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Between Law and Society: Mahariq's Responsum on The “Ways of the Gentiles” (Ḥuqqot Ha-‘Akkum) *

Published online by Cambridge University Press:  18 June 2010

Jeffrey R. Woolf
Bar-Ilan University, Ramat-Gan, Israel
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The late Professor Jacob Katz was wont to observe that the student seeking to properly study and evaluate rabbinic responsa must read his sources twice. First, he must examine the text from the point of view of the halakhist, and evaluate it as an integral part of halakhic literature and tradition, respecting the general assumption of the halakhist that Jewish law is a closed system, which operates according to its own rules. After this, he must don the spectacles of the historian and evaluate, as best he can, the degree to which contemporary circumstances had an impact (if any) upon or are reflected in the decisor's ruling. This dual challenge is quite daunting in so highly nuanced and idiomatically opaque a literature as the halakhah. Caution and sensitivity must be the hallmark of all efforts to achieve both of the aims posited by Katz, especially the latter. As a result of the sagacity of Katz's admonition, halakhic historiography in recent years has made heavy use of the medium of case studies (carried out within specific periods and geographical areas). Recourse to these has proven fruitful in advancing the historian's goal of carefully and responsibly reconstructing the history of halakhah per se and the annals of the societies and cultures within which halakhic traditions were developed and which, in turn, left their impact thereupon.

Copyright © Association for Jewish Studies 2001

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1. Katz, J., Introduction to Halakhah ve-qabbalah (Jerusalem, 1985), pp. 13.Google Scholar See also idem, “Post-Zoharic Relations Between Halakhah and Kabbalah,” in Jewish Thought in the Sixteenth Century, ed. Cooperman, B. (Cambridge, 1983), pp. 283–87.Google Scholar

2. Katz, J., ‘Et laḥqor ve- ‘et le-hitbonen (Jerusalem, 1998), pp. 15.Google Scholar

3. See the cautionary remarks of Professor Haym Soloveitchik in his study, Can Halakhic Texts Talk History?AJS Review 3 (1978): 174–76Google Scholar and idem, Religious Law and Change,” AJS Review 12 (1987): 205–6.CrossRefGoogle Scholar

4. In this connection, one need only recall the pioneering work of Professors H. Soloveitchik, I. Ta-Shema, and A. Grossman in the literature of classical Ashkenaz. Recently E. Zimmer has followed the same model in reconstructing the divide between the Rhenish and Austrian components of later medieval German Jewry, in Zimmer, E., ‘Olam ke-minhago noheg (Jerusalem, 1997), pt 2.Google Scholar See also Soloveitchik's recent review of Zimmer's book in AJS Review 23 (1998): 223–34.CrossRefGoogle Scholar

5. Details concerning his life may be obtained in Buksboim's, Y. introduction to She ’elot uteshuvot u-fisqe Mahariq ha-ḥadashim, ed. Pines, E. D., 2nd ed. (Jerusalem, 1984), pp. 1948Google Scholar; Woolf, “Life and Responsa of Rabbi Joseph Colon,” pp. 1–66; and idem, “New Light on the Life and Career of Rabbi Joseph Colon,” Italia 13 [Forthcoming].

6. Lev. 18: 3. The text is found in Colon's responsa (editio princeps: Venice, 1519), shoresh 88. All references are to this edition. Colon's ruling on the issue was adopted by R. Moses Isserles in his glosses to the Tur and the Shulhan ‘Arukh (Yoreh De’ah 178:2). As a result, it set the agenda for all subsequent discussion of the topic. See Woolf, “Life and Responsa of Rabbi Joseph Colon,” pp. 218–36.

7. As pointed out by A. Toaff, the social history of Italian Jewry (or for that fact any Jewish community) must be based upon a sensitive, thorough, and balanced comparison of both archival and rabbinic sources. I hope that this study will contribute to a better appreciation of the role played by the latter. See Toaff, A., Love, Work, and Death: Jewish Life in Medieval Umbria (London, 1998), p. 2.Google Scholar

8. It was apparently completed prior to Colon's arrival in Mantua around 1469. See Woolf, “Life and Responsa of Rabbi Joseph Colon,” p. 42.

9. Concerning him, see Carpi, D., “Rabbi Yehudah Messer Le’on u-fe’ulato ke-rofe,Michael 1 (1972): 277301Google Scholar; idem, “Notes on the Life of Rabbi Judah Messer Leon,” in Studi sull’ebraismo italiano: in memoria di Cecil Roth, ed. Toaff, E. (Rome, 1976), pp. 3962Google Scholar; Bonfil, R., “Introduction to Nofet Ṣufim” (Hebrew) (Jerusalem, 1981), pp. 7–6Google Scholar; idem, “The Book of the Honeycomb's Flow by Judah Messer Leon: The Rhetorical Dimension of Jewish Humanism in Fifteenth Century Italy,” in Frank Talmage Memorial Volume, ed. Walfish, B. (Jerusalem, 1992), pp. 2133Google Scholar; Tirosh-Rothschild, H., Between Worlds: The Life and Thought of Rabbi David ben Judah Messer Leon (New York, 1991), pp. 2433.Google Scholar

10. Regarding Modena, see Pavoncello, N., Antiche famiglie ebraiche italiane, vol. 1 (1982), pp. 7172.Google Scholar Colon refers to him in shorashim 9, 22, 85, 128, and 149. These are among his best-known decisions.

