During the revelation at Sinai, the Jewish people receive the well-known 10 statements or commandments. Along with these, they also receive a series of laws designed to structure human society. These are delineated in Parshat Mishpatim. Included are laws about the functioning of a formal court system.

שמות כג – (ב) לֹא-תִהְיֶה אַחֲרֵי-רַבִּים, לְרָעֹת; וְלֹא-תַעֲנֶה עַל-רִב, לִנְטֹת אַחֲרֵי רַבִּים--לְהַטֹּת.

Shemot 23 – (2) Do not follow the majority to do evil. And do not respond in a dispute to lean after the majority to pervert [the law].

The judge is instructed not to follow the majority to do evil. At first glance this instruction is ambiguous. A judge is not allowed to give a psak –binding legal guidance contrary to the position adopted by the court, determined by majority vote. This is detailed in the laws of Zaken Mamre –a rebellious judge. Onkelos clears up the context in his translation:

אונקלוס שמות כג:ב

לָא תְּהֵי בָּתַר סַגִּיאֵי, לְאַבְאָשָׁא; וְלָא תִּתְמְנַע מִלְּאַלָּפָא מָא דִּבְעֵינָךְ עַל דִּינָא, בָּתַר סַגִּיאֵי--שַׁלֵּים דִּינָא.

Onkelos Shemot 23:2

You should not follow the majority to do evil, and do not hold yourself back from teaching that which is correct in your eyes concerning the law; [but] conclude the law according to the majority.

Onkelos indicates that the verse is exhorting the judge to teach what he sees as correct. However, at the end of the day he must respect the decision of the majority. Rashi elaborates on the procedures and circumstances:

רש"י שמות כג:ב – ואמצע המקרא דרשו "ולא תענה על ריב", על רב, שאין חולקין על מופלא שבבית דין, לפיכך מתחילין בדיני נפשות מן הצד, לקטנים שבהן שואלין תחלה, שיאמרו את דעתם. "אחרי רבים להטת"...ואונקלוס תרגם לָא תִּתְמְנַע מִלְּאַלָּפָא מָא דִּבְעֵינָךְ עַל דִּינָא, ולשון העברי, לפי התרגום, כך הוא נדרש לא תענה על ריב לנטת אם ישאלך דבר למשפט, לא תענה לנטות לצד אחד ולסלק עצמך מן הריב, אלא הוי דן אותו לאמיתו.

Rashi Shemot 21:1 – [Our sages] explain the middle of the verse "do not answer in a dispute" [to mean "do not answer] against your teacher", that one does not dispute a more eminent member of the court. Therefore, we begin capital case from the side [benches, such that the] younger members are asked first to state their opinion.

"After the majority to pervert [the law]"...Onkelos translates that one should not refrain from teaching that which is correct in your eyes concerning the law. The Hebrew according to Onkelos is explained as follows: "do not respond in a dispute to lean" [means] that if you are asked regarding a legal matter, do not respond leaning to one side in order to remove yourself from the conflict, rather one must judge the matter in accordance with the truth.

For capital cases, the Jewish court convenes a group of 71 judges. The goal of this group is to garner the independent opinion of each of the judges. This is accomplished by ensuring the junior members of the court speak first, leaving those with the greatest seniority to speak last. This avoids prohibition of a student publicly disputing the position of his teacher. Rashi interprets the verse as a warning to the student, even if he believes his view of the issue will not be adopted by the majority, he must nonetheless state the position he believes to be true.

בכור שור שמות כג:ב

אע’'ג שדין לילך אחרי הרבים, אם נראה בעיניך שאינם מכוונים יפה, לא תהיה אחריהם, מוטב להיות אחרי המיעוט ותתבטל, כי מכל מקום המעשה יעשה ברבים

Bechor Shor Shemot 23:2

Even though the law is to follow the majority, if it appears in your eyes that they are not directed correctly, you should not go along with them. Better to be part of the minority and be overruled (lit. cancelled out), for nonetheless this action is done in public.

Rav Yosef Bechor Shor highlights one of the benefits of encouraging each judge to state their opinion. Even when it is contrary to the majority, the opinion is stated publicly. This demonstrates a diversity of opinion on the issue. It may not sway this particular case, but perhaps the reasoning might be applicable in other situations.

What emerges from the structure of our Torah’s legal proceedings is notable, with implications for other areas of group dynamics. People have a tremendous desire to fit in and to be accepted socially. At times this can conflict with what a person believes to be ultimately true. The Torah’s justice system takes this into account, and structures legal procedures to account for this tendency, while creating the greatest opportunity for judicial independence.

In any group or organization, it is easy to fall into a trap of thinking as a crowd. But groups function best when they can simultaneously take advantage of the contribution of each individual’s perspective and distinct way of thinking, while also utilizing the power of a group operating together. The ideal balance is to make room and encourage independent thinking, while committing to practically follow and respect the group consensus. This is how a healthy enterprise and organization operates.

References

Rosenberg, A. (1980). A new English translation of the Hebrew Bible text and Rashi, with a commentary digest. New York: Judaica Press. Retrieved from: https://www.chabad.org/library/bible_cdo/

This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit bentorah.substack.com