Dvar Torah on Parshat Mishpatim

Whenever a conversation takes place about Judaism's attitude towards democracy, part of a verse from this week's parsha, Mishpatim (Laws) is usually quoted: "...acharay rabim l'hatot" - "...turn towards the many", or, simply put, go according to the majority. This phrase is often used to prove that although the classic Jewish state was clearly not a democracy - it was, in fact, a constitutional monarchy with certain democratic features - classical Judaism had within it some democratic elements; most crucially, the notion that, in certain frameworks at least, the majority rules. This phrase is used in this way in the section of the Talmud which tells the story of Tanuro shel Achnai, the oven about whose ritual purity Rabbi Eliezer and the other Sages disagreed.

Rabbi Eliezer was a minority of one; well, of two, if you count God. He brought miraculous proofs that his opinion about the oven's status was correct - a tree was uprooted, a stream ran backwards, the very walls of the bet midrash bent to his will, but his colleagues, unconvinced, voted against both God and him, even after a heavenly voice declared that Rabbi Eliezer was right. The Rabbis claimed the right to do so by citing the verse "Lo bashamayim he" - it, the Torah, is no longer in heaven, and God, therefore, does not have the final say on its interpretation. They then clinch their argument with the verse from our parsha: "...acharay rabim l'hatot" - go according to the majority.  With this, the Sages win their argument against the minority of Rabbi Eliezer and God.

However, when one takes a close look at the entire verse, rather than just atomistically looking at this phrase, one sees immediately that things are actually quite complicated. The verse in full, which is very difficult to parse, can be read as something like this: "Do not go after the many for evil, do not respond to a quarrel to turn, turn towards the many." As you can see, not simple at all. The vast majority of commentaries place this verse in the context in which, traditionally, Jewish decisions were made, arguments were advanced, votes were counted, and a form of democracy, as we saw above, prevailed: the bet din, the religious court. It is there, in the Sanhedrin, the high court which convened in Jerusalem (and, later, elsewhere in Israel), which discussed the widest possible range of issues, including the ritual purity of stoves, and which functioned as the legislative as well as judicial branch of government, that the nation of Israel, ultimately, ruled itself. Our verse is basically understood to be addressing these judges.

One Talmudic interpretation, which Rashi quotes but doesn't really like much, reads it this way: "Do not go after the many for evil," - do not condemn a defendant in a capital case (that is the "evil" being done in the verse) by a majority vote of just one. "...Do not respond to a quarrel to turn" - in the aforementioned capital case, when the judges discuss their opinions, do not begin the deliberations with the senior judges, as that will inhibit the junior ones; begin the deliberations with the junior ones, so that they can speak freely. "...Turn towards the many" - only condemn a defendant to death with "many", i.e., at least a majority of two judges more than those who acquit him. In this reading, the verse is about our distaste for capital punishment, and demands that it only take place with a majority of at least two. It also tells us to guarantee the judges in a capital case the freedom to express their opinions during their deliberations.

The Sforno basically agrees with this reading, and adds an interesting scenario: if there are 10 judges arguing for the defendant's innocence and eleven who say he is guilty, and you are then called upon to voice your opinion, do not say that you will simply go along with the majority, thereby condemning the defendant to death with the requisite two-man majority. Rather, formulate your own opinion, whether it be to condemn, along with the other eleven, or acquit, along with the ten-man minority. The Sforno understands the verse as warning a judge to think for himself, and not just go along with what most of his colleagues think.

Rashi feels that this is a farfetched reading; the one-man/two-man majority when judging a capital case business is not to be found anywhere in the Torah's text, and does not seem to be the real point here. Instead, he suggests this broader reading: "Do not go after the many for evil" - If you see evil people perverting justice, do not follow their opinion, excusing yourself with the fact that they are, after all, the majority. "Do not respond to a quarrel to turn, turn towards the many." - Rashi reads this last half of the verse as one negative phrase - if you, the judge who is in the minority, who did not go after the majority "for evil", are asked your opinion about the case by the defendant, do not respond with the opinion of the [evil] majority; tell him what you think the truth is in his case, and let the majority be damned. We see that, unlike the reading of the phrase "turn towards the many" in the story about the argument over the oven, here the phrase is read to mean the exact opposite - do not go after the majority if you think they are wrong. Even after a case has been decided, and the majority has voted, if you believe that they are "evil" - wrong about this case - you must say so. You may not excuse yourself from having the courage of your convictions simply because the majority has decided against you. Even if it means acting in a way which seems to subvert the judicial process - one of the members of the court telling the defendant that he thinks the court's decision was wrong - one must not, intellectually, bow to the tyranny of the majority; one must continue to believe, and speak for, what one believes. Like the Sforno's understanding of how the "swing" judge in a close decision must not simply go along with the majority, but must formulate and express his own, independent position, Rashi sees this verse as encouraging judges to buck the majority, even after it has made its decision.

Looking at these two different interpretations of this verse, we are left, perhaps, with what may be the crucial message about the democratic process. Yes, one must "turn towards the many", the majority does have the final say in deciding public policy. However, this does not exempt us from seeking after that which is true, right, and just, no matter what the majority thinks. And so the Torah presents us, in one verse, with democracy and its corrective: follow the will of the majority, but don't stop thinking, and speaking out, for what you believe to be right.

Over the last few years, both in Israel and in America, the Jewish community has been embroiled in questions revolving around the will of the majority as opposed to individual conscience and belief. Just the other night, my twelve year old daughter Talia wanted to go to the very large demonstration here in Jerusalem against the government's plan to withdraw from Gaza. My wife Iris and I did not let her go, more out of a fear for her safety than anything else; I think that she should be allowed to express her political opinions freely at this age. Thankfully, she also had a friend's Bat Mitzvah party to go to, so we got away with it, but there is no question that tempers here are running extremely high, and large blocs of the populace are at odds with other large blocs, as well as with government policy, to the extent that they are engaging in civil disobedience and, in the army, refusal to follow orders. Similarly, in the States, the recent elections pushed Jewish buttons in ways that we haven't seen in years. Although the elections in Iraq seem to have gone very successfully, and really are, with all their problems, an inspiration, and serve as further proof, if proof was needed, of the strength and beauty of the democratic process, I am sure that the Jewish community will remain deeply divided about Bush, his policies, and what seem to be the values and opinions of all those people who live in the middle of the country - the majority of Americans. This diasagreement, as long as it is civil, is, according to the verse we have looked at, the crucial element in a democracy: The majority may rule, but we should not stop thinking about and critiquing its decisions.

Shabbat Shalom,

Rabbi Shimon Felix