The Conceits of "Consensus" in Halakhic Rhetoric

Introduction

Regular readers of halakhic literature will inevitably encounter appeals to "consensus," either of a select sample of halakhic decisiors, frequently using the Hebrew idiom "rov poskim," or of a community's popular perceptions. 1 The distinguishing characteristic of these appeals to consensus is that the legitimacy or rejection of an opinion is not determined by intrinsic, objective, qualifiable criteria or its merits, but by its adoption by certain people. 2 The primary premise of such arguments is that unanimity or a plurality of agreement among a given collective is halakhically binding on the Jewish population 3 and cannot be further contested or subject to review. 4

Appeals to consensus are common and relatively simply to assert, but those who rely on consensus rarely if ever acknowledge, address, or defend, the assumptions inherent with the invoking of consensus as a source - if not the determinant - of practical Jewish law. As I will demonstrate, appeals to consensus are laden with problematic logical and halakhic assumptions such that while "consensus" may constitute one factor in determining a specific psak, it is not nearly the definitive halakhic criterion its proponents would like to believe.

Problem 1: Defining the Consensus

The first problem to consider is how a consensus is determined. Even when sources are cited to support a position, a claim of consensus implies general agreement compared to negligible dissent. Therefore, in order to sustain this claim, one must not only provide ample evidence in support of a proposition but must also dismiss opposition. The former criteria is relatively simple to meet in the sense that one can simply cite sources which state a position, but demonstrating the lack or scarcity of opposition is dependent on one determine's the collective in question.

When discussing consensus among a clearly defined body, we could simply count the numbers. The Supreme Court of the United States is one such example with a current membership of only nine justices. One could plausibly argue that a 9-0 or perhaps even an 8-1 decision is indicative of a consensus opinion among the Supreme Court justices, as opposed to a 5-4 majority decision which would seem to have been more contentious. We can quibble over the exact numbers required for a consensus, but at least we would have objective criteria with which we could make an assessment.

Because Judaism has lacked an analogous institution for well over a millennium, arguments of halakhic consensus are not predicated on the agreement of court or the majority legislation of a Sanhedrin but over inclusion of and exclusion from a collective. The general population may be broken down by denominations or sub-categories, and opinions from one group may be dismissed out of hand by another. Orthodox Jews will usually disregard opinions from Conservative or Reform Judaism out of hand such that their views will not be considered for their calculus of consensus. 5 Apart from denominational and communal divisions there are tacit distinctions made regarding which Rabbis and opinions are consequential. For example, an appeal to "rov poskim" implies that certain only certain individuals merit this rarified status to the exclusion of all others. 6

Just as the appeal to consensus stresses people over logic, subsequent debate will also focus on the merits of individuals and their worthiness to be included or excluded from the conversation. This situation runs the risk of the No True Scotsman fallacy whereby one excludes a contradictory opinion on the grounds that no one who could possibly hold such an opinion is worth consideration. For example, if one assumes "no true gadol" would permit the use of electricity on Shabbat, then anyone would permit the use of electricity on Shabbat would be automatically disqualified as a legitimate halakhic opinion.

Debates over inclusion and exclusion for consensus are susceptible to social manipulations as well. Since these determinations imply a hierarchy or rank of some sort, attempts which disturb an existing order may be met with various forms of bullying or intimidation - either in terms of giving too much credit to one opinion or individual or not enough deference to another. Thus any consensus reached on this basis would not be not based out of genuine agreement, but fear of reprisals. The consensus of the collective may be similarly manipulated through implicit or overt marketing as a way to artificially besmirch or enhance someone's reputation. 7

One may suggest that the preeminent halakhic authorities who are cited are themselves determined by some form of communal or rabbinic consensus. The problem with this suggestion is the obvious tautology, that an arbitrary consensus is itself determined by another arbitrary consensus without justification. In this case halakhic discourse becomes hopelessly circular and effectively reducible to the argument, "what we say is true simply because we say it is so."

