LAW, CODIFICATION OF:
- The First Code.
- Characteristics of the Deuteronomic Code.
- Deuteronomic and Primitive Codes.
- Holiness Code.
- The Priestly Code.
- Period of the Soferim.
- A Sadducean Code.
- The Mishnah of Akiba.
- Rabbi Judah's Mishnah.
- Economy of the Mishnah.
- The Talmud.
- The Saboraim.
- Saadia and Hai.
- Codifiers of the African School.
- The Earlier Spanish School.
- Maimonides' Code.
- The Provençal Codifiers.
- The School of Tosafists.
- Union of the Spanish and Franco-German Schools.
- The German School.
- The New Spanish School.
- The "Ṭur."
- The Italian Codifiers.
- The Shulḥan 'Aruk.
- Authority of the Shulḥan 'Aruk.
A unified and coordinated body of law superseding all previous laws within its scope, or the reenactment of existing law in a systematic and improved form. There are few Jewish codes under the first head, but many under the second. The Jewish term "law" includes much more than is commonly comprehended under that name; therefore the material that is found in Jewish codes is of various kinds, and different portions of it have frequently been treated in various legal works. The originators of the Biblical laws were well aware of the difference between juridical, ceremonial, and moral law, as is proved by the number of synonyms for "law" found in Scripture. For although these synonyms were in the course of time used without distinction, yet there is no doubt that they originally indicated different classes of laws, the original differentiation being lost when the laws were traced back to one divine origin. In the Pentateuch the word "Torah" is used to designate all precepts, regulations, commands, and prohibitions which were considered authoritative because they were of divine, or, at least, of holy origin, whether they were moral maxims, ceremonial usages, or legal decisions. Similarly in subsequent Talmudic times every regulation or teaching of the Bible was called a "miẓwah," since, being decreed (= "ẓiwwah") by God, it was regarded as obligatory. Hence Jewish codes include not only jurisprudence, but also theology, ethics, and ritual; but there are only a few codes which include the whole Law, the field covered being so vast.The First Code.
According to tradition all the regulations found in the Pentateuch were given by Moses to Israel at the command of God, hence the Torah includes only one code; but modern Bible criticism, whose results are still open to revision, finds in the Pentateuch atleast four different codes, ascribable to different epochs and authors. It must be noted, however, that the question concerning the time in which the Law was committed to writing is independent of the question as to the date of its origin. Israel was a "People of the Word" long before it was a "People of the Book," and the laws of the Hebrews, like those of most other nations, were written down only after they had been in force for a long time.
From a certain point of view the Decalogue in its various forms may be regarded as a code, but is really only the rough outline of the principles underlying the earlier legislation. Ex. xxi.-xxiii. 19 contains a code which was collected and arranged as a manual for the judge, furnishing rules to guide him in his decisions. In the wording of the superscription—"Now these are the judgments which thou shalt set before them" (Ex. xxi. 1)—this section is clearly designated as a code, and its literary form also, aside from some later interpolations, is that of a code.
The laws treated in this "Book of the Covenant," as the section is now commonly called, are manifold in nature. They may, nevertheless, be divided into two chief groups: (1) enactments relating to civil and criminal law (xxi. 2-xxii. 16), and (2) moral, religious, and ceremonial enactments (xxii. 17-xxiii. 19). Although the people for whom these laws were made were no longer nomads, their institutions were still very primitive. The criminal and civil administration of justice corresponded on the whole to that still obtaining among the Arabs of the desert. The religious and moral point of view, however, expressed in this code was new and specifically Jewish. It is the duty of every person to protect the poor and strangers; relief of the needy, as well as love of truth, is enjoined on the ground that God is the "merciful one" (xxii. 26). This advanced religious and moral point of view, which is not in keeping with the primitive character of the jurisprudence displayed in the code, leads to the assumption that the laws originated a long time prior to the date at which the code was committed to writing. In antiquity as in modern times, the administration of justice did not always keep pace with ethics. The Book of the Covenant as well as the Decalogue is older than those sources of the Pentateuch that are designated as JE; hence these codes may be classed in one group and designated "the primitive codes"; that is, the codes which had been committed to writing earlier than the eighth century
The legal part of Deuteronomy must be considered as a different kind of code, including more than three-fourths of the primitive codes and much other matter, especially religious and moral, not found in the earlier ones. It is characteristic of the "Deuteronomic Code" that it is intended for the whole nation, and not for special classes—priests or judges. Hence many technical points are omitted, as, frequently, the exact nature of the punishment for an offense, which neither would interest the people nor would its repetition be needed by the judge, since at the time of the Deuteronomist he would be entirely familiar with the code especially intended for him. In other respects, however, the Deuteronomist is, naturally, very explicit, for he lived in a time when the organization of society was much more complex than it had been in previous centuries, and when new conditions were constantly arising which required special legislation.Characteristics of the Deuteronomic Code.
The centuries between the time when the primitive codes were committed to writing and the time of the Deuteronomist were the period of activity of the greater prophets, whose influence on legislation is apparent. Hence many laws in Deuteronomy derived from the old codes show material revision. Thus the father's authority over his minor daughter is largely curtailed. Deut. xv. 12, in contradiction to Ex. xxi. 7, orders that a daughter sold into slavery by her father shall be free in the seventh year, and that during her time of service she can not be forced by her master to become his wife. But though the Deuteronomic code, in comparison with the primitive codes, represents on the whole a great advance in religious and moral matters, its laws being distinguished by their humanitarian spirit, still there are many provisions that make the later code appear at first glance much more severe than its predecessors. Formerly it had been decreed that he who sacrifices to strange gods shall be excommunicated (Ex. xxii, 19): in Deuteronomy such an offense is punished by death (xvii. 5), equally severe punishment being meted out to one who leads astray into apostasy or magic. But it is easy to understand this rigor of the new code in view of the fact that, shortly before it was compiled, the ruling party in Judea, supported by the authority of the godless king Manasseh, attempted to destroy utterly the followers of God. The opposing party under Josiah could not count on victory unless it proceeded with utmost rigor against idolaters, for by such means only could it hope to counteract the influence of those who had betrayed their faith. Expressed antagonism to heathendom is one of the most prominent characteristics of this code; the centralization of worship in one place—Jerusalem—as well as many other provisions, is explicable only from such an attitude. In consequence of the close connection between the ceremonial and the legal aspects of Jewish law, the religious point of view of this code influenced the social legislation also. The institution of cities of refuge in Deuteronomy (iv. 41-43) is closely connected with the abolition of the local sanctuaries which formerly afforded protection (Ex. xxi. 13).Deuteronomic and Primitive Codes.
The Deuteronomic code, notwithstanding its many peculiarities, can not properly be designated as a new code; it represents rather a revised and improved edition of the Book of the Covenant, made in conformity with the new ideas of the time. Deuteronomy contains very few ceremonial and ritual laws not found in early sources, and it may also be unhesitatingly assumed that even those few laws which are found there for the first time were not new at this period, but had existed long before, and, perhaps, had been previously committed to writing. Nevertheless it would be difficult to overestimate the importance ofthis code; it is not only a great reformative legal work, but it is also, in a certain sense, the first authoritative code (see Deuteronomy). For, probably, the laws of the primitive codes were generally accepted only after a long period of limited usage, being for many years restricted to particular classes; for example, to the priests. It was different with the Deuteronomic code according to the modern critical view. Under the leadership of King Josiah (II Kings xxiii. 3) the whole people agreed to regard the laws laid down in this code as authoritative. It is the first book of laws for the people, its predecessors being intended chiefly for judges and priests; and it retained this position as the people's code, although it underwent some changes in the course of time.Holiness Code.
