27 marzo 2008

Importancia de la opinión individual en la halakhah

1. And why do they record the opinion of a single person among the many, when the halakhah must be according to the opinion of the many?

a) So that if a court prefers the opinion of the single person it may depend on him.

b) For no court may set aside the decision of another court unless it is greater than it in wisdom and in number.

i. If it was greater than it in wisdom but not in number, in number but not in wisdom, it may not set aside its decision, unless it is greater than it in wisdom and in number.

SEDER NEZIKIN, EDUYOTH, 1:5


Explanation

Generally speaking, when there is a dispute in the Mishnah between an individual Sage and the rest of the Sages, the halakhah is according to the Sages. This is due to a “majority rules” principle. This mishnah asks why then, does the Mishnah record the minority opinion, if that is not to be the accepted halakhah? Before we begin to discuss the answer, which is somewhat difficult to decipher, we should recognize the importance of the question. The Mishnah is not purely a book of halakhah, Jewish law, because it contains a plurality of opinions. In my mind this makes an important statement about Judaism and Jewish law: the first great work of the Oral Torah, that work which continues to shape Judaism to this very day, is not a recording of what one is supposed to do. It records a dialogue between the Sages, meant to be learned and extrapolated. This is the process of “Talmud Torah” that continues to this day. Furthermore, the Mishnah teaches that minority opinions are not necessarily “wrong” even though they may not be accepted.

The answer the mishnah provides to its question is slightly cryptic. I will explain it in one way, but there are others who have explained it differently. The mishnah records the opinions of individual Sages so that future courts might rely on their opinions and decide halakhah according to them. Although at the time of the Mishnah these opinions were not accepted by the majority, since they are not “wrong,” in the future other courts may accept them.

If a future court were to disagree with the opinions of an earlier court, and there was no recorded minority opinion, they could only change the decision if they were both wiser and greater in number than the earlier court. In other words there are two ways, according to this mishnah, that a future court can overturn an earlier decision: 1) by relying on a minority opinion; 2) by being greater in number and wisdom.


tomado de mishnahyomit.org de USCJ

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