Out of Bounds: Part 4--Medieval Changes

By Jonathan Seidel

The medieval era had its share of social influences that advocated innovation due to external pressures whether economically or politically. By analysing religious adversity to these challenges responsa literature effectively answered the call. 

                                                              Innovative Revolution

The rabbinic age proceeded to elapse new social periods. Experiencing new waves of thought. Philosophically the rabbis attempted to cope with the current issues. Saadia Goan, Maimonides, R’ Jeduda Halevi, Rabbenu Bahya ibn Paquda among others1. They grappled with the intellectual parameters of their time. Defending Judaism from its enemies. Arguing dogmatically for authenticity. Proposing faith articles in opposition to claims of formal legalism. This trend was not too common nor did it last until the modern age2. Jews were able to avoid academia but not social issues. As members of foreign societies they had to adapt to the rules of the land. Even required to follow the laws as long if they did not oppose the Torah itself3. This created a dual identity. They were Jews and citizens.

The Geonic era succeeded the Talmud’s redaction but did not accept its texts as universally binding. The redaction did not spur interest in further written documentation. They advocated for ideal oral transmission. Practice was mimicked by teachers. It was the transferred memory of the community, not the Talmudic text that established the law. The goenim ruled against the talmud’s conclusion to not save inscripted texts from conflagration4. They ignored amoriac conclusions by reevaluating the Mishnah. R’ Samuel ben Hofni innovatively deviated from tamudic deductions to better apply the law to his constituents5. They perceived themselves on equal footing to the amorian, unafraid to challenge them6. The geonim wrote responsum instead of codes, replying to the needs of the community in light of increased interaction with Muslim neighbours. They were accepted, capturing the social significance of the era7. Custom was critically acclaimed and legislation accorded with popular will8.

 The main issue in the Middle Ages was religious domination. Each country the Jews settled in was either Christian or Muslim. Due to their difference and refusal to convert Jews experienced all sorts of issues from racial attacks, book and synagogue burnings, blood libels to the crusades and inquisition9. Jews fared better in Muslim countries but still faced injustice. Nevertheless the Jew, the timeless being, continued to participate in society. In certain societies professions were limited due to social status based on denominations. Jews were traders and money lenders. This caused all sorts of accusations and tragedies. In the feudal system unless the king gave the Jews land they were forbidden from owning any. This put them under the king’s care but also his dominion so if he wished to rid them he could. Jews traveled all over Europe. There were Jews in Portugal who prospered owning vineyards, in France under Carolingian rule they were given privileges. Early on in England the Jews money lending was admired but as time wore on their christian neighbours’ jealousy rose rapidly destroying synagogues and murdering many. This all culminated in the crusades. 

Jews were successful in certain countries under strict limited regulations but these systems required innovation to survive and prosper10. In contrast to the Sephardic conservatives, the french rabbis in dialectical fashion continued to innovate11. Legislating leniencies with regards to non-Jewish service12, pawnbroking13, and gentile-assisted wine14. Rid remarked he would not adhere to any opinion he disagreed with no matter who suggested it15. Rash miSanz argued that wisdom is revealed to later generations enabling them to ‘outsmart’ predecessors16. Raban states a student can judge his teacher’s positions since he gave the reason17. Early on Tosafot made some radical changes dissenting from canonised Talmudic law: utilising the term “nowadays”, Tosafot extinguished the laws of washing after the meal (Hullin 105a) and permitted clapping (Beitzah 30a)18. R’ Tam reversed the traditional custom of forcing a husband to divorce his wife if she finds him repugnant19. R’ Migash permitted opposition to gaonic policies20. Maimonides’ was the maverick in the Sephardi camp, liberalising certain norms especially in commercial law for merchant standards21. R’ Landau wrote a responsum advocating for socio-economic aid to the Jew22, Meiri changed the status of christians as non-idolaters23, prohibition of suicide post-crusades24, as well as wine25. 