Quite a different fate befell a code which was issued by Ezekiel about a century later (Ezek. xl.-xlviii.); although its originator was an influential prophet, it never became national. It is concerned chiefly with the Temple. The theoretic treatment in Ezekiel's work is a new and characteristic feature. Although the laws he formulated could not become effective, as the Temple was in ruins at that time, he nevertheless described in detail the laws of his future ideal state, in which the Temple was to be once more the center of the national life. Ezekiel was not the only man at that time who lived in the future, for that part of Leviticus which is designated as the "Holiness Code," or the "Law of Holiness" (Lev. xvii.-xxvi.), originated in this period. In these laws much stress is laid on the holiness of God. Compared with the Book of the Covenant, this code deals much more with moral and ceremonial regulations than with civil and criminal matters. The religious as well as ethical point of view is a very advanced one, and it is especially characteristic of the Holiness Code that it endeavors to apply the moral principles of the Decalogue to practical legislation. The ethical injunction "Love thy neighbor as thyself" (Lev. xix. 18) is quoted in connection with laws intended to protect the rights of the poor. It must be especially emphasized in regard to this code that it contains many very ancient laws.The Priestly Code.
P, the largest code of the Pentateuch, contains even a greater number. This code includes the first part of Leviticus (i.-xvii.), most of the legal sections of Numbers, some portions of Exodus, and the section on circumcision in Genesis. It is called "P," in full "Priestly Code," because the ceremonial laws relating to sacrifices and purity constitute the larger part of it. In P, however, a distinction must be made between (1) the priestly teaching; that is, all the laws introduced by the formula "This is the Torah of . . ."; (2) the original draft of P; and (3) its later supplements. The novelty and great importance of this collection of laws do not, as the name might lead one to believe, consist in the many regulations pertaining to sacrifices, most of which were known for centuries to the priests, but in the fact that this code was an attempt to realize the idea of Israel as a "people of priests," each member of which should live like a priest. This ideal, which filled the minds of its originators, was not shared by the whole people until the time of Ezra and Nehemiah. About 400
The period between the canonization of the Pentateuch and the time of the Maccabees is known in rabbinical tradition as the time of the Soferim. The authority of the Pentateuch had been established, and the chief task remaining was to explain the Scriptures and to apply correctly to existing conditions the principles laid down therein. No works dealing with the Law were produced during this time, which, indeed, was singularly deficient in literary effort. It is characteristic of the period that even the later rabbinical tradition, ascribing to Biblical times some laws and decisions of the sages, which really originated much later (see Oral Law), never refers to works of the time of the Soferim. But there may have been, for instance, a collection of important laws dealing with the Temple and its ritual, and the Mishnah contains probably some halakot that were originally included in such collections. But it is probable that these old collections of halakot were never written down.A Sadducean Code.
The earliest code mentioned in post-Biblical times is the Sadducean "criminal code," which was in force down to the time of Queen Alexandra (Megillat Ta'an. iv.; the explanations given in the scholia are probably wrong in regard to certain particulars, as Wellhausen, "Pharisäer und Sadducäer," p. 63, has pointed out; yet the fact that the Pharisees celebrated the day on which the "Book of Decisions" was abolished proves that it was an anti-pharisaic work). The Megillat Ta'anit itself may in a certain sense be regarded as one of the earliest rabbinical codes; for the enumeration of the minor holidays on which fasting was forbidden was undertaken more in reference to the Halakah than to history, as the actual deeds commemorated by these days are in general omitted. At about the time of the compiling of the Megillat Ta'anit, the beginning of the Christian era, several divisions of the Halakah were probably codified, even if only a portion are found in writing. For, although the pharisaic classes, for various reasons, were endeavoring, at that period (see Oral Law) to prevent written codes from reaching the public, many scholars had their "megillot setarim" (secret books) in codified form, in which they entered important passages of the Halakah. Some circles of priests possessed similar rolls, which contained matter of especial importance to them. The Mishnah, directly or indirectly, made use of such collections (see Simon of Mizpah); for there is no longer any doubt that it contains halakot which were formulated during the days of the Temple, although it can not bedemonstrated that they were written down in definitive form.The Mishnah of Akiba.
The contrast between Mishnah and Baraita—that is, between officially recognized subjects taught in academies and matter that was not taught there—existed as early as the time of Johanan b. Zakkai (see Baraita). The pupils of this authority, as well as some of his younger contemporaries whose activity falls in the period 70-100, undertook to arrange the immense mass of material that had accumulated as a result of the activity of the schools of Shammai and Hillel. The treatises Yoma, Tamid, and Middot probably date from this time—shortly after the destruction of the Temple. Akiba b. Joseph's work, however, is the first that can be definitely identified; his genius for systematization led him to begin arranging the different branches of the Jewish learning of that time, and his work, according to a trustworthy tradition, served as guide for the Mishnah, the fundamental outlines of which may be regarded as Akiba's work. In addition to Akiba, other tannaim were busy at the same time with similar works, which may also have served in many respects as models for the editor of the Mishnah. But the first code dealing with the entire material of the Halakah was compiled only at the end of the second century; namely, the Mishnah of Judah ha-Nasi, called briefly "the Mishnah."
Judah ha-Nasi's work may rightly be considered as the most important production in the field of rabbinical code literature, although it does not correspond either in content or in form with the current view of a code. The Mishnah, it must be stated by way of explanation, successfully terminated the revolution of Jewish intellectual life, which, lasting for about two centuries, threatened to destroy the vital principle of rabbinical Judaism. Until the time of Shammai and Hillel, tradition, operating unnoticed and peaceably, had determined the regulation of the religio-legal life in all its departments. With them it became the subject of authoritative discussions in the public academies. Practical questions were replaced by academic discussions, leading to inquiries into fundamental principles and to differences of opinion which introduced insecurity into the entire religio-legal life. This uncertainty was further increased by the political catastrophes which occurred soon after and extended over a long period; and it accounts for the contradictory views and sentences of the tannaim of the second generation. The first attempts to put an end to this confusion were made toward the end of the first century of the common era at the synod or synods of Jabneh, probably under the influence of Rabban Gamaliel II. (see 'Eduyot). While the decisions of the school of Hillel were adopted as a theoretical standard, authority was often conceded in practical matters to the opposing school of Shammai, provided that the choice made between the two schools was consistently maintained in the whole conduct of life. Other differences were decided by a majority vote. Soon, however, it seemed as if the efforts made at Jabneh had been in vain. No fixed and determined principles were recognized which might serve as an authoritative canon in ultimately determining halakot as yet undefined. Another danger to the Halakah arose from the fact that most of the prominent tannaim of the third generation conducted schools in which the existing Halakah material was taught according to different orders. Akiba, as has been stated, was the first to adopt a certain standpoint for a systematic and topical arrangement and redaction of the material. But Akiba with his hermeneutics, which gave full play to the theorists, increased the uncertainty of the Halakah to such an extent that his pupil Meïr felt compelled to add to his teacher's Mishnah the new Halakab, which, in the main, was based on Akiba's hermeneutics.Rabbi Judah's Mishnah.
