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Religious Law and Change: The Medieval Ashkenazic Example

  • Haym Soloveitchik (a1)

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If law is conceived of, as religious law must be, as a revelation of the divine will, then any attempt to align that will with human wants, any attempt to have reality control rather than to be itself controlled by the divine norm, is an act of blasphemy and is inconceivable to a God-fearing man. As the Middle Ages was an age of faith among Jews no less than among Christians and Muslims, the unalignability, the “nonadaptability”if you wish, of religious law is a premise which must underlie all our investigations and understanding of the history of Halakhah in the Middle Ages. Yet the contention of this paper is that at times the very intensity of religious conviction and observance can be conducive to a radical transformation of religious law, and that the very depth of religious attachment can play a supportive role in deflecting the divine norm from the path of its immanent development, and bring it into line with the needs and practices of the time.

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1. Urbach, E. E., Ba′alei ha-Tosafot, rev. ed. (Jerusalem, 1980)passim; Schalom Albeck, “Yahaso shel Rabbenu Tarn li-ve′ayot zemano,” Zion 19 (1954): 103–141.

2. Jacob Katz in Kiryat Sefer 1 (1956): 12–13.

3. See the important remarks of Ben-Sasson, H. H. in Behinot 9 (1957): 4649.

4. Soloveitchik, Haym. Minhag. Mefiut ve-Halakhah be-Mahshavtam shel Ba′alei ha- Tosafot: Yeyn Nesekh, Niluah le-Dugma (M.A. thesis; Jerusalem, 1967); Albeck, “Yehaso”;Katz, Jacob, Bein Yehudim le-Goyim (Jerusalem, 1960), chap. 3.

5. See Mishneh Torah, Yesodei ha-Torah V:l–5. I have adopted, both from conviction and for presentational purposes, the Maimonidean position on voluntary martyrdom as being the straight and simple interpretation of the halakhah (just as expresses an imperative, so similarly does its companion statement, ). And indeed a reading of the Semaq (below, n. 8) would indicate just how aware was R. Isaac of Corbeil of the cogency of this argument. Opinions, however, can legitimately differ on this matter. The question here addressed is not the legal validity of the positions adopted, but of the mind-frame that shaped those positions. Murder of one′s children to avoid baptism is legally inadmissible, yet it is evident that this practice of centuries possessed the full tacit approval of the tosafists (see below n. 8). A culture which assents to child murder as preferable to baptism is one which, I believe, will inevitably view voluntary martyrdom as permissible, indeed commendable. Be that as it may, my argument is made on the basis of child murder rather than voluntary martyrdom. (Josephus′ account of Masada has recently generated a considerable literature on suicide; see Feldman, L., Josephus and Modem Scholarship [Berlin, 1984], pp. 779780. For our purposes, see below, n. 8.)

6. ve-Sarfat, Gezerol Ashkenaz, ed. A. Haberman (Jerusalem, 1945). The English translation is that of Shlomo Eidelberg, The Jews and the Crusades: The Hebrew Chroniclers of the First and Second Crusades (Madison, 1977). See now Robert Chazan′s translation in his European Jewry and the First Crusade (UCLA, 1987), pp. 223–297. Suicide and slaughter of children are attested to by Albert of Aix, Recueil des historiens des croisades, Histoire Occidentaux, vol. 4 (Paris, 1879), p. 293 (bk. I, chap. 27). Reciting of blessing, Gezerot, pp. 41, 45, 46, 78, 96 (see also pp. 62, 113). See Abramson, Shraga, “Nusakh berakhah ′al kiddush ha-shem,” Torah Shebe′al Peh 14 (1972): 159163. I have found no evidence for viewing this as a later exaggeration (cf. Yishak Baer, Introduction to Gezerot, p. 4). On the radically different responses to martyrdom and conversion on the part of the Spanish community, see Cohen, G. D.. “Messianic Postures of Ashkenazim and Sepharadim,” in Studies of the Leo Baeck Institute, ed. Kreutzberger, M. (New York, 1967), pp. 115158. See also Lewis, Bernard, Jews in Islam (Princeton, 1984), pp. 8284.

