Author Archives: Menachem Elon

Menachem Elon

About Menachem Elon

Justice Menachem Elon has had a long and distinguished career as a legal scholar. He is a retired professor of Jewish Law at the Hebrew University in Jerusalem, and a prolific author on Jewish Law. In 1977 Justice Elon was appointed to the Supreme Court of Israel and served as its Deputy President from 1988 until 1993. He lives in Jerusalem.

Commentaries on Alfasi

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Reprinted with the author’s permission from Jewish Law: History, Sources, Principles (Jewish Publication Society).

An extensive literature developed around Sefer ha-Halakhot. Some was critical, some defended it against the critics, and some explained and supplemented it. Thereafter, such works in the nature of commentaries or glosses (called in Hebrew nos’ei kelim, lit. "armor bearers") were written on the main Jewish codes. Those on Alfasi are by some of the greatest halakhic authorities. A few of the important commentators on Alfasi are next discussed.

Zerahiah Ha-Levi Gerondi (Rezah)

Rezah lived in the twelfth century in the town of Lunel in Provence, and was one of the outstanding halakhic authorities of his day. At the age of nineteen, he wrote Sefer ha-Ma’or [Book of the Luminary], consisting of critical glosses and supplementations to Alfasi’s Sefer ha-Halakhot. Sefer ha-Ma’or is in two parts: Ha-Ma’or ha-Gadol [The Great Luminary] on the Orders of Nashim and Nezikin, and Ha-Ma’or ha-Katan [The Lesser Luminary] on the Order of Mo’ed.

Rezah apologized profusely for questioning Alfasi’s work, "for there has not been written as fine a work on the Talmud since it was finally redacted." Yet he felt bound to seek out the truth; "as the Philosopher [Aristotle], refuting his master, said, ‘Truth and Plato are at odds and both are beloved, but Truth is the more beloved.”’ Consequently, he explained, his criticisms only added honor and glory to Alfasi’s work.

Abraham b. David (Rabad) of Posquieres

Rabad, a contemporary of Rezah, wrote critical glosses (hassagot) on Alfasi, albeit very apologetically:

"Truly, I ought to have closed my eyes and sealed my lips and followed him unswervingly to the right and to the left; but this is a task for the sake of Heaven . . . So I did not refrain from critically reviewing [his work] as far as I was able, whether [that review] refuted or was supportive. . . ; for the Almighty desired, for the sake of His righteousness, to magnify and glorify His Torah."

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Rabbi Isaac Alfasi: Rif

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Reprinted with the author’s permission from Jewish Law: History, Sources, Principles (Jewish Publication Society).

As the geonic period came to an end, the need arose once again for a code that covered the entire halakhic system yet was succinct and definitive. Several factors were at work. The increased volume of responsa and legislative enactments in various fields of the law necessarily involved the continuing expansion and development of the law. Moreover, for a considerable time, such activity had been going on not only in Babylonia, but also in North Africa and Europe. The fact that the number of Jewish centers had increased also led inevitably to marked differences in laws and customs.

 

While such differences had existed in the geonic period, and even earlier–between the Land of Israel and Babylonia, and between different yeshivot and localities within each of these centers–the differences became much more prominent as the centers in the diaspora increased in number and spread over a broader area.

These factors, and others discussed below, led to the composition of one of the greatest and most important works in the halakhic system–a work that left its mark on the study and determination of halakhah in every subsequent generation. This work is Sefer ha-Halakhot [Book of the Laws] by Isaac b. Jacob ha-Kohen Alfasi, known in Hebrew by his acronym, “Rif” [Rabbi Isaac of Fez].

Biography

Alfasi was born in 1013 in the town of Qal’at Hammad in North Africa, which is why he is sometimes called ha-Kala’i (the Qala’ean). He studied in Kairouan and in the yeshivot of Nissim b. Jacob (Nissim Gaon) and Rabbenu Hananel b. Hushiel, and eventually settled in Fez, North Africa (hence his appellation Alfasi), where he taught Torah to many students.

At the age of seventy-five, he was forced to flee Fez after being denounced to the government; he moved to Spain, where, after a few months, he settled in Lucena, which was then a spiritual center of Spanish Jewry. After a short time, upon the death of Isaac b. Judah ibn Ghayyat, Alfasi headed the famous yeshivah in Lucena, where he attracted many students, including Joseph ibn Migash (Ri Migash) and Judah Halevi. Alfasi died in 1103, having designated Ri Migash to succeed him.

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Moses Isserles: Rema

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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.”

Methodology

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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Caro’s Codificatory Approach

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Reprinted with the author’s permission from Jewish Law: History, Sources, Principles (Jewish Publication Society).

Joseph Caro’s main objectives in writing his Bet Yosef were to collect into a single work the different opinions concerning the rules of halakhah, and, by means of the methodology he had formulated, to determine which opinion should be accepted as law.

Caro, however, saw this work as only one part of his solution to the problem of codifying Jewish law. He knew that while a book of halakhot (containing a complete discussion of the sources of the law and the views of all the authorities as well as a final normative decision) was essential, it was not itself sufficient to satisfy the needs of halakhic codification. He appreciated Maimonides’ fundamental premise that the essential characteristics of a convenient and efficient code are clarity and brevity–the code must present each law clearly, categorically, and definitively.

