A TREE OF LIFE THE LITTMAN LIBRARY OF JEWISH CIVILIZATION Dedicated to the memory of Louis Thomas Sidney Littman who founded the Littman Library for the love of God and as an act of charity in memory of his father Joseph Aaron Littman ͯ· ̯ÎÊ ‡‰È ‘Get wisdom, get understanding: Forsake her not and she shall preserve thee’ prov. 4: 5 The Littman Library of Jewish Civilization is a registered UK charity Registered charity no. 1000784 A TREE OF LIFE Diversity, Flexibility, and Creativity in Jewish Law ◆ second edition ◆ LOUIS JACOBS Oxford · Portland, Oregon The Littman Library of Jewish Civilization The Littman Library of Jewish Civilization Chief Executive Officer: Ludo Craddock Managing Editor: Connie Webber PO Box 645, Oxford ox2 0uj, uk www.littman.co.uk ——— Published in the United States and Canada by The Littman Library of Jewish Civilization c/o ISBS, 920 N.E. 58th Avenue, Suite 300 Portland, Oregon 97213-3786 First published 1984 First issued in paperback with corrections and a new introduction 2000 Paperback reprinted 2007 First digital on-demand edition 2007 © Ivor Jacobs 1984, 2000, 2007 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of the Littman Library of Jewish Civilization This book is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, re-sold, hired out or otherwise circulated without the publisher’s prior consent in any form of binding or cover other than that in which it is published and without a similar condition including this condition being imposed on the subsequent purchaser A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Jacobs, Louis A tree of life : diversity, flexibility, and creativity in Jewish law / Louis Jacobs. p. cm.—(Littman library of Jewish civilization) Includes bibliographical references (p. ) and index. 1. Jewish law—Philosophy. I. Title. II. Littman library of Jewish civilization (Series) BM520.6 .J33 2000 296.1Ј8—dc21 00–021942 ISBN 978–1–874774–48–8 Publishing co-ordinator: Janet Moth Production: John Saunders Design by Pete Russell, Faringdon, Oxon. Printed in Great Britain by Lightning Source UK, Milton Keynes and in the United States by Lightning Source US, La Vergne, Tennessee This book has been printed digitally and produced in a standard specification in order to ensure its continuing availability. For my grandchildren daniel, paula, ziva, noa, michael and abraham It is a tree of life to them that grasp it (prov. 3: 18). R. Banaah used to say: Whoever busies himself in the Torah for its own sake, his Torah becomes for him an elixir of life. Ta’anit 7a The benediction recited after the reading of the Torah is: ‘Who has given us a Torah of truth’— this refers to the Written Torah— ‘and has planted eternal life in our midst’— this is the Oral Torah. Shulh. an arukh,Orah. h. ayim 139: 10 Contents List of Abbreviations ix Introduction to the Second Edition xi A TREE OF LIFE INTRODUCTION Halakhah and Aggadah 3 1 The Talmud, Source of the Halakhah 14 2 The Spirit of Halakhah 25 3 Exemptions and Extensions 34 4 The Influence of Philosophy 42 5 The Influence of Mysticism and Kabbalah 59 6 Hasidism and Halakhah 72 7 Responses to the Gentile World 80 8 Halakhah and Sectarianism 93 9 Halakhic Responses to Social Change: General Principles 110 10 Halakhic Responses to Social Change: Further Examples 121 11 New Inventions and Discoveries and the Halakhah 152 12 Halakhah and Ethics 168 13 Halakhah and Social Conduct (Derekh Erets) 180 14 Halakhah and Psychology 186 15 Halakhah and Minhag: The Customs of the People as Law 206 16 Towards a Non-Fundamentalist Halakhah 220 APPENDIX A The Literary Form of the Halakhah 232 viii contents APPENDIX B The Problem of the Mamzer 239 Note on Proper Names and Transliteration 255 Note on Talmudic and Halakhic Sources 258 Bibliography 263 Index of Biblical, Mishnaic, and Talmudic References 283 General Index 291 List of Abbreviations AV Authorized Version of the Bible b. ben, son of Bah Joel Sirkes, author of Bayit h.adash BH Ba’er heitev, a commentary printed in most editions of the SA. The parts on OH and EH are by Judah b. Simeon Ashkenazi, the parts on YD and HM are by Zechariah Mendel b. Aryeh Leib Biur hagra a commentary by the Vilna Gaon on the Bible, Talmud, or SA and printed in major editions of these works BT Babylonian Talmud Chajes notes on the Babylonian Talmud, printed in the Romm edn. (Vilna, 1933) DS Dikdukei soferim (variant readings of the talmudic text by Raphael Nathan Rabbinovicz) EH Even ha’ezer (one of the four books comprising the SA) EJ Encyclopaedia Judaica ET Entsiklopediyah talmudit Hatam Sofer Moses Sofer, author of the H. atam sofer HM H. oshen mishpat (one of the four books comprising the SA) HUCA Hebrew Union College Annual JE Jewish Encyclopaedia JJS