Ruling Under the Influence

Purim is approaching along with its Mitzva of “Chayav Inish liVsumei…Ad d’Lo Yada”. We will discuss a relatively uncommon Halacha, namely, the prohibition of giving a Halachic ruling while drunk or even mildly intoxicated. In the following paragraphs, we will examine several aspects of this Halacha including its applicability to doctors providing medical advice or treatment.

After the death of Nadav and Avihu^[1], Aharon and his remaining sons were taught the laws of “Shesuyei Yayin” – the prohibition to enter the Mishkan and to perform the Avoda after drinking wine. Though the primary prohibition deals with the Mishkan and the Avoda, the verse continues, “And to teach the Jewish people all the laws that God spoke to them through the hand of Moshe”. Chaza”l derive from this juxtaposition that one who is drunk may not give a Hora’a (a Halachic ruling).

This Halacha is discussed by the Gemara in several places (Eiruvin 64a, Kesubos 10b, Nazir 38a) and is codified by the Rambam (Bi’as HaMikdash 1:3):

Just as a Kohen may not enter the Mikdash while inebriated, so too any man, Kohen or Yisrael, may not Pasken while drunk… as it says, “and to teach the Jewish people”.

This is a Torah prohibition, as evident from the Rambam (Sefer HaMitzvos Lo Sa’aseh 73) and Sefer HaChinuch (152), but there are three caveats:

First, the prohibition is only to Pasken while drunk. A regular person may learn Torah and Halacha in that state. However, a Rabbi whose primary job is Hora’a, may not do so. Since even his learning is for the sake of Psak, he may not do so while inebriated.

Second, the Shulchan Aruch (C.M. 7:5) cites a Tosfos (Sanhedrin 42a) that distinguishes between rulingon Isur v’Heter (e.g., Shechita or Nida) and ruling onmonetary matters. According to Tosfos, the latter is permissible while drunk. Although this differentiation is not accepted as Halacha (see Pischei Teshuva ibid. 6), it is the “Shuras haDin” (letter of the law).

It goes without saying that issuing a Psak regarding life and death matters is more stringent; a Posekis forbidden from drinking even less than a Revi’is of wine when judging a capital case (Tosfos to Sanhedrin 42a, based on the Mishna ibid.).

Third, a Halacha that is explicitly written in the Torah does not fall under this prohibition. For example, if an intoxicated person is asked whether it is permitted to drink blood, he may answer that it is forbidden (Rambam ibid., Rama Y.D. 242:13). The Shach (ibid.20) explains that it is a Machlokes Rishonim if the Halacha must be explicit in the Torah (as the Rambam implies), or if it is enough that it is clear in the Poskim (as the Rema implies, based on the Maharik).

In light of these limitations, we can explain the fundamental Psul (disqualification)of Shesuyei Yayin in two ways:

1. Intoxication is similar to a defect in a sacrificial animal (making it a Ba’al Mum, which is a Psul haGuf – an inherent physical invalidation). The Psul of Shesuyei Yayin is mentioned in the context of entering the Beis HaMikdash. Therefore, a person in this state is akin to a Ba’al Mum which cannot be brought into the Beis HaMikdash; in other words, he cannot “approach” to render a Halachic ruling.
2. Alternatively, it is not considered a total invalidation since inebriation is temporary. A similar Halacha applies to a blemished animal; if its defect is only temporary, it is not considered a Ba’al Mum. Instead, the reason for the Psul is purely pragmatic as a drunk person is cognitively impaired and may rule incorrectly.

According to the second approach, we can easily explain why the prohibition is specifically to issue a Psak, while learning is permitted. A mistake made while learning is not as significant as it can be corrected. This is not the case when giving a Psak. In fact, even according to the first approach, it can be understood that a Moreh Hora’a has an honorable status and a “Mum” would disqualify him, whereas a person who is not learning l’Shem Hora’a does not have that status.

We can utilize these two approachesto explain the Machlokes as to the types of Hora’a that are forbidden. The reason why monetary cases are less strict than Isur v’Heter is that the money can be returned in the case of an erroneous ruling, whereas a mistake in Isur v’Heter may lead to an Aveira that cannot be undone. This explanation accords with the second approach that the problem of Shesuyei Yayin is a potential error in Hora’a. Those who do not distinguish between Dinei Mamon and Dinei Isur v’Heter seem to hold that Psak necessitates an honorable state, as per the first explanation, therefore Shesuyei Yayin are forbidden to rule in all cases.

