EAJS Congress in 2002

EAJS Membership Payment. Form

3
Essays:

Campanini on Christian Kabbalah Woolf on the Study of Halakhah oPelger on Gustav Salomon Oppert Short Study:

5 9 15

Jackson on the Agunah Problem Conference Reports

Books Received Notice Board

24

26
47 50 54

News
EAJS Constitution
EAJS Membership Details

58

METHODOLOGICAL REFLECTIONS THE STUDY OF HALAKHAH* Jeffrey Robert Woolf

ON

Introduction
In the introductionto his study, Rabad ofPosquieres: A Medieval Talmudist,' the late Isadore Twersky compared Jewish Intellectual History to a "fastmoving streamcoursing through a complex network of tributaries and offshoots... The main~tream, however, was the Halakhah (Jewish law) -its ever expanding corpus of literature and its cumulative body of practice." This forthright assertionof the fundamentally halakhocentric character of premodern Judaismservesas an important correctiveto the still dominant tendency within scholarshipto highlight the non-legalpursuitsof Jewishintellectuals through the ages,while ignoring the critical impact which Halakhahhad upon the life and thoughtof the Jews throughouttheir far-flung exile! Whenhistorians did relate to and make use of halakhic material, they did so almost exclusively in order to mine it for the historical data it might provide.3 In this context, the use of halakhic literature has been both massive and decisive.4
.The intention here is to discuss some salient methodological issues pertaining to the academic study orthe history of Ha1akhah. Owing to limitations of space and expertise, 1 have confined myself to medieval and ear1ymodern Europe. In addition, 1 have deliberately omitted 9iscussions issues related to source and manuscript use. See H. Soloveitchik, She'elot u-Teshubot ke-Maqor Bistori, Jerusalem 1990 and the studies by Y. Ta-Shema cited in the bibliography. (I am grateful to Professor Daniel Sperber and Dr Edward Fram for their comments.) I I. Twersky, Rabad of Posquieres:A Medieval Talmudist, 2nd

On the other hand,far less attentionhas beenpaid to the halakhic processand its literature, both for its understanding per se as well as for purposesof eliciting therefroma deeper understanding of the cultural and historical sitz im lebenwi~in which it developed. This stateof affairs was the result of at leasttwo relatedfactors. As a particularly parochial discipline, Halakhah did not fit in well with the agendaof the foundersof 5 Wissenschaft des Judentums. Furthermore,the discouraginglyopaquenature of halakhic literature and discoursewas far from attractive, especiallywhen it had to compete for scholarly attention with philosophy, mysticism,p6etry,polemic and biblical exegesis. In suchcircumstances, few scholarswere inclined to believe that one could (or desire ~6), in the words of Professor.Haym Soloveitchik, crack "the colorless and highly impersonalmolds into which the thought of the medievalperiod was cast to reveal a world of individuality, development and ambivalence.,,6In s4ort, to force "fragmentaryand recalcitranthalakhic texts. ..to t a1kh.,,7 IstOry. Not until the middle of the twentieth century did there appear historians who set out spe9ifically to explorehalakhic development per se. Much credit for the creation of the contemporaryschool of halakhic historiographygoes to ProfessorJacobKatz. It was he, in the 1950s,who called attention to the need to see in Jewish law the primary material for the study of Judaism,as well 'as of Jewish life, and who outlined the generalparameters by which hal'4khicmaterial is to be handledand evaluated.It may easily be said that almost all contemporaryhalakhic historiographyconstitutes "footnotesto Katz".s It is thus appropriateto open discussionof the methodologyof th~ academicstudy of Halakhahwith Katz' observation thatthe scholarwho seeksto utilize halakhic texts mustread suchtwice. The first time he
) SeeG. G. Scholem, 'Mi-TokhHirhurim 'al Hokhmat Yisrael', in

ed.;Philadelphia 1980, p. vii. Twersky's point was that Halakhah underlies, guides, and interacts with the dazzling variety of pursuits and disciplines which the Jews cultivated over the centuries in a pattern/dynamic which he termed "the int(:raction of i:Ialakha and 'Meta-Ha1akha"'. See I. Twersky, 'Religion and Law', in Religion in a Religious Age, ed. by S. D. Goitein, Wa1tham/MA 1974, pp. 69-"82.
2 Twersky, ibid.

