Shabbat Parashat Vayechi| 5763
From the works of Hagaon Harav Shaul Yisraeli zt”l - Does Beit Din Follow a Majority of Opinions Or of Wisdom? - Part I - From Amud Hay’mini, 4
The gemara (Sanhedrin 36a) states as follows: “How do we know [that in capital trials, we start judicial deliberation from the junior jurists]? The Torah says ‘Lo ta’aneh al riv (read, rav)’ (do not respond to the great one).” Rashi explains: “‘riv’ is written without the letter ‘yud’ to imply that one should not argue on the most revered member of beit din (muflah shel beit din). Therefore, we don’t begin with him [muflah] lest he see a reason to convict, and others won’t argue with him…” Rabbeinu Yona understands Rashi that if, indeed, we would start with the muflah (as we do in monetary matters), then others couldn’t argue with him. Rabbeinu Yona rejects the opinion because then, by monetary matters, we would in effect be using a beit din of one dayan (since others can’t argue).
Mishnat Ya’avetz (CM, 5) also understands Rashi along extreme lines and points out that Rav Hai Gaon holds similarly. Rav Hai says: “if the three judges disagree, if the judges are of equivalent wisdom, we leave the words of the one and do according to the two. If the one is greater than the two, we follow the one who gives a good reason for his opinion.” The Ramban rejects this position based on the Torah’s clear ruling to follow the majority (Shemot 23:2). Mishnat Ya’avetz explains that according to Rashi and Rav Hai, the majority one follows is the majority of wisdom, just that under normal circumstances, that majority of wisdom follows the majority of people.
However, it is difficult to apply this explanation to the aforementioned gemara according to Rashi. If the muflah is considered the majority, then how does it help to start from the junior jurists? After all, according to the above approach, once the muflah renders his decision, we will be required to follow it against the majority? Indeed, some explain Rashi that although junior jurists may argue on the muflah, we start with them in order that they shouldn’t be intimidated to do so. Tosafot (ad loc.) does seem to say that it is problematic to argue on the muflah, but not because they don’t have the power, but because of the need to honor the muflah. The Maharam (ad loc.) suggests that according to Tosafot, the muflah can force the other two dayanim to accept his view in monetary matters, and the purpose of the other dayanim is to raise issues that may affect the opinion of the muflah.
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