Reprinted with permission from
Introduction to the History and Sources of Jewish Law
(Oxford University Press) .
Somewhere around the year 1000, Rabbi Gershom ben Judah (known as the “Light of the Exile,” Me’or hagolah) wrote the first systematic commentary to the Babylonian Talmud. There can be no comparing this comprehensive work with the fragmentary commentaries written by Rav Sherira and Rav Hai Gaon, who flourished close to R. Gershom’s own time. R. Gershom’s disciples and followers perpetuated his exegetical work in the talmudic academies of Mayence and Worms [in Germany], ultimately spreading into France. This exegesis culminated in Rashi’s classic commentary to the Talmud, which drew directly from the commentaries of the German Sages.
Between the years 1100-1300 a new branch of talmudic exegesis and study took root: the Tosafot. The Tosafists wrote collections of comments on the Talmud arranged according to the order of the talmudic tractates, taking Rashi’s commentary on the Talmud as their starting point, and using it to compare and analyze different talmudic passages, thus seeking to harmonize apparent discrepancies and distinctions. Several elements of this new intellectual current are discernible amongst the scholars of Worms at the close of the eleventh century, but it was only in twelfth-thirteenth century France that they reached their finest flowering.
Combining great erudition with a dialectical analysis of the talmudic text, the crystallization of the Tosafot bears a significant resemblance to the manner in which the Talmud itself was composed. Both reflect the drawn-out debates of rabbinic academies.
Like the Talmud, the various collections of Tosafot intersperse answers to questions with legal decisions. In the words of one eminent scholar: “The Tosafists began where the Talmud left off. Just like [the Talmud] they too absorbed everything that happened within the academy: the give-and-take of study; the deeds and doings of the masters that were transmitted orally; the epistles, rulings and laws that were written down (Urbach, The Tosafists, 525).”
Every academy had its own collection of Tosafot. But while the great majority are no longer extant, others have been preserved for all time in the Talmud itself, printed alongside the commentary of Rashi. And as on the printed page, so in the world of Jewish Law do the Talmud, Rashi, and Tosafot reign supreme. In the evolution of Jewish Law this combination was to prove a law-producing source of the first magnitude. Scholars often referred to these commentaries and novellae when deciding questions of law, and the very manner of studying the Tosafot profoundly influenced jurists throughout Germany, France, England, and the Balkans. Towards the close of the twelfth century and in the following generation more particularly, the Tosafot even made their way into Spain, where they greatly influenced the study of Talmud and the writing of novellae and law codes over the next two centuries.
The scholars of Ashkenaz were primarily engaged in exegesis and the composition of legal responsa. Law codes as comprehensive as those written by Spanish Jewry were not undertaken in Ashkenaz. Yet the Ashkenazi center did produce several important digests of Jewish Law. Particularly noteworthy are the works compiled by R. Eliezer ben Nathan (Raban) and R. Eliezer ben Joel Halevi (Rabiah) in twelfth century Germany, by R. Isaac ben Moses of Vienna (Or Zaru’ah) and R. Mordecai ben Hillel in the following century.
In some respects, we may assign to the same group the Piske haRosh of R. Asher ben Yehiel, a German Sage who compiled his book in Spain after settling there in the early fourteenth century. There is also the Ets Hayim, composed in late thirteenth century England by R. Jacob Hazan, who included matters of civil and criminal law.
Neither in France nor in Germany was an all-embracing law code ever composed according to the classic model of thematic division. Apart from, R. Jacob Hazan’s Etz Hayim, which betrays the influence of Maimonides, all the legal codes mentioned above are arranged according to the order of the talmudic treatises rather than by subject matter. Even legal responsa are found interspersed in them. Yet their importance in the evolution of Jewish Law cannot be gainsaid. Notable differences often distinguish the legal rulings of Ashkenazi Jewry from those of their Spanish brethren, most particularly in ritual law. All such differences find faithful expression in these books.
Another kind of legal code consists of the short treatise on a specific theme. The great majority of them deal with Jewish holidays and liturgy; very little pertains to either civil or criminal law. The French Sages displayed a partiality for the genre and already in Rashi’s academy such works were being written. In general, however, the codifying efforts of the French school were eclipsed by their activities in exegesis and novellae. Such efforts as they did expend in the realm of legal decision-making went into the writing of responsa.
