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Introductions to Rabbinic Works As a Locus of Intellectual Creativity in the Modern Middle East

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Zvi Zohar Introductions to Rabbinic Works (Draft) Zvi Zohar Introductions to Rabbinic Works as a Locus of Intellectual Creativity in the Modern Middle East Preface In this paper I seek to substantiate the thesis, that the introductions that rabbis write to books they have authored are a fruitful locus in which to seek their intellectual thought. Due to considerations of space, in this draft I present and analyze the ideas that can be found in two such introductions. In my oral presentation at the conference I intend to relate also to additional introductions. The two texts I discuss below are: 1) The introduction of rabbi Yosef Hayyim to the first volume of his responsa Rav Pe'alim (1901) 2) The introduction of rabbi Mas'oud Ḥai Ben Shim'on to his Arabic-language compendium of Halakhic law on matters of 'personal status', titled Kitab al-Aḥkam ash-Shar'iyyah fi-l-Aḥwal ash-Shakhsiyyah li-l-Israiliyyin (1912) Rabbi Yosef Hayyim's Introduction to Responsa Rav Pe'alim: Guidelines for a Sephardic Ethos of Halakhic Endeavor Rabbi Yosef Hayyim of Baghdad (1835-1909) – known also as Ben Ish Ḥai (after the title of one of his most well known book) – was acknowledged already in his lifetime as the greatest rabbinic scholar of Mesopotamia in modern times. He composed tens of rabbinic works; his most important work of is the four-volume "Rav Pe’alim". In the introduction to the first volume of this work, published in 1909, the author discusses three issues that he considers to be of importance: 1) Creativity in halakhic decision-making 2) The decisor's attitude towards scholars whose authority is not binding upon him 3) The fact that no scholar, however great, is immune from mistakes In the following pages I shall focus on the first two of these issues. Creativity in halakhic decision-making After briefly presenting a periodization of halakha from ancient times down to the present, rabbi Yosef Hayyim (RYH) discusses the intellectual activity of halakhic scholars active in the centuries after the Shulhan ‘Arukh, a timeframe he captions as the period of "ba'alei 1 Zvi Zohar Introductions to Rabbinic Works (Draft) teshuvot and ba'alei asufot" (authors of responsa and authors of anthologies).1 In the course of his discussion, Rabbi Yosef Hayyim outlines alternate modes in which halakhic decisions can be made, and he makes clear which of these alternatives is to be regarded as preferable. Rabbi Yosef Hayyim first distinguishes between posqim (decisors) who make halakhic decisions by choosing from among alternatives already extant in halakhic literature and determining which alternative is relevant for the issue at hand and those decisors who, when delving into a halakhic question, innovate and break new ground in the understanding of the relevant issues, basing a novel decision upon these innovative interpretations: There are two types of ba'alei teshuvot (authors of responsa). There is the type that upon being asked a question or inquiry goes into the room of that matter. There he sees a table set and prepared before him, with bowls filled with cooked food and fine fruit; one indicates “decide this way" and the other indicates “decide that way". And with what he gathered and collected from that set table, he writes his answer to the question or inquiry. And certainly wisdom is required to make a pure and clean choice from the set table, taking only that which is fitting and pertinent to the question, refraining from inappropriate application of the material. But such a person is called "hakim" (clever); he is not called "rav" (master). And there is the type that is asked a question or an inquiry, and he pillages the depths of that matter, and from the room of that matter he opens new ways and paths through which to go to other rooms, east, west, north, and south. And wherever he goes, he climbs up and down, ties and unties, brings in and lets out. And from all these he writes a full, clear and clean answer, passing it through thirteen sieves. This one is called not only "clever" but also "master", and about him it is said "Many daughters have done valiantly, but thou excellest them all" (Proverbs 31:29). The first respondent relates to halakhic literature as a treasure-house of precedents that comprise the entire range of possible halakhic answers to the question being discussed. In order to answer a question posed to him, the respondent needs to proceed through two stages: First, he must correctly identify the inventory of answers relevant to the issue at hand; second, he must decide which of these answers is most suitable. 