See B. Weinryb, 'Responsa as a Source for History: Methodo-

10gical Problems', in Essays Presented to Rabbi Israel Brodie, London 1967, pp. 399-417. Two influential examples are I. Agus, Urban Civilization in Pre-Crusade Europe. A Study of the Organized Town Life in Norihwestern Europe During the Tenth and Eleventh CenluriesBased on the Responsa Literature, New York 1965 and S. D. Goitein, A Mediterranean Society. No responsible Jewish historian has worked without reference to halakhic literature in this sense., An important methodological caveat is in order. Law overwhelmingly re1ates to the exception, and not to the rule. Hence, extreme caution must be exercised before one arrives at far-reaching conclusions regarding the religious, social or moral fabric'of a given community based upon piquant, even scandalous, cases mentioned in legal literature. Unfortunately ,such instances are not un<;ommonin Jewish historiography and lead to serious distortions of judgment.

LUM ha- 'Areiz 5 (1945) [= Devarim be-Go: Pirqe. Morasha uTehiya, Tel Aviv 1975, pp. 285-3iO] and Y. H. YerushaJmi, Zakhor: Jewish History and Jewish Memory, New York 1989, pp. 77-104. Weiss and Giidemann are exceptional in this regard. 6 Soloveitchik, 'Ha1akhic Texts', p. 153. 7 Ibid. Even in the early days of Jewish Studies that halakhic history and development merited serious attention. Scholars invo1ved in the study of rabbinic 1iterature, especiaJly after the discovery of the Cairo Geniza in 1896, inevitably came to concern themselves with the development of halakhic literature, methodology, and decisions. Among these schol~ were Simha Assaf, Louis Ginzburg, Saul Lieberman, Jacob Mann, Solomon Schechter, and J.N. Epstein. See H. SoJoveitchik, 'Responsa: Literary History and Basic Literacy', in AJS Review 21 (1999), pp. 343 f 8 See B. Cooperman, 'Afterword', in J. Katz, Tradition and Cri. sis: Jewish Society'atthe End 91 (he Middle Ages, trans. with an afterword and bibliography by B. D. Cooperman, New York 1993,

pp.235-253.

EAJSNewsietter 11 (October 2001), pp. 9-14 Published by the curopean Association for Jewish Studies

must examineit with the eyesand mindsetof a traditional halakhist. Only then, he cautioned,should he reexanline it with the eyes of the historian. Behind this aphorism, of which Katz was quite fond,9lies the complexof varied and subtle factors with which the historian mustgrapplein attemptingto understan!i the halakhist and the way in which his rulings interact with, and reflect, the world in which he lived. It compels the historian to appreciatethe imminent developmentand requirements of halakhic tradition, while simultaneouslyseeking to reconstruct the external forcesandinfluenceswhich act uponthe halakhist.

ties.ls

process was thus self-contained and self-sufficient,14 with rulings representing a reasonable interpretation of the relevant sources. In addition, judgments were expected to reflect accepted norms of decisionmaking between the opinions of previous authori-

Halakhic Jurisprudence
To begin with, the study of Halakhah requires of the historian a healthy measure of acquaintance with and respect for the integrity of the halakhist and the halakhic system.IO Halakhists throughout the ages have believed there to be a unified (though dynamic) cross-generational universe of discourse within which they move.!! Hence, the initiated reader expected that he would be able to follow and evaluate the cogency of lines of argument or rulings, irrespective of the time or place in which they were rendered. Second, with noticeable variation, halakhists were consistently conscious of and sensitive to their responsibility as interpreters of God's Law. As a result, they strove to detennine that which they believed to be the 'true' interpretation of the law, and the 'correct' ruling to be adopted in a given instance.12 This was no mean undertaking, and there have been multiple ways in which halakhists have managed to overcome their diffidence in t11eface of the awesome responsibility before them. By extension, however, consciously changing law to the needs of circumstance would have appeared to the~ as nothing short of blasphemous.13In the eyes of its practitioners the halakhic
.See Katz's intellectual testament, '/ la-Haqor ve-'/ Ie., Hilbonen, Jerusalem] 999. 1 heard him make this point in a seminar which he led at Harvard in the Fa]1of ]977. 10 See H. Soloveitchik, 'Responsa: Literary History and Basic Literacy', in AJS Review 24 (1999),pp. 343-357, II This approach is self-consciously non-'Post-Modem'. See Katz,