The Talmud was not the sole code of scrutiny. By the early Achronim era, the Talmud’s authority was paramount and disagreeing with earlier rabbis was not recommended, some still did. R’ Karo, the author of the prominently accepted work the Shulchan Aruch26 overturned the rulings of his predecessors. He may have only subscribed to the majority opinions but he was willing to disagree. R’ Karo prioritises the poor of Israel over one’s native kin (SA YD 251:3) against the opinion of Maimonides and the Tur. Despite its earlier precedent in the Sifre (Sifre Deuteronomy 116) and then furthered by R’ Councy27 and R’ Meltz28 does not only deviate from his majority rule, it also seems to have some sociological influence given his geographical location29. This ruling would enable growth in the land of Israel. Alternatively, his mystic theology may play a role in his legal conclusions30. He emends Tur’s decision, adding if a conditional promise was made to give charity, he must give (SA YD 258:10) and also one may change mind about giving a big gift but not a small one (SA HM 243:2). A personal philosophy, a “biassed” account enforced legal changes31. The totality of being opposes narrow implications.  

Prof. Zohar analyses what he calls “teleological decision-making” similar to non-formalism32. He cites multiple examples of early modern authorities who took into account the prevailing considerations of the situation at hand. In the pre-modern era, R’ Eliyahu Mani ruled against the standard position of public domain because of the Bombay Jews custom to carry handkerchiefs out. R’ Rafael Aharon Ben Shim’on argued that in spite of the rising suicide rate the dead should not be buried in ordinary cemetaries. R’ Messas posed two radical innovations permitting Jews to drink wine handled by non-Jews33 and allowing women to uncover their hair34. Social realities did impact decisions. As pious and honest as adjudicators are in formulating conclusions it seems inherently there will be unconscious bias to persevere35. 

The responsa were written to solve present issues including social ones. Prof. Chaim Saiman has asserted that today we lack the creativity of the earlier rabbinic figures36. In trying times for Jews, fearful for survival, the empathetic rabbis found generally creative leniencies to adapt to the time. Many would presume this was a difficult time (Horaat Shaah) so certain methods were allowed but generally we should not be looking for leniences. I would agree but responding to social reality either leniently or stringently is a honest deduction of legality37. The innovative interpretations tend to be lenient but strict judgement also existed in the fold. Secondly, being lenient is not wrong. There is to be lenient and where to be stringent (Tos. Yevamot 1:13).

 It seems today not only is there a stringent inclination but leniency is perceived as inferior38. If you are stricter you are more religious. This is nonsense (utter rubbish). Sometimes being austere is not following the law or even a perversion of it39. More religious is more passion and concentration. Someone could be more religious even if they follow some leniencies yet obey genuinely and joyfully. Liberality is not inferior. The rabbis did reduce the burden but that does not mean it was a temporary induction. It was a legal necessity for its development. Halakha does not exist in the cosmos; it is implemented on earth (Deuteronomy 30:12). We are responsible for its actualisation. The rabbis must do what is needed to enable continuity and proper servitude. A creative innovation is ingrained in the culture. Leniencies for economic purposes was not a one time deal but an eternal conception. That does not mean there are never temporal bans or innovations. Yet polygamy was intended to be everlasting40. Even debating conclusions such as smoking and showering on the festivals. Each sage wished to present his argument as the accepted reality.