So long as the Halakah material, with the exception of the relatively few ancient decisions, was in a constant state of flux, especially in the school of Akiba, no true codification could be made. Although the redactions of the Mishnah by Akiba and Meïr were of great value to the schools, for which they, in a sense, were text-books, religio-legal practise profited little by them. Of an entirely different nature was the Mishnah of Rabbi Judah, who set himself the task of adapting the halakot to practical life. He made an independent revision not only of the very late, but also of the earliest, halakot; hence, of all the halakot in existence before the redaction of the Mishnah collection. The results of this revision, which was undertaken by Rabbi with the aid of his colleagues and pupils, were not alike in all cases. Many of the halakot are quoted as "the law" without any explanation of the fact that they are merely the opinion of one authority. Such halakot (designated in the terminology of the Talmud as ) either belong to the old laws fixed in the generations before Rabbi or are decisions made in doubtful cases by the editor of the Mishnah and his colleagues. But as in many instances it was absolutely necessary, for the historic appreciation of the Halakah, to know whether a certain decision is one generally recognized or not, disputed halakot are indicated as such in a large part of the Mishnah. In most of these cases, however, the value of the codification is not thereby impaired, because the opinion held by the editor to be the correct one is given as the halakah, while the divergent opinion is quoted in the name of a single authority.Economy of the Mishnah.
In the arrangement of his Mishnah also, Rabbi had the historical development in view. The old Halakah was essentially exegetical in nature, and, therefore, always followed the arrangement of the Scriptures (comp., e.g., Neg. xii. 5-7), although to the various halakot bearing on the Scriptures it added a number of important "decisions of the court," which were considered valid as being the utterances of recognized authorities. The development of the Halakah in the period following Hillel, during which the gulf between the Scriptures and the Halakah was widening and a mass of new material was added, necessitated the arrangement of the Halakah on a systematic basis. Akiba, the first to attempt to carry out this new arrangement, was probably also the originator of the present division of the Mishnah, according to whichthe entire work is divided into six principal parts ("sedarim"), which are subdivided into treatises ("massektot"); these again into chapters ("peraḳim"), and the chapters into sections ("mishnayyot"). The many shortcomings in this arrangement of the Mishnah must not be ascribed wholly to the author. One must bear in mind both the connection of the Mishnah with Scripture and the fact that it was intended as a code for the practical teacher of the law, as well as a text-book for the student. The first Mishnah, for instance, determines the time of reading the "Shema'" without previously stating that the recital of the latter is a religious duty. Although this may seem unsystematic, it must be remembered that the Mishnah simply undertakes to interpret and define the precepts of Scripture without giving their substance. The Biblical laws had to be studied directly from Scripture, the word of God. The same remark applies to the old traditional laws and customs, which in a certain sense belong to Scripture, and which are quoted in the Mishnah only when certain details are questioned. As the Mishnah, furthermore, was intended as a text-book, purely pedagogical points had to be considered, which otherwise do not pertain to a code. There are two reasons, however, why the Mishnah of Judah ha-Nasi occupies the first place in code literature. Its intrinsic merits together with the authority of its redactor secured its universal acceptance and recognition, so that it eclipsed the numerous other Mishnah collections, which gradually disappeared. Again, this prominence of Judah ha-Nasi's Mishnah effected the great revolution in the field of the Halakah which manifested itself in the radical difference between the Halakah of the Tannaim and of the Amoraim. While the former regarded the text of the Bible as the basis for discussion, the latter took the Mishnah for their text, Biblical verses, which they frequently quoted, being introduced merely as weapons in intellectual jousts.The Talmud.
So long as the Halakah was in a state of chaos, so long as it taxed the memory to the utmost, there could be no question of original, spontaneous work, the first condition for which was that the material should be part and parcel of the student's mind. The mere memorizing of the various halakot took so long that no time remained for a thorough study of them apart from their relation to the Bible. Hence, for the tannaitic Halakah, the hermeneutic interpretation of Scripture was the chief study. The Mishnah, whether written or oral, checked this tendency, this state of ebb and flow, by furnishing an integral whole, as it were, that not only could be memorized, but could be studied also. With the appearance of the Amoraim, therefore, arose the desire to discover the inner connection of the several halakot, in order to give logical formulation to the principles implied in the concrete halakot of the Mishnah. And although the Gemara, i.e., the amoraic discussions of the Talmud, is exactly the opposite of what a code should be, yet it is most important for the subsequent codification of the rabbinical law, which must be regarded as a direct continuation not of the Mishnah, but of the Gemara, in which latter the Halakah was first reduced to norms.
The Amoraim furnished furthermore an important contribution to codification in the rules which they formulated for the decision of those cases which are recorded in the Mishnah or in other tannaitic sources as moot points between two authorities. The Palestinian amoraim especially undertook to fix rules according to which disputed halakot were dealt with. For instance, so early an authority as R. Johanan refers to the rule: "If R. Meïr and R. Jose dispute about a halakah, it is the opinion of the latter that is authoritative" (Yer. Pes. iv. 30d). These rules, which are very important for codification, were first collected in the "Halakot Gedolot," under the title "Halakot Ḳeẓubot" (ed. Hildesheimer, p. 469; ed. Traub, p. 239; comp. Conflict of Opinion). The further development of the Halakah was now connected with the rules and opinions of the Gemara. The redaction of the Mishnah put an end to the tannaitic hermeneutics, which deduced new laws from Scripture; and the completion of the Talmud signifies nothing less than the final fixation of the entire Jewish law.The Saboraim.
For post-Talmudic rabbinism the Talmud, i.e., the amoraic development of the old halakot, is the sole authority in religio-legal questions—an authority that existed in its essentials as early as the time of the gaonate. As the Talmud is in its arrangement the exact opposite of a code, the necessity for a code was felt as soon as the Talmud had been finished. In the period immediately following its completion, attempts were made to formulate certain rules for guidance in the many cases of difference of opinion dating from the time of the Amoraim. Even in early times certain rules had been formulated referring to differences among the first amoraim; in ritual questions, for instance, the opinion of Abba Arika was decisive if opposed to that of his colleague Samuel, while in legal questions the latter's sentences were considered authoritative. Most of these rules, however, were first formulated by the Saboraim (Comp. Conflict of Opinion), and were by them introduced into the Talmud. Since, during the period of the Amoraim, the later Halakah—that is, the Halakah of the Amoraim—was still in a state of flux, the influence of the Saboraim on codification must not be undervalued, as they made possible the task of codifying the Talmud.