11. Shoresh 88.

12. Macalister, R. A. S., Ecclesiastical Vestments: Their Development and History (London, 1896), pp. 253ff.Google Scholar In the universities, the wearing of the cappa manicata was restricted to scholars of standing. This fact, together with the timing of the question to Colon, could lead to the conclusion that the person whose wearing of the cappa manicata set off the controversy was none other than the questioner, R. Judah Messer Leon. As demonstrated by Carpi (“Notes on the Life of Rabbi Judah Messer Leon,” pp. 44–49), in 1469 the emperor awarded Messer Leon the right to grant doctorates in medicine, a privilege never before given a Jew. In light of what we know of Messer Leon's life and personality, he might well have begun to affect an air of academic standing, in this instance expressed by the wearing of the distinctive cappa manicata. See Shulvass, M. A., “Maḥloqotav shel Messer Leon ‘im rabbane doro ve-nisyono le-hatil maruto ‘al Yehude ’Italyah,” Ṣiyyon 12 (1947): 1723Google Scholar, and Tirosh-Rothschild, Between Worlds, p. 29. (It is pertinent to note that Messer Leon was living in Bologna when he received this imperial distinction. See Carpi, “Notes,” p. 49.) Several contemporary illustrations portray Jewish physicians as wearing a different robe, known as the cappa clausa, which is closer in design to contemporary academic gowns and was generally red in color. At present it is unclear whether the opposition to this innovation in the garb of physicians played a role in the inquiry to Mahariq. See T. and Metzger, M., La vie juive au Moyen Age (Fribourg, 1982), pp. 171, no. 238, 174 ffGoogle Scholar, and 242–43.

13. Haskins, C. H., The Rise of Universities [1923] (Ithaca, 1957), pp. 110.Google Scholar The standard study of the origins of the European university is still Rashdall, H., The Universities of Europe in the Middle Ages, new ed. by Powicke, F. M. and Emden, A. B. (Oxford, 1936).Google Scholar See also the pertinent remarks of Betts, R., “The University of Prague: 1348,” in Essays in Czech History (London, 1969), pp. 112.Google Scholar

14. See Macalister, Ecclesiastical Vestments, p. 253: “There is no doubt that the university dress of the Middle Ages is an adaptation of monastic costume. The original schools from which the universities developed were of a clerical character, and their members wore clerical dress.” See also Hargreaves-Mawdsley, W. N., A History of Academical Dress in Europe until the End of the Eighteenth Century (Oxford, 1963), p. 4.Google Scholar

15. Shoresh 88. See Macalister, Ecclesiastical Vestments, pp. 78–79. It is likely that local Jews were very much aware of ecclesiastical costume, even of the robes worn during Mass. Jews on occasion took such garments in pawn. Moreover, Italy was known for its elaborate religious processions, where Jews could not have avoided seeing such robes. See Burckhardt, J., The Civilization of the Renaissance in Italy, vol. 2 (New York, 1975), pp. 413–25.Google Scholar Regarding other possible motives behind the objections to the wearing of the cappa, see Bonfil, R., Jewish Life in Renaissance Italy (Berkeley, 1994), p. 103.Google Scholar

16. E.g., Yoma 67b. See Heinemann, I., Ta'ame ha-miṢvot be-sifrut Yisrael (Jerusalem, 1993), pp. 135, 79–96Google Scholar; Twersky, I., Introduction to the Code of Maimonides (New Haven, 1980), pp. 374 ff.Google Scholar See also the bibliographical survey by I. Dienstag, “Ta'ame ha-miṢvot be-mishnat ha-Rambam: Bibliografyah,” Da ‘at 41 (1998): 101–115.

17. These were the focal points of contemporary Bible study in the Italo-German orbit. See Baruchson, Shifra, Sefarim ve-qor'im: tarbut ha-qeri'ah shel Yehude ‘Italyah be-shilhe ha-Renesans (Ramat-Gan, 1993), pp. 125–29.Google Scholar

18. While Rashi and Naḥmanides differ on the exact nature of ḥuqqim, for Colon's purpose the difference is unimportant. Rashi was of the opinion that ḥuqqim have no reason other than their being Divine commands (see his comments on Lev. 19:19 [cited here by Colon], Lev. 18:6, and Berakhot 33b, s.v. middotav). Naḥmanides, on the other hand, was of the opinion that each ḥoq has a deeper rationale that is difficult to elicit (see his comments, e.g., on Lev. 18:6 and 19:19).

19. As Rashi (Berakhot 33b, s.v. middotav) states, “these are merely Divine decrees (gezerot).”

20. The same point is made emphatically by Maimonides in Mishneh Torah, Hilkhot Me'ilah 8:8 (end).

21. Shoresh 88. Colon clinches this point by citing the various and sundry actions interdicted by the rabbis as belonging to the idolatrous “ways of the Amorites” (darkhe ha-'emori), which were often seen as a subset of ḥuqqot ha-'akkum, and demonstrating that all of them are bizarre and irrational. See Shabbat, Massekhet, Tosefta Mo'ed, ed. Lieberman, S. (New York, 1962), chaps. 6–8Google Scholar and EnṢiqlopedyah Talmudit, vol. 7 (Jerusalem, 1977), pp. 706 ff.Google Scholar, s.v. darkhe ha-'emori.

22. Sifre ‘al Sefer Devarim, ed. Finkelstein, L. (Berlin, 1940), 80 (146–47)Google Scholar, with variants.

23. The word used in Colon's version is qilusin (“praise”), indicating travel with a retinue or public procession. See Lieberman, S., “Q'L'S' Qilusin,” in ‘Ale ‘Ayin, (S. Schocken Jubilee Volume) (Jerusalem, 19481952), pp. 7581.Google Scholar

24. While Colon's text evidently read “qilusin,” one wonders whether one may discern here a veiled criticism against extravagant wedding or funeral processions, which were evidently not uncommon among Jews. For example, the ordinances adopted in Forli (1418) restricted the number of retainers accompanying a bride. See Finkelstein, L., Jewish Self-Government in the Middle Ages (New York, 1964), pp. 286, 294.Google Scholar Another example is provided by the funeral of R. Judah Mintz, which raised more than one eyebrow. See Shulvass, M. A., The Jews in the World of the Renaissance (Leiden, 1973), pp. 336–37.Google Scholar

