Post-Talmudic authority and the elusive status of a 'rishon'

One of the frustrating realities of publishing a book is the need to terminate one’s never-ending pursuit of perfecting the manuscript; not just in terms of stylistic improvements but also for identifying and verifying one’s sources. In an attempt to ensure that my books are reliably sourced, I was very reluctant to include citations that I could not personally verify – however supportive and tantalizing they may appear.

One such source that would have added significantly to my analysis of post-Talmudic authority in chapter 6 of Talmud Reclaimed was a recording of a shiur by Rav Herschel Shachter on the topic, in which he stated as a tradition from the Gra that

“when a qualified talmid chakham analyzes a halakhic topic and determines the pesak halakhah with certainty, and then sees that the Shulchan Arukh rules differently, the talmid chakham may not follow the view of the Shulkhan Arukh. To do so, he maintains, would be a violation of the Torah prohibition Lo sisa pnei dal v’lo sehedar pnei gadol – Do not favor the poor; do not honor the great. Just as a dayan is forbidden to tilt his judgment in favor of a litigant who is poor, or one who is wealthy and distinguished, so too in a matter of practical halakhah, a talmid chakham may not pasken in favor of the Shulchan Arukh against his own conclusion.”

This quote now appears – fully sourced – in Rav Schachter’s newly-released Divrei Soferim which I picked up on my recent trip to America. It appears to bolster the way in which Talmud Reclaimed develops Rambam’s approach to the concept of post-Talmudic halachic authority.

As presented by Rambam in his introduction to Mishneh Torah, “Ravina, Rav Ashi, and their colleagues represent the final era of the great Sages of Israel who transmitted the Oral Law…all the matters mentioned by the Babylonian Talmud are incumbent on the entire Jewish people to follow”. Such broad and binding authority was never achieved in subsequent scattered and squabbling generations. As a result “if one of the Geonim interpreted the path of judgment in a certain way, while the court which arose afterward interpreted the proper approach to the matter in a different way, the [opinion of the] first [need] not be adhered to [absolutely]. Rather, whichever [position] appears to be correct - whether the first or the last - is accepted”.

The position expressed by Rambam appears to have been followed for many centuries after the Talmud’s conclusion. While Geonim and their legal rulings were revered and respected, Rishonim from France to North Africa did not hold back from expressing their own views and interpretations of halacha, even when this put them into conflict with earlier post-Talmudic rulings. In some ways it may even be seen as a mark of respect that Tosafot so often quoted and explained the earlier opinion of Rashi – before proceeding to dispute it.

Talmud Reclaimed tracks how this attitude gradually changed in the aftermath of the Tosafists, and in particular the Shulchan Aruch’s codification – despite strongly-worded protests from leading contemporary scholars such as the Maharal and Maharshal. It argues that one consequence of the creativity which the Tosafists reintroduced into the halachic process is that halachic rulings became increasingly associated with and reliant upon the scholarship and personality of the Sage who made the ruling.

Earlier methodologies of Rif, Rambam and Rashi had focused more on identifying simple conclusions of primary Talmudic passages. This is reflected by the relative infrequency of major disputes between them, and in Rambam’s stating that he did not need to provide sources for his rulings in Mishneh Torah since they were all believed to be simple Talmudic conclusions. Tosafot, in contrast, attempted to reconcile numerous Talmudic passages and principles before reaching a legal ruling. This process required them to introduce a whole range of innovative features, logical arguments and contextualisations. It also meant that the process of halachic determination became far more subjective – and therefore more associated with the authority of the rabbi who formulated it.

This newfound post-Talmudic innovation, coupled with the rise of kabbalah and its tendency to maximize the level of divine-inspiration which its sages were believed to receive, led to the birth of a new concept: The post-Talmudic “authority of a Rishon” and then of the Shulchan Aruch.

The passage cited above from Rav Schachter’s new book is fascinating in that it highlights how the Gra appeared to return to the earlier principles of post-Talmudic authority. His insistence on ruling according to simple conclusions of Talmudic passages – even where earlier post-Talmudic authorities disagree – is a defining feature of his halachic methodology which often brought him close to the halachic (if not philosophical) positions of Rambam.

See more at www.TalmudReclaimed.com.

First posted on Facebook 25 February 2024, here.