Guest post by R. Michael J. Broyde
Rabbi Michael Broyde is a law professor at Emory University, was the founding rabbi of the Young Israel in Atlanta and is a dayan in the Beth Din of America.
I have been working for a few years on the methodology of the Mishnah Berurah and the Aruch Hashulchan. It has been very intellectually rewarding and the first fruits of this effort has appeared in print entitled “The Codification of Jewish Law and an Introduction to the Jurisprudence of the Mishnah Berurah” (below) which was published in the Hamline Law Review volume in memory of David Cobin.
I hope over the course of the next year to publish a sefer on the methodology of the Mishnah Berurah which completes this article and then go on to finish my work on the Aruch Hashulchan‘s writing in Orach Chaim — and then on from there, I hope. For this article, I was blessed with an absolutely brilliant co-author, Rabbi Ira Bedzow, who is a graduate student at Emory and a student with me in our dayanut kollel in Atlanta.
A few brief words of introduction to the article might help.
The influence of two halachic giants from the end of the nineteenth century remains strong to this day. The first, Rabbi Yechiel Epstein, was the author of the Aruch HaShulchan, a novel and innovative work, with a simple organizational structure, which is grounded in the Talmud and classical post-Talmudic codes. On the methodological level, the Aruch HaShulchan is a fairly simple work. It has only two principles, Talmudic correctness and contemporary practice in Lita. Other opinions are rejected simply as “wrong,” and the complexity of the work is limited to determining talmudic correctness (no small feat) and harmonizing that with minhag Lita.
The second giant, and the methodological opposite to Rabbi Epstein, is Rabbi Israel Meir Kagan of Radin, the author of the Mishnah Berurah. At the foundational level, the Mishnah Berurah assumes that virtually all disputes of Jewish law and Talmudic understanding are irresolvable. “Correct” practice is therefore difficult to discern, and the defense of custom is not a sole justification for Jewish law. Moreover, according to Rabbi Kagan, the Shulchan Aruch, the supposed “set table of easily understood rulings for daily practice,” is not really as clear-cut as Rabbi Yosef Karo asserted. Rabbi Kagan, therefore, decided to write a jurisprudential masterpiece so as to elucidate for the layperson and legal scholar alike both what should be the normative halachic practice and why it should be so, both for complicated halachic matters and for simple practices of daily life.
The article is an initial analysis of Rabbi Kagan’s jurisprudential methodology as well as an introduction to the codification of Jewish law and the methodology of codification more generally. Soon to be part of a larger work, this article provides the basics in understanding the history and development of Jewish law and the uniqueness of Rabbi Kagan in this milieu. The article shows that in order to balance opposing forces of tradition and modernity, the Mishnah Berurah attempts to provide definitive halachic guidance to every question of Jewish law based on four central questions:
1. What is the common halachic practice of the community in a given situation? Does more than one minhag exist?
2. What is the spectrum of answers provided by the poskim to the question at hand?
3. What are the minimum halachic requirements one should try to fulfill?
4. How can one maximize observance in order to enhance his relationship with God?
To answer these central questions, the Mishnah Berurah’s methodology utilizes ten main halachic principles, which range from seeking the relevance of a position, to avoiding situations that result in trying to negotiate between conflicting priorities, to explaining why certain unsupported customs might be permissible. He also attempts to minimize the inherent tensions between Kabbalah and the Talmud, as well as incorporate the positions of the Gra, despite the fact that the Gra’s approach is diametrically opposed to the Mishnah Berurah‘s inclusive and holistic priorities.
After a long discussion of the theory behind the jurisprudence of the Mishnah Berurah, the article provides three examples to show how it works in practice. The examples range from intersex in Jewish law to the demarcation of public and private domains to wearing the tefillin of Rabbenu Tam and wearing tefillin on Chol HaMoed.
This article — and the book that will follow it — shows, I hope, that the complexity of the resolution of disputes in the Mishnah Berurah is not to be understated and that the work has a well nigh unique derech hora’ah.
I welcome comments, here or via e-mail.
P.S. We are already aware of the error in footnote 36 and the material related to that.
I always wondered — if the goal was to be a “Shulchan Aruch”, then I understand R’ Ovadiah shlit’as opinion that any stam v’yesh means: “the halacha is like the stam. By the way, you may see some people doing the yesh.” But according to other Sephardi poskim, that the Mechaber was inconclusive on stam v’yeshes, well then what exactly was the goal of the sefer?
Will the book be in Hebrew or English (or, theoretically, some other language)?
Rabbi Poupko, presumably, since Kagan is just a version of Kohen.
“His surname, Poupko, is not widely known”
Altough the Talkbacks on the wiki entry raise some questions about whether the Poupko name is actually correct. Although the current Encyclopedia Judaica does write:
“His surname Poupko is hardly known, nor is he referred to by his own name, but he became universally known as Ḥafeẓ Ḥayyim, after the title of his first work.”