25. Or, as Bonfil puts it: “In other words, the rule was that whatever was considered an exclusive characteristic of the Other (i.e. the Christian) became ipso facto negative with respect to the definition of the (Jewish) self.” See Bonfil, Jewish Life in Renaissance Italy, p. 103. Concerning the original import of this passage, see the important discussion in Blidstein, G., “Rabbinic Judaism and General Culture: Normative Discussion and Attitudes,” in Judaism's Encounter with Other Cultures: Rejection or Integration, ed. Schacter, J. J. (Northvale, 1997), pp. 4753.Google Scholar

26. This reading is confirmed by the full text of the Sifre, which is based on Deut. 12:30.

27. There is, nevertheless, a significant difference between them. The adoption of irrational or cultic behavior from the non-Jewish world is inevitably an expression of an intent to adopt the lifestyle and mores of the Gentiles (“otherwise why would he do such things?”). On the other hand, whether the active imitation of non-cultic Gentile fashion constitutes a violation of ḥuqqot ha-'akkum ultimately depends on the stated or tacit motivation of the individual.

28. Shoresh 88.

29. The context is still Messer Leon's question regarding physicians wearing the cappa.

30. It is worth noting in that Colon develops his basic criterion for ḥuqqot ha-'akkum directly from the Bible and the tradition of medieval Bible commentary, and not first and foremost from rabbinic legal sources. Such resort to the biblical text for legal rulings could be seen as constituting something of a departure for Colon, who at least on one occasion voiced his objection to independent derivation of law from the Bible (shoresh 139). However, as will be demonstrated below, Colon was here following Maimonides’ exegetical lead, lending credence to the enterprise. Concerning the issue of use of biblical exegesis and commentary by post-talmudic halakhists, see Gilat, Y., “Midrash ha-ketuvim ba-tequfah ha-batar-talmudit,” in Mikhtam le-David: R. David Ochs Memorial Volume, ed. Gilat, Y. et al. (Ramat-Gan, 1978), pp. 210–31Google Scholar [=Idem, Peraqim behishtalshelut ha-halakhah (Ramat-Gan, 1990), pp. 374–94]Google Scholar; Elon, M., ha-Mishpat ha-'Ivri, 3rd ed. (Jerusalem, 1988), pp. 326–33.Google Scholar

31. The details of this analysis are more relevant for the study of Colon's legal method than for the topic under consideration. A full discussion is found in Woolf, “Life and Responsa of Rabbi Joseph Colon,” pp. 198–207.

32. Hil. ‘Avodah Zarah 11:1. One noteworthy point that arises in this section of the text is Colon's declaration that red clothing ipso facto constitutes a ḥog. He concludes by declaring that “to this day we have it by tradition for our nation not to wear red.” Ironically, however, as already noted (above, n. 12) contemporary Italian manuscript illuminations show that the robes of Jewish doctors, like those of their Christian counterparts, were flaming red in color. I have not to date been able to account for this discrepancy.

33. “Lo yilbash be-malbush ha-meyuḥad lahem.”

34. It should be kept in mind that halakhic argumentation, as was first pointed out by Naḥmanides (introduction to Milḥamot ha-Shem), is an inexact science. Hence, what is called for in rebutting an opposing argument is interpretive plausibility and logical integrity. The point was, perhaps, best put by the late Professor Isadore Twersky, as follows: “The admissibility of two or more equally tenable interpretations of a uniform text was a widespread principle—almost a rule of thumb—in medieval halakhic study and accounts for a good deal of its polemicism.… Just as Naḥmanides could weaken a view of Razah and thereby rehabilitate a view of Alfasi merely by suggesting possible interpretations and conjectural constructions.” Twersky, I., “The Beginnings of Mishneh Torah Criticism,” in Biblical and Other Studies, ed. Altmann, A. (Cambridge, Mass., 1963), pp. 165–66.Google Scholar

35. See Jeffrey R. Woolf, “The Authority of Custom in the Responsa of R. Joseph Colon (Mahariq),” Dine Israel 19 (1997–98): 43–74 and the discussion below.

36. In the early 1490s, R. David Messer Leon, the son of R. Judah Messer Leon, was consulted as to the propriety of an edict of R. Moses Capsali prohibiting scholars newly exiled from Spain to Constantinople from wearing a certain type of shawl that Capsali felt was in violation of the law of ḥuqqot ha-'akkum. Messer Leon supported Capsali, but solely on the grounds that as chief rabbi he had the right to issue whatever edicts he felt were warranted, and that wearing such a shawl was against the common custom and might possibly constitute a violation of the Sabbath if worn then. Messer Leon avoided the issue of ḥuqqot ha-'akkum entirely. The responsum was published in Hacker, Y., “ha-ḥevrah ha-Yehudit be-Saloniqah ve-'agafeha ba-me'ah ha-15 ve-ha-16” (Ph.D. diss., Hebrew University, 1979)Google Scholar, appendix IV, and discussed by Benayahu, M., Rabi Eliyahu Qapsali, 'ish Qandia (Tel Aviv, 1983), pp. 4654.Google Scholar

37. Fol. 52b.

38. Fol. 11a.

39. Tosefta, Shabbat 8:9.

40. The commentaries on these passages are conveniently available in the following volumes: Sanhedre gedolah le-massekhet Sanhedrin, 5 vols. (Jerusalem, 1967–.)Google Scholar; Shitat ha-qadmonim ‘al massekhet ‘Avodah Zarah, ed. Blau, M. Y. (New York, 1969)Google Scholar; Trani, R. Isaiah di, Tosefot Rid ‘al massekhet ‘Avodah Zarah, ed. Sachs, N. (Jerusalem, 1959)Google Scholar; Abraham, R.David, b. of Posquieres, Perush ha-Rabad ‘al massekhet ‘Avodah Zarah, ed. Sofer, A. (New York, 1961).Google Scholar

41. See Tosefot Rid, ad loc.

42. Sanhedrin, loc. cit., s.v. 'ela and ‘Avodah Zarah, loc cit., s.v. u-le-ḥuqqah. The Tosafot on ‘Avodah Zarah were edited in the late thirteenth century by R. PereṢ of Corbeil, but they ultimately derive from R. Isaac of Dampierre (12th cent.). See Urbach, E. E., Ba'ale ha-tosafot, 5th ed. (Jerusalem, 1985), pp. 253–66Google Scholar, 654–58.

