Kotzk Blog: 487) Self-promotion or natural authority? The case of Chavot Yair.

Sunday 8 September 2024

487) Self-promotion or natural authority? The case of Chavot Yair.

Introduction

This article – based extensively on the research by Professor Jay Berkovitz[1] − examines the charismatic image and commanding authority of the Halachic decisor, known as the Posek, whose task is to determine Jewish religious law. In this case, the rabbinic authority, R. Yair Chaim Bacharach (1638–1702) is used as an exemplar of the rise of the modern Posek. He is known as the Chavot Yair after the title of his Responsa by that name, and he was active around the city of Worms in Germany. Responsa is sometimes called Sheilot uTeshovt (questions and answers) or Shut literature). The Chavot Yair was known for his innovation in law and independence of thought.

Attaining authority

What makes someone a Posek? Who determines who becomes a candidate? Obviously, it's not just the acquisition of knowledge because many have a vast knowledge, but they don’t all end up becoming Poskim. And what part does self-promotion play in the process?

According to the sociologist Max Weber, there are three general modes of authority in any society, charismatic, traditional and legal.[2] Berkovitz, interestingly and perhaps surprisingly, maintains that the making of a Posek is primarily determined by charisma, over tradition and legality. If this is correct, then a substantial component in the emergence of the Posek is the effective use of self-promotion:

“[A]rguably, ‘charismatic authority’…contributes most to an elucidation of a poseq, his social role, and his standing in the public eye” (Berkovitz 2012:253).

Additionally, the Posek cannot hope to be effective unless he demonstrates:

“his success in addressing issues in a manner that resonates with the values of his community” (Berkovitz 2012:253).

The reception of the Posek:

“depended so heavily on the public perception of his stature and his expertise, [that] it was therefore natural for poseqim to invest extensive efforts to enhance their reputation within their communities and among their targeted audiences” (Berkovitz 2012:253).

In a previous article, we noted a similar methodology of self-promotion regarding Baalei Shem, where they had to perform ‘successful’ exorcisms if they were to be taken seriously. Similarly:

“By the mid-sixteenth century, it was becoming clear that responsa that were published in the lifetime of a poseq promised to enhance his reputation and stature” (Berkovitz 2012:253).

We have elsewhere noted that in the human story behind the author of the Shulchan Aruch, R. Yosef Karo, for example, his Magid (angelic teacher) allegedly told him to hurry and finish his book before another rabbi, from Krakow (referring to R. Moshe Isserless, the Rama), finishes his book and becomes the dominant author of the Shulchan Aruch instead of him. [See Kotzk Blog: 153) A MYSTICAL SIDE TO R. YOSEF KARO: and Kotzk Blog: 448) R. Yosef Karo’s unusual mystical entries in his diary.]

From the perspective of the Chavot Yair, it seems he needed a boost because his rabbinic contract in Koblenz had been terminated. Also, he failed to succeed his father as the rabbi of Worms. Furthermore, his attempt to publish his work Mekor Chaim – a commentary on the first section of the Shulchan Aruch − had been unsuccessful. This was because another commentary, originally known as Ner Yisrael (and later re-named Magen Avraham) by R. Avraham Gombiner had become one of the most important commentaries on the Shulchan Aruch. These setbacks may have driven him to find rabbinic expression in another field.

Even though he did not get the position of rabbi of Worms, he remained behind in the city, acting as a Dayan (judge) and also a Posek (Halachic decisor). He also works as a moneylender. However, in 1689, he was forced to flee the French attack on Worms and wandered through various communities while trying to find safety. This took a toll on his family and his well-being, and he complained about not having access to books. Eventually in 1699, when the community of Worms was reestablished, he did serve as rabbi of the city, but only for three years until he passed away from ill health.

The Posek is ‘higher’ than the Dayan

In the view of the Chavot Yair, the Posek (decisor) is ‘higher’ than the Dayan (judge). He maintained that Halachic decisors were more learned, and therefore superior to judges. He objected that sometimes judges settled for compromises and felt that cases must rather be adjudicated based on the extensive breadth of the law, and on a thorough understanding of its theories and principles. In this sense he was more of a legal theorist that a legal practitioner.

