Halaka Page

Criticism of the improper use of the Shulkhan Arukh

and other Jewish law codes

By Robert Kaiser

It is well known that the Shulkhan Arukh ("Set Table" of Jewish law) has been used as the basic Jewish law guide since the 16th century. In Orthodox, Conservative, Traditional and Sephardic (non-movement affiliated) circles, this guide is the basic work from which rabbis draw to aid in their decision making. However, among somestudents there is the belief that the Shulkhan Arukh is more than an authoritative guide; Many in fact believe that all must accept the Shulkhan Arukh as a binding law code, to which all Jews must swear unquestioned allegiance.

This is not so. The Shulkhan Arukh "has no more claim to our unquestioned obedience than the Mishneh Torah or the Semag or the Tur, yet we should accept the Shulkhan Arukh as a guide for religious practice - which was all that Karo intended it to be" [Boaz Cohen, "Law and Tradition", p.70]. In the words of Rabbi Isidore Twersky "The Shulkhan Arukh is not a revealed canon, nor is it a hypostasis of the law. In the long creative history of the Oral Law it is one more link connecting Rav Hai Gaon, Maimonides, Nahmonides...with Rabbi Elijah Gaon of Vilna...and Rabbi Joseph Rosen. It is a significant work which, for a variety of reasons, became a repository and a stimulus, a treasure and an inspiration for Halakha, both practice and study". [See Isidore Twersky, _Judaism_, Spring 1967, p.142]

Let us consider this subject in depth.

In preparing the Shulkhan Arukh, it had been Rabbi Karo's intention to provide a handy, yet comprehensive digest of Jewish law which could serve even the layman. However, the Shulkhan Arukh, which emphasized Sephardic scholars and customs, would not serve Ashkenazic Jews very well, for Ashkenazim were obligated to follow the rulings of their own authorities. Once R. Karo published the Shulkhan Arukh, Rabbi Moshe ben Yisrael Isserles (1530-1572), better known as the Rama, decided to add to it his notes based on the rulings of Ashkenazic authorities. [Lewittes, p.152-153]

He called these notes a _mappah_ (tablecloth) covering the Shulkhan Arukh (_set table_) of R. Karo. Together, the Shulkhan Arukh and the Rama's mappah constitute the authoritative code of Jewish practice Sephardim follow the decisions by Karo, and Ashkenazim follow the decisions of the Rama. There are substantial differences between the Ashkenazim and Sephardim in halakhic decision making. Ashkenazic comminutes were heavily influenced by a teaching system developed by rabbi Yaakov Polack (1460-1530), who developed pilpul. This was a method of legal argument by means of which scholars could display their intellectual prowess in constructing speculative systems of interpretation, and could make hair splitting distinctions without ever reaching a psak Halakha (practical decision.). Although many rabbis decried this system, it persisted and flourished. [Adapted from Lewittes, p.153]

Because of the system of pilpul, which dominated in Ashkenazi schools, there was great hesitancy among those in making clear cut decisions where earlier authorities had expressed contradictory opinions. The rule adopted was to follow the more stringent opinion. Force of law was given to many minhagim (customs) which added restrictions in marital relations or to those in mourning, and a dire warning was issued that 'anyone who breaches the fence in such matters where the custom is to be strict will be bitten by a serpent." [Rama to Yoreh De'ah, sec. 30, part 2.] However the Rama ruled in many cases that lenient rulings could indeed be adopted. Rama spoke out against those who declare something forbidden where sanction could be found for permitting it. Well known is Rama's decision to permit a wedding ceremony on Friday night (Shabbat), though forbidden by the Talmud, in order to spare embarrassment for the bride. (Responsum 125, Cf Shulkhan Arukh, Orah Hayim, 339:4).

