[Avodah] sevara vs. psak

[David Riceman]

Me:

>A naive reading of the gemara indicates that it does mean the
>  majority of sevaros. See Sanhedrin 34a; the drasha doesn't indicate
>  any restriction to dinei nefashos, and see Ramabm H. Sanhedrin 10:5.

RMB:
<<I think you meant to say the sevara that received the majority
of dayanim. (As opposed to the pesaq that had the most supporting
sevaros.) To me (after loojing at the Shakh) it looked like a third
possibility...

The pesaq and sevara combined have to get a majority, not either alone.
E.g. Two people who believe X, but one is machmir and the other also
believes in mitigating factor Y and is meiqil would not count together
as two votes for X.>>

We need to back up a minute.  Hazal are talking about psukim (actually phrases or even words or letters).  The naive reading of the gemara is that any Rabbi can cite only one pasuk as his reason, and in order for the defendant to be found guilty there must be 13 different psukim cited by Rabbis in the court of size 23.

I am making the assumption (rampant in Hazal) that the Bible is parsimonious: no two psukim repeat the same concept.  I am also making the assumption that psukim, even though they are expressed as case law, use case law to represent legal concepts (sevaros).

So, no.  Given those assumptions (and ignoring the Shach momentarily) a court can condemn a murderer only by using 13 different sevaros.

<<I noted from the Shakh that the Rambam's shitah may be related to his
believe that pesaq is about finding emes. As he puts it, how can you
count both if one of them is certainly wrong?>>

I think that follows from my two assumptions above, though they in turn may be related to finding emes in Torah.  Where, by the way, does the Rambam assert this principle? I'm unfamiliar with it.

<<Last, we're assuming that a rule WRT giving a particlar person a
particular onesh would apply to voting to resolve a machloqes in setting
the law.>>

I alluded to this issue in my previous post.  The gemara and the Rambam cite this law in the context of capital punishment.  The gemara's source, however, is a drasha from a pasuk which has no obvious connection to capital crime, and the Shach's objection is in a siman about general hora'ah.  I don't know of anyone who discusses whether battei din (or the Sanhedrin in particular) used different methodology for case law and general legal disputes.  If you know of one I'd be pleased to see it.  In the case of edicts see H. Mamrim 2:6, which may produce fruitful generalizations.

<<People reach conclusions from a multiplicity of reasons. And sometimes it's
80% this and 20% that. For that matter, there are times when the dayan will
consciously think it's primarily one factor, but his emotions were really
swayed by the other. That is why I don't think the counting of who
believes which sevara is really doable.>>

But at least in the case of capital crimes Hazal deliberately required single sevaros.  It's true that contemporary tshuvos often don't read that way, but certainly the Rambam's and the Rashba's tshuvos generally do.  I suspect if it were expected it would suddenly become a lot easier to do.

<<Then you are saying you agree with the Shakh's reading?>>

I think precedent is with him and pshat is against him.

David Riceman