Journal of Jewish Studies JLA Jewish Law Annual JQR Jewish Quarterly Review JT Jerusalem Talmud Ketsot hah.oshen a commentary on SA, HM by Aryeh Leib b. Joseph Hakohen, printed in major editions of the SA KS Kiryat sefer Magid mishneh a commentary by Vidal Yom Tov of Tolosa on Yad, printed in most editions Maharik Joseph Colon Maharil Jacob b. Moses Moellin Mordekhai a halakhic compilation by Mordecai b. Hillel, printed in most editions of the Talmud after the text x list of abbreviations NEB New English Bible OH Orah. h.ayim (one of the four books comprising the SA) OP Otsar haposekim (a digest of responsa) OY Otsar yisrael, ed. J. D. Eisenstein (Berlin and Vienna, 1924) PT Pith.ei teshuvah (a commentary by Abraham Hirsch b. Jacob Eisenbach, printed in major editions of the SA) R. Rabbi Rabad Abraham ibn David Radbaz David ibn Abi Zimra Rambam Moses b. Maimon (Maimonides) Rema Moses Isserles Ran Nissim of Gerona Rashba Solomon Ibn Adret Rashbash Solomon b. Simeon Duran Rashi Solomon b. Isaac Ribash Isaac b. Sheshet Perfet Rid Isaiah di Trani Ridbaz Jacob David b. Ze’ev Willowsky Rif Isaac Alfasi Rif a commentary by Isaac Alfasi on the Babylonian Talmud, printed in the Romm edn. (Vilna, 1933) Ritba Yom Tov Ishbili Rosh Asher b. Jehiel Rosh a commentary by Asher b. Yehiel on the Babylonian Talmud, printed in the Romm edn. (Vilna, 1933) SA Joseph Caro’s Shulh.an arukh Semag Moses of Coucy, author of Sefer mitsvot gadol Sha’arei teshuvah a collection of geonic responsa Shakh Shabetai Hakohen, author of Siftei kohen Shelah Isaiah Horowitz, author of Shenei luh.ot haberit Taz David Halevi, author of Tur hazahav Yad Yad h.azakah (Maimonides’ Mishneh torah) YD Yoreh de’ah (one of the four books comprising the SA) Introduction to the Second Edition A Tree of Life first appeared in 1984. Reviewers and general readers found little with which to quibble in the book’s main contention that the traditional post-talmudic authorities developed the halakhah with diversity, flexibility, and creativity. What did cause offence, for both Orthodox and Reform critics, was the final chapter, ‘Towards a Non- Fundamentalist Halakhah’, which puts forward the view that it is both desirable and possible to preserve the halakhic system, albeit in a more dynamic form than in the past, even now that it has been demonstrated by the massive researches of the historical school that the halakhah did not simply drop down from Heaven but has had a history. I confess that I thought twice before adding this controversial and speculative chapter to the book, and was tempted to omit the chapter from this revised edition so as not to obscure the book’s basic thesis, which is that the traditional halakhists operated, consciously or subconsciously, in re- sponse to a felt need to make their halakhic decisions conform to their general stance on what Judaism demands of its adherents. Yet to have ignored the new historical challenge to the halakhic system would have been cowardly and dishonest. In this new introduction I try to defend the view presented in the final chapter against strictures from the right and left wings, as well as describing, at least in outline, further work that has been done by scholars in the area covered by the book as a whole. First, reference should be made to a book of the utmost relevance to the themes treated in A Tree of Life that has appeared in the Orthodox Forum series of the Rabbi Isaac Elhanan Theological Seminary, Rabbinic Authority and Personal Autonomy.1 The basic problem to which the Modern Orthodox essayists in the book address themselves is to what extent a contemporary Orthodox rabbi can be innovative and creative in his halakhic decisions. These writers agonize in one way or another over the dilemma of Modern Orthodox rabbis who seek to follow the halakhic process typical of rabbis of the old school while accepting, unlike the latter, many of the values of Western thought and culture. 1 Edited by Moshe Z. Sokol. See also my review in the Jewish Journal of Sociology. xii introduction to the second edition The opening essay in this book exposes the flaws in the notion, preva- lent among the h.aredim or ultra-Orthodox today, that the gedolim (‘great ones’, chiefly the (unelected) members of the Council of Sages of Agudat Yisrael) have a kind of built-in guarantee that their opinions, even in political matters such as attitudes towards Zionism and the State of Israel, are as infallible as what the h.aredim call da’as torah, the view of the Torah, to reject which is to reject the very word of God.2 Far from such a view being traditional and Orthodox it is, in fact, modern, since it only emerged under the influence of hasidic veneration of the tsadik in the early twentieth century.