Originally published in Journal of Jewish Studies 30:1.
Bernard S. Jackson, ed., The Jewish Law Annual, Volume I, Brill, Leiden, 1978, x, 274 pp. Fl. 84.
This first volume of an exciting new venture in Jewish studies consists of: Part I, ‘Mishneh Torah Studies’, a symposium in which are considered various aspects of Maimonides’ great Code of Jewish law (completed, according to the experts, exactly 800 years ago); and Part II, ‘Chronicle’, a series of reports, by a number of contributors, of current Jewish legal debates and decisions; discussions of legal topics of interest to Jews, as well as a ‘Survey of Recent Literature’. The learned editor informs us in his opening remarks that he intends this format to continue in future volumes.
Maimonides began this immense work of genius at the age of 33, working steadily on it for ten years. Despite Maimonides’ own Introduction to the work and his accounts found in personal letters, there has remained a number of severe problems in connection with the sage’s techniques, methods and aims in this tremendous compilation. What, for instance, is the relationship of the Mishneh Torah to Maimonides’ other works, especially to his Guide? Maimonides’ major source is the totally unsystematic Babylonian Talmud. ‘The words of the Torah are poor in one place but rich in another’, i.e. the codifier who relies on the Babylonian Talmud is obliged to collate hundreds of diverse passages on a given subject and so bring order out of chaos. Does this mean, then, that, even if, as seems likely, Maimonides knew the Talmud by heart, he used something like a massive card index to be consulted as he wrote? How far was he an innovator and to what extent was he influenced by his cultural background? To what extent did his radical theological views colour his legal formulations? Which books of law did he possess in his library and which did he draw on for his material? Why did he choose the particular arrangement he did, so unlike any earlier attempts at codification? Is it true, as many scholars have maintained, that, for all his acceptance of the Talmudic Rabbis as infallible, he deviated, at times, from their views, whether consciously or unconsciously? It is to some of these questions that the participants in the symposium address themselves. It is impossible adequately to review all 162 pages of the symposium (in which, incidentally, there is a good deal of overlapping as well as some contradictions among the authors) but one or two observations are offered.
It is odd that so little is noted of the much-discussed rejection by Maimonides of Talmudic magic, demonology and the like. For instance, the Talmud (Sanhedrin 10la) permits incantations, even on the sabbath, over a sufferer from snake-bite. Maimonides (‘Avodat Kokhavim 11:11) does record this but typically adds that it is solely because of the psychological relief afforded ‘for although it (the incantation) is of no avail at all, yet, since the person is in danger, they (the Sages) permitted it to be done for him so that he should not go out of his mind’. Strangely enough, in view of Caro’s own attitudes, this is quoted word for word by the Shulhan ‘Arukh (Yoreh De’ah 179-10), upon which the Gaon of Vilna comments (Biur ha-Gra note 13) that Maimonides was led astray by his philosophical opinions in declaring all magic, the use of divine names, incantations, demons and amulets to be utter nonsense, whereas belief in these is found in many a Talmudic passage, some of which passages the Gaon proceeds to list. Reference might also have been made to Maimonides’ ruling that if an animal has no upper jaw-bone the animal is forbidden (terefah). The Sages of Lunel objected. Since the Talmud (Hullin 54a) rules that an animal whose lower jaw-bone is missing is permitted it ought to follow a fortiori that an animal without an upper jaw-bone is permitted. To this Maimonides replied that there is no a fortiori because his medical knowledge has convinced him that such an animal cannot survive and is, therefore, terefah (Shehitah 8:23 and Kesef Mishneh ad loc.). Nor is there much in the symposium about the possible influence of the Islamic background on Maimonides’ decisions regarding women. Without any overt support from known Rabbinic texts, he rules that a wife who refuses to carry out such wifely duties as washing her husband’s hands and feet and serving him at table is to be chastised with rods (Ishut 21:3 and 10) and that a woman may not be appointed to any communal office (Melakhim 1:5 ). Omissions from a symposium are no cause for surprise but the above are all strictly germane to the discussion in that while, in these instances, Maimonides seems to be pursuing a line of his own, it was still possible for him to read his ideas into the Talmudic sources so that he was interpreting his sources not countermanding them. As Jacob S. Levinger notes in the symposium, nowhere in the Code does Maimonides explicitly depart from any unanimous decision of the Talmudic Rabbis.
