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Reprinted with the author’s permission from Jewish Law: History, Sources, Principles (Jewish Publication Society).
Moses Isserles (Rema), one of Shalom Shakhna’s outstanding disciples, had an entirely different approach to codification. Rema was born ca. 1530 in Cracow, where his father, Israel, was one of the dignitaries of the community. Rema studied in Shalom Shakhna’s yeshivah until he was about nineteen years of age; and at the age of twenty, he was appointed Rabbi of Cracow.
Despite his youth, he was accepted as one of the leading halakhic authorities of the time. He served as Rabbi of Cracow for some twenty-two years and taught many disciples who served in Jewish communities throughout Europe. He composed books in all areas of Judaic studies (halakhah, aggadah, Kabbalah, philosophy, and biblical commentary) and even astronomy.
He assumed his leadership role at the very time when Caro’s Bet Yosef and Shulhan Arukh appeared, and Rema and Caro did in fact correspond with each other. Rema’s illustrious career was cut short by his untimely death in 1572, at the age of approximately forty-two.
Glosses to the Shulhan Arukh
Rema completed his landmark contribution to the field of codificatory literature with his third work–his glosses to the Shulhan Arukh that he spread as a tablecloth (mappah) over the table (shulhan) that Joseph Caro had set (arukh) for halakhah.
Had Caro written only Bet Yosef, Rema would very likely not have written this third work. His codificatory objectives had all been well realized in his first works, Darkhei Moshe and Torat Hattat. He had never aspired to write a code as terse as the Shulhan Arukh, and in fact, he was critical of such a code.
However, the fact that Caro wrote two codificatory works–Bet Yosef and Shulhan Arukh–impelled Rema to deal with both of those works, each according to its own content and methodology.
Following Caro’s Example
Two of the reasons Rema continued to write his Darkhei Moshe even after Bet Yosef had reached him were:
(1) Caro did not discuss a substantial portion of the opinions of the halakhic authorities, particularly the Ashkenazic authorities, and his conclusions were inconsistent with many of the accepted practices in Germany and Poland, and
(2) Caro based his decisions on the majority opinion among Alfasi, Maimonides, and Asheri, and not on the principle that the views of the later authorities should prevail.
If these two reasons were enough for Rema to continue his work on Darkhei Moshe, they were most certainly enough to induce him to write his glosses to the Shulhan Arukh.
Caro’s main objective in the Shulhan Arukh was to extract the normative conclusions from Bet Yosef and to present them in a separate book of pesakim, “briefly” and by “definitive statements of the applicable law, without discursive debate or argument.” That being so, Rema had no choice but to follow Caro’s example and extract from his Darkhei Moshe his own halakhic conclusions arrived at by his own methodology, present them in the style of the Shulhan Arukh, and append this work to the Shulhan Arukh.
In his glosses to the Shulhan Arukh, Rema presented the conclusions derived from Darkhei Moshe in a “closed and sealed” form “using his [Caro’s] method of stating the laws categorically,” concisely, and without citation of sources.
In so doing, Rema deviated from his declared approach to codification as revealed by his Introduction to Torat Hattat, where he argued that the rulings in Sha’arei Dura were “closed and sealed” and led to misunderstandings and to erroneous decisions. However, this deviation by Rema was necessary in order for him to append his own normative conclusions to the Shulhan Arukh in the style of the Shulhan Arukh itself.
Authority for Ashkenaz
Rema’s glosses supplement the law presented in the Shulhan Arukh with the conclusions derived from the views of the authorities of whom Caro did not take account, particularly those of Germany and France, “whose waters we drink and who are the eminent authorities of Ashkenazic Jewry and have always served as our eyes, and whose rulings have been followed from the earliest of times, namely, Or Zaru’a, the Mordekhai, Asheri, Semag, Semak, and Haggahot Maimuniyyot, all of whom built on the Tosafot and the halakhic authorities of France, whose descendants we are.”
Rema also supplemented the Shulhan Arukh with the customs followed by Ashkenazic Jewry, “for there have been many differences between eastern and western Jews even in early generations, and how much more so in these latter generations.”
