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THE ORIGIN OF THE SHULCHAN-ARUCH
Die Entstehung des Shukhan-Aruch. Beitrag zur Festlegung der
Halachah. Von Dr. Ch. Tschernowitz. Bern : Acade-
MISCHE BUCHHANDLUNG VON MaX DrECHSEL, I915. pp. 79.
The talmudic saying : ntrsn QSJID riK'Sn nifsn xb niTK) riB'sn
' If you attempt to grasp too much you may not be able to hold it,
but if you grasp a little you may be able to hold it ', may serve as
a good advice to a certain class of authors, reminding them first,
to define to themselves the scope of the subject which they set
out to treat in their works, and then to remain within its circum-
scribed limits. If the author accurately defines his task and
limits himself to one special subject or one particular problem
he is more likely to have a firm grasp of his subject and to be able
to bring out clearly whatever new theory he has to advance or
whatever contribution he has to make to the solution of the
problem with which his book deals. If, however, he does not so
limit himself but drags into the discussion of his special theme
questions of other subjects and vast problems only remotely
connected with it, then, unless he be a great master, his grasp of
all these various problems is likely to be weak. And if the
compass of his book is small, his treatment of the various questions
will lack in thoroughness. He may touch upon many remote
questions and minor problems, discuss superficially some aspects
of the main problem, hint at or refer to different theories,
without bringing out clearly whatever theory of his own he has
to offer.
The work before us is the best illustration of the truth
of the saying: riE'SD ^ TSIT^-a DCSn. The author did not
grasp many of the problems which he touches upon in this small
volume. His treatment of the main theme is inadequate. His
theories are unfounded, his discussions are superficial, and many
489
490 THE JEWISH QUARTERLY REVIEW
of his statements are inaccurate and frequently contradict one
another.
The work, as indicated by its title, purposes to deal chiefly
with the genesis of the Shulhan Aruk, but only a very small
proportion of it is given to the treatment of this subject. Pages 1-22
deal with the methods of teaching and the definition of terms used
in the talmudic literature, which have no bearing upon the genesis
of the Shulhan Aruk. Pages 22-4 contain a few general and
superficial remarks about the development of the Halakah studies
during the thousand years which intervened between the close of
the talmudic period and the appearance of the Shulhan Aruk.
Pages 24-7 contain an account of Joseph Karo's Hfe, his purpose
and method in composing the Shulhan Aruk, a comparison of the
Shulhan Aruk with the Tur, the faults and shortcomings of both
these codes, in what they are alike and in what they are not alike.
Pages 28-79 deal with the opposition to the Shulhan Aruk and
its final acceptance, the activities of its commentators, as well as
with the works of other great rabbinical authorities of that period.
Thus, out of the 79 pages which the book contains, at the
most, only six pages can be considered as, in a manner, dealing
with the genesis of the Shulhan Aruk.
This is a great fault of the book, but it is the least as com-
pared with the other serious faults and grave mistakes to be found
in it. I shall limit myself to pointing out only a few of the wild
theories and unwarranted statements in which the book abounds.
The author tells us (pp. 11-12) that the early sources hardly
draw any line between Halakah and Haggadah. The distinction
between Halakah and Haggadah was made only by the Geonim
after the completion of the Talmud. It would require more
space than allowed to me for this review, to cite, in full, the
numerous passages in the talmudic literature in which such a
distinction is made. I can only refer to Levy's Dictionary and
Bacher's Terminologie, s. v. roiri and vmn .
But our author must have forgotten his own statement on
p. 5, that in order to be able to appreciate the Halakah one must
go back to the Haggadah, which the sources always contradistinguish
ORIGIN OF THE SHULCHAN-ARUCH — LAUTERBACH 491
from the Halakah, So the sources do distinguish between Halakah
and Haggadah.
