A joke to put this week's subject into perspective:

A Jew wanted to build a sukkah so he went to the rabbi to ask how. The rabbi said to read the relevant potions of the Torah, Rashi, the Mishnah, and the Gemarah. So the Jew followed these instructions but the Sukkah fell down. When confronted with the problem, the rabbi responded, "Tosafot had the same problem."

In following up on last week's presentation in which I tried to show that the Jewish experience, including halakhic discourse, cannot be reduced to a common ethic, this week I would like to provide a more systematic introduction to the dynamics of halakhic development, meaning Jewish law. In this lecture I would like to accentuate the view that there is no "Ha-halakhah," The Halakhah, and that the tradition cannot be reduced to "Jewish law says," but rather it consists of a multiplicity of voices that reflect varying trends among the Jews over the ages.

In other words, halakhah is a valuable source of Jewish social history that reflects the development of Jewish culture. Halakhic literature, therefore, should be seen as a branch of Jewish literature, part of the cultural heritage of the Jewish people and not the preserve of any self-appointed arbiters of Jewish law.

In fact, I believe that one of the goals of non-religious, secular, or liberal Jews as well as members of other religions seriously interested in Judaism should be the development of the skills to read halakhic texts. Such skills are important for several reasons: 1) They are necessary to have access to the primary documents of Jewish development throughout the ages. 2) They provide a key to understanding and contributing to contemporary issues such as the agunah, moser, and rodef, (the chained wife, the informer, and the deadly pursuer) concepts which still determine the course of Jewish history. 3) They offer a common language for all Jews and others to enter such discussions as full knowledgeable participants, rather than abdicating their participation to those with traditional rabbinic training and the often accompanying political preferences.

These texts are not easy even for those who know Hebrew : 1) They are written in a complex style which includes elliptical snippets of Hebrew and Aramaic quotations from a vast array of unidentified texts with a heavy admixture of abbreviations. 2) These texts are often published in what is called Rashi script, a rabbinic type font actually designed by Christian typesetters. 3) They assume that the meaning of concepts are fixed and that all agree upon such usage.

Nevertheless, there are ways to get around these obstacles: 1) There are translations and commentaries available for some texts. 2) There are articles and books which have surveyed various topics with analytical precision and varying degrees of critical distance. 3) There are computer programs for scanning the literature, some of it in translation.

Thus I am proposing a course for examining halakhic literature that is not aimed at study of it for its own sake or to practice an observant Jewish life-style, but to understand a literary genre as a cultural process. I do think, however, that some of the methods proposed here may be of interest to those in these other categories as well but they are not the intended recipients.

In short, following the thought of the late Isadore Twersky of Harvard and the Talne Hasidim, there are two forces at work in halakhic literature: commentary and codification. What this means is that as rabbis gather halakhic materials both in the act of gathering itself as well as the fixed text that is created immediately produces the object for further discussion and elaboration. Thus it is safe to say that no view enters halakhic literature without being subjected to a vast amount of scrutiny. Anybody, therefore, who presents a view isolating it from this dynamic context is misrepresenting the system. Ultimately, however, in order to practice Judaism one has to do just that, remove pieces to create a meaningful construct. However, as scholars of the system our purpose is not to take these constructs as representing the entire system.

Indeed, both to confuse matters but also to highlight the basic dynamic there are two simultaneous systems of codification and commentary at work in Jewish literature which occasionally intersect, but often do not. These are the systems built around the Bible and around the Mishnah.

