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Zvi 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 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 to the first volume of his 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 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

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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, 5661 (1900/1901), "Opening of the book with the help of ", 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 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 () or from the 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

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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. Our author ties this preference for locating at least one opinion in agreement with one’s own to a statement attributed to Rabbi Ishma'el son of Rabbi Yossi: "Do not be a single judge, for only One judges as “single judge"3. In the original, these words refer to the context of a courtroom: While formally an outstanding and authoritative halakhic scholar is allowed to sit in judgment as a panel of one, Rabbi Ishma’el advises that it is not appropriate for anyone to do so: only God is worthy of judging alone. Instead, court cases should be heard by a panel of three judges sitting together.4 Rabbi Yosef Hayyim transposes this advice to a different context – that of a decisor asked to respond to a halakhic question. The normal situation is that a decisor is asked a question as an individual and responds as an individual, and Rabbi Ishma'el's words did not refer

2 Introduction, ibid. 3 , Pirqei Avot (Ethics of the Fathers), ch. 4, mishnah 8. 4 The first mishnah in tractate determines: "In civil cases three judges are needed". But in the Talmudic discussion of this Mishnah it is decided that a rabbi who is "a publicly recognized expert" or a rabbi whose ruling all the parties to the conflict agree to accept is permitted to judge alone (Sanhedrin 5a). 4

Zvi Zohar Introductions to Rabbinic Works (Draft) to this context of decision-making. But our author derives from Rabbi Ishma’el a general principle: it is always better to make halakhic decisions in a collegial context, and with this in mind, a decisor should regard all halakhic scholars throughout the generations as potential colleagues in rendering the best response to the issue he is currently being asked to address. As we saw above, Rabbi Yosef Hayyim holds that a rabbi who makes a halakhic decision is not bound by a majority of relevant precedents: He may rule in accordance with a minority view if he sees fit to do so. Furthermore, if his own best understanding of the halakha leads him to formulate a decision completely without precedent, he may in good faith rule according to the halakhic truth as he sees it. However, RYH recommends that the decisor should strive to avoid placing himself in such a position but should rather be able to cite at least one additional "colleague" who holds as he does. The ability to cite such a colleague depends upon the decisor’s breadth of knowledge: the more he expands the horizons of his acquaintance with the wealth of Torah literature, the easier it will be for him to decide according to his own judgment – even if his decision is contrary to the decisions of most halakhic scholars – since he will be able to point to at least one other halakhic scholar, who lived sometime and somewhere during the course of halakhic history, who shares his opinion. A second reason for taking an interest in the full range of opinions in the halakhic literature is not necessarily related to the need to make a decision on a particular issue but relates instead to a decisor’s own intellectual enrichment. No person, no matter how intelligent and original, can from his own internal resources alone arrive at all of the potential interpretative and analytical possibilities inherent in the halakhic sources throughout the ages. Since every person has his own individual intellectual perspective, it is quite possible, and even likely, that a halakhic scholar of lower standing might arrive at interesting insights that hadn't occurred to a more accomplished rabbi. Therefore it is both proper and worthwhile for a halakhic scholar to read whatever he can, without limiting himself to the study of the words of those whom he views as greater and more authoritative than himself. Acquaintance with the full range of voices within Torah literature is actually likely to promote any halakhic scholar's own creativity and originality. Rabbi Yosef Hayyim notes that this approach – "To survey and search through all of the books of the earlier ones, the later ones, and the most recent ones, to the greatest extent they can, in order to clarify the halakha in their responses" – is the "way of the Sephardic halakhic scholars in their halakhic decisions". To these halakhic scholars our author applies the phrase: "Let thy springs be dispersed abroad". By citing this phrase, Rabbi Hayyim is alluding to the students of

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Zvi Zohar Introductions to Rabbinic Works (Draft)

Rabbi Yohanan ben Zakkai who are mentioned in Ethics of the Fathers (chapter 2:8). His two greatest students were Rabbi Eli’ezer ben Hyrcanus and Rabbi El’azar ben ‘Arakh:

[Rabbi Yohanan] used to say: "If all the sages of Israel were to be in one cup of a balance-scale, and Eli’ezer ben Hyrcanus was in the other, he would outweigh them all". Abba Shaul said in his name: "If all the sages of Israel were to be in one cup of a balance-scale, Eli’ezer ben Hyrcanus included, and El’azar ben ‘Arakh were in the other, he would outweigh them all".