Responsa literature is principles-based

According to the Chavot Yair, the purpose of Responsa literature is not just to present answers to questions. The purpose of Responsa literature is to expound on the principles of law. He once admonished someone who simply wanted an answer:

“But your request of me is not to explain a difficult text, but rather to issue a practical ruling, and this is per se inappropriate… rather I will place before you a few legal rulings regarding which you may have been in doubt in the case you placed before me, though with great brevity. And it seems correct in my humble opinion not to issue a practical judgment that one could rely on definitively to judge another case” (R. Bacharach, Chavot Yair, no. 106).[3]

Responsa must be founded on morality not just on law

Even when moral implications clashed with the law, the Chavot Yair always placed a premium on morality.

“Bacharach formulated his thinking on the limits of law and its coordination with social norms and moral concerns” (Berkovitz 2012:257).

A man remarrying while his wife is terminally ill

A case in point was when a certain married man wanted to marry another younger woman (a servant in his house) while his wife was terminally ill. The man wanted to sign a formal engagement contract immediately because, he explained, the woman was attractive and educated and if there was no formal agreement, chances were that another man might marry her before his present wife succumbs to her illness. The husband had presented his version of the contract for the Chavot Yair to scrutinise. He did but declared that the contract was weak because the man could back out of it at any time. This would be unfair. The Chavot Yair suggested that other forms of contracts could be better structured, and these would be legal and binding as long as they were done without the sick wife’s knowledge, as it would cause her unbearable grief. However, although possible under law, he considered all this to be:

“outside the order and custom of the world (chutz la-seder u-minhag ha-olam)” (R. Bacharach, Chavot Yair, no. 196).

In other words, there might be legal arrangements that can be made, but such endeavours are essentially immoral.

Agreeing on an economic free-for-all

A group of businessmen had got together and agreed to operate within a system of unrestrained economic boundaries (hasagat gevul). It seems they were quite radical and were prepared to tolerate a business environment allowing for ‘raw market forces,’ like theft and fraud, in the open system they proposed, where the 'best man,' as it were, would win.

The Chavot Yair responded that not only was this proposal against the law of the Torah, but it flouted basic civilized conduct (yishuv olam vehanhagato) (R. Bacharach, Chavot Yair, no. 163).

“Din Torah, as conceived in this case, encompassed a wide range of considerations that were not strictly legal per se. Bacharach therefore rejected the request for a ruling based on legal factors alone” (Berkowitz 2012:257).

Using the advantage of the printed medium to the fullest

The Chavot Yair writes in his Introduction that he decided to publish only 238 responsa out of a body of responsa that exceeded that amount by three times. This indicates how careful (and economical) he was, but more importantly, how concerned he was to craft his image as an important Posek. This, particularly after his failure to publish his Mekor Chaim which was supplanted by R. Gombiner’s popular and definitive Magen Avraham on the Shulchan Aruch:

“Hoping to avoid a repetition of the Meqor Hayyim misfortune, Bacharach hired a copyist and vigorously reworked his responsa in preparation for publication. He was scrupulous about stylizing the text and was meticulous in his effort to achieve greater linguistic precision” (Berkowitz 2012:258).

The text is polished and clearly reworked. He writes in an “overwhelmingly retrospective” style, “using the first person pronoun in the past tense” (Berkowitz 2012:258). This allowed him to revisit and reflect on some of his earlier rulings. In some cases, he even reversed his earlier rulings. This was because he had time to reconsider and also, he noted that some writings were not available to him at the time when he dealt with the matters:

“the retrospective format made it possible for Bacharach to respond to complaints from aggrieved litigants displeased with a ruling when first issued…In an addendum to a ruling concerning a disputed payment of a debt, Bacharach sought to justify his decision against the vigorous objection voiced by one of the litigants” (Berkowitz 2012:259).

The Chavot Yair was extremely sensitive to his book being well-received by his readers. He anticipated their objections in some sensitive areas, and he added extra source material. He wrote:

“I knew that the reader will respond ‘what is the source of your intuitive feeling and on what basis do you ask the question’…[but] my words are true and honest, whereas one would need a carpenter to reconcile the view of [the conflicting view of] the Terumat Hadeshen”[4] (R. Bacharach, Chavot Yair, no. 95).

Seeking endorsement

The Chavot Yair was particularly careful to lay out his reasoning and arguments to enhance “the public image he no doubt intended to foster” (Berkowitz 2012:259). To this end, he sought to attain the endorsement of other leading rabbinic figures, one of whom was R. Gershon Ashkenazi of Metz:

“If the need to defend his rulings appears to have been more conspicuous in Bacharach’s case than for other poseqim, this may well be related to the fact that he lacked the stature that generally attached to official rabbinic positions. Aside from his distinguished lineage, his authority was rooted in his own powers, and it would appear that he relied heavily, even more than other poseqim, on peer validation and public acceptance” (Berkowitz 2012:260).

