Halakhah su Esodo 23:2

With this the discussion there (Bava Batra.24b) is explained. Rava stated, we can make three conclusions from R. Hiyya's teaching: 1) in cases of majority (rov) conflicting with proximity (karov), we rule according to the majority. 2) Majority (rov) is a Biblical rule. 3) We follow the ruling of R. Zera ⁹R. Zera's ruling is discussed in the gemara on BB 24a.. The talmud asks, but wasn't Rava the one who said that (the case of blood found in the corridor) was a case of majority and prevalent, with which no one argues (that the combination is more potent than proximity)? The talmud answers, Rava retracted from that statement (and concludes that even majority alone, without prevalent, is more potent than proximity). Tosafot there (Tosafot on Bava Batra 24a:5, lead words Ruba d'oraita) regarding "majority" is a Biblical rule, this refers to a majority which is not in front of us ¹⁰"Ruba d'leta kaman" is most easily explained as a majority which is not actually counted, but is assumed as common knowledge. In this case, as explained by the author in paragraph 5 below, the fact that bleeding occurs more commonly from the uterus than the "attic" is an assumed majority rather than a counted majority. In some places, this seems to be described as a form of chazaka, a strong assumption. For with respect to a majority which is in front of us ¹¹"Ruba d'ita kaman", a majority which is actually counted, e.g. 36 out of 71 judges in the Great Sanhedrin, or 9 out of 10 butcher shops selling kosher meat. we have no need (of proof from R. Hiyya), for it is an explicit verse, "you shall favor the majority" (Exodus.23.2) ¹²This is a more literal translation. The Koren and JPS translations are modified to follow one of the rabbinic interpretations, but our author is using the literal translation to support his argument.. It is possible to ask how is it proven from R. Hiyya regarding a majority that is not in front of us, since the blood of the uterus is (obviously) more copious than the blood of the attic, and this would definitely be considered a majority that is in front of us?

Determining with perfect certainty that any particular animal is not a treifah would require a laborious and time-consuming post-mortem examination. Indeed, since perforation of the major portion of the trachea or even a minute hole in the esophagus renders an animal a treifah, it is impossible to make an absolute determination that the animal is not a treifah because, in an otherwise kosher animal, the perforation may be masked by the slaughterer's incision. The Gemara, Hullin 11a, determines that no such anatomical examination is necessary. Instead, the Gemara declares that the rabbinic rendition of the verse "according to the majority to determine" (Exodus 23:2) serves to establish the principle of rov, or "majority." The principle of rov establishes that, given the existence of a major set and of a minor set, each set containing entities of a single species but of differing halakhic status, one may assume that any unexamined entity within that species is a member of the major set. Applied to the kashrut status of any unexamined animal, the principle of rov serves to establish that the animal in question is not a treifah: The majority of animals are not treifot and hence constitute the major set. Therefore, despite the existence of a minor set comprised of animals that are treifot, any slaughtered animal must be assumed to belong to the major set of non-treifah animals. Hence the meat of an unexamined animal—and its milk while the animal is yet alive—may be consumed by reason of reliance upon the principle of rov.

Rabbi Yan'ai declared, "The words of the Torah were not given in final form (ḥatukhin). Rather, with regard to every single matter that the Holy One, blessed be He, told Moses, He enunciated forty-nine considerations [to render it] pure and forty-nine considerations [to render it] impure. Moses exclaimed before Him, 'Sovereign of the Universe, when shall we arrive at a clarification of Halakhah?' God said to him, 'According to the majority shall you decide (Exodus 23:2). If those who declare it impure are more numerous, it is impure; if those who declare it pure are more numerous, it is pure.' "

(11) And all this that we have written applies to one who speaks singly or who listens singly, but if he joins himself to a company of wicked men and speakers of lashon hara to tell them or to listen to them, he also transgresses (Shemoth 23:2): "Do not incline after many for evil," which is an exhortation not to agree with or even join with evildoers, though they be many. (And see further, Positive Commandment 6, where you will see that he also transgresses a positive commandment by this evil "joining." And see above (Negative Commandment 4) where I have cited Pirkei d'R. Eliezer on his [R. Eliezer Hagadol's] will to his son in this regard.

There is, however, another entirely distinguishable principle of rov that is applied when the question is whether a given entity became detached from a major set composed of identifiable members or from a corresponding minor set also composed of identifiable members. Since all members of those two sets were identifiable at least at one time, that rov is known as a "rubba de-ita kamman—a rov that is present before us." The latter principle of rov is derived directly from the biblical phrase "according to the majority to determine" (Exodus 23:2). The paradigmatic example is meat found in the street in a city having nine kosher butcher stores and one non-kosher establishment. The meat that has been found has clearly become separated from its original source. In that situation there is a major set comprised of nine members and a minor set having a single member. Application of the principle of rov yields the determination that the meat in question has become separated from a member of the major class and hence the meat is ruled to be kosher. The talmudic formulation of that principle is "Kol de-parish me-rubba parish—All that are separated are separated from the majority."