The Bible

The biblical system has its roots in the codification, or canonization, of the Torah. The subsequent books of the Bible, collected, according to the Jewish canon, in the prophetic and hagiographic sections (the Writings), represent in part commentaries on the Torah. In them the basic literary and legal themes are further developed, whether it is Moses' role as a prophet serving as a template for the life and teaching of later prophets or further developments of the laws of the Sabbath or Passover. These works went through a process of codification and the entire Bible then was subjected to the ongoing commentary of the rabbis in the various midrashic works during the first few centuries of the common era. Midrash, often divided into halakhic and aggadic, legal and legendary, develops around both legal and narrative aspects of the biblical text. The various collections of midrash eventually were codified as the text stabilized in the early middle ages, but then these texts were subjected to commentary in the form of medieval Bible commentary, which is as much an analysis of the biblical text itself as it is a reexamination of the midrashim. Thus Rashi, whom we have met several times in this course, provides us with what appears to be a running commentary on the Bible, but is really editing and translating the Targumim, the ancient Aramaic translations and commentaries of the Bible, and the midrash, especially Midrash Rabbah. Similarly, Ramban, Rabbi Moses ben Nachman of Spain provides an extensive commentary of the Bible but also offers a running critique of both Rashi and Rabbi Abraham ibn Ezra of Spain. Thus a page of Bible in the Jewish tradition contains all these commentators and more, constituting a conversation across the generations. At any point subsequent readers can join in and both select and amplify comments that are of interest to them, continuing the process of commentary and codification, often found in sermons or divrei torah.

The Mishnah

Halakhic literature, which often has a biblical base, ultimately is grounded in the Talmud, which is a complex collection of texts. At its basic level the Talmud contains the Mishnah. The Mishnah, one of the codifications of the earliest strata of rabbinic legal teachings, those of the Tanaim, the authorities from the first few centuries of the common era in Palestine, was edited there in the third century by Judah Ha-Nasi. The Mishnah is important not only for serving as the bedrock of the entire halakhic system, but for setting the tone of its discourse. The Mishnah contains conflicting traditions on most matters, attributed to the authority of various sages by name or simply as the collective, "the sages teach." Most of the Mishnah is not attributed to the authority of biblical proof texts but to rabbinic sages. Hardly systematic, in its six orders concepts are introduced with out being explained, and much has to do with the cultic ritual of temple sacrifice, long since destroyed or not yet reestablished.

***To illustrate many of the genres described here, in keeping with our past practice, I will use examples from Leviant's Masterpieces of Hebrew Literature because it constitutes a readily accessible collection of translations.

Mishnah Rosh Hashana, chapters 1-4 (pp. 90-96):

The tractate begins with the concept that there is not one new year's day but four, offering no biblical prooftexts, and the rabbis cannot agree exactly when they fall. The second mishnah deals not with the common matters of practice, but with reward and punishment and includes a rare, explicit biblical quotation. The Mishnah then describes the process by which the new month is determined, mixing current practice with memories of what was done while the Temple stood. The structure of the Mishnah here then shifts by association to a discussion of who is qualified to serve as a witness. At 1:7 there are blanket statements about who is ineligible for which no proof is provided, except the analogy to women being ineligible to witness without any reason being offered, raising the question of whether this is a halakhic argument or an extra-halakhic argument based on contemporary social conventions. Chapter two contains a nice image of a chain of fires signaling the new month originating in Jeruslam and culminating beyond Syria on the way to Mesopotamia. While this image of bonfires is still found each year on Lag Baomer (this week in fact), it is inconceivable that the fire from the Mount of Olives could have been seen at the next location, 27 miles away and from there to Caesaria on the coast. The chapter ends with the famous story of Rabban Gamaliel, the Patriarch, humiliating R. Joshua ben Chananiah forcing him to violate the Day of Atonment that he had calculated differently than the Patriarch, a classic tale showing how the rabbis asserted their authority. Chapter four deals with the issue of blowing the shofar on Rosh Hashanah that fell on the Sabbath. Although most Jews take such a limitation for granted, the Mishnah offers a range of rabbinic opinions and reasons.

The Talmuds

At the same time the Mishnah was codified, the teachings of the Tanaim also were codified, sometimes with greater commentary, sometimes with less, if not omitted altogether, in the Tosefta. The Tosefta, however, was not the final act of codification or commentary of tanaitic materials. Other tanaitic teachers were preserved and presented in the Gemara, the subsequent rabbinic commentary on the Mishnah. Here these teachings are called beraitot and one of the main tasks of the Amoraim, the later generations of rabbinic authorities both in Palestine and Babylonia, was to reconcile beraitot with Mishnaic teachings, serving both as the basis of a further codification of these materials as well as the core of a new level of commentary. Two Gemaras were ultimately produced, one in about the fifth century in Palestine, usually called the Jerusalem Talmud, but, given that after the Bar Kokhba revolt of 132-135 Jews did not live in Jerusalem but the Galilee, such an epithet is hardly accurate. The other was produced in about the sixth century in the rabbinic academies of Babylonia and called the Babylonian Talmud.