Therefore, after composing his Bet Yosef, and as a complement to it, Caro provided Jewish law with a classic book of pesakim–the Shulhan Arukh.

Support for Maimonides’ Method

Caro made his position very clear as to the need for a book of pesakim. Rabad had criticized Maimonides severely for having, in his Mishneh Torah, "forsaken the method of all authors who preceded him" in that Maimonides omitted the sources on which his decisions were based and presented only the view with which he agreed.

Caro responded to Rabad’s strictures as follows:

"But I say that the master’s [Maimonides’] reason was that if he had wanted to follow the method of the authors who preceded him, what purpose would there have been in writing anything beyond what had already been written by Alfasi, whose rulings he generally followed? Therefore, he intended to introduce a new method: to state the law clearly and briefly in the style of the Mishnah, so that every intelligent person thereafter can rely on Maimonides’ statement of the law.

And should some great scholar not be prepared to accept that choice without first weighing the matter himself–who prevents him from studying the talmudic literature and the other halakhic works? It follows that the method Maimonides adopted is of benefit to everyone except the scholar who stands head and shoulders above the rest of his generation–and even for such a person it is of value, because if he must make a quick decision, he can rely on Maimonides’ opinion; and even if he is not pressed for time, it is no small matter for him to know Maimonides’ opinion."

A "Double" Code

Far from contradicting Caro’s methodology in Bet Yosef, his statement quoted above supplies the additional element essential to achieve his overall approach to codification of Jewish law. He believed that a halakhic code must have two components: one that cites all the sources and differing opinions, and another that presents a single statement of the law-final, categorical, and monolithic.

Caro described clearly his theory of the "double" code in his Introduction to the Shulhan Arukh. He began by describing his Bet Yosef:

"The major work that I wrote on the . . . Turim, which I called Bet Yosef, includes all the laws to be found in all the [books of the] codifiers, new and old, together with their sources in the Babylonian and Jerusalem Talmuds, the Tosefta, Sifra, Sifrei, Mekhilta, commentaries, codes, and responsa, new and old, with each law fully and appropriately explained in its proper place."

He continued:

"I realized that it would be beneficial to gather the lilies and the sapphires [i.e., the halakhic conclusions] of its [Bet Yosef‘s] discussion, [and present them] briefly, clearly, and comprehensively, in an elegant and pleasant style, so that God’s perfect Torah may be fluent on the tongue of every Jew. Thus, when a scholar will be asked a matter of halakhah, he will not need to hesitate.

. . . The law to be applied in practice on any question that he will be asked will be clear to him because he will be fully familiar with this book [Shulhan Arukh], which is so excellently constructed. It is divided into thirty parts, so that if one studies one part each day, he will have reviewed its contents every month. Of such a person it will be said, ‘Happy is he who comes here with his knowledge readily in hand.’

Furthermore, the younger students will study it constantly and commit it to memory. Practical halakhah will thus become ‘childhood learning’ absorbed in their earliest years; and when they grow old, it will not depart from them. The intelligent students will shine like the heavens because they will be spared the pain of great toil and will enjoy studying this book; it is entirely pleasurable, containing clear and definitive statements of the applicable law, without discursive debate or argument.

I called this book Shulhan Arukh [The Set Table] because the reader will find set out in it all kinds of delicacies meticulously arranged, preserved, systematized, and clarified. I trust that, by divine grace, the earth will be filled with the knowledge of God by virtue of this book — the small and the great, the student and the accomplished scholar."

This, then, was Caro’s approach to codifying halakhah. Bet Yosef included the disparate opinions on all the laws and their sources; but "so that God’s perfect Torah may be fluent on the tongue of every Jew," Caro composed another book "containing clear and definitive statements of the applicable law, without discursive debate or argument."

This latter work would be written "briefly, clearly, and comprehensively, in an elegant and pleasant style," so that when a judge or scholar is asked a question, "he will not need to hesitate, . . . [and] the law to be applied in practice on any question that he will be asked will be clear to him."

Like all codifiers–in Jewish law as well as in other legal systems–Caro was convinced that not only would his code serve talmudic scholars and experts, but also "the younger students will study it constantly and commit it to memory," so that "practical halakhah will thus become ‘childhood learning.’" Caro’s two-part work–a book of halakhot and a book of pesakim–indeed constitutes the halakhic code par excellence, fully appropriate to the nature, and responsive to the needs, of the halakhah.

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Commentaries on the Mishneh Torah

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Reprinted with the author’s permission from Jewish Law: History, Sources, Principles (Jewish Publication Society).

The appearance of a comprehensive code naturally stimulates the composition of a literature of commentaries that seek to probe the code’s comprehensiveness, accuracy, and other qualities. The high esteem in which Maimonides’ Mishneh Torah was held, on the one hand, and the sharp controversy it engendered, on the other, sparked the creation of an extensive and voluminous literature of commentary.

These commentaries had various objectives: some to criticize Maimonides, others to defend him against the critics, or to explain or supplement his treatment of particular subjects. The central function of most of the commentaries, particularly the earlier ones, was to trace the talmudic sources from which Maimonides distilled his halakhot.