OMG.I have read the first six pages of this article and this work is extraordinarily well done. Wow.
And here is the letterhead with the name Kagan, after all.
I wonder what the Encyclopedia Judaica was thinking?
I was told (by Poupkos) that he changed his last name because of government problems.
Poupko was his mother’s name. Back then, your legal name could be your mother’s name, especially if your parents’ marriage wasn’t recognized by the state. (I.e., they had a religious marriage but not a civil one, as was the case for many.) Since people seldom interacted with the state back then, this might only come up years later, say when you applied for a passport. Kagan/Cohen was, of course, his father’s name.
This happened to my own grandfather- he went by “Kupferman” for decades- we have cards of his with this name- until he moved to the US and, applying for a passport, was told by the Polish government that his name was Lamm, and so it remains. He never changed it back, as it’s easier to write “Lamm” (among other reasons). 🙂
But back to R’ Broyde: Wow, what a piece.
Is it true that the Chafetz Chaim’s views on Rabbenu Tam tefillin were influenced by the forged Yerushalmi on Kodshim?
fwiw r’hs claims that the c”c acted as general editor but sections (iirc more than a few) were written by others (this “explains” stirot – rather than brisker meta analysis). If so, some of the data used in reverse engineering methodology may be from more than one generating function (although likely one of a similar class)<wow-sounded like i might actually partially remember the old exams)
from a recent r’ aviner:
Q: Did the Chafetz Chaim put on Rabbenu Tam Tefillin?
A: Reb Leib, the son of the Chafetz Chaim, relates that the reason his father put on both Rashi and Rabbenu Tam Tefillin was not because he had lived among Chasidim during the First World War and wished to act as they did, but because of the tractate of the Jerusalem Talmud that had been “discovered” which mentioned Rabbenu Tam’s position. When it later became known that this tractate of the Jerusalem Talmud was a forgery, he continued to put on Rabbenu Tam Tefillin since he had already begun to do so (Michtavei Ha-Rav Chafetz Chaim, p. 27. But see other explanations in Meir Einei Yisrael pp. 419-420. A Chasid once asked Ha-Rav Yaakov Kamenetzky why he did not put on Rabbenu Tam Tefillin, and he responded that it is not the Lithuanian Minhag. The Chasid said: But the Chafetz Chaim put them on? Ha-Rav Kamenetzky said that the Chafetz Chaim did not put them on until the age of 90, and if he reaches the age of 90 – he’ll put them on as well. And that is exactly what he did on his 90th birthday. In the book “Rebbe Yaakov”, pp. 424-425).
A minor nit I noticed while printing the article to read later–the boundary between the Rishonim and Acharonim is generally taken to be sometime during the career of the Mechaber which would place it in the middle of the 16th century rather than at the beginning of the 15th. Certainly Terumat Hadeshen (mid 15th century) is a Rishon. Actually I remember doing a bit of Purim Torah in my youth about the Mechaber waking up one day somewhere in between Kesef Mishna and Shulchan Aruch and giving a speech “Today I am an Acharon”
is the file link working or is that my pc or firewall ?
Is this really Rabbi Broyde, or is this Rabbi Simcha Fishbane writing pseudepigraphically?
R’ Fishbane wrote two books on the methodologies of the MB (his dissertation) and the AhS (a later collection of articles):
The Method and Meaning of the Mishnah Berurah (1991); and
The Boldness of a Halakhist: An Analysis of the Writings of Rabbi Yechiel Mechel Halevi Epstein, “The Arukh Hashulhan” (2008)
Whereas I had the impression from some of my teachers that the stam is the baseline halacha, while the v’yesh is a suggestion of a better way to go. Esp. since the v’yesh is often more machmir than the stam.
The Rema is often more explicit about this, e.g. YD 89:2 about eating meat after cheese: yesh machmirin to wait between cheese & meat, vechein nohagin for hard cheese (v. Zohar) v’yesh makilin only to rinse the mouth and wash the hands, mihu tov lehachmir. In either case the position is more stringent than the halacha in the Mechaber. and the Rema is steering you towards the more machmir of the two.
Mike S. : A minor nit I noticed while printing the article to read later–the boundary between the Rishonim and Acharonim is generally taken to be sometime during the career of the Mechaber which would place it in the middle of the 16th century rather than at the beginning of the 15th. Certainly Terumat Hadeshen (mid 15th century) is a Rishon…
Since identifying periodicization boundaries falls perhaps a tad short of the precision with which we estimate, say, the fine structure constant, a bit of humility might be in order before asserting that anybody near the perceived divide is “certainly.. a rishon”. In fact a highly defensible position (to which i also subscribe) is that t’rumas haddeshen and maharil are indeed early acharonim. With the “line” drawn coincident with the major outbreak of the black death in the middle of the previous century. I even recall reading a paper (i forget by whom, or for that matter where i read it) which had done a computer study of early works which looked for characteristic descriptions of recent contemporaries by 15th – 16th century sources and came to a similar conclusion. i also recall reading the published thesis of a student of the late e.e.auerbach z”l – Chakhmei Ashkenaz B’shalhei Y’may Habbainayyim by Y. Dinari – which makes a strong case for the black death as well (the fifteenth century chakhomim seemed to recognize the difference between themselves and their predecessors who lived and worked before the ‘g’zeiros” of the previous century).
