359) Is Torah Statutory Law or Common Law?

 

Introduction

Are our modern perceptions of both secular and Halachic law responsible for the way we view the laws contained within the Torah? This article is based extensively on the writings of Rabbi Dr Joshua Berman[1], a professor of Tanach at Bar-Ilan University. Rabbi Lord Jonathan Sacks refers to him as “one of the most original biblical scholars of our time.” Berman presents an interesting approach that allows one to understand how Law, in general, functioned in the Ancient Near East - and in fact, up to recent times. Although he does show theoretical rabbinic precedent, some may find his method theologically challenging while others may find it enlightening.

302) SHULCHAN HATAHOR - A ‘REAL’ CHASSIDIC SHULCHAN ARUCH:

Part of the copious writings of R. Yitzchak Safrin (1806–1874) of Zhidachov-Komarno referred to here as the "Great Eagle, the living Ari, and the G-dly Tanna."

INTRODUCTION:

I have tried to show, in a previous article Displacing Maimonides’ Mishneh Torah that whoever controls Halacha controls the future of Judaism. This is why we have a surprising number of versions of what is essentially a singular code of law and often the authors of such works were from very mystical backgrounds (see A Mystical Side to R. Yosef Karo). It seems possible that the mystics were attempting to reclaim control of the law from the early codifier, Rambam the rationalist.

In more recent times, there emerged the Shulchan Aruch haRav, by R. Shneur Zalman of Liady (1745-1812) the first rebbe of Chabad. Interestingly, this work generally steers clear of mystical references. 

Around the same time another work surfaced, Likkutei Halachot by R. Natan Sternhartz of Nemirov (1780–1845), a student of R. Nachman of Breslov, although this is more of an explanation of the ideas of his teacher than a code of law per se.

This article, based extensively on the research of Professor Ariel Evan Mayse^[1], deals with a most unusual and little-known Halachic work, the Shulchan haTahor by R. Yitzchak Ayzik Yehudah Yechiel Safrin of Komarno[2] (1806–1874). The Shulchan haTahor is presented as a new code of law specifically for Chassidim. It not only alludes to, and includes Chassidic practices and ideology but it draws primarily and in the first instance from the mysticism of Chassidut and Kabbalah.

BACKGROUND TO SHULCHAN HATAHOR:

Mayse describes this fascinatingly bold and overtly Chassidic Shulchan Aruch as follows:

The book is, at heart, a systematic reformulation of Jewish law in light of Kabbalah, Hasidism, and the quest for personal mystical experience. Shulchan haTahor offers a rare case study for the interface of mystical experience, Hasidic devotional values, and kabbalistic doctrine as they explicitly shape the codified forms—and norms—of halakhah.

R. Safrin of Komarno was a prolific writer. He wrote commentaries on the Torah, Talmud and Zohar, kept a dream journal, authored a mystical autobiography and of course his new Shulchan Aruch for Chassidim. He was born into the Zhidachov Chassidic community which was known for its emphasis on strict observance of Halacha. Yet, his Shulchan haTahor was not just a mystical commentary on the Shulchan Aruch but a complete reworking of it.

Initially, his Shulchan haTahor was distributed amongst the Zhidachov-Komarno Chassidic community and remained in manuscript form. It was only published as late as 1963 almost a century after R. Safrin’s passing.

STRUCTURE:

The Shulchan haTahor follows a similar format to that of the Shulchan Aruch. It is also divided into the common simanim and se’ifim, but although presented in a seriously legalistic format, the content is very unusual.

The work contains a second section, entitled, Zer Zahav, which acts as a commentary on the first section.[3]

MIXING KABBALAH WITH HALACHA:

While R. Yosef Karo, in his Shulchan Aruch, does sometimes venture into sources from the Zohar, the general consensus is that Kabbalah must not inform Halacha. Thus, for example, R. Moshe Sofer known as the Chatam Sofer (1736–1839) writes:

“I say that one who mixes Kabbalah with legal rulings (halakhot pesuqot) is culpable as one who sows a forbidden mixture (kilayim).”[4]

Ironically, although R. Safrin showed great respect for the Chatam Sofer, he certainly did not follow this sentiment about not mixing Kabbalah and Halacha when he came to writing his Shulchan haTahor.

Mayse shows how, from a tender age, R. Safrin was drawn to the mystical teachings, particularly of the Ari Zal (1534-1572). These Lurianic Kabbalistic teachings “burned” within him “like a torch”.

Setting the tone for his Shulchan haTahor, R. Safrin nails his colours to the mast by writing:

In any case where it is impossible to reconcile the words of the Talmud with the Zohar, even though the authorities (posqim) did not say so [explicitly], the [opinions conflict] because they did not see the brilliant light of the Zohar. Had they glimpsed it, there is no doubt that they would have bowed their heads in fear and awe to its words, for they are holy! [5]

IGNORING ZOHAR IS “AN ELEMENT OF HERESY”:

According to R. Safrin, one who ignores the customs of the Zohar reveals that there must be “an element of heresy (tzad minut) hidden in such a person.”

