Why Do Jews Prefer the Shulchan Arukh to Maimonides’ Code of Law?

The following is from my third book on Maimonides.

 

                            Why Do Jews Prefer the Shulchan Arukh to Maimonides’ Code of Law?

Maimonides’ fourteen-volume Mishneh Torah was the first, most comprehensive, most readable, and best-organized code of Jewish law. It is no surprise, for example, that the fourteen books of his code are so expertly crafted that they have exactly one thousand chapters.[1]

Yet about a century after his death, another Spaniard, Jacob ben Asher (1270–c. 1340, called Ba’al Haturim) composed a multi-volume work on Jewish law that he called the Tur. Roughly two centuries later, still another Spanish rabbi, Joseph Karo (1488–1575), compiled his multi-volume law book, which he named the Shulchan Arukh. More than half a dozen other collections followed, but the Shulchan Arukh, with annotations by the Polish rabbi Moshe Isserles (1525–1572, called Ramah) became the favored code and is used by most Jews.

The names of the different compendiums reveal something about the clarity and organization of the codes. Maimonides gave his work the title Mishneh Torah, the “Second Torah,” clearly and unmistakably suggesting that his work was a supplement to the original Torah. Jacob ben Asher’s Tur means “Column,” Joseph Karo’s Shulchan Arukh signifies “A Set Table,” and Moshe Isserles’s Hasagot expresses the author’s intent to add “Comments.”

Maimonides named his code and the individual books it contains according to their content, such as “Laws of Idol Worship” and “Laws of Kings and Their Wars.” But Jacob ben Asher opted for poetic, less informative titles such as Choshen Mishpat (Breastplate of Judgment), which deals with torts, legal procedures, loans and interest, and Even Ha’ezer (Helping Stone), concerning marriage. These names, as obscure as they are, caught on, and the other codifiers used these titles when they discussed the halakhot. Although Maimonides’ approach was clearly the more straightforward and rational one, the other codes are – for reasons we will see shortly – more commonly used.

Questions

  1. Why did Jacob ben Asher and the other codifiers decide to write their own codes?
  2. Why did the general Jewish population prefer the later codes?
  3. What are some examples of content that can demonstrate the contrast between Maimonides’ code and the later codes?

The Perceived Problems with Maimonides’ Mishneh Torah

A code of law, by definition, presents the law in a clear, precise and organized fashion so that both jurists and the population can see what behavior is permitted and what is disallowed. A law code should not be a volume of discourses containing the source of the law, its historical development, or a legislative discussion of differences of opinion.

Maimonides was a prolific reader and was familiar with the Islamic code of law as well as the law books of other nations and their styles. He recognized the logic of the clear, organized method of presentation using concise, decisive statements of the law, a method still used by other cultures today. He wrote his code in this fashion, focusing on the needs of the jurists and the general population.

In doing this, Maimonides altered the traditional Jewish presentation of law. The conventional approach to halakhic, that is “legal,” study was and is to consider the opinion of all of the rabbis on the subject under discussion. In fact, both the Mishnah (composed in the third century) and the Jerusalem and Babylonian Talmuds (fourth and sixth century, respectively) present various views on different subjects without actually stating the decisive halakhah. The primary focus is on discussion, not decision.

This talmudic method has certain advantages. It helps sharpen the students’ minds and it lays out views that, although not decisive, may be taken into consideration when situations change. However, it obviously fails to present a clear final statement of the law that can be readily used by jurists and the general public. In fact, the discursive style and the placement of different parts of a subject in various talmudic tractates, rather than collecting an entire subject in a single volume, precludes anyone other than scholars from using it for legal decisions.

Maimonides’ father’s teacher, ibn Migash, learned from Isaac ben Jacob Alfasi, who had composed a concise digest of the Talmud in twenty-four volumes, called Sefer Hahalakhot. In this work he removed most non-halakhic homiletical discussions and halakhic deliberations and disagreements, leaving the final decisions somewhat clearer than earlier books. However, Alfasi’s work was still talmudic. It summarized the discussion of the page concisely, but it did not collect the discussions on the subject from the other tractates, and it retained the talmudic language. Most readers did not object to the removal of the rabbinical discussions about the various subjects and laws.

