“ ‘Go according to the majority’ – But first know the 49 vs 49” (Parashat Mishpatim)

In this week’s parsha, the rabbis read the words in Exodus 23:2 “acharey rabim lahatot” to mean “go after the majority” (and not as they are often translated literally to be a warning to not “incline after a multitude to pervert justice”).  The Jerusalem Talmud (JT Sanhedrin 4:2, 22a) tells that when asked by Moses for a “clear-cut Torah,” God responded by saying “’achrey rabim lehatot’ (go according to the majority) (Exodus 23:2) – if the majority rules someone is acquitted – they are acquitted, if they rule the person is convicted  – they are convicted, in order that the Law should be studied with forty-nine reasons to rule a matter impure and with forty-nine reasons to rule it pure.” This means that every law must be understood with 49 reasons to rule a matter one way and 49 reasons to rule the opposite. A vote should then follow. If the majority vote a matter is pure, it is pure; and if they vote it is impure, it is impure.

Understanding the 49 vs 49 was not only for Moses and the sages of the Sanhedrin to do, but according to the midrash, even young children in the times of King David were taught how to do so on any aspect of Torah (Leviticus Rabbah, 26, 2).  Rabbi Yom Tov ben Avraham Asevilli (a 13th-century commentator in Seville Spain, known as the Ritva) explained that this is how we can understand the legend of the heavenly voice declaring that both the opinions of Beit Hillel and Beit Shammai are “the words of the living God” (Babylonian Talmud Eruvin 13b) though they hold contradictory positions. The Babylonian Talmud states that there are 50 gates of wisdom and Moses was only revealed 49 of them; therefore, no human, not even Moses, can attain the absolute Truth of 50. (Babylonian Talmud Nedarim 38a)

Being able to grasp the contradictory 49 vs 49 on any particular subject can be extremely challenging, especially if we are affected personally. It requires several particular traits. First is mudaut atzmit (self-awareness) of our own 49 reasons that brought us to our particular understanding of truth. What various experiences and people contributed to our interpretations of the truth as such? Second is a deep sense of anavah (humility) that our truth is at best a partial truth based upon only 49 reasons and never reaches the absolute truth of 50. Once we have acquired awareness of the bias of our own 49, we need to acknowledge the 49 experiences, stories, concerns, and values that make up our opponents’ understanding of truth. In order to fully enter into this opposing position, we must cultivate a genuine sense of kavod (respect) for our opponents. We also need sakranut (curiosity) about the 49 reasons and experiences that bring them to their understanding of the truth; this requires deep listening and a degree of empathy.

Grasping the contradictory 49 vs 49 of a difficult issue enables us to engage in a process of constructive disagreement for the sake of Heaven, known as mahloket l’shem shamayim as well as constructive communication, known as tochacha.  This method, practiced by the sages of the Mishnah and Talmud, is still practiced today every time study partners, or havruta, respectfully argue over different interpretations of a text.

On the 9th of Adar, around the year 66 CE, shortly before the destruction of the Second Temple, the sages temporarily neglected the principle of the 49 vs 49 and became locked in a destructive conflict, each trying to advocate for their truth without any understanding or consideration for their opponents’ truth. This took place, according to the Talmud, when the schools of Hillel and Shammai ceased disagreeing constructively “for the sake of Heaven” and instead engaged in a violent clash over how open to be toward non-Jews. (JT Shabbat 1:4, 3c)

Today, our cultural competency in how to engage in constructive conflict and communication appears to be once again eroding. We might turn to our tradition to learn how to strengthen the cognitive and emotional skills essential to becoming more aware of the bias of our 49 and more respectful and curious about the opposing 49. We might, then, foster healthier and more sacred disagreements l’shem shamayim.

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Click here to see a related article in Sh’ma Now.

About Daniel Roth

Daniel is the director of the Pardes Center for Judaism and Conflict Resolution. He holds a Ph.D. from Bar Ilan University‘s Program for Conflict Resolution, Management and Negotiation writing on Jewish models of conflict resolution, peacemaking, and reconciliation. Daniel has been teaching advanced rabbinics, Bible, conflict resolution and other subjects at Pardes for over fifteen years. Click here to read more.

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