Thus, prior to entering into the realm where law encounters reality, the scholar must fltst take the measure of the legist qua legist.16 This is important because we have much to learn about schools and trends within rabbinic jurisprudence for much of the medieval period. More to the present point, appreciation of the inner workings of the process of both Halakhah and the contemporary halakhist is critical for the proper evaluation of their workings within specific historical conditions. In other words, unless we develop an awareness of his normal modus operandi, we will be hamstrung in our efforts to determine whether certain rulings may be considered unusual. For extlmple, was he a 'formalist,' who tended to mechanically apply the words of his predecessor, or does he allow himself a degree of latitude of interpretation of sources? Do his rulings betray a consistent tendency toward stringency (or leniency) in specific areas? What was his attittide toward precedent? Which works were available to him, and which featureprominently in his writings? Does he allow himself to decide among previous authorities?'7 How do his writings and methods align themselves against the background of the legal tradition (e.g., French, German, Provenyal, Spanish, Polish, Moroccan, Iraqi, Syrian) which he viewed himself as representing?_Considerations such as these provide critical 'controIs' in evalu,ating the legal and the historical significance of the creation, impact and influence of halakhic rulings within specific socio-historical contexts. IS
14 Cf. J. Katz, 'Post-Zoharic Relations Between Halakha and Kabbalah', in Jewish Thought in the Sixteenth Century, ed. by B. D. Cooperman, Cambridge 1983, pp. 283~286. 15 From this vantage point, analysis of halakhic literature, both responsa and codes, coincides with what is broadly defined as 'jurisprudence'. See S. More]I, Precedent and Judicial Discretion: The Case Of Joseph Ibn Lev, Atlanta 1991. 16 .' This is not to suggest that 'internal' considerations develop insulated from those on the 'outside'. Consider, for example, the long standing issue of the possible influence of scholastic thought upon tosafist method. The point here is that in this stage of their research ha1akhists view themse]ves as involved in a closed, continuous endeavor. 17 This point also speaks to the issue of periodization, which has been the subject of some discussion of late. See I. Ta-Shema, 'The Law is in Accord with the Later Authority -"Hilkhata Ke-Batrai": Historical Observations on a Legal Rule', in Authority, Process, and Me/hod: Studies in Jewish Law, eds. H. Ben-Menahem and N. Hecht, Amsterdam 1998, pp. 101-J28 andY. Yuval, 'Antiquii et Moderni; Rishonim ve-' Aharonim', in Zion 57 (1992), pp. 369-394. II .Intense loyalty to one's native tradition may result from external pressures thereupon. Thus, we find the fourteenth-century Provenyal

'/ La-Haqor, pp. 11-45. 12 This characterization varied widely and was not infrequently function of both the personaliiy and/or the legal method of the haIakhist. See the examples noted by H. So]oveitchik, 'Can Halakhic Texts Talk History', in AJS Review 3 (1978), pp. 178-182 and R Reiner, 'Parshanut ve-Halakhah: 'Iyyun me-Hadash be-Pu1mos Rabbenu Tam ve-R. Meshulam', in Shena/oil ha-Mishpa/ ha- 'fvri 2] (I 99S-2000), pp. 207-240. 13 SeeJ. Katz, 'The Rule of Halakha in Traditional Jewish Society: Theory and PI"axis', in Divine Law ill Hulllall Hands, pp. 17]-190 and J. Woolf, 'Between Diffidence and Initiative: Ashkenazic Legal Decising in the Late Middle Ages (1350--1500)', in Journal for Jewish Studies 52 (2001), pp. 85-97.