The Rama strongly criticized the system of pilpul that was so prevalent in his day. He wrote "in these times the chief quality of a rabbi is not in teaching pilpul...but in teaching the pesak Halakha and in setting before the pupil the truth." (Rama to Yoreh De'ah, 242:30) [Adapted from Lewittes, p,154]

Many other important rabbis spoke out against the system of pilpul. R. Shlomo ben Yehiel Luria, better known as the Marhashal, (1510-1584) found much to criticize in 16th century Jewish learning. Rabbi Yehudah Loewy ben Bezalel (1520-1609) and Rabbi Mordechai ben Avraham Yaffe also issued criticism. Despite the sharp criticism, the pilpul method learning persisted, and is still adhered to today in many traditional yeshivot of the 20th century. [Adapted from Lewittes, p.155-156]

The promulgation of the Shulkhan Arukh was greeted with the same objections that greeted all the previous codes of Jewish law. As one example, the Maharal of Prague wrote:

   "To decide halakhic questions from the codes [Tur, Shulkhan 
   Arukh, etc.] without knowing the source of the ruling was 
   not the intent of these authors.  Had they known that their 
   works would lead to the abandonment of Talmud, they would 
   not have written them.  It is better for one to decide on the 
   basis of the Talmud even though he might err, for a scholar 
   _must_ depend solely on his understanding.  As such, he is 
   beloved of God, and preferable to the one who rules from a code 
   but does not know the reason for the ruling; such a one walks like a
   blind person. [Quoted from the Maharal's Netivot Olam,
   by A. Siev,  "Rema", p.360, n.2).

Other prominent critics of the Shulkhan Arukh included Rabbi Yoel ben Shmuel Sirkis and Rabbi Meir ben Gedaliah. [Adapted from Lewittes, [p.157-158]

The strongest criticism against all such codes of Jewish law is that they inherently violate the precept of Hilkheta Ke-Vatra'ei, that is, the law is according to the _later_ scholars. This rule dates from the Geonic period. It laid down that until the time of Rabbis Abbaye and Rava (4th century) the Halakha was to be decided according to the views of the earlier scholars, but from that time onward, the halakhic opinions of post-talmudic scholars would prevail over the contrary opinions of a previous generation. [See Piskei Ha'Rosh, Bava Metzia 3:10, 4:21, Shabbat 23:1] The Rosh wrote:

   "If one does not find their statements correct [rulings
   of a previous authority] and sustain his own views with
   evidence that is acceptable to his contemporaries...he may
   contradict the earlier statements, since all matters that
   are not clarified in the Babylonian Talmud may be
   questioned and restated by any person, and even the
   statements of the Geonim may be differed from him...just
   as the statements of the Amoraim differed from the
   earlier ones.  On the contrary, we regard the statements
   of later scholars to be more authoritative because they
   knew the reasoning of the earlier scholars as well as
   their own, and took it into consideration in making their
   decision. [Piskei Ha'Rosh, Sanhedrin 4:6, respons. Rosh 55:9]
   [See Elon, p.55-56]

The very idea that a printed law code should be viewed as binding conflicts with the very method and approach of Jewish law concerning deciding the Halakha. Menachem Elon writes "The fact of halakhic difference of opinion is regarded as not only legitimate, but also desirable and indicative of the vitality of the Halakha and of the possibility of different approaches. The decisive yardstick in a halakhic dispute is only the correctness of each opinion in accordance only with the Talmud" (primarily the Bavli, but also the Yerushalmi). [See Piskei ha'Rosh, Sanhedrin 4:6 and Solomon ben Yehiel Luria, Yam Shel Shelomo, intro to Bava Kamma.]

Criticism against codifications of Jewish law is ancient. Consider Maimonides' "Mishneh Torah". This code of Jewish law has won universal acclaim in all sectors as perhaps the most elegant and systematic compilation of halakha ever produced. It allows rabbis and educated lay people to ascertain the general halakhic guidelines in every category of halakha. Even so, Maimonides contention that this work should be used as a binding legal guide provoked a massive outcry. His sharpest critic in his own lifetime was Abraham ben David (the Rabad) who feared that the use of the Mishneh Torah would inhibit study of Talmudic sources and deprive the dayyan (halakhic decision maker) of a choice between different decisions in making his opinion.

