The Prohibition of Issuing a Verdict in the Vicinity of a Rebbi
The gemara in Sanhedrin (5a) discusses the various parameters governing the issuance of halakhic pesak (rulings or verdicts). One such stipulation pertains to the proximity of a posek to his Rebbi. According to the gemara it is Biblically prohibited for a talmid to issue pesak in the vicinity of his Rebbi. This article will explore the scope and logic of this prohibition.
The simplest approach toward understanding this halakha would be to base it upon the honor and kavod due to a Rebbi. The gemara in Pesachim (108a) declares that a student must fear his Rebbi just as he fears Heaven and the Rambam (Talmud Torah chapter 5) draws the inevitable conclusions: One may not sit in his seat, call him by his first name etc. Clearly, stripping him of the service of issuing pesak would entail the greatest indignity.
The gemara in Eiruvin (63a) however, suggests a slightly different understanding of this halakha. The gemara refers to the conduct of preempting one's Rebbi as 'Afkirusa' - which might be loosely translated as 'irreverence' or 'brazen contempt'. Rashi (ibid.) interprets the term as 'Chutzpah'. This term might reflect a different understanding of this issur. A student who arrogates to himself the duty of issuing pesak without utilizing the resources of his Rebbi (which are easily at hand) is arrogant and overconfident. Aside from the insult to his Rebbi, he is presumptuous about his own ability to tackle the halakhic question at hand. Said slightly differently, he insults the Torah by assuming this heavy responsibility without exploiting the wisdom and experience of others. To him Halakha is a 'light' matter which can be decided upon effortlessly and quickly.
We have suggested two different perspectives on the prohibition of issuing a pesak in the presence of a Rebbi. One version locates the issur in the insult or affront caused to the Rebbi whose opinion was not sought. Alternatively, the issur might reflect an inner haughtiness or even a carelessness with regard to halakha.
Several different halakhic consequences might stem from this fundamental difference of perspective. In this respect the ruling of the Pitchei Teshuva (Yoreh De'ah 242:1) is revealing. He cites in the name of the Shevut Ya'akov that in contemporary times, a posek who does not sufficiently research his position using the necessary sefarim is guilty of this prohibition. Obviously the prohibition (thus extended) cannot possibly reflect an insult to the Rebbi's honor (there is no particular Rebbi being insulted!). Evidently, according to the Shvut Ya'akov, the issur entails a personal arrogance in reaching a pesak irresponsibly.
A second manifestation of this question might be the status of the prohibition if the Rebbi licenses the talmid to issue pesak. Tosafot in Sanhedrin (5b) assume that such authorization would eliminate any prohibition. The Chidushei ha-Ran agrees but cites the dissenting opinion of Rabeinu Dovid (a talmid of the Ramban) who maintains that the prohibition applies even if the Rebbi has waived his concern and been 'mochel' on his kavod. The Chidushei ha-Ran justifies his own position by claiming "since the entire prohibition is meant to honor the Rebbi, he is able to forgo this honor just as he is able to waive his honor in other areas (by allowing students not to stand etc.)." Might the Rabeinu Dovid have disputed this basic assumption and claimed that the concern of personal arrogance underlies this halakha and, hence, even if the Rebbi is disinterested in his honor, the prohibition still applies?!
A third manifestation might pertain to the type of question the pesak is answering. Tosafot in Eiruvin (62b) claim that the prohibition only applies if the pesak contains some new or novel element (a chidush). If, however, the pesak merely restates common knowledge it may even be offered in the presence of a Rebbi. Possibly, Tosafot in Eiruvin view this prohibition as stemming from the concern of personal arrogance. Answering a simple question (which we sometimes refer to as a "no brainer") does not indicate arrogance. If, however, halakha forces a talmid to exhibit discretion in deference to his Rebbi we might not differentiate between levels of difficulty.
The Torat Chayim (Rav Avraham Chayim Schorr - a 19th century Talmudic commentator) draws a similar distinction to Tosafot in Eiruvin. Commenting upon a Tosafot in Sanhedrin (21a) he claims that the prohibition might not be relevant at all in monetary cases but be applicable only with regard to pesak dealing with issurim. This distinction as well might reflect the essence of the halakha. If the halakha arises out of concern for the Rebbi such differences regarding the type of question posed might be difficult to defend. The Rebbi's insult would be commensurate in monetary cases. Yet, if the halakha evolves from the need to avoid 'intellectual arrogance' we might be more tolerant in monetary cases in which the danger of an issur being committed as a result of the pesak is almost non-existent and the money can always be returned. Such 'luxuries' might make us less sensitive to the issuance of pesak.