10
~

Before moving on, one further issue mustbe consideredand that is the role of meta-halakhicor ideological considerationsin the decision-makingprocess.19 Ostensibly, given the self-sufficiency of the halakhic system as posited above, there actually should be no place for such a possibility. However, historically this has proven not to be the case,to no small degreedue to the .natureof rabbinic Judaism, within which Spirituality and Law (or Aggadahand Halakhah)coexist in a tense, dialecticarrelationship. The latter provides form and uniformity, while the other informs the law wit..f}content and provides the commandments with a telos for their performance.2o Officially, eachcomponent has its own task and preservesits own integrity of method and content.The result is that vis-a-vis Halakhah,traditions of Jewish spirituality suchas Philosophy or Mysticism are expectedto serveas interpretersof the commandments (ta 'ame mitzvot)and to createa spiritual world-view which gives them an overall meaning. They are not supposed to playa role in the actual determination of the law. In practice, however,things did not work out so simply. After all, if tenets of Jewish spirituality determined the tenor and telos of Jewish observance could it not, indeedshould it not, claim a role in determining the parametersof that observance? And while the responseof Jewish philosophersto this questionwas somewhat muted,21 Jewishmysticswere assertively,evenaggressively, positive. The medieval GermanPietists (HassideAshkenaz), for example,as
talmudist, R. Menahem ha-Me'iri, engaging in a polemic with disciples of the school of Nahmanides who questioned the legitimacy local practice (Sefer Magen :Abat, ed. by I. Last, Jerusalem 1977, p. I I). B. Lau has explained the attempts of R. Obadiah Yosef to restore Sephardic halakhic traditions in the Land of Israel in a similar light. See B. Lau, ""AI Mishrnarti 'A-'amoda le-Hahazir 'Atara leYoshna": Ma'avaqo shel haRav Obadia Yosef le-Shemirat haHalakhah ha-Sefaradit be-'Eretz Yisrael', in 'Elgar ha-Ribbonul, ed. by M. Bar-On, Jerusa1em 1999,pp. 214-227. 19 One should mention in this context the role of what Professor David Berger terms 'religious policy', meaning overarching religious or spiritual concems which impact upon hal~ic decisions. Unfortunately, space does not allow for a ful1 discussion of this dimension. In the interim, see Jacob Katz's discussion of Hatam Sofer in 'The Controversy over the Temple in Hamburg and the Rabbinical Ass~ml;lly in Braunschweig: Milestones in the Development of Orthodoxy', in J. Katz, Divine Law in Human Hands, Jerusalem 1998, pp.

part of their search for the hiddenwill of God (Retzon ha-Boreh)devotedthemselves to the uncoveringand enforcingof a far moredemandingsystemof law than that provided by the traditional Halakhah. This was accompanied by an ideologically motivated demand for ever-increasing stringencyin legal decising,irrespectiveof accepted procedural norms!2 The situationproved more drastic in the caseof Zoharic Kabbalah.As a symbolic, theosophicsystem Kabbalahsawdivine lore reflected in everydetailand nuance of the commandments. This circumstance transformedthe mostmundanelegal details into mystically chargedexpressions of the highestorder.As a result, it became critical that halakhic practice and mystic lore be alignedas closelyas possible,with.the result that from the fifteenth century onwards, we are witnessesto constant pressureby Kabbalah uponthe independent workings of the Halakhah.23 The effects of this pressure were mixed,and constitutean important leitmotiv in the history of Halakhah. On the one hand,no less a personage thanR. Yosef Karo established the place of the Zohar as an halakhic source. Onthe other hand,evenmystically inclined halakhists tendedto resist the full ascendancy of mystical considerations in order to protect the integrity of the halakhic process. The full impact, as well as the 'ups and downs' of this tension,are still in the processof being chartedandevaluated.

Law and life

Not unexpectedly,theory and researchalmost never align themselves with the complexity of the life situations which the halakhistis called upon to confront!4 Life itself is complex, and the angle of evaluation adopted by the halakhist will inevitably impact upon his choice from among the constellation of precedents and opinions which resulted from his research. Mechanical imposition of precedentwas rarely an option, in large part becauseprecedent was not viewed as binding!S Thus the decisor was endowed with a significantdegreeof judicial discretion
22 See H. Soloveitchik, 'Three Themes in Sefer Hassidim', in AJS Review I (1976),pp.311-357. 23 This trend intensified with the spread of Lurianic Kabbalah, with its theurgic understanding of the mitzyot. 24 See Iggerot Hazon 'Ish, yo]. 1, ed. by S. Greinemann, Bene Beraq n.d., no. 36 and I. Twersky, 'The Shulhan 'Arukh: Enduring Code of Jewish Law', in Judaism 16 (1967), pp. 132-134 (- id., Studie$ in Jewish Law and Philosophy, New York 1982, pp. 1422~ cr. BT, Baba Bathra 131a and Rashbam s.y. ve-'altigmeru.

216-254.