Rabbi Asher Ben Yehiel, The Rosh, later sharply criticized Maimonides's basic notion concerning the place of any book of pesakim (any Jewish code of law) in the system of Jewish law. The Rosh wrote 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 are 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). Of course, this criticism applies to any code of law, including the Shulkhan Arukh. The Rosh taught that one should have the freedom to decide , and that one should have the authority to dissent from any rule not originating in the Talmud itself, provided that this could be established in a clear and convincing manner. [Piskei Ha'Rosh, Sanhedrin 4:6). [Elon, p.131-132]

What better authority is there on the Shulkhan Arukh than its own authors, Rabbi Yosef Karo and Moshe Isserles? Surely any belief on whether the Shulkhan Arukh is binding or not should take into consideration the opinions of its own authors! As such, what do they have to say about the subject of codifying halakha? First let us consider Rabbi Shalom Sakhna, the teacher of R. Isserles. He was utterly opposed to the idea of codifying the halakha, as he believed that the decision of the dayyan _must_ be made on an individual study of the halakhic sources, and the very fact of the law's redaction sufficed to deprive him of his decisory discretion in any concrete case before him. [Elon, p.139]

Rabbi Isserles's goal was never to make a binding law code that would constrain the decision making abilities of any other Jew. Rather, he first sought to compiled his first great book of Jewish law, Darkhei Moshe, to follow the basic outline of the Tur. His goal was merely to assemble all the halakhic material from then until the present time in a brief and synoptic form, for the sole purpose of making it easier for one to find the material. [See the introduction to Darkhei Moshe].

Upon seeing the Shulkhan Arukh, Rabbi Isserles reacted sharply against the way it was presented as a binding law code. R. Isserles explicitly disputed R. Karo's main canon, namely that Alfasi, Maimonides and the Rosh were the "pillars of halakhic decision" since this principle conflicted with the principle of Hilkheta ke-Vatra'ei (the law is to be decided in accordance with the rulings of the later scholars). R. Isserles wrote that it would be permissible for one to differ not only with the Shulkhan Arukh, but even from his own work, since "he must act _only_ in accordance with what he sees with his own eyes". (Intro. To Darkhei Moshe]. [Elon, p.139,140]

When the Shulkhan Arukh came to hand, R. Isserles decided to add his own glosses to it, which he spread "like a cloth" (mappah) around R. Karo's "set table" (The Shulkhan Arukh). In his glosses he quoted different Ashkenazi opinions and customs in order to decide between them. His purpose was not to create a binding law code, but in fact wrote that his purpose was quite the opposite. He wrote that "the students shall _not_ follow hereafter to drink from it without dispute" but rather that one should know of the existence of differing opinions and then decide according to the rule of Hilkheta ke-Vatra'ei and "what he sees with his own eyes". [Rama, Respon. Numbers 35 and 131]. [Elon, p.140]

In fact, the criticism presented so far has been almost mild. We must also note in Poland and Germany criticism of the Shulkhan Arukh was far more severe and fundamental. The entire concept of codifying halakha was rejected by many leading rabbis. Rabbi Judah Loeb ben Bezalel wrote that once an already decided law could be ascertained from a code without any mental effort, such effort would invariable be channeled in the undesirable direction of pilpul for its own sake. Moreover, study and understanding of the law were prerequisites for deciding it; making decisions from the study of the Talmud and responsa, even if error were occasionally to result, was preferable to a "decision based on a single work without the knowledge of the underlying reasoning, in a blind manner." (Derekh Hayim, Avot 6;6, and his Netivot Olam, Netiv ha-Torah, 15). [Elon, p.141]

