Parshas Mishpatim

This week we present a collection of Divrei Torah and stories on the subject of following the majority.

Follow the majority opinion. (Shemos 23:2)

At the Knessia Gedolah of Agudath Israel in Marienbad, 1937, the central topic of discussion was the recent proposal of England’s Peel Commission to partition Palestine, designating a piece for a Jewish state.

When Rabbi Elchonon Wasserman and Reb Ahron Kotler saw that the Knessia was even considering the idea of a Jewish state, they wanted to leave in protest. But Reb Chaim Ozer Grodzensky, who was ill and not able to attend himself, sent them a message that they should not leave.

The Brisker Rav, who was not at the Knessia, was also very angry when he heard that they were considering the idea of a Jewish state, which would bring bloodshed, G-d forbid. He lamented, “They are sitting and discussing whether it is permitted to give up on part of Eretz Yisroel, but to give up on one Jewish life is definitely forbidden!”  Reb Avrohom Kalmanovitz visited the Brisker Rav and tried to calm him, saying, “What difference does it make what the Agudah says? The British aren’t going to take the opinion of rabbis into consideration in any case.”

The Brisker Rav opened a Gemora to Sanhedrin 26a and read: “Shevna’s lectures were attended by 130,000 people, and Chizkiyah’s lectures were attended by 110,000 people. When Sancheiriv came and beseiged Jerusalem, Shevna wrote a note and delivered it with a shooting arrow: ‘Shevna and his followers surrender, Chizkiyah and his followers do not surrender.’ Chizkiyah was afraid, saying, ‘Perhaps the mind of the Holy One, blessed is He, follows the majority. Since the majority will be delivered into the hands of Sancheiriv, we will also.’ The prophet Yishayah came and said to him, ‘Do not call a conspiracy, what this people calls a conspiracy.’ In other words, it is a conspiracy of the wicked, and a conspiracy of the wicked does not count.”

He finished reading and explained, “Yishayah told Chizkiyah that G-d indeed goes after the majority, but the opinion of the wicked does not count toward determining that majority. Here also, G-d does not care about the plans of the secular Zionists. He looks only at what the Torah Jews say. At this Knessia the majority of the gedolim of our generation are present, and G-d goes after the majority – we cannot call them “a conspiracy of wicked people.” If they decide that there should be a state, then I am afraid that there will be a state.

“In our holy Torah, it makes no difference what character this Jewish state will have. Even if it would be a Jewish state run completely according to the Torah law, even if the president and prime minister would be Reb Chaim Ozer, and everything would be done according to the Torah – even then it is forbidden that even one Jew be killed in order to establish a Jewish state. That is the crux of the issue here. The issue is not how the Jewish state will be run, religiously or secularly. The point is that it is forbidden for Jewish blood to be spilled for the purpose of establishing a Jewish state. And since it is impossible to accomplish the partition without spilling Jewish blood, it is forbidden to accept this plan.”

“But,” said Reb Avrohom, “why does the Rav say that there will be bloodshed? The plan is that the British and the League of Nations will carry out the partition peacefully, with the agreement of the Arabs.” “It will never be so,” said the Brisker Rav. “The Arabs will never agree to the establishment of a Jewish state. There will definitely be bloodshed. Even if there were only a possibility of bloodshed it would be forbidden, all the more so now that it is definite bloodshed.”  (Teshuvos Vehanhagos v. 2 siman 140, Peninei Rabbeinu Hagriz p. 148)

When confronted with the clear halacha that the Jewish people is forbidden to found a state during exile, and that the state causes bloodshed, some people respond, “This halacha is not practically relevant because the state has already been founded by secularist Jews who do not ask halachic questions. The question for us is how we should relate to the state.” But the Brisker Rav has shown us, based on the Gemora in Sanhedrin, the fallacy of this argument. The Gemora teaches us two important things: 1) Hashem guides the Jewish people in the direction the majority of them want to go; 2) He takes into account only the opinion of Jews loyal to the Torah. It is our vote that counts!

A different take on the story of the Brisker Rav came from Rabbi Moshe Shmuel Shapiro, speaking at the 1980 convention of Agudath Israel of America. He began with a question about the words of Selichos. We say, “Do not take Your holy spirit away from us!” This implies that we still have Ruach HaKodesh today. On the other hand, the Gemara in Sotah 48b says when Haggai, Zechariah, and Malachi died, Ruach HaKodesh departed from Israel.