And what were the virtues of these great rabbis? Rabbi Eli’ezer ben Hyrcanus was "a cemented cistern that loses not a drop", and Rabbi El’azar ben ‘Arakh was "an ever-increasing wellspring". And in the language of the expanded version in Avot deRabi Natan:

Rabban Yohanan the son of Zakkai had five disciples. To each one he gave a name. He would recount their praises: Rabbi Eli’ezer the son of Hyrcanus is "a cemented cistern that loses not a drop, a tarred jar that preserves its wine"… Rabbi El’azar ben ‘Arakh is “as a flowing river and an ever-increasing wellspring, whose waters gain speed and break forth, fulfilling that which is said [Proverbs 5, 16]: "Let thy springs be dispersed abroad, and courses of water in the streets".5

Rabi Eli’ezer ben Hyrcanus is similar to the first type of halakhic scholar described by Rabbi Yosef Hayyim, the one who knows the entire inventory of opinions in the halakhic literature prior to his own time and who draws upon this inventory to respond to questions posed to him. And indeed Rabbi Eli’ezer was described in this way:

Our rabbis have taught: It happened that Rabbi Eli’ezer passed the in the Upper , and they asked him for thirty decisions in the laws of Sukkah. Of twelve of these he said "I heard them". Of eighteen he said "I have not heard". They said to him: "Are all your words only accounts of what you have heard"? He said to them: "During all my life…. I have never said a thing that I did not hear from my teachers".6

5 Avot deRabi Natan, Ch.14, Mishnah 3. 6 Babylonian Talmud, Sukkah, 28a. 6

Zvi Zohar Introductions to Rabbinic Works (Draft)

Rabbi El’azar ben ‘Arakh is reminiscent of the second type of halakhic scholar characterized by Yosef Hayyim, one who is creative and original. And thus is told of Rabbi El’azar ben ‘Arakh, in illustration of the words of the Mishnah: "One should not discuss…. the topic of the [heavenly] chariot (ma’aseh merkava) even with one individual unless he was a wise man able to comprehend it by his own insight":7

It happened that Rabban [our master] Yohanan ben Zakkai was riding on a donkey and Rabbi El’azar ben ‘Arakh was guiding the donkey from behind. Rabbi El’azar said to Rabban Yohanan: "Master, teach me a chapter of the [topic of the] heavenly chariot”. Rabban Yohanan said to him: "Haven't I already told you from the beginning that one should not discuss the chariot with even one individual unless he was a wise man able to comprehend it by his own insight!?" Rabbi El’azar said to him: "If so, I will now lecture before you". Rabban Yohanan said: "Go ahead". Rabbi El’azar ben ‘Arakh began to explicate the [topic of the] heavenly chariot. Rabban Yohanan ben Zakkai got off his donkey, wrapped himself in his , and they sat together on a stone under an olive tree. And he lectured before him. Rabban Yohanan then stood up and kissed him on his head and said: "Blessed is the Lord God of Israel, who gave a son to our father who knows how to understand and interpret the of his Father in Heaven…. Happy are you our father Abraham that El’azar ben ‘Arakh, who knows how to understand and interpret the glory of his father in heaven, came out from your loins".8

Discourse on the topic of the heavenly chariot is paradigmatic of an activity in which a student is supposed to comprehend on his own matters on which he has never received information from anyone. Rabbi El’azar ben ‘Arakh, described by his teacher as “an ever-increasing wellspring…. may your springs be dispersed abroad" is the classic example of such an original sage. Rabbi Yosef Hayyim employs this very phrase to describe the ideal decisor, whom he identifies with Sephardic halakhic scholars who combine a command of the entire field of halakhic discourse with originality and inventiveness.

In contrast to this figure, he writes, there is another type of halakhic decisor:

7 Tractate Hagiga, ch. 2, mishna 1. The term “Heavenly Chariot” refers to a field of esoteric knowledge relating to God. 8 Hagiga, Lieberman edition, ch.2, 1. 7

Zvi Zohar Introductions to Rabbinic Works (Draft)

[W]hose way is not to search through the books of the later sages (ahronim) on every matter that comes before them; rather they turn only to the words of the earlier sages (rishonim), and then they write what seems to them right in light of their own logic and judgment. To fulfill that which is said: "When thou sittest to eat with a ruler, consider well him that is before thee" (Proverbs 23, 1).9 And this is the way usually taken by great Ashkenazic rabbis.10