It was probably not accidental that the first attempts at codification were made in the time of the Geonim, shortly after the rise of Karaism. The many and frequent controversies between the Rabbinites and the Karaites soon convinced the former of the necessity of codifying the rabbinic law. It may have happened more than once that a follower of rabbinism denounced as being Karaitic an opinion which his opponents thereupon proved to be deduced from the Talmud; and it was of great importance for the Rabbinites to know which passages of the Talmud were law and which were merely individual opinion. Yehudai Gaon, the contemporary of Anan, who was the author of a Karatic code, is the first of whom it is known that he summed up the final results of the discussions in the Talmud, in his "Halakot Pesuḳot" or "Halakot Ḳeṭu'ot." His work was so popular even a century later that many neglectedthe study of the Talmud, and devoted their whole attention to these "decisions" (Palṭoi Gaon, in the responsa collection "Ḥemdah Genuzah," No. 110). Beyond this little is known concerning their character, as only single citations from them have been preserved. This Yehudai Gaon is considered by many as the author also of the "Halakot Gedolot," the largest and most important work of codification in the time of the Geonim. This work, however, is probably by Simeon Ḳayyara, who flourished toward the middle of the ninth century. The sequence of the "Halakot" is patterned on the whole after the Mishnah, though the section (seder) on the laws of cleanliness (Ṭohorot) is missing, with the exception of Niddah, because only those halakot are considered which are still practically applied. For this reason, the "Halakot" includes among the laws which are found in the first section of the Mishnah—the so-called agricultural laws ("zera'im")—only those the enforcement of which was possible after the destruction of the Temple and in the Diaspora. In the matter of systematic arrangement it is an advantage over the Mishnah that the treatises of the "Halakot" which deal with different subjects are split up into several sections, new treatises thus being formed. In this way the "Halakot" has as appendix to the treatise Shabbat two chapters, relating to the laws respectively of circumcision and of Ḥanukkah, which in the Talmud are arbitrarily placed among the regulations relating to the Sabbath.
The "Halakot Gedolot" indicates an attempt to arrange the entire halakic material of the Talmud according to subjects; but the author did not quite dare to break with the ancient, venerable arrangement. The last seven sections in the second division ("Seder Mo'ed") of the work are most instructive for the systematizing of the Halakah. The prescription relating to mourning follows the section on the "Middle Days" (Ḥol ha-Mo'ed") because nearly the same labors are forbidden during the period of mourning as on "Ḥol ha-Mo'ed." The laws prohibiting the contamination of priests by contact with a corpse follow immediately upon the prescriptions relating to mourning, which likewise deal with the dead; then follows a second section dealing with the priests, namely the priestly blessing, which is important in the liturgy of the synagogue. Having thus reached the liturgy, the author next takes up the reading from the Torah as most closely related to the priestly blessing. Then follow the sections relating to tefillin and mezuzah, as nearly the same prescriptions relate to them as to the making of a holy scroll, from which passages are read in the synagogue. Finally comes the section on ẓiẓit, which are closely connected with the tefillin. Although this arrangement may appear artificial, it was nevertheless a praiseworthy first attempt to arrange topically the immense material of Jewish law.Saadia and Hai.
Although Saadia, the greatest among the Geonim, also tried his hand at codification, his "Book on Legacies" (the Arabic original and the Hebrew translation in "Œuvres Complètes de R. Saadia," ix.) marks no great advance in this field; but in Hai's works the declining gaonate furnished a very important contribution to the systematizing of the Jewish law. Hai's compendium on the oath ("Mishpeṭe Shebu'ot"), and his work on the laws of commerce, pledges, and deposits ("Sefer Miḳḳaḥ u-Mimkar"), are the products of a clear, systematic mind. With a keen eye he surveys the whole field of his subject, carefully groups the related topics, and briefly and succinctly unfolds the various parts. He avoids both dry enumeration and prolix discussion. Beginning with the source, the Talmud, he briefly deducts the conclusions before the eyes of the reader. The whole mode of presentation in this work shows that the author was not unacquainted with Arabic scientific literature. Thus his book on commercial law, which is divided into fifty "gates," or chapters, begins with a definition of the concept "buy"; and the second section then defines in detail what may be bought or sold. Then gate follows gate in strictly systematic order, offering a clear and exhaustive presentation of the ramifications of commercial law.
Among the products of the codifiers of the geonic period should be reckoned the seven small treatises, in the style of the Mishnah, in which are gathered together the halakot dealing with (1) proselytes; (2) Samaritans; (3) slaves; (4) the sacred scroll; (5) tefillin; (6) ẓiẓit; and (7) mezuzah. The only probable sources for these treatises are the Talmud and the halakic midrashim. The small amount of new material which they contain is not to be traced to old, lost sources, but is the work of the compiler or compilers, whose authority prominent rabbis did not rate very highly. Toward the end of the period of the Geonim, it is probable that codifications, now entirely lost, were made of different branches of the ritual as well as of the juridical law. Thus, under the title "Basar 'al Gabbe ha-Geḥalim" is mentioned a compendium which contained ritual regulations on different subjects, and was known to as early a writer as Rashi's teacher ("Teshubot Ḥakme Ẓarfat," ed. Vienna, No. 82).Codifiers of the African School.
With the rise of Talmudic study in northern Africa at the beginning of the second millennium a new period began for the codification of the Halakah. Although the first great African Talmudist, Rabbenu Hananeel, devoted himself chiefly to the exposition of the Talmud, the passages quoted from his "Sefer ha-Miḳẓo'ot," which was a kind of halakic compendium, indicate that he was interested also in codification. Ḥefeẓ b. Yaẓliaḥ, also, who flourished probably toward the end of the first millennium, was presumably a native of Africa, and therefore the first codifier in that region; for, to judge from what is known concerning his "Sefer ha-Miẓwot," which was written in Arabic, that work was a code containing the moral, religious, and legal commands of the Bible and of the Talmud. The most important product of the African school in this field is Isaac Alfasi's "Halakot," which has added the results of that school to the Talmudic and geonic halakah material. Alfasi modeled his work on the "Halakot Gedolot." Like it his "Halakot" closely follows the Talmud, discussing all that strictly belongs to the genetic presentation and definition of the norm, and omittingeverything else. By including an opinion in his work Alfasi stamps it as a norm; and by simply ignoring another opinion he entirely rejects it. The "Alfasi," as his work is generally called, does not mark any important advance in the systematic presentation of the Halakah; for with few exceptions Alfasi has retained the treatises, chapters, and even the sequence of the mishnayot as found in the Talmud, and he likewise adds the discussions in so far as they are necessary for determining the norm.
Alfasi's great influence, however, lies in the circumstance that he was a very important factor in arriving at rules for determining the Halakah: for in the Talmud the discussions on doubtful points lead in many cases to no conclusion; and, as mentioned above, the rules formulated by the Saboraim for such doubtful cases applied only to a certain number of them. Alfasi, therefore, in establishing rules followed his own decisions, and frequently even attacked the opinions of the Geonim, either in determining the Talmudic halakah or in developing and correctly applying the principles found in the Talmud. He was perhaps also the first to draw upon the Yerushalmi for religio-legal practise. The Babylonian geonim, even those that were acquainted with the Yerushalmi and drew upon it for theoretical purposes, did not acknowledge its influence on practical life; but Alfasi, although he gave precedence to the Babylonian Talmud, followed the Yerushalmi in those cases in which the Babli reaches no conclusions or gives no decisions.The Earlier Spanish School.
