Eruvin 46

The more the merrier.

In European history, the phrase “exploding diets” refers to the situation when each member of the Polish legislature had veto power over the body’s actions, leading to governmental atrophy, vulnerability to predatory neighbors, and ultimately the dismemberment of the Polish-Lithuanian commonwealth. Exploding diets are a cautionary tale about the consequences of hamstringing legislative rules.

Fortunately, on today’s daf, we get some more helpful instruction about the mechanics of legal decision making.

Rabba bar bar Ḥana said that Rabbi Yoḥanan said: Wherever you find that a single authority is lenient with regard to a certain halakha and several other authorities are stringent, the halakha is in accordance with the words of the stringent authorities, who constitute the majority, except for here, where despite the fact that the opinion of Rabbi Akiva is lenient and the opinion of the rabbis is more stringent, the halakha is in accordance with the opinion of Rabbi Akiva. 

For a bit of context, yesterday’s daf had the rabbis debating a lenient opinion on an eruv question. Today, they find themselves in a wider discussion about majority rule in Jewish law. In trying to determine the general principles about when the halakha follows the majority and when it doesn’t, the Gemara relates a tradition about the laws of mourning.

If someone received a report that one of their close relatives died, the majority of rabbis say that they should observe both the intense seven-day period of mourning (known as shiva) and the customs of the 30-day mourning period, regardless of when the report was received. But Rabbi Akiva takes a more lenient view, ruling that this is true only if the report arrives within 30 days of the relative’s death. If it comes later, only one day of mourning is observed.

According to Rabbi Yohanan, Rabbi Akiva’s lenient take wins out over the more stringent opinion, even though we generally follow the rule of the majority. Why is that, exactly? The Gemara continues:

It is only with regard to mourning practices that the sages were lenient, but in general, with regard to other areas of halakha, even in the case of rabbinic laws there is a difference between a disagreement of a single authority with a single authority and a disagreement of a single authority with several authorities.

The Gemara doesn’t tell us what’s special about the laws of mourning that we disregard the views of the majority. But it does reaffirm what we know from various other places in the Talmud: In general, when there is disagreement between one rabbi and many rabbis, the law follows the opinion of the many. This is true even if a voice calls out from heaven and endorses the minority view, as we’ll see in a famous story in Tractate Bava Metzia (coming your way in the spring of 2024, so stay tuned!).

The principle of majority rule, and the concomitant rejection of both divine intervention and individual veto power, have enabled Jewish law to evolve in a relatively steady fashion. This helps avoid the gridlock and indecision that can prevent communities from responding to new challenges and contribute to ongoing flexibility and deliberate innovation.

Read all of Eruvin 46 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on September 24, 2020. If you are interested in receiving the newsletter, sign up here.

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