Critical Reactions to Mishneh Torah

Maimonides' two main critics, Rabad and Asheri, argued that multiplicity of opinions is a positive and vital force in Jewish law.

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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:

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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.