Alfasi's contemporary, the Spaniard Isaac b. Judah ibn Ghayyat, compiled a kind of compendium for ritual purposes, especially for feast-and fastdays. Only a part of this has been published, and that quite recently ("Sha'are Simḥah," Fürth, 1862; "Hilkot Pesaḥim," Berlin, 1864). It reveals Ghayyat as a man of little independence, who merely tries to give an intelligible arrangement to the religio-legal decisions of the Talmud and of the Geonim. As he cites the decisions of the Geonim not in extracts, but entire, his presentation is prolix and difficult to survey; nor is it in other respects a model of lucidity. A third Isaac, Isaac b. Reuben Albargeloni, the youngest among the three, following Hai's example, attempted to compile a compendium of all the regulations referring to the oath. Although his "Sha'are Shebu'ot" is the product of an acute intellect and of a master in the field of Talmudic jurisprudence, it is in no respect of importance for codification.
The old Spanish school, i.e., that of the time before Maimonides, produced only one man who undertook to codify the entire Halakah, namely, Judah b. Barzillai. He is said to have been Isaac b. Reuben's pupil; and he certainly flourished in Spain in the first half of the twelfth century. Barzillai attempted, as no one before him and perhaps no one after him, not only to codify the general Talmudic-geonic legal principles, but also to give many detailed laws, which either are found in this literature as illustrations of those principles, or may be deduced from them. As a result, his codex was very comprehensive, and consequently too bulky for practical purposes, so that only parts of it have been preserved and recently published. But, even if he had been a great codifier, his work would probably have shared the same fate as the many similar works which were thrown into the background by Maimonides' masterpiece. A really scientific codex, free from the dialectic form of the Talmud, covering the entire field of the Halakah, and presenting it in systematic form, could be compiled only by a man who was familiar with the intellectual activity of the Greeks as well as with the products of the Jewish intellect. Difficult as it is to codify any body of laws, a Jewish codifier has to contend with special difficulties. In consequence of the close connection of religious and juridical elements in the Jewish law, especially in its rabbinical development, topics which superficially viewed have no external connection whatever are in a Jewish code treated under one heading.Maimonides' Code.
As regards its plan, arrangement, and language, Maimonides' "Mishneh Torah" is entirely original. He called his work the "Second To rah" because thenceforth no other book would be needed in determining the law. In contrast to its predecessors of the post-Talmudic time Maimonides' code covers the entire field of the Halakah, including the halakot no longer applicable after the destruction of the Temple. The "Mishneh Torah" covers even a larger field than the Mishnah itself, which, though it gives also the halakot fallen into disuse after the destruction of the Temple, does not include the fundamental doctrines of the Jewish religion, and offers very little that pertains to the liturgy. Furthermore, in the arrangement of the immense amount of material, Maimonides chose his own methods; for, though he recognized a logical sequence in the Mishnah (see his Introduction to the Mishnah), he could not be guided by it because it did not conform to his plan. The Mishnah is chiefly a text-book; Maimonides' code is a law-book; and what was of chief interest to Maimonides, differentiation between matters of practise and matters of theory, was of secondary importance for the editor of the Mishnah. The treatises Pesaḥim and Yoma deal with all the halakot that have any connection with these two holy days; the halakot on the offering of the paschal lamb follow the regulations on maẓẓah; similarly in Yoma the offices of the high priest in the Temple on the Day of Atonement are given together with the regulations on fasting on that day. Maimonides, who strictly separated practical from theoretical matter, deals with the regulations referring to maẓẓah in connection with the feast-days, while the paschal lamb is discussed among the sacrifices. The work is divided into fourteen books, the first two, on knowledge and God's love respectively, serving as introduction to the rest of the work in that they deal with the ethical and religious foundations of Judaism. The other twelve books discuss in groups of four: (1) the ceremonial law; (2) prescriptions no longer in force; and (3) rabbinical jurisprudence. For certain portions of his code Maimonides also wrote introductions in which the terminology is defined or general definitions are given. Despite various shortcomings and imperfections, scarcely avoidable, the "Mishneh Torah" (which is known also as the "Yad ha-Ḥazaḳah")is a masterpiece in construction, and not only the most brilliant work of codification, but also the greatest product of rabbinical literature.
Mention must be made of another work of Maimonides' which is of great value for the history of codification, but not comparable either in content or in form with the "Mishneh Torah." This is his "Sefer ha-Miẓwot" or "Book of Commandments," which was written as a preliminary to his greater code. In it he gives the 613 Biblical commands and prohibitions (see Azharot; Commandments, The 613). The work is not an unsystematic enumeration, but a topical grouping of the laws, and in a certain sense it is the only existing codification of the Biblical laws. Although primitive in plan and arrangement, many later held it to be a model for codices. The "Mishneh Torah" shows the immense strides which Maimonides had made in the interval between the two works.The Provençal Codifiers.
The cultural life of the Jews in France, if not their actual sojourn there, began at a later date than that of the Jews in Spain; and they entered upon their literary activity when the Spanish Jews had already produced great works in several fields. The first French codifier was Abraham b. Isaac of Narbonne, whose codex, "Ha-Eshkol," compiled toward the end of the twelfth century, is for the greater part extant in print. His chief authority was Alfasi, whom he closely followed, hardly daring to express his own opinion. His division of the halakic material, which, unlike Alfasi, he does not group according to the Talmud, but by topics, shows little talent for systematization. For his arrangement of the "Eshkol," the works of Isaac b. Ghayyat and Judah b. Barzillai served as models. In this the first of French codifications the noteworthy feature is the great stress laid upon the purely ritual aspects of the law, a tendency recurring later and testifying to the overscrupulous piety of the Franco-German Jews.
Among Abraham b. Isaac's pupils was his son-in-law Abraham b. David, who through his merciless criticism of Maimonides' codex exercised an important influence on the shaping of Jewish law. In spite of his pronounced opposition to Maimonides' method of codification, Abraham b. David himself contributed a small work to this species of literature, namely "Ba'ale ha-Nefesh," in which he collected in a masterly manner all the laws of clean and unclean referring to women. But in contrast to his great adversary, he quotes his sources briefly and gives deductions from such laws as are not directly found in the Talmud. The most important Provençal codifier, however, was Isaac b. Abba Mari, another pupil of Abraham b. Isaac; also called "Ba'al ha-'Iṭṭur" after his codex '"Iṭṭur." This codex contains the whole body of rabbinical jurisprudence—with the exception of criminal law—and the dietary laws together with a few other ritual laws. The sequence of the material is very peculiar. For instance, the author adopts as guide for his arrangement of the law of records and documents the words , placing under each letter the articles beginning with that letter. Other portions of the book, however, especially the sections of the "'Iṭṭur" devoted to the ritual, show a very logical and systematic arrangement of the subject under discussion.The School of Tosafists.
