Talmudic Magnificence

Uncertainties hold a special place in the corpus of Jewish legal literature, beginning with the Mishnah. Ask any competent Talmudist a straightforward legal question and you will soon find yourself besieged by more hypothetical uncertainties than you ever could have imagined.

As the years and centuries went on, uncertainties became “the main medium in which the conceptual achievements of Talmudic learning were articulated in all their magnificence.”1

Rabbinic theorists use several different conceptual tools to adjudicate uncertainties. The one that concerns us here is the rule of “nullification by majority” (bittul berov).

Game for some Talmudic magnificence? Want to learn a thing or two about matzah and majorities?

Stick with me.

The Case of the Mixed-Up Matzahs

First, a straightforward law:

The mitzvah to eat matzah on the first night of Passover can only be fulfilled with matzah that was intentionally baked for the purpose of being used for this mitzvah. The Talmudic term for this intentionality is lishmah.2

Now for the hypothetical uncertainty:

There are three matzahs before us. Two of them are suitable for the mitzvah as they were baked lishmah. One of them wasn’t baked lishmah and is therefore unsuitable. But we don’t know which is which. The suitability of each one of them for fulfilling the mitzvah is now in doubt.

Can we use the rule of “nullification by majority” to treat them all as if they were baked lishmah?

Incline After the Majority?

Let’s back up for a minute and talk about the classical example of “nullification by majority.”

Generally speaking, when an uncertainty involves a biblical prohibition, we are obligated to err on the side of stringency. Say, for example, one piece of non-kosher meat becomes mixed up with one piece of kosher meat. Since we are uncertain which is which, we must treat both as if they are not kosher.

But what if one piece of non-kosher meat became mixed up with two pieces of kosher meat?

In this case, we have a majority of kosher meat vs a minority of non-kosher meat, and the Biblical principle of “incline after the majority”3 is applied. Thus, the non-kosher meat is subject to “nullification by majority,” and all three pieces can now be treated as kosher!4

(Note: This principle is subject to many different possible scenarios that can change its adjudication, so if you ever mix up a piece of non-kosher meat with kosher meat don’t rely on what you’ve read here. Consult a rabbi! The same applies to anything else discussed below. What follows is an exercise in Torah study, not a practical how-to guide.)

In the Mishnah and Talmud we find the instruction “incline after the majority” applied to uncertainties about prohibited and permitted foods or pure and impure substances. But it was only in the 19th century that rabbis started to wonder if the same principle should be applied to uncertainties as to whether a given object is suitable to be used for a mitzvah.

In the sections that follow, we will look at four different rabbinic responses to this question. All of these responses involved detailed analysis of various intersecting source texts from across the Talmud. The fundamental mechanics of “nullification by majority” are scrutinized, and multiple disputes among earlier authorities are theorized. For the sake of clarity, we will leave out all the proofs and counterproofs with their supporting citations, counter-citations, arguments, resolutions, reinterpretations, sub-debates and sub-distinctions.

Instead we will cut to the chase. There are two questions I want to answer:

  1. How do each of these four rabbinic responders define the principle of “nullification by majority”?
  2. How do these different definitions change the way our case of the mixed up matzahs should be adjudicated?

Approach A: Nullification is Universal and Uncomplicated

Of all the solutions to these questions, the least complicated is that offered by Rabbi Naftali Zvi Yehuda Berlin of Volozhin (“the Netziv,” 1816-1893). In a responsa dating from 1882, published in Meshiv Davar (Warsaw, 1894), he wrote:

It is obvious that nullification with regard to positive mitzvahs is analogous to nullification with regard to prohibitions arising from negative mitzvahs, as is the case for all other general principles of the Torah … This is all the more the case for ‘nullification by majority’ whose basis derives from the Biblical instruction ‘incline after the majority’ … After all, this verse was not written in regard to negative mitzvahs at all. Its primary concern is with judges [who are instructed to rule in accordance with the majority among them]. Accordingly, it also applies to positive mitzvahs, such as the positive mitzvah to eat matzah, such that if [an unsuitable matzah] became mixed up with a majority of suitable matzahs, we treat each matzah as if it belongs to the majority that were baked lishmah, and you can satisfy your obligation by eating it.5

To summarize: “Nullification by majority” is a universal principle that applies to uncertainties in all areas of Torah law without distinction. Why would anyone think otherwise?