“The answer,” he said, “is that there are two types of Ruach HaKodesh. There is one kind of Ruach HaKodesh that was taken from us and there is another kind of Ruach HaKodesh that is still with us today. I will tell you, Rabosai, a story about the Brisker Rav and you will see that there is still Ruach HaKodesh today.

“This was at a time when the question arose among the nations whether to partition Eretz Yisrael into a Jewish state and an Arab state. The question came before the Moetzes Gedolei HaTorah in the previous generation: Reb Chaim Ozer, Reb Ahron Kotler, Reb Elchonon and all the Gedolei HaDor of the previous generation. Among those the main opponents of the establishment of a Jewish state were Reb Ahron and Reb Elchonon, and their argument was: into whose hands would this state fall? And what would they do with our children and our future generations? But the Gerer Rebbe brought the posuk, ‘They partitioned My land’ (Yoel 4:2), and he was not certain if we should understand this to mean that we should agree to partition because the prophet already predicted it, or if on the contrary, the pasuk is telling us that it is a criticism of the nations that they wanted to partition it and not a good thing.

But the decision of the Moetzes Gedolei HaTorah was not to oppose a state, but rather to request that if a state is established, it should be conducted according to the Torah. The Brisker Rav was not among the Moetzes Gedolei HaTorah but he was completely opposed to the establishment of a Jewish state. Anyone who knew the Brisker Rav knew that when he was full of fear of a danger to the Jewish people, he was not content with simply expressing his opinion. He did not give rest to his soul! He cried out, he wept, he demanded, and he fought like a lion against the establishment of a Jewish state. And therefore it was a strange thing, Rabosai, that the day after the decision of the Moetzes Gedolei HaTorah, the Brisker Rav did not speak one word. And his family members asked him ‘Father, what happened to you? Where is your great war against the Jewish state? Why all of a sudden are you quiet?’

“And the Brisker Rav quoted an amazing Gemara in Sanhedrin. Shevna HaSofer was appointed by Chizkiyahu HaMelech, but he rebelled against him and he did not accept the decision of Chizkiyahu HaMelech. Chizkiyahu HaMelech held that if the Jews surrender to Sancheriv there will be a danger to the service in the Beis HaMikdash. Shevna held that they should surrender, and the Jewish kingdom would continue to exist under Sancheiriv. The Gemara says Shevna was not a simple man. He had a great beis din, larger than that of Chizkiyahu HaMelech. Chizkiyahu Melech had 110,000 and Shevna had 130,000. Chizkiyahu thought maybe Hashem would agree with the majority and he would have to surrender to Sancheiriv. Perhaps the mind of the Holy One Blessed is He goes after the majority.

“It was not a question of what Hashem wanted as halacha from the beginning, but rather, since the majority of the people agreed to do it, Hashem agrees with the majority, and that’s how we have to act, and that’s how the hashgacha acts. But Yeshaya HaNavi came and said to him, ‘You don’t need to fear – a conspiracy of the wicked does not count. They are the minority and your beis din is the majority and the halacha is like your beis din.’

“It’s written here, said the Brisker Rav, that the beis din which has the most people when it decides halacha, Hashem, based on the rule of majority, agrees with their decision. The Moetzes Gedolei HaTorah is the beis din of the majority of our generation. That is certainly the decision of the Creator of the world and now I have nothing to say. This ruach hakodesh, not the ruach hakodesh of knowing the future, but the ruach hakodesh that whatever beis din decides has the approval of the Creator of the world and Hashem is with it – this is still with us today. This is the Moetzes Gedolei HaTorah of Agudas Yisrael. That is the beis din of the majority of our generation.

“And this story about the Brisker Rav is a lesson for all the zealots, and those who support zealots or act with zealotry. They speak sharply against Agudah and rabosai, I’m not saying that there’s nothing to speak against – there definitely is! And I don’t say that one should not speak – one should speak! But that’s only until the decision of the Moetzes Gedolei HaTorah. But at the moment that the Moetzes Gedolei HaTorah comes to a conclusion, Hashem is with it. This is the approval of the Creator of the world and that is what Reb Boruch Ber said. “Your Holy Spirit do not take from us – this refers to the gedolei hador.”

There are three problems with Reb Moshe Shmuel’s version.

