Shabbat Parashat Shemot| 5763

From the works of Hagaon Harav Shaul Yisraeli zt”l

Does Beit Din Follow Majority of Opinions or of Wisdom? – Part II

Based on Amud Hay’mini, siman 4

We saw last time that there is a problem for junior jurists to argue on the mufla (most revered member) of beit din, and, therefore, we start capital cases from the junior members. Some say that even if the mufla speaks first, the others can argue with him, but they might be reluctant to do so. Others say that the mufla’s view overcomes the majority because of his wisdom, while others say that the mufla can force the other dayanim to conform with his opinion.

The Mechilta seems to say that these halachot apply to monetary law, but we must say that, according to Tosafot, this is only partially so. The Torah says not to argue on the muflah and also not to change one’s opinion and support a position with which he doesn’t agree. However, one can say that only the problem of arguing applies to monetary law, but regarding not withholding one’s personal opinion, this applies only to capital cases. One can say that after failing to convince the muflah to accept their logic, it is natural for the junior members to go along with his authoritative opinion, just as a minority must sign on to the opinion of the majority. This is apparently the approach of Rav Hai, that when the dayanim are not of the same level, we follow the one “who gives a good reason for his opinion.” The term seems strange, because all of the dayanim should be providing rationale. He apparently means that we accept the opinion of the muflah only after it has withstood the (respectful) presentation of contrary opinions. Rav Hai agrees with the simple understanding of following the majority. The muflah cannot outweigh the opinion of the others. Rather, based on the principle of “Lo ta’aneh al rav,” the others are expected to retract their opinions on monetary matters in favor of the muflah’s.

     Within Rashi’s opinion there is an apparent contradiction, for on the mishna (32a) he implies that they can argue on the muflah. It appears, upon close investigation of Rashi’s words, that the issue isn’t whether the junior members can argue but when. During deliberations, it would be improper to champion an opposing view to that of the muflah. But when the time comes for the final vote, they are bound to rule according to what their minds tell them. Even during deliberations, it may be possible to suggest alternative viewpoints (according to the simple reading of Tosafot). Regarding capital matters, we start with the junior members out of fear that they might be intimidated from arguing even in a permitted fashion. By monetary matters, we give precedence to the more authoritative and are not overly concerned that the junior members will not express themselves according to their rights.