
Adiel Schremer
Address: Israel & Golda Koschitzky Department of Jewish History and Contemporary Jewry
Bar Ilan University
Ramat Gan, 52900
ISRAEL
Bar Ilan University
Ramat Gan, 52900
ISRAEL
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“beyond the letter of the law”) is frequently understood as referring to
supererogatory behavior, which, of its very nature, is voluntary and not
obligatory. Various halakhic authors, however, consider lifnim mi-shurat
ha-din as obligatory (at least in some cases), and some even go as far as
to maintain that it should be compulsory by court. Such a stance is
surprising and paradoxical, for if one is expected, indeed demanded, to
retract the law and to adopt a different norm in its stead, does not this
imply a negative evaluation of the law? This paper seeks to consider
such a possible conclusion. Its point of departure is Rabbi Shlomo ben
Aderet’s (known by his acronym Rashba) interpretation of the Talmudic
saying, that Jerusalem was destroyed (by the Romans) because rabbinic
authorities of Second Temple times followed the laws of the Torah ל) א
חרבה יר וש ל ים אל אעל ש ד נו בה ד ין ת ורה [TB Bava Metzia, 30b]), as
suggesting that under certain circumstances one should not follow the Torah,
and Rabbi Joshua Falk’s (16th century, Poland) similar view, in his
Derisha u-Perisha commentary on the halakhic code of Rabbi Yaakov ben
Asher, Arb‘a Turim. Following that view it discusses two Talmudic
narratives, in which the halakhic norm is criticized by a rabbinic sage,
claiming that one should adopt a higher moral standard, thus implying
that the moral standard of the Halakha is at times problematic, and
hence it is not always the appropriate path to follow.
“beyond the letter of the law”) is frequently understood as referring to
supererogatory behavior, which, of its very nature, is voluntary and not
obligatory. Various halakhic authors, however, consider lifnim mi-shurat
ha-din as obligatory (at least in some cases), and some even go as far as
to maintain that it should be compulsory by court. Such a stance is
surprising and paradoxical, for if one is expected, indeed demanded, to
retract the law and to adopt a different norm in its stead, does not this
imply a negative evaluation of the law? This paper seeks to consider
such a possible conclusion. Its point of departure is Rabbi Shlomo ben
Aderet’s (known by his acronym Rashba) interpretation of the Talmudic
saying, that Jerusalem was destroyed (by the Romans) because rabbinic
authorities of Second Temple times followed the laws of the Torah ל) א
חרבה יר וש ל ים אל אעל ש ד נו בה ד ין ת ורה [TB Bava Metzia, 30b]), as
suggesting that under certain circumstances one should not follow the Torah,
and Rabbi Joshua Falk’s (16th century, Poland) similar view, in his
Derisha u-Perisha commentary on the halakhic code of Rabbi Yaakov ben
Asher, Arb‘a Turim. Following that view it discusses two Talmudic
narratives, in which the halakhic norm is criticized by a rabbinic sage,
claiming that one should adopt a higher moral standard, thus implying
that the moral standard of the Halakha is at times problematic, and
hence it is not always the appropriate path to follow.
This reconstruction of the denounced midrashic interpretation, only
hinted at by the Sifre, paves the way to a consideration of a possible lost
Tannaitic polemic concerning the legitimacy of exposure of genealogical
flaws among the people of Israel.
century, six of the greatest Narbonnese sages of the time permitted
the use of a codex, rather than a scroll, for the public reading of the
Torah in the synagogue. This ruling, revolutionary in its content, is also
surprising in its reasoning. The Talmud (bGiṭṭin 60a) states: “One may
not read the Torah in public from a Ḥumash because of the dignity of
the congregation,” and the Narbonnese rabbis candidly acknowledge
the halakhic validity of that Talmudic dictum. Yet, they rule in contrast
to the Talmudic ruling, claiming that it is better to annul the Talmud’s
rule rather than to entirely abstain from the public reading of the Torah.
Therefore, a community that is unable to arrange for a Torah scroll
should, despite the Talmud’s ruling, perform the public reading of the
Torah, using a codex for that purpose. This halakhic ruling engendered
a fierce debate among medieval halakhic authorities and the present
paper is devoted to an analysis of the different approaches taken in
that debate. It shows that a rationale similar to that of the Narbonnese
rabbis can be found in other areas of medieval halakhic deliberations.
It therefore argues that such a line of reasoning indicates that halakhic
decision-making is not guided by a formalistic approach—aiming at
implementing the demands of the authoritative texts of the law—but
rather the potential consequences of a ruling is allowed to be a
motivating factor in halakhic decision-making.
production and sale of wine reveal that Franco-German Jews and their non-Jewish
neighbors cooperated very closely in virtually all aspects of the wine industry in
the Middle Ages. This state of affairs gave rise to many halakhic questions, to
which rabbinic authorities needed to respond. This paper is devoted to the religious
and ideological anxieties of these authorities when dealing with such issues, as
reflected in their practical halakhic discourse. It points to the existence of halakhic
disputes throughout halakhic texts of the 11th and 12th centuries regarding the
kashrut of wine. The paper seeks to explain these disputes as the result of
competing approaches to questions of religious and communal identity vis-à-vis
the Christian majority, that existed among Franco-German rabbinic sages of the
time.
This subject has been dealt with intensively by Haym Soloveitchik in his two
Hebrew books: Yeinam (Tel Aviv 2003) and Wine in Ashkenaz in the Middle
Ages (Jerusalem 2008). Soloveitchik’s focus is on the ways medieval halakhists
conceptualized the problems, that is, their understanding of the halakhic doctrines
involved, and their interpretations of the relevant Talmudic texts. This focus
reflects his fundamental view that halakhic positions are primarily the product of
textual learning and conceptual thinking. This paper follows a different path.
Approaching the subject with the jurisprudential assumptions of the legal school
known as Legal Realism, it is maintained that the considerations underlying the
halakhic disputes among medieval Ashkenazi rabbinic sages pertaining to kashrut
of wine relate to the consequences of their rulings and their implications for the
religious identity of the Jewish community.