These two approaches also explain the Machlokes betweenthe Rambam and the Maharik and Rema as to what constitutes a straightforward ruling that may even be rendered by Shesuyei Yayin. The Rambam would say that inebriationis an inherent Psul –akin to a blemish on an animal– therefore, a drunk person can only inform us of something explicit in the Torah as that is relating simple facts, not Hora’a. However, if it is not an explicit Pasuk in the Torah – even if the Poskim agree unanimously – it would constitute Hora’a. The Maharik and Rema would argue that the concern is only that a drunk person might make a mistake. Therefore, if the matter is explicit in the Poskim, he is permitted to give a Psak sincethere is no concern for error.

The Gemara in Eiruvin 64נ explains that the amount of wine necessary for this prohibition to take effect is a Revi’is. (The Terumas haDeshen(1:42) asserts that it is apparent from the Gemara that we can distinguish between the stronger wine used in the time of the Gemara and the wine we drink today which is weaker and less intoxicating. Therefore, the measure of wine required for the prohibition to take effect nowadays is greater. Many dispute the Terumas haDeshen’s assertion.)  

The Gemara in Beitza (4a) relates that after eating his Yom Tov meal, Rav refrained from teaching Halacha in public until the following day. The Rashba (Shu”t 1:247) deduces from this that it is forbidden to give a Psak after drinking a Revi’is of wine untilthe next day. However, he then rejects the proof:

We can say that this only applies on Yom Tov when one drinks liberally. This is why it says that he (Rav) did not appoint an Amora (a person to repeat his Shiur loudly to the audience) from Yom Tov until the next day. This implies [that he] only [acted in this way] from Yom Tov until the next day; on other days he would appoint [an Amora].

What is the Rashba’s intent in rejecting the proof? Does he mean that on a day when we drink liberally, such as Yom Tov, the prohibition of Hora’a applies even if a person only drinks a Revi’is, since we are concerned that he may come to drink more? Or does he mean that the prohibition only applies if a person drinks liberally, but not if he drinks only a Revi’is?

The Beis Yosef (C.M. 7) describes the Rashba’sposition in the following manner: “The Rashba states in a Teshuva that if a person drank a Revi’is he is prohibited from Hora’a that day.” The Beis Yosef then comments: “This does not seem correct; rather, when he no longer feels the influence of the wine it is permissible [to rule].”

The Beis Yosef’s citation of the Rashba seems surprising. The Rashba only (explicitly) prohibited Hora’a for an entire day if it is Yom Tov, not on other days. But leaving this aside, we see from the Beis Yosef that the prohibition applies even with a Revi’is (see the Prisha and Drisha ibid.). The Beis Yosef also disagrees with the Rashba’s view that the Isur extends for the entire day and holds that it matters only if the person still feels intoxicated.

This is also implied by the majority of the Poskim. Immediately after drinking a Revi’is, a person is prohibited from Hora’a even if he feels no influence from the wine because this is an explicit Isur Torah. Once some time has passed, it is only when he is certain that the effects of the alcohol have completely worn off that he is permitted to issue a Hora’a.

A fascinating aspect of this Halacha is that it applies not only to wine but also to other substances that may cloud a person’s judgment. The Gemara in Kesubos (10b) cites Rav who rules: “A person who ate dates may not issue a Hora’a” because dates may cause slight intoxication. Tosfos ask that the Gemara in Krisos (13b) records a Machlokes Tana’im as to whether a Kohen who performed the Avoda after ingesting an intoxicating food or substance other than wine transgresses a Lo Sa’asei. The Halacha follows the opinion that he does not. Given that the Halachos of Avodas haMikdash and Hora’a are the same in this regard, why does the Gemara prohibit issuing a Hora’a after eating dates? Tosfos answer that we must conclude that there is a distinction between these two Halachos. In Krisos, Tosfos after another answer: Perhaps there is no difference between these Halachos; performing the Avoda and issuing a Hora’a after drinking wine is Asur mid’Oraisa. Doing so after other foods, such as dates, is an Isur d’Rabbanan.