1. The Gemara’s language is, “Chizkiyahu was afraid and he said perhaps G-d forbid the mind of Hakadosh Baruch Hu will go after the majority. Since the majority is given over to Sancheriv we will also be given over.” According to Reb Moshe Shmuel that the question was if they were obligated to surrender to Sancheriv or not, it should have said maybe Hakadosh Baruch Hu’s mind goes after the majority and I have to surrender because that is the halacha. This is just like in the story of Rabbi Eliezer and the Sages (Bava Metzia 59b), where the halacha follows the Sages and Rabbi Eliezer was obligated to rule like them. And since he continued to stand by his opinion and to rule his way for the public, they placed him in cheirem. But from the Gemara about Chizkiyahu and Shevna, it seems that the question was not about halacha. Rather, it was a question about what would happen in the world. As the saying goes, “The tzaddik decrees and Hakadosh Baruch Hu fulfills.” And since Hakadosh Baruch Hu would decree that they should be handed over to Sancheriv, Chizkiyahu and his party would also be handed over.
2. The rule that the minority has to follow the majority is only when they sat together and each side heard the arguments of the other side. But if the minority were not together with the majority, they have to follow their own opinion at least as a stringency because maybe if the other side heard their arguments they would accept them. As the Gemara says in Horayos 2a, “If the beis din ruled and someone knew that they made a mistake… yet he went and followed the Sanhedrin in any case, he is liable because he did not make himself dependent on beis din.” The Ramban in Sefer Hamitzvos Shoresh 1 explains it this way, and so does the Maharalbach in his Kuntres Ha-Smicha, where he argues that even though the Mahari Berav and his students in Tzfas who had reinstituted smicha were the majority of the rabbis of Eretz Yisrael, the minority does not have to give in to the majority because they did not debate together and they did not hear their opinion. Here too, the other gedolim did not hear the arguments of the Brisker Rav, so he was not obligated to follow them. (Perhaps Rav Moshe Shmuel understood that the Brisker Rov held that although he himself was not at the Moetzes Gedolei HaTorah, still there were others like Reb Ahron and Reb Elchanan who held as he did. Since the others heard their argument and did not rule according to them, even the Brisker Rov would have to nullify himself to the majority decision. But it is not so clear that the Brisker Rov’s arguments and those of Reb Ahron and Reb Elchanan were the same.)
3. In fact, we do see that the Brisker Rov continued to express his opinion against the state until the end of his life so we see he did not give in to the decision of the Moetzes.

From all of this we can conclude that the first version of the story was correct: the Brisker Rov understood that the Gemara about Chizkiyahu and Shevna is not about halachic decision-making, but rather it is about what would happen in the world. And therefore the Brisker Rov said that if most of the Gedolei Hador ruled that there should be a state, certainly Hashem would fulfill their words and there would be a state. And in spite of that, the Brisker Rov did not stop fighting against the idea of a state after the Kenessia. This is not a contradiction because even if it’s forbidden to do it, it could still be that Hakadosh Baruch Hu decreed that it should happen.

This interpretation of the story is also apparent from the words of the Brisker Rov as attested by his two sons, quoted in the sefer Mikatovitz Ad Hei B’Iyar, page 310:

“This shows that even though Chizkiyahu knew that he was correct in not surrendering, and Sancheirev was coming to destroy Jerusalem, still he was afraid that the mind of Hashem would follow the majority. The only difference is they told him there that a conspiracy of the wicked does not count. So you see that all things are decided in this world. Who will win a war is also decided in this world. And therefore, if the Kenessia rules that there has to be a state, there will be a state.

* * *

Two young yeshiva men from Lithuania found themselves in Switzerland at the end of the Second World War, and there they became admirers of the Satmar Rebbe. Before they left Switzerland for Eretz Yisroel, they came to the Rebbe and said, “Satmarer Rav, Chazal say that a person should take leave of his fellow with a word of halacha. Let the Rebbe tell us a halacha!” The Rebbe thought for a minute and then said, “The Chazal ask in the Midrash, which halacha? And they answer, ‘Yochid verabim halacha kerabim – the halacha is determined by the majority.’ Why this halacha? Because the goyim say to us, we are the majority, so you must follow us. We reply that we are a berya (a complete organism) and a berya cannot be nullified. That’s a good answer for the goyim, but what do we say to the bad Jews who tell us, ‘Chaveirim kol yisroel,’ all Jews are friends, and we should be like them, since they are, unfortunately, the majority. The answer is, the minority only becomes nullified if there is a mixture. But if we stay completely separate, we do not have to be like them. Nu, you are now going to a place where those Jews say,  ‘All Jews are friends,’ and they are the majority. On this Chazal say: a person should become potur (free) from chaveiro (his friend), from someone who argues that you and he are friends, through the use of halacha. Which halacha? The halacha that the minority must give in only if it is mixed together with the majority, but if it stays separate, it will not give in. That is the only way to save yourself from the argument of going after the majority in Eretz Yisroel!” (Pe’ulas Tzadik Lechaim, p. 55)