Approach B: The Limits of Nullification

Although the Netziv’s approach is the least complicated, the first to address the question was his younger contemporary, Rabbi Shneur Zalman Fradkin of Polotsk and Lublin (1830-1902). In the latter’s Torat Chessed (Warsaw 1883), he noted that contrary to the assumption of the Netziv, “nullification by majority” isn’t necessarily to be regarded as a universal principle.6 After all, he noted, the earlier Talmudic commentator, Rabbi Nissim of Gerona (“the Ran,” 1290-1376) had stated: “It is the way of prohibited substances to be annulled, but it is not the way of permitted substances to be annulled.”7

Why this distinction?

The Torat Chessed’s explanation has two main steps:

  • First, he argues that permissibility is simply the status quo, whereas a prohibition is a superimposed status.
  • Second, he argues that “nullification by majority” is limited to nullification of a superimposed status alone. By contrast, a superimposed status possessed by the majority cannot be applied to the minority.

Let’s elaborate this second step, which is really the crux of his theory:

If the majority doesn’t have the superimposed status of being prohibited, it nullifies the superimposed prohibition possessed by the minority. Thus, two pieces of kosher meat nullify the prohibition possessed by one piece of non-kosher meat.

But this equation doesn’t work the other way round: In a case where one piece of kosher meat becomes mixed up with two pieces of non-kosher meat, the kosher meat cannot acquire the superimposed status of being non-kosher. Technically, you can’t actually eat it because you don’t know which of the mixed up pieces is the kosher one, and we are obligated to err on the side of stringency. But fundamentally, it actually remains kosher.

This, according to the Torat Chessed, is what the Ran meant when he wrote: “It is the way of prohibited substances to be annulled, but it is not the way of permitted substances to be annulled.”

How does this theory of the limits of nullification apply to our question about matzah?

The status of lishmah is not the status quo of matzah, rather a superimposed status that is attained if the matzah was baked with the correct intentionality. As we’ve explained, the majority can only nullify superimpositions previously possessed by the minority, but cannot apply its own superimpositions (in this case, the status of lishmah) to the minority. It follows that if one unsuitable matzah was mixed up with two suitable matzahs we cannot treat all of them as if they are suitable.

Approach C: Nullification as Inclination

In 1913, our question about matzah was again discussed in a responsa published by Rabbi Shlomo Yosef Zevin (1886-1978), who at the time occupied the rabbinate of Kazimirov, in the district of Minsk. Later, he would acquire fame as the founding editor of the Encyclopedia Talmudit, but even at this early stage his contributions to popular newspapers and rabbinic journals won him renown.8

After first discussing the approaches of the Netziv and the Torat Chessed, and raising some objections, Rabbi Zevin offered an elegant theory of his own.

While the Torat Chessed had emphasized the formulation “nullification by majority,” Rabbi Zevin focused on the meaning of the earlier Biblical instruction to “incline after the majority.” This, he argued, implies that we indeed incline after the status of the majority and don’t merely nullify the status of the minority. He went on to explain this inclination as a way to adjudicate a live conflict, whether a conflict of opinion between judges, a conflict between kosher and non-kosher meat, or a conflict between suitable and non-suitable matzah.

In all these cases, he proposed, the principle “incline after the majority” means that the minority does not have the power to undermine the majority. This is not about changing the status of the minority, but about ensuring the majority’s prior status remains uncompromised. As such, we will ignore the opinion of the judges who are in the minority, and rule in accordance with the majority; we will ignore the minority of non-kosher meat, and treat all three pieces as if they are kosher; and we will ignore the minority of non-suitable matzah, and treat all three matzahs as if they are suitable.

At first glance, this might seem to be a reiteration of the Netziv’s uncomplicated approach. In truth, however, Rabbi Zevin’s subtle theorization also imposes some limits on the impact of the majority, which the Netziv made no note of:

According to Rabbi Zevin, we only incline after the majority to the degree that ensures its prior status remains uncompromised by the presence of the minority, but no more so. Any quality or deficit possessed by the minority that doesn’t come into direct conflict with the prior status of the majority will remain intact and is not subject to nullification.

How does this caveat apply in the case of our question about matzah?

Well, in addition to the requirement that the matzah be baked lishmah, there is also a requirement to eat a minimum amount of matzah, namely a kezayit. Now let’s suppose that each of the three matzahs that have been mixed together constitute precisely a third of a kezayit. This would mean that the two suitable matzahs only possess two-thirds of a kezayit between them. On this score, no uncertainty or conflict is introduced when the non-suitable matzah becomes mixed up with them. Now, just as beforehand, we know with certainty that between all three matzahs there is only two thirds of a kezayit of suitable matzah.