43. For other resolutions of the problem, see the works cited above, n. 40.

44. This is the position adopted by the Vilna Gaon and others. Cf. Be'ure ha-Gra ad Yoreh De'ah 178:1. (The GRA notes that the RaN had an approach similar to Colon's. Given Colon's extremely limited familiarity with the RaN's writings, it is doubtful that he was influenced thereby. See Woolf, “Life and Responsa of Rabbi Joseph Colon,” pp. 112–15.)

45. It should be noted, that the topic of ḥuqqot ha-‘akkum is not, to the best of my knowledge, discussed in the surviving halakhic literature of the fourteenth century (e.g., Sefer ha-‘Agudah, costumals).

46. This was based, in large part, upon the passage of 'arqeta di-mes'ana (Sanhedrin 74b), which was also addressed by Colon in shoresh 88. See the comments of R. Solomon Luria in his commentary on the Sefer MiṢvot Gadol, Neg. 50. Cf. Yam shel Shelomo, II, Baba Qamma (Stettin, n.d.), fol. 107a–b.

47. See Fuchs, A., “ha-ḥomer ha-histori bi-she'elot u-teshuvot R. Yisrael Bruna” (Ph.D. diss., Yeshiva University, 1974), pp. 209–13Google Scholar; Zimmer, E., “Men's Headcovering: The Metamorphosis of This Practice,” in Reverence, Righteousness, and Rahamanut, ed. Schacter, J. J. (Northvale, 1992), p. 334.Google Scholar Zimmer's article has recently been reprinted in expanded form as “Kisui rosh le-gevarim,” 'Olam ke-minhago noheg 17–42. The specific reference is to 23–26.

48. Terumat ha-deshen, no. 197. See the comments of Shakh, Yoreh De'ah 157: 16; Zimmer, “Men's Headcovering.” Ironically, Colon rejects this specific line of analysis in his responsum.

49. It might be objected that Bruna's invocation of ḥuqqot ha-‘akkum constitutes more of a rhetorical flourish than the invocation of a halakhic category (especially since he does not invoke any legal source for his assertion). Personally, I agree with Zimmer (“Men's Headcovering,” p. 134) that Bruna really is referring to ḥuqqot ha-'akkum in the strictly legal sense. However, for our purposes this is not really relevant. The important point is that Bruna here expresses strong opposition to Jews dressing the same as Christians.

50. Responsa, no. 34.

51. He cites both tractates, ‘Avodah Zarah and Sanhedrin, many times.

52. This becomes immediately apparent from an even cursory examination of his responsa.

53. This is in addition to the fact that it left his responsum extremely vulnerable to what would be justifiable criticism of his position. Still, caution must be exercised in evaluating this omission on Colon's part. It is possible that Messer Leon or Samuel da Modena may have addressed the issues raised by the tosafists and interpreted them in such a way as to allow the cappa, thus obviating any need for analysis by Colon. As Colon himself writes at the start of the responsum, “I have seen your words and will reply to them briefly … because you have already written more than is required” (shoresh 88, beginning).

54. It is probable that the Sefer MiṢvot Gadol (Neg. 50) also served as one of Colon's sources, since it reproduces Maimonides’ formulation, and includes a discussion of Darkhe ha-'Emori as well.

55. Hil. 'Akkum 11:1. The translation is from Maimonides, The Book of Knowledge, trans. Hyamson, M. (Jerusalem, 1962), 78b.Google Scholar R. Joseph Karo (Kesef Mishneh, ad loc.) cites Colon's interpretation of the parameters of ḥuqqot ha-'akkum as the definitive interpretation of this passage in Maimonides. See, however, the demurral of R. Joshua Falk, in Perishah, Tur, Yoreh De'ah 178:2.

56. Lev. 20:23.

57. Ibid., 18:33.

58. Deut. 12:20.

59. This conclusion is based upon extensive study of the topic, aided by the Bar-Ilan University Responsa Project CD-ROM.

60. Rambam also discusses the issue of ḥuqqot ha-'akkum in his Sefer ha-Misvot (Neg. 30): “By this prohibition we are forbidden to follow in the ways of the unbelievers and adopt their customs, even in their dress and their social gatherings. This prohibition is contained in His words (exalted be He), ‘Ye shall not walk in the customs of the nation, which I am casting out before you’ (Lev. 20:23), and is repeated in His words, ‘Neither shall ye walk in their statutes’ (Deut. 12:30)…. The prohibition on this matter is repeated in another form, in His words, ‘Take heed to thyself lest thou be ensnared to follow them’ (Deut. 12:30) … ‘be ensnared to follow them’—lest thou liken thyself to them, and follow their customs, and they become a snare unto thee. You are not to say: Since [the Idolaters] go out dressed in purple, I will go out dressed in purple; since they go out dressed in telusin—a kind of ornament worn by soldiers—even so will I go out dressed in lelusin.’” And you know the words of the prophet, ‘[I will punish …] all such as are clothed with foreign apparel’ (Zeph. 1: 8). The purpose of all this is that we should avoid the heathen and despise all his customs, even his dress.” Maimonides, The Commandments, vol. 2, trans. Chavel, Ch. (London, 1967), pp. 2829.Google Scholar It does not take much to realize that this passage recommends itself strongly as Colon's source. It contains almost all of the basic elements in the first quarter of his responsum, down to the citations from the Tosefta and Sifre. The problem is, however, that the Sefer ha-MiṢvot did not have much currency in the Middle Ages, and hence may not have been available for Colon's use, a possibility reinforced by the fact that he never refers to it anywhere else in his responsa. Hence, it is more likely that Colon himself fleshed out the implications of the conflation of the two verses as he found them in the Mishneh Torah, and arrived at his own conclusions therefrom. On the distribution of the Sefer ha-MiṢvot, see Heller, H., introduction to Sefer ha-MiṢvot (Jerusalem, 1987), pp. 14.Google Scholar

