Many sources refer to the Divine habit of taking counsel. Before coming to destroy Sedom, the Midrash (Tanchuma, Vayeira 7) writes that Hashem revealed the plan to Avraham in order to take his counsel:
“It is as a king who has an orchard, which he gave to his friend as a gift. After some time the king needed to cut down some trees for wood. He said: “Although it was mine and I gave it to my beloved, still I will not cut down the tree until I take his counsel. So it is with Hashem […] when He wished to destroy these five towns, He said: I will not destroy them unless it is with the agreement of Avraham […] Therefore He did not destroy them until He took the counsel of Avraham, as it is written: “Hashem said: Do I hide from Avraham [that which I do]? (Bereishis 18:17)”
Elsewhere, we find Hashem taking the counsel of others as a demonstration of the attribute of humility. The Gemara even writes (citing Rabbi Yochanan) that Hashem does not do anything until he consults with the Heavenly Host (Sanhedrin 38b). Even the creation of man opened with the Torah words “We shall create man,” indicating that “it is derech eretz for the great to consult and take permission from the slight” (Rashi, Bereishis 1:26).
There are thus times when taking counsel is an expression of humility, and a positive character trait. However, there are also times when consultation can be a full halachic obligation. In this article we will discuss the halachic concept of taking counsel: When is there an obligation to consult with others? Does this obligation apply to a Dayan on a Beis Din? For which types of rulings does the obligation apply?
These questions, among others, are discussed in the present article.
The Obligation to Take Counsel from the Great
The obligation to take counsel from the leading authorities in a particular field is especially pronounced concerning a Dayan in Beis Din. The Gemara (Yevamos 109b) states that “evil after evil will befall a Dayan before whom comes a case, and wishes to compare one matter to another, and he has a leading authority [with whom he can consult], and he does not ask him.”
This halachah is ruled by the Rambam (Sanhedrin 20:8):
“A judge who begins comparing a judgment that is brought before him to a judgment that was already rendered with which he was familiar is considered as wicked and haughty when rendering judgment if there is a scholar in his city who is wiser than him and he fails to consult him. Our Sages comment: “May evil upon evil befall him.” For these and similar concepts stem from haughtiness which leads to the perversion of justice.”
We thus learn that a Dayan who comes to make a decision (that involves a comparison – see below) is obligated to consult with those greater than him in judgment, and somebody who fails to do this is considered “among the wicked who are haughty in judgment” (as per the Mishnah, Avos 1:7). The Perisah (Choshen Mishpat 10) explains that failure to consult is a symptom of haughtiness, deriving from the underlying belief that he cannot be wrong.
It is interesting to note the explanation given by the Raavan (Yevamos p. 123), who reaons that the obligation to consult with the great stems from the prohibition of making a halachic ruling in the face of one’s mentor. This explanation can also be derived from the Rashba (Shut Ha-Rashba, Vol. 1, no. 491), among others. Indeed, the Shevus Yaakov (Vol. 2, no. 64) writes that the prohibition of ruling in the presence of one’s mentor even obligated a rabbinic authority to seek the counsel of books before rendering a decision (the Aruch Ha-Shulcuan, Yoreh De’ah 242:35, rejects the idea; see also below concerning the question of consulting books).
Yet, the wording of the Rambam (and the Shulchan Aruch, as noted below) indicates that in his opinion the obligation is unrelated to the prohibition of ruling in the presence of one’s mentor, and is rather an obligation that relates to all those who are “greater than him.” The Birkei Yosef (Choshen Mishpat 10:3) goes so far as to write that the obligation to take counsel applies not only to those greater than the Dayan in question, but even to those of equal stature. Of course, this is only possible if the obligation is unrelated to one’s mentor, and connected rather to the need for care and measure in judgment.
For Which Ruling Must a Judge Consult?
The Bach (Choshen Mishpat 10) cites an opinion holding that the obligate to consult a laeding authority applies to every ruling that comes before a rabbinical judge, even if he has already issued rulings in similar circumstances, and even if he has already taken counsel on similar matters, because of the chance that he will not take notice of nuances that can make a difference between the cases.
Yet, others maintain that the obligation to take counsel applies only to cases in which the case involves reaching a novel halachic conclusion. Even if this conclusion can be reached by way of deduction and inference from other rulings, concerning which he has already consulted with the leading authorities of his time, he must nonetheless consult again concerning the novel legal conclusion.
This latter opinion is implied by the wording of the Gemara, which refers to somebody who “compares matter to matter.” This is also the wording of the Shulchan Aruch, who rules (Choshen Mishpat 10:2): “A judge who compares one case to a case in which he has already ruled, and there is a rabbinic authority in town who is greater than him in wisdom, and he does not take his counsel – he is considered among the wicked whose hearts are haughty in judgment.” This is also the accepted ruling, as noted by the Ketzos Ha-Choshen.
In this connection it is worth noting a dispute over the correct wording of a line in Rashi (Sanhedrin loc. cit.). According to the Maharshal (Chochmas Shlomo), Rashi reads: “He knows a halachah that is not similar to a case that comes before him, and he compares matter to matter.” This implies that the obligation is limited to instances in which the respective cases are not very similar to each other, in which case the judge cannot make the comparison without prior consultation. However, the Bach (glosses to Yevamos) renders Rashi “He knows a halachah that is similar to a case that comes before him, and he compares matter to matter,” changing the scope of cases to which the halachah applies.