20 See Twersky, 'Religion and Law', pp. 69-71 and Katz, 'Post-

Zoharic Relations', pp. 283-285. 21 See Katz, ibid. There are indications that rationalistically inclined halakhists did include philosophical considerations in some of their legal decisions. See, e.g., Y. Ta-Sherna, 'Shiqulim Pilosofi'im be-Hakhra'at ha-Halakhah be-Sefarad', in Sefunot 3 (1985), pp. 99110; G. Blidstein, 'Menahem Me'iri's Attitude Toward, Gentiles Apologetics or Worldview', in Binah 3 (1994), pp. 119-133; id., 'R. Menahem Ha-Me'iri: Aspects of an Inte1\ectual Profile', in Journal ofJewish Thought and Philosophy 5 (1995), pp. 63-79.

148).

See

M. Elon, Ha-Mishpat ha- '/vri, 3rd ed., Jerusalem 1992, pp. 768-804 and J. Woolf, 'The Parameters of Precedent in Pesaq Halakha', in Tradition 27 (1993), pp. 41-48.

11

in lining up ruling and reality. Furthermore,as the Talmud alreadynoted, mechanicalapplicationof the law is not always just, though Justice is inherent in the mandate of the halakhist.26 The task, then, of the historian, is to follow and evaluate the manner in which rabbisnavigatedtheir ways betweencompeting judicial considerations, both 'internal' and 'external'. The most trumpeted of all ~externa1.' considerations are the economic. Here especially historians have underscoredhow medieval halakhists adopted talmudic law to economicnecessity.For example,in medieval Christian Europe, circumstances which differed drasticallyfrom those which had obtainedin ancientIsrael or Babylonia preventedthe observance of entire areas. of Halakhahwhich had beenintended to maintaina clear,religious divide between Jewsand non-Jews!?Facing a choice betweeneconomicsurvival and loyalty to tradition, Ashkenazi halakhists op~edfor the former. Nor were such 'adaptations' always unconscious!8 Accordingly, due to intense pressure to allow intra-Jewish usury in twelfthcenturyFrance, despiteits being biblically prohibited, R. Jacob Tam advocated a priori use of Christian intermediariesself-consciouslyasserting that he did so "in orderto given sustenance to the childrenof the covenant"(latet mihya le-veneberit). 29 However,particularly at this juncture the historian mustbe prudentin his evaluation.Adjustmentsof law to life these no doubt were. However, in Kauean terms, did halakhists behave unfettered?And even whenthey apparently did so, how did theyunderstand that which they were doing? As alreadynoted,traditional halakhistsare weanedon respectfor the integrity of the received system of Jewish law. In the overwhelmingmajority of cases,as the bearerof a received sacredtradition, rabbis simply applied that tradition to the case at hand.3O It thereforebehooves us to look more closely at that which occurred,say,in
26 Cf. BT,Baba Metzia 83b and commentariesaa loco 27 See Katz, Exclusiveness and Tolerance, chs. 1-3. 28 Though, it must be admitted, some of them were. A good example is provided by the manner in which trinj~rial1ism was recognized as monotheistic, at least as far as Christians are concerned. See J. Katz, 'Shelosha Mishpatim 'Apologeti'im be-Gilgulehem', in Halakhah ve-Qabbalah,pp. 175-183. 29 Sefer 'Or Zaru 'a, no. 202. See the pioneering studies of H. Soloveitchik, 'Pawnbroking: A Study in Usury and of the Halakah in Exile', in Proceedings ofthe American Academy for Jewish R~search 38 f. (1972), pp. 203-268 and id., Halakhah, Kalkalah ve-Dimui Atzmi: Ha-Mnshkona 'ut be-Yeme ha-Beynayim, Jerusalem 1985. See, especially, Soloveitchik, 'Ribbit', pp. 250-252. For the later period, see E. Fram, Ideals Face Reality: Jewish Law and Life in Poland,

