The Yerushalmi as a Source of Halacha
Guest post by R. Michael J. Broyde
Rabbi Michael Broyde is a law professor at Emory, was the founding rabbi of the Young Israel in Atlanta and is a dayan in the Beth Din of America. He can be reached at [email protected]
Since I stepped down from being the active rabbi of the shul I founded, I have found myself immersed in very intense learning li-shmah again as a major component of my time. Having been relieved of the duty of answering congregants’ many questions, I have spent that free time learning Yerushalmi (Jerusalem Talmud) beiyun, in depth (for the first time, to my terrible embarrassment). It has been more than three years now and I am nearly finished with my first Yerushalmi cycle. Allow me to share some thoughts.
The touchtstone document of halacha is without a doubt the Talmud; more specifically, the Babylonian Talmud (Bavli). Rif (Eruvin 27a), Rambam (in his introduction to Mishneh Torah), and Rosh (Sanhedrin 4:5) note that the basic doctrine of Jewish law is the supremacy of the Babylonian Talmud. What, however, is the status of the Jerusalem Talmud? There are, I believe, two distinctly different schools of thought. One view in the Rishonim and Acharonim posits that the Jerusalem Talmud is a very secondary document, close to irrelevant and can be virtually ignored.
The other view sees the Jerusalem Talmud as a central document of halacha, and one should therefore interpret the Bavli in light of the Yerushalmi. As Rabbi Joseph Karo writes (Kessef Mishneh, Gerushin 13:18), “Any way that we can interpret the Bavli to prevent it from arguing with the Yerushalmi is better, even if the explanation is a bit forced (דחוק קצת).” To recast this in a slightly stronger way, it is well-nigh impossible to determine the halacha, in this view, without a firm grasp of the Yerushalmi because one cannot always adopt as halachically normative the best and simplest explanation of the Bavli—a difficult explanation of the Bavli that is consistent with the Yerushalmi is better as a matter of normative Jewish law than a better explanation of the Bavli that is inconsistent with the Yerushalmi. So claims the Bet Yosef.
Anyone who is a regular learner of the Rashba or Ritva, who has seen Rambam’s Hilchot ha-Yerushalmi (ed. R. S. Lieberman), or who has learned Rabbeinu Chananel regularly sees that these Rishonim were clear masters of the Yerushalmi as well as the Bavli. Such is not the case for Rashi and his disciples, who make almost no use of the Yerushalmi and did not seem to think themselves any the worse for it. Indeed, a common methodological insight of the mainstream Ashkenazic commentators is that they seldom use the Yerushalmi (except, perhaps, Ra’aviyah). Mordechai, Maharam, Yereim, Semak, et. al. nearly never cite the Yerushalmi.
For an example of the approach of Tosafot, see B.Berachot 11b, s.v. she-kevar niftar, where Tosafot state in response to a difficulty presented by a Yerushalmi: “And Ri answers that we do not accept this Yerushalmi since our Talmud does not quote it.” According to Ri, sources not cited in “our Talmud” [the Bavli] are not binding. Indeed, the formulation of “I found in the Yerushalmi” (matzati biyerushalmi)—invoking the phrase “I found,” which Tosafot do not use in reference to the Bavli—reflects this lack of familiarity.
This same divergence continues for centuries, with some halachic authorities seeking detailed, close study of the Yerushalmi and others essentially ignoring it. For example, anyone who closely studies Aruch ha-Shulchan sees that he regularly cites the Yerushalmi. His quotes frequently reflect that he is a regular student of the Yerushalmi with novel and fluent insights. This is not the case for the Mishnah Berurah, who never quotes the Yerushalmi except when it is quoted by others. The same is true for Igrot Moshe and Dibrot Moshe. Rav Moshe Feinstein’s fluency with the Bavli is amazing and his insights are beyond compare. But in my study of both Dibrot Moshe and Igrot Moshe, I cannot recall finding a single novel citation to the Yerushalmi by Rav Moshe.