Also noteworthy is the ruling of Rabbeinu Yerucham (Meisharim, Nesiv 1, Chelek 2), who writes that the prohibition is limited to cases in which the rabbinical judge is in doubt over the correct ruling; where he is certain of the correct approach, there is no obligation, according to Rabbeinu Yerucham, to consult with those greater in wisdom. As we have seen, this approach is not adopted by the Rambam and by other authorities, who refer to a novel halachah derived by comparison, and not to cases of doubt (see Shut Maharshal, no. 35, who writes that the obligation of taking counsel applies to any case that is not simple).
It is important to mention that although there is an obligation, in certain circumstances, to consult with those greater in wisdom, this does not negate the personal responsibility of a Dayan for the rulings he issues. Even after he consults, the responsibility for issuing the final ruling rests on the shoulders of the individual Dayan, and after carefully considering the response he received from the authority with which he consulted, it is up to him (and him alone) to reach the final decision.
From Dayan to Rabbi
The rulings above relate specifically to ruling issued by a Dayan in matters pertaining to Beis Din. What, however, is the halachah concerning a Rabbi who issues rulings concerning everyday (or non-everyday) matters of issur and heter? Does the obligation of taking counsel apply even here?
The Maharsha (Sanhedrin 7b, s.v. mitaso) writes that the obligation of consulting applies specifically to monetary matters, and not to other areas of halachic ruling. He writes that this stands to reason, since only concerning monetary matters is there a concern that a litigant will go to a different Dayan to check if he was judged fairly, and might receive a different judgment to that which he received. The obligation of consulting means to ensure that this uncomfortable situation, which could even lead to the judge’s financial liability for losses, should not arise.
The Maharshal (Shut Maharshal no. 35), however, writes that the obligation to take counsel applies in all areas of halachic rulings. Indeed, Shut Shoel Ve-Nishal (Yoreh De’ah no. 111) writes that this can be derived by means of a kal va-chomer (“all the more so”) from the obligation of a judge: If in monetary matters, where both sides often agree to accept the authority and decisions of the judge upon themselves (and for which a monetary obligation can be foregone), the obligation to take counsel applies, this should be all the more true of halachic questions for which no ‘acceptance’ helps (and which cannot be foregone).
Indeed, the Gemara (Berachos 4a) describes how David Ha-Melech took counsel in matters of halachic rulings: “So said David before Ha-Kadosh Baruch Hu: Master of the World, am I not pious? All the kings of the east and the west sit in splendor, and my hands are sullied with blood […] in order to purify a wife for her husband. Moreover, in all that I do I consult with Mefiboshes my mentor, and tell him: Mefiboshes my mentor, did I decide correctly? […] Did I purify correctly? Did I defile correctly? And I was not ashamed.”
There is some discussion among authorities as to the implication of the Nimmukei Yosef (Bava Basra 58b) concerning the question of making halachic decisions based on comparison without consultation. The general consensus of authorities, however, is that the obligation applies even to these matters.
Consultation with Great Books
Can the obligation to take counsel be dispensed by consultation with books of the great?
From his writings in the Tumim (Choshen Mishpat 10:3) it emerges that Rabbi Yonasan Eibshutz used to ‘consult’ with sefarim before making a halachic decision, and it appears that he saw this as a halachic duty based on the obligation to consult before issuing a ruling. However, the Chida (Yosef Ometz 47) writes that the intention of the Tumim is only that he would consult the sefarim to ensure that he did not forget their rulings, and not as a matter of halachic obligation.
In Shut Yabia Omer (Orach Chaim 1, at the beginning of the sefer) Rabbi Ovadya Yosef zt”l writes at some length concerning the obligation to take counsel from the books of the great. It emerges from his exhaustive sources that although some authorities obligate consultation with sefarim of leading authorities, most authorities do not see this as a formal obligation, though it remains recommended practice.
However, the actual discussion in Yabia Omer relates to the question of whether a person has an obligation of taking counsel with books, and not to the question of whether the obligation of taking counsel (where it applies) can be fulfilled by means of books. Concerning the latter question, the Maharshal (loc. cit.) writes that if a ruling is found explicitly in a sefer of leading authorities, the ruling can be issued without further consultation. Insofar as a ‘new’ comparison finds mention in such a sefer, it appears that this serves as a valid ‘consultation.’
Before ending, it is important to note that where a Dayan fails to consult concerning his decisions, this indicates a moral flaw in methodology, but does not invalidate the decision (see Panim Ba-Mishpat 10:4).
We have seen that there is an obligation of judges and rabbis to consult with the leading authorities of their place and time in the decisions and rulings they issue. Indeed, the Midrash (Sifra, Shemini 1) writes that Nadav and Avihu did not take counsel from Moshe, nor with one another – and therefore they were punished.
If the obligation to take counsel is said about the Rabbis and rabbinic judges among us, it surely applies – as a moral obligation – to far-reaching decisions that everyday Jews sometimes have to make. Before making weighty decisions, it is surely proper to consult with those whose experience and wisdom can be of infinite value.