The Ashkenazic rabbis usually ignore all that was written by "later" halakhic scholars, i.e., everything written after Rabbi Yosef Caro's sixteenth century Shulhan ‘Arukh. This is because, according to Ashkenazic halakhic tradition, a decisor in the present is required to be obedient and submissive only toward the early scholars and not toward the later ones. Since they are not obligated to follow the opinions of those scholars who lived after the sixteenth century, Ashkenazic halakhic scholars see themselves as exempt from having to relate to these opinions and thus feel free to decide according to their own understanding, as long as this does not contradict the earlier scholars.11 Rabbi Yosef Hayyim strongly criticizes this approach of the Ashkenazic halakhic scholars, and he writes: I say, after a thousand pardons from the honor of their Torah: What they do is not a good thing.12 For a great rule in Torah is that "Torah can only be purchased in company".13 And that is why scholars are called ba'alei asufot.14 And you will always find that the great ones

9 The verse that Rabbi Yosef Hayyim quotes from Proverbs has been interpreted in different ways in Torah literature over the generations. I haven't found an interpretation that fully fits its use in the current context. The closest fit seems to be with Hulin 6a, where the Talmud interprets the verse to refer to a student who sits to discuss Torah with his master ("ruler"); the student should be very careful in formulating his words because of the honor and respect he must demonstrate towards the master. Rabbi Yosef Hayyim's words seem to be based on the spirit of that interpretation, i.e., he attributes to the Ashkenazic tradition the view that a decisor of the present time needs to demonstrate consideration and respect only towards those who "rule over" him; they are those scholars who are “before him” and are thus his "masters". Such is the case only with regard to the "earlier" scholars (Rishonim). 10 Rav Pe’alim, Introduction, ibid. 11 A striking example of an Ashkenazi rabbi who advocated this type of approach was Rabbi Moshe Feinstein. In his introduction to his work of responsa Iggerot Moshe, Orah Hayyim, Volume 1 (New York 5719 (1958/1959)) he declares, "the truth that should be followed by a decisor is what seems right to him after he has worked tirelessly to clarify the halakha on the basis of the Talmud and Posqim". That is, the scholar must study the Talmud and the codes (such as Mishneh Torah, Arba'a Turim and Shulhan ‘Arukh) and rule on the basis of what is written there. If so, the decisor has no need, and thus no impetus, to take any interest in the responsa of later sages. And indeed, Rabbi Feinstein quotes responsa of "later" scholars very sparingly. 12 Hebrew: Lo tov haDavar asher ‘asu. This points the reader to Jethro’s critique of : Lo tov haDavar asher ata ‘ose (Exodus 18:14). And what was Jethro criticizing? Moses sitting in judgment alone without involving a broad body of judges… 13 Berakhot 63b. As Rabbi Menahem Hameiri comments ad loc.: “A person should always study Torah with a companion; for a person has no analytic sharpness without a companion to awaken it. 14 See Tosefta Sotah (Lieberman edition, chapter 7, 9): "Ba'alei Asufot – these are Torah scholars who sit gathered together." 8

Zvi Zohar Introductions to Rabbinic Works (Draft)

need the small ones. As the great Tana said: "I learned much Torah from my teachers, more from my friends, and from my students I learned most of all".15

In the beginning of this paragraph Rabbi Yosef Hayyim returns to another aspect of the subject he had raised before: Torah activity as participation in a community of discourse. Earlier he related to this in the context of making halakhic decisions ("Don't be a lone judge"). Here the emphasis is upon the intellectual stimulation derived from involvement in such a community. Rabbi Yosef Hayyim emphasizes that he is not referring to some elite group of exceptional individuals who should take an interest in what each other has to say but to a broad community including great experts in Torah, rank and file Torah scholars as well as students. And what are the implications of such an approach for a halakhic decisor in the present? Our author writes: Therefore, if the author of the book is a "later" scholar, and the decisor who is preparing to answer the question posed to him is a great halakhic scholar and an outstanding rabbi, why should he not take an interest in what this author wrote concerning the same matter as the question, whether out of his own logic or out of what he gathered and collected from the earlier and later scholars on that matter? Could it not be that that author came up with something new or a new deduction that had escaped the attention of this outstanding rabbi? And if this outstanding rabbi were to look at this author's words and not find anything new, what would he have lost by this viewing? In any case, thanks to this perusal his understanding of the issue at hand would increase. Rabbi Yohanan himself looked forward to being challenged by his students so that his understanding would improve, and he preferred such students to another student who would say "here is a tana who supports you".16 And here too, if he should find some mistake in the words of that author, then all the more so his understanding would increase (ibid.)