He also claims that if one disagrees with a custom of the Zohar it is as if one disagreed with a Talmudic sage. This is probably because although the Zohar was only published around 1290,  the traditional view is that the Zohar was authored by the second-century Tanna, R. Shimon bar Yochai.

R. Safrin certainly held the mystics in the highest esteem because he continues that “one who disagrees with the ARI, disagrees with shekhinah.”[6]

THE “OBLIGATION” TO IMMERSE IN A MIKVA ON EREV SHABBAT:

On the subject of immersing in a mikva, R. Safrin writes:

It is a commandment, an obligation from the teachings of our master the ARI and from the holy Zohar, to immerse oneself in the river or miqveh every Sabbath eve. One is also required to immerse in the morning before prayers on the Sabbath day, according to our master the ARI. One who transgresses his words without being compelled to do so is called a sinner, for all of his words [i.e., those of the ARI], even the most minor, were received—not from an angel or Seraph—but from the blessed Holy One Himself.[7]

DAILY MIKVE:

The Shulchan haTahor encourages one to “take care and immerse oneself each day for it purifies the life-force, spirit, and soul (nafsho, ve-ruḥo ve-nishmato).”^[8]

OBLIGATORY RASHI AND RABBEINU TAM TEFILLIN:

All men are obliged to follow the Ari’s “injunction” to wear two pairs of tefillin:

“[E]ach Israelite, who has some Jewishness within, is obligated by the Torah to put on two pairs of tefillin—those of RaSHI and Rabbenu Tam. One who does not wear those of Rabbenu Tam is a fool and coarse of spirit.” ^[9]

OPTIONAL SHIMUSHA RABBA AND RA’AVAD TEFILLIN:

In addition to Rashi and Rabbeinu Tam tefillin, there are also Shimusha Rabba and Ra’avad tefillin[10], which according to R. Safrin are not obligatory but optional for those who feel they are on a ‘higher level’:

“One whose heart has been touched by awe before God should put on the tefillin of Shimusha Rabba and the RaBad…. Only one who has maintained piety from the days of his youth (maḥazik nafsho mi-ne‘urav ba-ḥasidut) and fear of sin should do so. Thus shall he feel a wondrous light in them as well.”[11]

TEFILLIN AT MINCHA:

R. Safrin encourages “one who has attained the holy lights and vitality of the tefillin” to “wear them also at minḥah.”[12]

A ‘PUNTERNIK’:

Mayse explains that in R. Safrin’s commentary on the Book of Esther, he permits tefillin strengthened with a small piece of leather called a “punternik”. The reason why it is permissible is that he saw them on the tefillin of R. Shneur Zalman of Liady, “a holy man who was punctilious and careful in all commandments.”[13]      

Interestingly, Israel Berger cites an oral tradition where R. Safrin tells a student that he saw the tefillin in a dream because tradition has it that the tefillin of R. Shneur Zalman were lost. However, R. Safrin then claims that “And yet, before all the people, I did not want to write this down, and therefore I simply wrote that I saw them,”[14] - even thought he only ‘saw’ them in a dream.

TEFILLIN ON CHOL HAMOED:

Regarding the strict ‘prohibition’ of wearing tefillin on the intermediate days of a festival, R. Safrin rules:

“It is forbidden to put on tefillin during the intermediate days of a festival, and one who does so is liable for two heavenly deaths.” ^[15]

READING FROM A DEFECTIVE TORAH:

Because the Shulchan haTahor is based on mystical practices, it often rules more stringently than normative Halacha. According to most authorities, if one reads from a Sefer Torah that was found to have a mistake, one may continue from another Sefer Torah from where one left off in the first. However, Shulchan haTahor rules that even for a minor mistake where the meaning of the word is not changed, one must start from the beginning of the weekly portion in the second Sefer Torah all over again.[16] This is because the Ari ruled like this “in his wisdom and with his holy spirit”.

In R. Safrin’s Zer Zahav commentary section, he claims that the well-known ruling of Rambam[17] – that one may even read from a defective or pasul Sefer Torah – is not just incorrect but a forgery!

The truth is more beloved to me, and I must dare to contravene my teachers. The truth is with those [who rule] that reading a pasul Torah scroll is totally meaningless, according to the Zohar, and our master the ARI.

