Q&A: Study and Halakhic Ruling
Study and Halakhic Ruling
Question
Hi Rabbi Michi,
You said in one of your lectures — somewhere between chapters 1–6, I don’t remember — that somehow a lot of sections made their way into the Shulchan Arukh that shouldn’t really be there, because they are not Torah, if I understood correctly.
That statement didn’t surprise me, and actually it does make sense. I think you were quite sharp and clear about it.
And I have a few questions about this, if I may:
- Why should there even be such an assumption that, according to your approach, only “Torah” should be written in the Shulchan Arukh? After all, the Shulchan Arukh didn’t deal with what is “Torah” and what isn’t; rather, quite straightforwardly, it wrote, innovated, summarized, collected every topic relevant to practical Jewish law from what the sages before it wrote, those who accepted the Talmud as a halakhic / analytical basis, etc. … right?
2. And if we say this about the Shulchan Arukh, then we would say it about the medieval authorities (Rishonim), and about the Amoraim, etc. as well — correct?
3. Your claim is also about the Talmud, right? After all, according to your approach, not only “Torah” appears there, so one could throw a lot of pages in the trash.
Thank you very much
Answer
I don’t think I said this about a lot of sections. I said there are such sections, and I believe my remarks referred to the matter of communal ordinances and community governance.
The Shulchan Arukh is supposed to contain a summary of the laws, and whatever is not part of Jewish law should not appear there. Maimonides’ medical instructions did not appear in the Shulchan Arukh (nor in the Mishneh Torah).
I did not understand your question about the Talmud and the medieval authorities (Rishonim).
Discussion on Answer
I explained there also why the medieval authorities (Rishonim) turned to this issue. In the absence of a secular authority (a king) and a Sanhedrin (which can enact ordinances), they turned to halakhic decisors.
There is nothing unique about the Shulchan Arukh. It is a book of Jewish law like any other book of Jewish law.
I think I understood you.
Is it possible that according to your approach, a community custom would never “become” — I’m not sure what the right term is here — Jewish law, whereas according to the Shulchan Arukh‘s approach there is such a possibility?
Basically, the point that needs clarification is: what place does custom have in Jewish law? If it has any place at all?
This is not a question about customs. My claim is that the category of managing communal life does not belong to Jewish law. At most it becomes a custom by virtue of the fact that this is what people actually do, but there is no Jewish law here and no way to clarify it in light of halakhic sources and considerations.
And the fact is that nobody even considers implementing these laws or regarding communities that do not implement them as offenders.
The question whether despite all this it nevertheless has the force of custom is a different question. In my opinion, no.
Yes, I understood the point you raised. Thank you very much, and I hope you keep bringing a different kind of light from what people are used to reading and hearing.
Why are the laws of a wall between partners considered Torah?
A. Because these are laws of damages. Perhaps you mean to ask about the laws between neighbors (mainly chapter 2 of Bava Batra). But they too are part of the laws of damages.
B. Because the sages in the Talmud, who had authority, incorporated them into Jewish law. One who has authority can add further topics into Jewish law as ordinances or decrees. But after the sealing of the Talmud, there is no such authority. All you can do is interpret what was established in the Sanhedrins or in the Talmud.
I just wanted to make sure I understood you fully: those communal ordinances you mentioned were taken from the medieval authorities (Rishonim), who also, according to your approach, did not write only Torah in that same sense — since in practice they were printed together with Torah responsa.
If I understand you correctly, the uniqueness of the Shulchan Arukh, according to your approach, is that it lays out halakhic rulings of Torah/Jewish law that pertain to day-to-day life, and nothing more. Is that what you mean?