Codification of Law
CODIFICATION OF LAW
This article is arranged according to the following outline:
The Concept and Its Prevalence in Other Legal SystemsIn Jewish Law
In the Mishnah
format and style of the mishnah
The Talmud and Post-Talmudic Halakhic Literary Forms
Variety of Literary Forms in the Codes
In the Geonic Period
The Rif (Alfasi)
Maimonides' Method
Reactions to Maimonides' Approach
"arms-bearers"
Codification until the Compilation of the Arba'ah Turim
The System of the "Ba'al ha-Turim"
structure of the turim
"arms-bearers" to the turim
The Method of Joseph Caro
Structure and Arrangement of the Shulḥan Arukh
The Role of Moses Isserles ("Rema") in Halakhic Codification
Reactions to the Shulḥan Arukh
Acceptance of the Shulḥan Arukh as the Authoritative Halakhic Code
After the Shulḥan Arukh
The Concept and Its Prevalence in Other Legal Systems
The term codification, within its historical meaning, is the reduction to writing of a law previously only extant in oral form. In this sense the concept of codification does not differ substantially from legislation. In time, however, the concept of codification came to acquire a different meaning; namely, that whereas legislation serves to lay down a specific normative instruction – with the object either of innovating a legal norm where none had previously existed or of varying and amending an already existing legal norm (in the halakhic system this function is carried out by way of the *takkanah or *gezerah) – codification is concerned with circumscribing a whole legal system, or at least a branch of it. The background to codification and its motivation is the realization of the need to eliminate the shortcomings stemming from diverse and universal juridical and historical phenomena, such as the proliferation of legal provisions scattered in different literary sources, the awkward and heterogeneous style of legal directives, and the gradual accumulation of conflicting legal norms within a particular legal system. Furthermore, a codification constitutes the authoritative source for locating any law forming part of a particular legal branch, its directives having the effect of abrogating any other provision of the said branch of the law preceding the codification and inconsistent with it. The hope of the initiators of the great codifications (beginning from the middle of the 18th century, such as the Prussian and Napoleonic Codes) was that such codification would simplify the law and make it understandable and readily available to every citizen. This hope soon proved to be unfounded when it was realized that the interpretation and understanding of the legal profession were still indispensable.
Unlike the great codifying movements which originated and developed in continental Europe, the Anglo-Saxon systems of law have rejected the move to codification because of a difference in approach to the substantive and fundamental problem of providing for the continued development and creativity of the legal system. Whereas continental legal systems deferred to the principle that the continued development of the law, with its amendments and refinement, should be entrusted to the legislator, Anglo-Saxon law has looked upon the doctrine of precedent – i.e., decisions of the courts on actual problems arising in daily life – as the principal medium for the continued shaping of the law, a process in which the courts consequently play an honorable role. The problem of the proliferation and unwieldy nature of the material accumulating from statutory legislation is solved in Anglo-Saxon law by the devices of "Compilation" and "Revision." A Compilation, i.e., a collection of the texts of various statutes arranged according to subject matter, merely provides prima facie evidence of the original version of the statute, to which reference must be made for an authoritative statement of the enacted law. On the other hand, a Revision or Consolidation – which is also a collection of statutes arranged according to subject matter – is deliberately and authoritatively published by the relevant legislative powers, and therefore represents the binding version with regard to variations from the original wording of the statutes. Both a Compilation and a Revision are concerned exclusively with statutes and not with the provisions of Common Law. Only in isolated fields of English law, for example, do codifications exist which include all existing provisions – whether statutory or of Common Law – and which have the binding force of parliamentary enactment. In the United States partial codifications of this kind are more frequently encountered, but even there, except in isolated states, the greater part of the law is still enshrined in Common Law and in regular legislative enactments, whereas in continental Europe all the law is to be found in various codes embracing the separate branches.
In Jewish Law
In Jewish law the question of codification is bound up with the particular problems innate in its substance and history. The principle that a code abrogates any inconsistent rule of earlier date has never been tenable – nor even propagated – within the halakhic system. The determining factor of the halakhah, i.e., the basis of its binding force and authority, has been its continuity; and the validity of every rule or norm added to the body of the halakhah during the course of its development, through its legal sources (such as *Interpretation, Takkanah, *Minhag, *Ma'aseh, and *Sevarah), rests on its stemming from the basic norm of the halakhah, i.e., the Written Law, and from the accumulation of halakhot throughout the generations. Not even Maimonides, who compiled the Mishneh Torah, the greatest and most comprehensive halakhic code of all, with the stated purpose that "a person shall not need to have recourse to any other work in the world concerning any of the laws of Israel … that a person shall first read the Written Law and then this work and learn therefrom all of the Oral Law and shall not require to read any other work" (Yad. introd.) – not even he sought to establish his work as the source of halakhic authority, nullifying all of the previously determined halakhah. Nor did he envisage introducing any change in the halakhah through his work, since he emphasized (in his introduction) the unbroken chain of transmission stretching back to Moses at Sinai and the validity of the laws of the Babylonian Talmud as being "incumbent on all Israel." He made his position clear in a letter to Phinehas b. Meshullam, dayyan of Alexandria: "Have I commanded or had in mind the burning of all books written before me on account of my own work?" (Koveẓ Teshuvot ha-Rambam ve-Iggerotav, ed. Leipzig (1859), pt. 1, 25a–27a, no. 140). He intended no more – and even this aim was to meet with vigorous opposition as a daring and revolutionary one – than that the law was henceforth to be ascertained and the halakhah to be decided only according to his codification, because of his conviction that his work included all the rules of the halakhah and any conflict between his work and the preceding and binding halakhic literature was inconceivable. Hence, it is clear that in view of the inseparable link between the halakhah and its sources, it cannot tolerate expression in the form of a Codex or a "Revision," but only that of a "Compilation." However, from the standpoint of the validity attached to such compilatory work and the possibility of deciding in terms of it, it has been regarded not merely as constituting presumptive evidence, but as carrying also the authority of a proper codex.
Despite the intolerance engendered by the very substance of the halakhic system, and the fact that Jewish law has evolved pragmatically by providing solutions to the problems of daily existence as they arise and not by way of the prior determination of rules of principle (see Rabbinical *Authority, *Mishpat Ivri), it has nevertheless been influenced by factors and incentives similar to those operating in other legal systems. In the context of the particular history of the Jewish people and the practical reality of the halakhah, these and other special factors at times rendered some form of codification of the body of halakhic rules imperative. Codification of the halakhic system confronted those who undertook the task with a search for suitable ways of overcoming the substantive problems involved, and in the process, throughout the long history of the halakhah, different literary genres evolved, until a form was arrived which could be reconciled with the halakhic system.
In the Mishnah
The first halakhic code to be compiled after the Written Law, which constitutes not only the basic norm of the entire halakhic system but also its first, and founding codification, was the *Mishnah. Compiled by *Judah ha-Nasi in about 200 c.e., it embraces within its six orders the whole framework of Jewish law (the Sefer Gezerata, known to have been in existence prior to the Mishnah, was a Sadducean code, apparently mainly a criminal one). Some scholars are of the opinion that Judah ha-Nasi merely sought to assemble in the Mishnah the accepted halakhot of his time and to arrange them according to their subject matter so that each law could readily and conveniently be ascertained, and that it was not his intention to decide the halakhah in the Mishnah. Prima facie support for this view is to be found in the fact that for the greater part the Mishnah does not give only one single halakhic ruling, clear and unequivocal, but instead cites different opinions on a particular ruling, without any explicit statement as to the decision on the matter. Notwithstanding this, most scholars are of the opinion – and this indeed appears to be the case – that Judah ha-Nasi's purpose was to compile a halakhic code in accordance with which the law was to be decided. This may be concluded from an examination of the transmitted texts, comparing the wording of halakhot in the Mishnah and the wording of the same halakhot in the *Tosefta and *beraitot; and in particular from the fact of Judah ha-Nasi's quotation, in an anonymous way (stam), of the opinion in accordance with which he sought to decide the law (see Ḥul. 85a).
Further evidence that Judah ha-Nasi was engaged in a task of codifying in compiling the Mishnah may be adduced from the theory and history of the halakhah. Anonymity and uniformity were features of the ancient halakhah. Commencing from the time of the first pair of scholars, *Yose b. Joezer and *Yose b. Johanan, only one instance of a disputed halakhic rule is known (Ḥag. 2:2) and in all, until the time of the last pair, *Shammai and *Hillel, only four matters were the subject of disputed halakhot (tj, Ḥag. 2:2, 77d). The reason for the almost complete uniformity of the halakhah until the beginning of the tannaitic period is that every problem was decided, in the final analysis, by the Sanhedrin – the supreme judicial and legislative body of the people – and a rule decided by a majority opinion simply became the law of the Sanhedrin as a body, leaving no room for mention to be made of the names of the scholars who supported either the majority or the minority opinion. From the start of the tannaitic period, the cases of dispute increased in all fields of the halakhah, and numerous differing opinions have come down with the names of the scholars who expressed them. This substantive change in the image of the halakhah was caused by the undermining of the Sanhedrin's powers of decision and its weakened authority. This was brought about by the influence of various external political factors in Ereẓ Israel in the half century preceding the destruction of the Temple and the operation of internal factors such as the intensification of the dispute between the *Pharisees and the *Sadducees, and between the scholars of Bet Shammai and Bet Hillel (see R. Yose, Tosef., Sanh. 7:1; Sanh. 88b; TJ, Sanh. 1:4, 19c). The destruction of the Temple, the disruption of the halakhic center deprived of its traditional location, and the migration of the scholars and their courts gave rise to an increase in halahkhic disputes in which no decision was reached.
