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Beit Midrash Series P'ninat Mishpat

part II

Chapter 102

How to Elect Public Officials

Various Rabbis20 Cheshvan 5770
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[We saw last time that national leaders need not be appointed by the Sanhedrin or a prophet but can be appointed by the will of the people, which could be established by consensus or even by majority vote. We will investigate details about majority decision in this regard.]
P'ninat Mishpat (598)
Various Rabbis
101 - How to Elect Public Officials
102 - How to Elect Public Officials
103 - How to Elect Public Officials
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The gemara (Sanhedrin 3b) establishes that a majority decides matters both in regard to monetary and capital cases. The Rama (Choshen Mishpat 18:1) based on the Rashba (Shut V, 289) says that this system of decision-making applies to courts but not to the adoption of ordinances for the public.
This seems to contradict the Rama's own ruling (in the name of the Maharam) that we do follow the majority. The Chatam Sofer (Shut CM 61) says that the Rashba's limitation on using the majority is based on the fact that the gemara (Chulin 11a) needs to bring a proof from a pasuk that we follow the majority. This indicates that following the majority is not a matter of simple logic. The proof from the pasuk is enough to apply majority rule to Torah-mandated groups such as Sanhedrin and a regular beit din that has to decide matters under its jurisdiction. However, regarding groups that convene to decide matters that are not mandated by the Torah but depend on the opinions of people, there needs to be an agreement of the whole group. The Rama's ruling in the name of the Maharam, says the Chatam Sofer, discussed a case where there was a disagreement from the outset with between the people of the community, which they got together to work out. In that case, it is clear that they got together in order to solve the matter by the decision of the majority. It follows from the Chatam Sofer that majority rule, while not applicable regarding voluntary matters, still is valid and binding when the group previously decided to follow the majority. If agreement can extend majority rule where it normally does not apply, then it should follow that agreement of a group can also implement any system of decision-making that the group arrives at.
In a different responsum (ibid. 116), the Chatam Sofer says that the idea of following the majority should not be applied sparingly. Rather, he says, the minhag in his whole region was that a wide variety of decisions were decided by majority. He explains that if matters would have to be resolved by unanimous decision, then practically no issues would ever be resolved.
Next time we will discuss what happens under the majority system when some of those who were eligible to vote do not do so.
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