The two talmuds are both vast and hardly organized in a systematic manner. Discrete discussions, called sugyot, often follow identifiable patterns of logic and organization, but the works themselves are repetitions, contradictory as the discussion moves from legal to legendary matters based on free association. Written in a combination of Hebrew and Aramaic with no punctuation the study of Talmud was not one that could be entered freely or casually. This created the situation where study of the Talmud was the province of those initiated into it and the meaning of the texts became what they attributed to them, what modern literary critics would call a hermeneutical circle, a situation where the borders of the text and its explanation became totally blurred.

In recent years several advances have been made to liberate Talmud study. Fundamental to such a change in perspective has been the attempt by non-traditional Jews to study Talmud, not only at liberal rabbinic schools but also in the university setting which has also attracted non-Jewish scholars not necessarily committed to the traditional meaning attributed to the text. In addition, dictionaries and grammars of Aramaic have been developed to enable free inquiry into the texts. Other aids include dictionaries of abbreviations and talmudic concepts and modern translations and computer programs which enable the text to be searched freely by those without years of training. So there is now the Soncino Talmud providing an English translation both in paper and on CD-ROM and the Steinsaltz translation into modern Hebrew and English. Of particular interest are places where the two provide different readings and punctuation, often a question mark instead of an exclamation mark. A pioneer in the attempt to provide modern readers with direct access to rabbinic texts in their own terms is Jacob Neusner. His voluminous writings include translations and explications of midrashic texts as well as the Babylonian and Palestinian Talmuds. He and his students represent major advances in the introduction of the study of the Talmud into the canons of western academic discourse.

***Babylonian Talmud, Berakhot 30b-31a (Chapter 5) (Leviant, pp. 97-107) This extract from the Soncino Talmud is unfortunately missing the notes at the bottom of each page which make it much easier to follow the argument. Nevertheless, the text, a discussion of prayer, begins with the Mishnah about establishing a proper spiritual framework for prayer. The Gemara then launches into a discussion where the attempt is made to root the mishnaic teachings to biblical texts. As part of the discussion about establishing the proper mental framework for prayer, an incident is mentioned in which rabbis were getting too merry at a wedding so one of them smashed a valuable cup to instill a more serious mood, perhaps the talmudic basis for the continued custom of smashing a glass at a wedding (now often a lightbulb). After further discussions about the proper mood for prayer drawn from both beraitot and amoraic teachings, the discussion turns to the story in 1 Samuel about Hannah's appearance in the sanctuary to pray for a son. For the rabbis of the Talmud, Hannah serves as a model for prayer, a paradoxical position given that usually the rabbis do not even require that a woman prays or allow a married woman to be alone with another man.

Geonic Responsa

The codification of the Talmud provided a platform for further commentators. This process began in Babylonia with an institution known as Sheelot uteshuvot, Respona, Questions and Answers, or pesakim, decisions. Jews, usually rabbis, from around the world wrote to the rabbis of the academies to clarify various points of explanation about the newly codified text. This vehicle of commentary has preserved as a way for rabbis to provide both commentary on matters of Jewish law as well as to codify various texts which apply to a particular issue.

***A responsum by Sherira Gaon (906-1006), called Iggeret Rav Sherira Gaon, provides a version of the history of rabbinic Judaism, tracing developments through Midrash, Mishnah, Tosefta, beraitot, and Talmud, addressed to Jacob ben Nissim ben Shahin of Kairouan in 987 (Leviant, pp. 274-278). The fundamental problem in the question is that most of the rabbis named in the Mishnah are relatively late, what is the basis for its antiquity. The answer is quite fantastic: earlier rabbis are not mentioned by name in rabbinic texts because they did not disagree with one another. This answer solves not only the basic problem of the antiquity of the rabbinic corpus, but asserts a unified, monolithic quality. Indeed, following the answer further, Sherira asserts that the entire Talmud was already known at the time of the destruction of the Temple in the year 70, when Yohanan be Zakkai established his school at Yavneh. Such a notion of a pre-existent corpus of rabbinic knowledge undermines the notion of historical development based on controversy.