Another ramification might be the case of a 'talmid chaver'- an advanced student who has studied many years and is almost at the level of his Rebbi. Though the gemara appears to grant such a student the license to issue pesak, it only addresses a case where the talmid is not in the Rebbi's immediate vicinity (she-lo be-fanav). What would his rights be if he were in the Rebbi's immediate vicinity? Again we might return to our point of departure: If the halakha is based upon the honor of the Rebbi, the relative caliber of the student would not mitigate the possible insult- this student is still a talmid and his 'usurping' is still an affront. If, however, the halakha is based upon the arrogance of the 'hasty posek' who does not even bother to consult his Rebbi, we might view the advanced talmid in a different light. After all, he has acquired almost as much knowledge as his Rebbi and would seem to be just as equipped to handle the question.
Interestingly enough, the issue of how to understand the prohibition MIGHT be glimpsed in the sources cited by the gemara: The gemara in Eiruvin cites the death of Nadav and Avihu as the Biblical source for this prohibition. (They were the two sons of Aharon who were consumed by a Heavenly fire on the day of the inauguration of the Mishkan). The gemara attributes their untimely death to their having preempted Moshe in 'deciding' the exact sequence by which the fire on the altar was to be kindled. The gemara in Sanhedrin (5b) cites a different source - the desert encampment and the manner in which halakhic queries were processed: The Torah (Shemot 33:7) writes that whoever had a question would pose it to Moshe (even if this procedure entailed considerable traveling across the length of the encampment). This setup, according to the gemara, reflects the Biblical prohibition. In a sense the two different sources present vastly different scenarios. In the description of the machaneh we witness QUESTIONS arising amidst the population and their being deferred to Moshe. His students, though more proximate to the 'source' deferred to Moshe. Their handling the question on their own would have constituted an affront to Moshe. The case of Nadav and Avihu is different in as much as NO question arose or was actually posed. They merely took their own initiative based upon their own judgment without consulting with Moshe. They did not 'snatch' a pesak by intercepting a question. We might wonder whether their initiative was an affront to Moshe, or (since no question was ever posed) merely a sign of arrogance and recklessness.
In conclusion we might suggest that this issur is really two dimensional; sometimes it entails an insult and other times it is prohibited because it suggests intellectual arrogance. The gemara in Eiruvin cites the position of Rava that "in close vicinity to the Rebbi this prohibition carries a punishment of death, while if performed at a distance (according to most Rishonim within a distinct radius, yet not in the same house or town) the conduct is still prohibited but no death penalty applies". How are we to explain the split-leveled issur; though it applies even at a distance the penalty of death applies only within the immediate vicinity? Possibly, we might cross-section the issur as follows: Within a Rebbi's immediate vicinity (his house or town) usurping his pesak would insult his honor. This facet of the issur, is not only forbidden, but carries a death penalty. Outside of that immediate vicinity (but possibly within a reasonable radius) no insult occurs and no death penalty applies. Yet, a talmid who issues pesak arrogates to himself a function which is more weighty than his hasty response indicates. He displays the arrogance which is incompatible with being a true talmid chokhom.
1. The essence of a halakha radiates through its parameters and can also be glimpsed by inspecting the sources of the halakha.
2. Often a halakha is two-dimensional: it might follow a certain model in some cases while being built upon a different model in other instances.
The Rambam (Hilkhot Talmid Torah 5:1) develops a separate component of this issur. Any talmid who establishes an independent 'house of study' or beit din in the vicinity of his Rebbi is considered 'quarreling with and attacking' his Rebbi. This behavior is tantamount to rebelling against the Shekhina (as Korach and his constituents did). Learning Torah demands that we appreciate our study as part of the unfurling Masorah. It cannot be approached in a vacuum as an independent course of study. The value we place in our Rabei'im stems from our recognition of the vitality of our Masorah within our learning, and we honor a Rebbi as the transmitter of that Masorah. One who subverts his Rebbi is indeed attacking the Shekhina, for he has lost sight of the importance of Masorah and no longer can trace himself to Sinai.