No other halakhic work has had the distinction of being the subject of so many commentaries; indeed, commentaries on the Mishneh Torah are still being written. Some of the commentaries are usually printed on the pages of the Mishneh Torah. They include:

Migdal Oz by Shem Tov ibn Gaon

Shem Tov ibn Gaon, Rashba’s disciple, was a Spanish halakhic authority and kabbalist of the mid-fourteenth century. He was the first to supply source references for Maimonides’ text, and he also included references to Maimonides’ responsa. His main objective was to defend Maimonides and counter Rabad’s criticisms. He also corrected scribal errors in the text.

Maggid Mishneh by Vidal of Tolosa

Vidal of Tolosa, a colleague of Nissim Gerondi (Ran), was a leading Spanish halakhic authority in the fourteenth century. His goals in Maggid Mishneh were to explain Maimonides’ text, to indicate the halakhic sources, to suggest reasons why Maimonides preferred the views he adopted over those he rejected, and to defend Maimonides against his critics, especially Rabad.

Unlike the author of Migdal Oz, Vidal did not always agree with Maimonides, but at times was inclined to accept the opinion of Rabad or of other critics. Maggid Mishneh is extant on six of the fourteen books of the Mishneh Torah.

Kesef Mishneh by Joseph Caro

Joseph Caro, the author of the Shulhan Arukh, wrote a comprehensive commentary on the Mishneh Torah, entitled Kesef Mishneh. His aims were largely similar to those of the Maggid Mishneh, which he often cited and discussed. His commentary also covers books of the Mishneh Torah for which Maggid Mishneh is lacking.

Yekar Tiferet by David ibn Zimra (Radbaz)

Radbaz, the foremost halakhic authority of the sixteenth century in Egypt (until he immigrated to the Land of Israel), provided a commentary on the portion of the text of Maimonides for which there was no Maggid Mishneh. He defended Maimonides against criticism but did not particularly concern himself about supplying source references. Parts of his commentary have been printed in several recent editions of works by Maimonides, as well as separately.

Lehem Mishneh by Abraham di Boton

Abraham di Boton, a leading halakhic authority in Salonika in the sixteenth century, was a disciple of Samuel de Medina (Maharashdam). His book Lehem Mishneh attempts to ascertain Maimonides’ sources and reconciles inconsistencies between the Mishneh Torah and the talmudic sources.

When he was in the midst of his commentary to Hilkhot Tefillah [Laws of Prayer], Caro’s Kesef Mishneh reached him, and he found in it explanations and novellae similar to those he had also written. He therefore decided that for the rest of his commentary, "I will write down only those points of mine that are novel," i.e., only comments adding to what was said by Caro.

Mishneh la-Melekh by Judah Rosanes

Judah Rosanes lived in the second half of the seventeenth and the early part of the eighteenth centuries. He was the Rabbi of Constantinople and was regarded as the leading Turkish halakhic authority of his generation.

His book Mishneh la-Melekh is different from the other commentaries. If, for purposes of comparison, we distinguish between commentaries and novellae, the books above referred to would be classified as commentaries, whereas Mishneh la-Melekh would be novellae.

Judah Rosanes actually wrote his novellae without reference to Maimonides, as a work on various talmudic subjects, but his disciple, Jacob Kuli, who printed his books, arranged them to correspond to the organization of the Mishneh Torah.

Haggahot Maimuniyyot by Meir ha-Kohen of Rothenburg

Haggahot Maimuniyyot [Maimonidean Glosses] by Meir ha-Kohen of Rothenburg is different in kind and purpose from all the other commentaries previously mentioned, which is why it is discussed last although it was composed before some of the others.

The author lived at the end of the thirteenth and the beginning of the fourteenth centuries and was a disciple of Maharam of Rothenburg. The purpose of Haggahot Maimuniyyot was not to criticize or defend Maimonides, or to find his sources, but to supplement the Mishneh Torah with the responsa and decisions of the German and French halakhic authorities wherever appropriate.

Only a few of the hundreds of commentaries that are part of the extensive literature on Maimonides’ Mishneh Torah have been discussed here. In addition to the commentaries directly on the Mishneh Torah, there are discussions of laws as set forth by Maimonides interspersed throughout the general literature of commentaries, novellae, and responsa.

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Critical Reactions to Mishneh Torah

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Reprinted with the author’s permission from Jewish Law: History, Sources, Principles (Jewish Publication Society).

As might have been expected, the boldly innovative form of Maimonides’ code aroused fierce debate and sharp critical reaction, some of which was directed at Maimonides during his lifetime. His replies bespeak his deep conviction of the correctness of his approach and of the vital need of the Jewish legal system for his work. However, most of the criticism arose after Maimonides’ death and generated profound and penetrating debates about the nature and methodology of Jewish legal codification.

Rabad: Maimonides’ Most Severe Critic

Maimonides’ severest critic arose in his own lifetime: Abraham b. David (Rabad) of Provence. Rabad, known as one of the greatest halakhic authorities, was the head of a yeshivah in Posquieres. He appreciated some of the extraordinary merits of the Mishneh Torah and expressed agreement with many of the laws in it.

His severe strictures on the Mishneh Torah were certainly not intended ad hominem or as an expression of personal pique or anger. Nor was he jealous of the fame of Maimonides’ Mishneh Torah, which was never achieved by the comprehensive book of halakhot written (according to some scholars) by Rabad but no longer extant.

Rabad’s strong disagreement was with Maimonides’ method of declaring the law without citing the sources and without setting out the range of opinions on each legal issue–information which is vital to the very essence of Jewish law and to the methodology of halakhic decision making.