On pp. 12-14 our author advances the following unfounded
and confused theory about the relation of Halakah to Minhag or
custom :
The terms nsp^ and jnjD 'custom', have always been identical, and
the ancient teachers use the expressions ' practices ', ' customs ' for all that
which we subsume under the term Halakah. But the authoritative power
of the popular custom was regarded as the highest authority from which
all valid decisions issue. The Halakah always relies for its support upon
the popular custom. The Halakah is even subordinated to the JfUD as
the higher source. The rule therefore was that in cases of conflict between
the Halakah and the Minhag, the former must yield to the latter. Even
the teachers of the Law, would, whenever the Halakah conflicted with
a custoin, recognize the latter as authoritative and valid. The halakic
decision acquires binding power only after it becomes a popular custom.
Accordingly, the Halakah is merely custom accepted by the teachers.
In itself the Halakah possesses no binding power. It is merely theoretical
teaching which must not necessarily be followed in practice.
Aside from the contradictions contained in these statements
(for if n3?n and jn:D were always identical, one could not have
been made subordinate to the other and they could never
have come into conflict with one another, and there could not have
been a rule that when conflicting with one another the Halakah
must yield to the Minhag, and if there was such a rule, it could
have been enacted only by the teachers of the Law, why then
state that even the teachers of the Law acted upon this rule), the
theory advanced is absolutely unfounded. It is almost incon-
ceivable that one who is familiar with the talmudic literature
should form such an opinion about the character and the authority
of the Halakah. The talmudic passages which the author cites
in support of his theory are either altogether misinterpreted or
taken out of their context and given general application, other
talmudical passages to the contrary notwithstanding.
Thus in support of his statement that the Mishnah contains
numerous halakic rules, the origin of which can be traced only to
popular customs, our author quotes the saying of R. Johanan in
492 THE JEWISH QUARTERLY REVIEW
p. Peah II, 6 (17 a): no yTC nnn psi it nnn nairi nxa an
•■j'DD HB-oi' nKNJ niabn noa •'nne' nnx nm^ nar^sn i'N na»D
™tr»a niypICO Jini)«l. But there is no mention at all in this
saying of halakic decisions which have their origin in popular
custom, and I am inclined to think that R. Johanan would
resent the implication that what he designates as Halakot com-
municated to Moses from Sinai were merely popular customs.
As proof for his statement that the Halakah always leans on
the popular custom as its support, our author quotes the saying of
R. Joshua b. Levi (p. Peah VII, 6, 20 a) : nssn K'nc nibn bi
JinJi im: -i)^)^ no nsni nv na^D no snv nriN psi pn rraa.
But this saying expressly states that only when the Halakah is
vascillating in regard to a certain question, i. e. when the Halakah
has no definite decision about it, the established practice of the
people in regard to that question should be followed. It certainly
does not say that the Halakah in its definite rulings and decisions
needs the support of the popular custom. The saying : pDJIpC Dca
JHJD^ pOJIp 13 r\J7rb (p. Pesahim IV, 3, 30 d) which our author
further cites in support of his statement, proves just the contrary.
For this saying presupposes the inferiority of the jniD as compared
with the Halakah. It plainly says that even the disregard of a
mere custom is to be punished just as the disregard of a halakic
rule. From the context, there, in the Yerushalmi we further
learn that the rule itself, viz. that disregard of a custom is to be
punished, cannot be sustained. The precedent cited there in
support of this rule was a case of a violation of a rabbinic law and
not of a mere custom.
As proof for his statement that the teachers would recognize
the custom as valid notwithstanding its being in conflict with the
Halakah, the author cites from p. Shekalim I, 46 a the phrase :
N^J nsbnb bza rnjn, which he takes out of its context, mis-
quotes, and misinterprets. The discussion there has no reference
whatever to cases of conflict between Halakah and Minhag.