Talmudic Commentary

Also the process of commentary on the talmudic text continued during the middle ages. The foremost commentator was the French Rashi, whose exposition of the text fills one side of the margins of the printed Talmud. The other side of the margins of the printed Talmud are filled by Rashi's descendents the tosafists, or baalei tosafot. Their commentaries, some of the most difficult texts in Jewish literature, are devoted to reconciling differences between Rashi and the text of the Talmud and the text of the Talmud and contemporary Jewish practice. Thus the paradox is created that the tosafists have gotten a bad reputation because of their exercises in pilpul, causistry, literally meaning pepper, but in order to understand subsequent developments in the discussion of Jewish law it is necessary to understand the tosafists. In fact, when later rabbis discuss the Talmud it is not the Talmud itself that they are referring to but as it was understood by the tosafists.

This phenomenon in which subsequent levels of understanding replaced the meaning of the text itself is found regularly in studies of the Mishnah and the Talmud. For example, in the Soncino English translation, the notes on the bottom of the page which look like the literal glosses by the translators are in fact usually summaries of Rashi and tosafists. Similarly in subsequent Jewish commentaries on the Mishnah such as Ovadia Bartinoro, whose travel accounts we have read, and the Blackman translation of the Mishnah regularly base their explanations on the traditional understanding and not the texts themselves. The hermeneutical circle reached its fullest and most frozen stage of development in the Art Scroll series, see the article by B. Barry Levy in Tradition 19 (1981) and the subsequent waves of letters.

Early Codes of Jewish Law

Commentary on the Gemara became the object for subsequent codifications of Jewish law. This process began early in Babylonia under the leadership of the geonim, literally geniuses, the heads of the rabbinic academies, with the production of early codes of Jewish law such as the Sheiltot of Aha of Shabha (680-752), which significantly maintains the word for questions, sheelot, in its title. This work is the first post-talmudic rabbinic text attributed to a specific named author. This Aramaic work, preserved in many editions in the Cairo Geniza, contains material that antedates and contradicts the Talmud, showing the richness of rabbinic material as illuminated by the gaps between the codifcatory and the commentary processes. The principle of organization of this code was to connect the rabbinic material to verses in the Bible, often emphasizing an ethical component, presenting what seems to have been a collection of sermons delivered by Amoraim or Geonim. Saadia Gaon (882-942) also produced a code of Jewish law. As the center of Jewish life shifted from Babylonia westward, early code of Jewish law was the precis of the Talmud, Sefer Hahalakhot or Halakhot Rabbati, made by Rabbi Isaac Alfasi, the Rif (1013-1103) of Fez in northern Africa, sometimes identified as the last gaon.. In this work Alfasi prepared a code of Talmudic law still practiced and commentary from various geonim. Subsequently some of the leading rabbis wrote commentaries on it, creating a work central to all future codes and commentaries of Jewish law produced in both the Islamic and Christian worlds. Another early code of Jewish law was produced by Samuel Halevi ibn Nagrela, Shmuel Hanagid (982/993-1056), a Jewish politician, soldier, and Hebrew poet from Islamic Spain, Sefer Hilkheta Gavrata.