1 Responsa Rav Pe'alim, volume one, Jerusalem 5661 (1900/1901), "Opening of the book with the help of God", first page. 2 Zvi Zohar Introductions to Rabbinic Works (Draft) The second respondent relates to existing halakhic literature as a cultural-intellectual field whose possible meanings are not exhausted by the existing inventory of precedents and discussions. Discussion of a halakhic question provides this respondent with an opportunity to develop new meanings in the field of halakhic discourse by looking freshly at each of the relevant halakhic issues and matters and by making new connections between them. In this way he arrives at an original perspective on the issue under discussion, enabling him to make a decision that is not a pointer to an already existing precedent but is an original contribution that innovatively enriches the halakhic world. It is clear from Rabbi Yosef Hayyim's words that he holds this innovative and original decisor in the highest regard: While a decisor of the first kind "has done valiantly", the second type "excellest them all", and his rank is thus much higher. The decisor's attitude towards scholars whose authority is not binding upon him From what we have seen thus far it would seem that halakhic innovation and originality are more important than familiarity with the opinions already extant in Torah literature throughout the ages. But our author goes on to say that this is a misleading dichotomy. He presents another way to distinguish between different types of halakhic scholars: There is a second way to divide respondents into two types. And that is: There is the one who upon being asked a question on one matter is quick to knock upon the doors of the books of all other respondents – the earlier ones, the later ones, and the most recent ones, from the smallest till the greatest until his own time, including even books whose authors are still alive. And his purpose is to search thoroughly to see and to know everything that any halakhic scholar had to say about the matter about which he was asked. And behold, how good and pleasant is this path. On the one hand, if he should find someone who engaged this issue and with whom he is in agreement, he will be able to make his decision both on the basis of his own opinion and on the basis of this other rabbi, and this then is not a case of dan yehidi ("alone in judgment"). On the other hand, since every interpretive attempt leads to at least a modicum of innovation, it is not unreasonable that he will find in the books of such authors some logical argument or some analytical differentiation or some evidence or proof from the words of the early scholars (Rishonim) or from the Talmud that he himself did not know or recognize or was not sensitive to – even though he himself might be a great and brilliant and outstanding halakhic scholar with extensive experience in the "wars of Torah", and even though he may be ten times more erudite 3 Zvi Zohar Introductions to Rabbinic Works (Draft) than the halakhic scholar who wrote that book. And this is the way of the Sephardic halakhic scholars in their halakhic decisions: To search through all of the books they can access – of the earlier scholars, the later ones and the most recent ones – in order to clarify the halakha in their responsa. And about them it is said: "Let thy springs be dispersed abroad".2 This first type of halakhic decisor studies the works of others not because he is subordinate to their authority, but because he takes interest in the entire realm of halakha per se. He therefore wishes to familiarize himself with the opinions of halakhic scholars from the recent past or of his own time, even if their status is lower than his own. A scholar of this type has two reasons for wanting to know the complete spectrum of opinion found in halakhic literature. The first is relevant to the halakhic decision he has been asked to make. If a decisor arrives at an answer that differs from those who preceded him, he is allowed to decide on the basis of his own judgment, but nonetheless it is preferable that he find within the field of Torah literature at least one additional opinion that matches his own. Notice the assumption hidden in these words: The decisor is not bound by the "majority opinion" of the halakhic scholars who preceded him, nor is he even obligated to decide in accordance with a recognized minority opinion. In principle, a halakhic scholar is allowed to decide on the basis of his personal best judgment even when no other halakhic opinion agrees with him. But Rabbi Yosef Hayyim advises strongly against reaching that point, recommending instead that the decisor identify at least one other halakhic scholar who agrees with his own unconventional opinion.
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