Without a doubt, one must go back and read [the entire portion from the very beginning].[18]

INCORPORATING PRACTICES OF THE BAAL SHEM TOV:

Unusual for a Halachic work R. Safrin includes some of the practices of the Baal Shem Tov. Mayce shows how influences from dreams and visions were incorporated into the Halacha by citing the mystical autobiography of R. Safrin:

The door opened and I was worthy to see the face of our master, the BeSHT, may his merit protect us. As a result of my great joy and fear I was not able to move from my spot. He walked over to me and greeted me with a joyful face and I had great pleasure. His visage is engraved in my mind and is always before me. Perhaps I had been worthy to attain this because I had given charity that day, as is right and proper.[19]

GARTEL:

As a result of the influence of the Baal Shem Tov, the Chassidic custom to wear a gartel or prayer belt, becomes a Halachic requirement and it is prohibited to pray without one.[20]

TACHANUN:

Similarly, one must follow the Ari’s version of the Tachanun prayer and nefilat apayim which was established by the “true tzadikkim, the disciples of the BeSHT.”[21] The descent into the kelipot or husks of the nether realms becomes exemplified during the ‘descent’ in the nefilat apayim, and it is necessary to ‘fall down’ in order to free the trapped sparks contained within those lowly realms.

MAYIM ACHARONIM:

Although some authorities do regard Mayim Acharonim as a chova, or obligation, and R. Shneur Zalman of Liady calls it a mitzvah - R. Safrin cites the Baal Shem Tov’s emphasis on ensuring that the water is poured into another vessel and not onto the ground.[22]

BRANDY:

Brandy is regarded as so important and delightful that it takes Halachic precedence over some baked items known as mezonot. R. Safrin supports this notion by writing that such was the practice of R. Avraham Yehoshua of Apt as well as his uncle Tzvi Hirsch of Zhidachov.[23]

A BRACHA ON SMOKING A PIPIE:

R. Safrin writes that the Baal Shem Tov said a blessing when he smoked his pipe:

Our divine master, holy of holies, our teacher Israel ben Eliezer Ba‘al Shem Tov, recited a blessing on smoking his pipe (lulke) and on drawing the tobacco into his nose [i.e., on using snuff]. Because I do not know the formulation of this blessing, but rather simply received the tradition that he did so, my custom is not to offer a blessing.[24]

R. Safrin claims that the Baal Shem Tov received the tradition and the wording of this blessing from his teachers who are said to have been Eliyahu haNavi and Achiya haShiloni.

…But a renowned scholar can establish a blessing for himself upon smoking the pipe, and other such things. The one who blesses, shall be blessed![25]

SAFEK BERACHOT LEHAKEL:

There is a well-established[26] principle in Halacha that in a doubtful situation (say, for example, one does not remember if a blessing was recited for food), one does not recite a second blessing as it may be superfluous. (By ‘blessing’ is meant the formula Baruch atah etc.) However, Shulchan haTahor takes a very different approach to the matter and says that one should recite a blessing in cases of doubt.

R. Safrin writes that he cannot see why one should not be permitted to simply praise G-d as one does anyway throughout the day – and why does it change matters when the praise just happens to begin with the formula Baruch atah etc.?^[27]

The Shulchan haTahor wites:

Each person, should arrange the blessings according to his nature and according to the hour.[28]

Regarding formulating new blessings entirely, although he does not permit the outright composing of berachot by just anyone, he does say:

Each person of Israel, if he is an expert (bar hakhi), may come up with a new blessing to offer praise for each and every one of his needs, for each and every limb. This [practice] requires great discernment.[29]

He also writes:

“Each person should act as is best for him, according to his mind and his temperament, to illuminate his soul with sublime lights” (orot tzaḥtzeḥot).[30]

THE BAAL SHEM TOV AND ASHKENAZI PIYUTIM:

The Shulchan haTahor mentions the tradition that the Baal Shem Tov did not recite the lengthy Ashkenazi piyyutim, or poems, on the High Holidays. He claimed they were a later insertion and interrupt the prayers. However, in this instance, it rules against this custom of the Baal Shem Tov and instead cites R. Elimelech of Lizhensk (1717–1787) who did recite these piyyutim because it was in accordance with the remembered practice of the Ari.^[31] This way, some Chassidic recollections and oral traditions were incorporated into the Shulchan haTahor.

“WHAT ARE THE SEFARADIM TO US?”

Many Chassidim have chosen to follow the Sefaradic (Eastern) rites over those of (German) Ashkenaz. The Shulchan haTahor, however, is vehemently against this adaptation of Sefaradic rites and exhorts one not to “change anything from the Ashkenazi rite”.[32]

Whatever our master the ARI did not specifically command us to do, we should not change from the [liturgical] order of the Ashkenazim. I thunder against … certain fools who recite the [blessings following the] order of the Sephardim … what are the Sephardim to us? We are the descendants of the Ḥasidei Ashkenaz—all of our customs and the liturgy were established by those who possessed the Holy Spirit, “descenders of the chariot.”[33]

R. Safrin points out that although the Ari did indeed base himself on both Sefaradic and Ashkenazic rites, he nevertheless prayed in an Ashkenazi synagogue on the High Holidays - and the Baal Shem Tov, he says, only made a few changes to the Ashkenazi rites. [See Musings on an ‘Ashkenazi’ Arizal.]

