Majority verdict

Mitzvot and middot do not always comfortably complement one another. Sometimes it seems that they are on course for a collision.

At Exodus 23:2, in Parashat Mishpatim, this week’s Torah reading teaches us:

לֹא תִהְיֶה אַחֲרֵי-רַבִּים לְרָעֹת וְלֹא-תַעֲנֶה עַל-רִב לִנְטֹת אַחֲרֵי רַבִּים לְהַטֹּת

“You shall not follow the majority to do evil; nor shall you respond to a grievance by yielding to the majority to pervert [justice]”.

In the course of his commentary on the verse, Rashi explains that a judge, though outnumbered by his fellow judges, should voice his opinion in accordance with his understanding of the law and the evidence, if he considers that his colleagues have mistakenly or intentionally reached a contrary conclusion.

Pirkei Avot appears to take a contrary stance, one that at first sight seems less principled. At Avot 4:10 Rabbi Yishmael ben Yose teaches:

אַל תֹּאמַר קַבְּלוּ דַעְתִּי, שֶׁהֵן רַשָּׁאִין וְלֹא אָֽתָּה

Don’t say, "You must accept my view," for this is their [the majority's] right, not yours.

One might jump to the conclusion that a judge who disagrees with the majority is therefore obliged to accept their reasoning, even if it is erroneous or even perverted. But is this so? Certainly, a single judge cannot outvote the majority, but what precisely Is he bound to accept?

Clearly Rabbi Yishmael cannot have been inviting the dissenting judge to drop his principled stance and connive with a majority who wish to pervert justice. But he must also have intended to teach more than simply that the stand-out judge should accept the decision of the majority, since that is an established halachah.

Arguably, this teaching in Avot is that, once the minority rabbi has explained his objection to the majority position, he should stop at that point and not be overcome by the temptation to assert himself through the force of his personality. Once the other judges have heard his argument, his job is done. “You must accept my view” is not an argument based on law or on fact; it should therefore not be allowed into the court’s discussion—however correct it may be.

There are other ways of explaining our mishnah in Avot that do not bring it into possible conflict with our Torah verse at all. The Me’iri gives us an extreme example of this in his Bet HaBechirah, where he astonishingly removes it from the context of judicial proceedings altogether and categorises it as good advice for businessmen that they should not assert their position against their colleagues without bringing some sort of proof to support it.

Returning to the application of  this mishnah to a judicial context, the Hebrew word דַעְת, which is translated here as “view”, has many shades of meaning. These include the following (per Jastrow and Brown-Driver-Briggs): knowledge, mind, temperament, intention, skill, perception and wisdom. Rabbenu Yonah picks up on this: the דַעְת here refers to the knowledge of an expert judge who is sitting with a panel of non-experts. He cannot say: “I know I’m right, based on my expertise in this area—and if I was judging the case myself I would do so on the basis of my expertise. It’s only my humility that caused me to hear this case with other judges in the first place”.  It would be a strange species of humility that enables a single judge effectively to overrule his colleagues in this manner. I leave the last word with Rabbi S. R. Hirsch:

“[O]ne who impudently seeks to force his own decision upon others only exposes thereby his deficiency in wisdom and scruples, as well as his foolish conceit”.