Reprinted with the author’s permission from Jewish Law: History, Sources, Principles (Jewish Publication Society).
As might have been expected, the boldly innovative form of Maimonides’ code aroused fierce debate and sharp critical reaction, some of which was directed at Maimonides during his lifetime. His replies bespeak his deep conviction of the correctness of his approach and of the vital need of the Jewish legal system for his work. However, most of the criticism arose after Maimonides’ death and generated profound and penetrating debates about the nature and methodology of Jewish legal codification.
Rabad: Maimonides’ Most Severe Critic
Maimonides’ severest critic arose in his own lifetime: Abraham b. David (Rabad) of Provence. Rabad, known as one of the greatest halakhic authorities, was the head of a yeshivah in Posquieres. He appreciated some of the extraordinary merits of the Mishneh Torah and expressed agreement with many of the laws in it.
His severe strictures on the Mishneh Torah were certainly not intended ad hominem or as an expression of personal pique or anger. Nor was he jealous of the fame of Maimonides’ Mishneh Torah, which was never achieved by the comprehensive book of halakhot written (according to some scholars) by Rabad but no longer extant.
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Rabad’s strong disagreement was with Maimonides’ method of declaring the law without citing the sources and without setting out the range of opinions on each legal issue–information which is vital to the very essence of Jewish law and to the methodology of halakhic decision making.
Rabad took aim at this feature of Maimonides’ code from the very start, in the first of his critical glosses (hassagot) to Maimonides’ Introduction to the Mishneh Torah.
Against that very "revolutionary" passage of Maimonides–"Hence, I have entitled this work Mishneh Torah, for the reason that a person who first reads the Torah and then this work will know from it all of the Oral Law, and there will be no need to read any other book [written] between them"–Rabad leveled the following charge:
"Abraham [Rabad] says: He sought to improve, but he did not improve, for he has forsaken the method of all authors who preceded him; they adduced proof and cited the authority for their statements. This [traditional method] was of great value, for often a judge is inclined to declare something prohibited or permitted on the basis of a particular source, but if he knew that an authority greater than himself took a different view, he would change his mind.
Now, I do not know why I should retract my tradition and my proof on account of the work of this author [Maimonides]. If the one who takes issue with me is greater than I, well and good; but if I am greater than he, why should I yield my opinion in favor of his? Furthermore, on some matters the geonim were divided, and this author chose one opinion [over the others] and put it in his book.
Why should I be governed by his choice if it seems wrong to me, and I do not know whether the holder of the opposing view is entitled to deference? This is simply overweening pride in him."
Arguments for Independent Judgment
In Rabad’s opinion, the Mishneh Torah‘s statement of only a single unattributed view deprives the judge of the means to make up his own mind and impairs his power of decision.
The judge may be aware of an opinion opposed to the one stated in the Mishneh Torah, but he cannot know which opinion should prevail, because he does not know the weight of the nameless authority whose view is set forth in the Mishneh Torah. The judge may sometimes be unaware of a difference of opinion among the geonim, which, had he known of it, he would have, in the exercise of his independent judgment, resolved one way; but Maimonides’ method of stating the law has preempted this opportunity and has decided the case for him the other way.
The effect is to deny the judge the power of independent judgment essential to his basic function, which is to decide the case before him.
Rabad was not content merely to express general opposition in principle to Maimonides’ methodology. He was justified in his fear that a work so excellent and comprehensive and so easy to study and understand would gradually supplant the study of all the rest of halakhic literature.
Therefore, in spite of his advanced age, he reviewed the entire Mishneh Torah and wrote critical glosses to many of the laws it contains. These glosses were terse, and often sharp. Their object was to draw attention to incongruities and inconsistencies between the law as set forth by Maimonides and the law in the talmudic sources, and to instances where Maimonides reached legal conclusions on the basis of halakhic methods and analyses that were not generally accepted.
In this way, Rabad hoped to impel the readers of Maimonides’ code to check the correctness of Maimonides’ statements against the talmudic sources and the geonic literature.
Asheri’s Reaction
Criticism of Maimonides’ codificatory methodology continued after the time of Rabad and his contemporaries. Some of it even came from halakhic authorities who esteemed Maimonides’ work highly and made considerable use of it in their own writings.