7. Teshubot, Pesaqim u-Minhagim shel R. Maier of Rothenburg, ed. I. Z., Cahana, 2 (Jerusalem, 1960), sec. 59.

8. See reference in Katz, Bein Yehudim, p. 91, n. 8, to which may now be added: Tosafot Sens, ′Avodah Zarah 18a, s.v. mulav, in Shiltat ha-Qadmonim ′al ′Avodah Zarah, ed. Y. Blau (New York, 1969); Gilyonei Tosafot, cited in Hiddushei ha-Ritva ′al ′Avodah Zarah (Jerusalem: Mosad ha-Rav Kook, 1978) 18a, s.v., ha; Semaq Zurich (Jerusalem, 1973), Imp. 3, 6; Arugal ha-Bosem, ed. E. E. Urbach, 1 (Jerusalem, 1939), p. 122; Tosafot ha-Shalem ′al ha-Torah, ed. E. Y. Gliss (Jerusalem, 1982), to Gen 9:5 (Orhot Hayyim II, ed. Mosheh Schlesinger, I, pp. 26–27). Significantly, this defense is made by no less a figure than Rabbenu Tarn; and the striking formulation of the Tosafot (A.Z. 18a), which might be suspect as being a later heightening of a more measured formulation by possibly the greatest talmudist of the time, is confirmed by the Tosafot of Ri′s son, R. Elhanan, the earliest and most direct “reportatio” of the Dampierre academy: can either be deductive, inductive, or axiomatic. Clearly no principle has been stated from which this conclusion has been deduced, nor can this conclusion be inferred from the facts. (Indeed to the extent that there are talmudic data, they point to the opposite conclusion, as the very existence–or the very necessity, one should say–of the Tosafot ad loc. indicates.) Clearly suicide is simply axiomatic to Rabbenu Tarn. Similarly, when argument is made from ben sorer u-moreh, which, as is well known, I′o haya ve-l′o nivr′a, no legal argument is being advanced but a religious truism asserted. The same holds true for citing tales of R. Judah Hasid and midrashim on legal issues of life and death. Subsequent formulations abated the imperative nature of suicide, but almost all asserted that it was permissible and that those who did so act were qedoshim. The defense for murdering children is far more muted. It is absent in the classic works of Ashkenaz but found in scholia. Ritva assumes Rabbenu Tarn to be of this opinion, though the text of the Gilyonei Tosafot is far from clear on the matter. Indeed, as all other reports of Rabbenu Tarn′s doctrine confine it to suicide, and to suicide alone, the concluding remarks would appear to be those of the Gilyonei Tosafot. R. Moses of Zurich attributes such a defense to Ravyah. Be that as it may, the practice clearly had popular rabbinic sanction. Needless to say, differing voices on so traumatic an issue were heard, as the passage in the Tosafot ha-Shalem indicates, but the protests are anonymous or from men of no consequence R. Solomon Luria saw Ri of Dampierre as opposing suicide (Yam shelShlomoh, Bava Qama 8:59), but this is highly questionable. Logically, if suicide is not permitted as an escape from fear, then whether that fear is of murder or of baptism should make no difference. The very essence of the Ashkenazic position, however, was that baptism did make a difference. Significantly, Ri is never mentioned in contemporary sources as differing with the regnant opinion. We possess, moreover, two direct reports of Ri′s teachings on this subject (Tosafot R. Elhanan and Tosafot Sens on ′A vodah Zarah 18a), and no demurral is there registered against his uncle′s doctrine. Just how deep feelings ran may be seen from the Yam shel Shlomoh itself. R. Solomon combats at length, and with all his characteristic power, the acceptance of suicide as a legitimate alternative to baptism and then concludes by stating that it is permissible to set one′s house on fire, engulfing both oneself and one′s family in the flames, in order to avoid baptism. By remaining in the house until the flames reach him, this person would be legally passive, allowing himself and his family to be killed rather than actively taking life. (Note 27 in the printed Semaq Zurich is not part of the text itself and is not found in other MSS of the work. It is written in a different hand, as are all the other sundry notes. It claims that a lengthy discussion of the slaughter of children is to be found in the Mordecai on ′A vodah Zarah. I have not found any such discussion either in the printed Mordecai or in fifteen of the sixteen MSS of that work on file at the Institute of Microfilmed Hebrew Manuscripts of the National and University Library in Jerusalem. [MS Vatican Ebr. 141 was not available.])