From the time of the Geonim down to Maimonides two different tendencies may be distinguished in the field of codex literature: the one abstracts the norm or rule from the discussion, often giving it without declaring its source or adducing any proofs. This tendency has its culmination in Maimonides' "Mishneh Torah." The other makes a point of first going back to the sources from which the rules are deduced, and then of supporting the deductions by proofs and authorities. This tendency culminates in Isaac b. Abba Mari's "'Iṭṭur." The former tendency predominated in Spain; the latter had more adherents in Provence, and was especially increased by the activity of the Tosafot. Not only did the dialectics of this school give rise to new rules derived from the Talmud, but its methods of study were such as to foster little interest in a dry reduction of the Halakah to norms. Moreover, the Tosafists, untrained in all disciplines except the Talmud, were little fitted to systematize complicated subjects. In northern France, the home of the Tosafists, it is true, the need of a guide for practical purposes was often felt. The Tosafists, however, did not consider the study of the Talmud merely a means to the end of regulating religious life; for them it was an end in itself; and the explanation and exposition of the Talmud were of primary importance, while the reduction of the Halakah to norms was merely secondary. Although Rabbenu Gershom b. Judah, the founder of Talmudic studies in France and Germany in the beginning of the eleventh century, is known to have written a compendium on an important subject of criminal law, and his pupil Judah ha-Kohen wrote a codex on jurisprudence, yet the true spirit of this school appears in Rashi and the Tosafists, who devoted themselves to the explanation of the Talmud. From the school of Rashi only the work of his pupil Simḥah of Speyer calls for mention, in whose Maḥzor important parts of the ritual law are codified (compare Maḥzor).
The first important codifier of this school is
Moses b. Jacob of Coucy, a pupil of Baruch b. Isaac, about the middle of the thirteenth century wrote a work which in form and content is a fusion of the methods of the Spanish and the Franco-German schools. The "Sefer Miẓwot Gadol," abbreviated "SeMaG," presents in a certain sense Maimonides' "Sefer ha-Miẓwot" in enlarged and modified form. As in the latter work, the whole material is grouped around the 613 Biblical commands, and is furthermore divided into two parts, dealing respectively with the commandments and the prohibitions. But, while Maimonides gives only Biblical material and refers only briefly to the rabbinical formulation of the command or the prohibition, the "SeMaG" places the Biblical law first, then gives the deductions from it found in the Talmud, and, finally, adds matter less closely connected with the prescript. As the author himself says in the introduction, it was his chief aim to defend the Franco-German scholars against the Spaniards, especially since Maimonides' great work was gaining in popularity outside of Spain. Although in a way directed against Maimonides, the "SeMaG" really contributed to the spread of his authority in France and Germany; for Moses of Coucy was a true admirer of Maimonides, and did not intend to condemn him. He wished merely to procure a hearing for the opinion of the Tosafists as against that of the Spanish scholars. In part he followed Maimonides' codex, from which he often quotes verbatim; and many of its decisions first came to the notice of the Franco-German Jews through the "SeMaG."
A generation later Isaac b. Joseph of Corbeil wrote his compendium "Sefer Miẓwot ha-Ḳaẓer," or "ha-Ḳaṭon," frequently called "SeMaḲ," after the initial letters, in which, as in the "SeMaG," the Biblical command concisely expressed is placed at the beginning, the rules from the Talmud and from the post-Talmudic writers following, generally without indication of sources or proofs. The arrangement of the material is very peculiar. The book is divided into seven parts, according to the seven days of the week, in order that it may be read through once a week; and the laws whose performance calls for the special activity of any one member of the human body are arranged as one group accordingly. In this way most widely differing topics are grouped under one command, with which they often have no connection whatever. The book was written for a general public; hence its ardent, religious tone, which contributed not a little to its popularity. But it was highly regarded by scholars also, though the author expressly warns them against basing decisions upon it. The most important authority of France next to the author of this book was Perez b. Elijah, who wrote a codex that has only recently been discovered (Elbogen, in "R. E. J." xlv. 99 et seq.).The German School.
Although Jewish literature in Germany is Italian in origin, it developed under French influences; and during the period of the Tosafists the German school was under the moral domination of the North-French school. But the beginning of the thirteenth century marked an important change: the pupil outdistanced the master. Isaac b. Moses Or Zarua', the first to transfer the center of gravity of Talmudic learning to the east, was the author of an important codex, written about the middle of the thirteenth century. Like all the similar products of the German school, the "Or Zarua'" is both a commentary and a codex; for it not only contains decisions, but also is more analytic in character, and was modeled on the work of the author's teacher, Eliezer b. Joel ha-Levi. Although the "Or Zarua'" is very defective in plan and in arrangement, it is still both in size and substance the most important product of the German school in the field of codification; and it was a decisive factor in the development of religious practise among the German-Polish Jews. Isaac's work evinces deep insight and acute intellect, and also an independence rare among the German Jews. It must especially be noted that through him the study of the Talmud of Jerusalem was introduced into Germany and France, and in a certain sense became an important factor in the regulation of the Halakah. Isaac's friend and colleague, Hezekiah b. Jacob, was the author of "Pesaḳim"; the nature of his decisions is not known.
The most important pupil of Or Zarua', Meïr b. Baruch of Rothenburg, the greatest Talmudic authority of his age, devoted not a little time to codification. Only a few treatises by him on mourning customs have, however, been preserved, besides some quotations from various other treatises that were perhaps part of a larger work divided into halakot. His importance for codification lies in the fact that his school produced Asher b. Jehiel and Mordecai b. Hillel, who were guided by the authority of their teacher in their works of codification and compilation. In this way R. Meïr exerted great influence on the shaping of the Halakah in Spain, whither his pupil Asher emigrated, and in the German and Slavic countries, through Mordecai. Mordecai did not claim to be anything but a compiler. He laboriously collected the halakic material of the entire rabbinical literature accessible to him, and attachedit to Alfasi's halakot; yet hardly a generation later he was already regarded as a "poseḳ" (authority).The New Spanish School.
