TALMUD RECLAIMED AND RESCUING RAMBAM’S
TALMUDIC METHODOLOGY: CONCLUDING REMARKS
This essay is a response to Rabbi Krakowski’s “Rejoinder” to my essay which was printed in its previous edition on the subject of my recent book, Talmud Reclaimed. Here I will clarify a couple of key misunderstandings which crept into this discussion and restate my position in a clear and concise manner. It will also address a couple of probing questions that Rabbi Krakowski posed in his Rejoinder and thereby further develop some of the ideas that I analysed in the chapter of Talmud Reclaimed under discussion.
“Rambam’s methodology is known” [Kessef Mishneh,
Keriat Shemah 4:7]
The main thrust of my essay was a response to the assertion, with
which Hakirah
introduced Rabbi Krakowski’s initial review of Talmud Reclaimed, that his review “demonstrates, contrary to the claim of many, that
the methodologies of Talmudic analysis of
Rambam and the Ba‘alei Tosafot were, in fact, not far apart1”. In order
to counter this position, I cited numerous statements from a whole range
of respected rabbinic commentaries (such as Kessef Mishneh, Migdal Oz and the Netziv) as well as contemporary academic works which all
demonstrated that the vastly different Talmudic methodologies of Rambam and the
Tosafists are abundantly clear.
To briefly summarise the theory I advanced in Talmud Reclaimed and my Hakirah
essay, I proposed that Tosafot’s looser
understanding of the notion that Ravina and Rav Ashi constituted “sof hora’ah” made them (i) relatively more amenable to arguments that Talmudic
law could on occasion be amended in order to be applied more effectively in later times
and (ii) more willing to introduce their
own theories and judgments in order to reconcile and
synthesize Talmudic passages which appeared to be in conflict. Rambam, by
contrast, followed a Geonic tradition in applying a stricter and more formulaic
methodology through which he identified primary Talmudic passages and recorded
their conclusions as halakhah, setting aside in the process any innovative
interpretation or tangential Talmudic source.
1 Hakirah vol. 35, p8.
2 Hakirah vol. 36, p218
from his own mind since
he distances himself from making any change
to the Gemara3”.
Explicitly contrasting Rambam’s
approach to that of Tosafot,
Rav Yosef Karo notes
more than once how “Rambam’s methodology is known, in that he simply records
the law as it emerges from the Talmud…” [Kessef Mishneh, Hilchot Keriat Shema 4:7]. This consistent methodology, as the Netziv describes in Kidmat HaEmek, is a reflection of Rambam’s clear Geonic tradition which allowed
him to avoid problems which others, such as Tosafists, sought to resolve
through innovative pilpul. This is just a very small sample of the sources which I presented.
But even if we suppose that these traditional commentaries to Rambam
can be ignored, countered or reinterpreted, there is one further source as to
how Rambam approached the task of Talmudic interpretation when compiling Mishneh Torah – a first-hand account written by Rambam himself which appears
thoroughly consistent with how his primary commentaries understood his
methodology. Responding to a concerned inquiry from Rabbi Pinchas
HaDayan about the lack of Talmudic sources in Mishneh Torah, Rambam
responds that all his rulings are explicitly replicating Talmudic rulings,
before adding the crucial words that:
“Anything
which has arisen from my own analysis I note explicitly “the matter appears such to me” [yira’eh li] or “from
here it can be derived
that the matter
is such” [mikan atah lomed].4”
Such phrases are relatively rare in the Mishneh Torah clearly
indicating that, in Rambam’s own words, the vast majority of his rulings
there do not arise from his own analysis. We can surmise from this,
as the Migdal
Oz would later state explicitly, that careful
restatement of the law without innovation, interpretation or personal input
lies at the very heart of Rambam’s project of Mishneh Torah – a name chosen to reflect this strict methodology of repetition
without elaboration. Rambam’s own words render
any further debate and thumb-twisting as to his methodology entirely redundant.
Despite these clear and unambiguous statements by Rambam and his
earliest commentators concerning his methodology, which I elaborated on in Talmud Reclaimed and cited in my recent Hakirah
essay, Rabbi Krakowski critiques my suggestion that
Rambam possessed a simple and consistent methodology as a “caricature”. In the face of
Rambam’s own words, and Migdal Oz et al who describe Rambam as simply recording
Talmudic conclusions without interpretation or innovation, Rabbi Krakowski
states confidently that:
“Rambam
also often synthesizes different sources and subjects them to vigorous
interpretations to bring
them into accord
with each other
in a manner that resembles that of the Tosafists.5”
3 Hil.
Shevitat Yom Tov chap. 4.
4 Iggrot HaRambam, Shilat edition p443.
5 Hakirah vol. 36, p218.
And
“Both
Rambam and the Tosafists must reckon with the same ambiguities and conflicting sources,
and both offer creative interpretations of these sources,
even if, in the Mishneh Torah,
this is done implicitly rather than explicitly.”6
If Rambam had wanted to tell us that his Mishneh
Torah does not include such creative interpretations and innovations, one wonders how much more clearly he could have presented his position!