TALKING BEFORE DAVENING:

How classical Halacha is now presented through the lens of modern Chassidut can be seen in the way R. Safrin explains the Talmudic prohibition against greeting others before the Shacharit prayer service. He writes that the progression of each day is determined based upon one’s first thoughts in the morning:

[T]he essence of Judaism—devequt and divine vitality that is showered upon (nispha‘) a person each day—is drawn from the first thought and first utterance of the morning.”[34]

KAVANAH:

The Shulchan haTahor exemplifies concentration and intention so much that it rules:

“[It is better to say the] Amidah while seated and thus settle the mind and cultivate intentionality than it is to stand while worshipping and do so without kavvanah”.[35]

THE PRACTICES OF TZADIKIM ESTABLISH THE LAW:

The Chassidic Rebbe Yisrael Friedman of Ruzhin (1796-1850) married a woman who was an isha katlanit (a married woman who had become a widow twice. Based on a Talmudic ruling[36], she should not marry again because of the fear that her third husband may also die – although today one can make a legal argument to permit such a marriage).

However, when some scholars criticised R Yisrael of Ruzhin for his actions, R. Safrin came to his defence by writing:

“the deeds of the tzaddik are firmly established law (halakhah kevu‘ah), clear as the sun…. Everything that the tzaddikim do is wholly Torah (torah sheleimah)!”[37]

Mayce writes that:

…Safrin…makes a deeper point about the power of the tzaddik to establish the halakhah—made possible because the Hasidic leader embodies the halakhah in the personhood of his charismatic self and deeds.

WHITE CLOTHES ON SHABBAT:

Mayce shows that what previously - during the time of the Ari - was a practice of the mystical elite had now become something the common people were encouraged to emulate:

“If all Israel wore white clothes on the Sabbath, the redemption would arrive … and in this bitter time, there is no arrogance (yuhara) whatsoever. ”^[38]

ANALYSIS:

These types of cases are highly unusual for a Halachic code of law and they make R. Safrin’s Shulchan haTahor a most noteworthy exception to the general genre of Halachic works. Although the presentation is lively in that it does include mystical explanations and emphasises the power of individuals to make choices and he certainly does not just present a dry list of do’s and don’ts – many, even within the Chassidic community, might argue that he went too far.

Perhaps Shulchan haTahor shows how Judaism can sometimes be reformed not only by the left but also by the right. [See Reforms of the ultra-Orthodox.]

The Kotzker Rebbe, who passed away fifteen earlier than R. Safrin, said:

There will come a time when those who dress in white garb will need all the help they can get, to prevent them from turning to a distortion of Judaism.[39]

---

[1] Ariel Evan Mayse, Setting the Table Anew: Law and Spirit in a Nineteenth-Century Hasidic Code.

[2] For more about R. Safrin, see Hayyim Yehudah Berle, Rabbi Yitzhak Isaac miKomarno: Toldotav, Ḥiburav, Ma’amarav (Jerusalem: Mossad Harav Kook, 1965).

[3] The citations in this article are all from the Shulchan haTahor published by Avraham Aba Zis, Jerusalem 2005. Translations are by Mayse.

[4] She’elot uTeshuvot Chatam Sofer, Oracḥ Cḥaim, no. 51, 1:88.

[5] Shulchan haTahor 2:2, Zer Zahav 5.

[6] Shulchan haTahor 203:5.

[7] Shulchan haTahor 260:7. 

[8] Shulchan haTahor 88:1.

[9] Shulchan haTahor  34:1.

[10] See here for the differences between the various tefillin.

[11] Shulchan haTahor 34:5.

[12] Shulchan haTahor 25:3, 37:2.)

[13] Ketem Ofir (Jerusalem: N.p., 2012).

[14] Israel Berger, ‘Eser Qedushot (Jerusalem: N.p., 1949/50), 68.

[15] Shulchan haTahor 31:1.

[16] Shulchan haTahor 142:4.

[17] Teshuvot haRambam, ed. Yosef Blau, 2 vols. (Jerusalem: Reuven Mas, 2014), no. 294, 2:550–553.

[18] Shulḥan Tahor 142:4, Zer Zahav 2.

[19] Faierstein, Jewish Mystical Autobiographies, 279.

[20] Shulchan haTahor 91:1.

[21] Shulchan haTahor  131:3, 9.

[22] Shulchan haTahor 181:2, Zer Zahav 1.

[23] Shulchan haTahor 212:10.

[24] Shulchan haTahor 210:3, Zer Zahav 2.

[25] Shulchan haTahor 6:4, Zer Zahav 5.

[26] See the Rif on b. Berakhot 6a; Mishneh Torah, Hilchot Berachot 8:12; Shulchan Arukh, Orach Chaim 210:2 and 209:3

[27] The actual reason for this principle, however, is fascinating. Many believe it is so as not to take G-d’s name in vain. However, the real reason (as I saw in Peninei Halacha) is out of deference to the Sages who carefully instituted such blessings. Its is their rulings that we do not want to slight and has nothing to do with taking G-d’s name in vain.