This leaves us with a fascinating distinction. On the one hand, we must treat all the matzahs as if they belong to the majority that were baked lishmah. If you eat any two of them, we will consider it as if you have eaten two thirds of a kezayit of a suitable matzah. On the other hand, if you eat the third matzah you will still be required to eat another third of a kezayit of suitable matzah. We only incline after the majority of suitable matzah to the degree that ensures its prior status (lishmah) remains uncompromised by the presence of the minority, but not to the further degree of enhancing the status of the majority. Just as there was only two thirds of the requisite amount of suitable matzah beforehand, so too now.

Approach D: Nullification as Transformation

Among Rabbi Zevin’s readers was Rabbi Shimon Yehuda Shkop (1860-1939), who headed the storied yeshivahs of Telshe and Grodno. In his famous work of Talmudic logic and exegesis, Sharei Yosher (Warsaw, 1928), he devoted two complete chapters to discussing the question before us.9

The Sharei Yosher returns us to the Torat Chessed’s quote from the Ran: “It is the way of prohibited substances to be annulled, but it is not the way of permitted substances to be annulled.” As discussed above, the Torat Chessed had explained this as deriving from an immutable limitation on the power of nullification in general. The Sharei Yosher, by contrast, explains it as a localized limitation that only pertains to the nullification of permitted substances. As we will see, this allows him to completely overturn the limitation proposed by the Torat Chessed.

An important distinction between permitted substances and prohibited substances, for a practicing Jew, is that permitted substances are an asset whereas prohibited substances are a liability. This means that kosher meat, for example, is qualitatively more valuable than non-kosher meat, even if it is in a numerical minority. This qualitative importance, argues the Sharei Yosher, is the only thing that prevents a minority of kosher meat from being completely annulled by a majority of non-kosher meat. Technically, the uncertainty requires us to err on the side of stringency and not eat any of the meat. But, fundamentally, the kosher meat is not transformed into non-kosher meat because its qualitative value dilutes the transformative power of the numerical majority.

Crucially, according to the Sharei Yosher, this dilution of the power of nullification only occurs in cases where the permitted substance is in the minority. In the words of the Ran, “It is not the way of permitted substances to be annulled.” In the opposite scenario, where a prohibited substance is subject to “nullification by majority,” the minority takes on all the characteristics of the permitted majority. In the words of the Ran, “It is the way of prohibited substances to be annulled.” Hence, if non-kosher meat is in the minority it does indeed become entirely transformed into kosher meat. This is because non-kosher meat doesn’t have the sort of qualitative value that might dilute the numeric weight of the majority.

Moreover, the Sharei Yosher adds, even the Ran’s generalization that “it is not the way of permitted substances to be annulled” can ultimately be overcome by subjective volition. After all, this limitation is by no means inherent to the principle “incline after the majority.” On the contrary, if you want the kosher meat to entirely lose its status and be transformed into non-kosher meat, so be it!

Not only does this theory do away with the limitations imposed by the Torat Chessed’s approach, it does away with the more subtle caveat that emerges from Rabbi Zevin’s approach as well. For the Sharei Yosher, “incline after the majority” isn’t a pragmatic adjudication that aims only to overcome conflict and uncertainty in a manner that will leave the prior status of the majority uncompromised. Rather, it is a totalizing transformation that applies all the qualities of the majority to the minority.

With that in mind, let’s return to our earlier discussion about matzah, lishmah, and kezayit. We have three matzahs, all of which are precisely a third of a kezayit. Two were baked lishmah, one wasn’t, and we don’t know which is which. Since the qualities of the majority are to be completely applied to the minority, without any caveat, we can treat the three matzahs as if there is a complete kezayit of suitable matzah between them.

Conclusion: Matzah, Majorities, and Magnificence

The four approaches outlined above may be summarized as follows:

  • For the Netziv “incline after the majority” is a universal and uncomplicated principle. Accordingly, we can treat each matzah as if it belongs to the majority.
  • For the Torat Chessed, “incline after the majority” can nullify the status of the minority but cannot endow it with the status of the majority. Accordingly, we cannot treat the matzahs as if they were baked lishmah.
  • For Rabbi Zevin, “incline after the majority” is a pragmatic inclination that functions only to the degree it protects the majority’s prior status from compromise. Accordingly, we can treat each matzah as if it was baked lishmah, but the minority of unsuitable matzah cannot supplement the original measurement of suitable matzah to complete a kezayit.
  • For the Sharei Yosher, “incline after the majority” transforms the minority, completely endowing it with the status of the majority. Accordingly, we can treat each matzah as if it was baked lishmah and the addition of the minority even counts towards the completion of a kezayit.

Together, these competing theories wonderfully illustrate the subtle analysis, sharp debate, and conceptual creativity that makes in-depth Torah study such a magnificent joy.

As already noted, none of the above is intended as practical halachic guidance. If any real-life uncertainties arise, make sure to consult a rabbi.