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.
"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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