Rabad took aim at this feature of Maimonides’ code from the very start, in the first of his critical glosses (hassagot) to Maimonides’ Introduction to the Mishneh Torah.

Against that very "revolutionary" passage of Maimonides–"Hence, I have entitled this work Mishneh Torah, for the reason that a person who first reads the Torah and then this work will know from it all of the Oral Law, and there will be no need to read any other book [written] between them"–Rabad leveled the following charge:

"Abraham [Rabad] says: He sought to improve, but he did not improve, for he has forsaken the method of all authors who preceded him; they adduced proof and cited the authority for their statements. This [traditional method] was of great value, for often a judge is inclined to declare something prohibited or permitted on the basis of a particular source, but if he knew that an authority greater than himself took a different view, he would change his mind.

Now, I do not know why I should retract my tradition and my proof on account of the work of this author [Maimonides]. If the one who takes issue with me is greater than I, well and good; but if I am greater than he, why should I yield my opinion in favor of his? Furthermore, on some matters the geonim were divided, and this author chose one opinion [over the others] and put it in his book.

Why should I be governed by his choice if it seems wrong to me, and I do not know whether the holder of the opposing view is entitled to deference? This is simply overweening pride in him."

Arguments for Independent Judgment

In Rabad’s opinion, the Mishneh Torah‘s statement of only a single unattributed view deprives the judge of the means to make up his own mind and impairs his power of decision.

The judge may be aware of an opinion opposed to the one stated in the Mishneh Torah, but he cannot know which opinion should prevail, because he does not know the weight of the nameless authority whose view is set forth in the Mishneh Torah. The judge may sometimes be unaware of a difference of opinion among the geonim, which, had he known of it, he would have, in the exercise of his independent judgment, resolved one way; but Maimonides’ method of stating the law has preempted this opportunity and has decided the case for him the other way.

The effect is to deny the judge the power of independent judgment essential to his basic function, which is to decide the case before him.

Rabad was not content merely to express general opposition in principle to Maimonides’ methodology. He was justified in his fear that a work so excellent and comprehensive and so easy to study and understand would gradually supplant the study of all the rest of halakhic literature.

Therefore, in spite of his advanced age, he reviewed the entire Mishneh Torah and wrote critical glosses to many of the laws it contains. These glosses were terse, and often sharp. Their object was to draw attention to incongruities and inconsistencies between the law as set forth by Maimonides and the law in the talmudic sources, and to instances where Maimonides reached legal conclusions on the basis of halakhic methods and analyses that were not generally accepted.

In this way, Rabad hoped to impel the readers of Maimonides’ code to check the correctness of Maimonides’ statements against the talmudic sources and the geonic literature.

Asheri’s Reaction

Criticism of Maimonides’ codificatory methodology continued after the time of Rabad and his contemporaries. Some of it even came from halakhic authorities who esteemed Maimonides’ work highly and made considerable use of it in their own writings.

The severest reaction–and the one having the greatest consequence–came about a century later from one of the great halakhic codifiers and commentators, Asheri (Asher b. Jehiel, also known as Rosh), the outstanding disciple of Meir of Rothenburg (Maharam). After the death of Maharam, Asheri became the leader of Ashkenazic Jewry and later settled in Spain, where he became one of the foremost halakhic authorities and leaders in that Jewish center as well.

Asheri expressed his opposition to the Mishneh Torah in a case referred to him for review after it had been decided by another judge. A judge named Mazli’ah had rendered a decision on a certain issue on the basis of the Mishneh Torah. Asheri ruled that the decision was erroneous. By a close study of the talmudic source for Maimonides’ statement, Asheri established that Mazli’ah had misunderstood Maimonides’ meaning. Mazli’ah’s failure to consult the talmudic source moved Asheri to conclude his responsum with the following highly significant comment:

"Anyone who decides cases on the basis of the law set forth by Maimonides, of blessed memory, errs if he is not sufficiently expert in gemara to be aware of Maimonides’ sources. Such a judge renders decisions permitting what is forbidden and forbidding what is permitted.

For he [Maimonides] did not follow the lead of other authors who adduced proofs for their opinions and provided source references that enable him [the reader] to grasp the underlying principle and arrive at the truth of the matter. Instead, he [Maimonides] wrote his book like one delivering a prophetic message from the Almighty, providing neither reason nor proof. Thus, anyone reading it [Mishneh Torah] imagines that he understands it, but he really does not. For if he is not expert in gemara, he cannot really and truly understand the subject, and he will err in the decisions he renders and the legal pronouncements he makes. Let no one, therefore, rely upon his reading of his [Maimonides’] book to give judgment or make legal pronouncements unless he [also] finds support in the gemara [for the law as stated by Maimonides]."

Debating the Function of a Legal Code

Asheri thus categorically rejected Maimonides’ main objective. According to Asheri, the function of a halakhic code is not, as Maimonides thought, to be the sole work that needs to be consulted in determining the law and in rendering decisions; relying solely on such a book for these purposes is likely to lead to misunderstanding of what has been written in categorical and monolithic form.

According to Asheri, the aim of a codificatory work is not to be a self-sufficient source; it is rather to be used in connection with the talmudic sources of the laws it seeks to summarize. Only by keeping close to the sources of a legal rule can one arrive at the true meaning of the rule stated in the code.

