RITSS HIGH SCHOOL
PRESENTS A D`VAR TORAH
ON MISHPATIM
By Rabbi Moshe Heigh
HOW POWERFUL IS THE MAJORITY, REALLY?
"Do not follow a multitude to do evil" (23:2). Sometimes, we are to follow the "rabim", the majority. But it is often unwise to do so. In fact, the halacha often forbids us to act in such a manner. After elaborating, we will discover that this has legal and moral implications for all of us. Two approaches to this pasuk will now be presented.
What is the basic connotation of our pasuk, regarding the judicial system? In the midst of a more extensive discussion, the Mishna in Sanhedrin 2A derives a significant principle from here. When the Torah forbids us to follow the majority to do evil, it means that we are not allowed to execute a criminal using a majority vote, unless that majority consists of two or more judges. In other words, if the judges in favor of implementing the death penalty outnumber those who oppose it by just one, the defendant is not put to death. The "guilty" vote must come about with a majority of at least two. That is the message of "not following a multitude to carry out evil", unless that multitude is sufficient in number. [This is not to say that the death penalty itself is considered "evil"; quite to the contrary - if halacha mandates that it be carried out, it MUST be done, and it is the proper thing to do. Rather, the word "lira'os" - for evil purposes - means a sentence which is not in favor of the defendant. Do not follow a one-man majority to condemn the criminal to execution.]
For the sake of clarity, we will restate this din using the words of the Rambam in the Sefer Hamitzvos, prohibition number 282. Let us say there is a disagreement among the judges - some feel that the defendant should be sentenced to death, but others feel he is exempt. If those declaring him guilty number only one more than those exonerating him, he is not allowed to be executed. You might be aware that the Mishna Sanhedrin 2A is talking about a court of twenty three judges, the minimum number required to decide on capital punishment cases. This explains the example used by the Mechilta, brought by this Rambam in the Sefer Hamitzvos. The situation is that eleven judges feel the defendant is innocent, and twelve declare him guilty. As we have already explained, this number is insufficient to seal the criminal's fate for death. The Rambam in Hilchos Sanhedrin 8:1 codifies this into halacha.
The Mishna and Gemara Sanhedrin mentioned above, plus the Mechilta cited in the Rambam's Sefer Hamitzvos which we brought, agree that the message of the pasuk is to warn against following a one-man majority for the death penalty. However, there is another meaning to this pasuk.
You are probably familiar with the sefer Sha'arei Teshuva, written by Rabainu Yona, one of the rishonim. In the third section of this classic work, he analyzes the value of mitzvos and some consequences for neglecting them. In paragraph 50, he addresses our issue - not following the majority for evil purposes. His interpretation is a new one, not relating directly to courts and judges.
Rabainu Yona states that we are hereby warned not to strengthen sinners through verbal acknowledgement. How does this fit into the words of the pasuk? "Do not go after a multitude for wickedness" - be careful not to join people whose agenda is sinful. If you associate with a group which is engaged in corrupt behavior, you will likely encourage this unrighteous activity to continue. Rabainu Yona elaborates by saying that we are not allowed to befriend those who embrace a wicked lifestyle.
Enumerated as one of the seventeen prohibitions one is liable to violate for speaking loshon hora, our pasuk has its place in the Chofetz Chaim's code of halachos. It is number 11, and the basis for its connection to loshon hora is the above mentioned Rabainu Yona. Let us take a close look at the words of the Chofetz Chaim.
If one attaches himself to a group of wicked people, those who habitually speak loshon hora, in order to tell them or hear from them evil gossip, he transgresses the pasuk with which we began today's discussion. "Do not follow a multitude to do evil" - do not join those who are committing transgressions, including loshon hora. As previously stated, the Chofetz Chaim cites Rabainu Yona's interpretation of this mitzvah as his support. The following are some of the exact words of the sainted Chofetz Chaim: "It is a warning not to agree and associate with those doing evil, EVEN IF THEY ARE MANY (THE MAJORITY)".
He mentions another aspect of this by quoting his own words in his list of mitzvos asai, positive commandments having to do with loshon hora. In number 6, we are urged by Hashem to cling to talmidai chachamim - genuine Torah scholars. This idea is found in Parshas Aikev, Devarim 10:20. Perhaps we will expand on this mitzvas asai a different time. For now, suffice it to say that one who associates with evildoers is exhibiting behavior which is the opposite of what the Torah expects of him. We are supposed to be friends with talmidai chachamim, those following the authentic lifestyle of Torah. Someone who joins a gathering of people who do not conduct themselves in this manner is neglecting his fulfillment of this commandment.
In the B'air Mayim Chaim, the Chofetz Chaim remarks that there are numerous references to this concept in other places in Tanach and in halachos from the Rabanan. In Tehillim Perek Alef, for example, we are told how fortunate one is if he avoids the company of sinners and scoffers. In addition, the Chofetz Chaim himself, at the end of prohibition number 4, quotes the will of the great Rabbi Eliezer, one of our revered chachamim, where he exhorts his son Hurkinos concerning this matter. "My son, do not sit with groups who speak in a derogatory way (gossip) about others. When the words (which they are saying) ascend toward Heaven, they are recorded in a book, and ALL THOSE STANDING THERE are written down as a group of evildoers." As we see, it is not wise to even be present when such words are being said!
In summary, we have seen two main interpretations for today's pasuk. The explanation from a legal standpoint is that the court is not allowed to follow a majority to put a criminal to death unless the condemning judges outnumber the exonerating judges by at least two. This was the pshat based on the Mishna and Gemara in Sanhedrin, plus the Mechilta, and the halachic codes - the poskim. "Do not follow a multitude to do evil" - do not follow a majority to declare a person deserving of death, unless this majority is big enough to do so.
The second message is that we are not permitted to be part of a gathering whose plan is to act in a wicked manner. This is Rabainu Yona's insight, elucidated by the Chofetz Chaim in the laws of loshon hora. It applies especially to joining others to hear their loshon hora or to contribute to it.
We see that we should not follow the rabim unless the Torah allows us to do so
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