe in one will go to hell. Rather, there are rulings that I may not drink wine touched by someone who lacks such a belief. (And other, more lenient, rulings exist as well. My point as that this is the realm of pesaq.)



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