Rules for the Intoxicated, Entering the Mikdash, Ruling on Halachah

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by R. Gidon Rothstein

Parshat Shemini: Not Entering the Mikdash or Ruling on Torah Issues After Drinking Wine

Until I was almost finished writing my first draft of this, I did not connect it to our recent celebration of Purim. It is a salutary reminder of being careful to place our drinking in appropriate contexts, to be aware of how and when we and others should limit our drinking of alcohol.

Temple Service and Rulings on Torah Law

Verses 9-11 of chapter ten of VaYikra set up a prohibition with seemingly unrelated sides, according to Rambam in Prohibition 73. The verse clearly tells Aharon and his sons—all kohanim fit for service in the Mishkan–they may not have drunk wine or shechar, intoxicant, before performing Temple service, as well as before ruling on matters of ritual purity (the clearer province of the kohen) or Torah law in general.

Minhat Hinuch points out Mishneh Le-Melech thought the death-penalty prohibition arose only if the kohen performed an entire service (the whole offering of the blood on the altar, let’s say).  He adds many rishonim disputed Rambam’s inclusion of other inebriating liquids, thought the prohibition was limited to wine [a reminder halachah distinguished wine from other drinks, reason to think the Gemara meant it when it referred to the drinking at the Purim seudah as live-sumei, to drink wine].

All Torah Scholars and Deciding Issues of Law

Sefer Ha-Hinuch, Mitzvah 172, makes the point explicit, the Torah’s reference to hora’ah means giving an halachic decision, and the prohibition applies to any Jew qualified to rule on issues of Torah law. A Torah scholar who regularly issues rulings on halachic matters would not be allowed even to learn out loud (in front of others, I think Minhat Hinuch means), because his learning always includes rulings.

Aruch HaShulhan He-Atid says the scholar could rule on matters explicit or completely obvious, a standard that is itself not obvious. Rema referred to anything explicit in poskim, books of rulings, where some thought the standard was explicit in pesukim, verses, because the usual way the Gemara says something in Judaism is obvious is that it was an issue even Sadducees would accept, because it is in the Torah text.

Aruch HaShulhan traces Rema’s idea back to Maharik, who indeed said poskim, the relevant concern being only that our Torah scholar not be applying his own intellect to the situation, since he is under the influence. In Hoshen MishpatAruch HaShulhan had ruled a judge in such a state can even be part of a court judging a financial matter, because the other judges can remind him if he gets something wrong.

Capital Crime and Plain Prohibition

Verse nine says not to do this so as not to die, where verses ten and eleven, about ruling on matters of ritual purity and/or teaching Torah, speak of a plain prohibition. Rambam gathers a few principles from the various Talmudic discussions: 1) a kohen who has imbibed may not enter beyond the altar (Minhat Hinuch thinks the area of the Azarah, the courtyard of the Temple, alongside the altar itself would be included; Aruch HaShulhan He-Atid 33;2 points out this extension is a derivation in Torat Kohanim, not the plain sense of the text), and would incur lashes if he did.

2) Were he to perform a Temple service after having drunk wine, he would deserve death; after imbibing any other inebriant, he would violate a plain prohibition.

3) Ruling on a matter of Torah law, kohen or not, wine or other, violates a plain lav. [I write intoxicant rather than alcoholic beverage because Sefer Ha-Hinuch includes drinking milk, not alcoholic, and eating date honey (an idea in the Tosefta on our topic), substances they felt also affected one’s reasoning.

Rambam gives us the derivation Sifra offered for these ideas, the verses’ singling out wine while also mentioning shechar, telling Aharon and his sons not to do this lest they die, where the later verses do not mention death.

The Kinds of Kohanim Included

Minhat Hinuch pulls at a hole in the mitzvah’s definition, its casual reference to a kohen fit for service. Some kohanim are permanently unfit, such as those with a mum, a physical factor the Torah defined as different enough from ordinary to exclude them from Temple service, or hallalim, born of a relationship the kohen was not allowed to enter. Other kohanim are currently unfit, would render a service invalid, such as one with overgrown hair or wearing torn clothing. Yet a third group may not perform but do not invalidate service, such as those sitting, or standing on anything creating a break between their feet and the floor.

Minhat Hinuch wonders, without conclusion, whether the latter two categories would be implicated by our prohibition. They are already not supposed to serve (and the second group’s service is invalid), so perhaps this prohibition of entry and of service never gets off the ground.

The same question applies to kohanim unfit by rabbinic law (he does not give examples; I found a couple of sources that refer to a kohen who does not have a well-established lineage), who might therefore be exempt from this prohibition. The prohibition is about service, and he cannot serve, albeit by virtue of a rabbinic law; perhaps that suffices to exempt him from the prohibition.

The Wine In Question

Sefer Ha-Hinuch defines the wine: at least forty days’ old (to ferment sufficiently), the kohen must have drunk a revi’it, an egg and a half’s worth, without dilution, in one swallow. If he drank more, he would still incur a death penalty and invalidate service even if it was diluted in the ordinary way wine was in Talmudic times, or he drank more slowly.