9. See above n. 4 and Katz, Jacob, “Ma′ariv bi-zemano u-shelo bi-zemano,” Zion 35 (1971): 3560, and now Mintz, Alan, Hurban: Responses to Catastrophe in Hebrew Literature (New York, 1984), pp. 84108. I do not perceive a similar attitude reflected in the responsum of Gaon, R. Hai(Osar ha- Geonim. Rosh ha-Shanah, ed. B. M., Levin [Jerusalem, 1938], pp. 6068). First, the thrust there is polemical, a defense of rabbinic traditions about shofar blowing against Karaite criticism. More significantly, 1 have not discovered any systematic reworking of areas in the halakhah of issur we-heter in the writings of the geonim so as to align them with communal practice. Intellectual history is the study of the actual intellectual work of a period, not of occasional proclamations. This is a point which cannot be overemphasized. The geonim did revise extensively commercial law. This area, however, creates no legal or religious problems, for hefqer beit-din hefqer. No such rule obtains in the area of ritual law, and minhag can never cancel out an unquestionable issur. It is in this area that the communal self-image must arise, systematically raising common practice to the level of a quasi-text, and thus allowing its integration into the halakhic process.

10. Baer, Yishak, A History of the Jews in Christian Spain, vol. 1 (Philadelphia, 1966), pp. 236261 and passim.

11. Soloveitchik, Haym, “Pawnbroking: A Study in Ribbit and of the Halakhah in Exile,” Proceedings of the American Academy for Jewish Research 38 39 (1972): 235239, esp. p. 239.

12. Note the absence of Ashkenazic writers in Lasker′s, DanielJewish Philosophical Polemics Against Christianity in the Middle Ages (New York: Ktav, 1977). Contrast this with Berger′s, DavidThe Jewish-Christian Debate in the High Middle Ages (Philadelphia, 1979). Whether philosophy played the major corrosive role in Spain that Y. Baer attributed to it is an open question. Certainly it did not help. For bibliography on this issue, see Septimus, B., “Narboni and Shem Tov on Martyrdom,” in Studies in Medieval Jewish History and Literature,ed. Twersky, I. (Cambridge, Mass., 1984), p. 447, n. 1. (My remarks are confined to the twelfth and thirteenth centuries, the period of the Ba′alei ha-Tosafot, which in Germany comes effectively to an end in 1303 with the emigration of R. Asher and decisively to an end in France with the expulsion of 1306. I must, however, register here my misgivings about the exaggerated implications that have been drawn from E. Kupfer′s article “Le-demutah ha-tarbutit shel yahudut ashkenaz be-me′ot ha-arb′a ′esreh ve-ha-hamesh ′esreh,” Tarbiz 42 [1973]: 113–147. My own study has confirmed what I initially heard from Professor M. Breuer: an examination of the origins of the individuals involved, and of their concentration in one culturally unique city, Prague, would mitigate considerably the far-reaching conclusions that have been drawn from the material published by Kupfer. H. H. Ben-Sasson′s position on the extent of the currents of philosophical speculation in Germany at the end of the fourteenth and through the fifteenth century [in Peraqim be-Toldot ha-Yehudim be-Yemei ha-Beinayim (Tel Aviv, 1962), pp. 205–206, and in Trial and Achievements: Currents in Jewish History (Jerusalem, 1974), p. 155] may be in need of some modification but has not, to my mind, been effectively shaken.)

13. Ketav Tamim in Osar Nehmad 4 (1860): 5490. For literature and discussion, see Dan′s, Joseph introduction to Ketav Tamim MS Paris H 711 (Jerusalem: Mercaz Dinur, 1984).

14. E.g., references given by Katz, Bein Yehudim, chap. 6; Baron, S. W., A Social and Religious History of the Jews, vol. 5 (Philadelphia, 1957), pp. 112114, 340–341; Robert Chazan, Medieval Jewry in Northern France (Maryland, 1973), pp. 146–147, 189–190, 195–196. (I personally would take with some discount the reports of sixteenth-century chroniclers, such as Ibn Yahya and Usque, who, fresh from the Spanish trauma, wrote of the 1182 expulsion by Philip II, “l-pon oam.” No contemporary source records this, and the Latin sources cited by Chazan specifically state that few converted [see also Abraham David, “MiPalo ha-Historiografi shel Gedalyah Ibn Yahya” (Ph.D. diss., Hebrew University, 1976), p. 335, n. II]).