61. ‘Apparently’ because Colon's twofold categorization of ḥuqqot ha-'akkum can readily be squared with that of the tosafists. It will be recalled that the latter concluded that there were two types of forbidden Ways of the Gentiles. One was a purely idolatrous practice corresponding to Colon's first type of ḥoq. The second is described in standard versions of the comments on Sanhedrin and ‘Avodah Zarah as “their foolish and empty teaching” (torat hevel u-shetut shelahem). (The Tosafot of R. Elḥanan reads, “The teaching of idolaters and the practice of their false teaching” [dat ha-‘ovede kokhavim u-minhag torat sheqer shelahem].) These could be interpreted as relating to the nonidolatrous Gentile fashions and behavior that Colon included in his second category. Thus, there need not have been any contradiction between Colon and the tosafists. For such an interpretation, see. 'EnṢiqlopedyah Talmudit, vol. 7, 706, s.v. darkhe ha-'emori.

62. In this regard, Colon was unique among fourteenth- and fifteenth-century Ashkenazic halakhists. See Dinari, Y., ḥakhme 'Ashkenaz be-shilhe yeme ha-benayyim (Jerusalem, 1984), pp. 155–57.Google Scholar I address this point in a forthcoming article on the place of Maimonides in late medieval Ashkenazic rabbinic culture.

63. See, e.g., shorashim 96,118, 141.

64. See especially shorashim 170 and 171 on the question of engagement gifts (sivlonot).

65. See, among others, shorashim 32, 52, 76, 117, and 152. The quality of Colon's interpretations of the Mishneh Torah is attested to by the extensive citations in the Kesef Mishneh of R. Joseph Caro, the Leḥem Mishneh of R. Abraham di Boton (cf. Hil. 'Akkum 2:10), and the Mishneh la-Melekh of R. Judah Rosanes (cf. Hil. 'Ishut 9:28). Note too that Colon evidently placed special emphasis on the study of the Mishneh Torah in his academy. See ḥiddushe u-ferushe Mahariq, ed. Pines, E. D., 2nd ed. (Jerusalem, 1984), pp. 1948.Google Scholar

66. On the question of the legal sources and apodictic style of the Mishneh Torah, see shorashim 129, 132, and 176. On the place of the Palestinian Talmud therein, see the programmatic statement in shoresh 100. Concerning the issue of Maimonidean criticism generally, see Twersky, “Mishneh Torah Criticism,” pp. 161–82 and idem, Introduction to the Code of Maimonides, pp. 102–8.

67. In general, precedent has little or no binding effect in halakhah. See A. Kirschenbaum and N. Lamm, “Freedom and Constraint in the Jewish Judicial Process,” Cardozo Law Review 1 (1979): 99–133; M. Elon, ha-Mishpat ha-'Ivri, 1062–63; and Morell, S., Precedent and Judicial Discretion: The Case of Joseph ibn Lev (Atlanta, 1991).Google Scholar See now the lucid presentation provided by Lichtenstein, A. in “Legitimization of Modernity: Classical and Contemporary,” in Engaging Modernity: Rabbinic Leaders and the Challenge of the Twentieth Century, ed. Sokol, M. (Northvale, 1997), pp. 524.Google Scholar

68. The question must remain moot as to how Colon addressed the contradictory position presented by the tosafists. This is no small problem given the fact that Colon never decided between earlier authorities without demonstrating casuistically that in the case under consideration either both sides would agree or the opposing authority flew in the face of the opinion of the overwhelming majority of decisors. Concerning this phenomenon in the responsa of late medieval halakhists generally (and of Colon in particular), see Morell, Precedent and Judicial Discretion, and my study, “Samkhut u-khefifut ba-pesiqa ha-'Ashkenazit be-shilhe yeme ha-benayyim,” in Ben samkhut le-'otonomyah be-massoret Yisra'el, ed. Safrai, Z. and Saguy, A. (Tel Aviv, 1997), pp. 295–96.Google Scholar

69. Hil.'Akkum 11:3.

70. See Tur, Yoreh De'ah 178 (end). See Perishah, ad loc, no. 8. Messer Leon is cited by Colon at the end of shoresh 88.

71. Neg. 50 (end).

72. On Jewish physicians in fifteenth-century Italy, see Friedenwald, M., “Jewish Physicians in Italy,” The Jews and medicine, (Baltimore, 1944), pp. 263ff.Google Scholar; Roth, C., The Jews in the Renaissance (New York, 1959), pp. 213–34.Google Scholar

73. Concerning Italo-Jewish dress in the period, see Roth, Jews in the Renaissance, chap. 2, and Metzger, La vie juive au Moyen Age, pp. 124–145. The artistic evidence confirms Colon's judgment that Jews did not dress differently from their fellows (with the exception of the Jew-Badge when enforced). See A. Toaff, “The Jewish Badge in Italy During the 15th Century,” in Die Juden in ihrer mittelalterlichen Umwelt (Vienna, 1991), pp. 275280.Google Scholar

74. See, e.g. shoresh 169. According to Colon, minhagim were either ordained or approved by earlier rabbinic authorities. The task of the contemporary halakhist was to attempt to “reconstruct” the original legal rationale behind the custom in question. The piety of those who practiced the custom under examination was seen by him as corroborating its legitimate origins. See Woolf, “Authority of Custom,” pp. 59–66.

75. Shoresh 170. The fact that he was legitimizing a fully established phenomenon is probably a key reason for Colon's sweeping generalizations here. He was not, on the other hand, attempting to adjust Jewish law to “fit” the spirit of the Renaissance. Colon's legal method involved the evaluation of reality in light of law, not the arbitrary bending of law to reality.

