What is the validity of Democratic elections according to the Torah?
The value of minority opinion, source of authority and arbitrary
(Part b)
Where does this idea of a person of importance come from? That there's need to ask an important person? Where did we find a governmental authority given to a special personality?
Student: Reish Galuta?
R. Cherki: Reish Galuta (Exiliarch) isn't the same, Reish Galuta is a king.
Student: There are 2 Reish Galuta.
R. Cherki: What does it mean?
Student: There's one like a kind, and one who deals more with the community.
R. Cherki: I didn't hear about that, but in any way the Exiliarch is a king, he's isn't the most important person. There can be a stupid Exiliarch, he has authority. When saying 'an important person' means moral authority. That if such a person is present, we should ask him about everything. Where did we find this? Essentially, from the prophets.
The prophet has ruling authority, as to say he can instruct the king, sometimes to do different than the laws of the kingdom. He can even instruct the Sanhedrin to do different from the laws of the Sanhedrin, the laws of Torah.
Also here, is remnant of his, what is called an 'important person'.
What the Rabbi says, is that even if we said this wasn't according to law of Torah, according to the opinion of the opposing Rabbi, but eventually the people of the city have authority to make regulations.
Student: What Rabbi Kook says apparently looks dangerous for Democracy, because if the majority wants to crush the minority, it has its right.
R. Cherki: I don't understand what You're saying, Rabbi Kook says the complete opposite.
Rabbi Kook argues, that although the majority can crush the minority, if it chooses not to crush the minority, it has its right.
Student: If the majority decides to crush the minority?
R. Cherki: If they chose so, then it's no longer a Liberal regime, rather Tyranny of the majority. This exists as well, there're many regimes in the world. There's even Dictatorship in which one person decides for everyone, there's also such a thing.
Is Dictatorship illegitimate according to Democracy?
Student: Yes it's not…
R. Cherki: Of course it's legitimate. Let's say there's a Democratic state, which signs agreements with a Dictatorship. Are these agreements invalid according to Democratic elections?
Student: Why would it be relevant?
R. Cherki: Why? Because whoever decided there in a Dictatorship was a single person, and against the majority opinion.
Student: Let's say there's a revolution.
R. Cherki: But there still hasn't been a revolution. I'll tell You even more, You know that in the US, there was a period during which in the North the law forbade slavery, and in the South the law allowed slavery. Right?
And there was an occasion of a slave who escaped to the Northern states, and the court extradited to the Southern states – because of ownership laws, there was a decision that it was impossible to hurt the right to property. Despite this right to property didn't exist according to the North, but the North didn't rule that that right didn't exist.
Therefore I'm saying, the existence of various types of regimes in the world, we know this this isn't new.
Student: A person living in Democracy might tire out the minority rights, the representative right of the minority, because the minority also must have representation.
R. Cherki: The decision to grant minority rights is a decision, if it wasn't taken, then it wasn't. Very simple, meaning the Rabbi doesn't say that proportional elections is a natural right, like those who wanted to claim so, it's not a natural right, it's a legal right, either granted or not.
Here You're asking a more fundamental question about the philosophy of law – what is the source of authority of the regimes? This, already is something complicated.
Maybe we get into this question later – the authority source of a regime, the regime tells me to do something, but was I asked? According to what authority? This a question discussed by Jean-Jacques Rousseau. He has a book 'The Social Contract", a wonderful book – all of it is fictional, but it is wonderful. What is his fundamental assumption? That there's sort of social contract, meaning that all the variety of the state subjects, agreed to give up on their willpower for the state.
Ok? The bearing question is when was that?
Student: Who is the state?
R. Cherki: Who is the state, which is itself sort of fiction, and when did it happen that they've decided that? It's a fiction, but this fiction works, all the legal system and the political system is built on this fiction. Maybe we should have a lesson on what Torah says on this, where it really comes from.
Alright – "and truly from this law, that craftsmen in their craft, their standing is that of all the city residents on matter of 'to carry their ends'"
they have a right to issue fines,
Meaning the Rabbi says this isn't absolute proof, but it supports the idea.