As he did earlier with other sources, so too in the matter at hand Rabbi Yosef Hayyim takes the words of the sources that praise participation in a community of discourse and applies them to a

15 Makkot 10a. This statement is attributed to Rabbi Yehudah Hanassi (Judah the Prince). 16 Rabbi Yosef Hayyim here refers to a famous story related in the Babylonian Talmud (Bava Metzia 94a) with regard to Rabbi Yohanan and his student/colleague Reish Laqish. Reish Laqish was a tough intellectual opponent and was accustomed to challenging Rabbi Yohanan with many tough questions when they learned together. Following a serious disagreement between them, Reish Laqish died, and Rabbi Yohanan was left without a study partner. An attempt to have the star student El’azar ben Pedat fill in for the deceased Reish Laqish proved greatly frustrating for Rabbi Yohanan, for whenever he proposed an interpretation of the matter under discussion, El’azar ben Pedat would immediately quote many sources supporting that view. Rabbi Yohanan complained bitterly about this and declared how much he preferred Reish Laqish's attacks because as a result of these challenges his learning became sharper and deeper. 9

Zvi Zohar Introductions to Rabbinic Works (Draft) new context. While the quoted texts refer to scholars who meet face to face, learning and discussing together, RYH applies this to a community created by the study of texts written by scholars who are not in each other’s presence. Rather, some of them lived in other generations, while others live in the present time but in distant lands. Rabbi Yosef Hayyim's opinion is that the more a person learns from sources and texts, even those written by authors who are not world- class, the more he will enrich his intellectual horizons and his insights into the sources under discussion. Therefore, Ashkenazic halakhic scholars are mistaken when they ignore this extensive literature and take an interest only in the words of those halakhic scholars who lived and worked in the "early" periods. It emerges that according to these very criteria, characteristic (in Rabbi Yosef Hayyim's opinion) of the Sephardic halakhic ethos, it is fitting for a halakhic scholar to obtain all rabbinic works of whatever authorship, to read them and to as much enrichment out of them as is possible. Therefore, it would actually be antithetical to the essence of the Sephardic ethos for a Sephardic scholar to limit himself to reading only halakhic literature written by Sephardic authors while deliberately ignoring Ashkenazic Torah literature. And indeed, as I have shown elsewhere, RYH was fully conversant with the writings of Ashkenazic rabbis of his own time (and of earlier generations), frequently quoting them in his works. Looking back upon the course of discussion undertaken by RYH in his introduction, we can see that that there is a ideational thread running between the dichotomies he presents: he comes out strongly in favor of creativity and innovation within halakha, proposes that the poseq can facilitate and enhance such creativity by acquiring the broadest possible knowledge of everything that has been written by scholars throughout the generations (including the more recent centuries), and rejects the idea that halakhic discourse should be seen primarily through the lens of superior vs. inferior authority. If we recall that the central motif of Ashkenazic Orthodoxy was ha-Hadash Assur min ha-Torah (Torah forbids what is new), and that this entailed a rejection of innovation within halakha in favor of reliance upon sources of authority – mainly located in earlier generations – that could never be contravened nor emended, it is possible to see that Rabbi Yosef Hayyim's introduction to Rav Pe'alim is no less than a major critique of that Ashkenazic halakhic school of thought. The difference between Sepharadim and Ashkenazim is thus not in the fact (as Rabbi famously held) that the former rely upon Maran (rabbi Yosef Caro) while the latter rely upon Rema (rabbi Moshe Isserles). Rather, it is a difference in the most basic foundations and ethos of halakhic outlook and methodology.

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Zvi Zohar Introductions to Rabbinic Works (Draft)

Rabbi Mas'oud Ḥai Ben Shim'on's Introduction to Kitab al-Aḥkam ash-Shar'iyyah fi-l-Aḥwal ash-Shakhsiyyah li-l-Isra`iliyyin