Maimonides' Mishneh Torah

One of the major codes of Jewish law was produced by Maimonides, Rambam (1135-1204), born in Islamic Spain, passed through the land of Israel, and spent most of his life in Egypt, the Mishneh Torah, an allusion to Deuteronomy 34:12, or the Yad Hazakah, the Mighty Hand, based on the fact that the numerical value for hand, 14, is the number of books in his code. He began this Hebrew work in 1168 and completed it in about 1178. Isidore Twersky, the world's leading scholar on Maimonides' code identified five aspects of the Mishneh Torah: 1) Maimonides used a clear mishnaic Hebrew style; 2) Maimonides attempted his own system of classification of Jewish law; 3) Although the format is codificatory, the contents at times includes commentary, interpretation, exegesis, explanations, and, contrary to conventional wisdom, even references to his sources; 4) Maimonides codified all laws from rabbinic Judaism, whether they could be practiced in his day or not, including laws based on the Temple, the Holy Land, and the Messiah; 5) Maimonides fused Jewish law with discussions of Jewish philosophy, theology, and ethics. The books of the MT include: Sefer Hamada, on belief; Sefer Ahavah, on prayer and ritual; Sefer Zemanim, on holidays; Sever Nashim, on women; Sefer Kedushah on forbidden unions, foods, and proselytes; Sefer Haflaah, on vows and oaths; Sefer Zeraim, on agriculture, including tithes, offerings, sabbatical years; Sefer Avodah, on Temple sacrifice; Sefer Taharah, on the uncleanliness of corpses, leprosy, food, and women; Sefer Nezikim, on civil damages and murder; Sefer Kinyan, on commercial law and slavery; Sefer Mishpatim, on employers, debtors, and inheritance; Sefer Shoftim, on the Sanhedrin, testimony, mourning, and Jewish kings, and wars.

Maimonides' code was opposed, especially in Babylonia, partially because the codification process in various diasporan centers represented a diminution of their authority and partially because it omitted the back and forth of the talmudic argumentation without even mentioning most talmudic sources, further removing Babylonian influence from diasporan Jewish life. In addition, Rabbi Abraham ben David of Posquieres, the Rabad (1125-1198), wrote strident attacks on many of Maimonides' positions.

Subsequent generations of rabbinic scholars devoted their energies to identifying Maimonides's sources and commenting on his conclusions, including works such as Moses of Coucy's Sefer Mitzvot Gadol (Semag, 1250), Isaac of Corbeil, Sefer Mitzvot Katan (Samak, 1277), and Aaron Halevi or Barcelona, Sefer Ha-Hinnukh (1302-1308). The published editions of the MT now have an elaborate exegetical apparatus that reflects these labors, and include the Rabad's critical comments as well. Maimonides' code was crucial for the development of subsequent codes of Jewish law, a phenomenon which prevented his code from becoming the authoritative work he had hoped. The simplicity and beauty of Maimonides' Hebrew makes his work an enduring masterpiece for every student of Hebrew, especially since many editions are printed in large clear text with vowels. However, the entire MT has been translated into English and published in the Yale Judaica Series, with a thorough, but unmarked, critical apparatus in the back of each volume. Twersky's Introduction to the code of Maimonides was also published in this series.

***Mishneh Torah, Book of Knowledge, Laws Concerning the Study of the Torah, chapters 1-2 (Leviant, pp. 293-296)

Matters of gender where not introduced to the study of Jewish texts by feminists, but were of central concern from their inception. Here Maimonides, following talmudic discussions, dismisses the obligation of women, slaves, and minors to study Torah. The biblical proof text offered (Deut. 11:19), especially as translated here, refers to teaching children and not specifically to teaching sons. The position against teaching the young seems bizarre because it is traditionally children who are educated. Indeed, commentaries on this passage often omit the word minors for this reason. Maimonides himself elaborates on the need to teach young children. His educational system is based upon physical chastisement (2:2), a feature that modern Jews don't often assimilate when bewailing the deterioration of education, not often realizing that the voluntary and less coercive aspects may affect the outcomes.

***Book of Knowledge, Laws Relating to Moral Dispositions and to Ethical Conduct (Leviant, pp. 296-305, NB Leviant's order of the tractates does not follow the order of most editions of Sefer Hamada in the Mishneh Torah.)