What is a party, there's a party that supports a specific agenda, specific social status, specific community and alike. If so it's similar to craftsmen, since craftsmen too have an interest uniting them.
Once someone told me that elections were forbidden by Hebrew law, because of the prohibition "you shall not divide" (Devarim 14:1), not to divide into groups, but we see there are groups, what do I do…
Meaning, how did all the dry clean shop owners reach a decision? They have some committee, how is this committee run? According to elections.
Here's an argument according to a hypothesis - I didn't choose You, then why are You telling me what to do? Let's say I get an order from the minister of transportation… should check whether the minister of transportation was from the party I've chosen or not. If he is from my party then I do what he says, if he isn't then no?
This is the argument of that mistaken, so the Rabbi says –
How were the 70 nobles chosen of the elders of Israel? They took 6 from each tribe, how many tribes?
Student: 12
R.Cherki: 12*6=?
Student: 72
R.Cherki: Aahhh…so there're 2 who went out, right?
They made notes there, and took out Eldad and Meidad. When they've chosen 6 from each tribe, there were 6 from the tribe of Naftali – can a person from the tribe of Reuven argue he can't be judged before a sage in the Sanhedrin, because he's from the tribe of Naftali?
Of course it doesn't work, right?
Why did You take 6 from each tribe, for example the tribe of Yehudah, was a tribe with a lot of population, unlike the tribe of Binyamin, which was a tribe of small population. So why take 6 from Yehudah and 6 from Binyamin? Take 7 from Yehudah and 5 from Binyamin!
And despite that no one bothered.
R. Cherki: Alright? That's what the Rabbi brings regarding this matter.
What is this commandment to sit and judge his tribe? That they establish Sanhedrin for their tribes. Let's say I live in the tribal lot of Dan, for example, and I go to the local Sanhedrin of the tribe of Dan. If I'm from Binyamin, I go to the Sanhedrin of Binyamin.
Student: This is the reason that they were charged with annihilation, because they didn't judge their tribe?
R. Cherki: Correct, why did the entire tribe of Binyamin was charged with annihilation? Because they didn't agree to judge their own tribe, the Sanhedrin of Binyamin had to judge the criminals at the hill, and they didn't.
Student: They agreed, didn't agree to turn them to all Israel.
R. Cherki: No they didn't agree to judge them.
Student: The nation of Israel demanded they were turned over at the beginning, to judge them?
R. Cherki: No, the tribes of Israel demanded Binyamin to judge them, and they protected them. Because they protected them, they demanded to turn them over. May his honor look in the book of Judges, and pleasant will be to him the words.
R.Cherki: Meaning, also in ZBL"E You accept the authority of all the judges – right?
R.Cherki: Now, I can't without expressing my grave disappointment, I'm convinced that among those listening in this classroom, there's a suspicion that they don't know what is ZBL "E, and they didn't care to ask. What do I teach Torah for? So that You just sit politely? Ha?
Everyone knows, alright. What is ZBL"E?
Student: Rabbi what is ZBL"E?
R. Cherki: Why didn't You ask earlier?
Student: You were in the middle of a sentence.
R. Cherki: Ahh…ZBL"E is an abbreviation - 'Zeh' this, 'Borer' chooses, 'Lo' for him, 'Ehad' one.
This is what's called the laws of arbitration, when people don't want to go to the formal court, they want sort of arbiter. How is the arbiter made? This one selects one, another selects one, each of both sides chose one judge. And both of them choose the third. Who are 'both of them', this is an argument, either both litigants choose the third judge in agreement, or the two judges select themselves a third judge, in agreement. This is called a Court of ZBL"E.
The litigants won't say they only listen to the judged they've chosen, rather listen to all the judges together. So this is another evidence.
Meanwhile the Rabbi says, all the discussion is that it's actually
the way of Torah that there should be proportional elections.
However there's still the claim of the rabbi who claims it's
against the Torah law of "lean towards the majority".
| Part b |
