A people of rebels – Eruvin 98

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Eruvin 98 ends with a mishna that teaches -amongst other things- that one may stand in a private domain and move things in a public domain. This means, for instance, that if one is in his own house, and sees a potato on the street, and he wishes to move it and he can reach and touch it, he may move it.

The gemara discusses another version of this mishna. Rav Chanina bar Shelemya taught Chiya, in the presence of his father Rav, that a person may not stand in a private domain and move things in a public domain; after all: if he does so, he may bring them in and thus commit a Biblical transgression.

Rav immediately lashes out to Chanina. “You have abandoned the views of the rabbis and spoke law in accordance with the (minority) view of Rabbi Meir!“. The dispute Rav deals with is recorded in a few days in the mishna on Eruvin 101, where the example is used of a key that is in the public domain and a person in the private domain wishes to use the key to lock the door.

Rav does not use another argument here then the democratic one: the majority of the rabbis have one opinion, and Rabbi Meir has a minority view. When I told you I took offence in Rav’s fierce reaction because a minority opinion may be the correct one, you reminded me we have the principle אחרי רבים להטות: as is explained in the Jewish Virtual Library: “where there is a controversy between an individual and the many, the halakhah follows the many”.

JVL continues:

The sages of the Talmud explained the existence of this rule as a practical necessity, for if the Torah had been given in the form of an exhaustive codex, “the world could not have existed”. The halakhic opinion that has prevailed is that the law is decided in accordance with the view expressed by a majority of the scholars, and this is so even if in a particular matter a heavenly voice should declare that the law is according to the minority opinion 

Persisting in a minority opinion can have grave consequences. Sanhedrin 88 talks about a Zaken Mamre; a scholar who persists and teaches against a decision of the Jewish court: the sanhedrin. He may -under conditions- even be liable for the death penalty.

In an ideal situation, where all Rabbis are of the same level of intelligence, compassion and understanding and politics play no role, if 99% come to a certain conclusion, the minority will have to yield. But also in the Talmud, we see that jealousy, opportunism, personal preferences and arrogance play a role.

If it was in the nature of Jews to yield to the fancies of the majority, would we ever have heard of Abraham? Joseph? Moses? Isn’t the essence of Jewish theology and political action that we seek truth even if it is contrary to public opinion, even when that opinion is presented by people of statute such as Josephs brothers, the 10 spies or Korach and his gang of 250 prominents? I am not even talking about the quintessential attribute of our people to question the status quo, break boundaries, challenge power and rebel. After all as it reads in Exodus 32: רָאִ֙יתִי֙ אֶת־הָעָ֣ם הַזֶּ֔ה וְהִנֵּ֥ה עַם־קְשֵׁה־עֹ֖רֶף הֽוּא “I saw these people, and see that it is a stiff-necked people”.

Part of the answer is that both the Torah and the Talmud describe the legal and political conflicts, and thus take them seriously. But Rav’s blunt argument is a testimonium paupertatis. I fully understand that he doesn’t want a minority opinion explained to his son as if it were the law, but he should come up with better arguments than “you’re the minority so be quiet”, especially since it is plausible that a man who sees something on the street he seeks to move may be tempted to bring it in.

Chanina bar Shelemya deserves a better deal than that.

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