Rabbi Loeb's brother, Hayim ben Bezalel (another great spiritual leader of Polish Jewry) was opposed to the creation of halakhic summaries, as he fundamentally rejected the idea of reducing the halakha to uniformity, since "it may be believed that just as it the nature of creation for the faces of mankind to differ, so wisdom remains divided in the heart". He goes so far as to write that it is _wrong_ to call lack of uniformity a shortcoming, rendering our one Torah into two, "heaven Forbid!" we should say such a thing! On the contrary, we should say that "this is the way of the Torah, and both these statements and those represent the words of the living God". In other words, dispute was vital to the substance of Halakha. [Elon, p.141]

The eminent Rabbi Solomon Luria indeed raised his voice against the proliferation of halakhic dispute in his time, yet he vigorously opposed R. Karo's method of deciding the law. R. Luria ruled that a decision had to be made after examining all opinions against a 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 Aharonim, but...according to Talmud Bavli... [and where applicable] Talmud Yerushalmi and the Tosefta". [See intro to Yam shel Shelomo, Bava Kama]. Indeed, even stronger criticism can be made. Rabbi Samuel Eliezer Edel (17th century Poland) said that those who laid down the halakha without Talmudic study of the rule were in fact deserving of censure. (See his Hiddushei Halakhot ve-Aggadot, Sotah, 22a). [Elon, p.142]

The conclusion is clear. Many of our traditions most eminent rabbis, and the Rama himself, state quite conclusive that it is simply wrong to accept any halakhic guide as binding. The halakha is binding, yes, but decision making authority must remain in the hands of the rabbis of each generation.

Note:

"Darkhei Moshe", Rabbi Moshe Isserles. Note that the version of this book printed along with most editions of the 'Tur', called 'Darkhei Moshe Katzar', is apparently an abridged version of the fuller 'Darkhei Moshe ha-Arokh'.

More essays by Robert Kaiser and a short biography may be found at http://communities.msn.com/jewish/essays/essays.asp

Sources

"Jewish Law: An Introduction", Rabbi Mendell Lewittes, Aronson, 1994

"The Principals of Jewish Law" edited by Menachem Elon, Encyclopedia
Judaica, Published by Keter Publishers, Jerusalem, Israel. [This book
is a compilation of all material on halakha from the Encyclopedia
Judaica.]

Modern world

Technology and Shabbat

By Gwen Ackerman, Associate Press
The News, August 25-31, 1995

_____Electrical wire and circuit boards clutter the cramped office of Rabbi Levi Yitzhak Halperin as he scours ancient Scripture for ways of making technological advances compatible with a devout Jewish lifestyle.
_____Halperin's Institute for Science and Halachah-- Hebrew for Jewish law-- helps Orthodox Jews deal with aspects of modern life ranging from skyscrapers to an Israeli army that works on the Sabbath.
_____Its one-sotry building in a residential neighborhood bustles, murmurs of prayers mixing with the sound of a drill boring a circuit board. Bearded Bible scholarsin the black garb and sidelocks of the ultra-Orthodox debate physics, theology and engineering in dim corridors.
_____The result is dozens of inventions designed to reconcile the mundane devices of modernity that clash with halachah.
_____Among them are a telephone and an elevator that may be sued on the Sabbath-- sundown Friday to dusk Saturday-- by Jews who believe that activating electricity amounts to doing work, which is forbidden on the day of rest.
_____"Our Torah was given 3,500 years ago. Today the light is the same light, but the means of producing it have changed," said Halperin, 61. "We must deal with these developments and explain them according to the ways of the Torah."
_____Halperin's elevator is pre-programmed to stop at every floor on the Sabbath and is used in hospitals, hotels, and high-rise apartments buildings. Thus, the people who ride the elevators do not have to push any buttons, considered doing work under Jewish law.
_____The telephone uses a steel pen to interrupt beams of light aimed at phostatic cells, which sets off dialing. A similar system activates the heating mechanism of a hospital food cart.
_____Halperin's adviser, Shimon Stern, argues this complies with Sabbath laws by merely interrupting an existing electrical signal as opposed to causing one and thus breaking a Jewish law against creating electricity on the Sabbath.
_____"There's no direct connection between the act and the result," Stern said. "Electricity is suspended. ... You cause it but didn't actually do it."
_____The institute's explanation for equipment that seemingly bends the spirit if not the letter of Sabbath law is that the devices are intended for use in hospitals or by the army when lives are in danger.
_____Halperin said the inventions are meant to help observant doctors keep Jewish law even on the Sabbath.
_____"There were lots of things that were problems where a man had to hesitate about what to do. These were solved with technology," said Halperin, who founded the institue 30 years ago.
_____One of the institutes devices, a pen filled with ink that disappears in several days, is less clear-cut.
_____The Torah, Judaism's holy book, views writing only as something that is permanent. Some rabbinical scholars who interpreted the law over the generations held that any kind of writing was forbidden on the Sabbath.
_____Stern says disappearing ink could be restored with a hot iron, giving it permanency and therefore should not be used on the Sabbath. But doctors and soldiers may need to write on the Sabbath and using a disappearing ink pen would make their transgression less grave, he argues.
_____While leaders in the ultra-Orthodox community praise Halperin's efforts, some modern Orthodox say the institute's equipment could create an obsession about the form rather the substance of religion.
_____"These are very fine hair-breadth issues that seem to be dealing with minutiae but nevertheless are an important function in finding the balance between the letter and the spirit," said Rabbi David Rosen, former chief rabbi of Ireland.
_____"There is, of course, the danger that people can take advantage of a situation where that balance is maintained and extrapolate it into a context where it is not balanced."