This Halacha is codified by the Rambam (ibid.):

Even if a person ate dates or drank milk and his mind became slightly confused – he may not issue a Hora’a.

The Rama similarly includes “wine or other intoxicating substances” (Y.D. 242:13).

However, one difference between the Rema’s rendition of this ruling and the Rambam’s is that the Rambam adds “and his mind became slightly confused”, which implies that there is a difference between wine and other substances. Wine is considered an intoxicating substance in all cases. Other substances depend on the individual – their influence varies from person to person. This is why the Rambam qualifies that these substances only pose a problem if they cloud a person’s judgment.

Some say that this is why milk is not considered Chamar Medina despite its supposed intoxicating properties. According to the Rambam, this Halacha is subjective; intoxicating substances other than wine depend on the individual. The same applies to time and place; since milk nowadays clearly does not cloud a person’s judgment, it is not considered Chamar Medina.

In this light, Rav Ovadia Yosef zt”l commented (Yabia Omer, O.C. 4:12): “It is understandable that we see great people drinking coffee with milk and then issuing Hora’a to all who ask”.

In conclusion, if a doctor drank a Revi’is of wine, may he advise a patient (based on his interpretation of lab results and other testing) to undergo a medical procedure? (We should point out that doctors often deal with life-and-death situations. If we compare medical advice to Hora’a, even a negligible amount of wine should preclude him from offering a recommendation, as in capital cases before Beis Din.)

Some infer from the famous comments of the Ramban (Toras Ha’adam, Sha’ar haMeichush, Inyan haSakana, 6) that a doctor does have the same status as a judge. The Ramban poses a contradiction. In Bava Kama (85b), the Gemara states that the Torah gave permission to a doctor to heal, yet the Tosefta (Bava Kama, Chapter 9) states that a skilled doctor who erroneously advises a sick person and causes his death must go to exile for his mistake. The Ramban resolves the contradiction:

A doctor is like a Dayan who is commanded to judge. If he makes a mistake, he is not punished, as the Gemara states (Sanhedrin 6b): “Lest the Dayan say, “Why do I need this difficulty?” the Torah responds with the words: “With you in judgment^[2] – the Dayan can only rule based on how he sees [the case]”. Nevertheless, if he errs and it becomes known to the Beis Din, he must pay from his own money even though if he judges with permission of the Beis Din, he is exempt. Here too, he is exempt from paying miDinei Adam, but he is required to pay and to go into exile miDinei Shamayim since it is known that he erred and caused damage or death by his own hands. Similarly, they said in the Tosefta (Bava Kama 6:6) regarding exemption miDinei Adam and liability miDinei Shamayim that a skilled doctor who treated [a patient] with permission of the Beis Din, is exempt miDinei Adam and his case is handed over to Shamayim. Nevertheless, without knowledge of the mistake, he is completely exempt, like the judge, both miDinei Adam and from punishment of Shamayim, provided that he took appropriate care in a life-and-death matter and did not cause harm due to negligence.

The Ramban implies that the status of a doctor is similar to that of a judge. He compares them not only semantically, but also regarding their level of responsibility to judge carefully and cautiously. It is certainly reasonable to assume that the Ramban would similarly equate them with regard to the prohibition of drinking wine before issuing a recommendation or Hora’a.

According to the view that inebriation is a Psul haGuf (rather than a concern for making an error), the Isur should not apply to a doctor. However, this is not the case. Even in the absence of an Isur d’Oraisa, there would still be an Isur d’Rabbanan, as evident from Tosfos who state that even if the Isur d’Oraisa only applies to wine, there is still an Isur d’Rabbanan to issue a Hora’a after ingesting other intoxicating substances. Apparently, even if the Isur d’Oraisa is due to a Psul haGuf, there is an Isur d’Rabbanan due to the concern of error and this would seemingly apply to a doctor as well.

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[1] Who entered the Mishkan in a state of inebriation according to one opinion – See Rashi, Vayikra 10:2.

[2] “v’Imachem biDvar haMishpat”, Divrei HaYamim 2, 19:6