The Ottoman Empire did not significantly apply the tanzimat to the realm of family law, but rather co-opted religious norms as Ottoman family law and designated the religious courts of the various millets (ethno-religious communities) as Ottoman courts for family matters. What changed was thus not the substance of the law(s) but the status of these courts, whose decisions were now enforceable by the police and whose judges were now State employees. Egypt, although under British control since 1882, remained formally under Ottoman suzerainty and followed the Ottoman model with regard to family law. The authorities consequently conveyed to the leadership of the Jewish community their expectation that the Jewish courts conduct their affairs in a manner more similar to those of other official legal bodies of the state. And indeed, the courts transformed at the procedural level, with each case being assigned a dossier, clerks transcribing the proceedings, and the litigants being represented by lawyers accredited to the Egyptian bar. This latter development revealed, however, a deeper problematic. Since any accredited lawyer (whether Jewish or not) could now represent a client in those courts, the question of access to the law now arose: how could these lawyers acquire the knowledge of Jewish family required to plead their client's case? In a traditional Jewish milieu, the answer would have been straightforward: study Talmud, Codes and Responsa for many years, in the original Hebrew/ of the rabbinic texts. This obviously was not the answer that could be given to the Egyptian authorities. Indeed, not only were most Egyptian lawyers (even those of the Jewish faith) totally unlearned in halakha, but traditional academies of Jewish learning were closed to non-. It became clear to all involved that nothing would do but to make halakhic law in the realm of 'personal status' available to lawyers and to the Ministry of Justice in the idiom of Modern Literary Arabic. At the request of Moise de Cattaoui, the distinguished secular leader of the Jewish community, rabbi Mas’oud Ḥai Ben Shim’on17 – chief rabbinic judge of Cairo – agreed to rise to the challenge and composed an Arabic compendium of halakhic family law.18 His introduction to this work is of great interest.19

17 Son of David Ben Shim’on, the rabbinic leader of Jerusalem’s Maghrebi Jewish community, Mas’oud was born in Jerusalem in 1869. He served as chief judge of Cairo’s rabbinical court from 1893 until his death in 1925. See: Zvi Zohar, 'Ben-Shim'on, Mas'ud Ḥayy', in EJIW (above, note 14), vol. 1, pp. 421-422. 18 Kitab al-Aḥkam ash-Shar'iyyah fi-l-Aḥwal ash-Shakhsiyyah li-l-Isra`iliyyin (Cairo, 1912+1919) 19 The limits of space do not permit me to analyze in depth all of the fascinating aspects of rabbi Mas'oud Ḥai's introduction. I therefore focus on those that are the most interesting and salient. 11

Zvi Zohar Introductions to Rabbinic Works (Draft)

The major part of that introduction consists of a history of the and of the development of Jewish law from earliest times to the present (1917). This may be the first time that a Jewish perspective on these matters was made available to readers of Modern Arabic. He begins Israelite history – from the Beginning: It is well known that the history of the Israelites (Banu Isra`il) goes back to the beginning of creation, since when 5672 years have passed until today. We shall now clarify in brief what needs to be known about the events that occurred during that period, down to our current era.20 Framing in this way, rabbi Mas'oud Ḥai (MHBS) presents to the reader an alternate chronology dating not to an event in the life of the religion's founder (the hijra of Muhammad or the birth of Jesus) but to the very origins of humanity and of the universe. By employing the term Banu Isra`il rather than Yahud for the protagonists of that history he not only uses the more dignified Arabic term but assumes the continuity of contemporary Jews and with the biblical Israelites known to Islamic tradition – a continuity not self-evident to Muslim readers. In his next sentence, he makes a statement that is no less striking: The Israelite nation (al-Umma al-Isra`iliyya) is of the seed of our forefathers Abraham, Isaac and . At the outset of the 20th century, the contemporary term for the Jews would normally be mulla (religious group) or ta`ifa (community). Here, however, rabbi MHBS defines them as an Umma. In Modern Arabic, this term denotes a nation; in Classical Arabic, it can also denote a community of true believers. The characterization of the Jews as a nation of true believers descended from the three patriarchs is fully in keeping with the traditional self-identification of the Jews – but quite different from the categories under which classic Islam and modern Arab nationalism regarded them. Ben-Shim'on notes that Abraham was born in 1948, but mentions nothing of the events narrated in Genesis except to note that the twelve sons of Jacob migrated to Egypt in 2238. Immediately afterwards we are told that Moses, 'the shepherd of the Children of Israel' was born on the 7th of Adar 2368, and when he reached his prime was Divinely prompted to take the Israelites out of Egypt, which he did on the 15th of Nisan 2448 And the reader is acquainted with the miracles that the Divine might brought about, through Moses who was the intermediary between Him and Pharaoh,