[28] Shulchan haTahor 46:3.

[29] Shulchan haTahor 6:4, Zer Zahav 4.

[30] Shulchan haTahor 46:1, Zer Zahav 2.

[31] Shulchan haTahor 68:2.

[32] Shulchan haTahor 66:6.

[33] Shulchan haTahor 46:2, Zer Zahav 1.

[34] Shulchan haTahor  1:3, Zer Zahav 7.

[35] Shulchan haTahor 94:3.

[36] b. Yevamot 64b.

[37] Notzer Chesed (Jerusalem: N.p., 1982), ch. 3, no. 4.

[38] Shulchan haTahor 262:8.

[39] Amud HaEmet p. 187, par 3. Translation mine.

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

A 1754 edition of Shulchan Aruch, published during R. Yosef Karo's lifetime.

INTRODUCTION:

In this article, we will explore some of the reasons that are given for the necessity to override and replace the 12^th century Maimonidean Halachic Code of Law - the Mishneh Torah – with R. Yosef Karo’s 16^th century Shulchan Aruch.

THE MAIMONIDEAN CODE WAS ORIGINALLY ‘ACCEPTED BY ALL OF ISREAL’:

The world authority on accurate Maimonidean texts [see previous article] R. Yosef Kapach (1917-2000) wrote:

“It is clear that the method of Maimonides [in his Mishneh Torah] is a standard for the whole world to use...” [1]

Not surprisingly, according to an avowed ‘student of the Rambam’ like R. Kapach, the Mishneh Torah should still remain the essential Code of Jewish Law and should never have been superseded by any other Code. So to further support his thesis, R. Kapach shows how historically there was an agreement in Toledo that no one should rule in any matter against Rambam. The same applied in Castile and in Tunis.

And R. Avraham Zacuto wrote:  

“When the Mishneh Torah was published and distributed in all of the Diaspora, all Israel agreed to follow it and to act according to it in all laws of the Torah.”[2]

This last point is an interesting one because the argument usually goes that the reason why we accepted the Babylonian Talmud over the Jerusalem Talmud is that ‘all Israel agree to follow it’.

And the reason why we follow R. Yosef Karo’s Shulchan Aruch over the Mishneh Torah of Rambam is also that ‘all Israel agree to follow it’.

And yet we see, historically, that after Rambam wrote his Mishneh Torah, ‘all Israel agreed to follow it’ – and, notwithstanding, for some reason it was later superseded by the Shulchan Aruch.

MISHNEH TORAH - TUR – SHULCHAN ARUCH:

Between Rambam’s Mishneh Torah (1180) and R. Karo’s Shulchan Aruch (1563) there was yet another Code of Law known as Arba’ah Turim (around the1300s) which was authored by R. Yaakov ben Asher[3]. R. Karo wrote a commentary on the Arba’ah Turim, known as the Beit Yosef, which became the precursor to his later work, the Shulchan Aruch.

JUSTIFICATION FOR THE TUR:

This is how the Tur justified the need for his new Code, just a century after Rambam’s Mishneh Torah: 

“As a result of our long exile, our strength is weakened...our thinking has become flawed, dissension (as to the clarity of the Halacha) has increased (bringing with it) opposing viewpoints - to the extent that one cannot find a single practical Halacha that does not involve some controversy.”[4]

According to the Tur, just one hundred years after Rambam had laid out his Halachic Code in the Mishneh Torah - which was written in clear and simple Hebrew -  the Halachic world was apparently in such turmoil that it necessitated a new Code.

JUSTIFICATION FOR BEIT YOSEF (WHICH LED TO THE SHULCHAN ARUCH):

This is how R. Yosef Karo justifies the need for a new Code, 300 years after Rambam:

“As a result of our long exile where we have been dispersed from place to place, endured different hardships in close succession...(as the Prophet Isaiah warned us) our Sages have lost their wisdom. The strength of Torah and the number of its students have diminished. There are no longer just two opposing schools (like Hillel and Shammai) but an immeasurable number of (Halachic) schools.

This was brought about because of the number of different Halachic works. Although the authors of these many works sought to enlighten us, they instead added to the confusion...

Many of these authors would quote a Law as if it were universal and undisputed, whereas the reality is the exact opposite.”[5]

R. Karo essentially mirrors and expands on the same sentiments as expressed by the Tur above.

R. KARO’S CRITICISM OF RAMBAM’S MISHNEH TORAH:

But R. Karo also offers a criticism of Rambam’s Mishneh Torah, essentially disapproving of Rambam’s lack of providing any Talmudic sources for his rulings, and insists that the Halachic process is far more complicated that Rambam had made out:

“If one wanted to trace the Rambam’s sources for his Laws back to the Talmud, it would be extremely difficult. Although G-d has blessed us with a (remedy for Rambam’s lack of Talmudic source material) in the commentary of the Rav haMaggid[6] who did trace the Talmudic origins of Rambam’s laws – nevertheless there are many limitations because unless one is a great scholar those sources will be difficult to comprehend.