the studiesof the tosafists when they issuedrulings suchasthoseherenoted. Such reconsiderationshows that the intellectual and methodologicalreality within which thesemediev~l halakhists moved was far more nuanced than might appearat fIrst glance.Did medieval halakhists deliberatelywreak havoc with talmudic law in order to assureJewish economic survival? The answerto this questionis, in the overwhelmingnumberof cases, a resounding'No'. Halakhists, even a revolutionary suchasR. Tam, may well have beenconsciousof the far-reaching,evennovel natureof their rulings. However, they did not perceive) those rulings as doing violenceto the integrity of Halakhah.On the contrary, in a broad range of instances,such as the revocation of longstanding limits on the amountof income which a Jewmight derive from usury takenfrom a Christian, resolving Jewisheconomic distresswas a legitimate halakhic categorywhich a priori allowed far-reaching changes in hitherto accepted norms.3! The samewastrue of what appeared to be flagrant deviations. As notedabove,accordingto the Mishnah, commercialrelations must not be carried on between Jewsandpagansfor a period of three daysbeforeone of the latter's holy days, lest the Jew thereby be deemeda facilitator of idolatrous worship.32 However, with Christianitydefined as idolatrous and Sunday earmarked asjust sucha holy day, observance of this restriction would have severelydamagedJewish commerce.33 So, from at least the end of the tenth century, this prohibition was effectively ignored in the Rhineland and Northern France.34 The tosafists, ratherthan viewing this behaviouras a deviationfrom anhalakhic norm,assumedits self-evidentlegitimacy by innocentlyasking: "On what does the community rely when it does business with idolaters on their holidays?,,35 In other words, by dint of the hoary authority of custom,this clear violation of a talmudic dictatemustperforcebe apparent. This particularexamplepresentsan exampleof the extraordinary deference shown by Franco-German legists toward establishedcustom(minhag). In Ashkenazic eyes,customswere viewed as sacred,living
31 See Rosh, Baba Metzia 5:52. It should be noted, though, that the degree to which this might be true was a matter of personal judgment. 32 Avodah Zara 1,1. See Katz, Exclusiveness and Tolerance, ibid. 33 BT, AbodaZara 7b (compared to the Munich manuscript). ~ Regarding Provence, see y, Ta-Shema, "'Yeme 'Eydeyhem": Pereq be-Hitpathut ha-Halakhah be:'Yeme ha-Beynayim',in Tarbiz 47 (J978),pp. 197-215. 35 Tosafot ad lac., s.v. nosim. The text of the gloss was compiled in the second half of the late thirteenth century by Rabbi Peretz of C'orbeille and thus represents the full gamut of tosafist thinking on the matter.

I55Q-I655,Cincinnati1997.

30 TI1is point is enunciated by Professor Moshe Rosman in his forthcoming study, 'Prolegomenon to the Study of Jewish Cultural History', in 'Areshet I (in press). (My thanks to Professor Rosman for sending me a typescript of his article.)

12

halakhic sources.Sometimes,they were basedupon long-standing oral traditions which the Jewsof medieval Franco-Germany had brought with them from SouthernItaly or beyond.36 More often, asin the present instance,suchpracticeswere actuallythe resultof economic or social pressureswhich rendered the talmudic norm inapplicable.3? However, because these modes of behaviour had been practiced and thus sanctified by 'our sainted ancestors' ('avotenu ha~ qedoshim)they were overall accepted,as the embodimentsof legal norms.38 As such,they were casuistically harmonized with written traditions, just as intra-talmudiccontradictionswereresolved.39 In other words,here too, despitethe objective historicalgenesis of the abandonment of the Mishnah's dictate,as far asthe halakhistwas concerned, his enterprise 'was methodologically self-contained.4O This type of awareness is not merely a legal nicety. The tense, dialectical relationship between 'written text' and 'living text' had many implications for Jewish law. For one thing, the requirementthat any ruling (or resolution) based upon a reasonable interpretation of the relevant sources, placed clear limits upon the ability of the halakhistto manoeuvre. Any ruling offered by a decisorwas not only an expressionof his conviction that it reflects a credI"ble interpretationof the official sourcesof Jewishlaw. It
)6 And, as il now increasingly appears, fi"om the Land of Israel. See

R. Bontil, 'Tra Due Mondi: Cultura Ebraica e Cui Iura Cristiana nel Medioevo', in Itaiia Judaica: Atti de/IX Congresso inLernazionaie. settembre /992: L 'Ebraismo dell'lta/ia Meridionale Peninsulare dalle origini al 1541, Napoli 1996, pp. 3-64; Y. Ta-Shema, 'HaJakhah, Minhag u-Massoret be-Yahadut 'Ashkenaz ba-Me'ot ha-11 ha12 ('Iyyunim Rishonim)', in Sidra 3 (1987), pp. 85-161 (= id., Minhag 'Ashkenaz ha-Qadmon, Jerusa1em 1999, pp. 13-108); A. Grossman, 'The Cultural and Social Background of Jewish Martyrdom in Germany in 1096', in Juden und Christen zur Zeit der Kreuzziige, ed. by A. Haverkamp, Sigmaringen 1999, pp. 73-86 and J. Woolf, 'Medieval Models of Purity and Sanctity: Ashkenazic Women in the Synagogue', in Purity and Holiness: 77ze Heritage of Leviticus, ed. by M. Poorthuis and J. Schwartz, Leiden 2000, pp.