For some good Jewish learning read the excellent books
Milton Steinberg, As A Driven Leaf
Eliezer Berkovits, Not In Heaven: The Nature and Function of Halakha
Isaac Klein, A Guide to Jewish Religious Practice

is my favorite number.

This is here because it's funny and i had nowhere better for it. it's not halakhically- based :)

================================================================ T H E J E W I S H H U M O R L I S T ================================================================ Suppose you're traveling to work and you see a stop sign. What do you do? That depends on how you apply exegesis to the sign. 1. An average Jew doesn't bother to read the sign but will stop if the car in front of him does. 2. A fundamentalist stops at the sign and waits for it to tell him to go. 3. An Orthodox Jew does one of two things: (a) Stops at the stop sign, says "Blessed art thou, O L-rd our G-d, King of the universe, who hast given us Thy commandment to stop," waits 3 seconds according to his watch, and then proceeds. (b) Takes another route to work that doesn't have a stop sign so that he doesn't run the risk of disobeying the halachah. 4. A Haredi ("ultra-Orthodox") does the same thing as the Orthodox Jew, except that he waits 10 seconds instead of 3. He also replaces his brake lights with 1000-watt searchlights and connects his horn so that it is activated whenever he touches the brake pedal. 5. An Orthodox woman concludes that she is not allowed to observe the mitzvah of stopping because she is niddah. This is a dilemma, because the stop sign is located on her way to the mikvah. She refers the problem to her rabbi, who shrugs. 6. A feminist Jewish woman sees this as a sign from the Shekhinah that translates roughly, "Enough already..." 7. A Talmudic scholar consults his holy books and finds the following comments on the stop sign: "R. Meir says: He who does not stop shall not live long. R. Hillel says: Cursed is he who does not count to three before proceeding. R. Shimon ben Yehudah says: Why three? Because the Holy One, blessed be He, gave us the Law, the Prophets, and the Writings. R. ben Yitzhak says: Because of the three patriarchs. R. Yehuda says: Why bless the L-rd at a stop sign? Because it says: 'Be still, and know that I am G-d.' R. Yehezkel says: When Jephthah returned from defeating the Ammonites, the Holy One, blessed be He, knew that a donkey would run out of the house and overtake his daughter; but Jephthah did not stop at the stop sign, and the donkey did not have time to come out. For this reason he saw his daughter first and lost her. Thus was he judged for his transgression at the stop sign. R. Gamaliel says: R. Hillel, when he was a baby, never spoke a word, though his parents tried to teach him by speaking and showing him the words on a scroll. One day his father was driving through town and did not stop at the sign. Young Hillel called out, 'Stop, father!' In this way, he began reading and speaking at the same time. Thus it is written: 'Out of the mouths of babes.' R. ben Yaakov says: Where did the stop sign come from? Out of the sky, as it is written: 'Forever, O L-rd, your word is fixed in the heavens.' R. ben Natan says: When were stop signs created? On the fourth day, as it is written: 'Let them serve as signs.' But R. Yehoshua says: ..." [continues for three more pages...] 