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Brief History of Halachic Literature

Jewish law begins with the Torah.  Our tradition assumes that Mosheh is the only one who communicated God’s laws to the Jewish people.  (The term “torah shebichtav,” “written torah,” refers to the Bible, as written, and nothing else.  Everything else in our long tradition is called “torah sheb’al peh,” “Oral Torah.”  Only the first five books of the Bible are a direct source of halachah.)  Scholars date the period of the exodus from Egypt at about 1200 B.C.E.

          We can read the verses of the Torah and get an impression of what we are required to do.  It seems logical that, aside from the exact text of the Torah, Mosheh got more guidance from God on how to interpret and apply the mitzvot.  When we get to the mitzvah of kosher slaughtering animals for food, we will find a verse requiring that we “slaughter animals as I (God) have instructed you.”  (See mitzvah #451.) But no verse contains such instructions.  That is an indication that Mosheh got more than just what was written in the Torah.  But we do not know just what else Mosheh got.  (There are a variety of opinions in later sources, but that is beyond the scope of our introduction.)

 

          The next 800 – 1000 years are the “black hole” in the history of halachah; we know almost nothing about how Jewish law developed during that period.  The rest of the Bible gives us only tiny tidbits of information from this very long period.  For example, in the book of Ruth, we have echoes of conversion, and echoes of levirate marriage.  We know that there was, for a time, an institution called Anshei Knesset haGedolah, “The Men of the Great Assembly.”  They are associated with the period of Ezra, but we do not know how long the institution lasted.  They are credited with having taken steps to standardize texts for prayer, and probably helped canonize the Bible, but otherwise we know very little about what they did.  We also know that at one point, a lost book, a “sefer torah,” was discovered in the Temple.  When it was read to the people, they cried because of all the laws in that book that they had not known about. See II Kings 22. Apparently, the book was part of humash.  We have no independent halachic literature from this period.

 

          We pull out of the black hole into the era of the tana’im, “those who study.”  The literature of this era is called “tanaitic literature.” 

In about the year 200 C.E., R. Yehudah haNasi decided to write a summary of the legal disputes and rulings that had developed to date.  The result was the Mishnah.  The Mishnah is written in clear, simple Hebrew.  It reflects a carefully reasoned, fully developed legal system, presented and organized logically and systematically.  We do not know much about how the Mishnah was composed.  It was probably selected from a variety of parallel oral traditions extant at the time, then re-stated by R. Yehudah.

Once the Mishnah was composed, other scholars began to collect parallel legal material that did not appear in the Mishnah.  These collections were called tosefta, “additions”. Each thought unit in the tosefta is called a beraita, “outside.”  Later scholars used both Mishnah and tosefta as authoritative, giving only slightly greater weight to mishnaic material.

There were two other genres of tanaitic material that began to appear in written collections during this same period.  They were the midrash halachah and the midrash aggadah.  These were distinguished from the material in the Mishnah and tosefta in that they were organized as commentary on the Torah.  Midrash aggadah is primarily concerned with the narrative sections of the Torah, and has had a limited impact on the later development of halachah.  Midrash halachah, however, deals with deriving rules from the Torah verses that are not obvious on a first reading.  (Our author has given us some examples of midrash halachah already, and we will see lots more as our study goes on.)  Typically, the midrash halachah finds some peculiarities in verses, for example extra words, grammatical anomalies, etc., and then connects those to rules about the particular mitzvah being discussed.

It must have taken quite some time for all of this halachic material to develop.  We do not know how long.  It is possible that some of it, or even all of it, dates back to the time of Mosheh.  It is also possible that the material developed in the century or two before it was all written down. 

Let us distinguish two types of rules to be found in all of this literature. The most binding category is d’oraita, “from the Torah.”  This category covers commandments found directly in the Torah and commandments derived from the Torah and explained in the midrash halachah.  Closely related is the category of “halachah l’Mosheh miSinai,” “law from Mosheh at Sinai.”  Typically, the rules in this category have no obvious textual source, but are not controversial.  Distinguish these categories from law considered “derabanan,”  “from the rabbis.”  This is not commanded by God, but legislated or interpreted by later rabbis.  As such, it is less authoritative than d’oraita material.  This summary is overly simple, and the line between d’oraita and derabanan is not always clear.  We shall spend lots of time making these distinctions in specific cases.

 

Legal discussion over the course of the next four hundred years or so was structured around and began from analysis of the Mishnah.  As recorded, these discussions comprise the Gemara (Aramaic for “the study.”) Mishnah and Gemara taken together comprise the Talmud.  There were two parallel schools each of which produced a gemara: Palestinian sages authored the Talmud Yerushalmi, Jerusalem Talmud; Babylonia scholars produced the Talmud Bavli, Babylonian Talmud.  Not much is known about how the Gemara developed: when it was compiled, what potential material was omitted, who compiled it, where, what editing principles were used. For various reasons, Talmud Bavli had much more influence on later halachah than Talmud Yerushalmi.  The literary style of the Talmud is complex, more like the minutes of an ongoing discussion than like a polished literary presentation.  Following that discussion is made especially challenging because the text had no punctuation.  (Punctuation had not been invented yet.)  The discussion is mostly quite serious, but sometimes veers off into less formal material: stories, legends, jokes, etc. 