At the beginning of the second century, following the consolidation of Jabneh as the new center of the law under the presidency of *Gamaliel ii, a determined effort was made to restore uniformity to the halakhah (Tosef., Eduy. 1:1; Sif. Deut., 48; Shab. 138b). At that time it was determined that in general, in a dispute between Bet Shammai and Bet Hillel, the view of the latter was to prevail (tj, Ber. 1:7, 3b). At the same time many traditions and laws, based on various "testimonies" (eduyyot), were assembled and arranged in the tractate Eduyyot. The flowering and development of the halakhah at the academies of *Akiva and *Ishmael, and particularly the numerous disputes later waged by the former's pupils, confronted the scholars of Judah ha-Nasi's generation with the need to reduce once more this abundant halakhic material to uniform law. Hence it may reasonably be assumed that Judah ha-Nasi's objective in compiling the Mishnah was the same as that of his grandfather, Gamaliel of Jabneh; namely, to avert the danger of proliferating dispute by undertaking the compilation of a code that would decide and determine the law. Another historical reason explaining the need for a code of Jewish law at that time was expressed thus: "the number of scholars is on the decrease, new troubles on the increase… a work should be written to be available to all, so that it can speedily be learned and not be forgotten" (Maim., Yad, introd.). It may be asked why Judah ha-Nasi chose such an indirect method in his determination of the halakhah; i.e., by stating the opinion with which he was in agreement in an anonymous manner, as opposed to the simpler method of stating only the opinion according to which he decided, to the complete exclusion of other opinions. It appears that he did so in order to preserve the element of continuity possessed by the halakhah, since deletion of the names of the scholars and their opinions would have severed the chain of transmission from scholar to scholar (see N. Krochmal, Moreh Nevukhei ha-Zeman; ch. 13). A thousand years later the fact that Maimonides chose the opposite path in his Mishneh Torah was one of the main reasons for the vigorous criticism with which his work was received.
format and style of the mishnah
The laws in the Mishnah are mostly formulated in a casuistic, rather than normative, manner, i.e., a particular legal rule is expressed in the form of a factual case and not by a simple statement of the legal principle without embodiment in a concrete example. Thus, for instance, the normative principle that a person – even when acting in his own domain – must guard against causing harm to his neighbor, is expressed by way of a long series of practical instances of prohibitions or injunctions: that a man must not dig a pit near his neighbor's property, or that he must remove his salt or lime from his neighbor's wall, etc. (bb 2:1ff.). This casuistic method is characteristic of the halakhah which developed and kept pace with everyday realities and in this manner was transmitted throughout the generations. Occasionally, Mishnayot are rendered in combined casuistic-normative manner (bb 1:6; 3:1; Git. 2:5–6) and there are some rare cases of a purely normative formulation (bk 1:2). This form, adopted for the first halakhic code compiled after the Written Law, put its imprint on all subsequent codifications and was retained even in Maimonides' Mishneh Torah. From the point of view of the possible development of the law, this method commends itself since it allows for a large measure of differentiation between one matter and another. An important quality of the Mishnah as a code is its style, which is a concise yet clear and lucid Hebrew, that served as the basis of Maimonides' style in the Mishneh Torah (see Sefer ha-Mitzvot, introd.) and is still a general and rewarding source of Hebrew style, particularly in legal usage.
The Talmud and Post-Talmudic Halakhic Literary Forms
The *Talmud (Gemara), which includes deliberations of the sages, halakhic commentaries of the early tannaim and amoraim, decisions, epistles, responsa, and decisory rules, has been accepted in the halakhic world as authentic and binding material constituting the starting point for the deliberation of any halakhic subject whatsoever. Yet, from the viewpoint of literary classification, it does not bear the character of a codex. The codificatory form reappears in halakhic literature in the post-talmudic period, in a branch known as the literature of the *posekim (i.e., codifiers or simply "the Codes") representing one of the three main literary forms in which the halakhah has been stated, commencing from the geonic period. Of the other two forms the first is represented by the commentaries and *novellae, which have as their objective the interpretation of the Mishnah, the two Talmuds, and the remaining halakhic literature, and innovation by way of comparison between the different sources and reconciliation of the emerging contradictions. The third form is represented in the literature of the *Responsa Prudentium (see also *Ma'aseh), which is the Jewish "Common Law," a great storehouse of decisions given on concrete matters arising throughout the generations in all countries of the Jewish Diaspora. The literature of the Codes and that of the responsa had the common purpose of deciding the law; however, in the case of a responsum the decision is arrived at after deliberation of the specific case before the halakhic scholar, whereas the posek, apart from embracing the entire field of the halakhah, or at least a particular branch of it, arrives at his decision after an abstract consideration of the existing halakhic material pertaining to each particular subject. Hence the literature of the Codes corresponds in form to the codificatory literature found in other legal systems.
Variety of Literary Forms in the Codes
The problems of codifying the halakhah were responsible for the adoption of the different literary forms found in the Codes. These may be classified into three main categories: (1) "books of halakhot," i.e., books having the avowed purpose of collecting conclusions from the halakhic rules pertaining to either the whole or a particular branch of the halakhah, the conclusion being preceded in each case by a brief discussion and précis of the talmudic sources on which it is founded; (2) "books of pesakim" ("decisions"), having the purpose of stating the conclusions from the halakhic rules – in their entirety or in a particular branch of the law – without any preceding discussion of the underlying sources; and (3) a combination of the first two, which assumed different forms at different times. In addition to an intrinsic literary difference between categories (1) and (2), there is also, generally speaking, an extrinsic divergence stemming from this intrinsic difference. A "book of decisions" is arranged according to halakhic subject matter, even though the various rules pertaining to each subject are dispersed throughout the different literary sources, and this is the most convenient and helpful form for both dayyan and student; on the other hand the author of a "book of halakhot" – who preceded his conclusion with a discussion and quotation of sources – was compelled by logic to tie the arrangement of his work to that of the literary source in which the relevant halakhic discussion is to be found, i.e., generally the appropriate talmudic tractate.
In the Geonic Period
From the eighth century onward, i.e., the earliest period from which considerable geonic halakhic literature has come down, increasing activity in the field of halakhic codification becomes noticeable and, although they appear in different literary forms, the codes of this period may all be classified as belonging to the category of "books of halakhot."
The first book to be written after the closing of the Talmud was the Sefer ha-She'iltot of *Aḥa (i) of Shabḥa, Babylonia, in the first half of the eighth century. Mainly a collection of homiletic discussions (derashot) usually starting with a question (hence she'iltot) formulated in accordance with the type of exposition set in talmudic times by the leading scholars, this work nonetheless displays a clear decisory element. Soon after the work appeared, the author's statements were quoted for the purpose of deciding in accordance with them (see Assaf, Geonim, 155ff.), so that it may be classified as forming part of the literature of the Codes. It displays the unusual feature of being arranged according to neither subject matter nor the talmudic tractates, but according to the order of the weekly portions of the Pentateuch, as in the case of midrashic literature; the halakhic subject with which the she'ilta deals is often linked with the particular portion of the Pentateuch in which the subject is treated in narrative form; e.g., the laws of theft and robbery dealt with in she'ilta no. 4 relate to the weekly portion Noaḥ (with reference to Gen. 6:13), the laws of bailment in she'ilta no. 20 relate to the portion Va-Yeẓe (with reference to Jacob taking care of the sheep of Laban); and the laws of suretyship in she'ilta no. 33 relate to the portion Mi-Keẓ (with reference to Judah acting as the guarantor of Benjamin's welfare).
At about the same time, *Yehudai b. Naḥman Gaon wrote Halakhot Pesukot, the earliest classic example of the "books of halakhot," which was to exercise a decisive influence on the literature of the Codes. This work was arranged according to both subject matter – hilkhot Eruvin, Halva'ah, Ketubbot, etc. – and the talmudic tractates, the halakhic conclusion generally being preceded by a brief synopsis of the underlying talmudic sources. No laws were included that were not relevant at the time (mitzvot she-einan nohagot ba-zeman ha-zeh), such as precepts pertaining to the land of Israel (mitzvot ha-teluyot ba-areẓ) not observed in Babylonia, and the laws of Kodashim (Temple cult) and Tohorot (ritual purity). In so doing, Yehudai Gaon established a precedent followed by practically all subsequent posekim, who from then on confined themselves to the codification only of the halakhah in practice at the particular time. This work soon became known in all countries of the Diaspora and others compiled various abridgments of it, known as Halakhot Ketu'ot, or Halakhot Keẓuvot, etc., while a Hebrew translation is known as the Hilkhot Re'u (based on the first word in Exodus 16:29, with which the work commences). About a hundred years later there appeared the Halakhot Gedolot, the greatest halakhic work of the geonic period in scope and content. In the opinion of most scholars the author was Simeon Kayyara of Basra (Bassora), Babylonia. Here, too, the conclusions are preceded by a brief review of the sources, the arrangement following the order of the talmudic tractates.
In this period the scholars are known to have been concerned about various questions relating to the codification of Jewish law. Several factors operated to promote the codifying trend: from one source it appears that the Halakhot Pesukot was compiled because of the difficulty in finding a way through the proliferous material in the orders and tractates of the Talmud (Seder Olam Zuta, in Neubauer, Chronicles, i (1887), 178); elsewhere it is mentioned that Aḥa compiled the Sefer ha-She'iltot for the sake of his son, "in order that every Sabbath when the order is read, he shall be able to clarify for himself familiar halakhot from the Talmud" (Ha-Meiri, Beit ha-Beḥirah to Avot, introd.). Subsequently, both reasons were frequently mentioned as the background to many "books of halakhot" and "pesakim." It seems that a historical factor in the internal life of the Jewish people was also a contributing factor. In the middle of the eighth century Karaism emerged in Babylonia. For approximately the next 200 years the geonim, commencing with Yehudai Gaon, waged a persistent and relentless struggle against the *Karaites who disavowed the rabbinic Law in terms of the statement attributed to *Anan: "Abandon the words of the Mishnah and Talmud and I shall make for you a Talmud of my own" (Seder Ray Amram, ed. Warsaw, 38a). In the course of this conflict the geonim and other halakhic scholars produced a proliferation of halakhic and philosophical works, and it appears that an important instrument toward crystallization of the traditional Jewish attitude, founded on the rules of the Oral Law, was the compilation of books which would elucidate and summarize the latter in convenient synoptic form.
On the other hand, the compilation of codes gave rise to the fear that any neglect in the study of the talmudic literature itself would tend to alienate the halakhah from its sources. In the middle of the ninth century Paltoi b. Abbaye Gaon was told: "The majority of the people incline after Halakhot Ketu'ot, saying: Why should we be occupied with the complexity of the Talmud?" Paltoi response was to condemn this attitude, stating that it would cause study of the Law to be forgotten and adding that "Halakhot Ketu'ot have been compiled not in order to be studied intensively, but rather so that they may be referred to by those who have studied the whole of the Talmud and experience doubt as to the proper interpretation of anything therein" (Ḥemdah Genuzah, no. 110; S. Assaf, Teshuvot ha-Geonim Mi-Tokh ha-Genizah (1928), 81). It is possible that such a negative attitude toward codification by such a prominent scholar was responsible for the fact that almost no other "books of halakhot" were written during the remainder of the geonic period. From then on halakhic creativity mainly found expression in the form of responsa and, commencing from the first half of the 10th century, in a new literary form: that of full and summarizing monographs, written mostly in the fields of civil and family law and the laws of evidence and procedure, and in terms of which the law was applied in the Jewish communities and in their courts (e.g., Sefer ha-Ishut, Sefer ha-Pikkadon, etc. of Saadiah *Gaon; Sefer be-Dinei Kinyanim, Sefer ha-Arevut, etc. of Samuel b. *Hophni Gaon; Sefer Shevu'ot, Sefer ha-Mikkaḥ ve-ha-Mimkar, of Hai *Gaon; See also Beit ha-Beḥirah to Avot, introd.).