Not to incline after the many in capital punishments because of one: That a judge should not go after the opinion of the majority in capital punishments when the difference will only be one man (see Sefer HaMitzvot LaRambam, Mitzvot Lo Taase 282). And the elucidation of this is that when there is a disagreement among the judges about the case of a man, and some say that he is liable for the death penalty and some say that he is not liable - and those who [would] make him liable are one more than those who [would] make him innocent - that the judge should not do with the [suspected] sinner according to the words of those who make him liable; as it is stated (Exodus 23:2), "Do not be after the many to do bad" - meaning to say, do not go after the majority that would result in concluding a verdict of death. And this is the expression stated in the Scripture, "to do bad" - meaning to say, to a liability for the death penalty. And that is when there is an exact majority, meaning to say that the decision is only because of one person. But if the decision is with two, we follow their words, even 'to do bad.' And in the Mekhilta d'Rabbi Yishmael 23:2, "Leaning to the good is according to one, but to the bad is according to two."

That the one who advocated innocence at the beginning of capital cases not advocate guilt: That one of the judges not go after the opinion of another greater judge or even after the opinion of the majority, because he trusts him - to make liable or to make innocent - if the matter is not understood to him in his mind. And if it is a case that is dependent upon a decree of scripture (gezerat hakatuv), a gezerah shava or a hekesh (the latter two being exegetical inferences based on similar wording in two sections), he must know it himself and not rely and trust one of the [other] judges or the majority; as it is stated (Exodus 23:2), "and you shall not answer about a dispute to incline." [This is] meaning to say, do not say something about a dispute to incline - meaning only from the side of leaning towards the words of a great judge or towards the majority - and not from the side of your understanding. Or if you want to be silent from [saying] that which is in your heart about the case and [instead] to incline after their words, do not do so. And the language of the Mekhilta d'Rabbi Yishmael 23:2 is "'You shall not answer about a dispute to incline' - that you not say, 'It is enough for me that I be like Rabbi x,' but rather, say what is in your heart. Maybe, monetary cases are also like this? [Hence] we learn to say, 'to lean after the majority.'" And within this very negative commandment is included that the one who advocates innocence in capital cases not go back and advocate guilt; as it stated, "and you shall not answer about a dispute to incline" - meaning to say, "let not your words be inclined towards guilt" (Sanhedrin 34a). And so, too, included is that we do not open towards guilt in capital case. And the explanation then comes, "and you shall not answer about a dispute to incline," meaning to say, the opening of your words should not be for guilt. As per force, we must explain it about the beginning of the case, since it is impossible to say that it warns that you not answer guilt about about the whole case. As, if so, no man would ever be prosecuted.

The commandment of inclining towards the many: To incline towards the many, and that is when there arise a disagreement among the sages in a law of all the Torah laws - and so too in a private case, meaning to say a case that would be between Reuven and Shimon, for example - when there would be a disagreement between the judges of their city, that some of them rule guilty and some rule innocent, to always go after the majority; as it is stated (Exodus 32:2), "to incline towards the many." And in the elucidation, they, may their memory be blessed, said (Chullin 11a), "The majority is by writ of the Torah." And this choice of the majority appears to be when the two opposing groups are equally known for their Torah wisdom - as it cannot be said that a small group of sages would not be decisive against a great group of ignoramuses, and even like [the number] that went out from Egypt. But with approximately equal wisdom, the Torah informed us that the many opinions will always conform to the truth more than the minority. But whether - according to the opinion of the listener - they agree to the truth or they do not agree to the truth, logic dictates that we do not swerve from the path of the majority. And that which I say that the choice of the majority is always with two groups that disagree that are equal in the wisdom of truth is said so about every place except for the Sanhedrin. As with them, we are not exacting when they disagree as to which group knows more; but rather we always do like the words of their majority. And the reason is because they had an obligatory number [of people] by writ of the Torah; and it is as if the Torah explicitly commanded, "Do all of your matters according to the majority of these" - and also as they were all great sages.

And [so] we learn, "destitution, destitution," to arrange things with a debtor in the way that we arrange things with appraisals, and we should not hesitate about the words of Eliyahu. And so did all the Geonim and Rabbenu Alfasi rule. And even though Rabbi Yaakov in the name of Rabbi Pedat, and Rabbi Yirmiya in the name of Ilfa, said that we do not arrange things for a debtor, in the way of it being obvious in the Gemara - [nonetheless] we do not hesitate about the words of Eliyahu. And even though we found that Rabbenu Tam wrote like the opinion that we do not arrange things, and his proofs are in his book, 'after the many do we incline.' And Rambam, may his memory be blessed, also ruled like the other Geonim that we arrange things (Mishneh Torah, Laws of Creditor and Debtor 1:7). And nonetheless, he wrote that the agent of the court only leaves the debtor items that are essential to him, such as a bed and bedding and that which he wears. And it appears that what forced the Teacher to say this is when he saw in this chapter [entitled] Mekabel regarding an agent of the court: That they said in the Mishnah (Bava Metzia 113a), "If he had two items, he takes one and returns one - the pillow at night, and the plow during the day." And they did not list tools of the trades. But from what it appears, this is certainly not a great compulsion [to rule as he did]. As since it is established to us that we arrange things with him in the way that we arrange things with appraisals, they are the same in every matter. And even though the Mishnah did not enumerate them, this is no matter; as it is not like a peddler that enumerates [all of his wears] and repeats [them] in every place. [Rather] it mentioned pillow and plow, and the law is the same for everything that is fitting to leave him. And the principle of the matter, according to that which seems - and that which is agreed by all the savants of the world whose fame about Torah has been disseminated - is that we arrange things with a debtor exactly in the way that we arrange things with appraisals. And they have what to rely upon from the words of the Gemara and from that of Eliyahu - may he be remembered for the good - as we we have written.