Problem 2: The Assumption of Authenticity

The next premise to consider is the correlation between consensus and correctness such that if most (or all) people believe something to be true, then by the value of its widespread acceptance and popularity, it must be correct. This is a well known logical fallacy known as argumentum ad populum, sometimes called the bandwagon fallacy. This should be familiar to anyone who has ever been admonished, "if all your friends would jump off a bridge would you follow?" It should also be obvious that at face value that Jews, especially Orthodox Jews, ought to reject this idea as a matter of principle. For if the correctness of an opinion is measured by its popularity, then Jews should have converted to a majority religion long ago. After all, no Jew in history has ever obtained or sustained the religious following of Jesus, which according to this logic and the 2.1 billion Christians worldwide, must reflect the true tradition of the Bible. 8 Even within the Jewish affiliations, the argument from popularity would dictate that American Orthodox Jews should adopt Reform Judaism as the correct interpretation of Judaism simply because of their majority.

Some may distinguish between the laity and the elite, such that if the perceived experts in a field agree we ought to trust them for it is unlikely that all these experts would make a mistake. However, there are important exceptions to this line of reasoning, as per qualification to scientific consensus,

There are two significant differences:
1. Scientific consensus doesn't claim to be true, it claims to be our best understanding currently held by those who study the matter. Scientific claims for truth are always tentative rather than final, even if they are often very impressive tentative claims for truth.

2. Scientific consensus is built upon a foundation of logic and systematic evidence - the scientific method - rather than dogma (or that which is taught in Sunday school) or popular prejudice. The consensus comes not from blindly agreeing with those in authority, but from having their claims to be thoroughly reviewed and criticized by their peers. (Note that even long-established scientific consensus can be overthrown by better logic and better evidence typically preceded by anomalous research findings.) [Emphasis original]

Scientific consensus can always be challenged if one were to produce contradictory and reproducible results. These conclusions are not dependent on the people but on the methods as even high school students continue to make significant scientific discoveries. Unless one can produce the logical argument for why one opinion is superior to another, one is not following the consensus, but rather an argumentum ad verecundiam, an appeal to authority.

Furthermore, even an agreement of experts may not reflect independent reproducible research, but rather the reflection of others in a relatively insular social group. Professor Ronald Burt's description of a "closed network" should be familiar to those in Jewish communities:

A network is closed to the extent that people in it are connected by strong relationships. Typical forms of closure are dense networks in which people are connected to everyone else, and hierarchical networks in which people are connected indirectly through mutual relations with a few leaders at the center of the network (1).[Emphasis added] 9

Prof. Burt discovered that in such social networks there is a greater prevalence for repeating the ideas of others in the group, otherwise known as "echo."

The evidence provided here supports an alternative defined by the echo hypothesis; strong connection through third parties increases the probability of social reinforcement such that network closure creates echo, not accuracy (29). [Emphasis added]

No one is privy to see into the hearts and minds of others to know exactly who or how people are influenced. However, it is possible that a supposed consensus reflects less of independent verifiable research than it does a reflection of a single view repeated throughout one's insular community, especially one in which group-think and intellectual conformity are themselves religious values if not prerequisites for being included in the collective for consensus.

Problem 3: The Assumption of Halakhic Validity

Aside from the logical difficulties inherent in an appeal to consensus, we must also address the status of consensus in Jewish law. Meaning, does consensus itself determine halakhah such that agreement creates religious obligations to which all Jews must adhere. I have discussed this question on this site several times in different contexts. The most notable example would be my essay and class / podcast titled "Popular Practice and the Process of Psak" in which I describe the role of custom in Jewish law, when it is obligatory, optional, and sometimes even prohibited to be followed. In another class I demonstrated how the Tosafists were inconsistent in term of how they perceived custom as binding law. Some of you even may recall when I responded to a 2004 article by R. Danny Stein in which he applied Nachmanidean dogma toward communal practice, arguing that since God would not allow the Jewish people to make a mistake, God must be influencing the halakhic process to the extent what become popular must reflect God's will. I understand that not every reader will have the inclination to review those references, for the purposes of this essay I need only cite enough sources to demonstrate where according to Biblical and Rabbinic Judaism consensus among the Jewish people or its religious do not constitutes normative halakhah.