The Hebrew title of this tractate also in the Book of Knowledge, Sefer Hamada, is Hilkhot Deot, literally something like the laws of attitudes, discernment in one translation, but the modern translator felt the urge to modify this simple Hebrew not once but twice with adjectives that would heighten the ethical and moral nature of the tractate. This tractate deals with matters beyond simple halakhic practice such as ethical, philosophical, and even medical approaches to good, moderate living. Here is the famous Fustat Diet in which Maimonides guided medieval Jews through the ways to eat right and keep fit. 6:3 raises some serious ethical concerns. On the one hand Maimonides reads Leviticus 19:18, "You shall love your neighbor as yourself," to mean only other Jews. In 6:4, contrary to the conventional wisdom, including a recent bout in one of my classes, Maimonides encourages welcome of proselytes to Judaism, who then can also be loved. But the avoidance of proselytes is a modern construction of apologetic Jews.

Medieval Responsa

During the Middle Ages in both Ashkenazic, Sephardic, and Eastern Jewish communities rabbis continued to write responsa. Often dealing with new situations, they provided the author with an opportunity to examine the various materials available in Jewish law. The names in the published version are usually changed to anonymous names of the tribes, especially Reuven and Shimon, to hide the actual circumstances and to preserve on the halakhic development.

***Responsa, Leviant, pp. 278-290, 305-308, 540-543

Rabbenu Gershom ben Judah (960-1040) thus asserted that rabbis deserved special economic advantages in their communities.

Rabbi Isaac Alfasi, in discussing a contractual matter between a teacher and a client, invoked Zephania 3:12, "The remnant of Israel will not do wrong nor speak falsehood . . ." an appeal to conscience and decency.

Rabbi Jacob Tam (1100-1171) issued a famous responsum according to which divorces granted could not then be revoked on trivial grounds, a major boon to women who were often tied to apostate and recalcitrant husbands. In the course of his responsum he mentions the rate of divorces from apostates.

Maimonides discusses a proselyte to Judaism and the question of whether he can refer to the people of Israel as his ancestors. Further demonstration of the arrival of proselytes at the gates of Israel during the middle ages.

Leon Modena offers a tour de force to permit Jews to engage in music, something that he himself did with regularity.

The Tur

Jacob ben Asher (1280-1340), a German rabbi, the son of the Rosh, Rabbi Asher ben Yehiel (d. 1328), author of Piskei Ha-Rosh, a code that still followed the order of the Talmud, who had migrated to Spain, prepared a major code of Jewish law, the Arba'ah Turim, the four rows (of the high priests ephod), the Tur, which exhaustively covered all areas of law which were currently operative in his day, but which did not give fully the relevant talmudic sources or the names of the later authorities upon whom he relied. Often in connection with a law he quoted many conflicting authorities without establishing which one was to be followed. First published in 1475, the Tur was the second Hebrew book to be printed. It is divided into four parts, established the basic categories of Jewish law till today:

  1. Orakh Hayyim-"the way of life," dealing with day to day conduct, prayer, blessings, Sabbath, festivals, fasts, and holidays.

  2. Yoreh De'ah-"the teacher of knowledge," treating diet, ritual purity, circumcision, visiting the sick, mourning, interest, agriculture, tithes, and charity.

  3. Even ha-Ezer-"the stone of help," concerned with family, marriage, and divorce.

  4. Hoshen Mishpat-"the shield of judgment," covering civil law, criminal law, courts, judges, evidence, loans, partnerships, property, theft, and robbery.

Beit Yosef

The Tur served as the basis of many commentaries, the most famous of which was the Beit Yosef of Joseph Caro (1488-1575), a leading rabbinic authority and kabbalist. Sephardic in origin, after living part of his life in the post-expulsion Iberian peninsular, perhaps as a Christian, Caro spend part of his life in Turkey before moving to Safed in 1536. It was in Turkey where he devoted much of his early study to the Mishnah which, after a long period of neglect, was becoming increasingly important for Jews. In Turkey he began his magnum opus, Beit Yosef, a commentary on the Tur. Caro's commentary took twenty years to complete and another twelve to edit. It was finally published between 1550 and 1558. The purpose of Beit Yosef was to investigate thoroughly the sources of every practical law, beginning with its talmudic origins, proceeding through every stage of its development, mentioning every divergent view, and finally, trying to establish what the practice should be. Caro often reached these decisions by following two out of the three major figures in the codification of Jewish law: Alfasi, Mamonides, on whose work he wrote his own commentary, Kesef Mishneh, and the Rosh. However, he also regularly consulted later authorities as well as local customs and the Zohar, the central text of Jewish mysticism.