Asheri’s view of the limited function and authority of a codificatory work corresponds to his view of the process of legal decision making. He held that a judge is bound only by "the Talmud as compiled by R. Ashi and Ravina." When the judge has clear and convincing arguments for his own view, he is free to differ with rulings made by post-talmudic halakhic authorities (including the geonim) that are not explicitly rooted in the Talmud itself. Therefore, he needs to have before him all opinions on a subject in order to be able to decide which one to accept.

Apart from the concern about possible mistakes in the code and the difficulties of truly understanding the law solely from its text, Maimonides’ central idea that the Mishneh Torah should serve as the exclusive and binding code runs counter to the very nature of Jewish law, in which multiplicity of opinions is a positive and vital feature. Jewish law does not recognize any decision made after the completion of the Talmud as final and beyond challenge. No book of pesakim, however masterly, can be the sole source for legal decisions; that prerogative is reserved for the Talmud alone.

Justice Menachem Elon has had a long and distinguished career as a legal scholar. He is a retired professor of Jewish Law at the Hebrew University in Jerusalem, and a prolific author on Jewish Law. In 1977 Justice Elon was appointed to the Supreme Court of Israel and served as its Deputy President from 1988 until 1993. He lives in Jerusalem.

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Goals of the Mishneh Torah

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Reprinted with the author’s permission from Jewish Law: History, Sources, Principles (Jewish Publication Society).

It is hardly surprising that a man such as Maimonides, whose work superbly reflects systematic organization, would make clear, both to himself and to his readers, his motives and objectives in writing his masterpiece. He did so in detail in the Introduction to his Sefer ha-Mizvot [Book of the Commandments], in the Introduction to his Mishneh Torah, and in several responsa and epistles that he wrote to those who sought his guidance or took issue with him.

Maimonides set forth as the background and motivation for his work the familiar reasons that led in all periods to the writing of compendious but concise codes, namely, the vastness of the halakhic material, the difficulty of understanding the sources and of finding one’s way in them, and the social and historical milieu:

"At the present time, when dire calamities keep following one another and the needs of the moment brush aside all things, our wise men have lost their wisdom, and the understanding of our astute people is hidden. Hence, the commentaries, the codes of law, and the responsa that were written by the geonim, who strove to make them easily intelligible, have presented difficulties in our days, so that only a few are capable of understanding them properly. Needless to say, this applies to the Talmud itself (the Babylonian as well as the Jerusalem), the Sifra, the Sifrei, and the Tosefta — works that require wide knowledge, a learned mind, and ample time before one can discern from them the correct practice as to what is prohibited or permitted, and the other laws of the Torah.

Therefore, I, Moses ben Maimon, the Sephardi, bestirred myself and, relying upon the Creator, blessed be He, have made a thorough study of all these books, and have determined to compose a work containing the results derived from all these books concerning what is prohibited or permitted, unclean or clean, as well as the other laws of the Torah."

Similarity to all Legal Codes

One of the goals Maimonides hoped his code would achieve was to make "all the laws — the rules of each and every commandment, and of all the enactments promulgated by the sages and prophets — clear and manifest to young and old." This aspiration, of course, is similar to that of all codifiers of any legal system.

One Grand and Bold Claim

The background and purpose of the Mishneh Torah described to this point were not particularly novel; similar motives and aims had led to the composition of books of halakhot in earlier periods. The great innovation of Maimonides involved an additional revolutionary objective for the Mishneh Torah–a completely new approach as well as a novel form for setting forth the authoritative distillation of the halakhah. Maimonides, as usual, expressed this grand and bold objective clearly and without equivocation:

"In brief, a person will not need to have recourse to any other work to ascertain any of the laws of Israel. This work is intended as a compendium of the entire Oral Law, including the enactments, customs, and decrees instituted from the days of Moses, our teacher, until the redaction of the Talmud, as expounded for us by the geonim in all the works composed by them since the completion of the Talmud.

Hence, I have entitled this work Mishneh Torah [Recapitulation of Torah], for the reason that a person who first reads the Torah and then this work will know from it all of the Oral Law, and there will be no need to read any other book [written] between them."

As previously stated, Maimonides did not mean by this statement that his code was to be the authoritative legal source of Jewish law. The very introduction to Mishneh Torah, in which the statement just quoted was made, opens with a description of the "chain of the tradition." It specifies the names of all those who were links in the chain, commencing with the Revelation at Sinai–the seminal event and the source of authority for the Jewish legal system. Indeed, it makes clear that everything set forth in the Written Law and in the Oral Law as handed down in the Talmud "is binding on all Israel."

Consequently, all the prior halakhic literature would remain as material for study and analysis, and as a source for legal pronouncements on new problems arising in the future; but finding and ascertaining the halakhah as crystallized up to Maimonides’ time was to be done exclusively by means of his code, for he was fully confident that his code included the entire Oral Law and that there could be no inconsistency between it and the binding halakhic literature up to that time.

Four Basic Objectives

The Introductions to his various works and his responsa indicate that Maimonides set for himself four basic objectives in the preparation and composition of the Mishneh Torah, similar to the guidelines used even today for any type of code in every legal system.

Maimonides’ objectives were:

1. To compile the entire corpus of Jewish law from the Torah up to his own day and to rework this material scientifically and systematically.