The Rif (Alfasi)
The geonic period was one of growing literary activity in the field of commentaries and responsa. Many takkanot were also framed in various fields of the law. At the close of this period the need for codification of the halakhah once more came to the fore, prompted by the historical factor that Babylonia had ceased to be the dominant center of the Jewish Diaspora, new centers of Jewish life having emerged in North Africa and in Europe, by which it was gradually supplanted. The proliferation of centers of Jewish life created the familiar phenomenon of varying customs and rules in different halakhic fields, a phenomenon present also in geonic and earlier times, but one that became increasingly manifest with the widening dispersion of the Jewish people. The outcome was the compilation, in the middle of the 11th century, of one of the most important "books of halakhot" in Jewish law, namely the Sefer ha-Halakhot of Isaac b. Jacob ha-Kohen *Alfasi, known as the "Rif." In general form, this work is arranged along the lines of the Halakhot Gedolot although differing from it in several material respects. Like earlier "books of halakhot," it is arranged in the order of the talmudic tractates, and embraces only the laws in practice at the time (the relevant laws dispersed in the orders of Kodashim and Tohorot, and current at the time – such as hilkhot Sefer Torah, mezuzah, tefillin, ẓiẓit, etc. – were compiled by Alfasi in a separate work called Halakhot Ketannot). The brief talmudic discussion with which the author precedes each halakhic conclusion is far more extensive than in similar geonic works; in synoptic form the Rif outlines the talmudic problem and includes also aggadic statements of halakhic relevance (see Rif to bk 93a). Hence the work is also known as Talmud Katan (the small Talmud). Alfasi also undertook the great task of deciding many halakhic problems which had been the subject of dispute and he frequently quotes from the Jerusalem Talmud; in cases of dispute between the Jerusalem and Babylonian Talmuds on a particular matter, Alfasi decided according to the latter, following the rule of Hilkheta ke-Vatrai ("the law is according to the later scholars" – see Rabbinical *Authority), since the redaction of the Babylonian Talmud was the later of the two (idem, Er., concl.). Alfasi's work was accepted by later generations as decisive and binding (see Menahem b. Zerah, introduction to Ẓeidah la-Derekh), and it prevailed over "books of halakhot" written during the next 100 years (such as the Halakhot Kelulot of *Isaac ibn Ghayyat; the Sefer ha-Ittim, Yiḥus She'ar Basar, and Sefer ha-Din of *Judah ben Barzillai; the Even ha-Ezer of *Eliezer b. Nathan). Maimonides later noted that he differed from Alfasi in some ten cases only (Introduction to his commentary on the Mishnah; in his responsa collection, ed. by J. Blau, no. 251, the figure mentioned is 30). Five hundred years later Joseph *Caro described Alfasi as "one of the three pillars of halakhic decision [ammudei hora'ah] supporting the House of Israel," and in this way part of Alfasi's conclusions found their way into Caro's code, which has remained the authoritative codex of Jewish law until the present day.
The Sefer ha-Halakhot became the focal point of a prolific literature, partly in disagreement with it, partly in its defense, and partly in interpretation of its contents. This literature, which later accompanied the main Jewish law codifications, is termed nosei kelim ("arms-bearers"); the principal works are: Zerahiah ha-Levi *Gerondi's Ma'or; *Abraham b. David of Posquières' Katuv Sham; Naḥmanides' Milḥemet ha-Shem and Ha-Zekhut; and the commentaries of Nissim *Gerondi and Joseph *Ḥabiba (the latter called Nimmukei Yosef).
Maimonides' Method
In the 12th century Maimonides created a new literary form for the Codes, that of a "book of pesakim," of which his own work, the Mishneh Torah, was the peak. This new type of codifying appears to have asserted itself at the beginning of the 12th century, shortly after Alfasi's death, as is evidenced in a responsum of Joseph *Ibn Migash. Asked whether a dayyan – even when not sufficiently familiar with the methodology of the Talmud or understanding the source of a law in the Talmud itself – was entitled to adjudicate in accordance with a "book of halakhot" and whether a decision of this kind could properly be relied upon, Ibn Migash replied that such conduct was not only fit and proper but preferable to a decision based on examination of the Talmud only, from which error could result, since "in our times there is no person whose knowledge of the Talmud attains a level which is reliable enough for him to decide from it"; the danger of error would be averted if the dayyan found good support for his decision in the statements of a great halakhic scholar as expressed in a "book of halakhot" (Ri Migash, Resp. no. 114). According to this approach, therefore, a "book of halakhot" was not to be regarded simply as an aid, to be referred to when the solution was not to be found in the Talmud itself – as was the opinion of Paltoi Gaon – but rather as a work in its own right and one to which reference should be made in preference to the Talmud in order to ascertain the law. It may be surmised that this opinion by a scholar greatly admired by Maimonides (see Introduction to his commentary on the Mishnah) influenced the latter's decision to undertake the great and laborious task of creating a code of Jewish law, which alone would serve as the basis for deciding the halakhah.
In the introduction to both his Sefer Mitzvot and Mishneh Torah, and elsewhere, Maimonides clearly explained his motivation, and the object and method of compiling his Mishneh Torah. Factors such as the proliferation of halakhic material and the difficulty in ascertaining and understanding it "so that all the laws shall stand revealed to great and small" are known to have had a bearing on other halakhic codifications too, but Maimonides' great innovation lay in his objective and in the manner in which this objective was pursued. While his book never purported to be the source of authority of the halakhah – a status previously assigned only to the Written Law together with the Oral Law – it was nevertheless designed as the authoritative compilation in accordance with which the halakhah should be decided, since Maimonides was convinced that no contradiction between his book and earlier binding halakhic literature was conceivable. To attain his objective, Maimonides observed four guiding criteria in the preparation of his codification, criteria which are still observed in the compilation of a code:
(1) Location and concentration of all the material of Jewish law, from the Written Law until his time, and the scientific and systematic processing of this. This criterion, extensively discussed by Maimonides, was expressed in his unequivocal statement that anyone who referred to the Written Law and to his own book would know each and every detail of the halakhah and have no need for any other book. To this end Maimonides wrote a commentary on the Mishnah and the Jerusalem and Palestinian Talmuds, as well as his Sefer Mitzvot, before writing the Mishneh Torah, which he started in 1177 and worked on for ten years. In furtherance of this purpose he not only examined various versions of different halakhot, determining their exact wording (see Yad, Yom Tov, 2: 12; Ishut, 11:13; Malveh, etc., 15:2; etc.), but also included in his codification items of non-halakhic learning and scientific material necessary for the elucidation of the halakhah (see Yad, Kiddush ha-Ḥodesh, 17:24; 19: 16). In this work, he embraced the whole spectrum of the halakhah and included laws not in practice at the time as well as bodies of rules in Jewish philosophy, principles of faith and religious dogma, and ethical and moral guidance, sometimes blended with halakhic matters (see Yad, Megillah 3:1–3; 4:12–14).
(2) Subdivision and classification of the material according to the subject matter. On Maimonides' own admission this criterion was a most difficult one to fulfill and in certain chapters the laws were collected from "ten or more places." As a model for his work Maimonides took the Mishnah, which itself is far from strictly classified according to subject matter (e.g., in the tractate Kiddushin there are many laws of property and likewise in Gittin there are many laws of agency, and so on). Similar subdivisions in earlier halakhic works, including the monographs of the geonic period, had hardly exhausted all the relevant material. Maimonides divided his work into 14 books (for this reason it is also called Ha-Yad ha-Ḥazakah – i.e., the letters "י" and "ד" representing 14 – based on Deut. 34:12), each subdivided into several parts (called halakhot – construct form: hilkhot) totaling 83 in all; the parts were further subdivided into a total of 1,000 chapters (perakim) consisting of some 15,000 paragraphs (each called a "halakhah"). Maimonides' efforts enabled later scholars, such as the authors of Turim and the Shulḥan Arukh, to continue with the classification of halakhic material.
(3) Deciding upon and designation of a single halakhic rule, without reference to disputing opinions or designation of sources. If Maimonides achieved his first two aims with a rare talent for assembling and classifying the material, his third was accomplished with a masterly daring and willingness to depart from custom in keeping with a man of his stature. Until his time there had been no halakhic work prescribing the rules of Jewish law without mention of the names of those who handed them down, or their sources in talmudic literature. If, in principle, Maimonides recognized as axiomatic the fact of the continuity of the halakhah, he nevertheless did not consider it necessary that such continuity should be outwardly emphasized. He realized that the quoting of differing opinions and the designation of talmudic sources were likely to confuse and limit the usefulness of a code. Accordingly, he introduced a new form into the literature of the Codes, that of a "book of pesakim" which gives a single statement of a rule of law – unqualified, final, and with no designation of sources, except in the case of some 120 halakhic rules added by Maimonides himself and prefaced with remarks such as "it seems to me" and a further 50 rules in which he decided between the opinions of geonim and other rishonim.
(4) Style and formulation. Maimonides chose for his code the language of the Mishnah in preference to that of the Pentateuch which he considered too limited for the adequate expression of all the rules, and also in preference to that of the Talmud, which he considered insufficiently understood in his time (introduction to Sefer ha-Mitzvot). In fact this disclosure is eloquent testimony to Maimonides' modesty, for even though he took the style of the Mishnah as his basis, the overall stylistic structure of his work is nonetheless an original creation marked by two qualities: a clear and mellifluous Hebrew and a lucid legal formulation which is precise and can be read and understood without difficulty. The creation of a Hebrew legal style is one of the highlights of Maimonides' work, which has not been emulated until the present day. The various sources from which Maimonides assembled his halakhic material – the Mishnah, midrashic works, the two Talmuds, the Tosefta and the literature of the geonim and other rishonim – had all been written in different languages or different idioms. Maimonides molded this linguistic and stylistic medley into a harmonious and uniform style with no obtrusive reminders of its past. It has been the good fortune of the Hebrew language that in this regard he departed from his practice of writing in Arabic, thus bequeathing to the Hebrew language the precious asset of a legal style, which is still drawn upon at the present time. (His reply to a pupil's request that the Mishneh Torah be translated into Arabic was "it would lose all its appeal"; Koveẓ Teshuvot ha-Rambam ve-Iggerotav pt. 2 (1859), 15b.)
