This article originally appeared in the Jewish Free Press, Calgary

Majority Rules*

News Item:

November 2000. The elections to the American presidency remained deadlocked for weeks because of the closeness of the votes. The situation called attention to anomalies in the system that could lead to the election of candidates who did not actually receive the most votes.

On first consideration, the following question seems like an embarrassingly simple one: How does one determine a majority? Is it not a trivial matter of adding up all the votes, and seeing which category produces the larger number?

In traditional Jewish law, the opinions of the majority have generally prevailed. It is a central axiom of Jewish judicial procedure that, where a court fails to reach a consensus in its verdict, the case is determined according to the views of the majority of the judges. It is for this reason that courts normally have odd numbers of judges: three, twenty-three or seventy-one; in order to minimize the likelihood of split decisions.

The rabbis based this principle on a creative reading of Exodus 23:2, the full text of which teaches "nor shall you bear witness in a suit, turning aside after a multitude, so as to pervert justice." Apart from its primary intention of prohibiting collaboration with a deceitful conspiracy, the expression "turning aside after a multitude" can also, according to our sages, be read separately from its context as a positive admonition to the court to follow the opinions of the majority of judges.

This approach was applied to legal decision-making during most eras of Jewish history. The Talmud usually assumes in disputed questions that the normative law favours the views of the majority of rabbis against those of dissenting individuals. Using the same reasoning, the author of the Shulhan ‘Arukh based his rulings on the three most important medieval codes of Jewish law, and when they disagreed he followed the two against the one.

There are, however, several areas where the principle of majority rule has broken down because there were too many competing positions. To cite one important example, the sages of the Talmud was aware that a profound change had taken place towards the end of the Second Temple period, in the process of deciding and transmitting the oral tradition. In earlier times, through the generations that elapsed since the close of the biblical era, scarcely a single dispute was recorded between the sages of the Torah in matters of religious law, a situation that was credited to the courts' ability to issue clear decisions based on majority votes.

And then suddenly, in the first century C.E., in the time of the schools of Shammai and Hillel, we are faced with a proliferation of hundreds of disagreements of the sort that would afterwards come to typify Talmudic discourse. Some modern scholars ascribe this new state of affairs to the growth of sectarian divisions a that time, as disagreements among the Pharisaic sages were exacerbated by the disruptive presence of Sadducees, Essenes and other groups, making it impossible to achieve straightforward majorities on many controversial questions.

Sometimes the definition of a majority could be further complicated by the need to take into account various sub-sets of the population. The ancient division into tribes corresponded roughly to the states or provinces of modern nation-states.

Such a question arises in connection with the laws in Leviticus 4:13-21 and Numbers 15:22-26 that prescribe special atoning sacrifices for cases when "the whole congregation of Israel sin through ignorance." While it was generally accepted that "the whole congregation" should be defined as the majority, it was no simple matter for the rabbis to determine precisely how this majority ought to be calculated.

Similar issues were debated with reference to a postulate of Jewish law that states that the normal prohibitions against entering the Temple in a state of defilement are set aside to allow the offering of communal sacrifices, such as the Passover offering. This rule would apply only if the majority of the population were found to be in a state of impurity deriving from contact with dead bodies.

For purposes of these and other laws, the sages of the Mishnah and Talmud were called upon to define precisely what was considered a majority of the population.

In all these matters, the conclusions that they reached were extremely variegated.

One of the views recorded in the Mishnah held that it should be a simple matter of counting whether the group in question constituted more than fifty percent of the total population. Another opinion, however, argued that each of the twelve tribes of Israel should be treated as a distinct "congregation" for this purpose, and should bring separate sacrifices if a majority of its members were found liable.

Furthermore, if there were at least seven tribes, the majority of whose members were eligible to bring sacrifices, then they should be treated as if they constituted a majority of the twelve tribes, even if the number of their members did not add up to a demographic majority of the overall population.

The learned rabbis also discussed whether a national majority could consist of a single, very populous tribe. And it goes without saying that the Talmud raised the question of how to proceed when the final count was split evenly down the middle.

And so we see that, contrary to our initial impressions, it is no simple matter to determine what constitutes a legal majority.

But of course, all these discussions are nothing more than typical examples of casuistic hairsplitting by talmudic sages who must have had too much time on their hands. Once again they have proven themselves guilty of muddying up the waters with far-fetched academic arguments that have no other purpose than to confuse us unfortunate readers.

After all, the situations that they describe could not possibly occur in real life.

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  • First Publication:
    • Jewish Free Press, November 30, 2000, pp. 6-7.

  • Bibliography:
    • Albeck, Hanoch. Introduction to the Mishnah. Third ed. Jerusalem and Tel-Aviv: Mosad Bialik and Dvir, 1967.
    • Steinfeld, Zvi Arieh. "Types of Majority in Erroneous Court Decisions." Sidra 1 (1985): 69-90.