263-280.

ultimately had to pass muster with the halakhic consensus as it developedovertime.41 Then again,purely theoreticaldevelopments in the study of the Talmud could generate far-reaching changesin the economicand 'so.ciallivesof a Jewish community. Such a case was described by Haym Soloveitchik in his study of the laws governing the production of kosher wine in the Central Middle Ages.42 The Talmud prohibits either consumptionof or trading in wine which was manufactured(or even touched) by gentiles.43 The question which arises, then, is at what stage does the liquid derived from grapes become 'wine' and hence subject to these injunctions. As Soloveitchik points out, the regnant practicehad beento treatcrushedgrapesas wine. The result was that gentiles could not be employed in treading grapes,a disability which engendered a significant burden upon the tiny Jewishpopulationsof the Rhineland and Northern France.44However, working in Troyes on his talmudic commentaryin the last quarterof the eleventhcentury, Rashidiscovered that the Talmud had decided that wine is born only whenjuice and must are separated.4s This discovery automaticallyled to greaterlatitude in the allowance of non-Jewishlabor in the harvestingand treadingof the grapes.Thus a development, which startedpurely as a theoretical observation, effectively neutralized the previous restrictive practice, with significant impact upon subsequent Jewish life. Ironically, moreover, the caseof wine manufacture provides anexample whereinlegal theory, combined with strong economic need, combined to overcome the aforementioned authority of custom. Recentresearch has revealedanothertype of 'living text' whose impactuponreligious law in medieval Franco-Germany appearsto have been significant. Over the past twenty yearsor so, throughthe application of anthropologicalmodels, important work has beendone in an attemptto understandthe mannerin which AshkenazicJews perceivedof time, of space,
41 A case in point is the far-reaching license of R. Tam concerning

37 See, for example, J. Katz, ExclusiveneSs and Tolerance, New

York 1959 and id., The "Shabbes Goy": A Study in Halakhic Flexibility, trans. Y. Lerner, Philadelphia 1992. 31 Another significant example was the neglect of the mitzvah to don phylacteries (cf. Tosafot ad Rosh HaShanah 17a, s.v. qarqatta.) There were, of course, exceptions (see Tosafot ad Shabbat 49a s.v. ke-'Elisha; Baba Bathra 2a, s.v. be.gevil and Resp. Ba'ale haTosafot,no. II). 39 See J. Katz, 'Alterations in the Time of the Evening Service (Ma'ariv): An Example of the Interrelationship Between Religious Customs and their Social Background, in Divine Law,pp. 88-127 and the more recent summary in J. Woolf, 'The Authority of Custom (Minhag) in the Responsa of R. Joseph Colon', in Dine Yisraei 19 (1997-1998), pp. 143-173. ; 40 The best, and most exhaustive, discussion on the protean issue of custom is D. Sperber, Minhage Yisrael, vols. ]-6, Jerusalem 1989- . 1998. Dozens of the cases examined by Sperber provide examples of this point.

the use of Christian intermediaries. Here, his interpretation of the relevant talmudic passage(Baba Metzia 70b) was considered too farfetched and hence rejected. See Soloveitchik, 'Ribbit', p. 252. See S. Albeck, 'Yahaso shel Rabbenu Tam le-Ba'ayot lemano', in Zion 19 (1954), pp. 104-141. 42 Haym Soloveitchik, 'Can Halakhic Texts Talk History?', in AJS Review 3 (1978), pp. 153-196. Professor Soloveitchik wit] soon publish a much longer monograph on this topic. (My thanks to Professor Soloveitchik for making a typescript available to me.) 43 Cf. BT, Aboda lara 31band 59a; and Mishneh Torall, Hil. Ma'akhalot 'Assurot, XI-XIII. 44 Soloveitchik, 'Can Halakhic Texts', pp. 153-156. 4$ Fol. 55b s.v. mi~shehitl,il. The sources are co11ected in H. Soloveitchik, Yahas ha-Gomlin Beyn ha-Halakhah ve-ha-Metzi'ut,

Jerusalem 1969.