That the Torah acknowledges the possibility that Jewish communal consensus may violate Divine Will should be apparent to those with even a cursory knowledge of the Bible. The "entire nation" contributed to the creation of the golden calf (Ex. 32:3) and the "entire population" believed the report of the spies (Num. 14:1). An entire chapter is devoted to the sacrifices which are to be brought if the nation as a whole or if its leaders sin (Lev. 4), and following the Korach Rebellion God again tells the Jewish people what to do when "the entire nation has sinned in error" (Num. 15:26). If a city is led astray by a charismatic individual, God does not defer to the local consensus, but rather the entire city is to be destroyed (Deut. 13:13-17). The books of the prophets are replete with examples of the Jewish people being chastised for violating the will of God, even though in their mind they were acting "properly" (Jud. 21:25).

Rabbinic law recognizes two types of consensus for determining Jewish practice, though neither of which is absolute and infallible. One is the popular consensus of communal custom which one must follow within the community, 10 provided the custom does not violate Biblical or Rabbinic law. 11 The other is the consensus of the elite, which is defined by the majority legislation of the Sanhedrin after a discussion on a given issue. The primary source for the authority of the majority is Ex. 23:2 which is defined by the Rabbinic tradition as specifically referring to a court (B. Sanhedrin 3b). Even here the Sages accepted their fallibility and expounded the halakhic ramifications in the event of an error (B. Horayot 2-4). Furthermore, even Great Rabbis were chastised and sanctioned when their actions violated Jewish law. When R. Tarfon risked his life in order to recite the the keri'at shema in accordance with the opinion of Beit Shammai, his colleagues replied that he was worthy of being injured for ignoring the normative law (M. Berachot 1:3) even to the point of having deserving death (Y. Berachot 1:2 3b)! 12

In terms of modern day applications, a consensus may be enforced on a specific community provided it does not violate Jewish law. However, as Maimonides writes, the optional norms of one community are not automatically imposed on another (Introduction to Mishnah Torah). 13 Furthermore, these local practices are subject to change should the need arise, and assuming that these changes to a specific community's practice also do not violate Jewish law. According to the Rabbinic tradition, the biblical exhortation to "follow the majority" does not apply to individual rabbis but to the decision of a court. Not only does this solve the problem of defining a consensus, but it also means a consensus would be reached through discourse and debate with the principles as opposed to a diachronic survey of literature.

Consensus as Social Pragmatism

While I challenge the premise that consensus carries intrinsic halakhic merit, I do not entirely dismiss its value. Mark Washofsky construes a practical reason for relying on consensus.

Over time, a question that has long been a subject of lively dispute within a legal community will become settled. Though the community may have in the past entertained disagreement and divergent approaches to its solution, this multiplicity of views becomes out of place once a widely accepted answer has been arrived at. That answer now holds the status of "law," so that the burden of proof rests heavily on those who claim that it is not in fact the only correct answer or even the best answer. This process occurs in Jewish law whenever the community of poskim reach a consensus as to the right answer to a previously disputed halakhik issue. At that point, while students of the halakhah will continue to study the "rejected" approaches, those will be regarded as purely theoretical possibilities. The law in practice (halakhah lema'aseh) will be identified by most observes with the consensus view among the poskim. Other, conflicting views, however plausible they may be as interpretations of the halakhic sources, will be seen as incorrect.

This consensus forms a precedential function in halakhah, a constraint upon the freedom of rabbinic scholars to derive solutions to legal problems that differ from the consensus view. We see evidence of this consensus throughout the history of Jewish law, every time a community adopts through formal or informal process the practice of deciding their legal issues in accordance with a single posek or a group of poskim. We see it in the form of "rules" for halakhic decision-making, designed to create a uniform interpretation of legal sources that in theory could be read in two or more different ways. And we see it operating on substantive halakhic questions as well, forging agreed-upon solutions to issues otherwise susceptible to a variety of approaches. In a significant sense, what we today call "Orthodox Judaism" is an example of halakhic consensus, a collective stipulation by a particular Jewish community to adhere to the particular halakhic interpretations championed by a particular set of rabbinical authorities. Consensus thus enables the Orthodox community to identify itself, to its own members and to the rest of the Jewish world (28-29). 14[Emphasis added]

Consensus is thus a social convenience in that allows a collective to define itself based on those decisions and proceed accordingly. Constantly reviewing the same controversies without resolution is not only exhausting but it also risks similar bullying tactics by proponents who simply want to get their way with no regard for halakhic merit. As such, it is my opinion that a halakhic decisor ought to consider popular opinion when issuing general or specific rulings, though the weight given will vary given the circumstances and consequences. However, those who insist that their definition of consensus definitively determines normative halakhah for the entire Jewish people, and to the extent no other opinions have halakhic merit nor other options be considered, deny not only basic logic but the Biblical and Rabbinic religious traditions they claim to defend.