20 Ibid. p. 7. (My translation from the original Arabic). 12

Zvi Zohar Introductions to Rabbinic Works (Draft)

culminating in the drowning of Pharaoh and his people and the saving of the Children of Israel. This presumption with regard to the reader's knowledge relies on his being acquainted with the Quran and Islamic tradition, in which these matters are given detailed attention; the Israelites' subsequent wanderings in e(l)-Tih are also assumed to be common knowledge (p. 8). However, Rabbi MHBS does not at all presume that the reader has any knowledge of the Jewish religion, and therefore takes the opportunity of the Exodus from Egypt to tell of the three biblical holidays. Significantly, he presents their historical rather than their agricultural rationale: the Feast of Unleavened Bread commemorating the Exodus; the Feast of Shade commemorating God's mercy in screening the Israelites from the desert sun; and the 'Great Holy Holiday' (yom 'id mu'aẓẓam muqaddas) celebrated on the 6th of Sivan commemorating the 'coming down'21 of the Torah by the hand of Moses upon the mount of Tur, on two tablets containing ten commandments.22 When Moses died after forty years, the mantle of leadership was assumed by Joshua khalifat (!) Musa, who from 2489 onwards led the Israelites in the conquest of Filastin in the course of which they fought, overcame and subjugated 31 kingdoms. Almost 900 years later, Nebuchadnezzar destroyed the first temple and exiled Israelites to Babel, where he appointed from them leaders and rulers to govern them under his sovereignty.23 They returned to Filastin 52 years later when God appointed for them Koresh, first King of the Persians, who aided the return of the Children of Israel to Filastin in 3390 under the leadership of Zerubabel, a scion of king David.24 Read in the historical context of 1912, the above bears several important messages for an Egyptian readership:  The antiquity of Israelite ties to Palestine  Their possession of Palestine justified by right of conquest at the hands of the khalifa25  Their right to self-leadership when in exile established since antiquity  Their right to Palestine recognized and acknowledged by Cyrus, who did so under Divine guidance.

21 Or: the sending down (nazalat /nuzzilat altawrah 'ala Musa). 22 However, it later becomes apparent that the Torah is much more extensive; thus, the events and developments following upon the death of Joshua 'are related in the Torah's sefer al-Qaḍaa`' (p. 8). In any case, nowhere does rabbi Ben Shim'on provide details as to the content or subsections of the Torah, the existence of Prophetic books and of the Scriptures. Rather, the first book to come after Torah is Mishna (see below at note ….) 23 P.9. Significantly, the theme of exile as caused by the Israelites' sinfulness is nowhere mentioned by our author. 24 Ibid. 25 The reader will note, of course, the parallel to the great Islamic conquests outside of Arabia, led by the khulafa of a later prophet …. It is also worth stressing that nowhere in Ben Shim'on's narrative is God's promise of the land to the Israelites cited! 13

Zvi Zohar Introductions to Rabbinic Works (Draft)

 The continuity of the Children of Israel as 'the same' historic human entity, after and despite the exile. Subsequently, rabbi MHBS outlines the period, stressing the role of Ezra and the members of the Great Assembly in setting the order of the prayers and of other religious customs according to the sunna transmitted from the elders who received it from Joshua who received it from Musa alkali. He also notes the restoration of Israelite monarchy due to a successful result by the Maccabees against religious persecution, and the monarchy's end due to the Roman destruction of the temple and of Jerusalem in 3828.26 At this point rabbi Ben Shim'on explains, that the historical introduction until now was intended to set the context and background for the creation of the Talmud, that 'has the status of the Israelite nation's precious treasure, as the repository of halakhic jurisprudence and religious rulings that is the sole/ultimate authority on all religious matters'.27 The Talmud consists of the Mishna, 'whose name means in Arabic "the second book" i.e., the second after the Torah",28 and its explication by the . He then expands upon the post-Talmudic academies in Baghdad that were the centers of authority for all Jews worldwide for hundreds of years. During this period the prophet Muhammad29 appeared in 4353; under his successors who ruled Baghdad the academies enjoyed complete security and freedom.30 This portrayal by an early 20th century rabbi of Muhammad as a prophet is noteworthy; the stress upon the security and freedom granted to the world center of the Jewish people would not be lost upon non-Jewish readers in contemporary Egypt. It is no less noteworthy that after Ezra our author names no rabbinic scholar of the post- biblical, Mishnaic or Talmudic times. Indeed, from medieval times onward only three are discussed. Two are obvious choices, because of their impact upon the codification of halakha: and rabbi Yosef Caro.31 The third is not obvious at all: Sa'adia Gaon. However, after introducing him as 'the philosopher Sa'ad al-Fayyumi, so called since he hailed from the city of Fayyum',32 rabbi Ben Shim'on's portrayal of Sa'adia makes clear in what his special merit lies:

