Challenges to Rav Chayim's Principle of a Majority Verdict

            In the previous shiur, we explored Rav Chayim Soloveitchik's well known principle of bittul regarding a split panel of judges.  According to Rav Chayim, the dissenting judges are not overpowered by their colleagues; instead, the majority ruling becomes the verdict of every single one of the judges on the panel.  This shiur will attempt to analyze this principle in light of two additional debates cited by the Gemara in Sanhedrin 3b. 

            The Gemara introduces a machaloket between Rebbi and the Rabbanan regarding the minimum number of judges to adjudicate monetary suits.  The conventional and accepted opinion of the Rabbanan requires three judges, while Rebbi demands five.  Ultimately, the Gemara derives Rebbi's requirement of five judges from various verses; initially, however, the Gemara suggests an ingenious logic to explain the need for five jurists: if the panel ultimately splits, a majority of three judges will remain to support the final verdict.  Basically, the Gemara considers that Rabbi requires five judges merely to assure that the requisite three will remain on the 'victorious' side of the ultimate verdict; when the Torah requires three, it effectively demands five in order to ensure that the verdict will reflect the majority view of at least three of the judges. 

Strikingly, this gemara seems to reject Rav Chayim's principle.  If the minority opinion is converted into the majority opinion, even an initial panel of three jurists will assure a final verdict supported by three judges; legally, as all their opinions are homogenized, every one of the three justices (from the original beit din of three) submits the same opinion!  If Rav Chayim's theory is correct, how can the gemara even suggest this option to account for Rebbi's requirement of five judges?

            Of course, this question is tempered by the fact that this idea to explain Rebbi's position is rejected; ultimately, Rebbi's requirement is derived from Biblical sources.  However, even when rejecting this proposed argument, the Gemara does not invoke Rav Chayim's principle to debunk this option.  The Gemara rejects the notion of commencing with five to assure a final verdict of three, but it never does so by asserting Rav Chayim's rule that every initial group of three will issue a verdict of three judges; instead, the Gemara raises a different objection, challenging the very notion of requiring a final quorum of three to support the verdict: when stipulating the amount of judges necessary for various litigations the Torah merely asserts an initial number; the verdict can be founded upon less than the originally mandated quorum.  For example, by requiring three judges for monetary matters the Torah demands only an assembly of three, but not a verdict based upon three judges; ultimately, a verdict based upon a majority of two versus one will suffice.  Seemingly, the rejection of the originally proposed idea also contradicts Rav Chayim's principle; instead of arguing that a committee of three will guarantee a verdict of three, the Gemara maintains that only an original panel of three is necessary, not a ruling of three. 

            In truth, there may be a manner of neutralizing this question against Rav Chayim's view.  Firstly, the entire discussion occurs within Rebbi's position of requiring five judges — the Rabbanan flatly reject this view!  Perhaps the Gemara is willing to consider a view in opposition to Rav Chayim's principle within Rebbi's position, but the Rabbanan – whose opinion is ultimately adopted - concur with Rav Chayim. 

            An additional discussion amongst the Tana'im may also yield a position which is at odds with Rav Chayim.  The Gemara cites a debate between Rabbi Yoshiya and Rabbi Yonatan regarding the source for three judges according to the Rabbanan.  Rabbi Yoshiya believes that since word "elohim" is iterated three times in Shemot 22:7-8, we may expound each citation, yielding a requirement of three judges.  Rabbi Yonatan disagrees, claiming that only two of the iterations can be expounded; the third judge is logically necessary to resolve possible disagreement and assure a majority view.  At this point, the Gemara lodges an astounding question; according to Rabbi Yoshiya's view, that three judges are inherently necessary, how can we follow a majority opinion of two?  The question itself is surprising because by writing (Ibid. 23:2) "Acharei rabbim le-hatot" — "Incline after the many," the Torah specifically allows for a majority opinion to determine the verdict! 

The Gemara's answer is even more intriguing, as it validates the verdict based upon a majority by comparing monetary matters to capital cases (dinei nefashot).  A person who wounds his father is executed, even though we do not possess incontrovertible proof that his presumed father is actually his biological one.  Most reputed fathers are the biological producers of their children, and based on this majority (rov), a person can be executed.  Certainly, the Gemara reasons, a majority of opinions will allow money to be transferred!  According to Rav Chayim, the dynamic of a majority of judges has little to do with a statistical majority assisting in the identification of a biological father.  This discussion within Rabbi Yoshiya's view also suggests an approach which is at variance with Rav Chayim's principle.

            In truth, both the question emerging from the Gemara's analysis of Rebbi's view, as well as the challenge stemming from the discussion of Rabbi Yoshiya's opinion, may be neutralized as follows: we may argue that these two discussions in no way address Rav Chayim's issue.  Rav Chayim speaks of the dynamic AFTER beit din arrives at its pesak; at this point, the minority opinion is transformed to reflect the majority view.  However, these gemarot question the number of judges necessary to GENERATE a pesak.  Conceivably, Rebbi may require an initial panel of five judges to ensure a verdict of three to generate a pesak, yet concede to Rav Chayim's view that once a pesak is rendered, all opinions are converted to the majority (yielding five judges who issue a unanimous verdict).  Similarly, without the precedent of a standard rov (as evidenced in dinei nefashot), Rabbi Yoshiya might have required a full three judges to GENERATE a pesak; only the precedent of dinei nefashot allows the application of the majority opinion.  Having endorsed the idea of a verdict based upon a majority of judges, he may then concur that AFTER the pesak, all opinions are converted to accord with the majority view.