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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.