Maimonides' monumental work maintained itself in Spain in spite of much opposition; although the "Mishneh Torah" was criticized, and its decisions were not seldom modified, it was on the whole considered as the authoritative guide for legal practise. Hence the century following Maimonides marks in a way a cessation in the work of codification among the Spanish Jews, notwithstanding the flourishing of Talmudic scholarship during this period. Although Abraham b. Nathan wrote his "Manhig" at Toledo, he was not a Spaniard either by birth or by education; and his code is based chiefly on the work of the French tosafists. In fact, he was the first Provençal who was guided rather by the school of northern France than by the authorities of the south. The ritual codex "'Issur we-Hetter," authoritative on questions relating to dietary laws, is ascribed probably wrongly to the great anti-Maimonist Jonah b. Abraham, and can hardly be considered as a Spanish product. Even Naḥmanides, the great Talmudist of the thirteenth century, shows little interest in codification, his compendium "Torat ha-Adam," on mourning customs, being his only large work in that line. His "Hilkot Ḥallah" and "Hilkot Bekorot" are really only supplements to Alfasi's work. But by his highly original treatment of the Talmud Naḥmanides gave a renewed stimulus to labor in the field of codification. His method, which may be briefly characterized as a union of Spanish systematics with Franco-German dialectics, was bound to produce something new in codification; and his most important pupil, Solomon b. Abraham ibn Adret, was in fact the author of a codex which is as unique in its way as is Maimonides' masterpiece in the other category of codices. According to the original intention of the author, the work was to cover the entire field of the Halakah; but the existing part of it deals only with the dietary and purification laws, collected in the book "Torat ha-Bayit," and the Sabbath-and feast-day laws, collected in "'Abodat ha-Ḳodesh." The former work is divided into seven divisions ("battim," lit. "houses"), which are again subdivided into several "she'arim" (gates); the latter, a smaller work, into two houses with five gates each. This division is essentially modeled on the above-mentioned work of Hai Gaon, with which, as regards treatment of the material also, the books have much in common. The author always begins with the source, i.e., the Talmud, and then introduces the different opinions with their proofs, which he not only sums up, but also discusses in such a way that the final rule takes shape before the reader. About this time another pupil of Naḥmanides, Samuel b. Isaac ha-Sardi, wrote a work on civil law, "Sefer ha-Terumot," which in lucidity of presentation, depth of thought, and mastery of the material has not been surpassed. This work, like the "Torat ha-Adam" of Samuel's master, is divided into gates, seventy in number, subdivided in turn into sections, and these again into paragraphs. Since Jacob b. Asher based his codex of civil law on this work, it exerted an immense influence on the development of later civil law. Though Asher b. Jehiel (Asheri), a contemporary of Samuel and a personal friend of Ibn Adret, was a German by birth, mention must be made of him in this place, because his halakot were written in Spain and clearly show the influence of the Spanish school. Asher based his halakot on Alfasi's work, drawing upon later literature in so far as it had bearing upon the reduction of the Halakah to norms; his work is therefore a commentary on the Talmud in its practical halakic parts. Asheri's halakot, which are marked by lucidity, penetration, and great scholarship, met with a ready reception in the new as well as in the old home of the author. R. Asher's pupil, the Provençal Jeroham, wrote (c. 1334) a compendium on civil law under the title "Sefer Mesharim," and a few years later a codex of most of the laws to be observed in the Diaspora. He set himself the task of remedying two defects of Maimonides' codex, namely, the lack of sources and the omission of opinions of the post-Talmudic authorities. In this respect Jeroham's work is meritorious, as he cleverly sums up the conflicting opinions, and briefly and lucidly traces back the halakot to their Talmudic sources. But he made the mistake of arranging the immense amount of material in his own way. His attempt was not successful; for while trying to avoid the defects of Maimonides' system, he was led into other errors, on account of which his work shows no advance beyond that of the former. Only in the smaller portions of his work did he succeed in grouping in a masterly manner all the pertinent material under one topic.The "Ṭur."
The greatest codifier of the Naḥmanic-Asheric school, and, aside from Maimonides, the most important of all codifiers, was Jacob, the son of Asher b. Jehiel, or the "Ṭur," as he is briefly called after his codex. For his work he of course took that of Maimonidesas model; yet the "Ṭur" is the independent creation of a gifted mind. Following Maimonides, he gives neither sources nor proofs; but he generally quotes the post-Talmudic authorities by name, cleverly selecting and contrasting the dissenting opinions; and although he does not give a direct decision, the thoughtful reader may gather the opinion of the "Ṭur" from the way in which a point under discussion is presented. The rapid development of Talmudic study in the period between Maimonides and Jacob b. Asher, covering nearly two centuries, made it impossible for a codifier to ignore differences of opinion; and, as the author of the "Ṭur" correctly says in his introduction, there was at his time hardly a point on which there were no differences of opinion. By birth and education Jacob b. Asher was peculiarly fitted to elaborate the products of the different schools. Through his father he became acquainted with the works and the tendencies of the Franco-German scholars, while a prolonged sojourn in Spain made him familiar with the works of the Sephardim. In view of the lucidity and logical arrangement of the work it is not surprising that for more than two centuries the "Ṭur" answered all the requirements of a codex; and even when its inadequacy began to be felt, and new codices appeared, the system and arrangementof the "Ṭur" were adopted by nearly all later codifiers. On account of its merits the "Ṭur" displaced many similar works of preceding and contemporary authors to such an extent that only recently have not a few of them been rediscovered. A contemporary, Aaron b. Jacob ha-Kohen, wrote a work entitled "Orḥot Ḥayyim," similar to the "Ṭur," but far inferior to it in everything that characterizes a codex, and a great part of it was first published in 1902.The Italian Codifiers.
While the "Ṭur" may in a sense be regarded as the last important product of the work of codification which had been carried on for centuries among the Ashkenazim and the Sephardim, the Italian Jews were at this time only entering upon that field of labor. Isaiah ben Elijah di Trani's "Pirḳe Halakot" is the first Italian attempt at codification; but even in Italy it had to give way to the "Ṭur" and especially to Jacob b. Moses of Coucy's codex (see David Messer Leon, "Kebod Ḥakamim," p. 78). Only scattered allusions to it are known, and the entire work, still extant in manuscript, was hardly noticed. The "Shibbole ha-Leḳeṭ" of Zedekiah b. Abraham Anaw is another Italian code of laws dating from this time. As its name indicates, it pretends to be nothing but a "gleaning" of earlier decisions, and it shows little originality. The liturgical code "Tanya," probably dating from this time, was not without influence on synagogue liturgy even outside of Italy; but it also betrays little individuality. Toward the end of the fourteenth century Moses b. Jekuthiel de Rossi wrote his compendium "Ha-Tadir," which Güdemann ("Gesch." ii. 195) designates as the first Jewish postil.
Misfortunes of various kinds—the Black Death, the plague, persecutions, etc.—deprived the Jewish intellect of the clearness and briskness required for Talmudic studies and especially for the work of codification. The two centuries intervening between the "Ṭur" and the Shulḥan 'Aruk produced little of value in the field of codification. In Germany before 1349 Alexander Süsskind wrote his codex "Aguddah," a scholarly and independent but not systematic work. Isaac Düren, a contemporary of Süsskind, and an alleged pupil of Asher b. Jehiel, collected the dietary laws; and although his "Sha'are Dura" has little originality, it enjoyed for centuries a great reputation, and various commentaries and glossaries to it were written by scholars like Isserlein, Solomon Luria, and Isserles. After the "Ṭur" Spain likewise produced few halakic works of importance, with the possible exception of Menahem b. Zerah's "Ẓedah la-Derek." Although this work offers nothing original to scholars, the author makes a new departure in emphasizing on all occasions the ethical side of the Law. The scholars during this period devoted themselves especially to the synagogal ritual; and the "Kol Bo" in particular is an important work (for other ritual collections see Zunz, "Ritus," pp. 29-32). Crescas' intention("OrAdonai," ed. Vienna, p. 2a) to codify the general principles of the Law, omitting details, was probably never carried out. The "Agur," written in Italy about 1480 by the German Jacob b. Judah Landau. is the only noteworthy contribution to codification in the fifteenth century.The Shulḥan 'Aruk.
