Why is psak binding? This question is central in our exploration of the role of the laity in the Halachic system. The idea of binding psak highlights the limits of autonomy and the power of authority. Where does the idea come from and what is its nature? For a full treatment, see the shiur and sources (here). Below are the central points.
The Gemara rules that if one Chacham forbade something, another Chacham is not allowed to permit it. In another place, the Gemara forbids one who asked a shayla from asking another posek. While Tosafot seems to think there is only one prohibition, on the Chacham, the simple understanding of the Gemara is that these are two prohibitions. Why is it forbidden?
There are three main possibilities:
- It is a lack of respect for the first Chacham to ask a second one. The Ran suggests this, and adds that it also causes it to seem like there are two Torot.
- It is a form of neder – you accepted either his decision, or to listen to whatever he said (we will return to this). This positions seems to be taken by Raavad.
- The Chacham creates a metaphysical status by poskaning that you are bound to. This is most clearly taken by the Ritva.
There are many differences suggested between these. For example, if one did ask a second Chacham, would that psak have any effect? According to the first position – it might. According to the latter two, it would not. What if the posek himself changed his mind? According to the first and third, one would be allowed to change with him. According the middle position, it is possible you would not, assuming you think you took a neder to listen to the specific decision, rather than just to listen to the posek (the Raavad rules that you cannot follow the new psak). Some suggest that according to the first position, psak could be binding both lekula or lechumra, but not according to the latter two – how could you have a status of heter? However, R. Henkin notes that the Ritva explicitly believes that you can create a status of heter. R. Henkin suggests that both exist – issurei gavra are covered by only the first, while issurei cheftza are included in the third. Can you ask another rabbi if you tell him that you have already asked someone – hoping he will change the mind of the first posek? Does a more important posek automatically override the decision of the a less posek?
A particularly fascinating issue that I suggested would stem from this is whether someone asked a shayla, intending to follow it, from a someone who did not view himself or herself as a posek.
A few other points must be made. First – what is common to all three, is that the power of psak comes form the fact that the person asked this posek. Thus, while the notion of binding psak indicates a strong sense of authority in Halacha, the fact that his power is granted by the person asking him leaves much power in the hands of the laity. R. Yisraeli assumes that this power comes from the one asking the question turning the posek into his Rebbe. He further notes that the position of Ritva seems to stem from his position that there are multiple halachic truths. Thus, the only thing which makes something binding is the process of psak. From this perspective, it is the interaction of posek and layman that actually creates the halachic reality that then guides the layman. Especially if one thinks that a posek has the ability to create heter, it highlights how having a posek can actually be very freeing.
Additionally, there is good reason to assume (though this may depend on our fundamental question above) that psak is only binding on the question that was asked. If the same situation arises again later, the layman is entitled to ask someone else. One has to do with with integrity and not seek specific answers, but it is legitimate to change who one follows, to change one’s religious direction by choosing a new guide.
Exceptions to this rule are psakim that are defined as clearly wrong. What it takes to get to that status is complicated, but it must be noted that as freeing as psak can be, there are always standards that even the posek is bound to follow. When he violates the most basic rules, his authority is meaningless.
One last point that we will return to is a point made by the Aruch HaShulchan. He notes that Rambam, Tur, and Shulchan Aruch do not quote this halacha, though the Rama does. Why? He suggests that with so many books, no one is really issuing new psakim. Thus, not decision is truly novel enough to be considered the posek’s, and therefore this rule does not apply to it. The Aruch Hashulchan suggests this for the Shulchan Aruch, but remember that the Rama rejected it. More importantly – I don’t think he is correct. New questions arise everyday, and it is just not true that poskim simply quote other people’s position – psak always has and always will require the posek to actually make a decision.