The History of Halakhah, Views from Within: Three Medieval Approaches to Tradition and Controversy

by Moshe Halbertal

FOOTNOTES

1. On the background of Karaite polemics to Ibn Daud's view see G. Cohen, Introduction to Sefer ha-Kabbalah (Philadelphia, 1967) and also see B. M. Levin, Igeret Rab Shrira Gaon (Jerusalem, 1972) pp. 3-7.

2. See ibid. p. 6-8, and also the material from the Geonim quoted in notes 3,6.

3. See ibid. p 18-19.

4. Sefer ha-Kabbalh, pp. 3-4

5. Ibn Daud mentions another source for the sages' authority which is universal agreement, but this principle is restricted only to enactments not to the Mishnah as such. For an extensive discussion of the complicated problem of intergenerational authority in halakhah see I. Ta-Shma, "Halakhah ke-Batrai" Shnaton ha-Mishpat ha-Ivri vol. 6-7 1979-1980, and I. Yubal, "Rishonim ve-Achronim" Zion 57 (1992) pp. 369-394.

For a modern debate on the source of the authority of the Talmud see: R. Elchanan Vasserman's opinion in Kovetz Shiurim, Divrei Sofrim pp. 96-97. Hazon Ish, Kovetz Inyanim pp. 194-7. For an extensive discussion on the problem see S. Z. Havlin, "al ha-Chatimah ha- Sifrutit" in Mechkarim ba-Sifrut ha-Talmudit, (Jerusalem, 1983) pp. 148-192.

6. Maimonides innovative approach in relation to the Geonim was pointed out by C. Tchernowitz, Toldot ha-Halkhah (New York 1948) vol. I p. 88, see also the extensive discussion on the problem in I. Twersky, Introduction to the Gode of Maimonides (Mishneh Torah) (New Haven, 1980) pp. 62-74.

7. Maimonides repeats this point in his intorduction to the commentary of the Mishnah and his introduction to the Mishneh Torah. In the introduction to the Mishneh Torah he describes this category in the followitg terms: "The norms that were innovated in each generation - laws that were not received by tradition - but [were derived] through a midah of the thirteen midot".

8. On the relationship between Ibn Daud's account of controversy and Maimonides account see D. Hartman Maimonides Torah and Philosphic Quest, (Philadelphia, 1976) pp. 112-116.

9. On the nature of interpretation as derivation and rules of interpretation as rules of inference and the consequence of this conception of interpretation and controversy see M. Halbertal, "Sefer ha-Mitzvot la-Rambam" Tarbiz 59 (1990) pp. 457-480.

10. On notions of halakhic truth, see A. Sagi, important discussion in "Halakhic Praxis and the Word of God: A Study of Two Models" in J. Jewish Thought and Philosophy vol. 1 (1992) pp. 305-329.

11. See also Ramban, Sefer ha-Mitzvot Hasagah le-Soresh Rishon.

12. Hidushei ha-Ritba, Erubin 13b. The tosafist R. Samson of Sens might have been the source of Ritba's conception of an the open-ended revelation. According to R. Samson this conception provides the reason why the Mishnah records minority opinions: "..Although the individual's claim were at first not accepted and many disagreed with him, at other times many may come to agree with his reasons and Halakhah will follow them. The whole Torah was given to Moses with aspects of purity and aspects of impurity, and when they asked him how long they should continue to debate he said to them follow the many but both are the words of the livin God". Tosfot Shantz Eduyot 1,5. For another medieval author who prexcribes to the same model see R. Jacob of Marvege, Shelot u-Tshubot min ha-Sahmaim R. Margaliot ed. (Jerusalem: Mosad ha-Rav Kook) 3. The same idea is expressed in kabbalistic terminology for example Meir ibn Gabai, Avodat ha-Kodesh (Cracow, 1576) Helek ha-Tachlit ch. 23. Shlomo Lurya, Yam shel Shlomoh (Bnei Brak, 1959-60) introduction to tractate Hulin and in R. Shmuel be-Rabi Izhac, Midrash Shmuel (Cracow, 1593) Avot 5, 19. R. Shlomoh Ephraim of Lunzeiz, a sixteenth century figure made a bold analogy between the revelation at Sinai and the structure of the Mishnah. Like the Mishnah the revelation was handed to Moses with counter arguments with the intention that future generation can rely upon those overrule the existing law according to the need of the hour, the Torah itself was revealed as a flexible canon see Amudei Shesh (Prague, 1607) ch. 20.

13. It is important to note that the different accounts of the history of halakhah and controversy which we analyze stem from tensions within the Talmudic material itself - as for example the difference between contoversy as a result of decline or controversy as inherent to revelation. This point will need further explication.

14. Unlike Ritba and Ran, the author of Sefer ha-Chinuch an adherent of Nachmanides, uses Nachmanides terminology in a noconstitutive fashion. According to Sefer ha-Chinukh, "the intention of the Torah was handed to the sages of isrel". But such a privilege is merely procedural and not consitutive. The sages have to be obeyed even if they are mistaken since a legal system cannot allow anarchy: 'it is better to endure one mistke, and everybody will be obedient to their opinion which is usualy correct, and not that each will follow his poinion which will result in the destruction of the law and the division of he heart of the people and the complete loss of the nation. Because of such considerations the intention of the Torah was handed to the sages of Israel' Mitzvah 508.

15. The same ontological outlook of halakhah is manifested in Yehudah ha-Levi's Kuzari. Ha-Levi who uses the medical metaphor as well attemtps to minimize the human innovation in halkhah and relies heavely on the concept of recieved tradition, since he is an adherent of the ontological outlook. See Kuzari 3; 39.

16. See above note 12, for such formulations which many of them are cast in kabbalistic language.

17. For a very helpfull phenomenological analysis of different notions of the Oral Law, and their relations to problems of authority and innovation, see Y. Silman, "Torah Elohit sh"Lo ba-Sahmaim - Beirur Tipologi" Sefer Bar Ilan, Jerusalem 1988, pp. 261-286.