acharei rabim l'hatot

In this week's parasha (Mishpatim) we find a verse (Shmot 23:2) with a familiar phrase:

לֹא-תִהְיֶה אַחֲרֵי-רַבִּים, לְרָעֹת; וְלֹא-תַעֲנֶה עַל-רִב, לִנְטֹת אַחֲרֵי רַבִּים--לְהַטֹּת.

The phrase acharei rabim l'hatot אַחֲרֵי רַבִּים--לְהַטֹּת is often translated as "follow the majority", and in addition to being the basis for a majority rule in a court, it also is used as an early basis for democratic rule.

This understanding of the phrase is based on Talmudic sources such as Chullin 11a and Bava Metzia 49b. Based on this, Kaplan's Living Torah translates the verse as follows:

"Do not follow the majority to do evil. Do not speak up in a trial to pervert justice. A case must be decided on the basis of the majority."

However, in his footnote, he provides two alternate translations:

"Do not speak up in a trial, leaning toward the majority to pervert justice" (Mekhilta, Rashbam, Abarbanel)

"Do not speak up in a trial to turn aside, following a majority to change someone else's decision" (Chizzkuni)

Other translations also follow this approach of acharei rabim l'hatot being a prohibition instead of an instruction:

"You shall neither side with the mighty to do wrong - you shall not not give perverse testimony in a dispute so as to pervert it in favor of the mighty - (verse 3) nor shall you show deference to a poor man in his dispute" (Sarna, JPS)

"You are not to go after many (people) to do evil. And you are not to testify in a quarrel so as to turn aside toward many - (and thus) turn away." (Fox)

"You shall not follow the many for evil, and you shall not bear witness in a dispute to go askew, to skew it in support of the many." (Alter)

"Do not be a follower of the majority for evil; and do not respond to a grievance by yielding to the majority to pervert [the law]" (Artscroll Stone Chumash)

Even Artscroll here is willing to reject the halachic obligation to follow the majority in order to present the plain meaning of the text. But they have a good precedent. Rashi does the same:

You shall not follow the majority for evil There are [halachic] interpretations for this verse given by the Sages of Israel, but the language of the verse does not fit its context according to them. From here they [the Sages] expounded that we may not decide unfavorably [for the defendant] by a majority created by one judge. They interpreted the end of the verse: אַחִרֵי רַבִּים לְהַטֹת, “after the majority to decide,” [to mean] that if those [judges] voting [that the defendant is] guilty outnumber those voting [that the defendant is] innocent by two, the verdict is to be decided unfavorably according to their [the majority’s] opinion.

...

I, however, say, [differing from the Rabbis and Onkelos] that it [the verse] should be according to its context. This is its interpretation:

You shall not follow the majority for evil If you see wicked people perverting justice, do not say, “Since they are many, I will follow them.”

and you shall not respond concerning a lawsuit to follow, etc. And if the litigant asks you about that [corrupted] judgment, do not answer him concerning the lawsuit with an answer that follows those many to pervert the judgment from its true ruling But tell the judgment as it is, and let the neck iron hang on the neck of the many. [I.e., let the many bear the punishment for their perversion of justice.]

Why is Rashi so compelled to reject the halachic approach? It would seem to be due to the teamim (the Biblical cantillation notes and accents). This site quotes Ibn Ezra as saying "that any interpretation of a verse that doesn’t agree with the Teamim should not be listened to."

Michael Pearlman, a great scholar of taamei hamikra, published a number of lessons explaining how understanding the teamim was very important to a proper understanding of the text. In his lesson on our verse, he shows that the halachic approach divides the second half of the verse into two sections:

וְלֹא-תַעֲנֶה עַל-רִב לִנְטֹת
אַחֲרֵי רַבִּים--לְהַטֹּת

each containing a separate imperative. But the teamim show that achraei rabim l'hatot is parenthetical to the earlier part of the verse. I don't have the text with the teamim (or a scanner handy to show Pearlman's work) but here is my rendition of his diagram:



Pearlman then goes on to quote Mendelssohn's Biur as saying that Rashi and the Rashbam's approach is based on the teamim.

One aspect of this discussion I find interesting, but haven't found anyone who talks about it, is the meaning of rabim. I think it's significant that Sarna translates "mighty", Fox and Alter use "many", and Artscroll and Kaplan use "majority". It changes the understanding of the entire verse - and perhaps knowing what the proper (earliest?) meaning of the word would provide the most authentic translation.