Notwithstanding all his innovations in the codification of Jewish law, Maimonides left virtually unchanged the casuistic method of formulation that had been customary until his time, except that he rendered the casuistic exposition in a clear and concentrated manner and sometimes added also a normative principle (see, e.g., Yad, To'en, etc. 9:7–8). In doing so Maimonides was apparently influenced by three considerations: (1) he feared that the omission of the casuistic exposition and the statement of a normative legal principle in its place would fail to ensure inclusion of all the pertinent legal facts embraced by the rule, whereas his basic aim was to cover the entire existing body of the halakhah; (2) since outwardly he severed his book from talmudic law, Maimonides' adherence to the casuistic method enabled him to preserve an inherent connection between the two, as anyone reading the Mishneh Torah inevitably senses the spirit and atmosphere of talmudic literature; and (3) the casuistic method, being substantive to the development of Jewish law, dictated itself as the chosen method for codification, so as to facilitate development of the law by way of distinguishing between earlier legal precedents.
Reactions to Maimonides' Approach
As may have been anticipated, Maimonides' far-reaching innovation in the form of a code of Jewish law gave rise to acrimonious debate and strong criticism – centering mainly around his failure to mention the names of the scholars and their different opinions, or to give any indication of talmudic sources. Maimonides justified his omission of the scholars' names on the grounds that this was in answer to the Karaites whose complaint against the Oral Law was that "you rely on the statements of individuals"; therefore he had taken note of the chain of transmission in his introduction but simply stated the halakhic rule in the body of the work in order to make known that "the law was transmitted by way of the many to the many and not from a single individual to another individual" (Letter to R. Phinehas, dayyan of Alexandria, in Koveẓ Teshuvot … pt. 1,250–270, no. 140). However, he did recognize the validity of one contention, and admitted that he should have indicated the source from which a particular law was taken, not in the codification itself but in a separate work (a task which he contemplated undertaking but was apparently unable to accomplish; ibid.). In the style of a great master, confident of the essential validity of his creation, Maimonides wrote: "In time to come, when the envy and stormy passions have subsided, all of Israel will rest content with it alone and will not seize on any other [halakhic work]" (Iggerot ha-Rambam, ed. by D.H. Baneth, no. 6). To some extent his prophecy was fulfilled and even in his lifetime the law was decided in accordance with his codification in most of the academies in Babylonia (Teshuvot ha-Rambam, ed. A. Freimann (1934), 69), Sicily Yemen (Koveẓ Teshuvot ha-Rambam ve-Iggerotav (1859), pt. 2, 24ff.), and elsewhere; in a number of countries, particularly in the Oriental ones, special takkanot were enacted to establish that all matters were to be decided in accordance with this work (Ran, Resp. no. 62).
However, many other scholars strongly criticized Maimonides for these omissions, even though they admired and were awed by the greatness of his labors (see, e.g., Hassagot Rabad, Kelayim, 6:2). His sharpest critic in his own lifetime was the Provençal scholar Abraham b. David of Posquières (Rabad), who feared that the convenient use of Maimonides' work would inhibit study of the talmudic sources and deprive the dayyan of a choice between different opinions in making his decision (ibid.). Accordingly, when Maimonides' work reached him, he studied it in its entirety, writing strictures of exemplary brevity on a substantial proportion of its laws, often sharply worded so as to oblige the reader to refer to the talmudic sources in ascertaining the correctness of Maimonides' statements, so that the link between the law and its sources would be restored. Approximately 100 years later Maimonides' basic notion concerning the place of a "book of pesakim" in Jewish law was sharply criticized by the distinguished halakhist of Germany and Spain, *Asher b. Jehiel (the Rosh). Dealing with the decision of a dayyan based on a rule in the Mishneh Torah, Asher b. Jehiel determined that the dayyan had erred as a result of not properly understanding Maimonides' statements, as could be proved by examination of the talmudic source of the rule in question. He concluded that "all teachers err if they instruct from the statements of Maimonides without being sufficiently familiar with the Gemara so as to know where they were taken from … therefore no person should be relied upon to judge and instruct on the strength of his book without finding supporting evidence in the Gemara" (Rosh, Resp. 31:9). Asher's attitude was in keeping with his general view of the dayyan's freedom to decide and his authority to dissent from an instruction not originating from the Talmud itself, provided that this could be established in a clear and convincing manner (Piskei ha-Rosh, Sanh. 4:6 and see Rabbinical *Authority). In his opinion, any undefined codification that did not link a rule with its talmudic source served to deprive the dayyan of his decision-making authority and for this reason the halakhic system could not condone the existence of such a codification. As a result, it was once more stipulated that a "book of halakhot" possessed no independent standing but was to serve only as an aid to finding the law in talmudic literature itself. If Maimonides' original purpose was not accepted, his Mishneh Torah nevertheless exerted a significant influence on the future codification of Jewish law, not only because Maimonides was the "second pillar" on which Joseph Caro rested his Shulḥan Arukh, but because the latter even accepted the basic premise of Maimonides' method, although with a different approach and in a changed form.
"arms-bearers" (nosei kelim)
The bitter controversy which the Mishneh Torah evoked spurred the creation of a prolific literature and a large camp of "arms-bearers," whose central purpose was to uncover Maimonides' sources, and also to comment on, qualify, and defend him – the hassagot of Abraham b. David serving as their primary starting point. The best-known of these, appearing in virtually all the editions of Maimonides, are the commentaries Migdal Oz and Maggid Mishneh of Shem Tov b. Abraham *Ibn Gaon and *Vidal Yom Tov of Tolosa, respectively, both 14th-century Spanish scholars; the Kesef Mishneh of Joseph Caro, author of the Shulḥan Arukh, and the Yekar Tiferet of *David b. Solomon ibn Abi Zimra, leading Egyptian scholar of the 16th century; the Leḥem Mishneh of Abraham b. Moses de *Boton, a late 16th-century scholar of Salonika; and the Mishneh le-Melekh of Judah *Rosanes, a leading Turkish scholar at the beginning of the 18th century. Also noteworthy is a work called *Haggahot Maimuniyyot, apparently written by a pupil of *Meir b. Baruch of Rothenburg at the end of the 13th century, with the object of supplementing the laws in the Mishneh Torah with the rules of the German and French scholars. It would be difficult to find in all of halakhic literature another instance of a work that produced results so contrary to the avowed purpose of its author. Far from restoring to the halakhah its uniformity and anonymity, "without polemics or dissection … but in clear and accurate statements" (Yad, introd.), Maimonides' pursuit of that very aim became the reason for the compilation of hundreds of books on his work, all of them dissecting, complicating, and increasing halakhic problems, resulting in a lack of uniformity far greater than before.
Codification until the Compilation of the Arba'ah Turim
The polemic surrounding Maimonides' work resulted in the adoption of many literary forms for codification of the halakhah, all aimed at compressing and classifying the material in an assimilable manner while preserving at the same time the link with the talmudic sources. Many scholars adopted the familiar form of the "book of halakhot" arranged in the order of the talmudic tractates; most noteworthy are: Sefer Avi ha-Ezri and Sefer Avi Asaf by *Eliezer b. Joel ha-Levi (Ravyah), a late 12th-century German scholar; Or Zaru'a by *Isaac b. Moses of Vienna (Riaz), first half of the 13th century; and the Mordekhai of *Mordecai b. Hillel ha-Kohen, a late 13th-century German scholar. A work written at the beginning of the 14th century, in classic "book of halakhot" form, was Asher b. Jehiel's Piskei ha-Rosh (also known as Sefer Asheri). In pursuit of his fundamental approach toward the codification of Jewish law and the dayyan's freedom to decide, Asher compiled his work to resemble Alfasi's Sefer ha-Halakhot (it has been suggested that his work was compiled as an addendum to the latter), adopting both the outer arrangement following the order of the talmudic tractates, and the inner structure of a synoptic statement (though wider than Alfasi's) of the talmudic discussion, leading to determination of the halakhic rule. Asher, who at first was the leader of German Jewry after the death of his eminent teacher, Meir of Rothenburg, and later became one of the leading scholars of Spain, included the opinions of both schools in his work and decided between them. His work was acknowledged as a recognized and binding "book of halakhot," its stated conclusions often being preferred to those in the Mishneh Torah. Asher was the "third pillar" on which Joseph Caro founded his Shulḥan Arukh 200 years later.
Another form of "book of halakhot" in this period was that arranged according to subject matter, of which a classic example is the Sefer ha-Terumot of Samuel b. Isaac *Sardi, a contemporary of Naḥmanides. His work is divided into 70 gates (she'arim) – each dealing with a particular subject – in turn subdivided into chapters (inyanim or ḥalakim) and paragraphs (peratim), a subdivision similar to that of the Mishneh Torah. From the point of view of its contents, this work is a "book of halakhot" proper and not a "book of pesakim," since in each case the conclusion is preceded by a discussion of the talmudic source, and different opinions are quoted and a decision taken. The entire work is devoted to the civil law (dinei mamonot), the first codification to deal exclusively with this field of Jewish law. Some writers adopted the form of a "book of halakhot" arranged according to the order of the mitzvot. Maimonides had written his Sefer ha-Mitzvot with the object of enumerating all the precepts so as to avoid omitting any of them later in the compilation of his code, but in this later period "books of mitzvot" were written with the object of deciding the law. In the mid-13th century the Sefer Mitzvot Gadol (known as the Se-Ma-G) was compiled by *Moses of Coucy, a French tosafist. It is divided into two parts, consisting of the negative and positive precepts, and each precept is accompanied by a quotation of the talmudic sources in which the rules of the precept are discussed as well as the opinions of other scholars, followed by the halakhic conclusion. When faced with differences of opinion between Maimonides and distinguished Franco-German scholars – such as *Rashi and Rabbenu *Tam – Moses of Coucy generally decided in accordance with the later scholars. One of the contributing factors to the compilation of this work appears to have been the decree of Pope Gregory ix (1242) banning the Talmud and its study, Moses' work being designed to serve as a means of study and decision until the ban was lifted. For some considerable time it remained one of the best known and most acknowledged halakhic textbooks. Some time later *Isaac b. Joseph of Corbeil wrote his Ammudei ha-Golah, known also as the Sefer Mitzvot Katan or Se-Ma-K. Here too the laws, accompanied by a very brief statement of their talmudic sources, are arranged in the order of the precepts, and the work is divided into seven parts corresponding to the seven days of the week, with the various precepts quoted in relation to particular days of the week on the strength of various hints and homilies (e.g., the laws of marriage on Wednesday since "a virgin marries on a Wednesday," (Ket. 1a); procedural laws on Thursday, since the battei din were in session on this day according to the Takkanat Ezra).