26 Pp. 10-11. Once again, the theme of destruction as due to sin does not appear at all. 27 P. 12 28 The conventional explanation of the name Mishna is "to repeat" in the sense of inculcating the content of a teaching by going over it many times. Perhaps rabbi MHBS is (deliberately?) conflating this word with the term Mishneh employed by Maimonides in the title of his magnum opus Mishneh Torah; in that case, Maimonides indeed explains that this means "second to the Torah", in the sense that the reader seeking to comprehend God's Law will need only the Torah itself and the Code of Maimonides. 29 Muhammad a(l)-Nabi 30 P. 13 31 Pp. 14-18. I cannot here discuss how each of these is portrayed. However, Maimonides' strong link to Egypt is clearly stated. 32 P. 13. Fayyum is in a desert oasis S.S.W. of Cairo 14

Zvi Zohar Introductions to Rabbinic Works (Draft)

He was regarded as the greatest and the grandest of all the Israelite nation, because he was the first to compose religious works in Arabic. He translated the Torah, [wrote on] transactions, illuminated persons' reason and brought clarity to their minds, conferred benefit upon one and all and removed confusion and vagueness.33 When, several pages later, our author describes his own opus, he seems to see himself as following (to the best of his ability) such a Sa'adian model: I realized that nothing would do but to provide the lawyers with an eloquently clear Arabic book (kitab 'arabi mubin) to which they could refer and from which they could draw knowledge and upon which they could rely when the need arises… the tremendous importance and the great usefulness of this book is obvious: it is an eloquently clear Arabic book (kitab 'arabi mubin) providing guidance to individuals and to the general public, to the distant and to the near, to the Israelite and to the non-Israelite, regarding our matters of personal status and of religious law.34 The (twice repeated!) characterization of this work as 'an eloquently clear Arabic book (kitab 'arabi mubin)' is a dramatic and bold assertion, for according to Muslim tradition and belief, one of the great merits and qualities of the Quran is precisely its clear and eloquent Arabic.35 Indeed, it is a principle of faith that the Arabic of the Quran is inimitable, and this is a sign of its Divine source. It is thus not trivial at all for rabbi MHJBS to use these words to describe the quality of his book on Jewish halakhic matters. After outlining the structure and subdivisions of the book, rabbi Ben Shim'on states that he has decided to include in it a work by another author: Sa'adia's treatise on the halakhic laws of inheritance. He informs the reader that only one manuscript copy of this precious monograph, composed one thousand years ago, was known to exist, 'Hebrew by script, Arabic by language'. It had been discovered in the Oxford library by the meritorious scholar Musa Steinschneider,36 who informed the learned Yusuf Derenbourg,37 who asked the meritorious Shlomo Fuchs38 to request

33 P. 14 34 P. 19 35 Indeed this quality is declared by the Quran itself. Thus in Sura XXVI:2 "these are the verses of the clear book (alkitab almubin); ibid. 192-195 "And indeed, the Qur'an is the revelation of the Lord of the worlds. The Trustworthy Spirit has brought it down Upon your heart, [O Muhammad] - that you may be of the warners - In a clear Arabic language (bi-lisan 'Arabi mubin)." 36 Moritz Steinschneider, 1816-1907, one of the founders and greatest scholars of modern Jewish academic research. Note the intentional Arabization of his name, for the sake of the Egyptian readership. 37 Josep Derenbourg, 1811-1895, Alsatian born Jewish orientalist, editor of the complete Arabic works of Saadia Gaon. 38 I have been unable to find information about his person. 15

Zvi Zohar Introductions to Rabbinic Works (Draft) permission from Oxford to copy the manuscript. This enabled the work to be published in Paris in 5657/1897, thereby completing the publication of Sa'adia's full ouevre.39 The details provided by MHBS are derived from the introduction to the 1897 edition, and thus enable us to know that he had a copy in his possession. A glance at that edition immediately reveals, that the Arabic text was printed in Hebrew letters (as Sa'adia himself apparently wrote it); by the transposition of the text into Arabic orthography, rabbi MHBS has established for the reader of Arabic a window into a prime work of Medieval Jewish halakhic writing. And by including that work in his own Arabic book of halakha, he enables that reader to regard this contemporary work as a continuation of the Sa'adian project.40 Rabbi Mas'oud Ḥai Ben Shim'on concludes his praise of Sa'adia's work by saying: May God's grace be upon it's author (raḍa Allahu 'an ṣaḥibihi), may He grant him forgiveness and make pleasant his abode. And may He allow us to do the utmost in the service of our religion, our community and humankind. He is the Hearer and the Responder (a(l)sami'a almujib).41 By this formulaic ending, MHBS characterizes Sa'adia as a holy personage, and reveals his own work on Kitab al-Ahkam a(l)-Shar'iyya as religiously motivated for the sake of Judaism, the Jewish community and all mankind -- whatever may have been the utilitarian intent of the Egyptian Ministry of Justice in requesting the composition of this volume.