Although from the first third of the thirteenth century down to about the middle of the sixteenth there were no important products in the field of codification, yet the study of the Talmud during this period was not neglected. In Spain after the "Ṭur" there were men like Nissim b. Reuben, Yom-Ṭob b. Abraham, and Isaac b. Sheshet, to mention only a few. In their hands the Halakah material grew beyond the limits of the "Ṭur," and in many cases took a different shape. In Italy the influence of the new German school, which in many cases did not recognize the authority of the "Ṭur," made itself felt toward the end of the fifteenth century, especially through Colon. The most important representatives of this school, Jacob b. Moses Molin, Isserlein, and Israel Bruna, undertook to procure recognition for the German authorities, to whom in their opinion the "Ṭur" had not done justice. The insecure position of the Halakah toward the end of the fifteenth century, in itself a deplorable matter, was still further threatened when the Jews were expelled from the Pyrenean countries, and were scattered throughout other lands. This catastrophe undermined the power of "the custom of the country," which so far had always been given recognition. In some places mixed communities arose, composed of Spanish, Italian, German, and other Jews; and each of these members naturally desired to introduce the customs of his own country. In other places no communities could be formed, because difference in religio-legal practise prevented mutual understanding. This evil could be remedied only by a man who had mastered the immense material collected since the "Ṭur" was written, and whose authority was so generally recognized that his decisions were accepted everywhere. Joseph b. Ephraim Caro satisfied these two conditions as no one else could; and he furthermore possessed the literary capacity necessary to reduce the existing codices to one code satisfying the demands of his time. He recognized that if his work was to be a universal codex, it must not be based on Maimonides' "Yad ha-Ḥazaḳah," which entirely ignored the labors of the German-French school, but must be based on the "Ṭur," which was highly regarded by both the Ashkenazim and the Sephardim. Caro's "Bet Yosef," therefore, on which the Shulḥan 'Aruk was based, follows the "Ṭur," the plan and arrangement of which were adopted in the Shulḥan 'Aruk also. But Caro is much more independent than his predecessor in that he generally reduces the Halakah to rules without giving every difference of opinion. In making rules his authorities were the three codifiers Alfasi, Maimonides, and Asher b. Jehiel. An opinion held by any two of them is adopted by Caro, unless the majority of later authors follow the opinion of the third, in which case his opinion is accepted. Some such plan was absolutely necessary, because Caro's authority, in spite of his great reputation, was not such that he could hope to have his decision accepted in questions about which the greatest "Poseḳim" of centuries had been contending.Authority of the Shulḥan 'Aruk.
The Shulḥan 'Aruk, however, includes many decisions which Caro either deduced independently from the Talmud or decided according to Talmudic principles without considering the differing opinions of great authorities. For this reason as well as on account of the fact that he was not sufficiently acquainted with the practise of the Ashkenazim, in spite of his thorough knowledge of their halakic literature, the Shulḥan 'Aruk met with opposition among them, and especially among the leading Talmudists of Poland. Of especial importance among these was Moses Isserles, who, by his glosses to the Shulḥan 'Aruk and to the "Bet Yosef," in some degree modified the authority of the Shulḥan 'Aruk in Polish-German countries. While the Shulḥan 'Aruk became with few exceptions the authoritative codex among the Oriental Jews, the Ashkenazim and in part also the Italians recognized Isserles'authority in cases where his opinion differed from that of Caro. It took a whole century, however, to bring about a universal recognition of the authority of the Shulḥan 'Aruk, which had to contend especially with the "Lebush," Mordecai Jaffe's codex, as well as with the bitter criticism of Solomon Luria and Joel Sirkes. Only when authorities like Samuel b. David and Shabbethai b. Meïr, notwithstanding their scholarship and independence, accepted most of the decisions of the Shulḥan 'Aruk as authoritative, did the work become what it now is, the codex par excellence of rabbinical Judaism. Nevertheless, it must always be borne in mind that the really decisive authority is the Talmud (comp., e.g., Maimonides' introduction to his codex, and, among later writers, Yom-Ṭob Lipman Heller, on Sheb. iv. 10; on the question comp. Weiss, "Dor," iii. 216 et seq.), and a reference to a codex as authoritative is equivalent to saying that its exposition of the Talmud is regarded as the correct one. A man like Elijah ben Solomon, in spite of his respect for the Poseḳim, could frequently decide in important cases against the Shulḥan 'Aruk, and follow his own interpretation of the Talmud. But such independence was very rare, and, although theoretically recognized, had little influence on actual practise. Of greater importance for the fixation of the Halakah are the commentaries on the Shulḥan 'Aruk, especially those of David b. Samuel and Shabbethai b. Meïr, who proceeded independently in the exposition of the Shulḥan 'Aruk. Although the Halakah material increased immensely after the completion of the Shulḥan 'Aruk, especially through the contribution of Polish Talmudists in the seventeenth and eighteenth centuries and in the first half of the nineteenth, only a few attempts were made to codify the new material. The most important modern contributions in this field are the works of Abraham Danziger, "Ḥayye Adam" and "Ḥokmat Adam," in which the Halakah of the Aḥaronim is codified; but they did not find general favor with scholars, in spite, or perhaps because, of their popularity. The great Ḥasidic Rabbi Shneor Solomon b. Baruch of Ladie attempted a new code; but the larger part of his manuscripts was destroyed by fire, and only fragments have been published.Summary.
The source of the Law and of its authority is the will of God as expressed in Scripture. From the standpoint of rabbinism there is no code, and none can exist, which can supersede the Torah. But practically the matter is quite different, although during the whole period from the first Mishnah down to the Shulḥan 'Aruk it was acknowledged in many circles that a codex really had no place beside the Torah. This idea was dominant during the time of the Soferim and the Tannaim; for, although some of the latter attempted to systematize the immense materal of the Halakah, they objected to its codification. The Mishnah, which closes the period of the Tannaim, is in so far a codex as it was regarded as the only authoritative exposition of the Torah; and all those cases which were not clearly defined in Scripture had to be referred to the Mishnah. The Mishnah, moreover, is the only source for those laws which were formulated independently of Scripture, and lived in the consciousness of the people as such. The Mishnah owes its authority to the fact that it was undertaken by the patriarch Judah ha-Nasi and his bet din, which was recognized by the Jews as the highest religious and political authority. An authority of such a kind no longer existed at the time of the Amoraim (see Bet Din), whose opinions are important only because the Amoraim were the direct successors of the Tannaim and must be considered as the legitimate expounders of the Mishnah, which they inherited from the Tannaim. The relation of the Talmud, a product of the Amoraim, to the Mishnah is about the same as that of the Mishnah to Scripture. The Talmud derives its authority from the fact that it was completed under the supervision of the entire body of Jewish scholars, Babylon being at that time (c. 500) the only important seat of these scholars.
In post-Talmudic times there was no longer one authority; there were several authorities. As Alfasi and Maimonides frequently decided against the Geonim, so later scholars not seldom decided against the Poseḳim, the scholars between 1000 and 1500
- Buchholz, Historischer Ueberblick über die Mannigfachen Codificationen des Halachastoffes, in Monatsschrift, xiii. 202-217, 242-259;
- Dünner, Veranlassung, Zweck und Entwicklung der Halachischen . . . Während der Tannaim Periode, in Monatsschrift, xx.