Other "books of halakhot" were arranged according to the individual criteria of their authors; for example, *Isaac b. Abba Mari, the 12th-century Provençal scholar, partly arranged his Ittur Soferim (also known as the Sefer ha-Ittur) according to the order of appearance of the letters in a certain passage. Zedekiah ben Abraham *Anav (13th century, Italy) composed the Shibbolei Ha-Lekket and the Sefer Issur ve-Heter in an order not too different from that later adopted by the Tur. A classic codification, in two parts, was compiled in the 14th century by another Provençal scholar, *Jeroham b. Meshullam. The first part, called Mesharim, is devoted exclusively to the civil law, including associated family law (maintenance, the ketubbah, etc.); the second part, Adam ve-Ḥavvah, deals with ritual law (issur ve-hetter) including that part of family law concerned with the non-pecuniary relationships between spouses, such as the laws of marriage and divorce; it is further divided into two parts, and arranged in the order of application of the various laws at separate stages in a man's lifetime – Adam covers from birth to marriage, and Ḥavvah from marriage to death. The whole codification is divided into parts called netivot, with further subdivision. In this period a new type of codification emerged which in the course of time played a decisive role in the codification of the halakhah, the Torat ha-Bayit of Solomon b. Abraham *Adret (Rashba), spiritual leader of Spanish Jewry in mid-13th century. This work comprises two separate books: the first, Torat ha-Bayit ha-Arokh, may properly be classified as a "book of halakhot" as the author deals with the talmudic sources and the different opinions of the geonim and rishonim in relation to each halakhic matter, reaching the halakhic conclusion after full discussion of the sources; however, the second, Torat ha-Bayit ha-Kaẓar, falls into the category of a "book of pesakim," since in each case the author merely states the halakhic conclusion which he reached in the first part of his work. In this manner Adret sought to overcome the major stumbling block to codification of the halakhah: in the one book he preserved a close link with all the halakhic sources, in the second – based on the discussion and sources in the former – he provided a classic codification presenting a single opinion only, final and decisive. The work as a whole is divided into seven battim ("houses") subdivided into she'arim ("gates"), and deals with only a part of the ritual law, such as the dietary laws. Adret apparently intended to prepare such a twofold codification to cover the entire field of halakhah but succeeded only in compiling one further book, Avodat ha-Kodesh, consisting of two battim and dealing with the festival laws. This may have been the reason why Adret's novel and original method failed to make any great impact on his contemporaries and it was only about 200 years later that its proper worth was recognized.
The System of the "Ba'al ha-Turim"
While most of the forms of codification so far discussed were able to sustain the link with halakhic sources, they failed to produce a work that was convenient to use, easily assimilable, and clearly decisive. Furthermore, in the 12th and 13th centuries a rich and extensive halakhic literature – over and above the halakhic manuals already described – was created in the main centers of Jewish life. In Germany, France, and other Western European countries there was the impressive literary output of the tosafists which, even if expressed mainly in the form of novellae, was obviously not to be overlooked by the dayyan when deciding the law. Numbered among the tosafists were some of the most distinguished scholars, such as Rabbenu Tam and Meir of Rothenburg (Ma-Ha-Ra-M), whose thousands of responsa constituted a decided law which was binding on the courts. Equally important was the halakhic literature, in the form of commentaries, novellae, and responsa, of the contemporaneous scholars of the Spanish school, such as Meir ha-Levi *Abulafia (Ra-Mah), Naḥmanides, and Solomon b. Abraham Adret. This flowering of halakhic literature not only made necessary the compilation of a suitable codification to assemble and classify the whole but was also responsible for growing differences of opinion and custom in the various Jewish centers: "and there remains no halakhic decision which is not subject to disputing opinions so that many will search in vain to find the word of the Lord" (introd. to Tur, yd; cf. Tosef. Eduy. 1:1 and see also compilation of the Mishnah, above). This phenomenon caused particular difficulty in the wide field of civil law (Dinei Mamonot) in relation to the plea of Kim li, a plea which had become particularly prevalent from the time of Meir of Rothenburg onward and one which tended to undermine the existence of proper and ordered judical authority. In terms of this plea, based on the principle that the onus of proof rests on the party seeking to recover from his neighbor (ha-moẓi me-ḥavero alav ha-re'ayah), the defendant was able to avail himself of the existence of disputing halakhic opinions to contend that the opinion which favored his position was the correct one, and that no mamon was to be recovered from his possession until the contrary had been proved (introd. to Tur, Ḥm; see also introd. to Yam shel Shelomo, bk).
Against this background *Jacob b. Asher, third son of Asher b. Jehiel and dayyan in Toledo in the first half of the 14th century, compiled his code in the form of four Turim (lit. "rows" or "columns"). In his work he observed two criteria. First, he decided in accordance with the opinion of Alfasi, and, whenever this was disputed by Maimonides or other posekim, accepted the opinions of his father, as they are expressed in Asher b. Jehiel's responsa or in his decisions (introd. to Tur, Ḥm). To this end he compiled an abridgment of the Piskei ha-Rosh, called Sefer ha-Remazim or Simanei Asheri. Jacob's acceptance of his father's decisions was based on the rule of Hilkheta ke-Vatra'ei, since Asher was the last posek to know of and decide between the opinions of the German and Spanish scholars. Second, with regard to form, Jacob – unlike Solomon b. Adret – produced his codification in a single work combining the qualities of a "book of halakhot" with those of a "book of pesakim." He states the essence of the individual rules briefly, without indicating the talmudic sources or the names of scholars (except at the beginning of a Tur or a particular group of rules), thus giving his work the quality of a "book of pesakim." A statement of each individual rule is followed by a brief quotation of the different opinions expressed on it by the post-talmudic scholars, the geonim or other rishonim, and on these the author makes his decision, sometimes explicitly and sometimes by implication (see introd. to Tur, oḤ, yd, and Ḥm); in this way the work is also a "book of halakhot." In this manner Jacob b. Asher struck a balance by finding a format that was convenient and concise yet preserved the link with the halakhic sources.
structure of the turim
Jacob b. Asher's codification, like Alfasi's but unlike that of Maimonides, includes only the laws in practice in his time and is divided into four parts (turim), each further subdivided into halakhot and simanim (the latter now further subdivided into se'ifim or subsections). The first Tur, Tur Oraḥ Ḥayyim, includes all the rules relating to man's day-to-day conduct, such as the laws of prayer, blessings, etc., as well as those relating to the Sabbath and festivals; the second, Tur Yoreh De'ah, deals with the dietary laws, laws of ritual purity, circumcision, visiting the sick, mourning, and the like, and also with laws at present treated as part of the "civil" law, such as the law of interest (in the Mishneh Torah dealt with as part of the law of lender and borrower); the third, Tur Even ha-Ezer, covers all matters of family law such as the laws of marriage and divorce and the pecuniary relationship between spouses; the last, the Tur Ḥoshen Mishpat, covers by far the greater part of civil law as well as certain portions of criminal law, beginning with the laws relating to composition of the courts and judicial authority, followed by the laws of evidence, the civil law (loans, partnership, property, etc.), and concluding with the laws of theft and robbery and tort. This arrangement of the material was an innovation, differing from that of the Mishneh Torah, where Maimonides was influenced by the order in which the material is treated in the Talmud. (Thus in the Mishneh Torah Maimonides first deals with the laws of tort in the 11th book and in his last book with the laws of composition of the courts, evidence, etc., in a similar manner to the order in the Talmud in which the laws of tort are opened with the tractate Bava Kamma and the laws of court composition, evidence, etc. are dealt with in the tractate Sanhedrin.) Similarly, the various halakhic subjects are subdivided into smaller and more clearly defined units than in Maimonides' code. Like Maimonides, however, Jacob b. Asher combines his introduction or conclusion to the various halakhic subjects with statements of an ethical and moral nature, especially at the beginning of each Tur or of particular parts of them. In these statements he deals at length with aggadic sayings, their authors, and talmudic sources (see, e.g., the introduction to oḤ and Ḥm and to hilkhot Shabbat, oḤ 242). Although the Mishneh Torah crystallizes the subject matter of the halakhah into more self-contained and complete divisions and is written in a more attractive and lucid style, in the Turim Jacob b. Asher not only assembled and classified the entire halakhah of his time in a convenient and orderly form but was also successful in finding a form of codification suited to the special nature of the halakhah. Although some Oriental communities continued to regard the Mishneh Torah as the binding "book of pesakim," the communities of the West – particularly those of Germany, Italy, and Poland – decided in accordance with the Turim, which became the second Hebrew book to appear in print (in 1475).
At the same time and in the following generations several other "books of halakhot" and "pesakim" were compiled, mostly dealing with the subject matter of the Tur Oraḥ Ḥayyim and Yoreh De'ah. These include: the Abudarham of David b. Joseph *Abudarham, a 14th-century Spanish scholar; the Agur of Jacob b. Judah *Landau, a 15th-century Italian scholar; and the 14th-century German scholar Isaac b. Meir of Dueren's Sha'arei Dura, which deals only with the ritual laws and may be classified as a "book of pesakim," since the opinions of the rishonim are scantily quoted and talmudic sources not at all. Other similar works from this period deal with family law also, as in the Orḥot Ḥayyim of *Aaron b. Jacob ha-Kohen of Lunel, an early 14th-century French scholar, and the Ẓeidah la-Derekh of the contemporary Spanish scholar, Menahem b. Zerah. The only work which dealt with topics covered in the Tur Ḥoshen Mishpat was the Aggudah, compiled by the early 14th-century German scholar *Alexander Suslin ha-Kohen and consisting of decisions and novellae on all parts of the Talmud, arranged in the order of the latter. The above-mentioned works remained in use alongside Jacob b. Asher's Turim, which for some 200 years was the accepted and central "book of pesakim," and in due course formed a basis for the compilation of Joseph Caro's Shulḥan Arukh, the foremost codification of Jewish law.
"arms-bearers" to the turim
Works on the Turim were written in the 15th century by Spanish scholars (see Introd. Beit Yosef to Tur oḤ, mentioning the commentaries of Isaac *Aboab, Jacob *Ibn Ḥabib, etc.), but the classic "arms-bearers" of the Turim were composed in the 16th and early 17th centuries, most of them by German scholars. Two of the best known are the Beit Yosef and Darkhei Moshe. In the second half of the 16th century Joshua *Falk b. Alexander Katz of Poland compiled his Beit Yisrael, a work in three parts: the first, Perishah, is a commentary on the Turim; the second, Derishah, deals with the different opinions of other halakhic scholars; and the last, Be'urim, consists of glosses on Darkhei Moshe. The classic work on the Turim is the Bayit Ḥadash ("Baḥ"), a commentary by Joel b. Samuel *Sirkes, the 17th-century Polish scholar, in which the sources of the Turim are indicated, and differing opinions quoted in the Turim, Beit Yosef, and Darkhei Moshe discussed, and the law decided. In addition, Sirkes made a critical examination of the text of the Turim.