After all the above, rabbi Masou'd Ḥai Ben Shim'on devotes another few paragraphs to thanking various persons who played an important role in the creation of the book. These include two rabbis: the Chief Rabbi of Cairo (his older brother) Raphael Aharon Ben Shim'on, and rabbi Abraham Abikhezir, director of the rabbinic courts of Alexandria. Most surprising to the initiated, however, are his thanks toward a third personage: To the honorable, virtuous and generous advocate Muraḍ Effendi Farag who clothed this book in its Arabic Shari'ic garment, for (knowledge of which) he is famous – may God bless (the three of) them all.42

39 Thus MHBS. In fact, much of Saadia's work still remains in manuscript. 40 A comparison of the Sa'adian text as included in Ben Shim'on's book and the text as printed in the 1897 Derenbourg edition reveals that MHBS was not engaged in mere mechanical transposition. On the one hand, he omitted Sa'adia's theoretical introduction (pp. 1-9 in Derenbourg's edition), and began with the statement "The topic of inheritances subdivides into four parts" (p. 9 in the 1897 edition, p. 129 in MHBS' opus). On the other hand, he provided graphic rendering of the captions and sub-captions thus giving Sa'adia's book a contemporary graphic style, in line with the rest of the volume. In some cases, he added captions that were not provided in the 1897 edition (e.g., p. 156, "On the Division of Agricultural Fields, Lands, and Other Items"). 41 Introduction, p. XVI 42 Ibid., p. XVII 16

Zvi Zohar Introductions to Rabbinic Works (Draft)

Murad Farag (1866-1956) – lawyer, poet, theologian, Egyptian patriot, Zionist thinker and community activist – was the leading intellectual of the Karaite community of Cairo. The main source of original contention and schism between Karaites and Rabbanites was specifically the status and significance that should be attributed to the , the source of Rabbanite halakha. In these final words of rabbi Mas'oud Ḥai Ben Shim'on we learn that the religious and intellectual milieu of early 20th century Egyptian Judaism was such, that two leading religious scholars – one Rabbanite, one Karaite – could together collaborate in the formulation of an Arabic rendition of Rabbanite halakha, intended for the service of Egyptian lawyers of all faith communities. A remarkable intellectual reality, indeed.

Looking back upon rabbi MHBS's introduction we can see that beyond the specific points that I mentioned and quoted, it provides a general picture of the Israelite's identity and of their relationship with the Arabic speaking world. They are a most ancient umma, seed of Abraham, blessed by Divine salvation from Egypt (known clearly to readers of the Quran) and by the and leadership of Musa alKalim through whom God brought down for them the Torah. Conquering Filastin under Joshua khalifat Musa, they were exiled by force, returned there by God's grace, re-established another kingdom and exiled again by brute force. Throughout this time they remained faithful to the Torah and to its sunna, developed halakhic scholarship and academies, and had existed for thousands of years before the appearance of the prophet Muhammad and the conquests of his khulafa – who treated them respectfully and well. Acquiring mastery of Arabic, their outstanding scholars such as Sa'adia and Maimonides composed great works in that language; today, the Jews of Egypt are the direct descendants of that illustrious umma, natural participants in the Egyptian Arabic milieu and proud to share with all – in Arabic -- the fruits of their age-old religious-halakhic creativity.

Post Script

The thesis I proposed at the beginning of this paper was, that introductions that rabbis write to books they authored are a fruitful locus in which to seek their intellectual thought. Analysis of two such introductions by leading rabbis, one from Baghdad and one from Cairo, has shown (I believe) that this thesis has some merit. The issues dealt with (and reflected) in each of these introductions are important and central, and each of the two rabbis is revealed (I think) to be an interesting and

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Zvi Zohar Introductions to Rabbinic Works (Draft) creative thinker. The significance of their views and positions is enhanced by understanding them to be relating implicitly to ideas and issues that were moot in their times. However, the significance of the content of these two introductions is not passé, as they deal with issues that are of significance also today: creativity within halakha, the crux of Sephardic religious cultural characteristics vs. those of Ashkenazic rabbis; continuity of Israelite/; and the relationship of Jews to and with Arabic culture.

Having now seen the richness of these two introductions, one can only ask: what treasures might await us other introductions to rabbinic works in the modern Middle East?

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