Israelis often wail that the country lacks unity. But when most Israelis say “We need more unity,” what they really mean is “More people should agree with me.” Dissent can be a pain, but it’s essential—as is recognized by the Sages of the Talmud in the Horayot Tractate (4b). The Beit Midrash run for the last two years by Kehilat Yedidya last week finished its study of this tractate with just this insight.
Horayot deals with the issue of what happens when a court—a rabbinic court, which served as the chief legislative and moral authority of Jewish communities in Talmudic times—makes a ruling mistakenly. To do this, it reads Torah passages in Leviticus 4 and Numbers 16. These passages deal with a sacrifice called the korban shogeg, to be offered by a person or group of people who has violated a Torah precept without intention. While the Sages of the Talmud lived long after the Temple was destroyed and the sacrificial service ceased, they continue to use this language. Assignment of responsibility for the error is designated by the assignment of the requirement to bring this sacrifice.
The question is: if a court makes a ruling that violates the Torah, does the ultimate responsibility fall on the court, or on the individual who obeyed the court’s instruction?
The tractate discusses various permutations of this issue. Page 4b considers the question of what happens if one member of the court disagrees with the ruling. In such a case, according to the Mishna, the court is not required to bring the sacrifice—by implication, the sacrifice must be brought by the individual who obeyed the court.
This is not to say that the court bears no responsibility. But the implication is that the very fact that one member of the court has dissented absolves the court of the ultimate, divine responsibility represented by the obligation to offer a sacrifice.
I would argue that this ruling serves as a caution and an incentive to every rabbinical court—and by implication, to every decision-making body, be it a modern parliament or the polity of a democracy. In this case, the court is clearly being encouraged to make sure that it has at least one contrary member—a member whose propensity is to argue against what ever everyone else agrees about.
We all know people like that. They can be a royal pain in the ass. But the Talmud here understands how easy it is for a group of people with power to settle into conventional wisdom, into a hegemonic discourse that blinds them. Not only do they not consider opposing arguments—they cannot even discern that there might be other points of view.
Many times the dissenter’s arguments won’t hold water. Many times the majority’s view may be the correct or necessary one. But a panel that rules unanimously, after a discussion in which no one has disagreed, cannot really have deliberated in a serious or thorough way.
So it’s dissent we should seek, not unity. A good argument is the fodder of democracy.
In other words, there should be a devil’s advocate, someone looking for reasons not to go along with the crowd, no matter how popular the view.
I’d argue that a greater danger to democracy, and one that you likely have less of in Israel than we do in the US, is indifference and ignorance on the part of the electorate. If the mass of voters simply don’t give a damn, then the legislators will go with whatever lobby is most powerful.
On any issue there will be parties with a do or die attitude and they will, through their tireless efforts, carry the day unless opposed. This hands power to minorities while the majority slumbers.
These days, the huge number of complex issues that are faced by legislators and voters invites turning over things to lobbies. They supply the detailed knowledge and are more than willing to step forward with written legislation, requiring the members of government to simply sign on.
If I read Gershom’s book correctly, the settlement movement got going because of a few in government who wanted to see it happen allied with a dedicated minority of citizens who were eager to create the facts on the ground while the great majority did not take a stand.
I would take from what Haim reports a method of sustaining correct dissent within the rabbinical community (if such there is–I am wholely ignorant). The Court does not have to sacrifice because one of their number warned of the mistake; that one will thereby grow in reputation, and can be cast as protecting the reputation of the Court as a whole. This makes some sociological sense (to me) if these Courts are not fixed in membership as is a standard judicial high court. That now correct dissenter has greater likelihood of being called in for future decisions, sort of a social selection mechanism. Even if membership is fixed, one can presume that his opinion would carry more weight, for a time at any rate.
That the man enjoying a favourable ruling of a court with dissent must make sacrifice when the ruling is wrong I find unsettling. That man was immunized by the court. Perhaps the community in some form should make sacrifice, acknowedging that at times the necessary compulsion of courts can go awry.
So if it’s right to encourage or not discourage dissent, it’s wrong to attempt to destroy it. It’s actually very wrong. And that this “holds water” is proven by self-inflicted punishments that follow.
Who deems right and who deems wrong? Who ultimately other than Fate determines that which “holds water” if there are different human notions of what “holds water”.
For instance- if peace is good and war is bad, which many would agree, those actions or inactions which destroy or do not achieve peace do not “hold water”.
Another thought:
In absurdity, a court could decide a case, then randomize one of its members to dissent; this way, the court is ever indemnified against error, never having to present sacrifice. It must be, then, that the opinions of sitting rabbis have import outside of the court–say, in their synagogue or networked learned community. No rabbi would then want to accept randomized dissent if he felt that dissent incorrect; he would look inferior in his home base. The court is an arena of competition to reveal learned worth; decisions pull that worth together through contest, creating a standard for Judaic legal conformity. Dissent is risky for, if held wrong over time, one’s standing both inside and outside the court is dimmed.
But, as our host tells us, this rule of sacrifice was symbolic only, for the Temple no longer was. The Temple, as portal to God, is gone, and the centuries sundered Jewish communities strove for an alternative focus of common belonging. Here the rule indemnifying an erroring court when dissent is present takes on an added function: it extends the community by making one dissenting into a savior of sorts. The rabbinical community could not be universally linked: communication was slow, network knowledge of other rabbis dampening with distance. A general Law in diaspora was ever a struggle, and highlighting the saving power of dissent made ever possible contention into a social bond: even if wrong this time, you may show us wrong and thereby save us later.
There was no single Jewish authority, so no single Jewish community. Alliance both to understand new cases of law in a changing, foreign world, and to fortress against the ubiquitous Christian outsiders transformed dissent from a losing stance to new protection under shared uncertainty. A court cannot sacrifice to God, for there is no longer a single Jewish community; to sacrifice would be hubris to other communities. Protective dissent saves the court from an impossible bind and outreaches to the dissenter to expand the living community of (still somewhat local) faith. When you can circle everyone into a fortress dissent can be framed as a weakness. When the extended community of faith is spatially undefined, some effectively ever over any horizon encountered, dissent can be a way of reaching towards the horizon.
The protection of Israel within Israel is not the same as an extended topology of Jewish faith, or just ethnicity, outside of the Jewish State. Within the State there will be a strong tendency to see contention as zero sum; outside the State, loss takes on a somewhat drifting meaning, right and wrong migrating along the travels of diaspora. The extended law of Torah, the commentaries, are not meant for a State. Once again, Jewish life and tradition creates a new dilemma, or challenge, for itself.
What Suzanne (ante) calls contention over “what holds water” is shifting definition of success within and without the State, as the State is not identical to the extended network diaspora. When the good of Israel AS SUCH becomes the only standard, the extended, external network to the State will be threatened, just as if one rabbinical court declared itself always right over all other courts throughout the diaspora. The State, as in a rabbinical court, may have to refrain from certain decisions/actions to keep the potential of the extended network, the diaspora, intact. Israel is indeed unique; and that is Bibi’s headache.
There. I made a political point. Maybe. Hard to tell.