76. As such, this responsum provides the student with a striking example of that “creative traditionalism” that is the overarching trait of Colon's legal writings. On the one hand, he accepts established authority or custom against those who might question or dismiss it. On the other hand, he marshals his prodigious expertise and intellectual ingenuity to create and enunciate a framework within which to understand that authority or practice. In the course of developing the latter, he follows the sources to arrive at a crystallized doctrine of ḥuqqot ha-'akkum that allows for greater flexibility of conduct than might otherwise have been deduced from the original practice.

77. Roth, A History of the Jews in Italy, (Philadelphia, 1946), pp. 153 ff.Google Scholar So rosy does the picture appear that Roth was moved to exclaim, “In no part of the world did such a feeling of friendliness prevail as in Italy between the people and the Jews” (p. 156).

78. See Burckhardt, Civilization of the Renaissance, pp. 453 ff.; Roth, History, pp. 153–257; Shulvass, “ḥayye ha-dat shel ha-Yehudim be-'ltalyah,” PAAJR 17 (1947–48 ): 15–18; Hay, D., “The Nature of Renaissance Values in the Fifteenth Century,” in The Italian Renaissance in its Historical Background (Cambridge, 1983), pp. 105–54Google Scholar; Ralph, P. L., The Renaissance in Perspective (New York, 1973)Google Scholar; R. Bonfil, “The Historian's Perception of the Jews in the Italian Renaissance: Towards a Reappraisal,” Revue des études juives 134(1984): 59–65.

79. Shulvass, “Hayye ha-dat,” pp. 1–15. Indeed, so close and understanding did relations between Jews and Christians seem to be, that one historian has recently argued that intermarriage and apostasy were dealt with with equanimity (and sometimes cordiality) by Italian Jews, something that would have been unthinkable anywhere else in the world in that period. See the striking example presented by Luzzati, M., “Per la storia degli Ebrei italiani nel Rinascimento. Matrimonii e aspostasia di Clemenza di Vitale da Pisa,” in Studi sul Medioevo cristiano offerti a Raffaello Morghen, vol. I (Rome, 1974), pp. 427–73Google Scholar [= idem, La casa dell'Ebreo: saggi sugli Ebrei a Pisa e in Toscana nel Medioevo e nel Rinascimento (Pisa, 1985), pp. 59106].Google Scholar See also Toaff, A., The Jews in Medieval Assisi: 1305–1487: A Social and Economic History of a Small Jewish Community In Italy (Florence, 1979), p. 9, n. 25Google Scholar; idem, Love, Work, and Death, pp. 5–36, 143–65; D. O. Hughes, “Distinguishing Signs: Ear-Rings, Jews and Franciscan Rhetoric in the Italian Renaissance City,” Past and Present 112 (1988): 13–17; and now C. Vivanti, “The History of the Jews in Italy and the History of Italy,”Journal of Modern History 67 (1995): 329–33.

80. See Roth, History, pp. 159–76; Milano, A., Storia degli ebrei in Italia (Turin, 1992), pp. 197209.Google Scholar

81. This would be especially true according to Roth who (following Graetz) viewed Colon as something of a reactionary. See Roth, Jews in the Renaissance, pp. 312–13 and Graetz, H., Divre yeme Yisrael, vol. 7, trans. Rabinowitz, S. P. (Warsaw, 18901898), pp. 280–82.Google Scholar

82. See, e.g., shorashim 37, 46, and 149.

83. Of course, the question then arises as to why German rabbis like Isserlein and Bruna, facing a similar sartorial reality, adopted so different a position. The answer, of course, depends upon a careful analysis of the social situation in Germany and Austria, an effort that far transcends the limits of the discussion here. However, it should be emphasized that their positions were noted here in order to present the alternative available in Ashkenazic halakhic tradition, which served as a counterpoint to the position adopted by Colon. It was certainly not the intention to imply that their stance, from the point of view of social history, was necessarily predicated upon the obverse of the circumstances which obtained in contemporary northern Italy. For one explanation of the circumstances in Germany at the time, see Zimmer, “Kisui Rosh,” p. 25. On the issue generally, see Katz, J., Exclusiveness and Tolerance (New York, 1959), pp. 8192.Google Scholar

84. Major statements of this view of Jewish-Christian relations in Italy are found in R. Bonfil, “Historian's Perception of the Jews,” pp. 59–82, and more extensively in idem, Jewish Life in Renaissance Italy. See also Ruderman, D., “The Italian Renaissance and Jewish Thought,” Renaissance Humanism: Foundations, Forms and Legacy, ed. Rabil, A. Jr, vol. 1 (Philadelphia, 1988), pp. 382433Google Scholar, and H. Tirosh-Rothschild, “Jewish Culture in Renaissance Italy: A Methodological Survey,” Italia 9 (1990): 63–96.

85. See Bonfil, R., “Societa cristiana e societa ebraica nell'Italia medievale e rinascimentale: riflessioni sul significato e sui limiti di una convergenza,” in Ebrei e Cristiani nell'Italia medievale e moderna: conversioni, scambi, contrasti: atti del VI Congresso internazionale dell'AISG, ed. Luzzati, M. (Rome, 1988), pp. 231–60.Google Scholar (My thanks to Professor Bonfil for making a copy of this study available to me.)

86. Roth, History, pp. 153–76; Hughes, “Distinguishing Signs,” pp. 18–24. See also R. Bonfil, “Some Reflections on the Place of Azariah de Rossi's Me'or 'Eynayim in the Cultural Milieu of Italian Renaissance Jewry,” in Jewish Thought in the Sixteenth Century (Cambridge, 1982), pp. 3137.Google Scholar Of particular relevance here are the doctoral degrees awarded Jews, which begin with the explicit hope that the Jewish awardee would soon leave the darkness of Judaism for the light of Christianity (ex tenebris ad lumen). See Bonfil, , ha-Rabbanut be-'Italyah be-tequfat ha-Renesans (Jerusalem, 1979), pp. 226–27Google Scholar; Colorni, V., “Spigolature su Obadia Sforno,” in Judaica minora (Milan, 1983), p. 470Google Scholar;: idem, “Sull'ammissibilità degli Ebrei alia laurea anteriormente al secolo XIX,” Ibid., pp. 473–90.

