Tuesday, March 28, 2006

Bitul Be-Rov

I have a friend who, while studying for semikhah at YU, decided to try to get a more Charedi ordination. Armed with a glowing personal letter of recommendation from R. Ahron Soloveichik, he approached the bochen of a well-known yeshiva who tested him. He later told me that the test was very strange and the questions asked were not normal halakhah issues. One question I remember was where in the verse "acharei rabim le-hatos" do we see that a minority is nullified in a mixture. My friend had no good answer for this and was turned down for semikhah.

I believe a good answer to the question is as follows:

R. Chaim Soloveitchik (Chiddushei Ha-Grach Al Ha-Shas [stensil], Mishor ed., no. 229, pp. 226-228) posits that in talmudic literature there are two aspects to the rule of following the majority: 1) when there is a doubt, we follow the majority, 2) we assume that a mixture has of the status of the majority component. He states that the source for these two aspects can be seen in the verse "acharei rabim le-hatos" (follow the majority -- Ex. 23:2). The context, as understand in the halakhic tradition, is when judges on a court disagree. We follow the majority of judges. What that implies, says R. Chaim, is that there is a doubt about the ruling but the majority determines the ruling. Furthermore, we still need to have a full court ruling and, therefore, even the minority judges acquire the status of the majority so the full court rules together.

R. Shimon Shkop phrases this slightly differently (Sha'arei Yosher 3:4). He says that the rule of acharei rabim le-hatos applies to the two types of rulings of a court: 1) revealing/explaining a rule of law, 2) creating a status by issuing a formal ruling on a person or object. Regarding the former, the rule of acharei rabim le-hatos teaches us that we follow the majority opinion in determining what the law is, as R. Chaim explained. About the latter action, however, we need a full court to create this new status and as long as there are judges who disagree, the court cannot create the status. Therefore, the rule of acharei rabim le-hatos teaches us in this second set of circumstances that the minority judges are given the status of the majority judges.

I'm pretty sure that if my friend had given this answer he would have gotten the question right. He didn't and was turned down. However, that didn't stop him from becoming a successful educator and pulpit rabbi.

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