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Drinking and Judging: Laws of Drinking for Poskim and Dayanim


The story of the death of the Sons of Aharon, Nadav and Avihu, includes some of the most difficult pesukim to understand.

The words are: “Nadav and Avihu, the sons of Aharon, took their respective firepans, and after putting fire in them, placed incense on it and offered strange fire before Hashem, which He had not commanded them. And fire came forth from the presence of Hashem consumed them, and they died before Hashem” (Vayikra 10:1-2).

What was the “strange fire” that they brought before Hashem? What was so severe about those actions, that it caused the untimely death of Nadav and Avihu?

Chazal are disturbed by these questions, and offer a number of different solutions. One of them relies on the proximity of the Torah instruction, that appears just several verses later, when Hashem instructs Aharon: “Wine and beer you shall not drink” (Vayikra 10:9).

Based on this, Rabbi Yishmael suggests that the reason for the death of Aharon’s children was their entry into the Mikdash while inebriated. The Torah writes the prohibition against drinking wine right after their deaths to inform us that this was the sin that brought the disaster upon them.

In the present article we will focus, now that the drinking of Purim is behind us, on specific prohibitions against doing certain things after drinking. We find several such specific prohibitions, besides serving in the Temple as did Nadav and Avihu. These include issuing halachic rulings, prayer and reciting berachos.

What is the nature of these prohibitions? Are they equal in severity? Which degrees of inebriation are relevant to the prohibitions? These questions, among others, are discussed below.

Kohanim and Wine

The prohibition against Kohanim  drinking wine, as cited above, applies only when they enter the Mikdash to perform the Divine service or when they recite Birchas Kohanim which still applies today.

On account of the prohibition, the Sages said that Kohanim should refrain from drinking wine (and other alcoholic beverages) altogether during their Mishmar period, the weeks of the year during which the specific family was responsible for the Temple service. Other than this period, they are permitted to drink wine.

According to Rebbi (cited by the Gemara, Sanhedrin 22b), Kohanim may drink wine today at all times. We are not concerned, according to Rebbi, that the Mikdash will be suddenly rebuilt, and we will have no Kohanim to perform the service. Based on Rebbi’s opinion, the Gemara derives that according to the (other) Sages, Kohanim are forbidden to drink wine at all times, out of concern for the sudden building of the Mikdash.

Halachah follows Rebbi’s opinion (as apparent from the Gemara itself), so that in practice there is no difference today between Kohanim and non-Kohanim except for the time when they say Birchas Kohanim.

Issuing Halachic Rulings

In proximity to the prohibition against drinking wine by Kohanim, the Pasuk states: “And to teach the Children of Israel the laws” (Vayikra 10:11). Chazal derive from the proximity of the two verses that it is forbidden for somebody who has drunk wine to issue halachic rulings.

The wording of the Gemara (Eruvin 64b) is: “Somebody drunk must not pass rulings,” and the Rambam elaborates: “So it is forbidden for any man, Kohen, Levi or Yisrael, to issue a halachic ruling while inebriated” (Bais Mikdash 1:3).

This prohibition, however, applies only to rulings that require some element of thought and mental effort. For rulings that are obvious and straightforward—”that a sheretz is impure, that a frog is pure, that blood is forbidden for consumption, and so on”—the prohibition does not apply (Rambam, ibid.).

The apparent purpose of the prohibition is to ensure that halachic rulings are not skewed by the Posek’s inability to think straight while inebriated. If the rulings are obvious, and no thinking is required, it is permitted to make the ruling even when drunk.

Concerning the amount of wine that forbids a person from issuing a ruling, the Sema (on Choshen Mishpat 7:3) writes, “Even if he has drunk a revi’is alone, he must not decide laws of the permitted and the prohibited (issur veheter) until his wine departs from him.” He adds, however, “concerning our wines one can be lenient about drinking a revi’is alone.”

Different Levels of Inebriation

Before continuing, it is important to differentiate between different levels of drunkenness. We have discussed this in the past, and will scan it briefly here before coming to the ramifications we wish to raise.

The Gemara in Eruvin discusses the law of davening while drunk, noting a distinction between two levels of drunkenness. The lower, lighter level of inebriation is somebody who is merely “under the influence of alcohol,” while the more severe level is somebody who is actually drunk.

Thus a shatuy (“under the influence”) may not pray, yet if he does so, his prayer is valid. A shikor, however – somebody who can truly be categorized as drunk – may not pray, and his prayer is considered an abomination.

The Gemara continues: “How are a shatuy and a shikor defined? – A shatuy is one who is able to address the king; a shikor is one who is unable to address the king.” These principles are ruled by Rambam (Laws of Prayer 4:17).

We thus learn of two distinct levels of drunkenness. A shatuy, the lighter of the two levels, is forbidden to enter the Mikdash, to issue halachic rulings, or to pray – yet his prayer is still accepted. The more severe state is a shikor, which is defined by one’s ability to speak before a king or nobleman. In this state, one’s prayer is not valid, and a shikor who prays is obligated to pray once more after recovering from the influence (Shulchan Aruch, Orach Chaim 99:1).

Ramifications of Levels

The distinction above gives rise to important halachic ramifications.

If one sees that the time for prayer (for instance, the Shacharis or Minchah prayers) is running out, the Yam Shel Shlomo rules that it is permitted to pray even after drinking a measure of wine, provided one does not fall under the category of shikor. He explains that today, our level of intent while davening is in any case non-ideal, so that it would be wrong to refrain from davening under the circumstances (this opinion is cited as the second, and apparently normative ruling by the Mishnah Berurah 99:3). If one has reached the level of shikor, however, it is forbidden to pray even when the time will run out.