87. Cf. Roth, Jews in the Renaissance, chaps. 5–6; Yerushalmi, Y. H., introduction to Bibliographical Essays in Medieval Jewish Studies, ed. Berman, L. (New York, 1976), pp. 35.Google Scholar True, conclude the proponents of this line of argument, intergroup socializing did occur, as did instances of apostasy. These do not, however, contradict the basic reality of Jewish life in Italy, and that reality was one of separation and self-containment. See the next note.

88. This is not to suggest that defection to Gentile society did not take a toll on many Jews. The pressures of being part of a small minority, the glittering attractions of the Renaissance, considerations of affaires de coeur, added to the extreme isolation that was often the lot of the Jews in Italy, along with persistent conversionist pressures on the part of the Franciscans led quite a number of Jews to the baptismal font. Defections of this kind, as well as outside influences upon Jewish thinking and practice, are natural outcomes of minority life and do not necessarily belie the circumstances described here. On the isolation of Italian Jews, see Bonfil, R., “Hityashevutam shel Yehudim nodedim be-'Italyah be-shilhe yeme ha-benayyim,” in Hagirah ve-hityashevut be-Yisrael u-va-'Amim, ed. Shinan, A. (Jerusalem, 1982), pp. 150152Google Scholar; Toaff, Love, Work, and Death, 5–7; and idem, “Gli insediamenti askenaziti nell'Italia settentrionale,” Storia d'Italia, vol. 11 (Turin, 1996), pp. 153–71.Google Scholar Two expressions of this are found in shorashim 113 and 160. On apostasy in contemporary Italy, see M. Luzzati (ed.), Ebrei e Cristiani nell'Italia medievale e moderna; idem, “Per la storia dei rapporti fra ebrei e cristiani in Italia; demografia e insediamenti ebraici nel Rinascimento,” in Ebraismo e antiebraismo: immagine e pregiudizio, ed. Luporini, Cesare (Florence, 1989), pp. 185–91Google Scholar; and Toaff, Love, Work, and Death, pp. 143–165.

89. In this case, minhag may be considered a partially internal, legal consideration.

90. One issue that Colon does not mention, and which ought to have played a role in his analysis, is the effect of the Jew-Badge on the question of the indistinguishability of Jews and Christians. As Owen Hughes (“Distinguishing Signs,” pp. 18 ff.) has pointed out, many cities adopted the Jew-Badge during the course of the fifteenth century. The absence of such a consideration in Colon's responsum seems to support Bonfil's contention that while the Franciscans may have gotten the Badge enacted, Jews usually managed to avoid wearing it. See Bonfil, R., “ha-Yehudim be-'ezor Romanyah bi-yeme R. 'Ovadyah mi-Bartinura: qavim li-demutam ha-ḥevratit veha-tarbutit,” Pe'amim 37 (1988): 47.Google Scholar

91. At the same time, I would hesitate to suggest that this absence itself constitutes a credible argumentum e silentio for this line of argument. Even in the fifteenth century, early in the era of the printing press, the vagaries of the survival of texts in manuscript make such suggestions perilous.

92. At least as far as Jews were concerned. See J. Katz, Exclusiveness and Tolerance, pp. 143–68, and idem, Sheloshah mishpatim 'apologetiyyim be-gilgulehem,Ṣiyyon 23 (1958): 174–93Google Scholar [= Halakhah ve-qabbalah, pp. 270–90].

93. ḥadashim, no. 34. One assumes that the statuary had been deposited in pawn. The circumstances may be similar to those described by Luzzati, M., “Ebrei, chiesa locale, ‘principe’ e popolo: due episodi di distruzione di immagini sacre alia fine del Quattrocento,Quaderni storici 54 (1983): 847–77Google Scholar [= idem, La casa dell'Ebreo, pp. 203–34].

94. ḥadashim, no. 159.

95. See H. Soloveitchik, “Halakhic Texts,” pp. 153–96; idem, “Religious Law and Change,” pp. 217 ff. For discussion of a later controversy on the same topic in sixteenth-century Italy, see Cohen, G., “le-Toledot ha-polmos 'al setam yenam be-'Italyah u-meqorotav,Sinai 77 (1975): 6290.Google Scholar

96. See Soloveitchik, “Halakhic Texts,” pp. 177 ff. As Soloveitchik points out, the practice was objected to by the great twelfth-century tosafist, R. Jacob Tarn.

97. See above, n. 7.

98. Soloveitchik, “Halakhic Texts,” p. 196.

99. See Soloveitchik, Ibid., p. 78, as well as Katz, Exclusiveness and Tolerance, pp. 40–41. See Soloveitchik, “Religious Law,” pp. 217–18, for areas where setam yenam was not viewed as severely as in Ashkenaz.