I stand rebuked. Although I think if you look at the way that, for example, Rem”a treats the Trumas Hadeshen compared with the way he treats his contemporaries, one should consider Trumas Hadeshen a Rishon. If you put the boundary at the plague, you make Riva”sh into an Acharon which I don’t think is tenable. Of course such boundaries are never sharp (which was the point of the Purim Torah I alluded to) and in the period when communications were much slower needn’t have happened all over the world at the same time. In particular, one might imagine that the upheavals associated with the inquisition and expulsion from the Iberian peninsula may have played a similar role to the plague dislocations in other parts of Europe.
However, academic niceties aside, as the words are used in the yeshivah world from which they derive, the boundary is somewhere during the lifetime of the Mechaber and in the common usage of the yeshivah, trumas hadeshen is unambiguously a Rishon. The Mechaber and his contemporaries are where there is fuzziness of the boundary.
this might be a silly question, but is there anything qualitatively different btw the rishonim (or their works) and acharonim (and their works)? or is it a relatively arbitrary designation based on external criteria?
Wasn’t the Shulchan Aruch HaRav written by the 1st, and not the the 3d, Lubavitcher Rebbe (i.e., the “Alter Rebbe”)?
And to call the Mishna Brura authoratative and accepted by all of contemporary orthodox Jewry is not correct. Sephardim?
A few quick comments from an initial skim:
p 627 – why does having 2nd order priorities mean that any action within the space is deemed acceptable?
p.629 -why didn’t Rabbi Yaakov follow the Rambam’s format but just limit to applicable sections?
p.634 -a little more on the AH”S 2 principles and how they interact
p637-the mb settles any halachic question (me-except when we don’t paskin that way. so why is that?)
p 640 – if you have 4 central questions and 10 “main” halachic principles, istm (and I haven’t looked at the examples yet) that it would be easy to support many final outcomes by varying the weights you give to each.
Look forward to reading the rest-but lunch break is over 🙂
I believe that I benefitted from reading this.
Mike S. ..If you put the boundary at the plague, you make Riva”sh into an Acharon which I don’t think is tenable.
Just so, and i should have caveated (if such a declension actually exits) my remark above to emphasize it applies only to the Ashkenazi milieu. Sepharadic rishonim, in their independent historical/cultural matrix, undoubtedly produced “rishonim” a full century past the black death, which should very comfortably accommodate rivash, and my vague memory of the paper which utilized the computer search methodology is that it came to that conclusion as well. But even with the sepharadim – certainly prior to the mechaber.
Mike S.;;However, academic niceties aside, as the words are used in the yeshivah world from which they derive, the boundary is somewhere during the lifetime of the Mechaber and in the common usage of the yeshivah, trumas hadeshen is unambiguously a Rishon. The Mechaber and his contemporaries are where there is fuzziness of the boundary.
I guess I don’t understand the statement, but of course I claim little familiarity with current internal “yeshivoh world” prejudices. so perhaps I’m wrong about them. It is on the surface however surprising, since such interests are hardly what one thinks the average rosh yeshiva, let alone random talmid, knows anything much about, or has any particular expertise – requiring as it does a certain historical familiarity and a methodological algorithm.
Mr. Cohen: Are you sure? Don’t be hasty.
I’m just looking at page 632 and I’m lost:
“By 1830, three detailed additions to the Shulhan Arukh, Orah
Hayyim were added, namely the writings of the Gra,35 the Griz,36 and Rabbi Akiva Eiger.37”
These works were neither written nor published around the same time. The Gaon’s name was not Kramer (as in note 35). Shulchan Aruch HaRav is an independent work. Chayei Adam was surely not written in mid 19th century. R’ Yechezkel Landau did indeed live in Poland but is much more famous for being the Rav of Prague for 38 years. Etc etc.
In short, the history part needs serious polishing.
Re Shulchan Aruch haRav (or Of the Baal haTanya, for nonchasidim) – who is Gri”z? I thought Griz was R’ Yitzchak Zev Soloveitchik, while the 3rd Lubavitcher Rebbe was the Tzemach Tzedek, after his book of responsa. Also, the SAhR isn’t printed in the standard books, nor is the Tzemach Tzedek that I’ve ever seen.