2. To select and arrange the material topically.

3. To set forth the law categorically and prescriptively, without associating it with particular sages, without mentioning conflicting opinions, and without source references.

4. To achieve a polished literary style that clearly and succinctly expresses the content of the concepts expounded.

Fulfilling these objectives in codifying the law of any legal system calls for superior skills; fulfilling them in codifying halakhah calls for genius of the highest order.

The Problem of Codifying Jewish Law

Maimonides attained his first two objectives through his extraordinary ability to assemble, rework, and classify material. His third objective was attained in consequence of two characteristics to be expected in someone of his stature–a capacity for boldness, and a readiness to pioneer beyond the conventional.

As has been seen, the codification of Jewish law involves a fundamental problem: Can the Jewish legal system, which is, by its very nature, a continuous chain of tradition harking back to the Torah, tolerate a code containing only a definitive and categorical statement of each law, with no citation of differing opinions and without source references?

Maimonides’ New Genre

The codificatory literature reviewed to this point has shown that until the time of Maimonides no work had been written that briefly set forth the laws without stating the names of those by whom the laws were transmitted or the talmudic sources of the laws.

In Maimonides’ view, this tended to make it more difficult to arrive at a legal conclusion and made the existing codes difficult to understand and of limited utility. He therefore created a new genre of codificatory literature–a systematic halakhic work presenting legal rules categorically in prescriptive form, with no reference to sources or contrary opinions. Maimonides explained his method and motives:

"I decided to put together the results obtained from all those [previous] works, as to what is forbidden or permitted, [ritually] pure or impure, together with the other laws of the Torah, all in plain and concise language. Thus, the entire Oral Law, systematically arranged, will become familiar to all, without citing arguments and counterarguments — one person saying one thing and another something else.

Rather, [the law will be stated] clearly, pointedly, and accurately, in accordance with the conclusions drawn from all these compilations and commentaries that have appeared since the time of Moses to the present, so that all the laws, whether [biblical] precepts or enactments adopted by the sages and prophets, will be accessible to old and young alike."

Opposition to Maimonides’ Method

Maimonides’ code was faithful to this approach, nearly always stating the law categorically, prescriptively, and without reference to contrary opinions. The only exceptions are the more than 120 halakhot which Maimonides himself added on his own (indicated by such expressions as: "It appears to me," "I say," "It seems likely to me") and about fifty halakhot where he determined the law himself on the basis of his review of the opinions of the geonim and rishonim who preceded him. Only in these instances does the Mishneh Torah give any indication as to the sources of the law and the method by which it was determined.

This was the most revolutionary aspect of Maimonides’ code, and it aroused the strongest opposition. Rabad, who was among Maimonides’ severest critics, rendered the following assessment:

"Abraham [Rabad] says: He [Maimonides] sought to improve but he did not improve, for he has forsaken the method of all authors who preceded him; they adduced proof and cited the authority for their statements. . . This is simply overweening pride in him."

Maimonides’ Legacy

It is true that the omission of the sources gave rise to difficulties; Maimonides himself was aware of these problems and considered how to overcome them. However, generations later, it turned out that in his essential innovation in the codification of the halakhic system–stating the law prescriptively and categorically without naming sources–he not only "sought to improve" but in fact did improve, since he paved the way, in substantial measure, for the codificatory form that achieved general acceptance about four centuries later when Joseph Caro wrote the Shulhan Arukh.

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Halakhot Pesukot, Halakhot Gedolot

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Reprinted with the author’s permission from Jewish Law: History, Sources, Principles (Jewish Publication Society).

Halakhot Pesukot [Settled Laws], written shortly after Sefer ha-She’iltot, and attributed to Yehudai Gaon, is the first classic example of a book of halakhot.

Yehudai Gaon was one of the great personages of the geonic period. He was associated with the academy of Pumbedita; but when the gaon of the academy of Sura died and there was no scholar of Yehudai’s stature there, Exilarch Solomon b. Hasdai appointed him head of the academy at Sura.

Yehudai was the first gaon to establish communication with Jewish communities in North Africa (Tunisia, Algeria, and Morocco); he also held discussions on various halakhic matters with the halakhic authorities of the Land of Israel, whom he considered bound by the authority of the Babylonian scholars in regard to determining the law. He is also the first gaon from whom many responsa–more than one hundred–have survived. These are characterized by extreme brevity, an indication of his great authority.

Emphasis on Practical Issues

Halakhot Pesukot decisively influenced succeeding generations and opened a new era in codificatory literature. The book encompasses all parts of the halakhah then applicable and is arranged by subject, e.g., sabbath, festivals, Passover, interest and usury, loans, ketubbot, betrothal, divorce, etc.

It does not include laws then totally inapplicable or laws applicable only within the Land of Israel and hence not followed in practice in Babylonia, such as the commandments directly relating to the Land of Israel (e.g., the various tithes and the sabbatical year) and the laws of sacrificial offerings and ritual purity. Thus, Yehudai Gaon set an example for all subsequent codificatory literature, which, with limited exceptions, was also confined to codifying only the law having practical relevance at the time the books were written.

Style and Organization

From the standpoint of both style and organization, Halakhot Pesukot is a book of halakhot. The final halakhic conclusion is generally preceded by a concise precis of the talmudic sources upon which the conclusion is based. The subjects are for the most part arranged in the order of the tractates of the Talmud, in consequence of which all the material on a particular subject is not always brought together. Written originally in Aramaic, the book was translated into Hebrew; according to most scholars, the translation was done in the Land of Israel.