Endnotes

1. Saadia Goan wrote The Book of Doctrines and Beliefs, Maimonides The Guide to the Perplexed, R’ Judah Halevi wrote The Kuzari, and Rabbenu Bahya wrote Duties of the Heart.^↩

2. The Rashba infamously banned learning  philosophy permitting only Maimonidean philosophical study due to its dangers of losing Jews. H. Z. Dimitrovsky, ed. Teshubot HaRishba, Vol. 2 (Jerusalem: Mossad Harav Kook, 1990) I, Pt. I, pg. 361.^↩

3. Menachem Lorberbaum, ed. The Jewish Political Tradition: Volume 1 – Authority New Haven: Yale University Press, 2000. pp. 431-434.^↩

4. Ozar Ha-geonim: Teshuvot Geone Bavel u-Ferushehem ‘al pi Seder ha-Talmud, ed. Binyamin Levin, 13 vols Haifa and Jerusalem: Hebrew University, 1928-43, Shabbat responsa 310.^↩

5. David Sklare, Samuel ben Hofni Gaon and His Cultural World, Leiden: Brill, 1996 pg. 94.^↩

6. Robert Brody, The Geonim of Babylonia and the Shaping of Medieval Jewish Culture, New Haven, Connecticut: Yale University Press, 1998, pp. 149-150.^↩

7. Berachyahu Lifschitz, “Ma’amada ha-mishpati shel sifrut ha-she-elot ve-ha-teshuvot” Shenaton ha-Mishpat ha-Ivri 9-10, pg. 287.^↩

8. Gideon Libson, “Halakhic Reality in The Geonic Period: Taqqanah, Minhag, Tradition and Consensus” The Jews of Medeival Islam: Community Sopciety and identity ed. Daniel Frank Leiden: Brill, 1995, pg. 74.^↩

9. Fried Johannes,The Middle Ages. Cambridge, Massachusetts: Harvard University Press, 2015, pp. 287-289.^↩

10. Steven Katz on Jewish Life in Medieval Europe See: Louis Jacobs, “Historical Thinking in the Post-Talmudic Halakhah” History and Theory 27:4.^↩

11. See: Ephraim Kanarfogel, “Tradition and Progress in Medieval Ashkenaz” Jewish History 14 pp. 285-314. Tosafot had two ways of reconciling social conditions with dialectical reasoning: 1. Conditions have changed since the Talmud 2. Reinterpreting to eliminate the issue (R’ Tam).^↩

12. Jacob Katz, The Shabbes Goy: A Study in Halakhic Flexibility, trans. Yoel Lerner (Philadelphia: The Jewish Publication Society, 1989) pp. 43-56 and “Rabbinic Attitudes Toward Non-Observance in the Medieval Period,” Jewish Tra- dition and the Non-traditional Jew, ed. Jacob Schacter (Montvale, 1992), pp. 30–35.^↩

13. Haym Soloveitchik, Halakhah, Kalkakah ve-Dimmui ’Azmi (Jerusalem, 1985), pp. 97–119 and Israel Ta-Shma, Minhag Ashkenaz ha-Qadmon (Jerusalem, 1992), pp. 103–105.^↩

14. Haym Soloveitchik, “Can Halakhic Texts Talk History?” AJS Review 3 (1979), pp. 153–196.^↩

15. R. Isaiah di Trani, Teshuvot HaRid pp. 301-302.^↩

16. R. Meir ben Todros ha-Levi (Ramah) Abulafia, Kit’ab al Rasa’il, ed. Jehiel Brill (Paris, 1871) pp. 131-132.^↩

17. R. Eliezer ben Nathan, Sefer Raban section 6.^↩

18. Lau, The Sages (Vol II) pp. 60-64. The French authorities argued with one another constantly. This methodology ran counter to their Sephardi counterparts allowing a student to argue with his teacher. It was an equalised discussion. Sephardi authorities displayed distance between student and teacher forbidding a student to question his teacher. Ashkenazim wrote commentaries and Sephardim wrote legal codes. ^↩

19. R. Asher ben Yechiel, Sefer HaYashar responsa #24. See: Unilateral Divorce against the Husband’s Will.^↩

20. Shmuel Shilo, “Yahaso shel ha-Ri Migash li-Geonim,” Sinai 66 (1970), pp. 263– 267. Prof. Ta-Shma rejects this view. Israel Ta-Shma, “Yezirato ha-Sifrutit shel Rabbenu Yosef ha-Levi,”Qiryat Sefer 46 pp. 143–146; 547–550. Yet, there are cases where Ri Migash does disagree with the gaonim.^↩