***

Do not follow the majority for evil. (23:2)

When Rabbi Chaim of Brisk (1853-1918) spoke about Zionism, he gave the following parable: Once there was a town in which there was a well that had been closed and sealed for as long as anyone could remember. It was common knowledge that the water of this well was poisoned, such that anyone who drank from it would go insane.

One day, a group of distinguished doctors came to town, and they heard about the well. “We must investigate this well for ourselves,” they said. As they were distinguished doctors, the townspeople could not refuse them, and so they agreed to open the well for them. The doctors performed tests on the water, and determined that there was nothing bad or poisonous about it; the water was perfectly safe to drink. People began to drink from the well, and they indeed became insane. As more and more people drank and went insane, these insane people began to look at the sane people who had not drunk from the water as insane. For such is the way of insanity: those who suffer from it believe themselves to be normal and everyone else to be insane. The sane people, of course, told the insane people that they had gone insane, but their words went unheeded.

Now that the well was open, more and more people drank from it, until there were left only a small number of people, or perhaps one person, who had not drunk. The whole town shouted at this tiny minority, “Lunatics! Lunatics!” There came a point where these few individuals stopped and reconsidered: “Perhaps the whole town is correct and we are the lunatics, and we must drink from the well water and heal ourselves.”

But then they reassured themselves with the following logic, “We still remember the days when the well was closed and sealed, and everyone knew that the water was poisoned and whoever drank from it would go insane. If so, then we must be correct. We are normal and sane, the others are all insane, and we will not drink from the well.”

If this parable applied long ago, in Rabbi Chaim Brisker’s time, it applies all the more to our day and age, when unfortunately the majority of the Jewish people are Zionists. Sometimes anti-Zionist Jews experience moments of weakness, when they wonder if perhaps they are insane and it is the Zionists who are normal Jews. To regain their bearings, they must continually look back at the previous generations of Jews who all believed in the coming of moshiach, who all believed that the redemption was exclusively G-d’s domain, who all believed that Jews were in exile because G-d wanted them there. They must read the classic Jewish commentaries and works of previous centuries, and realize that it is not they but the Zionists who are the anomaly in Jewish history.

This is what Shlomo Hamelech taught us in Shir Hashirim (1:8), “If you do not know, O most beautiful of women, then go in the footsteps of the flock, and pasture your kids among the dwellings of the shepherds.” Rashi explains, “If you, My people, who are the most beautiful of the nations, do not know where to go to pasture your flocks safely among the threatening nations of the world, follow the imprints of the footsteps of the flock: study the ways of your forefathers in previous times, who accepted My Torah and kept My charge and My commandments, and walk in their ways, for only by virtue of this will you be able to pasture your kids among the nations.”

On the day the state was established, the Satmar Rebbe was greatly pained, and he paced around his room in grief and anguish. The Rebbetzin came in and said, “You look like – I don’t want to say what.” The Rebbe said, “I look insane? Whoever doesn’t look like this now is an apikoros.” Later the Rebbe explained that this was predicted already in the Gemara (Sanhedrin 97a): that in the time before moshiach comes, “whoever turns away from evil will be considered insane.” (Tiferes Yoel v. 2 p. 48) 

The following is from Vayoel Moshe:

The Gemara in Sanhedrin 26a tells the following story: “Shevna’s lectures were attended by 130,000 people, and Chizkiyah’s lectures were attended by 110,000 people. When Sancheiriv came and beseiged Jerusalem, Shevna wrote a note and delivered it with a shooting arrow: ‘Shevna and his followers surrender, Chizkiyah and his followers do not surrender.’ Chizkiyah was afraid, saying, ‘Perhaps, G-d forbid, the mind of the Holy One, blessed is He, follows the majority. Since the majority will be delivered into the hands of Sancheiriv, we will also.’ The prophet Yishayah came and said to him, ‘Do not call a conspiracy, what this people calls a conspiracy.’ In other words, it is a conspiracy of the wicked, and a conspiracy of the wicked does not count.”

