The first halakhic code.
Reprinted with the author's permission from Jewish Law: History, Sources, Principles (Jewish Publication Society).
Commencing with the eighth century C.E., the considerable halakhic literature of the geonic era that is extant reveals ever-increasing activity in regard to codification of the halakhah. The codificatory literature of this period took several forms, but the feature common to them all is that they are books of halakhot, i.e., their declared aim is to present the halakhic conclusion and final ruling after a concise discussion of the underlying talmudic and post-talmudic sources.
The first such book of known authorship written after the completion of the Talmud is Sefer ha-She'iltot by Aha from the town of Shabha near Basra in Babylonia, who lived in the first half of the eighth century C.E. Aha was not officially designated as gaon. As Sherira Gaon relates, Aha was a candidate for the office of gaon in the academy of Pumbedita, but Exilarch Solomon b. Hasdai appointed Natronoi Kahana, who was a student of Aha, whereupon Aha settled in the Land of Israel, where he resided until he died.
Nature and Purpose of Sefer ha-She'iltot
Scholars have extensively considered the nature and purpose of Sefer ha-She'iltot. The most likely hypothesis is that it is essentially a collection of sermons. It is in the same style and form as the sermons that the leading Sages, as early as in the talmudic era, would deliver on sabbaths and various other occasions. However, Assaf wrote, "it is more halakhic than aggadic; its codificatory motive is quite prominent and it very soon came to be used and relied upon to provide the answers to practical legal questions."
Aggadic Form, Halakhic Content
Sefer ha-She'iltot is unique in its literary form. It is not arranged either by subject or in the order of the talmudic tractates, but rather, like midrashic literature, follows the sequence of the Torah. Each she'ilta (singular of she'iltot -- the origin of the term is explained below) discusses a particular halakhic subject that is conjoined to the biblical passage directly relevant or otherwise appropriate to it. Interestingly, in the case of some of the she'iltot, the passage to which the she'ilta is linked does not contain the halakhic source on the particular subject, but merely refers to the subject in the course of a narrative.
For example, the laws of robbery and theft in Sefer ha-She'iltot are not linked to the verses that are their halakhic source, but to the passage relating the story of Noah and the Flood, where it is said: "The earth is filled with hamas [lawlessness, violence, or oppression, connoting lack of respect for property] because of them; I am about to destroy them with the earth." Thus, she'ilta 4, to the biblical portion of Noah, begins:
"It is forbidden for Jews to rob or steal from one another; indeed the punishment for these transgressions is more severe than for [violations of] all [other] prohibitions. Thus we find in the case of the generation of the Flood that their doom was sealed only on account of robbery. As R. Eleazar said: "Come and see how severe is the effect of lawlessness (hamas), for the generation of the Flood was guilty of every transgression, but their doom was sealed only on account of hamas, as it is said, 'For the earth is filled with lawlessness because of them; I am about to destroy them with the earth.'"
After some aggadic reflections, the she'ilta goes on to discuss the substance of the laws of robbery and theft.
Similarly, an extensive discussion of the law of betrothal and marriage, particularly betrothal through an agent, is presented in she'iltot 16 and 17 in connection with Genesis 24, which tells of the marriage of Isaac and the appointment of Abraham's servant, Eliezer, as agent to betroth a wife for Isaac.
Likewise, the laws of bailees, for which the source is Exodus 22:6, are discussed in she'ilta 20 on Genesis 29: 15, which tells of the entrustment of Laban's flocks to Jacob. The laws of suretyship are presented in she'ilta 33 in connection with the story of Judah's undertaking to Jacob to be surety for Benjamin's safety, in which Judah said: "I myself will be surety for him; you may hold me responsible." The beginning of this she'ilta has an ethical-aggadic flavor:
"The House of Israel are duty bound to have compassion one for another. Whoever needs sustenance should be sustained, and whoever needs a loan should be granted it. If one grants a loan guaranteed by a surety, he should claim in the first instance not against the surety but against the debtor; only if the debtor does not repay should he proceed against the surety."
The structure of the she'iltot is also unique. A complete she'ilta consists of four parts. The first is a kind of general introduction to the central halakhic subject to be discussed. This part reviews the ethical-religious value involved, together with pertinent halakhic material. The second part sets forth a pertinent halakhic problem opening (in Aramaic) with "But you must learn."
The third part is the discourse, opening with "Blessed be the Name of the Holy One, blessed be He, who has bestowed upon us Torah and commandments through Moses, our teacher, in order to teach His people, the House of Israel." In this part, the subject is discussed at length in full detail, heavily spiced with halakhic and aggadic sources. The fourth part gives the answer to the specific halakhic problem initially posed, and opens: "And as to the query we posed to you" (a convention of humility -- the accurate introductory formula would be "as to the question that you asked me").
It is by reason of the Aramaic formula introducing the fourth part -- u-Ie-inyan she'ilta di-sha'ilna -- that the book is called Sefer ha-She'iltot. As it has reached us, most she'iltot are lacking various parts, mainly the "discourse. "
Relation to Subsequent Codes
From this brief description of Sefer ha-She'iltot, its characteristic feature is clear: halakhah and aggadah are employed together in the style of the ancient discourses, with a view to determining halakhic conclusions. A comparison with the usual forms of codificatory literature raises the question as to whether this book should really be classified in that category.
However, there are two reasons why Sefer ha-She'iltot must be considered before discussing the books of halakhot produced in the geonic period. First, Sefer ha-She'iltot brings together in one place a substantial number of problems and laws in various halakhic areas, and one of its purposes is to set forth correctly the controlling law and make clear the reason for the legal conclusion. Second, Sefer ha-She'iltot served as an important and highly authoritative source for a series of classic books of halakhot written subsequently, as indicated by the following statement of Abraham ibn Daud in his Sefer ha-Kabbalah:
"After R. Samuel bar Mari there was a great scholar [by the name of] R. Aha of Shabha, who composed his She'iltot on all the commandments specified in the Torah. This book, which has survived to this day, was examined and scrutinized by all who lived after him; we have heard that to this day not a single error has been detected in it."
Genesis of Sefer ha-She'iltot
A tradition regarding the composition of Sefer ha-She'iltot reported by Menahem Meiri has evoked considerable wonder and speculation among scholars. In Bet ha-Behirah, Meiri wrote:
"We have a clear tradition about R. Aha, of blessed memory, that he had a son who was not at all inclined to study. He therefore composed for him Sefer ha-She'iltot, so that on every sabbath, as the weekly Torah portion would be read, there would be explained to him through the book well-known laws from the Talmud."
However, without entering into the specific details of this tradition, it should be pointed out that its basic concept -- the objective of composing a concise halakhic work understandable by young and old, scholar and layman -- appears often in one form or another in the works of quite a number of codifiers. This objective is no reason for wonderment: it is implicit in the very concept of a code summarizing Jewish law -- or the law of any legal system.
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