Commentaire sur L’Exode 23:2

לא תהיה אחרי רבים לרעת THOU SHALT NOT FOLLOW THE MANY FOR EVIL — There are Halachic interpretations of this verse given by the Sages of Israel but the wording of the text does not fit in well with them. They derive from here that we must not decide a person’s guilt by a preponderance of one judge. And the end of the verse they explained thus: אחרי רבים להטות — but if the judges who declare the defendant guilty are two more than those who declare him innocent, then decide the matter as they declare — that he is guilty (Sanhedrin 2a). — The verse, they point out, speaks of capital cases. — The middle passage לא תענה על רב, they explained as though it were written על רַב, “thou shalt not speak against the chief of the judges, meaning that one should not give an opinion different from that given by the מופלא of the court (the most eminent among the judges, because this is disrespectful to the Presiding-judge). In consequence of this rule we begin to take the view of those in the side-benches first — we ask the youngest judges to express their opinion first (so that they may not be able to vote against the view expressed by the מופלא). Therefore the exegesis of the verse according to the words of our Rabbis is as follows: “thou shalt not follow a bare majority for evil” — to sentence a man to death on account of the one judge by whom those who condemn him are more in number than those who acquit him; “and thou shalt not speak against the chief inclining away” from his opinion. — They explained this latter phrase thus, because the word which is usually written רִיב is here written without and therefore may be read, אחרי רבים להטות — ;רַב, there is, however, a majority to whose view thou must incline. When is this the case? When there are two who preponderate amongst those who vote for condemnation over and above those who vote for acquittal. For from what is implied in, “thou shalt not follow a bare majority for evil”, I may infer: but thou shall follow it for good. Hence they (the Rabbis) said (i. e. they established the general rule): In capital cases we may decide by a majority of one for acquittal, but only by a majority of at least two to condemn. Onkelos translates the second phrase by: Do not refrain from teaching when you are being asked your opinion in a legal matter. The Hebrew text is to be explained according to the Targum as follows: לא תענה על רב לנטת If you are being asked your opinion in a legal matter do not give your answer just to incline to one particular side and so to withdraw yourself from the dispute, but decide the matter as truth requires. Such are the expositions that have been offered of this verse.

לא תהיה אחרי רבים לרעות, as the tie-breaking vote in a trial involving capital punishment. One cannot declare someone guilty of the death penalty on the basis of a solitary judge. A majority of one would be equivalent to a conviction by a single judge.

לא תהיה אחרי רבים לרעות, "Do not follow a multitude to do evil;" Our sages have offered a multitude of explanations on this verse none of which appear to address the plain meaning of the verse. I believe we need to understand this verse in terms of Numbers 35,24 and 25 ושפטו העדה…והצילו העדה. Our sages (Sanhedrin 4) comment there that when the court is to decide in matters which carry the death penalty there have to be a minimum of 23 judges in order that there could be a quorum (10) which indicts and a quorum which (may) exonerate. The extra number is designed to enable a majority to be present at all times. On folio 17 of the same tractate we are told that should all the judges indict unanimously the accused goes free.