This week’s Torah portion focuses on many of the laws between man and his fellow man. The Torah also teaches us how we determine and enforce these laws – through the idea of a Beit Din – the Court of Law whose job it is to determine which party is guilty in any given dispute and to oversee the administration of justice.

How does the Court of Law determine the law in each case? The Torah says acharei rabim lehatot” – “the matter will be inclined toward the majority”.¹ This teaches that in the likely event that not all the Judges in the Court of Law are in unanimous agreement, they should rule in the accordance with the majority opinion.

The question arises as to why exactly we follow the majority in all cases. On a simple level, the Court of Law has to give some kind of ruling so it makes sense to follow the majority, yet is it so simple that we can be so sure that the minority are wrong? The answer to this question can be derived from the Talmud.²

There was a dispute between most of the Rabbis on the Sanhedrin and Rebbe Elizer with regard to whether a certain oven was susceptible to receiving impurity or not. Rebbe Eliezer offered a number of arguments to support his position but the Rabbis did not accept them. He then called for a number of various miracles to prove that his opinion was correct in Heaven. The Rabbis remained unmoved by them. Finally, the Talmud relates:

“He then said to them, ‘if the halacha is like me, let them prove it from Heaven.’ A Heavenly voice (Bat Kol) issued forth and said, ‘why do you take issue with R’Eliezer, whom the halacha follows in all places?’ R’Yehoshua stood up on his feet and said, Lo v’Shamayim he – It [the Torah] is not in Heaven!’ What is the meaning of, ‘It is not in Heaven?’ R’Yirmiyah said, “For the attention of a Bat Kol, a voice from Heaven, for You [God) have already written in the Torah at Mount Sinai, ‘the matter will be inclined toward the majority.”

Despite the fact that in Heaven they clearly agreed with R’Eliezer, R’Yehoshua outlined halacha’s attitude towards Heavenly intervention in halachic matters. Since the Giving of the Torah, the power to determine the halacha is given over to the Court of Law and follows the majority. The Rambam in his Introduction to the Commentary of the Mishna, expresses this idea in the following way:

“And know that prophecy influences neither the explanations of the Torah nor the deriving of the details of its commandments through the principles of exegetical derivation. Rather, the way Yehoshua and Pinchas conducted their investigation and reasoning is the same way Ravina and Rav Ashi performed theirs…God has not allowed us to learn from the Prophets, rather, only from wise men, men of reasoning and knowledge. The Torah does not say, ‘You shall come to the Prophet who will be in those days,’ rather, ‘you will come to the Kohen and to the judge.”³

We can now understand how the Court of Law can totally ignore the minority when it comes to determining halacha. It is not that we are certain that the minority is wrong, rather that the very definition of the ‘correct’ halacha is the conclusion of the majority on the Court of Law. The word for law - ‘Halacha’ - means going, referring to the way that God wants us to go in life is in accordance with the majority of the Court of Law even if we know for sure that even God Himself disagrees with their conclusion.⁴

All this is well and good but a person may wonder how this concept of following the majority pertains to his own life in general and halachic observance in particular. After all, we no longer have a Court of Law so it would seem that the exhortation to follow the majority is obsolete. However, this is not the case. Indeed, even after the Sanhedrin ceased operating, there was still considerable discussion as to whether we can still apply the idea of following the majority. The main Sage who argued that it still applies was Rabbi Yosef Karo, the author the Beit Yosef and Shulchan Aruch, the seminal work of Jewish law.⁵

He presented a very serious dilemma in his generation of how to know how to determine the halacha. He felt that even great Sages such as himself were unable to decide which of the Rishonim (earlier commentaries) are correct. Consequently, he decided that the best way to determine the halacha was to follow the majority. The question arose that there were numerous commentaries so who should be included in the consideration of the majority. At this point, the Beit Yosef made a very novel suggestion and decided that only three of the main commentaries should be included – the Rif, Rambam and Rosh. Whenever, those three ruled a certain way he followed the majority, even if many other commentaries ruled differently.⁶

Despite the disagreement of a number of Authorities, the Shulchan Aruch became the basis of Jewish law for all Jews. However, the problems do not end there, as numerous cases and questions have arisen that were not discussed by the Shulchan Aruch – in those cases, do we also follow the rule of majority? And if so, how do we decide the majority?

The Rashba⁷ addresses this question and cites the Talmud that discusses what to do when two Rabbis argue as to the halacha in a specific case.⁸ The Rashba notes that this is when there are equal numbers on both sides, but if there is a majority one must follow the majority. However, the Rashba concludes that these rules do not apply when the person has a Rav. He points out that there are communities who follow one Rav such as the Rambam in all instances, in which case it is considered as if the Rambam is their Rav.

Given that that it is practically impossible to work out the majority in most questions⁹, it seems far more advisable to follow one Rabbi when possible. Indeed, Rabban Gamliel in Ethics of the Fathers¹⁰ exhorts us to make for ourselves a Rabbi and the commentaries explain that this refers to a Rabbi who will give legal rulings.¹¹

We have seen how the concept of going after the majority is not restricted to the time of the Court of Law, rather it is the basis of much of the halacha that we follow. Yet, in practice, the ideal way to approach Jewish law is to follow one Rabbi.

1. Shemot, 23:2.
2. Bava Metsiah, 59a.
3. Introduction to Peirush HaMishnayot, also see Hilchot Yesodei Torah, 9:1.
4. This approach is largely based on the excellent sefer written by Rav Immanuel Bernstein shlit’a: ‘Dimensions in Chumash’, pp.431-437.
5. It is true that Ashkenazim follow the Rama who wrote additions to the Shulchan Aruch where he disagreed or where the Minhag among Ashkenazim diverted from that of Sefardim. However, in many areas, the halacha universally follows the Shulchan Aruch.
6. He used other principles for situations where those Rishonim did not give a ruling. There was much debate about this decision and many contemporaries disagreed with the Beis Yosef for a number of reasons. See Introduction to Darchei Moshe; Introduction to Yam Shel Shlomo; Netivot Olam, Netiv HaTorah, Chapter 15.
7. Teshuvas HaRashba, 253.
8. Avodah Zara, 7a. See there for the details.
9. One issue with doing so is how to decide which Authorities are included in the assessment of the majority.
10. Ethics of the Fathers, 1:16.
11. Bartenura, ibid.