In this week’s parsha we have the Aseres HaDibros [the Ten Commandments], one of the commandments is, לא תרצח – “Do not murder”, therefore, I would like to discuss a topic directly related to this. I would like to discuss the topic of what the earliest age is, where one is allowed to issue halachic rulings, and what the earliest age for writing seforim is. For how this connects to לא תרצח, you will have to keep reading. We will also see if perhaps nowadays things may be different.
The Gemara in Sotah (22a) cites the pasuk in Mishlei (7:26):כי רבים חללים הפילה ועצומים כ ל הרוגיה, and expounds it to mean:כי רבים חללים הפילה זה תלמיד חכם שלא הגיע להוראה ומורה – “She made fall many corpses” - refers to a talmid chochom who is not qualified to issue halachic rulings, yet he goes ahead and issues such rulings anyway, ועצומים כל הרוגיה זה ת״ח שהגיע להוראה ואינו מורה - “Awesome are the amount she has killed” - refers to a talmid chochom who is qualified to issue halachic ruling, yet he refrains from doing so.
The Gemara (22b) then asks: “What is the proper age to rule?” and the Gemara answers: עד ארבעין שנין – “Age forty”.
There is a machlokes Rishonim if the Gemara refers to forty years from when one is born, or if it refers to forty years from when one started learning. Rashi in Avodah Zorah (19b) and the Ran (5b) learn it means forty years from when one is born, however, Tosfos in Sotah understands that it means forty years from when started learning, like we find in Avodah Zorah (5b), “One isn’t able to properly understand his rebbe until forty years”.
The Rema (Yoreh Deah 242:31) follows the opinion of Rashi and the Ran and writes: אין לאדם להורות עד ארבעים שנה – “A person shouldn’t issue halachic rulings, until he is forty years old.” The reason one needs to wait forty years, is because one’s mind only settles at age forty, like we find in Avos (4:21): בן ארבעים לבינה – “Age forty for understanding”, until forty, however, one should serve and learn from his rebbeim.
לא תרצח – “Do not Murder”
Based on the aforementioned Gemara, the Teshuvah MeAhavah (cited in Mechon Yerusholayim edition of Shulchan Aruch, Yoreh Deah 242:13) brings a fascinating explanation for why the phrase לא תרצח in the Aseres HaDibros (Shemos 20:13) is pronounced in two different ways. When the Torah is read with the ta'am ha'tachton, the sub-lineal cantillational notes, the word תרצח is in the middle of a pasuk and is pronounced with the vowelization of a "patach" beneath the letter tzadi and is pronounced תרצ ח. When the Torah is read with the ta'am ha'elyon, the super-lineal cantillational notes, the word is pronounced with the vowelization of a "kamatz" since it is read at the end of the pasuk, and thus it is pronounced תרצָח.
The Teshuvah MeAhavah explains: When a talmid chocham is not ready to issue halachic rulings, yet he does so anyway, the Torah warns תרצ ח לא, don’t murder by opening your mouth (פתיחת פיך, opening your mouth like a “patach”) when you’re not ready to. However, when a talmid chocham is ready and fitting to issue halachic rulings and he doesn’t, the Torah warns תרצָח לא, don’t murder by keeping your mouth closed (קמיצת פיך ), on the contrary, open your mouth, and if you don’t, it is like murdering someone.
The Teshuvah MeAhavah then adds: In the ta'am ha'tachton it is written with a “patach” as people that are attached to this world, people that are more connected to the oilam hatachton, like to make themselves big and open their mouths when they shouldn’t be. However, in ta'am ha'elyon it is written with a kometz, as people who are more worried about the next world, people that are more connected to the oilam ha’elyon, are scared to open their mouths and to issue halachic rulings, as their eyes and heart are focused towards Shomayim, and they are very scared of making mistakes.
What If One Isn’t Yet Forty, However, There is No One Better?
It’s clear from the Rema (242:31), if one isn’t yet forty, however, there is no one greater than this young talmid chocham in the city, he may issue halachic rulings before turning forty. Even if others are on the same level of wisdom and they are already forty and he isn’t, since they aren’t greater than him he may issue halachic rulings (based on Rashi Sotah 22b, and Ran in Avodah Zorah). However, many Rishonim (Tosfos Sotah 22b, Smak, Mitzvah 111, and the Shach learns this in the Rif and Rosh as well) argue, and learn that even if he is on the same level, if they are forty and he isn’t, he should refrain from ruling. The Shach (s.k. 3) concludes, that one should be stringent and careful about this.