15. The report of R. J udah of Gerona expressed vividly the Ashkenazic viewpoint about the inherent improbability of voluntary conversion to Christianity (Teshuvot Rashba, VII, 179): Note all would go this distance and turn this perspective into an absolute legal presumption. There are all types of people, and specific cases should be treated individually, especially in such weighty matters as ′agunah (Mordecai, Ketuvot, sec. 306). (Attention to both these sources was drawn by E. E. Urbach, Ba′alei ha-Tosafot, p. 243.)

16. Gezerot, pp. 25, 43, 51, 56, 73, 80,94, 95–96. See now Chazan, R., European Jewry (above n. 6) pp. 99–136.

17. The considerable effort that has been expended over the past century in determining the priority of the several chronicles, their common or different sources, and the roles of the different editors is a consequence of their sharing a common view, and a common religious and historical outlook. All chronicles being of the same hue, differentiation has had to be made on the basis of minor cracks in the narrative and variations in historical detail and emphases. (For the literature, see Hacker, Yosef, “Le-gezerot tatnu,” Zion 31 [1966]: 233, n. 1, to which one should add the recent research of Chazan, Robert in Revue des etudes juives 133 [1974]: 235254, and in AJS Review 3 [1978]: 79–99.)

18. See Yerushalmi, Y. H., Front Spanish Court to Italian Ghetto (New York, 1971), pp. 2142, for full discussion.

19. See now Mintz, Hurban, chap. 2, especially pp. 90–92. The chroniclers′ view of anusim differs little from that of Rashi (Teshuvot Rashi, ed. I. Elfenbein [New York, 1943], no. 168). (Note the tone of the query and that of the reply.) See also Asher, R. in Zikhron Yehudah (Berlin, 1846), fols. 50v–51v. (It should be noted that R. Asher′s opponents did not question the unfaltering allegiance of the anusim but rather his assumption that every infraction committed during their enforced Christianity was a consequence of direct duress and that they were, therefore, legally spotless. His opponents contended that the anusim occasionally breached the law–to which they aspired to return and subsequently did–either out of fatigue or convenience. And this had legal repercussions.)

20. Gezerot, pp. 5657 and passim.

21. Ibid. . Christian chroniclers confirm the fact that most converts returned to the fold. Sources are excerpted in Aronius, Regesten, nos. 189, 202, 203, 206, 218. Dinur, Yisrael be-Golah, II, 1: pp. 31,43–45. Baron. Social and Religious History, vol. 4 (1957), p. 284, n. 12, and p. 293, n. 21. (Let me be clear. I am not stating that all three chronicles describe specific conversions in different cities to the same degree, but this is a function of the respective degrees of historical detail and geographic emphasis of the several narratives. All, however, speak openly and unabashedly about conversion.)

22. Urbach, Ba′alei ha-Tosafot. p. 349.

23. Semaq, Imp. 3. (In the Venice 1546 edition, which is frequently photo-offset, it is found at fol. 96d.)

24. Migne, J. P., Patrologiae cursus completus: Series Latina, 104:826, 117:170; Aronius, Regesten, p. 90; Hoeniger, Robert, “Zur Geschichte der Juden Deutschlands im Mittelalter,” Zeilschrifi fur die Geschichte der Juden im Deutschland 1 (1887): 141; Grayzel, Solomon, The Church and the Jews in the Xlllth Century, rev. ed. (New York, 1966), pp. 73, 127–128. See also Speculum 42 (1967): 343.