21. Mark R. Cohen, Maimonides and the Merchants, University of Pennsylvania Press, 2017, pp. 147-148.^↩

22. R. Bezalel Landau, “Taqqanot neged motarot”, Niv ha-midrashiyah (1971), pp. 213-226.^↩

23. R. Menachem Meiri, (Beit Habechirah Avodah Zarah 26a).^↩

24. Haym Soloveitchik, 1987. “Religious Law and Change: The Medieval Ashkenazic Example.” AJS Review 12: 205–221.^↩

25. See: Haym Soloveitchik, 2003. Principles and Pressures: Jewish Trade in Gentile Wine in the Middle Ages [Hebrew]. Tel Aviv: Am Oved. Tosafot quotes Rashi (AZ 57b) permitting the benefit of gentile-touched wine because it is not used for idolatry anymore but not to be consumed. Shach states only to get benefit if will cost financial loss (124:71) but the Rema permitted a “ger toshav” touch to be meaningless (what this entails is disputable) even to judge favourably (“Melamed Zikut”) those who drink wine produced by non-Jews (Shu’t HaRama 124).^↩

26. Joseph Davis, “The Reception of the Shulchan Arukh and the Formation of Ashkenazic Jewish Identity,” AJS Review 36 pp. 251-76.^↩

27. Sefer Mitzvot Gadol, ed. Alter Pinhas Farber (n.p., 1990-91), pg. 381.^↩

28. Sefer Yereim, ed. A. A. Schiff (Vilna, 1892; repr. Israel; n.p.; n.d.), pg. 156.^↩

29. See: Alyssa Gray, “Poverty and Community in R. Joseph Karo’s Shulḥan Arukh: ‘Law and Literature’ and Halakhic History” Dine Israel 29 pg. 67. Prof Gray advises to look at the Shulchan Aruch as code and work of legal and literary interpretations (88). I would further note that it may act as a foundational code but it need not be literally obeyed as it itself is part of a larger chain demonstrated by its deviation ^↩

30. Prof. Gray does point to an example but does believe there are theological underpinnings (n. 29). Jeffrey R. Woolf, “La-Avodat Bor’o: The Body in the Shulhan Arukh of R. Joseph Caro,” in The Jewish Body: Corporeality, Society, and Identity in the Renaissance and Early Modern Period, eds. Maria Diemling and Giuseppe Veltri (Leiden and Boston: Brill, 2009) pg. 159.^↩

31. R’ Karo may have implemented these conclusions from the pluralistic history of legal opinions, yet not only does this argue that precedent is absent from halakhic transmission, it also concurs he intentionally selected them for his time period. One could argue that one can choose a prior opinion from the many but cannot accept a non-traditional one or be accepted by the masses. For example: one can accept the moderate opinion of relying on an accepted posek. This position has two shortcomings. Firstly, any post-talmudic opinion was novel itself and secondly they were interpreting it in light of social reality. An opinion is only valid by its universal acceptance is ahistorical. The absence of the high court has ceased legal uniformity. An opinion was novel socio-historically. A variety of opinions are authoritative from their pious deduction and their prior acceptance. Today, the women rabbis issue is rebuked heavily but similar to some of Tosafot’s opinions they were alterations due to social change.^↩

32. Zvi Zohar, “Teleological Decision Making In Halakhah: Empirical Examples and General Examples” ‘Wisdom and Understanding’: Studies in Honour of Bernard Jackson pp. 331-362.^↩  