The Method of Joseph Caro
In the period from Jacob b. Asher until Joseph Caro a series of decisive historical events profoundly influenced Jewish life. The outbreak of the *Black Death (1348–50), followed by intensified persecution of German Jewry, and that of Spanish Jewry, commencing from the middle of the 14th century and ending with the expulsion from Spain in 1492, resulted in the mass migration of Jewish communities and the establishment of new centers. Thus Polish Jewry was built up from German migrants, while Spanish Jews settled mainly in Oriental countries, especially Turkey, Ereẓ Israel, Egypt, and North Africa. One such migrant was Joseph Caro, who was born in Spain in 1488 and settled at Safed in Ereẓ Israel where he became a member of the Great Rabbinical Court, the foremost halakhic tribunal of his time.
This process of uprooting and resettlement of whole Jewish communities brought many halakhic problems in its wake and many conflicts between established communities and new arrivals, with the result that "… the Law has come to consist of innumerable torot" (Beit Yosef to Tur oḤ, introd.) and "everyone builds a platform unto himself" (S. Luria, Yam shel Shelomo to bk, introd.). This state of affairs was accompanied by considerable creativity in the field of halakhic literature, particularly in the form of responsa, with which the dayyan could not easily keep abreast. At this time, too, the longing of the Jews to return to their ancient homeland, to restore their life "as in the days of yore," once more came to the fore. One of the ways in which this longing was expressed was Jacob *Berab's efforts to renew *ordination (semikhah; Caro was one of the first to be ordained by him), in order to restore supreme halakhic authority over the nation. A codification that would assemble, summarize, and reduce the halakhah therefore became necessary; the task was undertaken by Joseph Caro, who envisaged the compilation of a single work consisting of two parts, differing from each other in form and content but supplementing each other in their common purpose. Maimonides too hinted at this method when he planned to supplement his Mishneh Torah with a separate book on its sources, and Solomon b. Abraham Adret actually adopted this method (supra), but it was Caro who succeeded in bringing the method to fruition and converting it into the principal and appointed codificatory receptacle of the halakhah.
Of the two parts of his code, the Beit Yosef and the Shulḥan Arukh, the former takes precedence, not only chronologically but also in scope and content. Caro set two principal objectives for himself in Beit Yosef. He aimed at including all the halakhic material in use at the time, with the talmudic sources and the different opinions expressed in post-talmudic literature up to his day; here Caro linked himself to the Turim, avoiding the need to quote the halakhic material already stated there (Beit Yosef to Tur oḤ, introd.). Apart from talmudic literature itself, Beit Yosef includes material from the works of 32 of the most distinguished halakhic scholars, who are mentioned by name (ibid.), including a few "sayings from the *Zohar" (although he stresses that in cases of contradiction the Talmud is to be preferred to the Zohar; Beit Yosef, oḤ, 25). Caro's second objective was to decide the law, "since this is the purpose, that we shall have one Torah and uniform law" (ibid.). For this purpose he chose an original method of calculating the rule: whenever Alfasi, Maimonides, and Asher b. Jehiel had dealt with a particular matter, the law was decided according to their majority opinion (except if a majority of halakhic scholars held a different opinion and there was a contrary custom); if a matter had been discussed by only two of these three and their opinions differed, five additional authorities were considered (Naḥmanides, Solomon b. Abraham Adret, Nissim Gerondi, Mordecai b. Hillel, and Moses b. Jacob of Coucy) and the law decided according to their majority opinion; if none of the first three had dealt with a matter, the law was decided according to the opinion of the majority of the "famous" scholars (mefursamim, ibid.). Caro admitted that the proper method of deciding the law would have been by a substantive examination of the correctness of each rule in terms of the talmudic sources, but added that this would have made the task of deciding between the great halakhic scholars extremely laborious and protracted, considering the large number of rules requiring decision (ibid.).
Caro realized that the Beit Yosef as it stood, in essence a "book of halakhot," would not answer the main requirements and that only a book embracing the halakhah in undefined and summarized form, in the manner of the Mishneh Torah, was capable of being "a regulation for the benefit of the world" (tikkun ha-olam; Kesef Mishneh on introd. to Mishneh Torah). He accordingly decided to compile an additional book, the Shulḥan Arukh (a name already appearing in Mekh., Mishpatim, 1), in which conclusions from his Beit Yosef were to be stated "briefly in clear language … so that every rule [that the dayyan shall be asked to deal with] shall be clear in practice" (introd. to Sh. Ar., Ḥm). Caro's aim was that the Shulḥan Arukh should serve not only the talmidei ḥakhamim, but all of the people; that "the talmidim ketannim shall constantly have reference thereto" – as was the wish of earlier codifiers of the halakhah, just as it had been the codificatory objective in other legal systems (supra). He therefore divided the Shulḥan Arukh into 30 parts, one to be read each day so that the whole work could be covered every month (ibid.).
If the motivation and aims of Maimonides and Caro in codifying the halakhah were the same, their choice of method differed, since the former sought to obviate any subsequent need for a book other than his own in deciding the halakhah, whereas the latter realized that this was "a short and a long road, because no rule would ever be known according to its proper derivation" (Beit Yosef, introd. to oḤ – on the subject of summaries such as the Semak, Aggur, and Kol Bo). Therefore a brief, synoptic "book of pesakim" would be a useful supplement to a separate "book of halakhot" embracing the sources and different opinions. Thus it was that Maimonides regarded the Mishneh Torah as his main creation and his other halakhic works as preparatory and secondary to it, whereas Caro regarded the Beit Yosef as his primary creation; he devoted 20 years to compiling it and a further 12 to annotating it (see also introd. to his Bedek ha-Bayit), calling it his Ḥibbur ha-Gadol ("great work," introd. to Sh. Ar.). Compared with Beit Yosef, the Shulḥan Arukh was no more than a "collection from the flowery crown of this large and thick tree" (ibid.). Two books, separate yet supplementary – the one a "book of halakhot" in which the conclusion is tied to the sources, the other a "book of pesakim" containing the same conclusion, in most cases stated briefly and standing alone – were the final form adopted for codification of the halakhah.
Structure and Arrangement of the Shulḥan Arukh
Caro's use of the Turim as the basis for his work accounts for their similar subdivision and structure; the Shulḥan Arukh is also divided into four parts with the same titles as those of the four turim, in turn subdivided into some 120 halakhot, 1,700 simanim and 13,350 se'ifim. There are, however, a number of differences between the two codifications. Thus Jacob b. Asher's subdivision of large units into smaller ones is not followed in the Shulḥan Arukh, where the material is to some extent more concentrated, Caro in this sense having chosen a middle way between Maimonides and Jacob b. Asher (cf., e.g., the subdivision in the Tur and Sh. Ar., Ḥm, 39–74 and 190–226; so too the four books of Nezikim, Kinyan, Mishpatim, and Shofetim are divided in the Mishneh Torah into 19 halakhot and the same material is divided in the Tur and Sh. Ar., Ḥm, into 58 and 42 halakhot, respectively; on rare occasions the Sh. Ar. is subdivided to a greater extent: see, e.g., Ḥm, 303–6 and 157–75). Caro also provided each siman with a heading (see introd. to Sma, conclusion), at times shortening the names of halakhot when they were unduly long (cf. Tur and Sh. Ar., Ḥm, 241–9 and 273–5) or adding to them when they were inadequate descriptions of their contents (ibid., 272 and 388). At times Caro added an entire topic that does not appear in the Turim (ibid., 427; cf. Maim Yad, Roẓe'aḥ, 11) and occasionally he deleted some halakhot (Sh. Ar. Ḥm 247).
The Shulḥan Arukh omits not only the halakhic sources and the names of the scholars – as is the case in the Mishneh Torah – but also anything additional that is not essential to the rule itself, such as moral and ethical statements, scriptural authority, and substantiation of the rule. Hence Caro's work is far briefer than that of Jacob b. Asher or even of Maimonides (compare, e.g., Yad, Tefillah, 11:1–2, with Sh. Ar., oḤ, 150: 1–2; Yad, To'en 12:5 with Sh. Ar., Ḥm 144:1; Tur, oḤ 1 with Sh. Ar. oḤ 1:1). In its uniform and integral creation as well as clarity and beauty of style, the Mishneh Torah has retained its position of supremacy; yet, from the standpoint of brevity and decisiveness the Shulḥan Arukh stands supreme, a factor undoubtedly contributing to its acceptance as the standard "book of pesakim" of the halakhah. The Mishnah, the first halakhic codification after the biblical law, was completed in Lower Galilee at the end of the second century; about 1350 years later, in 1563, the last authoritative codification was completed in Upper Galilee and once again "the Law went forth from Zion" to the whole Diaspora. In 1565 all four parts of the Shulḥan Arukh were printed for the first time in Venice, and Caro lived to see his work reprinted several times and disseminated among all the communities of Israel.
The Role of Moses *Isserles ("Rema") in Halakhic Codification
Moses Isserles was one of the leading scholars of Polish Jewry at the time Caro's code reached that country. His teacher Shalom *Shakhna was utterly opposed to the idea of codifying the halakhah, as he believed that the decision of the dayyan must be made on the strength of an individual study of the halakhic sources and that the very fact of the law's redaction sufficed to deprive him of his decisory discretion in any concrete case before him. This followed from the doctrine of Hilkheta ke-Vatra'ei (see Rabbinical *Authority) which would constrain the dayyan to consider himself bound by the decision contained in the code. Consequently, he would refrain from following other canons of decision, namely that the dayyan must act "only according to what he sees with his own eyes" and that he must decide "according to the present exigencies and the dictates of his own heart" (see the statements of Israel, son of Shalom Shakhna, quoted in Rema, Resp. no. 25; this had also been the attitude of Jacob *Pollak, teacher of Shalom Shakhna, ibid.). At first Isserles sought to compile his book, the Darkhei Moshe, to follow the Turim and merely to assemble all the halakhic material until his time in brief and synoptic form – including the different opinions but without deciding between them – for the sole purpose of making it easier for the dayyan to find the material (introd. to Darkhei Moshe). However, while he was writing his book, Caro's Beit Yosef reached him, and when he realized that Caro had already assembled all the halakhic material, his first reaction was not to continue with his own book. In the end he decided to complete it, for two main reasons: first, because Caro had not incorporated a substantial portion of halakhic literature, particularly the contribution of the Ashkenazi scholars; second, because he disputed Caro's main decisory canon, namely that Alfasi, Maimonides, and Asher b. Jehiel were the "pillars of halakhic decision," since it conflicted with the principle of Hilkheta ke-Vatra'ei, that the law was to be decided in accordance with the opinions of later distinguished scholars. Isserles accordingly changed the direction of his book to decide the law in accordance with this latter principle, noting specifically, moreover, that it would be permissible for the dayyan to differ even from this determination since "he must act only in accordance with what he sees with his own eyes" (ibid.; the Darkhei Moshe printed in the regular editions of the Tur and called Darkhei Moshe Kaẓar is apparently an abridgment of Darkhei Moshe ha-Arokh). Isserles pursued these objectives in his second codifying work, the Torat Ḥattat, embracing a substantial part of the ritual, mainly dietary laws, and compiled in the wake of the Sha'arei Dura (above). Later, when the Shulḥan Arukh also became available, Isserles decided to add his own glosses to it, which he "spread like a cloth" (i.e., mappah, by which name his glosses are known) on Caro's "prepared table" (the meaning of shulḥan arukh) of the halakhah.