Rema’s glosses, of course, deprived the Shulhan Arukh of its categorically authoritative quality and universal applicability throughout the Jewish world, but that was precisely what Rema intended:
“I viewed all his [Caro’s] statements in the Shulhan Arukh as having been presented as though they were given by Moses at divine command so that students would come and drink his words without challenging them. . . . I therefore decided that, at those places where his [Caro’s] statements do not seem to me to be correct, I would write down next to each such statement the opinions of the aharonim, in order to make the students aware of every instance where his statements are disputed.”
Rema believed that a judge should have available a book–even though it may be categorical in form and contain no source references–which presents as briefly as possible the different views of the halakhic authorities, so that in reaching his decision in each case, he can take into account the principle that the law is in accordance with the views of the later authorities, local custom and practice, and his own view as to what is appropriate in the particular circumstances of each case.
This basic approach to halakhic decision making had been developed by the spiritual founders of Polish Jewry, Jacob Pollack and Shalom Shakhna, to the extent that they opposed the writing of all codificatory works and would not even preserve copies of their own responsa.
Rema’s glosses, in addition to presenting the various opinions and local customs, as well as reflecting his own different criteria for deciding the law, also emend the text of the Shulhan Arukh, particularly where it was clear to Rema that the language of “the author” (mehabber, as Caro is generally referred to in connection with the Shulhan Arukh) had been corrupted by copyists and printers. Sometimes, the glosses interpret and explain the text; at other times, they point out where Caro’s rulings are inconsistent.
Enhancements to the Shulhan Arukh
An interesting feature of Rema’s glosses is that Rema sometimes added a law, not because it was disputed or because Care did not accept it, but to enhance Shulhan Arukh‘s comprehensiveness. An example appears at the beginning of Hilkhot Sheluhin [The Laws of Agency] in Shulhan Arukh Hoshen Mishpat.
In order to understand its significance, we first turn to the formulations of this law by Maimonides and the Turim.
Maimonides’ Hilkhot Sheluhin ve-Shutafin [Laws of Agency and Partnership] begins as follows:
“If one says to his agent, ‘Go and sell land or chattels for me’ or ‘Buy [land or chattels] for me,’ he [the agent] can sell or buy and carry out his agency, and all his acts are effective [to bind the principal].”
In the Turim, however, the formulation is:
“A person’s agent is like himself for all matters [and binds the principal], except for the commission of wrongdoing, for the rule is, ‘There is no agency for wrongdoing.’ Maimonides wrote, “If one says to his agent, ‘Go and sell land or chattels for me’ or ‘Buy [land or chattels] for me,’ he [the agent] can sell or buy and carry out his agency, and all his acts are effective.”
The Turim thus preceded the concrete example of an agency to sell or buy with a statement of the basic principle of the law of agency that a person’s agent is like himself except for an agency to commit wrongdoing, where the applicable principle is: “[When] the words of the teacher and the words of the disciple [conflict] — which should be obeyed?” In other words, the principal may assume that the agent will obey the words of God (the Teacher), who forbade the commission of the wrong, rather than carry out the words of the principal (the disciple).
In the beginning of Caro’s treatment of Hilkhot Sheluhin he omitted the general principle that the Turim supplied and, following Maimonides, began with the concrete case of an agency to sell or buy. Clearly, the omission does not mean that Caro disagreed with the principle; rather, it reflects Caro’s policy to be as brief as possible and to follow Maimonides’ style.
Rema added a gloss at the beginning of Hilkhot Sheluhin in the Shulhan Arukh, in which he set forth and elaborated on the principle stated in the Turim:
“In all matters, a person’s agent is like himself [and binds him], except for the commission of wrongdoing, for the rule is, ‘There is no agency for wrongdoing.’ This applies only when the agent has the capacity to be liable [for the wrong], but if he does not have the capacity to be liable, he can be an agent even to commit wrongdoing.”
Rema, following the Turim, thus introduced the laws of agency with the general principle that a person’s agent is like himself except in regard to the commission of wrongdoing, and then added the qualification, also well established, that if the agent does not have the capacity to be responsible for his acts, the agency, even for wrongdoing, is effective, because the principal should have known that the agent would carry out the agency inasmuch as the agent would not thereby be committing any wrong himself.
Undoubtedly, a legal code, notwithstanding the desirability of brevity and conciseness, should begin the laws of agency with the basic principle governing that subject; in this gloss, Rema briefly and aptly filled this gap in the Shulhan Arukh.
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