Maimonides’ organized code, similarly, did not include the conflicting opinions and omitted the sources of the laws. But he went further than Alfasi. He collected all of the relevant halakhic information from the various tractates under one subject. However, some rabbis felt that the rabbinical discussions and the indication of sources that he omitted were necessary. Asher ben Yechiel (c. 1259–1328, known as Asheri or Rosh), for example, bothered by the absence of the conflicting opinions, arrogantly disparaged Maimonides’ code by saying, “He writes his book as if he were prophesying from God.”[2]

Yet, despite these protestations, the post-Maimonidean codes never dismissed the Maimonidean views in their entirety. This was impossible simply because of the wisdom of Maimonides. Thus, Jacob ben Asher took the approach that he would render a halakhic decision based on the consideration of three giants: his father Asher ben Yechiel, just mentioned, Alfasi, discussed earlier, and Maimonides. When Joseph Karo wrote his code he considered the three giants and Jacob ben Asher. Moshe Isserles, in turn, grounded his glosses on Karo’s work, but supplemented them with the non-Spanish customs of Poland.

The Real Reason for the New Codes

The omission of rabbinical discussions and the source of the laws were the ostensible, though probably not the entire, reason other rabbis felt they had to write their own codes. This is obvious because if these two omissions were what really bothered the rabbis who composed new codes, they should have been satisfied by only adding glosses indicating the sources and opposing views.

The true reason, in all likelihood, was the inability of the non-rationalists to deal with Maimonides’ rationalism and his refusal to include superstitious practices, magical conduct, use of omens, mysticism and other irrational behaviors that were so dear to the general public. These non-rational behaviors were rampant among many Jews – including numerous rabbis.[3]

Examples of Non-rational Rules in the Post-Maimonidean Codes

Weddings

Fear for the future, a deep desire for a life of contentment, and a conviction that one can control evolving events by magical means unconsciously led and continue to lead many people to resort to the observance of omens and the performance of other superstitious acts. Thus, it should be no surprise that the wedding ceremony, for example, a time when a couple should consider the truths of life and begin to control their future rationally, is filled with irrational behavior. The post-Maimonidean law books codified these types of behaviors.

The Shulchan Arukh, Yoreh De’ah 179:2,[4] which contains the practices of the Sephardic (Spanish, North African and Israeli) countries, states that men[5] should marry women only during the full moon, but Moshe Isserles, who wrote about the Ashkenazic (German and western European) behavior, states that the practice in his country was for males to marry females at the beginning of a lunar month, when the moon is increasing in size. This procedure is not mentioned in talmudic or gaonic literature or in Maimonides’ Mishneh Torah. Rashba (ben Aderet) curiously defended the superstition against those who mocked it, “it is not divination, but just as kings are brought to water so that their reign should prosper [and grow], so [the wedding is] performed at fullness and not when [the moon] is decreasing, and it is a good sign…it is not superstition (darkei ha’amori).” Rashba wrote that Nachmanides also advised people to marry at the appropriate lunar time.

The Superiority of Right over Left

How do people start their day to assure success? Maimonides begins his code with teachings about God and the need to acquire knowledge. The post-Maimonidean codes,[6] in contrast, instruct people to put on their right shoe first without tying it, followed by the left shoe, and then to tie the left shoelaces, followed by the right. Moshe Isserles states that in his country, where shoes have no laces, people should put on their right shoe first. The commentary Sha’arei Teshuvah states that if people are left-handed, they should reverse the procedure. The commentary Magen Avraham states that when people wash their hands, they should wash the right hand first.

The generally-accepted explanation for the requirement is that the right thumb and right large toe are important but the left arm is significant because it is where the tefillin are placed, therefore both right and left should be shown respect.

This explanation is problematical. According to this account, the right hand is practically important and the left is spiritually significant. Since the Shulchan Arukh always emphasizes the spiritual, it is rather strange that the right hand is given precedence in that the right shoe (or the left, for a left-hander) is put on first. Additionally, consistency with the emphasis on the spiritual should have required that the left hand be washed first.

Therefore, it is clear that the right hand is given preference because the ancient nations superstitiously viewed giving the right priority as the correct way to perform activities because they saw that most people are right-handed. Indeed until recently many parents made outrageous attempts to wean their children away from using their left hand in writing and other similar activities – sometimes with negative psychological results. It was for this reason that the ancients believed that people must always begin activities with the right, including walking, and, for that matter, always turn to the right when it is at all reasonable to do so. They thought that this human act of using the right would drive, indeed force, nature by sympathetic magic to produce a fortuitous occurrence. Jews were influenced by this superstitious thinking and adopted many practices based on it.

Maimonides mentions the preference of right over left in Mishneh Torah, Hilkhot Bet Habechirah 7:2, but inserts no superstitious notions. He states that a person needs to show the site of the ancient Temple respect, even though it no longer exists. Therefore people, for example, should enter the site from the right so that other people who see them know that they are experiencing no problems. Those who do have problems, such as being in mourning, should approach from the left. In this way, although Maimonides does not note it specifically, people would know whether they may approach the individual and console or help him or her in another way.

