Parashat Vayikra: When the nation errs

To what extent does our rabbinic tradition believe in democracy - the rule of the majority?

"If the entire congregation of Israel shall err, and a matter become obscured from the eyes of the assembly, and do any of the things which commanded not to be done, and are guilty" (Lev. 4:13). To what extent does our rabbinic tradition believe in democracy - the rule of the majority? Most would assume that Judaism must rather believe in theocracy, the rule of the Divine. But what if God is no longer clearly enunciating decisions regarding the political and military questions at hand, either in the form of a commanding voice heard by all as at Sinai or via prophets who preach in His name? We don't even have a supreme body such as a Sanhedrin (a court of 71 rabbinic judges whose majority decisions were deemed binding on all Jews). I believe that a careful study of our foremost theologian/jurist Maimonides will prove that we look to the majority of our citizenry for guidance, and that the source for his belief is a verse in this week's Bible reading. And it is precisely the lack of prophets and a functioning Sanhedrin in our time which makes democracy our most viable form of governance. Unlike most other talmudic commentators, Maimonides deals with many critical matters concerning administration and government, especially but not exclusively in his "Laws of Kings." (chapters 11, 12) The very first Mishna in Tractate Sanhedrin mentions that the ordination of new Sanhedrin members was effectuated by the laying on of hands by a sitting member, harking back to God's bestowal of Divine inspiration on 70 Jews shortly after Sinai - men who were given some of Moses's spirit, and whom Moses subsequently ordained as the first group of elders (later to become known as the Sanhedrin). This chain of Jewish leadership came to a tragic end in the third century, when the Romans decreed that anyone who bestowed ordination and anyone who received it would be killed (B.T. Sanhedrin 13b, 14a). Maimonides, in his interpretation of the Mishna, writes as follows: "It seems to me that when there will be agreement from all the sages of Jerusalem and their disciples to raise up someone... and make him their head, and on the condition that this is in the Land of Israel, this agreed-upon person shall be the central pillar of the Academy, and shall become ordained. Afterwards, he will ordain whomever he deems worthy." In accordance with accepted rules of talmudic law, the agreement need not be unanimous; a majority is always considered as though it were a unanimous decision. In effect, therefore, Maimonides has ruled that the biblical - and Divinely originated - ordination which empowered our Judges to issue decrees and boldly interpret Jewish law could be revived by a majority vote of the population in Israel. The rationale for Maimonides's position is clearly exposited: "If you do not take such a stand, a Great Sanhedrin will never again exist, since the members of such a court must be ordained. And the Holy One, Blessed be He, testifies that the Sanhedrin will be restored, as it is written: 'And I shall restore your Judges as they were originally and your legal advisers as they were in the beginning; only afterward can [Jerusalem] be called the City of Righteousness' (Isaiah 1:26)." The need for such a democratic procedure is clear to Maimonides because of his insistence that the Messianic era - replete with a fully operational Sanhedrin and a rebuilt Jerusalem featuring the Third Temple - must come about through natural means. And indeed, such a democratic procedure was attempted in 16th-century Safed when Rabbi Ya'acov Berab was "elected" Head of the Academy, and he ordained a number of outstanding pietists, foremost among them Rabbi Yosef Karo. (Unfortunately this potentially nascent Sanhedrin was short-lived due to the opposition of Jerusalem scholars who felt overlooked by their Safed brethren.) I believe that the textual basis for Maimonides's far-reaching decision is a verse in our portion, quoted above. It must be remembered that Judaism has never entertained any kind of "papal infallibility"; our Bible records that even Moses sinned, and our High Priest would always begin the dramatic Yom Kippur service by publicly seeking God's forgiveness for his personal transgressions. The Book of Leviticus details what happens when the entire nation sins unknowingly. When they become aware of their sin and realize their guilt, "…the congregation shall offer a young bull as a sin offering, and bring it before the tent of meeting…" (Lev 4: 13,14). Our sages ask how the entire nation can commit an unwitting transgression, and conclude that it must be the result of a mistaken Sanhedrin ruling. This conclusion demands that the biblical phrase, "…entire congregation of Israel" implicate the Sanhedrin (Torat Kohanim 4, 241, B.T. Horayot 6b). If, then, the Great Sanhedrin is equated with the congregation of Israel, the way to re-form the Sanhedrin must be by agreement of a majority of the nation; and the "congregation of Israel" is also defined by the sages as referring to the "congregation" of Jews living in Israel (B.T. Horayot 3b). On this basis, it becomes logical that Maimonides further rules that in the absence of Sanhedrin or prophet, the people must elect a king or prime minister (Interpretation of the Mishna, Kritut chapter 1, Mishna 1). The 16th-century authority Rabbenu David b. Zimra agrees with this position (Commentary to Maimonides, Laws of Kings, 3, 8), and so did the first chief rabbi of Israel, Rabbi A.Y. Hakohen Kook, who said such an elected prime minister would have all the authority ascribed to a king of Israel (Mishpat Kohen, Responsum 144, 15, 1). Indeed, our biblical source which equates the Sanhedrin with the congregation of Israel would seem to confirm that in the absence of a Sanhedrin, the national opinion - by referendum or election - should be considered authoritative. Hence, it is no wonder that throughout the Middle Ages Jewish communities were run in a purely democratic fashion, in accordance with the decisions of "Seven Good Councilmen" chosen by popular election, and as long as those decisions were not in opposition to the Written Law. This fundamental acceptance of government for and by the majority - as well as the Jewish principle of human freedom - made Judaism the model for the government established by the founding fathers of the United States. The writer is the founder and chancellor of Ohr Torah Stone Colleges and Graduate Programs, and chief rabbi of Efrat.