Pursuit of secular knowledge

One way that distinguished the Chavot Yair from other Poskim, was his pursuit of secular knowledge. He was interested in the Greek philosophers, law, natural sciences, mathematics and even design. He consulted with Christian Hebraists like Christoph Wagenseil (1633–1705), a Lutheran jurist and professor at Altdorf. These interests and associations made him “an exception to the general pattern of rabbinic culture in early modern Ashkenaz” (Berkowitz 2012:260).

Independence of thought

The Chavot Yair was exceptional in another aspect as well and that was in his boldness to challenge even the earlier rabbinic authorities. He had no problem disagreeing with even the most esteemed sages. He took issue with Maimonides (1135-1204) on some important definitions of Jewish law such as the notion of the Oral Torah and the status of Halacha leMoshe miSinai (laws that assume the standing of those given at Sinai).

He disagreed with the claim that any Posek who rules against R. Moshe Isserless (Rama) has made a fundamental error (to’eh bedvar Mishna). Additionally, he had no qualms about disagreeing with the Baalei haTosafot. He wrote:

“even though the Tur and the Rosh followed the path of the Tosafists and ruled this way, I have the authority to say that the father of them all, the Tosafists, requires further scrutiny” (R. Bacharach, Chavot Yair, no.155).

The Halachic status of women

The Chavot Yair was perhaps the most innovative and inclusive when it came to his views on the role and status of women in Halacha. In his Mekor Chaim, he writes that R. Moshe Isserless was mistaken to rule that “in our lands” (a reference to Ashkenaz) a menstruant woman may not enter a synagogue, recite blessings or touch a Torah scroll.

Other important Poskim, like R. Gombiner (the author of Magen Avraham commentary on the Shulchan Aruch) had claimed that such women may not recite Birkat haMazon (grace after meals) aloud, and not even gaze at Sefer Torah.[5] However, the Chavot Yair demonstrates that many proof texts do not restrict such women from participating in public or private rituals during menstruation. Perhaps this may have reflected some of the political tensions between the Chavot Yair and the Magen Avraham whose work was published in the Shulchan Aruch.

The Chavot Yair became even more innovative when it came to his challenge to Rabbenu Tam (whose ruling had remained dominant in Ashkenaz since the twelfth century) that women do not recite “asher kideshanu bemitzvotav’ (who has sanctified us with His commandments and commanded us to…) for time-bound mitzvot, because women are exempt from time-bound commandments.

As part of his challenge to this convention, the Chavot Yair cited the Zohar (which is usually discouraged as being used as a source for technical Halachic matters) which emphasises that both men and women stood together at Sinai. This meant that on an essential level, there was no differential between men and women insofar as the commandments were concerned. While there may have been a rabbinic exception of the time-bound mitzvot as not being pertinent to women, the Chavot Yair argued that:

“any exemption could be transformed into a full-fledged obligation when women pronounced the mitzvah benediction, much as the status of the ‘arvit (evening) service had undergone a transformation in the medieval period from a discretionary act to a compulsory one” (Berkowitz 2012:263).

Conclusion

It is always interesting to see the backstory behind the lives of our leading rabbis. Unfortunately, most of the time we just pick up their sefarim (books) without understanding the pivotal role basic human factors often played in the production of their works.

We have noted, in this portrait of the Chavot Yair, a story of a Posek who battled for recognition in a religio-political environment that somehow always left him playing second fiddle. Other rabbis beat him to communal positions and had their work (Magen Avraham) published in place of his. Even his illustrious lineage did not help in attain the goals he so wanted for himself. Eventually, though, he carved out a niche for himself in the area of Responsa literature and took great care for his work to be receptive amongst the populace. The earlier disappointments, however, had a silver lining, because he was not beholden to a community with its complicated communal structures and protocols. He was free to think, write and say what he really believed. Thus:

“[i]ronically, because of the unusual circumstances that left him without an official rabbinic post, he enjoyed relative freedom from institutional constraints” (Berkowitz 2012:264).

Further Reading

Kotzk Blog: 232) THEOLOGICAL POLITICS SURROUNDING THE EMERGENCE OF THE SHULCHAN ARUCH: