Majority Rules: b.Hullin 11
In which ten sages distinguish between descriptive and extrapolated statistics!
Yesterday’s page was all about tracing the rule of a rebuttable presumption (certainty trumps uncertainty). Today’s page segues to figuring out a different rule, and if you like statistics, this one’s for you!
Exodus 23:2 says, “after the majority to incline” (אַחֲרֵי רַבִּים לְהַטֹּת)—what does that mean? The Gemara offers two possibilities:
Following a quantifiable majority we can see (רוּבָּא דְּאִיתָא קַמַּן): let’s say we found a piece of meat near ten butcheries, nine of them kosher—we assume the meat came from one of the kosher ones. Or, the Sanhedrin decides a case by majority.
Following what is assumed to be a majority, even though we don’t actually count cases (רוּבָּא דְּלֵיתֵיהּ קַמַּן): let’s say that they contract a levirate marriage between two minors, where there is a concern that one or both of them might not end up maturing and reaching puberty. A “majority” rule here would be relying on the way of the world—usually minors reach puberty—and deducing that, in all likelihood, this will happen to the young couple (ugh).
You can see that rule #1 is fairly easy to follow, because it requires descriptive data: you count the n you can see and you know what the majority is. Rule #2 is harder: it requires making the sort of assumptions about the world that we would refer to, today, as extrapolating statistics (I now realize we might be due for another Talmudic Legal Logic video! Maybe I’ll make one tomorrow).
We then find ten answers, offered by ten different sages (mnemonic: זְמַן שֶׁבַח מְכַנֵּשׁ), all of whom try to find the origin for rule #2—meaning, that it is okay to deduce a rule from an unquantified majority. As we’ll see, there are objections in each case, which suggests that it is possible to examine the particular case and thus avoid generalizations based on deduction.
Zayin, meaning Rabbi Elazar, goes to the rule about the burnt offering head: the Torah says the animal is cut into pieces but the head is not further cut. Since we can’t examine the brain membrane for perforations (which would render the animal a treifa), we assume that the majority of animals are healthy. The problem is that, perhaps, the priest splits the head just enough to examine the membrane without fully cutting it, which follows the verse.
Mem, referring to Mar son of Ravina, reads the rule of the Passover offering, which does not allow breaking the bones and thus there’s no way to check the brain membrane (but you could burn through the skull with coal, rather than breaking the bones).
Nun, for Rav Nahman bar Yitzhak: The sacrificial lamb’s fat tail must remain whole and removed near the spine—and since we cannot examine the spine without cutting it, which would invalidate the sacrifice, we assume the animal has a whole spine (but maybe we can split the tail just enough to check, without breaking the spine?)
Shin, for Rav Sheshet son of Rav Idi: This one takes us to the rule of eglah arufah (עֶגְלָה עֲרוּפָה), which is so peculiar that I want to explain it. The rule comes from Deuteronomy 21:1-9 and deals with a situation in which a dead person is found in the open field and the murderer is unknown. After figuring out the closest town, the elders get a heifer, decapitate it by the river, and rinse their hands over it, chanting, “our hands did not spill this blood.” If you’re appalled by the whole thing, because obviously their hands did spill the blood of the heifer, then you’re not alone.
Anyway, for our purposes, Rav Sheshet argues that we assume that the heifer is kosher to be sacrificed, because if it is treifa is cannot serve for this ritual.
Bet, Rabba bar Rav Sheila tries to learn from the matter of the red heifer, which we covered before in tractate Shevuot. Like Rav Sheshet, Rabba says that the offering must be whole, and since we do not examine it for its purity, we assume that, like the majority of heifers, it is fine.
Het, Rav Aha bar Yaakov, takes us to Leviticus 16, which describes the scapegoat ritual to be held on Yom Kippur. The ritual involves two similar goats, one of which is slaughtered and the other, after laying hands on it and setting it up as the atonement for the community’s sins, is tossed off a cliff.
Because this poor goat is being tossed off the cliff alive, it cannot be examined for impurities afterwards—and we must assume the majority of goats are suitable for sacrifice.
Mem, for Rav Mari, moves away from animal sacrifices to the rule that prescribes the death penalty for striking one’s parent. But what if the man you hit, whom you thought was your dad, is not actually your dad? Here’s what Eddie Vedder has to say on the topic:
Since at the time we could not check paternity, you would have to follow the assumption that, most of the time, a married woman’s children were fathered by her husband (in case you’re wondering, this is still true: current research from Europe suggests that 0.6 to 0.9 percent of people were not fathered by the man who raised them).
Kaf, for Rav Kahana, offers peculiar proof from the rule that prescribes the death penalty for murder. Rav Kahana raises an issue that comes up sometimes in tort cases: what if the victim had already incurred a fatal wound and had less than a year left to live? We cannot examine the dead body—mutilating it is sinful—and so we must assume that the victim, like the majority of people, had life ahead of them and was not about to die from something else.
Nun, for Ravina, builds a similar argument on an issue we discussed in tractate Makkot: the punishment for conspiring witnesses. Suppose the witnesses cooked up an allegation against a person who was going to die anyway? You’ll recall that the rule only subjects the liars to capital punishment if the wrongly accused person is still alive, so their body can still be examined (which raises the question—why should it matter whether the person was dying anyway of natural causes? How does it ameliorate the lie?)
And lastly, another shin, for Rav Ashi, deduces the majority rule from the simple fact that we are allowed to eat meat. If we had a nagging concern that the slaughter touches the animal in the place of an existing, disqualifying blemish, we wouldn’t eat any meat at all (wouldn’t that be grand?). We must assume that most animals do not have a hidden blemish and thus we have permission to eat them (boo!).
The recurring thread in this list is that those are situations in which there is some impediment to checking the specific animal we are slaughtering, and hence deduction is necessary. Rav Ashi tactually points this out: perhaps you should follow the majority only when examining the particular animal is impossible. And the Gemara observes that even Rabbi Meir, who is very attentive to minority opinions, exceptions, etc., must agree that, where the examination is impossible, deduction will have to do.