If Chizkiyah was so sure that he was right in not surrendering, then why was he afraid that Hashem would follow the majority? And if Hashem would rule in accordance with Shevna’s view, then Shevna’s view would obviously be the truth, so why did Chizkiyah say “G-d forbid” to this possibility?

The answer is that even when Hashem agrees with the minority opinion, the halacha follows the majority, as we see from the famous story of the dispute between Rabbi Eliezer and the Sages about the disassembled oven (Bava Metzia 59b). Rabbi Eliezer said, “If I am right, let proof come from Heaven!” A Heavenly voice proclaimed, “Why do you fight against Rabbi Eliezer? The halacha always follows his opinion!” Rabbi Yehoshua, leader of the Sages, stood up and said, “It is not in Heaven! The Torah was already given at Mount Sinai, and we do not pay attention to Heavenly voices, because You already wrote in the Torah at Mount Sinai: Follow the majority opinion.” Rabbi Nosson met Eliyahu and asked him: “What was the Holy One, blessed is He, doing at that time?” He said: “He was smiling and saying, My children have defeated Me, My children have defeated Me.”

This is why Chizkiyah feared that although he was correct, Hashem would go along with Shevna since his side was the majority. Therefore the prophet told him that a conspiracy of the wicked does not count.

But we must ask two questions here. First of all, Shevna was not wicked, as we see in Gittin 59a: “From Moshe to Rabbi Yehuda Hanasi, we do not find anyone who was the greatest in his generation both in Torah and in wealth and power. What about Chizkiyah? There was Shevna.” Chizkiyah, as the king, was certainly the greatest in wealth and power; therefore the Gemara must be saying that Shevna was greater than him in Torah. Furthermore, he must have been a tzaddik, since he was one of Chizkiyah’s ministers, and we know that righteous kings never appoint wicked ministers (Chullin 4b).

Secondly, if Shevna was really wicked, why did Chizkiyah think that Hashem would follow him simply because the majority was on his side? The Sefer Chinuch (78) says that we only follow the majority when both sides know the Torah equally well, not a majority of ignorant people. Certainly we cannot follow a majority of wicked people, who are worse than ignorant people. There have been many times in history when the majority of the Jewish people was wicked – is the entire Torah then null and void? In Choshen Mishpat 163:1 the Rema says that even in communal matters, we take into account only the opinions of people who express those opinions for the sake of Heaven, not for their own ulterior motives. The wicked will certainly not express their opinion for the sake of Heaven: “They cannot sleep unless they do evil” (Mishlei 4:16). Besides they are disqualified from acting as judges altogether. Clearly, then, the law of “follow the majority” does not apply to the wicked; the beginning of the verse, “Do not follow the majority to do evil,” would be more appropriate.

The answer is provided by the Maharsha, who says that the word “wicked” does not refer to Shevna and his followers, who were righteous, well-meaning people. It refers to Sancheiriv, who blasphemed Hashem and said (Yishaya 36:20), “Who among all the gods of these lands saved their lands from my hand, that Hashem should save Jerusalem from my hand?” The “conspiracy of the wicked” refers to Shevna, who wished to surrender and make peace with Sancheiriv. “Does not count” refers to Hashem, who does not take the side of such a majority that wishes to join the blasphemers. The halacha can only follow the view of the majority if Hashem is with that majority, as Chazal say (Sanhedrin 93b) that when Scripture says that Hashem was with Dovid (Shmuel I 16:18), it means that the halacha followed his view.

Now we can explain a puzzling axiom of Chazal: “A single and a majority, the halacha is like the majority.” Why does it say “a single and a majority”? Even when the minority is more than one person, the halacha follows the majority. It should have said, “A minority and a majority, the halacha is like the majority.” Furthermore, why does it have to mention the single at all? It should have said simply, “The halacha is like the majority.” But according to the Maharsha, we can explain that the word “single” refers to Hashem, who is the One and Only Creator. When the Single, Hashem, is with a majority, then the halacha follows that majority; but if Hashem is not with them, the halacha does not follow them. (Vayoel Moshe 1:154-157)