Influence of Halakhot Pesukot

Halakhot Pesukot substantially facilitated halakhic research. This advantage, together with the recognition of the great authority of the author, led to its rapid and widespread circulation throughout the diaspora. Many copies were made, and various abridged versions of it were composed, such as Halakhot Ketu’ot ("Cut" Halakhot), Halakhot Kezuvot ("Cut", "Fixed," or "Set" Halakhot), Halakhot Ketannot (Abridged Halakhot), and others.

Halakhot Gedolot

Two generations later, in the ninth century C.E., a book of halakhot was written that was the largest, in size and scope, of the geonic era, namely, Halakhot Gedolot. According to most halakhic authorities, its author was Simeon Kayyara, whose surname means "wax vendor" (from keira = wax). He lived in Basra, Babylonia.

Halakhot Gedolot, before stating the governing law, briefly presents the sources. Its organization follows the order of the tractates of the Talmud. Its arrangement is in general similar to that of Halakhot Pesukot, except that it subsumes more of the material culled from a variety of sources under specific subject headings, sometimes even establishing nomenclature for new legal topics.

It also includes some laws relating to commandments that no longer had practical relevance when the book was written, such as various laws relating to sacrificial offerings. Important sources for Halakhot Gedolot include, in addition to the Talmud, Halakhot Pesukot, Sefer ha-She’iltot, and geonic responsa.

Preface to Halakhot Gedolot

Halakhot Gedolot is also noteworthy in that it is the first Hebrew book with a preface. Moreover, the preface itself is unusual in that it says nothing about the nature and purpose of the book. The preface has two parts: (a) praise of the Torah and its students, based on various scriptural verses and aggadic sayings; and (b) a list of the 613 commandments divided into 365 negative and 248 affirmative commandments.

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Sefer ha-She’iltot

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Reprinted with the author’s permission from Jewish Law: History, Sources, Principles (Jewish Publication Society).

Commencing with the eighth century C.E., the considerable halakhic literature of the geonic era that is extant reveals ever-increasing activity in regard to codification of the halakhah. The codificatory literature of this period took several forms, but the feature common to them all is that they are books of halakhot, i.e., their declared aim is to present the halakhic conclusion and final ruling after a concise discussion of the underlying talmudic and post-talmudic sources.

The first such book of known authorship written after the completion of the Talmud is Sefer ha-She’iltot by Aha from the town of Shabha near Basra in Babylonia, who lived in the first half of the eighth century C.E. Aha was not officially designated as gaon. As Sherira Gaon relates, Aha was a candidate for the office of gaon in the academy of Pumbedita, but Exilarch Solomon b. Hasdai appointed Natronoi Kahana, who was a student of Aha, whereupon Aha settled in the Land of Israel, where he resided until he died.

Nature and Purpose of Sefer ha-She’iltot

Scholars have extensively considered the nature and purpose of Sefer ha-She’iltot. The most likely hypothesis is that it is essentially a collection of sermons. It is in the same style and form as the sermons that the leading Sages, as early as in the talmudic era, would deliver on sabbaths and various other occasions. However, Assaf wrote, "it is more halakhic than aggadic; its codificatory motive is quite prominent and it very soon came to be used and relied upon to provide the answers to practical legal questions."

Aggadic Form, Halakhic Content

Sefer ha-She’iltot is unique in its literary form. It is not arranged either by subject or in the order of the talmudic tractates, but rather, like midrashic literature, follows the sequence of the Torah. Each she’ilta (singular of she’iltot — the origin of the term is explained below) discusses a particular halakhic subject that is conjoined to the biblical passage directly relevant or otherwise appropriate to it. Interestingly, in the case of some of the she’iltot, the passage to which the she’ilta is linked does not contain the halakhic source on the particular subject, but merely refers to the subject in the course of a narrative.

For example, the laws of robbery and theft in Sefer ha-She’iltot are not linked to the verses that are their halakhic source, but to the passage relating the story of Noah and the Flood, where it is said: "The earth is filled with hamas [lawlessness, violence, or oppression, connoting lack of respect for property] because of them; I am about to destroy them with the earth." Thus, she’ilta 4, to the biblical portion of Noah, begins:

"It is forbidden for Jews to rob or steal from one another; indeed the punishment for these transgressions is more severe than for [violations of] all [other] prohibitions. Thus we find in the case of the generation of the Flood that their doom was sealed only on account of robbery. As R. Eleazar said: "Come and see how severe is the effect of lawlessness (hamas), for the generation of the Flood was guilty of every transgression, but their doom was sealed only on account of hamas, as it is said, ‘For the earth is filled with lawlessness because of them; I am about to destroy them with the earth.’"

After some aggadic reflections, the she’ilta goes on to discuss the substance of the laws of robbery and theft.

Similarly, an extensive discussion of the law of betrothal and marriage, particularly betrothal through an agent, is presented in she’iltot 16 and 17 in connection with Genesis 24, which tells of the marriage of Isaac and the appointment of Abraham’s servant, Eliezer, as agent to betroth a wife for Isaac.

