Monday, February 15, 2010

The Rabbinic Mind: (Don't) follow the majority (San 3b)

Throughout school my teachers have drilled one idea into my head: you must look up proof texts. I usually don't listen, especially because ArtScroll does it for me. Today, I did and couldn't believe what I found. The foundational text that explains why courts need to have an odd number of judges and that gives the judges power to rule on a simple majority is a text from Exodus 23:2

לִנְטֹת אַחֲרֵי רַבִּים--לְהַטֹּת
To decide, according to the majority [the matter], shall be decided (Artscroll translation)

A note about the Hebrew: the root that appears twice in this verse (נטה) actually means to lean. The Rabbis translated it the way we would use the word to lean in colloquial English, "the judge leaned toward your side and ruled in your favor." However, this is not the meaning of the verse in its original context. 

Often this root means to corrupt or distort. This is the original context:

לֹא-תִהְיֶה אַחֲרֵי-רַבִּים, לְרָעֹת; וְלֹא-תַעֲנֶה עַל-רִב, לִנְטֹת אַחֲרֵי רַבִּים--לְהַטֹּת
Thou shalt not follow a multitude to do evil; neither shalt thou bear witness in a cause to turn aside after a multitude to pervert justice (JPS Translation).

In essence the verse is giving directions for judges; they should not follow a majority to pervert justice but stand up for their beleifs and judge fairly. Not only does the text not speak to the makeup of the courts but it says (in a different context) that judges should NOT seek to follow a majority. 

What is so amazing about the Talmud's use of this text is that the Rabbis had a vision of a court system. The judges would be odd in number, that way there would never be a tie. Because the Bible never spoke to this, the Rabbis had to get creative. They took the proof from a verse that basically said the opposite, they changed the context and created a foundation for their legal system. 

What I love about this text is that the Rabbis weren't doing this arbitrarily but, I believe, thought they were doing what was right in God's eyes. There are many things in my life that I also have that same conviction (gay rights, gun control, health care). If they can do this to the text, why can't we as well? Where do we draw the line between using the text and abusing it? How much attention should we pay to context?

1 comment:

  1. You're in for a treat; Sanhedrin is a fascinating masekhet. Sanhedrin is also one of the masekhtot that is chock-full of Tanakh; although admittedly that may be partly due to the "distorting" effect of the entirely-aggadic perek helek (Bavli ch. 11). Scriptural interpretation is also a thematic scarlet thread that runs throughout the tractate. Another early example of the importance of scriptural interpretation is daf 4, which establishes the primacy of "yesh em l'mikra," which is a necessary principle for the rabbis. The key is how a verse is read rather than how it is written--a principle that also brings the verse somewhat into the realm of Torah she'ba'al peh. The Bavli is also sometimes self-aware about its scriptural interpretation; see 45b (the "do we need a verse" sugya) and 90b, for example. One other point about daf 4 (since I don't know if you'll be writing about it): notice how the sugya unfolds, pivots at a crisis point (the implication that some scholars hold yesh em l'masoret will do away with the din of basar b'halav), and then reconstructs itself. That structure--unfolding, pivoting at a certain point, and reconstructing--will recur again (and soon).

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