Furthermore, it is not enough just to know the Talmudic source, but one also must consult Rashi, Tosafot, the Mordechai, Rambam, including the responsa literature to see whether a particular ruling was universally accepted.”

WHY R. KARO CHOSE TUR OVER RAMBAM:

Then R. Karo goes on to explain why he decided to attach his Beit Yosef commentary (the precursor to his Shulchan Aruch) to the Tur and not to the Mishneh Torah of Rambam:

“Because of all this, I Yosef ben haRav Efraim...have taken the drastic action to remove all the pitfalls, and have decided to author a work that will incorporate all the Laws that are practised today – together with their sources as found in the Talmud and the views of the Halachic decisors, without exception.

To avoid repetition, I decided to append this work to a previous Halachic work...Originally I thought to append it to Rambam’s Mishneh Torah, but I because he only brings his own opinion, I rather decided to append it to the Arba’ah Turim because he included most of the other opinions.

I have determined that because of the three pillars of Halachic thought upon which all the House of Israel rests, namely Rif, Rambam and Rosh (the father of the Tur), it would be prudent to rule according to the majority (i.e. two out of three).”

THE HISTORICAL RECORD?

Clearly, R. Karo did not consider Rambam to have been the final word on Halacha. He respected Rambam, but considered him only as a part or a component in a far more elaborate scheme of Halachic endeavour.

This appears to be in sharp contradistinction to the apparent historical record as noted by R. Avraham Zacuto (mentioned above) and others, who paint a picture of the Mishneh Torah being widely accepted as the authoritative text across the Jewish world in the generations immediately following Rambam.

MAHARSHAL’S RADICAL STANCE AGAINST THE SHULCHAN ARUCH:

R. Shlomo Luria (1510-1573) - known as Maharshal - was a major Ashkenazi Halachic decisor who wrote rather scathingly against R. Karo and his new Shulchan Aruch:

“Rabbeinu Yosef Caro, took upon himself to render final Halachic decisions on his own accord...This flies in the face of our traditions which we have upheld until this day.

Those reading his work, are totally unaware that oftentimes his decisions run counter to the accepted rulings of Tosafot and the Halachic decisors, whose ruling we follow...

Unfortunately, this places us in a predicament because the fact is that what people read in a book is always taken seriously[7] (and considered to be authoritative and accurate). To the extent that even were one to ‘shriek like a crane’ and show with compelling proofs that something is inaccurate - no one will pay any attention...

It is bad enough that he used the majority principal of choosing two out of three with regard to Rif, Rosh and Rambam, disregarding everyone else – as if he alone received the Tradition directly from the Elders; but he never delved deeply enough into the mechanics of the Halacha...

Additionally, he did not work from accurate texts and source material and hence he often copied and perpetuated mistakes and errors.”[8]

Besides the very vocal objection of some rabbis like Maharshal, there were some other fundamental issues as well:

DO WE  DERIVE HALACHA FROM THE ZOHAR?

It is a well-established principle in Halacha that we do not follow the Zohar or any form of mysticism when it comes to defining and determining the practical Law.

Yet we also know that R. Karo was a fervent Kabbalist who was, apparently, taught by an angelic being known as a ‘Maggid’. This Magid informed him that Rambam had endorsed his new Shulchan Aruch. And we know that many Kabbalistic practices were indeed incorporated within his Shulchan Aruch:

In the words of the Magid Meisharim [258] itself, there is no doubt that R. Karo merged Kabbalah with Halacha:

“Because you have combined (the Law and Kabbalah) together, all the celestial beings have your interests at heart...”

R. KARO ACKNOWLEDGES THE ZOHAR AS A HALACHIC REFERENCE:

In his Introduction to Beit Yosef, R. Karo writes:

“Anyone who has this book before him will have the words of the Talmud, Rashi, Tosafot, Ran, Rif Rosh [and he enumerates about another 30 other sources]...all clearly arranged and well explained in front of him. Also, in some places, we quote from the Zohar.”

THE CHIDA POSITIONS R. KARO WITH THE MYSTICS OF SAFED:

The 18th-century Halachist and Kabbalist, R. Chaim Yosef David Azulai, known as the Chida (1724-1806) writes:

“The Maggid (angelic being) told him to call his work Beit David or Shulchan Aruch...

Know that I received a tradition from a great man both in wisdom and fear of Heaven, who received it from a great rabbi who in turn received it from the elders, that during the generation of R. Yosef Karo – a generation with holy people such as R. Moshe Cordovero and the Arizal – there was a special assistance from Heaven because the Jews need a Halachic work which would collate the Laws and their sources and establish the final Halachic conclusion.