33. R. Joseph Messas, (Otzar ha-Mikhtavim, vol. 1, nos. 454, 462, Mayim Hayyim, vol. 2, Yoreh Deah, no. 66).^↩

34. Ibid, (Otzar ha-Mikhtavim, vol. 3, no. 1884, Mayim Hayyim, vol. 2, Orah Hayyim no. 110). Marc Shaprio has written a valiant essay regarding his approach titled Rabbi Joseph Messas. Although the majority do not necessarily abide by his rulings nor have heard his name, his genuine style and respectable nature are to be recognised. Prof. Michael Broyde has written an extensive essay on women and hair covering arguing that one may read the texts of the rishonim and acharonim as understanding the law to be subjective to the times. See: Michael Broyde, “Hair Covering and Jewish Law: Biblical and Objective (Dat Moshe) or Rabbinic and Subjective (Dat Yehudit)” Tradition 42:3. For his final response and message see: Is This Really Dialogue?. The wives’ of R’ Soloveitchik and R’ Shach did not cover their hair. Accordingly, R’ Soloveitchik believed in choosing one’s own halakhic opinions. See: Walter S. Wurzburger, “Rav Joseph B. Soloveitchik as Posek of Post-Modern Orthodoxy” Tradition 29.1 pg. 18. With this, one may rely on the decisions of previous rabbis and uncover hair. In the lengthy comment section of the aforementioned article, a commenter (mycroft on August 15, 2011 at 6:19 am), recounts a story of R’ Soloveitchik who answered a fellow that he had no svara to permit uncovering but since “Gedolei Lita” (leaders of lithuania) permitted he could not prohibit. It is clear the Rav’s position was complex as his students, R’ Herschel Shachter in particular, stated he was adamant about hair covering in a hesped for his teacher in 1993. The complexities continue in his book Nefesh HaRav (1994) pg. 255 and MiPninei HaRav (2001) pg. 210.^↩

35. Adiel Schremer, “Toward Critical Halakhic Studies” The Tikvah Center For Law and Jewish Civilisation. 2010. Schremer notes there is conscious bias pp. 31-32.^↩

36. The Paths Not Taken » Mosaic. The following reviews and responses to Rabbi Berman’s book Ani Ma’amin are well worth reading.^↩

37. Ibid. Genuine recognition of reality and attempting to deal with the current issues. It is not a pinch hitter but a designated hitter (the former temporarily participates while the latter is a full time player). The metaphor displays the role of enactments as signing a player/law onto the roster to be an integral part of the team.^↩

38. Chaim Waxman, “Towards a Sociology of Psak” Tradition 25.3 pp. 15-17. The scary aspect is the truth of the situation. People believe acting stringently is thereby more authentic. To be meticulous is one thing but to be so inflexible is purging proper legal conduct. See: Daniel Sperber, On How to Lean toward Leniency: Halakhic Methodology for the Posek.^↩

39. Unyielding and inflexibility may alienate one from the law or create an entirely new one. As R’ Cherlow pointed out, excessive stringency is impractical and dangerous. See: Yuval Cherlow, “Halakhah U-Madron Chalaklak,” Tzohar 23 pp. 40-41.^↩

40. This was one of the many enactments (Takkanot) in the mediaeval era. Others were forbidding divorcing a woman against her will, and the controversial rebellious wife. Both of these cases had strong implications. For more examples see: Halakhic Decisions on Family Matters in Medieval Jewish Society. Interestingly, with regards to polygamy Prof. Bernard Lewis points out, it is not shocking that it was the Ashkenazi communities who outlawed it, while the Sephardim retained the practice given the social surroundings. The former resided in Christain lands where polygamy was forbidden but the latter under Islamic rule were permitted. See: Bernard Lewis The Jews of Islam (Princeton University Press, 1987) pg. 82. Additionally, this is the main thrust of R’ Yosef’s argument against R’ Goren to grant a marriage permit to Mr. Biton, allowing him to marry a second wife. He objects to R’ Goren’s monopolising his Ashkenazic philosophy with disregard for Sephardic tradition. See: Amihai Radzyner, “Halakhah, law and worldview: Chief Rabbis Goren and Yosef and the Permission to Marry a Second Wife in Israeli Law” Dine Israel 32.^↩