MISHPATIM (Exodus, 21:1-24:18) — “Voting ‘Against’ G-d”, or, “Whose Torah IS This Anyway?!”

My website is copyrighted.  Every Torah Talk email that I send out has copyright information on the bottom.  It’s not that I expect to make any money off my humble thoughts of Torah.  I have no objection whatsoever to people re-printing my Torah Talk messages, as long as they are reprinted in their entirety.  I want to make sure that what people read in my name is what I have actually written.  I want to maintain some control over my “intellectual property.”

How does G-d feel about His “intellectual property?”  Does He maintain “ownership” over the Torah?

The Talmud (Bava Metzia, 59b) records a fascinating dispute between Rabbi Eliezer and his colleagues.  It seems that there was a disagreement as to whether a particular type of oven was susceptible to ritual impurity.  Rabbi Eliezer maintained that it was not, while the rest of the Sages ruled that it was.

Rabbi Eliezer presented logical argument after logical argument to support his view, but to no avail.  The Rabbis disagreed.  Rabbi Eliezer, a holy man, decided to miraculously defy nature in order to bring home his point.  “If I am right,” he declared, “let the carob tree prove it!”

Without further ado, the carob tree was uprooted and flew through the air with the greatest of ease.  The Sages were unimpressed.  A river flowing upstream and the trembling walls of the study house did nothing to change their view.  Finally, Rabbi Eliezer pulled his “Heaven Card.”  “If I am right, let the Heavens prove it!”

A heavenly voice boomed in reprimand of the Sages: “Why are you arguing with Rabbi Eliezer, when the Law, in fact, is always in accordance with his opinion?!”

Well, that should have ended the argument.  After all, the Master of the World, the Author of the Torah, the Originator of all Jewish Law, has just declared that Rabbi Eliezer is the man!  Would the Sages finally acquiesce to Rabbi Eliezer’s opinion?

They wouldn’t budge.  Rabbi Joshua stood up and quoted from Deuteronomy (30:12) “It (the Torah)is not in Heaven!”

How could Rabbi Joshua say such a thing?  How dare he ignore a miraculous message from G-d in support of Rabbi Eliezer?  His behavior seems almost heretical!

The Talmud goes on to explain what Rabbi Joshua meant.  This week’s Torah Portion goes into great detail about the rules of judgment.  An essential component of deciding the law is that, “…a case must be decided on the basis of the majority.” (Exodus, 23:2)

Rabbi Joshua was saying, “You gave us Your Torah on Mount Sinai.  We do not accept the rulings of voices from Heaven because You already wrote in Your Torah, ‘…a case must be decided on the basis of the majority.’   The majority of the Sages of Israel have ruled against Rabbi Eliezer.  He is in the minority, and therefore his opinion is rejected!”

Pretty gutsy, no?  By saying that Rabbi Eliezer is wrong, he seems to be saying, G-d forbid, that G-d Himself is wrong!


It is important to understand that among the Sages of Israel, we are not discussing Right vs. Wrong.  The Talmud is replete with different valid approaches to understanding Torah.  Rabbi Eliezer had one valid approach.  His peers had another valid approach.  But a Torah society cannot function with a cacophony of valid opinions.  There has to be a bottom line.  The Torah provides that bottom line.  The bottom line is majority rule.

Rabbi Eliezer engaged in other disputes.  For example, the Torah permits an eight-day-old boy to be circumcised on Shabbos.  It is normally forbidden to cause a wound on the Sabbath.  However, the Law of Bris overrides the Law of the Sabbath.  Rabbi Akiva takes the position that only the Bris may be done on the Sabbath, while all preparations must be done before.  Rabbi Eliezer, on the other hand, would permit a knife to be manufactured and carried through the streets on Shabbos.  If Rabbi Eliezer were alive today, he would, no doubt, permit a Mohel to get into his car on a Saturday morning and drive to a Bris.

If a Mohel, in accordance with Rabbi Eliezer’s opinion, drove to a Bris on a Saturday, he would be judged to be a Sabbath desecrator, and, as such, disqualified to serve as a Mohel even on a weekday!  Rabbi Eliezer, for all his greatness, scholarship, and piety, was outvoted by the majority.  We are not permitted to follow his ruling.


This concept begs the following question.  Do we ALWAYS follow the majority?  What about the fact that most Jews today violate the Sabbath?  Do we now, G-d Forbid, remove Shabbos from the canon of Jewish practice?  What about intermarriage?  How about killing pre-born children?  Should we assume that once the majority of Jews decide that a particular activity is acceptable, that we should delete it from the Torah?!  Should we, perhaps, endorse the decision of the majority of “Palestinians” that it’s ok to wantonly kill and maim as many Jews as possible?!