Shulhan Arukh

Caro is most remembered for his Shulhan Arukh, a Set Table, a code based on his own commentary, Beit Yosef, thus the dialectical movement of codification and commentary are manifested in one and the same person. Like the Mishnah, the Shulhan Arukh was compiled in the Galilee. Caro intended his work to be an aid for established scholars as well as for young students. Originally it was published without the voluminous commentaries that surround it today, the SA was a brief work published in what could be called pocket editions. It was originally divided into thirty sections so that it could be studied on a daily basis for a month. In the SA Caro eliminated much of the midrashic, ethical, theoretical, ideological, theological, philosophical, and kabbalistic aspects of the Tur and Beit Yosef. The SA is an integrated creation which is written in a clear and beautiful Hebrew style The work was first published in Venice in 1567. Most editions of the SA contain not only voluminous commentary but embedded within the text itself are the additions of Moses Isserles (1525-1572), the Remah, who adjusted the SA to Ashkenazic practice.

The Shulhan Arukh, seen by many Jews in the modern period as the sole legitimate representative of The Halakhah, has become a lightening rod for reactions towards Jewish law. Among traditional Jews the SA is seen as the embodiment of all Jewish law and the divine presence itself. Among Conservative Jews, such as Solomon Schechter, it is "still consulted with profit," although, returning to last weeks concerns about Jewish ethics, it is "disfigured by a few paragraphs expressing views incompatible with our present notions of tolerance." Schecter then introduces an individualistic notion of meta-halakhic ethics which seems to undermine the whole rational for a code of Jewish law about which he is so enthusiastic: "But there the discretion of the Rabbi comes in. By tacit consent these are considered obsolete by all Jewish students." It was among Reform rabbis that the SA was subjected to the most abuse. They described it as "petrified," associating "shulhan-arukhism" with the era of "ghettoism" and and declared it of no significance to them.

The Shulhan Arukh, however, cannot be read out of the context of the development of halakhic literature and if I may be so bold as to suggest that those Jews who like it the least may need it the most. In other words, the attempt to find a Jewish values cannot be based entirely on halakhic texts but nor can it be divorced from them.

***Shulhan Arukh, Yoreh Deah, The Law of Honoring Parents/Charity, no. 240- 252(Leviant, pp. 523-534)

The text here, offering extreme expressions of parental honor, certainly moves beyond behavioristic goals into trying to shape the attitude of the participants. The detailed laws provide almost a philosophical and ethical treatise on the relations between parents and children. In line with earlier medieval enactments, rabbis are endowed with all sorts of communal perks and benefits. As we saw in Maimonides, learning and discipline at school were enhanced by means of corporeal punishment.


In conclusion, one of the features of the halakhic system is that there are no consistent rules for creating and testing various applications, although many are partially and sometimes invoked. Occasionally the principle hilkhata kebatra, the law follows the latest authority, is found; but at other times there is the assumption that the earlier authorities carried greater weight and that the later ones are simply gnats on the shoulders of giants. Other times generalizations such as time-bound commandments will be invoked, especially in matters related to women in Jewish law, which will require a separate lecture to develop all the nuances, but such a principle is betrayed by examples and critiqued by other authorities. Thus both the practicing Jew and the social historian are confronted by a lack of binding authority and an inexhaustible ability of rabbis to produce sources which support their views and to omit those which do not.

One of the best descriptions I have found of halakha comes from a new book , Pesah Dorot by Yosef Tabori. On p. 28 he writes: "It is possible to liken it [halakha] to a river that its waters are constantly flowing but which nevertheless remains the same river; but more correctly it is like an individual whose cells are constantly changing but he remains the same person."





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30 Aug 2005 / 25 Av 5765 0