Likewise, the laws of bailees, for which the source is Exodus 22:6, are discussed in she’ilta 20 on Genesis 29: 15, which tells of the entrustment of Laban’s flocks to Jacob. The laws of suretyship are presented in she’ilta 33 in connection with the story of Judah’s undertaking to Jacob to be surety for Benjamin’s safety, in which Judah said: "I myself will be surety for him; you may hold me responsible." The beginning of this she’ilta has an ethical-aggadic flavor:

"The House of Israel are duty bound to have compassion one for another. Whoever needs sustenance should be sustained, and whoever needs a loan should be granted it. If one grants a loan guaranteed by a surety, he should claim in the first instance not against the surety but against the debtor; only if the debtor does not repay should he proceed against the surety."

Unique Structure

The structure of the she’iltot is also unique. A complete she’ilta consists of four parts. The first is a kind of general introduction to the central halakhic subject to be discussed. This part reviews the ethical-religious value involved, together with pertinent halakhic material. The second part sets forth a pertinent halakhic problem opening (in Aramaic) with "But you must learn."

The third part is the discourse, opening with "Blessed be the Name of the Holy One, blessed be He, who has bestowed upon us Torah and commandments through Moses, our teacher, in order to teach His people, the House of Israel." In this part, the subject is discussed at length in full detail, heavily spiced with halakhic and aggadic sources. The fourth part gives the answer to the specific halakhic problem initially posed, and opens: "And as to the query we posed to you" (a convention of humility — the accurate introductory formula would be "as to the question that you asked me").

It is by reason of the Aramaic formula introducing the fourth part — u-Ie-inyan she’ilta di-sha’ilna — that the book is called Sefer ha-She’iltot. As it has reached us, most she’iltot are lacking various parts, mainly the "discourse. "

Relation to Subsequent Codes

From this brief description of Sefer ha-She’iltot, its characteristic feature is clear: halakhah and aggadah are employed together in the style of the ancient discourses, with a view to determining halakhic conclusions. A comparison with the usual forms of codificatory literature raises the question as to whether this book should really be classified in that category.

However, there are two reasons why Sefer ha-She’iltot must be considered before discussing the books of halakhot produced in the geonic period. First, Sefer ha-She’iltot brings together in one place a substantial number of problems and laws in various halakhic areas, and one of its purposes is to set forth correctly the controlling law and make clear the reason for the legal conclusion. Second, Sefer ha-She’iltot served as an important and highly authoritative source for a series of classic books of halakhot written subsequently, as indicated by the following statement of Abraham ibn Daud in his Sefer ha-Kabbalah:

"After R. Samuel bar Mari there was a great scholar [by the name of] R. Aha of Shabha, who composed his She’iltot on all the commandments specified in the Torah. This book, which has survived to this day, was examined and scrutinized by all who lived after him; we have heard that to this day not a single error has been detected in it."

Genesis of Sefer ha-She’iltot

A tradition regarding the composition of Sefer ha-She’iltot reported by Menahem Meiri has evoked considerable wonder and speculation among scholars. In Bet ha-Behirah, Meiri wrote:

"We have a clear tradition about R. Aha, of blessed memory, that he had a son who was not at all inclined to study. He therefore composed for him Sefer ha-She’iltot, so that on every sabbath, as the weekly Torah portion would be read, there would be explained to him through the book well-known laws from the Talmud."

However, without entering into the specific details of this tradition, it should be pointed out that its basic concept — the objective of composing a concise halakhic work understandable by young and old, scholar and layman — appears often in one form or another in the works of quite a number of codifiers. This objective is no reason for wonderment: it is implicit in the very concept of a code summarizing Jewish law — or the law of any legal system.

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Geonic Responsa

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Reprinted with the author’s permission from Jewish Law: History, Sources, Principles (Jewish Publication Society).

The writing of responsa on a large scale in the geonic period dates mainly from the middle of the eighth century C.E. At that time, the Babylonian academies (yeshivot) and the geonim who headed them still exercised spiritual hegemony over all the other Jewish centers of the diaspora.

The most common and frequent exchange of questions and responsa from the geonic period of which records are extant today was between Babylonia and the North African and Spanish Jewish communities. Many questions were received from the communities of Gabes, Fez, Kairouan, Tlemcen, Barcelona, and Lucena, and from communities in other centers, such as Egypt. halakhah quiz

Long-Distance Communication

The questions were generally assembled by the representatives of the yeshivot in the different centers and forwarded–sometimes tens in a parcel–by means of merchants and caravans. A central way station through which the caravans passed was Cairo, Egypt.

Emissaries of the Babylonian yeshivot, usually outstanding scholars, resided in Kairouan and Cairo, where they occupied positions of honor; they sifted through the questions, polished their language, and, as far as possible, forestalled the transmission of questions that had been answered previously. Along with the questions, the inquirers sent donations of money for the support and maintenance of the yeshivot. It sometimes took a full year for the questions to reach their destination in Babylonia. 

The answers of the geonim came back by the very same route; and as they passed through Cairo, they were copied by the yeshivah‘s emissaries and by local scholars. Copies were kept there and also sent to other communities.

As a result of this procedure, copies of many responsa were preserved in the storage chamber (genizah) of the Fostat (Old Cairo) synagogue, where they were discovered at the end of the nineteenth century. An invaluable treasure of geonic responsa that had been lost over the course of time was thus brought to light.

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