13

~T ':'c

and of the Christian 'other,.46 Of late, it has emerged that in the Central Middle Ages, Jews re"latedto their synagogues as literal embodiments of, and (temporary) replacements for, the Temple in Jerusalem. This perception had significant implications for Jewish liturgy and law, of which one should be singled out here;47 One of the residual obligations attendant upon the priests (kohanim) after the destruction of the Temple in 70 CE,was that of blessing the people each morning at the daily prayer service.48The only requirement for their doing so, was that they ritually wash their 49 . hands. However, a longstandIng custom had it that priests only blessed the people on the High Holy Days (Rosh HaShanah and Yom Kippur) and on the Three Pilgrimage Festivals (Pesah, Shavu'ot, Sukkot).50 This curbing of the priestly blessing, it would appear, was due to the position that its rendering required not merely hand washing, but total immersion in a ritualarium (miqveh). However, there is absolutely no legal basis for such a requirement which involves the proactive annulment of the biblical commandment that the priests bless the people. As I demonstrate in a forthcoming study, this requirement is primarily founded upon the equation of the synagogue with the Holy Temple in Jerusalem, wherein ritual functions did require immersion in a miqveh.5! The result was that the practical abolition of the daily priestly bles.,ing by Franco"German Jews was not viewed as,problematic simply because the status of the Synagogue '4cS ersatz Temple was so self-evident. Here too, then, 'unwritten texts' in the form of perceptions of 'sacred

space' interacted with the 'written text' in defming tile parameters of medievalHalakhah.52 That Halakhah,with its variations,intrepid navigators and clearly defmedbanksand course must lie at the epicenterof Jewish scholarship, and be respectedon its own terms if it is to be made to 'talk history'.

JeffreyRobert Woolfis SeniorLecturer in the Depart~ ment of Talmud at Bar Ilan University,Ramat Gan, Israel.

46 Here ~ecjal mention must be made of work by Robert Bonfil, Ivan Marcus, and Yisrael Yuva1. See R. Bonfil, 'Mito, retorica, storia; saggio sui "Rotolo di Ahima'az"', in Tra duemondi, pp. 93133; id., Jewish Life in Renaissance Italy, Los Angeles 1994; I. Marcus, Rituals ofChildhood: Jewish Acculluralion in Medieval Europe, New Haven 1996; Y. Ta-Shema, 'On Ivan G. Marcus, "Rituals of Childhood; Jewish Acculturation in Medieval Europe" (1996)', in Jewish Quarlerly Review 87 (1996), pp. 233-239; and Y. Yuval, 'Jews and Christians in the Middle Ages;: Shared Myths, Common Language', in Demonizing Ihe Olher, ed. by R. Wistrich, Amsterdam 1999, pp. 88-107; id., Shne Goyyim be-Vitnekh, Tel Aviv 2000. 47 In general; see Y. Ta-Shema, 'Miqdash Me'at: Ha';Semel ve-haMamashut', in Kenesset 'Ezra: Mehqarim ha-Mugashim le-Kh~od Professor Ezra Fleisher, ed. by Sh. Elitzur el al.. Jerusalem 1995, pp. 351-364; Woolf, 'Medieva1 Models of Purity', pp. 270-280 and id., 'Bet ha-Kenesset be"'Ashkenaz: Dimui ve-Halakhah', Kneshla 2 (forthcoming). 48 Mishnah, Sotah VII, 2 and 6; BT, Sotah 32a-40b; Mishneh Torah, Hil. Tefi11ah, XIV-XV. 49 BT, Sotah 39b. See E. Zimmer, 'Mo'ade Nesi'af Kapayim', in 'O!am ke-Minhago Noheg, Jerusalem 1996,pp. 135-]40. i so Sef~r Hassidim, ed. by Wistinetzki-Freimann, Berlin 1892, no. 1613. The statementis a report, not a pietist injunction. 51 Woolf, 'Bet ha-Kenesset'. " Obviousry. ti)is raises the larger issue of the contrast of ecclesia

andsynagoga in Jewish Christian relations. perceptions and (in the case of the Christians) art. On tllis point see the above noted studies by Yuval. I am presently engaged in a broad study which further explores just this point. In addition, Mr Alec Isaacs is engaged in a doctoral project under the guidance of Professor Robert Bonfil which also engagessignificant parts of this issue.

14