It deals with the question whether the religious observances in
connexion with Purim obtain also in the first month of Adar
in a leap-year or not. R. Honah of Sepphoris says : ' In Sepphoris,
ORIGIN OF THE SHULCHAN-ARUCH — LAUTERBACH 493
Rabbi Haninah has introduced the custom to follow the opinion
of R. Simon b. Gamaliel ', mentioned in the Baraita there. To this
saying of R. Honah, is then added the remark : ymrt abit ION i^
a? mbnb sn ' R. Honah only said that R. Haninah had intro-
duced it as a mere custom but not that the Halakah should be so '.
The difference is very important, for if it was introduced merely
as a custom, it may have been due to considerations for local or
temporary conditions and need not be followed in other places.
If, however, it had been declared as a Halakah it would have
general validity and had to be followed in other communities also.
Thus, the discussion there proves rather the superiority of the
halakic decisions over mere- custom, contrary to our author's
statement. In the same manner our author misinterprets the
passage in b. Tannit 26 b: nb \:''Vn TND 'n3 nsSi noKT ;nd
pniD 'niN jrcy-n t6 B'm'D jnjD nDxn -nd .xpTsa. The meaning
of this saying is plainly this : According to the one who says,
It is a Halakah, we declare it in the public discourse, so that all
the people may know it and guide themselves by it. But according
to the one who says, It is merely a Minhag, we should not declare
it in the public discourse, for we are not so sure about it as to
make it an authoritative rule binding upon the people. However,
when consulted by an individual we should inform him that it is
a proper custom. This again, contrary to our author's assumption,
proves that the Halakah is by far superior to the Minhag and of
more binding authority. From the same passage in Tannit our
author could have learned to distinguish between a mere popular
practice DJjn M7\: and a recognized religious custom jnjD. This
would have helped him to take at their proper valuation the two
phrases, HD^n i)DaD jnJO and jn:» Nnic IV nvapJ HD^n pXB' which
apparently lend support to his theory about the authority of the
Minhag.
Against the saying nbn !?£23D jnjD we could cite the talmudic
question (R. H. 15 b) Pwi) [ypntr unj ''3 NniD''X Dip»3. And
against the saying in the post-talmudic Tractate Soferim XIV, 18
jnJD NiT't}' ty ny3pj n3^n pnb' we might rightly use the talmudic
argument ?t<n^''0 N''i)n NJpJD3 it2S, Hullin 63 a. But the same
494 THE JEWISH QUARTERLY REVIEW
passage in the tractate Soferim refutes the interpretation given by
our author to these two phrases by adding the following qualifying
statement: pNE> jnjD biti pp'ni jnjD naSi i'DiD in:a nDNt? nti
njnn b)p&2 njnna n^n W'n minn fD h^nt ih. This expressly tells
us, that only such customs as had a good reason for being
established and proofs from the Torah to support them, are to be
considered as authoritative. In other words, the established
Minhag receives recognition and authority only because we
presume that it is based upon some halakic teaching of those
former authorities who introduced it. (I have treated other
aspects of the relation between the halakic teachings and
established religious practice, as the product of the religious
consciousness of the people, in an essay on Tradition and the
Jewish Consciousness, to be published soon by the Central
Conference of American Rabbis. The importance of the question
of the authority of the Halakah, will, I hope, justify my having
given so much space here to the refutation of this one theory of
our author.)
On pp. 31-2 the author advances the following theory about
the different attitudes towards religious laws and practices held by
the Spanish and German authorities respectively :
In regard to the observance of the dietary laws, we find the German
rabbis to be lenient and the Spanish rabbis to be more strict. This difference
is due to the different political and social conditions under which the Jews
of the two countries lived. In Spain the relations between Jews and
non-Jews were friendly. The Rabbis, fearing that the Jews might become
assimilated, were, therefore, anxious to erect a barrier between the Jewish
and non-Jewish population. This they believed could be best achieved
by insisting upon a rigid observance of the dietary laws. In Germany, on
the other hand, the separation between Jews and non-Jews was wide
enough and, accordingly, there was no need of such special measures to
prevent assimilation. This difference between the Spanish and German
Jews in regard to the ritual laws is already noticeable in the fact that the
German Jews were more zealously careful in the observance of their
religion and its observances than the Spanish Jews.