Many Rishonim Omit the Din of Not Issuing Halachic Rulings Before Turning Forty
Although the prohibition of issuing halachic rulings before forty is a clear Gemara (Avodah Zorah 19b, Sotah 22b) many Rishonim (Rif, and Rambam) seem to omit it. In the Achronim we find two explanations for this:
- The Beis Yosef (and in Kesef Mishnah on the Rambam, Hilchos Talmud Torah 5:4) learns, that when the Gemara says, “It is forbidden to issue halachic rulings before forty”, it means that until forty, one is allowed to withhold issuing halachic rulings even if he is fit to give them – provided there is someone greater than him in the town. However, if one wants, if one is fitting and able, he may issue halachic rulings earlier. Meaning: One is allowed to avoid issuing halachic rulings until he turns forty, however, once he turns forty he can longer hold back. We still have to understand, however, why the Rambam doesn’t mention this din, that one is allowed to hold back from issuing halachic rulings until age forty? The Beis Yosef explains: Either because withholding is a middas chasidus [pious act], and nowadays, people don’t act with middas chasidus. Or, he says: “Nowadays, many people jump to issue halachic rulings before they are fit, therefore, if one is able to actually rule correctly, although in days of old he used to be able to withhold, nowadays, he must issue rulings as soon as he can, as we don’t won’t people who are unfit jumping in first.”
- The Lechem Mishnah offers another explanation, he suggests that the obligation to wait until forty was in the times of the Gemara, when they never had seforim to learn from, and all the learning was passed down from rebbi to talmid by mouth. However, nowadays, the Torah is written down, and we have lots of seforim, thefore, if one is wise and able to issue halachic ruling before turning forty, there is nothing wrong.
Based on the above, the Mechaber omits the din of waiting until forty, and according to the Mechaber one may issue halachic rulings before turning forty. Therefore, although the Rema brings that one must wait until forty, the Mechaber makes no mention of this, and a Sephardi who follows the Mechaber may rule accordingly and issue halachic rulings before turning forty.
In fact, the Beis Yosef in Shu”t Avkas Roichel (201) writes this clearly and concludes: “This is the simple, widespread custom in all our communities, to appoint talmiday chachomim who are bochurim who are able to issue halachic rulings even in places where there are people greater than them, and are older than forty, and we never heard anyone protest. I also saw that my Rebbe, the Ri Bai Rav would appoint in his town in Tzefas Dayonim who hadn’t yet reached the age of forty”
The Shu”t Radvaz (Vol. 6, 2147) also writes: “There are stories every day, that talmiday chachomim who are bochurim issue halachic rulings and no one has every said anything. Similarly, many kuntrasim have come to me, with halachic rulings from bochurim who are talmiday chachomim from Tzefas.”
Is There Any Room for Ashkenazim to Be Lenient?
The difficulty is, that even amongst the Ashkenazim who follow the Rema we seem to find today many young poskim who are not yet forty, and there are people greater than them in the town, yet, they seem to issue halachic rulings. What are they relying on? How can they go against a clear Rema?
The Shevet Kahosi (1:263) quotes the Lechem Mishnah we mentioned above that since nowadays we have seforim everything has changed. He explains: Although the Rema seems to hold one has to wait until he turns forty, that was in his times, when the Mechaber and Rema, and certainly the Shach, Taz and other nosei keilim weren’t available, however, nowadays, we have Shulchan Aruch, Rema, and various commentaries, therefore, we can be more lenient.
The Pesokim U’Teshuvos (R’ Aharon Aryeh Katz, siman 242, footnote 327) brings another argument. He says, the Rema says, “if there is no one as great in the town one may issue halachic rulings before forty”. R’ Katz suggests: Nowadays, there are many sects of Jews, and each sect is split up into many kehillos, and each group has their own minhogim, therefore, perhaps we can say that each kehillah is like its own town. Therefore, even if in every town there are older and wiser people, in each kehillah there isn’t anyone older than the rov, therefore, it’s ok.
Publishing Seforim Before Turning Forty
The poskim write that if one should refrain from issuing halachic rulings before turning forty, then presumably the same thing applies to writing seforim which contain halachic rulings as well, as what difference does it make whether one issues a verbal halachic ruling, or a written one.