100. Cohen, “ha-Maḥloqet,” pp. 62–64. Nevertheless, it is clear that in Colon's lifetime, Gentile wine was not generally drunk (Ibid., p. 65). Cf. R. Meir of Padua, Responsa, no. 76, and R. Elijah Mizrahi, Responsa, no. 54. The same is true of southern Italy, at least up to the turn of the sixteenth century, as already indicated by R. Obadiah of Bertinoro in his description of Jewish life in contemporary Sicily. See Artom, M. and David, A. (eds.), “R. ‘Ovadyah Yare mi-Bartenurah ve-'iggerotav me-'Eretz Yisra'el,” in Yehudim be-'Italyah, ed. Beinart, H. (Jerusalem, 1988), p. 55Google Scholar [= idem, Me-'Italyah li-Yerushalayim: 'iggerotav shel R. ‘Ovadyah mi-Bartenura me-'Eretz Yisraet” (Ramat-Gan, 1997), p. 38].Google Scholar See Bonfil, R., “Teyutat haṢa'ah le-yissud yeshivah bi-derom ‘Italyah beshilhe ha-me'ah ha-15,” in Sefer zikkaron le-ha-Rav YiṢḥaq Nissim, vol. 4, ed. Benayahu, M. (Jerusalem, 1985), pp. 196–97.Google Scholar

101. I say “partially” because halakhic positions should generally not be interpreted as linear consequences of contextual constraints, but primarily as the imminent consequence of textual and legal considerations. In this particular instance, as noted in the text, considerations of custom and of Colon's reverence for received French halakhic tradition were clearly major factors in his decision. (My thanks to Prof. Bonfil for a part of this formulation.)

102. Cf. Katz, Tradition and Crisis, chap. 3, and idem, Exclusiveness and Tolerance, pp. 131–42. This is not to suggest that Colon would ever have allowed the consumption of non-kosher wine. Rather, the way in which he deals with a question that at other times was packed with significance and religio-emotional voltage appears to indicate that for him the voltage was missing.

103. Shoresh 160. The text of the question alone was translated and annotated in Marcus, J. R., The Jew in the Medieval World (New York, 1972), pp. 389–93.Google Scholar

104. The events described took place in the spring of 1470 (Adar, 5230).

105. The case is summarized in Simonsohn, S., The Jews in the Duchy of Milan, vol. 1 (Tel Aviv, 1982), no. 1200 (pp. 506–7).Google Scholar

106. While Cohen clearly resented his wife's importunings (“va-taqom le-satan li”), he admits that her request was reasonable (“devarim shel ta'am”).

107. See Yevamot 44a ff.; Hil. ‘Issure Bi'ah 18:17–30; Tur, Even ha-'Ezer 7.

108. Cf. shorashim 29, 32, 71, 86, 129, 101, 170, 171, 184, and ḥadashim, nos. 21, 25, 29, and 30. In the end, ḥakim/Falcone had his way, and stayed with his family in Pavia. From there, in August 1479, he applied to Duke Giangaleazzo II Sforza of Milan for permission for Jews to gamble in his inn. See Simonsohn, Jews in the Duchy of Milan, vol. 2, no. 1917 (pp. 798–99).

109. Gerald Blidstein notes that while the general trend in Ashkenaz was to be lenient in cases of “captive women,” nevertheless, this passage of Colon's responsum stands out as unique. Blidstein, G., “Ma'amadan shel nashim meshummadot u-shevuyot ba-halakhah shel yeme ha-benayyim,Shenaton ha-mishpat ha-'Ivri 3–4 (19761977): 80, n. 163.Google Scholar

110. I.e., sexual relations.

111. Shoresh 160.

112. Shulvass (“ḥayye ha-dat,” p. 17) agrees with this evaluation of Colon's attitude, though he derives the opposite conclusion therefrom.

113. Cf. Berger, D., The Jewish-Christian Debate in the High Middle Ages (Philadelphia, 1979), p. 27Google Scholar, n.71 and now, idem, ‘'Al tadmitam ve-goralam shel ha-goyyim be-sifrut ha-polmos ha 'Ashkenazit,’ Yehudim mul ha-Ṣelav: gezerot 856 ba-hisloriya u-va-historyograjyah, ed. Assis, Yom Tov, (Jerusalem, 2000), pp. 7879.Google Scholar

114. See Bonfil, “Societa cristiana e societa ebraica,” pp. 149–51. Bonfil's presentation and analysis of this responsum fundamentally accord with that presented here.

115. Exclusiveness and Tolerance, pp. 162 ff. Katz is referring to Eastern Europe from the sixteenth century onward. See Katz, Tradition and Crisis, pt. I, as well as Ben-Sasson, H. H., Hagut ve-hanhagah (Jerusalem, 1959)Google Scholar and Bonfil, “Azariah de Rossi,” pp. 34–35.

116. In this connection it should be emphasized that it was decidedly not my intention to imply that the more severe tosafist/German position on ḥuqqot ha-'akkum constitutes testimony that assimilation was a problem in medieval Franco-Germany, and a fortiori not in late-medieval Germany. The classic tosafist position was clearly based solely upon objective considerations of text interpretation (i.e. the contradiction between the passages in Sanhedrin and 'Avodah Zarah). It was Colon who changed the fundamental parameters of the discussion with the results portrayed herein.

117. Per contra, the intensification of a sense of being “threatened” by the outside world could lead to the opposite development. See, e.g., Samet, M., “Halakhah u-reformah” (Ph.D. diss., Hebrew University, 1967)Google Scholar, pt. Ill, and the studies collected in Katz, J., ha-Halakhah ba-mesar: mikhsholim 'al derekh ha-'ortodoksyah be-hithavutah (Jerusalem, 1992).Google Scholar However, any and all conclusions in this matter must be contingent upon careful, localized case studies.

118. One must especially single out the researches of Professor Reuven Bonfil of the Hebrew University and Dr. Elliott Horowitz of Bar-Ilan University as exceptional in this regard.

119. See Twersky, I., Rabad of Posquières: A Medieval Talmudist, 2nd ed. (Philadelphia, 1980), p. 1.Google Scholar

120. This is opposed to the use of halakhic material as a source for historical facts and realia.See Soloveitchik, “Halakhic Texts,” pp. 153–54, and my article “ReṢef ve-ḥiddush be-sh. u-t. ziqne Yehudah le-Rabi Yehudah Aryeh Modena,” in Magen va-ḥerev: ‘iyyunim be-ḥayyav u-ve-mishnato shel rabi Yehudah Aryeh Modena, ed. David Malkiel (Jerusalem: Yad Ben Zvi, [Forthcoming].

121. See Soloveitchik, “Religious Law and Change,” pp. 211–13.

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