8. A Breslover Hasid sees the sign and makes hisboddidus [spontaneous personal prayer], saying: "Ribono Shel Olam--here I am, traveling on the road in Your service, and I am about to face who knows what danger at this intersection in my life. So please watch over me and help me to get through this stop sign safely." Then, "looking neither to left nor right" as Rebbe Nachman advises, he joyfully accepts the challenge, remains focused on his goal--even if the car rolls backward for a moment--hits the accelerator and forges bravely forward, overcoming all obstacles which the yetzer hara [evil inclination] might put in his path. 9. A Lubovitcher Hasid stops at the sign and reads it very carefully in the light of the Rebbe's teachings. (In former times he would have used his cell phone to call Brooklyn and speak to the Rebbe personally for advice, but this is no longer possible, may the Rebbe rest in peace.) Next, he gets out of the car and sets up a roadside mitzvah-mobile, taking this opportunity to ask other Jewish drivers who stop at the sign whether they have put on tefillin today (males) or whether they light Shabbos candles (females). Having now settled there, he steadfastly refuses to give up a single inch of the land he occupies until Moshiach comes. 10. A Conservative Jew calls his rabbi and asks whether stopping at this sign is required by unanimous ruling of the Commission on Jewish Law or if there is a minority position. While waiting for the rabbi's answer, he is ticketed by a policeman for obstructing traffic. 11. A secular Jew rejects the sign as a vestige of an archaic and outmoded value system with no relevance to the modern world, and ignores it completely. 12. A Reform Jew coasts up to the sign while contemplating the question, "Do I personally feel commanded to stop?" During his deliberation he edges into the intersection and is hit from behind by the secular Jew. 13. A Reconstructionist Jew reasons: First, this sign is a legacy of our historic civilization and therefore I must honor it. On the other hand, since "the past has a vote and not a veto," I must study the historic civilization and therefore I must honor it. On the other hand, since "the past has a vote and not a veto," I must study the issue and decide whether the argument in favor of stopping is spiritually, intellectually, and culturally compelling enough to be worth perpetuating. If so, I will vote with the past; if not, I will veto it. Finally, is there any way that I can revalue the stop sign's message so as to remain valid for our own time? 14. A Renewal Movement Jew meditates on whether the stop sign applies in all of the kabbalistic Four Worlds [Body-Emotion-Mind-Spirit] or only in some of them, and if so, which ones? Must he stop feeling? thinking? being? driving? Since he has stopped to breathe and meditate on this question, he is quite safe while he does so, barukh HaShem. 15. A biblical scholar points out that there are a number of stylistic differences between the first and second halves of the passage "STOP." For example, "ST" contains no enclosed areas and five line endings, whereas "OP" contains two enclosed areas and only one line termination He concludes that the first and second parts are the work of different authors who probably lived several centuries apart. Later scholars determine that the second half is itself actually written by two separate authors because of similar stylistic differences between the "O" and the "P." 16. Because of difficulties in interpretation, another biblical scholar amends the text, changing "T" to "H." "SHOP" is much easier to understand in this context than "STOP" because of the multiplicity of stores in the area. The textual corruption probably occurred because "SHOP" is so similar to "STOP" on the sign several streets back that it is a natural mistake for a scribe to make. Thus the sign should be interpreted to announce the existence of a commercial district. 17. Yet another biblical scholar notes that the stop sign would fit better into another intersection three streets back. Clearly it was moved to its present location by a later redactor. He thus interprets the present intersection as though the stop sign were not there.