 

The next important contributors to the development of halachah were the geonim, the heads of the Babylonian academies through approximately the year 1000.  They may have had a hand in the final editing of the Talmud.  And they wrote responsa, answers to letters requesting religious advice and legal rulings, a literary form which continues in use to the present day.

 

The period of the geonim gave way to the period of the rishonim, “first ones,” with the shift of the center of Jewish scholarship from Babylonia and southern Europe. (Our author is a rishon, but, of course, he didn’t know that.  That name comes in only at the end of the period.)  These scholars, each in his own way, attempted to elucidate areas which remained unclear and to put earlier material into a more accessible form.

Some scholars concentrated on explaining the Gemara.  Rabbi Solomon ben Isaac (1040 – 1105), known by his acronym, Rashi, wrote a line-by-line explanation of most of the Talmud, explaining the flow of the argument and the policies and principles behind various opinions.  Rashi’s physical and academic descendants in the next few generations took a somewhat different approach in their compiled commentary on the Talmud, called tosafot (“additions.”)  Tosafot sometimes explains and supports Rashi’s opinion, and sometimes disagrees with Rashi.  It often looks to other Talmudic passages that, by way of comparison or contrast, shed light on the text at hand.  While Rashi was primarily interested in the flow within a particular passage, tosafot attempt to fit the various related discussions in the Talmud together into a consistent whole.

The gemara has a conversational organizational structure, not subject to easy organization.  As commentaries on gemara increased, there was a vast amount of halachic material that was hard to find.  So another major enterprise of the rishonim was to write legal codes.  R. Isaac Alfasi, (1013 – 1103), “the Rif,” was the first of the codifiers.  He kept the organization of the gemara, but cut out the material in the gemara that did not determine the actual halachah.  Rambam (1135 – 1204) followed with a much more ambitious code, the Mishnah Torah.  He created an original organizational structure, and included halachah covering all areas, including Temple practice and sacrifices.  Rambam intended that his book would displace previous Jewish legal sources for all but the most erudite.  In this he failed, but his work remains a model of clear organization, thinking, and expression.  Our author mentions both of these teachers as major sources for his own thinking.

 

This is really all the background history we need to understand Sefer haHinnuch; we have reached our author’s time period.  But let’s spend a few minutes on the development of halachic literature from then to now.

The last of the major codes of the rishonim was the Arba’ah Turim, written by R. Jacob ben Asher of Toledo, Spain (1268 – 1340).  His code was based on Talmudic sources and opinions of prior rishonim, and the author outlined some of the extensive disagreements between them.  It used a new and original organization that served as a base structure for later works.

Two hundred years later, there was again a need to consolidate newly developed material.  R. Joseph Caro (1488 – 1575), a scholar and mystic who lived in Safed, took on the job.  He wrote the Beit Yosef, a detailed and extensive commentary on the Arba’ah Turim, analyzing it and supplying sources.  But the literature was too vast for the layman, who needed a decisive conclusion.  For them, Caro produced the Shulhan Arukh (“the set table”), a compendium of the conclusions he reached in the Beit Yosef.  It followed the organization of the Arba’ah Turim.  He intended that people would review the Shulhan Arukh every month or so, so that they would know what to do and what not to do.

The Shulhan Arukh was not easily accepted.  Caro was a member of the Spanish, Sephardi community, and the Shulhan Arukh did not include Polish-German, Ashkenazi, practice.  R. Mosheh Isserles (1520 – 1572), of Poland, a contemporary of Caro, came to the rescue.  He saw a need for a simplified guide, and was sufficiently impressed with Caro’s work that, rather than writing an independent work, he wrote additions to the Shulhan Arukh.  These glosses, called the “Mappah,”  “table cloth,” outline areas where Polish practices differed from Spanish practices, and some areas where Isserles disagreed with Caro.  The Mappah is printed interspersed in the text of the Shulhan Arukh in all modern editions.  With these additions, the Shulhan Arukh attained a predominance it still retains, not as a handbook but as a scholarly work.

 

The Shulhan Arukh marked the end of the period of the rishonim; subsequent scholars are referred to as ahronim (“later ones”).  This was the final transition in a series of perceived changes in levels of competence that began much earlier.  The sages who contributed to the gemara did not contradict a Mishnah or bareita without an earlier source to depend on.  The rishonim felt bound by the Talmud, and rarely took a position that could not be defended as a logical deduction from Talmudic discussion.  The ahronim felt themselves to be of lesser learning that the rishonim, and hesitated to take a position that could not at least arguably be supported by opinions of the rishonim.  This hierarchy is one of respect rather than direct authority; the current scholar, by virtue of his cumulative knowledge of the entire legal development, has full power to make independent legal decisions binding on his constituents.

 

 

Here is a list of terms related to the history of Halachic literature.  See if you can pick up definitions as we talk, and then we will review them at then end of our discussion.

 

D’oiraita

 

D’rabanan

 

Tan’aim

 

Mishnah

 

Tosefta

 

Bereita

 

Midrash halachah

 

Midrash aggadah

 

Armoraim

 

Gemara

 

Talmud

 

Rashi

 

Tosafot

 

Rishonim

 

Achronim

 

 

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