The writings of Rabbi Soloveitchik, which contain numerous truly insightful comments on the Bavli yet not a single real chiddush on the Yerushalmi, also reflect a certain insight into the Brisker approach to the Rambam. Indeed, the Rav seemed almost comfortably indifferent to the Yerushalmi’s role in the Mishneh Torah. Consider the comments in Shiurim le-Zecher Avi Mori 1:118–120, addressing the wearing of tefillin on Chol ha-Moed, which contains an insightful observation on the nature of tefillin on Chol ha-Moed but completely ignores the relevant Yerushalmi that is clear and contrary to his thesis. Indeed, that the followers of the Brisker approach methodologically insist on harmonizing Rambam with the Bavli, even when there is considerable evidence that Rambam draws from a broader range of sources, is more than a bit disquieting. In light of Yerushalmi Moed Katan 3:4 which states explicitly that one should wear tefillin on Chol ha-Moed, and the only ambiguity within the Rambam regarding the wearing of tefillin on Chol ha-Moed, this author is inclined to think that Rambam rules that one must wear tefillin on Chol ha-Moed, and that the entire approach in Shiurim le-Zecher Avi Mori 1:118–120 is thus difficult.
This same difference proves to be quite important, I suspect, in many halachic constructs, where a less than ideal explanation of the Bavli harmonizes it with the Yerushalmi and the ideal explanation of the Bavli is completely inconsistent with the Yerushalmi. What to do in that situation remains a vast dispute among Poskim. Consider, for example, four examples that I happen to have written about or am writing about currently—tefillin on Chol ha-Moed, aliyot in a city where all the men are kohanim, whether the daughter of a gentile man and Jewish woman may marry a Kohen, and the of using charity funds to build synagogues rather than to support the poor.
In all four cases, the Bavli is silent while the Yerushalmi directly addresses the matter. On the topic of tefillin on Chol ha-Moed, Y.Moed Katan 3:4 is clear that tefillin should be worn; in Y.Gittin 5:9 it is clear that even in a city where all the men are kohanim, women do not get called to the Torah; Y.Yevamot 4:15 is clear that such a woman cannot marry a Kohen; and in Y.Peah 8:8 it is clear that a synagogue is a valid recipient of charity. Although it is obvious that each of these four matters generates some controversy among the Poskim, I suspect that the core dispute is whether one needs to adopt the halachic norm as expressed by the Jerusalem Talmud. Much more could be written on this matter.
A good claim could be made that Rambam did not fall clearly into either of these camps and his exact methodology for resolving Talmudic disputes remains cloaked in mystery. However, it is clear that he was quite familiar with the Yerushalmi and sometimes accepted its rulings even when they stood in opposition to apparent rulings of the Bavli. My own intuition is that Rambam used logical tools to resolve disputes and was not even fully wedded to the notion of the complete superiority of the Bavli over the Yerushalmi in all cases. That Rambam does not follow normal rules of decision is widely noted. (See Sedei Chemed, Kelalei ha-Poskim vol. 9, siman 5. See also numerous such references in the Tosafot Yom Tov; Rashba, Ketubot 48a, s.v. amar Rav; idem, Nedarim 46a, s.v. mistavra; Ritva, Moed Katan 8b, s.v. ika beinaihu; Yam Shel Shlomo, Yevamot 8:18; Penei Yehoshua, Gittin 84b, s.v. ve-nir’eh le-Ri; Chatam Sofer, Avodah Zarah 34a, s.v. ve-ana kevedah [perhaps].)
The more I immerse myself in the study of Talmud, the more I understand the reference to the “sea of the talmud.” It is not called a “sea of Talmud” because (as some have joked) it is so easy to drown in it. Rather it is because no matter how much time you spend in it, it is so hard to understand its many currents, ebbs and flows. Just when you think you understand how the sea works, you learn something new about it.
 Contrary to this is Louis Ginzberg’s astounding assertion that Rashi’s “classic work would have gained much” had he employed the Yerushalmi more frequently [p. xlix of his Commentary to Y.Berachot].
 My eldest son, Joshua Broyde, recently suggested that Rambam had an affinity to accept Talmudic views that are supported by logic over views supported by scriptural verses. As an initial proof to this proposition, Joshua cites four examples from Tractate Sanhedrin: 8b, R. Yose omer; 10a, Rava amar malkot bimkom mitah; 30a-b, R. Natan ve-R. Yehoshua ben Korchah; and 16b, R. Shimon hayah doresh ta’ama de-kra.
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