Questions & Answers
The responsa of the medieval rabbis are of the utmost importance, both as a source of history and as a mirror of Jewish Law and its evolution. Many of these responsa deal with questions arising out of the concrete problems of daily life and have direct bearing on both civil and criminal law. As local judges were not always equipped to resolve cases involving legal uncertainty, they often submitted the questions to a famous scholar for his authoritative decision. These responsa acquired the power of “case-law” (though not individually setting precedents), and were eventually incorporated into the classic law codes. For example, the responsa literature greatly influenced the Arba’ah Turim of R. Jacob ben Asher, which in turn, some two centuries later, exerted so profound an impact on the rulings of the Shulhan Arukh.
As far back as the tenth century, questions were directed to Rabbi Kalonymos and his son, Meshullam. During the eleventh century the greatest Sages of Ashkenaz sent responsa well beyond their own communities, laying the foundations for the organized Jewish community and for such issues as family law and synagogue rites. Many hundreds of responsa have come down to us, but that many others have been lost is beyond doubt. Some of these responsa are still in manuscript form and have yet to be published.
From the twelfth century on, the drafting of responsa bears the imprint of the Tosafot. The dialectics are generally more protracted and a wider range of deliberations comes into view.
Any list of the period’s greatest respondents must include R. Jacob b. Meir (Rabbenu Tam) in France and R. Meir of Rothenburg in Germany. R. Meir was the greatest respondent to flourish in the sphere of Ashkenazi Jewry. Throughout the entire fourteenth century, the disciples of R. Meir–or the disciples of his disciples–provided the leadership for the communities of Germany and Austria.
We have already seen that for dynamic interaction and unimpeded individuality, the academies of Ashkenaz were unique. The literary style of the responsa may itself reflect this uniqueness. Beginning with the eleventh century, the responsa of Ashkenaz refer ex hypothesi [i.e. by hypothesis] to the possibility of diverging opinions and multiple views. Not so the responsa of the Babylonian Geonim or those of the early Spanish Sages. The rabbinic masters, much like the Christian scholastics, encouraged their disciples to pursue their own literary paths.
One of the most interesting testimonies to this effect is found in a ruling issued by several of the greatest Tosafists of twelfth century France. They ruled that a disciple is permitted to challenge his master’s opinion in public, to expound the Law in his living quarters and even to launch an academy in the same city as his master. Both in letter and in spirit this represents a sharp divergence from early rabbinic rulings, but the Tosafists deemed the old ways better suited to the talmudic period than to their own. For whereas a disciple had formerly been dependent on his master, this dependence had been obviated now and forever by the emergence of law codes. Needless to say, neither the Geonim of Babylonia nor the Sages of Spain accepted this ruling.
Books of Custom
The religious customs of the great Sages nurtured a new and innovative literary genre: books of customs (sefer minhagim). As early as the eleventh century, numerous customs of contemporary Sages from Mayence and Worms found their way into the locally composed Ma’aseh haMakhiri. Nor had the thirteenth century elapsed before the disciples of R. Meir of Rothenburg (1215-1293) reduced his customs to writing. Apart from France, however, where the genre was somewhat less cultivated, these customs attained the force of legal precedent, binding on communities far and wide. At a later stage the Austrian communities also accepted the genre.
Books of customs had a certain impact on the evolution of Jewish jurisprudence, though primarily in the field of ceremonial law. Some of these customs were later to resurface in the domain of Polish Jewry. Many of the customs and beliefs adopted by the pietist circle of twelfth-thirteenth century Ashkenaz are found concentrated in the Sefer Hasidim (Book of the Pious).
Composed in Germany during the early thirteenth century, the impact of this book is well evidenced in non-pietist circles as well. The pietist movement which emerged in eighteenth century Europe greatly revered Sefer Hasidim and the book’s influence permeated many of its customs. These customs had somewhat less, though not an insignificant, impact in the centers strongly influenced by the Spanish heritage.
Following the move of several German Sages to Spain in the late thirteenth and fourteenth century, some of these customs penetrated the sphere of Spanish Jewry. Asher ben Yehiel, author of the Piske haRosh, was one of the foremost figures in this respect.
Pronounced: AHSH-ken-AH-zee, Origin: Hebrew, Jews of Central and Eastern European origin.
Pronounced: TALL-mud, Origin: Hebrew, the set of teachings and commentaries on the Torah that form the basis for Jewish law. Comprised of the Mishnah and the Gemara, it contains the opinions of thousands of rabbis from different periods in Jewish history.