The Yam Shel Shlomo (Beitzah 2:5) writes further that on Yom Tov, where there is mitzvah of simcha that includes partaking of wine, it is permitted to daven after the holiday meal even in a slightly inebriated state. The Magen Giborim extends the waiver even to Purim: since there is a special mitzvah of drinking on Purim, a shatuy is permitted to daven even while under the influence.

If time for davening runs out while a person is still drunk, one must compensate for the lost prayer by davening the following prayer twice over – the tashlumin prayer – of course after becoming sober (Mishnah Berurah 99:3, 17). This assumes that the failure to pray the missed prayer was not intentional. Even in cases of negligence, such as somebody who waited until the last moment, at which stage (when he actually intended to daven) some external factor prevents him from davening, he can daven the tashlumin prayer. For matters of drinking, if somebody drinks to oblivion, though aware of the fact that this will endanger his davening abilities, he can daven tashlumin in spite of his negligence – provided he did not miss davening willfully (Mishnah Berurah 6).

Even the full shikor is not considered to have entirely lost his faculty of conscious thought, a fact that has important ramifications for blessings other than davening. The Shulchan Aruch thus rules that even somebody who is actually drunk (unable to address a king) is permitted to recite the full Grace after Meals (Orach Chaim, 185).

The reason for this distinction is actually the severity of Birkas Hamazon. Birkas Hamazon after bread (if one is satiated) is a Torah mitzvah, and although one must be wary of reaching the condition, the state of drunkenness is insufficient to waive the Torah obligation of reciting the blessing (see Mishnah Berurah 185:6). Based on this rationale, some authorities (see Maamar Mordechai; Ketzos Ha-Shulchan) distinguish between a person obligated in Birkas Hamazon on a Torah level (somebody who ate to satiation), and one whose obligation is only rabbinic (who ate bread but did not reach satiation) – though this distinction is not mentioned by the Mishnah Berurah.

For the same reason, although it is prohibited to recite Krias Shema while drunk (the laws of prayer apply even to the recitation of the Shema), if the time for reciting the Shema is about to run out one must nonetheless recite the Shema, even when drunk (Mishnah Berurah 99:8; 185:6 and Biur Halacha 5; concerning other blessings, see Mishnah Berurah 99:11 and 185:5).

Serving on a Beis Din

It appears that serving on a Beis Din should have the same halachic status as issuing halachic rulings: Surely a dayan is also issuing halachic rulings, only that his relate to civil or family law, while the rabbi’s relate to daily life.

The Midrash, indeed, warns that somebody who has drunk a revi’is of wine must not serve as a judge on a Beis Din (Bamidbar Rabba 10). This is the halachic ruling given by Sefer Ha-Yirah (of Rabbeinu Yonah), and also appears in Shut Ha-Bach (no. 41). However, the ruling is not found in the Talmud, and the Shulchan Aruch thus cites (in the name of “some say”‘; the source of the opinion is Tosafos to Sanhedrin 42a) that “it is permitted for a shatuy to preside over civil law cases” (Choshen Mishpat 7:5).

The implication is that for criminal law—cases that involve corporal or capital punishment—this will not be the case. In fact, the Gemara (Sanhedrin 42a) derives from a verse in Mishlei (31:4) that it is forbidden for a judge to preside over capital cases while drunk, and the Bach (Shut Ha-Bach, no. 41) explains that although the verse refers to a full state of drunkenness, the Sages added that even somebody at the level of shatuy (under the influence) must not serve on a capital case.

In fact, the Mishnah (Sanhedrin 40a) writes that judges presiding over capital would refrain from partaking of alcoholic beverages for the entire day. The Aruch Laner notes that this applies even to less than a revei’is.

Adjudicating Civil Cases

Why should adjudicating civil law cases be more lenient, according to some opinions, than issuing regular halachic rulings?

The Tumim (7:6; also noted by the Nesivos Hamishpat) explains this ostensibly perplexing ruling by explaining that the halacha refers to a panel of three judges, so that even when one of them in inebriated, the other two can cover for him, and guide him, as it were, to the correct ruling. According to this, the Nesivos rules that a yachid mumcheh – a judge who adjudicates alone – must not sit in judgment while under the influence.

Perhaps we can raise another possible solution to the problem. Unlike the great majority of everyday rabbinic questions, cases of Beis Din involve an element of personal responsibility that a judge accepts for his rulings.

According to the Rema (Choshen Mishpat 25), a judge is held liable for cases of blatant mistakes, and must compensate the wronged party for his losses (see also Ketzos Hachoshen 25:1, who writes that payment of judges is also a factor in their accepting liability for wrong judgments). This will not apply, of course, where litigants sign in advance that the judges are exempt in any case (common practice in the US).

Based on this ruling, it is thus possible that for civil law cases, by contrast with everyday rulings, we permit a shatuy (the lower level of drunkenness) to sit in judgment: by virtue of his personal liability, we can rely on his discretion to decide whether he is fully fit to issue rulings or not.

Yet, according to the Shulchan Aruch’s ruling (25:1), a judge is not liable even for blatant mistakes, so that this rationale will not be sufficient.

In any case, Shut Mishkenos Yaakov  writes that since according to those who prohibit, issuing a ruling while drunk involves a full Torah prohibition, one should certainly be wary of this, and refrain from any level of inebriation while serving on a Beis Din.


On the one hand, wine has the capacity to muddle our minds and confound our thoughts. But on the other, the Gemara (citing Rabbi Chiya) writes, “One who is settled upon his wine possesses the wisdom of seventy elders” (Eruvin 65a; the Gemara explains that the Gematria of yayin is 70). With Purim just behind us, we surely know where to place ourselves, and can plan our four cups of wine (or grape juice) on Seder Night well in advance!



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