In his glosses, representing the conclusions arrived at in his Darkhei Moshe (Rema, Resp. nos. 35 and 131), Isserles quoted the different Ashkenazi opinions and customs in order to decide between them according to the Hilkheta ke-Vatra'ei rule (ibid., introduction), all in the brief and decisive style of the Shulḥan Arukh. If his glosses served to interrupt the element of uniform law imparted by the Shulḥan Arukh, this was nevertheless in keeping with Isserles' purpose: "that students shall not follow thereafter to drink from it without dispute," but that the dayyan should know of the existence of differing opinions, even if briefly stated, and decide according to the rule of Hilkheta ke-Vatra'ei and "what he sees with his own eyes" (ibid.). His glosses also make changes in the wording of the meḥabber's statements (i.e., "the author," as Caro is referred to in the Sh. Ar.; see, e.g., Sh. Ar., Ḥm 121:9, Isserles and Sma 20); sometimes Caro's statements are explained (Isserles, Sh. Ar., Ḥm 131:4 concl.) or contradictions between different decisions pointed out; at times a particular rule is added, so as to refine the structure of the main work (e.g., Sh. Ar., Ḥm 182:1; cf. also the statements of Caro and Jacob b. Asher, mentioned above and Yad, Sheluḥin, etc., 1:1). Isserles' glosses rounded off the Shulḥan Arukh into a codification embracing all the nuances of the halakhah in use in the various Jewish centers. Whereas Abraham b. David's strictures on the Mishneh Torah resulted in a strong movement against Maimonides and the ultimate non-acceptance of his work as the codex of the halakhah, the glosses of Isserles – who called Caro "Light of Israel" and "Rosh ha-Golah" (introd. to Darkhei Moshe) and accepted the basic pattern of a "book of pesakim" alongside a "book of halakhot" – actually paved the way for the acceptance of the Shulḥan Arukh, in due course, as the authoritative and binding code of the masses of Israel.
Reactions to the Shulḥan Arukh
As was the case with earlier codifications, appreciation of the Shulḥan Arukh along with Isserles' glosses was mingled in the initial stages with a great deal of criticism, often severe, from the Oriental communities, as well as those of Germany and Poland (see, e.g., the criticism – later retracted – of Joseph ibn Lev of Turkey in Shem ha-Gedolims.v.Beit Yosef; cf. the statements of Paltoi Gaon). Many halakhic scholars noted occasional contradictions between the Beit Yosef and Shulḥan Arukh; Jacob de Castro, Caro's younger contemporary, attributed these to the author's infirmity since the latter wrote the Shulḥan Arukh toward the end of his life (Oholei Ya'akov, 20), and accordingly wrote his own annotations, Erekh Leḥem. Samuel *Aboab, an Italian scholar of the mid-17th century, circulated the rumor that Caro had entrusted the compilation of the Shulḥan Arukh to his pupils (Devar Shemu'el, no. 251). Yom Tov *Ẓahalon, an early 17th-century scholar of Ereẓ Israel, ventured the sweeping opinion that the Shulḥan Arukh was compiled by Caro for "minors and ignoramuses (Ammei ha-Areẓ)" (Maharitaẓ, Resp. no. 67). These speculations contradicted Caro's own explicit statements on the subject (introd. to Sh. Ar.), except that he envisaged that pupils too should study his work, as was the hope of other codifiers (see also, in explanation of the above-mentioned contradictions, Azulai, Shem ha-Gedolim, s.v.Shulḥan Arukh; idem, Maḥzik Berakhah, yd 47:4; idem, Birkei Yosef, oḤ 188:12). Scholars of the Oriental communities were very hesitant to accept Caro's canon of deciding according to the majority opinion of Alfasi, Maimonides, and Asher b. Jehiel, since it conflicted with the Hilkheta ke-Vatra'ei rule (Reshakh, Resp. pt. 1 no. 134; Birkei Yosef, Ḥm 25, 29). To some extent this difficulty was overcome by the aid of a tradition that 200 rabbis of Caro's generation had accepted his decisory canon (Birkei Yosef, ibid.), so that a majority of later scholars had in effect agreed to decide according to the "three pillars of halakhic decision." Despite these doubts, Caro's decisions and directives were accepted by the majority of Oriental scholars in his own lifetime (Ranaḥ, Resp. pt. 1, no. 109; Yad Malakhi, Kelalei Sh. Ar. 2).
In Poland and Germany criticism of the Shulḥan Arukh was far more severe and fundamental. The very concept of codifying the halakhah had already been rejected by the spiritual founders of Polish Jewry, Jacob Pollak and his pupil Shalom Shakhna, and this path was followed by the latter's pupils, *Judah Loeb b. Bezalel and his brother Ḥayyim. In Judah's opinion, once the already-decided law could be ascertained from a code without any mental effort, such effort would inevitably be channeled in the undesirable direction of pilpul ("hairsplitting") for its own sake, and proper study – in the order of Scripture, Mishnah, and Talmud – would become neglected (Derekh Ḥayyim, 6:6). Moreover, study and understanding of the law were prerequisites for deciding it; making decisions from a study of the talmudic and post-talmudic discussions – even if error were occasionally to result – was to be preferred to a "decision based on a single work without knowledge of the underlying reasoning, in a blind manner" (ibid., and his Netivot Olam, Netiv ha-Torah, 15). In pursuing this approach, Judah Loeb b. Bezalel remarked that Maimonides and Jacob b. Asher had also intended no more than that the law should only be decided according to their codifications after the talmudic source of a rule was known to the dayyan (ibid.), a puzzling remark, particularly in light of Maimonides' own unequivocal statements (introd. to Mishneh Torah). Judah's brother Ḥayyim was opposed to the compilation of halakhic summaries, since "these lead to tardiness in studying the ancient works … progressively so the more they ease study" (introd. to Vikku'aḥ Mayim Ḥayyim, ed. Amsterdam (1711/12); moreover he fundamentally rejected the idea of reducing the halakhah to uniformity, the idea at the root of any codification, since "it may be believed that just as it is the nature of creation for the face of mankind to differ, so wisdom remains yet divided in its heart." Not only was it wrong to call lack of uniformity "a shortcoming rendering the Torah two Torot, Heaven forbid!"; on the contrary, "this is the way of the Torah, and these statements and those represent the words of the living God" ("Ellu ve-Ellu Divrei Elohim Ḥayyim"). Hence dispute was vital to the substance of the halakhah and offered increased possibilities for deciding the law according to the dayyan's own lights and existing circumstances (ibid.).
Other scholars of this generation took a less extreme attitude toward codifying in itself but criticized the method and form adopted by Caro and Isserles. Solomon Luria also raised his voice against the proliferation of halakhic dispute in his time, but vigorously opposed Caro's method of deciding the law – which he termed "compromise" – holding that a decision had to be made after examination of all opinions against the background of talmudic sources only, for "ever since the days of Ravina and Rav Ashi it has not been customary to decide according to one of the geonim or aḥaronim, but … according to the Talmud only and also – where a matter has been left undecided in the Talmud – according to the Jerusalem Talmud and Tosefta" (introd. to Yam shel Shelomo, bk; cf. Asher b. Jehiel's opinion, above). In this spirit he compiled his own "book of halakhot" Yam shel Shelomo (which he also began writing before Caro's works had reached him, altering it in light of the latter). In this work the talmudic sources and different opinions of the halakhic scholars are quoted alongside each rule, arranged in the order of the talmudic tractates. Although originally covering 16 tractates (according to his pupil, Eleazar Altschul in Yam shel Shelomo to bk, ed. Prague, 1622/3), only a part, covering seven tractates, is extant, in which his decisions on the law are given at the conclusion of the discussions.
A different approach was taken by Mordecai b. Abraham *Jaffe – younger contemporary of Solomon Luria and Isserles – in his book Levush Malkhut (a title derived from Esth. 8:15). He too protested vigorously against the exaggerated pilpul marking study of the Torah in his time, but, unlike Judah Loeb b. Bezalel, he sought to restore the study method which had as its objective the ascertainment of the halakhic truth through the medium and study of a "book of halakhot." He regarded Beit Yosef as unsuitable for this purpose because of its lengthy deliberations, and when the Shulḥan Arukh with Isserles' glosses reached him he considered it equally unsuitable, because the statements were unduly brief and decisive. He therefore sought to compile a work that would "strike a balance between the two extremes … expanding when explanation is called for and abridging when proper" (introd. to his Levush). In addition to its instructional purpose, he intended his work to serve as a code (ibid.), containing in one and the same book the final conclusion without the talmudic discussions, but substantiated in each case in a brief and convenient manner. He divided his work into eight parts (actually ten) called Levushim (such as Levush ha-Tekhelet, ha-Ḥur, Ir-Shushan, etc. all derived from Esth. 8:15), and in the first five "tailored" (as he described it himself in his introduction) the entire body of the halakhah practiced in his time; the remaining Levushim were devoted to biblical exegesis, philosophy, etc.
In Mordecai Jaffe's generation and in the succeeding one protest increased against deciding the halakhah according to the Shulḥan Arukh. Thus Samuel Eliezer *Edels, the early 17th-century Polish scholar, considered that those who laid down the halakhah without having studied the talmudic sources were deserving of censure (in his Ḥiddushei Halakhot ve-Aggadot, Sot. 22a), and in order to promote general study of the Talmud, he wrote a classic supercommentary on the Talmud, Rashi's commentary, and the tosafot. *Meir b. Gedaliah (the Ma-Ha-Ra-M of Lublin), who also wrote a supercommentary on the Talmud and its commentaries, noted that he would base no decision of his own on the Shulḥan Arukh and the Levushim, "which are like head-notes and unclear and many are led astray by their statements to wrongly permit what is prohibited or exempt from liability" (his Responsum no. 135). He recognized Caro's stature and sometimes even relied on his rulings (e.g., Resp. no. 118), but sought to prevent the Shulḥan Arukh or any other similar work from constituting an authoritative codex of the halakhah. The contemporary scholar Yom Tov Lipmann *Heller, author of the Tosafot Yom Tov on the Mishnah, also criticized the codifying efforts of Maimonides and Jacob b. Asher as well as Caro and Isserles. Like his teacher, Judah Loeb b. Bezalel, Heller too was satisfied that in any event none of them had envisaged that the law should be decided in accordance with his own work except "after having already labored to find and know the problems in the Gemara" (introd. to Ma'adanei Yom Tov and Divrei Ḥamudot on Piskei ha-Rosh). Even when this condition was satisfied, a proper codification should adopt the method of Alfasi and Asher b. Jehiel who precede the halakhic conclusion with the relevant talmudic discussion (ibid.). Since Heller regarded Asher b. Jehiel's Piskei ha-Rosh as the halakhic code, he wrote his commentaries (Ma'adanei Yom Tov and Divrei Ḥamudot) to explain this work and resolve the problems emerging from it, and he also corrected errors and added rules elaborated since Asher's time, even differing occasionally from Asher's decisions (ibid. introd.).