R’ Broyde – thank you for posting your wonderful and excellent article. some comments and questions on a quick first read:
footnote 1(p.624) the jewish canon was closed around 200 bce – i thought canonization occurred much later that even in mishnah times there are debates who is in or out. do you mean the last book accepted was written around 200 bce. otherwise what is the source for this?
p.625 you imply that the sanhedrin impose “uniformity of practice”- in all matters of daily life?. is that agreed upon by current scholarship.
p.625 jewish law was resolved by “ordained” rabbis – do you mean smicha? wasn’t that only available to palestinian “rabbis”? what does that do the status of babylonian rabbis to settle matters?
p.625 – can you expand on what tools they had and why they were insufficient – what changed for that to occur over the centuries? some sources or footnotes for a history of tools and how they developed would be helpful.
p.626 – can you elaborate on first tier principles vs, second tier or a list – what makes one or the other.(or is it done in footnote 10 sources but since you refer to it in the paper a detailed footnote may be more appropriate).
p.627 – a better clarification between rashi/geonim and tosafot is necessary. tosafot to some was revolutionary in reopening the talmud text- sources could be footnoted for the reader to explore after a short terse explanation.
p.629 – other authorities – i assume you mean rosh and rif. isn’t usually stated a majority of the 3?
p.629 – appreciate footnote 26
631- why did more conflicts develop? is there a need to differentiate between law and custom? nature of time passing?
p.632 – like to understand the history and nature of shu”t – any references you can cite? does the resurgence of shu”t correspond to rapid and new changes in society like technology and circumstances not covered at all previously? thereby making shu”t a more appropriate vehicle.
p.633 not sure i understand the difference between the 4th category and arba turim (lack of talmud citations?) r’ shlomo luria had a different philosophy and was against any codes esp. sa (so i thought).
p.636 – what tools did the CC use that others didn’t – which ones had priority?
p.637 authoritative – excluding everything else? is it the final word as r’ feldman states? always been taught that aruch hashulchan is preferred when in dispute with MB. why was the MB studied more than the AH is an interesting question to explore which helped it gain supremacy.
p.637 – footnote 59 refers to footnote 97 but i think you mean 99 and thank you for 99
p.639 thank you for the legal understanding and explanation. would MB analysis on the SA be similar to tosafot on the talmud – harmonization? your explanation here sounds similar(to me).
p.640 – any weightings to the questions(greater priority) or the principles in importance or deference vs others. wonderful to read, btw.
1. From the end of the article: “[The MB’s] innovative approach, fundamentally invented by this work, can perhaps best be summarized by one of his own sayings: ‘Content is the one who worships God with Happiness’ ”
However, most of his chumrot seem to be to avoid situations where one might come to violate certain interpretations of a law, while according to the baseline psak, your chumrah has accomplished nothing. This seems to be motivated by fear, rather than happiness.
2. Re the MB’s 10 principles: I would like to be able to verify these principles using something like the scientific method. That is to say, look at the sources, predict the MB’s conclusion, and check whether the MB actually said that. But I feel the principles are too vague for that. #5 and #6, for example, seem to contradict one another if a “lenient custom has developed and become well-established” (I phrased that carefully).
3. The impression I get from the article is that the only thing the AS tried to do was reconcile sources (textual and mimetic). He used absolutely no value judgments in his psak, beyond those already in the sources at hand, and thus was forced to rely more heavily on those sources, and was more “lost” when the sources were irreconcilable. Whereas the MB had ideals and guidelines which made him lean one way or the other, when the correct psak was not obvious from the sources.
Phrased that way, it seems to me the MB is actually more in line with what we expect from past poskim and desire from current ones. Whereas the AS is either premodern and “naive” in unconsciously absorbing and using value judgments which he couldn’t conceive of anyone questioning (is this really plausible?), or revolutionary himself in consciously excising those judgments from psak. … Is this actually the case?
iiuc your point 2 is basically my comment on page 640 and 3 on 634. Another way of looking at your point 3 , at least in my low level of understanding of the 2 sfarim, is that the ah”s tried to line up psak with a derivation from the sources. Where the current practice was not clearly supported by the most likely (iho) derivation, he tried to explain a derivation that could support the practice. Given that he was a “pulpit rabbi” (he looked his flock in the face, they came to him for psak) versus the C”C who was not, I’d be surprised if a thorough analysis supported the proposition that the ah”s was less “judgemental” in psak (whether either were self aware to realize this is an interesting question.
r broyde – after stating that MB is considered authoritative by essentially all of contemporary orthodox jewry i find it interesting that you use an example of his methodology :tefillin of rabbenu tam and tefillin on chol hamoed(example 3) – acts that maybe a small minority of all jewry do.
on the princples: is there a negative aspect to avoidance and harmonization? did the MB demand any major changes in current practices based on his methodologies? did his principles develop any chidushim that had wide general applications to other areas?