The severest reaction–and the one having the greatest consequence–came about a century later from one of the great halakhic codifiers and commentators, Asheri (Asher b. Jehiel, also known as Rosh), the outstanding disciple of Meir of Rothenburg (Maharam). After the death of Maharam, Asheri became the leader of Ashkenazic Jewry and later settled in Spain, where he became one of the foremost halakhic authorities and leaders in that Jewish center as well.
Asheri expressed his opposition to the Mishneh Torah in a case referred to him for review after it had been decided by another judge. A judge named Mazli’ah had rendered a decision on a certain issue on the basis of the Mishneh Torah. Asheri ruled that the decision was erroneous. By a close study of the talmudic source for Maimonides’ statement, Asheri established that Mazli’ah had misunderstood Maimonides’ meaning. Mazli’ah’s failure to consult the talmudic source moved Asheri to conclude his responsum with the following highly significant comment:
"Anyone who decides cases on the basis of the law set forth by Maimonides, of blessed memory, errs if he is not sufficiently expert in gemara to be aware of Maimonides’ sources. Such a judge renders decisions permitting what is forbidden and forbidding what is permitted.
For he [Maimonides] did not follow the lead of other authors who adduced proofs for their opinions and provided source references that enable him [the reader] to grasp the underlying principle and arrive at the truth of the matter. Instead, he [Maimonides] wrote his book like one delivering a prophetic message from the Almighty, providing neither reason nor proof. Thus, anyone reading it [Mishneh Torah] imagines that he understands it, but he really does not. For if he is not expert in gemara, he cannot really and truly understand the subject, and he will err in the decisions he renders and the legal pronouncements he makes. Let no one, therefore, rely upon his reading of his [Maimonides’] book to give judgment or make legal pronouncements unless he [also] finds support in the gemara [for the law as stated by Maimonides]."
Debating the Function of a Legal Code
Asheri thus categorically rejected Maimonides’ main objective. According to Asheri, the function of a halakhic code is not, as Maimonides thought, to be the sole work that needs to be consulted in determining the law and in rendering decisions; relying solely on such a book for these purposes is likely to lead to misunderstanding of what has been written in categorical and monolithic form.
According to Asheri, the aim of a codificatory work is not to be a self-sufficient source; it is rather to be used in connection with the talmudic sources of the laws it seeks to summarize. Only by keeping close to the sources of a legal rule can one arrive at the true meaning of the rule stated in the code.
Asheri’s view of the limited function and authority of a codificatory work corresponds to his view of the process of legal decision making. He held that a judge is bound only by "the Talmud as compiled by R. Ashi and Ravina." When the judge has clear and convincing arguments for his own view, he is free to differ with rulings made by post-talmudic halakhic authorities (including the geonim) that are not explicitly rooted in the Talmud itself. Therefore, he needs to have before him all opinions on a subject in order to be able to decide which one to accept.
Apart from the concern about possible mistakes in the code and the difficulties of truly understanding the law solely from its text, Maimonides’ central idea that the Mishneh Torah should serve as the exclusive and binding code runs counter to the very nature of Jewish law, in which multiplicity of opinions is a positive and vital feature. Jewish law does not recognize any decision made after the completion of the Talmud as final and beyond challenge. No book of pesakim, however masterly, can be the sole source for legal decisions; that prerogative is reserved for the Talmud alone.
Justice Menachem Elon has had a long and distinguished career as a legal scholar. He is a retired professor of Jewish Law at the Hebrew University in Jerusalem, and a prolific author on Jewish Law. In 1977 Justice Elon was appointed to the Supreme Court of Israel and served as its Deputy President from 1988 until 1993. He lives in Jerusalem.
Talmud
Pronounced: TALL-mud, Origin: Hebrew, the set of teachings and commentaries on the Torah that form the basis for Jewish law. Comprised of the Mishnah and the Gemara, it contains the opinions of thousands of rabbis from different periods in Jewish history.
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Torah
Pronunced: TORE-uh, Origin: Hebrew, the Five Books of Moses.
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