Acceptance of the Shulḥan Arukh as the Authoritative Halakhic Code
This attitude toward Caro's and Isserles' codification was apparently shared by most of the succeeding generation of scholars and for some time it seemed that their combined creation, like all similar earlier works, would fall short of providing an overall solution to the problem of an acceptable code. In the end, however, two factors were instrumental in bringing about the desired result. The first was the contribution of Joshua b. Alexander Ha-Kohen *Falk, pupil of both Solomon Luria and Isserles. In the form it adopted, he found no fault with the Beit Yosef (although he criticized it for other reasons), but he took a different view with regard to the Shulḥan Arukh and Isserles' glosses. In his opinion Caro and Isserles had only intended the law to be decided according to the Shulḥan Arukh when the talmudic sources were known from a study of the Tur and Beit Yosef (cf. the views of Judah Loeb b. Bezalel and of Heller, above). He added that in his time "people decide according to the Shulḥan Arukh [only] and render themselves a disservice … since they do not properly understand the substance of the statements" (in his introd. to Beit Yisrael and Sma). In order that Caro's original purpose should be fulfilled, Falk wrote (in addition to his commentaries on the Turim and Beit Yosef) a commentary on the Shulḥan Arukh itself, intended not only to explain the latter but also to constitute an integral part of it: "without this commentary it shall be forbidden to decide the law according thereto" (i.e., to the Sh. Ar.; ibid.). In this way, he believed, the Shulḥan Arukh – with its brief and decisive rules – would become the "book of pesakim," but decision in accordance with it would be permissible only after study of the corresponding comment alongside each paragraph, so that possible error resulting from misunderstanding of the main work would be eliminated. Falk found experience to have shown that Caro's method of compiling two separate types of books to supplement each other did not suffice to link a synoptic and determinative statement of the halakhah with its sources, and therefore this link had to be established in the "book of pesakim" itself – not, however, by fusing the substantiation into the final conclusion, but by separately adducing the former alongside the latter (ibid. and in this connection see also his remarks concerning Jaffe's Levushim). His commentary, Sefer Me'irat Einayim (known as the "Sma"), quotes the sources of each law and the different opinions expressed as well as new rules and resolved problems. It is confined to the part on Ḥoshen Mishpat, "which is an occupation of Torah and to which all turn their eyes to decide in accordance therewith" (ibid, interesting evidence of the practice in Jewish civil law), the author apparently having been unable to complete his intended commentary on all parts of the Shulḥan Arukh (ibid.).
Joel Sirkes (author of Bayit Ḥadash, a commentary on the Turim), who was opposed to deciding the law from the Shulḥan Arukh for very similar reasons (Baḥ, Resp. Yeshanot no. 80; also Bah, Resp. Ḥadashot no. 42), apparently sought to follow in the footsteps of Falk. In addition to commenting on the Turim and the Beit Yosef, he began a commentary on the Shulḥan Arukh (Baḥ to Ḥm, introd.), presumably with the same object in mind as Falk. The Sma rounded off the final form of the halakhic code that had been prepared by Caro and Isserles. The brevity and finality of a "book of pesakim" ensured convenient use and easy reference; the extended scope of a "book of halakhot," with commentary alongside the former within the same book, provided the link between the halakhah and its sources. Distinguished scholars of the post-Sma generation were soon to adorn all parts of the Shulḥan Arukh with their commentaries. The following became its classic and acknowledged "arms-bearers," in whose terms the directives of the Shulḥan Arukh have been rendered authoritative and binding: the Turei Zahav or "Taz" of *David b. Samuel ha-Levi (on all four parts, but mainly on oḤ and yd); the Siftei Kohen or "Shakh" of *Shabbetai b. Meir ha-Kohen (on yd and Ḥm); the Ḥelkat Meḥokek of Moses *Lima; the Beit Shemu'el of *Samuel b. Uri Shraga Phoebus (both on eh); and Abraham Abele *Gombiner's Magen Avraham (on oḤ).
It is more than likely that this eventual resolution of the problem of codifying would have been further delayed but for the fateful historical events overtaking the Jewish world at this time. The generation of the "arms-bearing" commentators on the Shulḥan Arukh saw Jewish life in central Europe disrupted once more, this time by the upheavals of the mid-17th century, when the *Chmielnicki massacres of 1648 resulted in the liquidation of many Jewish communities and halakhic centers. Once more such disruption stimulated the trend to codification, but this time there was a code complete and ready, waiting only for endorsement by the leading scholars of the generation. Thus Menahem Mendel *Krochmal, the distinguished 17th-century German scholar, stated that "upon publication of the Beit Yosef and Shulḥan Arukh followed by Isserles' glosses, and the dispersal of these among all Israel … we have nothing but their statements" (Ẓemaḥ Ẓedek no. 9). In the course of time it was further emphasized that, with the addition of its above-mentioned commentaries, the Shulḥan Arukh had become the authoritative and binding halakhic code (Pitḥei Teshuvah, yd 242:8).
After the Shulḥan Arukh
A study of the codificatory trend in Jewish law reveals the interesting historical phenomenon of a recurring revival of activity at regular intervals of 100–200 years: in the eighth and ninth centuries the geonic "books of Halakhot"; in the 11th century Alfasi's Sefer ha-Halakhot; in the 12th century Maimonides' Mishneh Torah; in the 14th century Jacob b. Asher's Turim; and finally, Caro's Shulḥan Arukh with Isserles' glosses in the 16th century. This historical pattern has stood interrupted since then and for some four centuries there has been no further recognized and authoritative code that embraces the entire field of the halakhah. The reason for this is bound up with the coming of emancipation at the end of the 18th century, an event that fundamentally changed the face of Jewish society. One of its consequences was the abrogation of Jewish organizational and, gradually, judicial *autonomy, leading to the division of Jewish society into traditional and non-traditional elements. All this weakened the authority of the halakhah and deprived it of much of its dynamism, just as it reduced the need for any additional "book of pesakim." As the fields of halakhic interest and influence narrowed, so the scope of halakhic works from the middle of the 18th century onward became more and more limited to matters of actual daily life – in the same way as the overwhelming majority of earlier "books of halakhot" and "pesakim" had dealt only with the laws customary at the time of their compilation. Thus works such as the Shulḥan Arukh of *Shneur Zalman of Lyady (1747–1812, the founder of Ḥabad Ḥasidism), the Ḥayyei Adam and Ḥokhmat Adam of Abraham *Danzig (1748–1820), and the well-known Kiẓẓur Shulḥan Arukh of Solomon *Ganzfried (1804–86) are confined in effect to matters discussed in Oraḥ Ḥayyim, Yoreh De'ah, and part of Even ha-Ezer (in the Sh. Ar.) and virtually do not deal at all with matters in the Ḥoshen Mishpat, the latter continuing to be a subject of academic study only. (A notable exception is the Arukh ha-Shulḥan compiled by Jehiel Michael *Epstein (d. 1908) on all four parts of the Shulḥan Arukh; additional portions of this work have been published under the title Arukh ha-Shulḥan he-Atid, dealing with matters not discussed in the Shulḥan Arukh, such as the laws of Pe'ah, Terumah, Sanhedrin, Melakhim, etc.) None of these works, however, has been able to disturb the status of the Shulḥan Arukh as the authoritative "book of pesakim" in Jewish law, not even with reference to the matters actually dealt with in them, and they may be described as merely forming part of the great commentative literature surrounding the Shulḥan Arukh.
Of course, apart from the above-mentioned works of the post-Shulḥan Arukh period, the literature of the halakhah has been further increased by a rich contribution of supplementary "arms-bearers" to the Shulḥan Arukh: commentaries, novellae, and responsa as well as takkanot and customs; all of which the present-day dayyan must take into consideration when deciding the law – subject still to the overriding authority of the Shulḥan Arukh with its acknowledged commentaries. With the return of the Jewish people to their homeland, all the past factors and imperatives of codification have reasserted themselves – perhaps with greater vigor. To the usual array of factors necessitating elucidation of the law – halakhic dispute, profusion of material (particularly since compilation of the Shulḥan Arukh), and the more recent phenomenon of a religiously divided Jewry – must now be added a large variety of questions arising from the social, economic, and technological realities of the present time.
bibliography:
P. Buchhole, in: mgwj, 13 (1864), 201–17, 241–59; C.P. Ilbert, The Mechanics of Law Making (1914), 150–80; J. Guttmann (ed.), Moses Ben Maimon, sein Leben, seine Werke und sein Einfluss, 2 vols. (1908–14); E. Freund, Legislative Regulation (1932), 3–17; A. Gulak, in: Tarbiz, 6 (1934/35), no. 2, 139–51; J.A. Seidmann, in: Sinai, 12 (1942/43), 428–38; H. Tchernowitz, Toledot ha-Posekim, 3 vols. (1946–47); Z.J. Cahana, in: Sinai, 36 (1954/55), 391–411, 530–7; 37 (1955), 51–61, 157–64, 220–7, 381–5; 38 (1955/56), 46–53, 114–7, 243–6; L. Ginzberg, On Jewish Law and Lore (1955) 153–84, 257; Assaf, Ge'onim, 133–320; J.N. Epstein, Mevo'ot le-Sifrut ha-Tanna'im (1957), 225f. J. Nissim, in: Sefer ha-Yovel… Sinai (1958), 29–39; idem, in: Sefunot, 2 (1958), 89–102; J.M. Toledano, in: Sinai, 44 (1958/59), 25–30; Ch. Albeck, Mavo ha-Mishnah (1959), 105–11, 270–83; M. Havazelet, in: Sinai, 56 (1964/65), 149–58; M. Elon, in: Hagut ve-Halakhah (1968), 75 119; T. Twersky, in: Judaism, 16 (1967), 141–58.
[Menachem Elon]