Sleeping

Shulchan Arukh, Orach Chayim 3:6 mandates, “It is forbidden to sleep in a bed facing east and west if his wife is with him [meaning, for sexual intercourse] and it is proper to be careful [not to do so] even if his wife is not with him.” The commentary Magen Avraham refers to the Zohar and states that there is a mystical reason for this requirement. The author of the Shulchan Arukh and many other non-rationalists were convinced that the shekhinah, the divine presence, was not a human feeling of the presence of God, but an actual divine being. Therefore, the commentary Magen David explains that since the shekhinah dwells in the west, it is forbidden for a person to turn his face[7] or rear toward the shekhinah, especially during sexual intercourse.

In Mishneh Torah, Hilkhot Bet Habechirah 7:8, Maimonides states that a person should not sleep or use the bathroom while facing west but explains that it is one of many ways in which Jews remember the ancient Temple with respect: since the holy of holies was in the west of the Temple, it is proper to recall this by abstaining from these two activities.

Washing

Shulchan Arukh, Orach Chayim 4:2 orders a person to wash his hands three times with water in the morning “to remove the demonic spirit (ruach ra’ah) that is on them.” The commentary Be’er Heitev explains that it is not sufficient if he pours water once on his hands, even if he pours a considerable amount of water, because the problem of the presence of the demon is only resolved with the use of the magical number three. Orach Chayim 4:8 states that this water may not be allowed to fall on the ground, but must be poured into a vessel, because the water on the ground would contaminate the house with the demonic spirit that is now in it. Orach Chayim 4:9 warns that the water must be poured away from human habitation. As with putting on shoes (see the discussion on right vs. left above), 4:10 requires the person who is washing to give precedence to the right hand in two ways. He must take the vessel containing the water with his right hand and then put it into his left hand so that he can pour the water on his right hand first.

Bathroom Habits

Shulchan Arukh, Orach Chayim 3:10 prohibits people who have completed defecating from wiping themselves with their right hand. The commentators explain that the right hand should not be used because it is also used to point to the Torah and, in addition, God gave the Torah with His right hand. Maimonides, it should be recalled, abhorred the incorrect notion that God has a physical body, including a right hand.

Shulchan Arukh, Orach Chayim 3:11 also mandates that “A person may not clean himself with earthenware because of witchcraft.” This rule was not instituted for safety reasons, to avoid scratching oneself, but is based on a superstition mentioned in the Babylonian Talmud, Shabbat 82a, where an evil woman says she is unable to harm the rabbis because they do not clean themselves with a shard; cleaning with a shard would expose them to witchcraft.

Superstitious Fear of the Evil Eye

Shulchan Arukh, Orach Chayim 140 prohibits a father and son or two brothers from being called one after another to read from the Torah because it may produce the diabolical damage of the evil eye.

Protecting Oneself from Demons

Shulchan Arukh, Orach Chayim 487 rules that a Jew should not say the prayer Mei’ein Shevah (a concise version of the central Amidah prayer) on the night of Passover because the prayer was instituted to protect latecomers to the synagogue from demons; on the night of Passover, the book says, God protects Jews from demons and there is no need for the prayer.

Using Salt against Demons

Shulchan Arukh, Orach Chayim 475 states that people should put salt on their bread at meals to frighten away demons, but this is unnecessary on Passover when God protects them from demons.

Astrology/Demons Perverting Justice

In his commentary to Jacob ben Asher’s Shulchan Arukh, Choshen Mishpat, Hilkhot Dayanim 25, Joseph Karo[8] mentions the opinion of Asher ben Yechiel who states that sometimes mazal can pervert justice. It is unclear what Asher ben Yechiel means by mazal, but it is clearly referring to either astrological forces or demons. Asher ben Yechiel states that sometimes the mazal likes one of the litigants in a courtcase and forces the judges hearing the case to decide the case according to the view of their favorite, even though the law – when not affected by demonic forces – would have been decided against that favorite.

 

[1] Shapiro, Studies in Maimonides and His Interpreters, 1. Among other things, Shapiro lists over fifty different talmudic halkhot that Miamonides omitted from his code of law because they were prompted by superstitious notions.

[2] Shailot U’teshuvot Harosh 31:9.

[3] See an example of Asher ben Yechiel’s superstition below and note 138.

[4] See Sperber, Minhagei Yisrael, 8:37–40.

[5] The focus on the male is in the original code.

[6] Karo, Shulchan Arukh, Orach Chayim 2:4, 5.

[7] This is based on the notion that one can see the shekhinah, but that it is improper to view it. This is the same reason for not looking at the priests when they recite the priestly prayer during synagogue services: the shekhinah is present with them during the recital.

[8] Joseph Karo, the author of the Shulchan Arukh, believed in demons and was convinced that a demon visited him frequently and told him how he should decide laws. He wrote a book recounting these decisions.

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