There were three candidates for this task during that generation...and one of them was R. Yosef Karo, and because of his humility, he was chosen (to author the Shulchan Aruch).”[9]

The Chida appears to lend a mystical air to the story of the composition of the Shulchan Aruch, thus seemingly elevating it above its practical function as a Code of Law. He continues along this vein:

“Know that I received a tradition from pious elders who in turn received it from the great Master and Holy Man, R. Chaim Abulafia [21], that...about 200 rabbis in his generation acquiesced to R. Karo’s position [of writing a new Code of Law]. And Abulafia used to say obeying R. Karo was like obeying the 200 rabbis...

I also heard that when the Beit Yosef first came out, R. Yosef ben Levi [Maharival] opposed it and forbade his students to study from it, saying it would diminish Talmudic scholarship.

Instead, his students would study Tur in his presence. One it happened that the Maharival was unable to find a particular source and the declared: ‘I see that Heaven has indeed decreed that the Beit Yosef must spread throughout the world.’ And thereafter he permitted his students to study it.”[10]

Again we see the Chida framing of the events relating to the emergence of the Shulchan Aruch in a supernatural idiom.

What is also interesting, though, is that to best of my knowledge, this is the only account (albeit from a tertiary source) of some 200 rabbis accepting the new Shulchan Aruch as binding over the other Codes.

[To more fully understand the extent and significance of this Kabbalistic connection, the Reader is urged to see A Mystical Side to R. Yosef Karo.]

BACK TO THE ORIGINAL QUESTION:

Having established that there was quite a strong Kabbalistic association around the surfacing and perpetuation of R. Karo’s Shulchan Aruch, and having shown that some, like the Maharshal were rigorously opposed to its sudden emergence – we can go back to our original question: If we already had the widely accepted Code of the Rambam (and, apparently it was accepted by more than just 200 rabbis) why the need for another Code three hundred years later?

The answer may lie in the fact that, besides being a rationalist, Rambam, lived in the pre-Zoharic era. The mysticism of the Zohar was unknown before its appearance during the mid-1200s and Rambam passed away in 1204. 

[See Mysteries behind the  Origins of the Zohar.]

However, the appearance of the Zohar changed the face of Judaism forever, with its influence - to a greater or lesser degree - affecting almost all its subsequent thought and literature.

R. Israel Drazin proposes an interesting answer as to why the later rabbis may have preferred the Shulchan Aruch to the well established Mishneh Torah of Rambam[11]:

‘CODIFYING NON-RATIONAL BEHAVIOURS’?

“The omission of rabbinical discussions and the source of the laws were the ostensible, though probably not the entire, reason other rabbis felt they had to write their own codes. This is obvious because if these two omissions were what really bothered the rabbis who composed new codes, they should have been satisfied by only adding glosses indicating the sources and opposing views.

The true reason, in all likelihood, was the inability of the non-rationalists to deal with Maimonides’ rationalism and his refusal to include superstitious practices, magical conduct, use of omens, mysticism and other irrational behaviors that were so dear to the general public. These non-rational behaviors were rampant among many Jews – including numerous rabbis...

The post-Maimonidean law books codified these types of behaviors.”

R. Drazin then goes on to give some examples of ‘superstitious practices’ which are not to be found in Rambam’s Code, but yet are common in the Shulchan Aruch:

WEDDINGS DURING FULL MOON:

According to the Shulchan Aruch[12], weddings should only take place during the full moon. (Ramah comments that in Ashkenazi countries weddings took place at the beginning of the month.)[13]

This practice is not mentioned in Talmudic or Gaonic literature and is certainly not found in Mishneh Torah. 

Rambam does discourage weddings to take place on Fridays and Sunday because of possible Shabbat desecration, but not for any supernatural reasons (Ishut 10:14):

RIGHT SHOE LEFT SHOE:

R. Drazin explains that Rambam begins his Mishneh Torah by speaking about the need to acquire knowledge, while the Shulchan Aruch instructs us to put the right shoe on before the left and tying the left shoelace before the right.[14] 

Drazin mentions that Rambam does reference the preference of right over left with regard to entering the site of the Temple from the right, but for practical reasons other than ‘superstitious notions’.[15]

SLEEPING:

According to Shulchan Aruch one must not sleep in a bed facing east or west.[16]

“The commentary Magen Avraham refers to the Zohar and states that there is a mystical reason for this requirement. The author of the Shulchan Arukh and many other non-rationalists were convinced that the shekhinah, the divine presence, was not a human feeling of the presence of God, but an actual divine being. Therefore, the commentary Magen David explains that since the shekhinah dwells in the west, it is forbidden for a person to turn his face or rear toward the shekhinah...