Here again the author is confused and contradicts himself.
But aside from this, the very phenomena which our author sets
ORIGIN OF THE SHULCHAN-ARUCH — LAUTERBACH 495
out to explain by his social-political observations refute his theory.
For, as a matter of fact, the tendency to be strict .in the interpre-
tation and application of the dietary laws prevailed among the
German rabbis, while the Spanish rabbis were comparatively
lenient in this regard.
The author has a special fondness for sweeping generalizations
to which very many of his numerous false and contradictory
statements are to be attributed. I shall mention only a few.
According to our author the patriarchate in Palestine ceased at
the same time when the Babylonian Talmud was completed, in
the year 520 c.e. (p. 22). As a matter of fact, the patriarchate
ceased about the year 426, after the death of the last patriarch
Gamaliel VI.
On p. 23 our author makes the sweeping statement that the
Spanish scholars were the only ones who pursued grammatical
and exegetical studies. This is a statement which is hardly worthy
of refutation.
Another such sweeping generalization is his statement on the
same page, that the German authorities occupied themselves
almost exclusively with the codification of the Halakah while the
Spanish scholars busied themselves with the explanation and
expansion of the talmudic logic and with a theoretical study of
the Torah.
On p. 25 he makes Alfasi, Maimonides, and Asheri, respec-
tively, the representatives of three main tendencies in Judaism,
viz. the Babylonian, Spanish, and German.
On p. 26 (11. 1-3) he states that the Shulhan Aruk is like the
Tur only in its ' Disposition '. Otherwise it is essentially different
from the Tur. But on the same page, 11. 24-7, he contradicts
himself by making the following statement : ' It (the Shulhan
Aruk) is, as already stated, merely an extract from the Tur.
Accordingly, it is, as regards contents and arrangement, in nowise
different from the Tur.'
On p. 28 he stated that the ' Sephardic scholars have nowhere
stated expressly their position or attitude toward the Shulhan
Aruk'. But, on the same page and on p. 29 he quotes a few
496 THE JEWISH QUARTERLY REVIEW
Sephardic authorities who expressed themselves unfavourably
about the Shulhan Aruk.
The author occasionally uses the titles of the two works
51DV n'a and iny ;n^lB', interchangeably. He speaks of the
Shulhan Aruk when he means the Bet Joseph and vice versa.
This indiscriminate use of the titles of the two works, probably
aided by the printer's devil, has produced a rather comical
confusion in the dates which the author gives to the completion
and publication of the two works. Thus, on p. 24, we are told
that Karo began with the preparation for his work ^iDV rfa in the
year 1552 (obviously printer's mistake for 1522). It took him
twenty years to collect his material and twelve years more to
compose the work, which he finished in Safed in the year 1554.
On p. 25 we are told, further, that after Karo had completed his
work 51DV no he decided to write the Shulhan Aruk. Then, on
p. 26, it is stated that the first and second part of the Shulhan
Aruk appeared in Venice in the year 1550, while the third and
fourth part appeared in Labbionette (should be Sabbioneta) in the
years 1553 and 1559. According to these dates the first and
second part of the Shulhan Aruk were published at least four
years before Karo had decided to write the same. This confusion
is due to the mistake which the author made in assigning to the
Shulhan Aruk the dates 1550, &c., the years of the publication of
the Bet Joseph.
The printer will probably share in the responsibility for a large
proportion of the minor mistakes, such as mis-spelled words, faulty
references, and inaccurate quotations which are found on almost
every page of the book.
Many of the awkward expressions and vague and meaningless
phrases which abound in the book may be due to the difficulty
which the author seems to have in expressing himself in German.
Jacob Z. Lauterbach.
Hebrew Union College.