As Minhat Hinuch points out, though, no more slowly than what counts as one act for other Torah laws; for Rambam, that is the time it takes to drink a revi’it, where Ra’avad thought the standard for food applied here as well, the time it takes to eat a peras, three or four eggs’ worth. (Ra’avad disagrees about this last point, Minhat Hinuch tells us, thinks even more than a revi’it cannot be diluted.)

For the bare reviit, a bit of sleep, or walking a mil (somewhere between three-fifths and three-quarters of a mile) dull the effects of the wine enough to avoid violation. One who drank more has no such strategy to guarantee sobriety, the kohen (or Torah scholar) must wait until he is confident the wine has left his system completely. Aruch HaShulhan He-Atid notes a responsum of Rashba, who said anyone who drank a great deal, such as Purim, a holiday, a wedding or berit, or similar, could not decide a matter of halachch until the next day.

Unless, Rashba said, it was an issue he had already thought through before he began drinking, since then he is not being affected by the drink in his ruling.

How Much Wine

Minhat Hinuch complicates the wine issue. Kessef Mishneh had noted the Gemara speaks of any amount for the full prohibition, although lashes only come after a revi’it (in contrast to hatzi shi’ur, where the Torah had a set amount to violate the  prohibition, and the Jew ate or drank less; here, the prohibition is defined as any amount, just punishment comes at a higher amount).

The distinction matters for oaths, for example. Oaths do not take effect on matters where the Jew is already subject to explicit Torah law. An oath to not drink less than a revi’it of wine and serve in the Temple would thus not take effect (where an oath not to eat a half-olive’s worth of hametz on Pesah would, because hatzi shi’ur is not explicit in the Torah).

In addition, the prohibition encompasses all intoxicants, so if wine younger than forty days (which does not yet count as wine) or, similarly, very strong wine in a less-than-revi’it amount,  has an inebriating effect, the person who drank it would be implicated by this prohibition, too, although not at a death penalty level.

[These rules seem to require a good grasp of inebriation. With other foods or drinks, the person would have to be confident it had no effect before he would be allowed to serve or rule on Torah matters. Aruch HaShulhan He-Atid said Rashba said much the same for other inebriants, since there is no defined prohibited amount. It’s whatever impacts the person’s sobriety.]

Rambam presents a mitzvah that tantalizes us with its unexplained linkage between Temple service, Temple presence, and ruling on matters of Torah law. (Considering the verse puts the kohanim’s rulings on matters of ritual purity first, we can guess the Torah saw all Torah rulings as related, but it’s still a novel idea.)

Ramban Narrows the Rule and Adds a Rule

Ramban raises many objections to Rambam’s presentation, the upshot of which is that he thinks this prohibition, as well as those against entering the Mikdash without a proper haircut or with torn clothing, all address only a kohen who performs some service in the Mikdash—in his understanding, “entry” means “conducting a service.” (He quotes Shemot 28;43, about entry without pants, and 30;20, about not washing one’s hands and legs, where the verse speaks of entry or approaching the altar to serve as if they are one idea.)

Sifra Shemini explicitly excludes kohanim who have had wine when it discusses the prohibition against leaving a service in the middle, becuase their service has been declared ineligible (their presence does not seem to bother Sifra, Ramban was noting). Ramban instead assumes all the sources Rambam knew that espouse a rule against entry were rabbinic law [which would mean, of course, a later Sanhedrin might rule differently.]

On ruling on matters of Torah law, Ramban objects to Rambam’s subsuming it with the prohibition of entry (or service). In his reading, the verses establish a separate prohibition, but with positive language, usually treated therefore as an obligation rather than a prohibition. Of course, this is a disagreement about categorization rather than substance, with halachic import but with agreement the act is a Biblical problem.

Ordinary Jews’ Different Attitude to the Mikdash

Sefer Ha-Hinuch follows Ramban in including here mention of the prohibitions against entering the Mikdash with overgrown hair and torn clothing, but applies them to ordinary Jews (meaning they are not a matter of performing a service).

In addition—it’s not about our mitzvah, but I don’t trust myself to remember it—Sefer Ha-Hinuch thinks the definition of overgrown is different for kohanim, who must have had a haircut within the last thirty days, where regular Jews only must have not wildly overgrown hair. Because kohanim are more sanctified, they may not have any excess hair, where other Jews have a more amorphous definition of disrespect.

A Possible Exception

Minhat Hinuch suggests any violation of this prohibition, even in its lesser forms, would also show a lack of mora Mikdash, the obligatory awe of the Temple. The idea matters for how a violator would repent, but has a more significant ramification, in cases where there are no other available kohanim.

There is an halachic principle that aseh doheh lo ta’aseh, the need to fulfill an obligation can push aside (and allow the violation of) a plain prohibition. Normally, that is not true in the Temple; were our kohen the only candidate to offer the daily communal sacrifice, however, it would be an aseh de-rabim, a positive fulfillment for the whole community, and there, Minhat Hinuch suspects we do say aseh doheh.  Unless this also violates mora Mikdash, because then it would be an aseh trying to push aside another aseh plus a lo ta’aseh, and that does not work.

Wine and drink have their place, yet also negate our involvement in activities requiring our full focus, attention, and intellect, such as serving in the Temple or ruling on matters of Torah law.

About Gidon Rothstein

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