In Mishneh Torah...Maimonides states that a person should not sleep or use the bathroom while facing west but explains that it is one of many ways in which Jews remember the ancient Temple with respect: since the holy of holies was in the west of the Temple...”

WASHING HANDS:

According to the Shulchan Aruch, we wash our hands upon awakening from sleep in order to expel the ruach ra’ah, or evil spirit, which descended upon us during the night.[17]

Rambam, on the other hand, did not believe in evil spirits and regarded the washing of the hands as a mere ablution.

[See Netilat Yadayim – A Means of Expelling Evil Spirits or a Simple Ablution?]

EVIL EYE:

1) The Shulchan Aruch prohibits two brothers, or a father and a son, from receiving an aliyah at the Torah one after the other, for fear of the evil eye.[18]

2) The Shulchan Aruch says we should not read the prayer ‘Me’ein Sheva’ (a short repetition of the Amidah) on Pesach night, because it was originally instituted to protect latecomers to the synagogue from demons. On Pesach night, we are automatically protected from demons because it is a ‘night of protection’.[19]

3) For the same reason, we do not dip Matzah into salt on Pesach evening, because the usual dipping of bread into salt is to protect from demons and this is not necessary on Pesach, as it is a ‘night of protection’. [20]

DEMONS PERVERTING JUSTICE:

In his Beit Yosef on the Tur, R. Karo mentions the idea of Mazal (constellations or demonic forces) affecting the outcome of a legal judgement. This is where the Mazal is said to favour one of the litigants over the other and the law is unable to run its normal course.

RAMBAM’S VIEW ON THESE NON-RATIONAL MATTERS:

Rambam, on the other hand, did not deal with such cases because he didn’t believe in demons or the evil eye. The purpose of his Mishneh Torah was simply to present a clear concise and understandable Code which was easy to reference (as it was one of the first Jewish works to have an index).

CONCLUSION:

R. Drazin leaves us with this thought – and it may answer our question as to why there was the need to minimise Mishneh Torah in favour of other Codes.

In true, classical, outspoken and unapologetic Maimonidean style, he suggests:

“Being rational in an irrational world has its disadvantages, especially when the world is committed to believing in and applying non-rational practices. Thus, although Maimonides’ code of law was by far the most rational code written – in style, language, and content – and the most easily understood, and although the rabbis for the most part recognized that it contained the truth, the rabbis felt it was advisable to incorporate many folkways into their codes, including practices based on superstition, because they believed in the efficacy of such practices or, when they did not, because they were so dear to the general population.

This has always been the only successful way of dealing with humanity. People can only be taught at their level; it is impossible to transform the opinions and practices of the general population suddenly by mandate or by persuasion.”

Considering all the above, might it be accurate to propose that the 16^th Century Shulchan Aruch was essentially the mystical response and counterpart to the rationalist 12^th Century Mishneh Torah – in the same way as the Shulchan Aruch haRav was later to become the Chassidic response to Shulchan Aruch itself – and the Ben Ish Chai and Mishna Berurah were likewise to become the  (Iraqi) Sefardi and Ashkenazi responses respectively?

---

[1]Introduction of Rabbi Yosef Kapach to his edition of Moses Maimonides’ Mishneh Torah, translated by Michael J. Bohnen.

[2] Sefer Yuchasin p. 122.

[3] R. Yaakov was the son of the Rosh.

[4] From the Introduction to the Tur, by R. Yaakov ben Asher (Rosh). These loose translations are my own.

[5] From the Introduction to the Beit Yosef, by R. Yosef Karo.

[6] Also known as the Maggid Mishna, namely R. Vidal of Tolosa (mid-1300s).

[7] Remember that Mishneh Torah and the Arba’ah Turim would have been composed and disseminated before the invention of the printing press in the mid-1400s. The Shulchan Aruch, though, would have been published just after the printed book made its appearance. Hence it would have certainly appeared more authoritative than a handwritten manuscript.

[8] Introduction to Yam Shel Shlomo (Chulin).

[9] Chidah, Shem haGedolim, Ma’arechet haSefarim Erech Beit Yosef.

[10] Chida, Ma’arechet Beit Yosef.

[11] Why do the Rabbis Prefer Shulchan Aruch over Maimonides’ Code of Law? By Israel Drazin.

[12] Yoreh Deah 179:2.

[13] R. Yosef Karo wrote his Shulchan Aruch for Sefardi Jewry, and R. Moshe Isserless (Ramah) wrote addendums to R. Karo’s work, for Ashkenazim.

[14] Orach Chaim, 2:4, 5.

[15] Hilchot Beit haBechirah 7:2.

[16] Orach Chaim 3:6.

[17] Orach Chaim 4:2.

[18] Orach Chaim 140.

[19] Orach Chaim 487.

[20] Orach Chaim 475.

[21] Not to be confused with R. Avraham Abulafia (1240-1291). There was a R. Chaim Abulafia the 'first' (1580-1668) and another by the same name during the eighteenth century.