Notes:

  1. While in this essay I am focusing on halakhah, similar appeals to consensus are found in discussions of Jewish thought, in particular regarding the status of Maimonides' 13 Principles of Faith.
  2. In Brisker terms, this would be a distinction between the "heftza" of a position's content versus the "gavra" of those who accept it.
  3. This is not to be confused with the use of consensus as a form of colloquial rhetorical flourish. For example, The Talmud records hundreds of claims of "kulei 'alma," literally meaning "the whole world" agrees to a particular position. Given the certitude that one can produce a single lone dissenter on the planet to falsify this claim, it seems reasonable to assume that Talmudic sages were conscious of their hyperbole. But even in the Talmudic vernacular, an appeal to "kulei 'alma" was most often employed to define a point of agreement between specific parties in order to better understand the true point of halakhic contention. See B. Berachot 23a for just one example. These appeals to "the whole world" are not the basis of a halakhic argument - which must be defended on its merits - but instead are descriptive of a certain context, albeit exaggerated, with the intent of advancing a specific point in the discussion.
  4. Alternative or contradictory opinions may be suggested, with the caveat they remain theoretical and are not implemented in practice.
  5. Though it should not be surprising to find selective citations when it suits an argument. R. Saul Lieberman is usually ignored in Orthodox circles, but his opposition to women rabbis is noteworthy and thus merits a reference.
  6. For more on this subject see my earlier post on "Gadolatry."
  7. In 2013 it was revealed that R. Michael Broyde created a fake online identity to join a rabbinical group under a false persona and engage in a practice known as "sock puppetting" where he would use this fake identity to promote his other writings. One unanswered question from this discovery is why would R. Broyde need to have promoted himself in such a fashion given the influence reputation he had earned through years of prolific and thorough scholarship. It is possible his motivations may be attributed to the primacy of consensus in his halakhic system. A quick search of just the approximately 25 articles R. Broyde authored or co-authored for the Journal of Halachah and Contemporary Society returned nearly two dozen appeals to consensus in some form, a reasonable indicator that for R. Broyde the perceived consensus is equivalent with decided law regardless of the inherent merits of the opinion. When R. Broyde directly cites his opinions to others, he would only be relying on the merits of his scholarship. But in citing himself through the mask of another person - be it on internet message boards or rabbinic email lists - R. Broyde subtly influences readers that he is a person worth quoting (a "bar hachei," if you will), and thus transforms into a primary source in subsequent halakhic discussions. Thus, "sock puppetting" is not merely an exercise in self-promotion, but a duplicitous gaming of halakhic consensus.
  8. When my father would get asked if he thought he knew more than everyone else, he would usually reply that his namesake is "Avraham" who according to Jewish tradition correctly did just that.
  9. On hierarchical networks in Judaism see Jose` Faur's "One Dimension Jew Zero Dimension Judaism," summarized on this site in "On Tone and Traditions – A Followup to Fallout"
  10. For one example see B. Pesachim 50b-51a.
  11. Note that the lack of Rabbinic opposition to a popular custom is not an indicator of a custom's validity. See B. Beitzah 30a, "הנח לישראל, מוטב שיהו שוגגין ואל יהו מזידין".
  12. "שהרי רבי טרפון אילו לא קרא לא היה עובר אלא בעשה וע"י שעבר על דברי ב"ה נתחייב מיתה"
  13. As I explain in the earlier references, the Rabbinic definition of communal practice is dependent on location as opposed to heritage, see M. Pesachim Chapter 4 for examples.
  14. Washofsky, Mark. "Taking Precedent Seriously: On Halakhah as a Rhetorical Practice." Re-Examining Progressive Halakhah. Ed. Moshe Zemer Walter Jacob. New York: Berghahn Books, 2002. 1-70.
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