Perhaps writing a halachic ruling is worse, as a verbal ruling is a one off, however, when one writes a sefer the halachic ruling is around forever, and one small mistake, can cause 1000’s of Yidden to stumble throughout the future generations. Although, on the other hand, when bringing out a sefer, one knows that it may be around forever, therefore, he will be more careful before writing the halachic ruling in the sefer.
The gedolei oilam in the past, made a takonah [enactment] against anyone under the age of forty bringing out a sefer.
Kol Koreh [Proclamation] Against Youngsters Bringing Out Seforim
The Shu”t Teshuvah MeAhavah (Vol. 3, siman 375) brings a letter (kol koreh) that was hung up and publicized in Prague in the year 5546 under the instruction of the Noda B’Yehudah and signed by him. The letter briefly said: “Due to the great increase in the number of new seforim on Shas and poskim which are halachah lemaaseh, and the fact that the seforim are becoming widespread and causing people to stumble – as many poskim in our cities have no feel or ability to really understand the roots of the matter, they think that anything which is widespread is reliable. Therefore, I see it fit to stand up and make a boundary and make a takonah in our community, that any rabbi before he reaches the age of forty shouldn’t raise his hand or even attempt to print any sefer containing chiddushim on Shas or poskim. When they turn forty and have understanding, then they have permission to print their chiddushim if they are worthy and fitting.” The letter was signed by the Noda B’Yehudah and members of the Beis Din, Rav Shlomah Zalman Amrich, Rav Michoel Bachrach and Rav Eliezer Flaklas (the Teshuvah MeAhavah).
However...
However, just like we mentioned above, that there are many talmiday chachomim who issue halachic rulings before turning forty, similarly, there are many young talmiday chachomim who are under the age of forty who bring out seforim. Every single day that goes by, there are new seforim coming out from people under the age of forty, and they often have haskomas from many of the gedolim and no one seems to make any fuss. What exactly has changed?
What Are People Relying On?
- One major heter which R’ Ovadia Yosef brings in his Shu”t Yabia Omer (Vol. 4, Choshen Mishpot 1:6) is that many seforim that come out today don’t contain any of the Mechaber’s own chiddushim, rather, they just collect together pesokim that are already written in other seforim. R’ Ovadia writes: The way Sephardim learn, is that they go through all the Rishonim and Achronim, large and small (like the Shu”t Rav Pe’olim brings in his hakdomah) therefore, there is nothing wrong if the Mechaber of a sefer is not yet forty as all his rulings have what to rely on. Ashkenazim, however, have a different approach to learning, as they spend more time on the Gemara and Rishonim and try and come up with their own explanations, and they don’t look at achronim as much, therefore, it is more likely that they will make mistakes. Therefore, Ashkenazim should be more careful about bringing out seforim when they are young. However, R’ Ovadia says, if an Ashkenazi doesn’t rely on his own conclusions, and he simply quotes what is in other seofrim, then he may bring out a sefer before turning forty.
- The Pesokim U’Teshuvos (Yoreh Deah 242:43) suggests, that if a young talmid chocham brings out a sefer, however, before doing so he gives it to someone above forty to look through the sefer and check everything is ok, then it is also ok. The Pesokim U’Teshuvos advises: That even if one goes with the above heterim, the Mechaber should still write somewhere on the sefer, in a place where people will see, “Please don’t rely on this sefer for practical halachah, without looking into sources and the root of the sources first.” Many gedolay haposkim who we live our lives by, due to their great humility also wrote this. R' Ovadia Yosef suggests that doing the above (writing that the sefer shouldn’t be relied upon for practical halachah) may in itself be a heter for a young talmid chocham to bring out a sefer.
However, the above is far from simple, as the Mechaber knows that in the end of the day, many people will rely on the sefer, and it is causing a stumbling block to them to bring out a sefer and then tell people not to rely on it. Perhaps we can compare the above to stores which hang up a big sign saying, “Smoking kill’s, smoking is dangerous”, and then underneath they have another sign saying, “Cigarettes are available in this store”. It’s very nice to warn people, but we know they won’t listen, therefore, it’s difficult to rely on this alone, however, this together with one of the arguments we made above, it would seem there is what to rely on.