25. Tosafot, ′Avodah Zarah 57b, s.v. le-apuqei. See Soloveitchik, Haym, Minhag, Mesiul, chap. 3. The German Pietists were unabashed in their criticism of the shortcomings of their people, yet no mention is to be found in Sefer Hasidim of drinking yeyn nesekh. There were, of course, people who drank, as there were those who transgressed other injunctions, but yeyn nesekh is mentioned in only three of some seventy penitentials (MSS Vatican Heb. 183, fol. 177v; Munich Heb. 232, fol. 22v; Parma, De Rossi, 1048, fol. 17v). A more accurate gauge would be to say that it is wholly absent in the HTR genre, found in one contaminated text of the HTR B group, and in two of the three MSS of the IT genre. On this classirication and for the list of MSS, see Marcus, Ivan, “Hasidei Ashkenaz Private Penitentials: An Introduction and Descriptive Catalogue of Their Manuscripts and Early Editions,” in Studies in Jewish Mysticism, ed. Dan, Joseph and Talmage, Frank (Cambridge, Mass., 1982), pp. 5783. The text of MS Vatican Heb. 183 was published in typescript by Hacker, Yosef, Be′ayot Nivharot be- Heqer Yahadul Ashkenaz, vol. 1 (Jerusalem: Akademon, 1974), p. 41.

26. E.g., Maimonides, Hilkhot Ma′akhalot ′Asurot 11:10; Teshuvot ha-Rambam, ed. Blau, Yehoshua, vol. 2 (Jerusalem, 1960), p. 269; Ha-Yarhi, Abraham b. Nathan, Sefer ha- Manhig, ed. Rafael, Isaac, vol. 2 (Jerusalem, 1978), p. 660. More qualifiedly, Teshuvot Rivash, III, no. 180; Teshuvot Tashbes, I, no. 29. (Teshuvot Rashba, IV, no. 189 [I, nos. 717, 813] and Teshuvot Tashbes, I, no. 85, cannot be cited as evidence of actual practice. Teshuvot Rashba, VII, no. 526, is not by Rashba but is a series of collected excerpts from ′Orhot Ifayyim, II.)

27. Or Zaru′a, Bava Mefia, sec. 202.1 must here modify the assessment I made in “Pawnbroking: A Study in Ribbit,” p. 251. I did not then notice the insistently suasive element in Rabbenu Tarn′s declaration: his emphasis that he himself ruled thus, in cases involving members of AM own family. And finally, I missed the significance of the two words i? and iiaj in his concluding remarks cited in the text. People in search of an allowance needn′t be assured that it is -iiaj -iriTi; the word mular from the lips of Rabbenu Tam would have more than sufficed. Nor would they be interested in knowing whether the respondent himself practiced these allowances. The entire thrust of the declaration now seems to me to be aimed at the group which still abided by the century-long tradition of the Rhineland, which had now received new and emphatic validation by Rabbenu Tarn′s elder brother, Rashbam (Ibid., pp. 241–242). To be sure, Rabbenu Tarn′s sweeping allowance answered a general need by removing the highly inconvenient restrictions still present in Rashi′s legal fiction (and I have no doubt that Rabbenu Tam was fully aware of this). This, however, does not now seem to me to be the motivating force behind Tarn′s declaration, and certainly it is not the general audience that he is here primarily addressing, but rather one which he strongly feels needs persuading. To sum up, I would say that his doctrine abolishing the law oile-humra (Ibid., p. 252) was indeed motivated by the desire to unfetter completely intra-Jewish credit by use of the gentile strawman. To most people an allowance by Rabbenu Tam sufficed. Others felt his doctrine too radical and without sufficient basis, and if rejecting it entailed major financial losses, so be it. It is to this group that Rabbenu Tam addressed his famous declaration, though of course it had implications for all. And in time the doctrine of silluq became the standard form of intra-Jewish credit.

28. This lecture was written in 1982. Since then Jacob Katz has traced the presence and complexities of what he terms “ritual instinct” in his superb Goy shel Shabbat (Jerusalem, 1984).

29. I am using the traditional East European kitchen as an expositional device and am not here claiming that Eastern Europe reproduced the cultural milieu of Ashkenaz that 1 have attempted to outline in this paper. (There are certain similarities and filiations, and these have been set forth in a paper delivered at the Kotlar Institute for the Study of Contemporary Judaism of Bar-Ilan University. This, however, is a wholly separate issue and is neither related to nor in any way implied by our argument here.)

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Religious Law and Change: The Medieval Ashkenazic Example

  • Haym Soloveitchik (a1)

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