Obviously, the Torah’s endorsement of majority rule only goes so far.  We accept the opinion of the majority of those authorities WHO ARE ENTITLED TO AN OPINION.

Above we quoted the verse, “A case must be decided on the basis of the majority.”   However, that’s not the whole verse.  The beginning of the verse is. “Do not follow the majority to do that which is wrong…”  Just because the majority of people have an opinion, that doesn’t make it right.

So how do we know what to do?  How do we know when to follow the majority and when to ignore them?

Sometimes it’s simple.  “Do not follow the majority to do that which is wrong…”   If the Torah says one thing, and the masses say another, ignore them.  They’re wrong.  The Torah says so.

Torah is an unbroken chain of Tradition.  One doesn’t become a Sage just because he decides he wants to be one.  The Torah leaders of every generation learned from, and were accepted by, the leaders of the previous generation.  Rabbi Yisroel Belsky studied for many years under the great Torah scholar Rabbi Yaakov Kamenetzky.  One day someone came to Rabbi Kamenetzky with a question.  He gestured in the direction of his student.  “He’ll answer your question,” said the Sage.  The mantle of Torah leadership had been passed on to the next generation.

Rabbi Akiva had a Tradition of Torah scholarship from his mentors, and Rabbi Eliezer had a Tradition from his.  Both views had validity.

There is no shortage, unfortunately, of self-appointed experts in Jewish Law and thought.  However, the Torah is telling us to follow those who are experts in the appropriate system of Torah study.


I’ve often wondered about this Talmudic narrative of the debate between Rabbi Eliezer and the Sages.  What did G-d want to happen in the end?  After all, His “opinion” was in support of Rabbi Eliezer.  Was he “disappointed” at being outvoted?

Not at all.  The Talmud quotes Elijah the Prophet.  Elijah was asked what G-d’s reaction to the vote was.  “He laughed,” said Elijah, “and said, ‘My children have defeated Me.’”

On the one hand, G-d “agreed” with Rabbi Eliezer’s approach.  On the other hand, He WANTED, based upon the concept of majority rule, to be overruled.


Why are there so many disputes in the Talmud?  Why even bother with majority rule?  Why doesn’t G-d just spell out, clearly and succinctly, what He wants the final ruling to be?  After all, if the Torah is all about doing G-d’s will, why doesn’t He make it clear for us?

The answer, I believe, can be found in the writings of Rabbi Elazar Shach, of Blessed Memory.  Rabbi Shach teaches us how to “think like G-d.”  He quotes King Solomon’s advice that, “If you will seek it like silver, and search for it like hidden treasure, you will understand the fear of G-d and find knowledge of G-d.”  (Proverbs, 2:4-5)

Torah knowledge was not meant to be handed to us on a silver platter.  We’re supposed to SEARCH for that silver so that we will truly appreciate its value.

If someone strives and toils in the study of Torah, with no compromises and no agenda other than acquiring Divine understanding, he will “find knowledge of G-d.”  And once he achieves that lofty level, he becomes worthy of being counted among the Sages of Israel who are granted, by G-d, the right (and obligation!) to offer his opinion in matters of dispute in Jewish Law.  And, under certain situations, as we see in “Sages vs. Rabbi Eliezer,” he may even manage to “outvote” G-d!

There are no shortcuts to greatness in Torah.  One must work very hard, with piety and humility, to understand the teachings of the previous generation, who in turn, learned from the previous generation, all the way back to Mount Sinai.

The Sages of the Talmud, whose only interest was the Truth of Torah, reached a level of understanding that qualified them to discern the “knowledge of G-d.”  They, the majority of Torah scholars, articulated to the world, what the true will of G-d is.

Do you want to know G-d?  Study His Torah!

Have a great Shabbos.
Rabbi Yerachmiel Seplowitz

To leave a comment about this article, or to read other readers’ comments on this article, scroll down past the archive links.

“Voting ‘Against’ G-d, or, “Whose Torah IS This Anyway?!” (2010)

… The Talmud records a fascinating dispute between Rabbi Eliezer and his colleagues…

Rabbi Eliezer presented logical argument after logical argument to support his view, but to no avail. The Rabbis disagreed. Rabbi Eliezer, a holy man, decided to miraculously defy nature in order to bring home his point. … Finally, Rabbi Eliezer pulled his “Heaven Card.” “If I am right, let the Heavens prove it!”

