Rosh(6:7):
When a community agrees on some matter an individual has no right to protest. Concerning this the
Torah states that one must
follow the majority. If you don’t
agree to this principle than the community would never have the ability to make binding rules because you will never get unanimity on
an issue.
Shabbos (60b) R.
Mattenah — others state, R. Ahadboi b. Mattenah in R. Mattenah's name — said:
The halachah is not as R. Eleazar son of R. Simeon. But that is obvious:
[where] one disagrees with many, the halachah is as the majority? — You might
argue, R. Eleazar son of R. Simeon's view is logical here; hence we are
informed [that we do not follow him].
Chazon Ish(150.8): In this letter he takes issue with
the idea that in deciding what the halakha is poskim are bound to follow the
majority opinion of previous poskim. The idea of a majority rule, he says, has
no place outside of a beis din, and therefore the only place where a majority
rule can determine the general psak halakha is in the Sanhedrin of 71. He
points out that such a method is not found among any of the prior great poskim.
Rather, he writes that in absence of a complete consensus on an issue among the
early significant rishonim each posek is entitled to adopt any interpretation
of the halakha that is supportable by the gemara and that has not been
eliminated by a total consensus of prior poskim.
Chazon IshKelayim
– beginning):It is well known that the requirement to follow the majority
applies only to a beis din which is in session, but regarding scholars holding
different views who lived at different times or in different places, the
question of majority or minority is not relevant. In a particular area where
most of the Torah derives from a particular rabbi and his disciples, and the
disciples' disciples, it is correct to follow their rabbi even in a matter in
which the majority (of authorities) hold a different opinion. In recent generations most of our Torah has come ot us through
the specific sefarim in our own teachers like Rif, Rosh, Rambam, Ramban,
Rashba, Ritva, Ran, Maggid Mishne, Mordechai, and the commentaries of Rashi and
Tosfos, and however there is a difference of opinion (and as mentioned above,
majority ruling does not enter) it is in the hands of every individual Torah
scholar to decide whether to take a strict view or to select particular authorities to follow; likewise, in the case where no decision has been taken
and the question is still open (safek). In addition to the fact that majority rule does not apply in the
above situations, we do not even know what the majority view is, since many
scholars did not put their views in writing, and many written views did not
reach us. (Therefore Jewish law does not change when new manuscripts are
printed which convert a minority into a majority. Despite this, the courage and
insight needed to decide on a logical basis are sometimes lacking, and
decisions are taken on the basis of numerical majority; but it would be better
to rely on those authorities whose views have reached us in all branches of
Torah. Even though we do not presume to decide between different
Rishonim by conclusive logical arguments, nevertheless,the study of their
arguments is a major factor in reaching a decision, and many times our master
z"l (Rabbi Yosef Karo) decides in favor of one authroity because his
argument is convincing and removes difficulties. Our Rabbis have taught us not to abandon the use of our own
intellect, and we must place great weight on intellectual comparison which is
the connecting link between Creator and created.
Chazon Ish
(Choshen Mishpat Likutim #1 or Maaseros #13): halacha follow intellect and
one must examine the decision of the achronim. If it is not clear what to do
than it is accepted to follow the Shulchan Aruch/Rema
Rambam(Introduction
to Mishna Torah)
After the tribunal of Rab Ashi, who compiled the Talmud, which was completed in the days of his son27, the extent of Israel's dispersion throughout the lands became more general, its extreme points reaching out to distant isles, in the midst of which universal unrest became alarming, making the highways unsafe on account of military operations, as a result of which the study of the Torah was neglected, and the sons of Israel ceased flocking to their schools in the thousands and in the tens of thousands as theretofore,
save only the gathering of a remnant few, who ever hear the call of God in each and every city and in each and every country and study the Torah and understand all the works of the scholars and learn to know therefrom the path of the law as it is.
Thus, every tribunal, founded during the post-Talmudic era in each and every country which issued edicts, or enacted statutes, or established customs, either for the inhabitants of its own country alone or for the inhabitants of many countries, did not have its authority extended throughout all Israel, because of the great distances between their habitations and the unsafe condition of the highways. Moreover, as the tribunal of a given state consisted of individual scholars only, for the Great Tribunal of seventy one had ceased to be many years before the compilation of the Talmud,
the people of one state could therefore, not be forced to inaugurate the custom of another state; neither could one tribunal be told to issue edicts similar to the edicts issued by another tribunal for its own state. Likewise, if one of the Gaonim instructed concerning a given law in a particular way, and it became clear to another tribunal which rose up after him, that such was not the way of the law according to the text of the Talmud, the first one is not supported but the one whose interpretation is based upon sound reasoning, whether he be the first one or the last one.
These rules apply only to laws, edicts, statutes and customs which were inaugurated during the post-Talmudic era; but all matters named in the Babylonian Talmud itself, are mandatory upon all Israel to follow, and each and every community and each and every state must be forced to inaugurate the customs which were promulgated by the Talmudic scholars, to proclaim their edicts and to obey their statutes,
because to all such matters so named in the Talmud, all Israel assented. Moreover, those scholars who enacted statutes, issued edicts, inaugurated customs or made judicial pronouncements and instructed that such was the law, constituted all, or a majority of the scholars in Israel, and they were the recipients of the traditional interpretation of the precepts of the whole Torah, generation after generation, even unto Moses our Master, peace be unto him!
All of the scholars who rose up after the compilation of the Talmud and builded upon it, thereby gaining fame for their scholarship, are called Gaonim. All the Gaonim who flourished in Eretz Yisrael, in the land of Shinar, in Spain and in France studied searchingly the path of the Talmud, and brought to light its hidden mysteries, and clarified its treatises, for its path is an extremely deep path, Moreover, being written in Aramaic, blended with other languages, a vernacular understood by the inhabitants of Shinar when the Talmud was compiled; whereas in other places, and even in Shinar during the period of the Gaonim, no man understood that language unless he received special instructions therein.
In addition the people of each and every city propounded many questions to their contemporary Gaonim for the elucidation of impenetrable texts in the Talmud, to whom the latter responded according to their wisdom, and such interrogators collected the responsa in book form, out of which they gained understanding.
The Gaonim in each and every generation compiled also exegetical works on the Talmud, some of among them interpreted particular laws; of among others particular chapters which had been the subject of inquiry in his days, and of among still others, whole Tractates and Orders.
They also compiled treatises on judicial decisions concerning that which is forbidden, or permitted, guilt or innocence, matters which were the need of the hour, so as to keep in touch with education, even he who is not capable of penetrating the depths of the Talmud. Of such was the Godly work of the Gaonim in Israel from the close of the Talmud even till this time, which is in the eighth year after the eleventh century since the destruction of the (Second) Temple, and which is also the year four thousand nine hundred and thirty-seven since the creation of the world.