A number of further points. From Maimonides’ ruling (Tefillah 4:18) that one should only study a ‘clearly-decided law’ (halakhah pesukah, not, as here translated, a ‘codified law’) before prayer but not Talmudic dialectics (because the latter would engage the mind during prayer and thus hinder concentration) it is quite impermissible to draw the conclusion (p.23) that the logical exercises of the talmudists were in the eyes of Maimonides not only wasteful time-consuming processes, but also unduly interfering with and hampering composure and serenity’, if only because the rule was not invented by Maimonides. The rule appears in the Talmud (Berakhot 31a), where it refers only to studying before prayer, and is quoted almost verbatim by Maimonides. It is incorrect to attribute (p.80) the famous statement of the golden rule to Hillel. In the relevant Talmudic passage (Shabbat 31a) Hillel is the hero of a tale about the virtues of patience and humility, from which no information whatsoever can be gleaned regarding the theological views of the historical Hillel (see my article in JJS, Vol. XXVIII, No. 1, Spring, 1977, pp. 46-59). The statement (p. 104): ‘It is noteworthy that while Maimonides includes the rebuilding of the Temple on its site among the identifying actions of the legitimate monarch of Israel (mashiah), he does not explicitly include the sacrificial cult among the institutions which the Messiah is expected to restore’ is extremely puzzling. Maimonides does state explicitly that when the Temple will be rebuilt in the days of the Messiah sacrifices will be offered, makrivin korbanot (Melakhim 11:1). Maimonides’ ruling (Nizke Mamon 8:5) that full damages be paid where the offending beast is a tam belonging to a gentile cannot possibly be because (p. 172) Jewish law had ceased to award half-damages, since they were classified as kenas i.e. and Maimonides is here legislating for his own day. This is impossible since, if that were the case, Maimonides would not have recorded the law of tam where the beast belongs to a Jew, apart from the obvious objection that where kenas does not operate there is no payment at all, not a payment of the full damages. A tam is classified as kenas precisely because the victim has no legal title to compensation (see Bava Kama 15a-b). Moreover, it seems to be implied (p. 174) that where an animal falls on produce it is, like an animal which kicks, a case of keren. But the Mishnah quoted in support (Bava Kama 6:2) does not state that the payment is, as for tam, half-damages but no damages at all. In fact, when this Mishnah refers to the animal ‘falling’ into the garden it deals with how the animal came to be in the garden not to it doing damage while in the process of falling (cf. the discussion in Bava Kama 67b). ‘Divine’ as opposed to Rabbinic legislation (p. 192) is a curious and inaccurate translation of de-oraita, which should be rendered as ‘Pentateuchal’ or ‘Biblical’ as opposed to de-rabbanan, ‘Rabbinic’. The man about to die is a goses not a gosas (p. 196). On page 127 note 12 read Ramban (i.e. Nahmanides) not Rambam (i.e. Maimonides). The word ‘not’ has been omitted on page 143 making nonsense of the passage quoted. It should be ‘did not go through’.
The ‘Chronicle’ section is very interesting and informative but I wonder whether the editor will have second thoughts for future issues about some of the material of the kind presented here. The opinions of contemporary Halakhists, even on purely religious matters, are certainly not out of place but not surely, in an academic journal, when they engage in the type of religious in-fighting which allows the blithe comment (p. 180) that a Conservative Bet Din is not recognised by Normative Judaism (sic). It is somewhat doubtful, too, whether an article on ‘The Race Relations Act, 1976’ is appropriate for inclusion in a volume dedicated to research into Jewish law rather than legislation which refers to Jews or which may affect them. But Dr Jackson is to be heartily congratulated in bringing a splendid pioneering effort to a successful conclusion. Long may the new Annual flourish.
Leo Baeck College, London