A heavenly voice boomed in reprimand of the Sages: “Why are you arguing with Rabbi Eliezer, when the Law, in fact, is always in accordance with his opinion?!” …

They wouldn’t budge. Rabbi Joshua stood up and quoted from Deuteronomy (30:12) “It (the Torah) is not in Heaven!”… Pretty gutsy, no? …

Read more.
“We Wish You a Merry Shabbos???” (2009)

… One Shabbos, he walked into shul and found it to be packed. …it was a non-Jewish holiday. Since stores were legally required to be closed, the otherwise-Sabbath violators took advantage of the opportunity to come to shul, along with their children…

“No doubt,” said the rabbi, “your children must have asked you, ‘Why is this Shabbos different from all the other Shabboses of the year?’

“And you must have answered, ‘This Shabbos is greater than every other Sabbath because today is the birthday of the founder of another religion…’”

Read more.
“Let’s Make a Deal” (2007)

Okay, I admit it! I am a criminal. I am a lawbreaker. I have confessed in open court. I have thrown myself on the mercy of the court and pled guilty to violating the law…

I got to watch some criminal proceedings too. The prosecutor, lawyers, and judge all played their parts professionally. As each one recited his scripted line, the others nodded and scribbled little notes on their legal pads in their legal folders. One young man was accused of breaking and entering. The prosecutor offered to reduce the charge to a less severe one. Scribble, scribble. The judge agreed. Scribble, scribble. Then the judge said, “According to the statutes, you have to give a valid reason for this type of reduction.” Scribble, scribble.

The prosecutor’s response?

“In the interest of Justice.” Scribble, scribble.


Read more.
“A Capital Idea” (2005)

Regardless of your position on capital punishment, it seems possible to find support from the Torah.

This week’s Torah Portion is replete with prohibitions for which the death penalty applies …

On the other hand, we find in the Talmud that the Sages went to great pains to avoid carrying out the death penalty … Rabbi Moshe Feinstein, of Blessed Memory… wrote in 1982 to “Sar Hamedina” — “The Prince of the State.” (I assume that refers to President Reagan or New York Governor Hugh Carey). Rabbi Feinstein was responding to a question as to the Torah’s view on capital punishment…

Read more.
“Oh Say, Can you Sue?!” (2004)

…Jack and Jill lived up the hill.

Each of these two neighbors owned an ox. Jill’s ox was out in the field one day, calmly grazing on grass. Suddenly, out of nowhere, Jack’s ox charged, ramming his horns into his unsuspecting neighbor. To Jill’s utter shock, her ox lay there in the field, and bled to death…

Jill hired Johnnie Cochran, who told the jury how Jill’s life had been shattered by the loss of her livelihood. By the time the trial was over… Jack was ruined, and Jill bought a condo in Boca. 

Now, let’s change the scenario a bit.

Jack and Jill are now Yaakov and Yocheved. Instead of going to court, Yocheved, a religious woman, went to … a rabbinic tribunal for justice… She was dismayed by the response…

Yesterday, Yocheved owned $1000 worth of ox. Today she has $500 cash and $50 worth of dead ox. So much for the condo in Boca. …

Read more.
“Double Trouble” (2003)

What is the best way to discourage theft? … The Torah has a very unique way of punishing someone for stealing. … the Torah makes sure that his efforts will backfire…

 Read more.
“Your Ivory Tower Is Blocking My Driveway!” (2002)

When we overly involve ourselves in the sublime, we run the risk of ignoring the mundane…  How do we explain the occasional unfortunate situation of a religious person who is  dishonest? 

Read more.
“Human Rights: Body Piercing and Slavery” (2001)

Jews have always been known for their spirit of social consciousness. We have always been at the forefront in calling out for fairness to all people. We marched with Martin Luther King in Selma… After all we’ve been through, we know what it’s like to be deprived of civil liberties. We would never want to see anyone subjugated or oppressed in any way.

… Where is the outrage?! Where is the J.C.L.U. (Jewish Civil Liberties Union)? Where is the hue and cry from the AFL/CIO, protesting the cruel and unusual treatment of a worker? Is this why G-d took us out of Egypt, so we could be subjected to harsh working conditions and forced body piercing?!!…

Read more.

 This is the weekly message at www.torahtalk.org.   Copyright © 2000-2014 by Rabbi Yerachmiel Seplowitz.  May be reprinted. Please include copyright information.


Rabbi Yerachmiel Seplowitz is a Mohel (www.Brisrabbi.com)  and chaplain in Monsey, New York. For information about scheduling a Bris or a lecture, or just to say hello, call (800) 83MOHEL.


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Published in: on February 11, 2010 at 8:32 am  Leave a Comment  

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