The Talmudic perspective and approach of the Tosafists, by contrast,
has become so popular and widely practiced that many find it hard to imagine
Talmud study without it. This difficulty is what leads to the historically
flawed and anachronistic practice of
studying Rambam through
the lens of the Tosafists and considering that he pursued a similar methodology.
We are fortunate that a number of important halachic and academic
figures preserve the significant divergences between these Tosafist and
Maimonidean methodologies. Most
notably the Maharshal, who writes glowingly of the revolutionary nature of the
Tosafist enterprise: that the innovations of the Ba’alei Tosafot combined all of the
elusive strands of the Talmud
“into a single
ball7” thereby transforming
the Talmudic landscape which had previously been a maze of internal
contradictions which was impossible to navigate.
The chapter of Talmud Reclaimed in question proceeded to develop and analyse these ideas further,
bringing many more sources and over 30 case studies. In the interests of brevity, I will spare readers further analysis
of these case studies
which demonstrate the distinct Maimonidean and Tosafist methodologies
(on several occasions the traditional commentaries point this out explicitly).
Interested readers can find them all detailed in the relevant Talmud
Reclaimed appendix; several are also elaborated
upon in my essay in the previous edition of Hakirah8.
How Rambam approached contradictory sugyot
One point that does require
further clarification, however,
is Rabbi Krakowski’s claim that the methodology that I have proposed was employed by
Rambam is “self- contradictory”:
“A
more basic problem with this approach is that it seems to be
self-contradictory. If Rambam rules in accordance with the major sugya against
the minor sugyot, this would mean that he does not rule in accordance with two
contradictory sources. In the words of Prof. Haym Soloveitchik quoted by
Phillips, the sugya de-shmateta approach dictates that, “When confronted with a contradiction, one should follow the
6 Ibid p227.
7 Introduction to Yam Shel
Shelomo. A similar point was made
eloquently by Professor Haym Soloveitchik - see the masterful passage
I quoted in the previous Hakirah
edition detailing how the
innovative approach of the Tosafists to contradictory Talmudic
sugyot represented a radical departure
from prior methodologies among the Rishonim.
8 I advise readers to refer directly
to my presentation of these cases and not to the reviewer’s attempt to
reproduce them which on occasions
omitted crucial elements
of both my argument and the original
sources on which my arguments
are based.
conclusions
of the dominant discussion, even if other Talmudic discussions of the problem
would seem to imply a different outcome.” Yet according to Brody’s and
Phillips’ understanding of R. Hai Gaon and R. Avraham, the Geonic-Maimonidean
approach would have us accept both contradictory sources without rejecting
either. In Brody’s words, “one should follow both specific rulings and not
worry about reconciling them…qal vahomer in cases in which the gemara never
suggested there was a contradiction and such a ‘contradiction’ was only ‘discovered’ by later scholars who juxtaposed different
sugyot.” Which one is it? Does the Geonic methodology require deciding
contradictions in the Talmud according to the major sugya, or does it accept
both sides of the contradiction? Phillips does not address this problem and
seems to be unaware of this methodological self-contradiction inherent to his approach.9”
Rabbi Krakowski here has conflated
two different Talmudic
scenarios, each of which
demands its own treatment10:
Scenario A: Major and Minor sugyot
In this scenario, the primary Talmudic discussion of a certain
halachic subject takes place in one location with an apparently clear
conclusion. Additionally, the Gemara elsewhere briefly relates certain details
tangentially as part of its discussion of an unrelated topic. The Rambam’s
received methodology here is to focus solely upon the “sugya deshmatesa” and its conclusion and not pay attention to the contradictory information being
related in the tangential
passage. This is in contrast
to the Tosafist approach which seeks to integrate the tangential
passage by somehow combining it with or distinguishing it from the primary
source –
often with significant halachic ramifications. Many examples of
this contrast are offered in Talmud
Reclaimed.
It is important to note that this technique has its source in the
Talmud itself. On Niddah
50a, the Gemara inquires as to why Rabbi Yochanan
resolved a Tannaitic contradiction between two unattributed Mishnayot concerning monetary law by ruling in favour of one of them. It
concludes that Rabbi Yochanan recognised the Mishnah which was taught among
other monetary laws as primary (“ikkar” in Rashi’s words), and therefore elevated it over the Mishnah in
which the detail of monetary law was enumerated tangentially. As Yad Malakhi notes11, this is a principle which is widely
9 Ibid. pp222-223.
10 While Talmud Reclaimed
treats these two scenarios in separate subsections of the chapter,
I concede in retrospect, that I should have
distinguished more explicitly between them.
דרך הרמבם דבכל מקום שיש שני סברות הפכיות בתלמוד ופסק תלמודא כחד מינייהו, מטעים מתוך דבריו שלילות 11 אותה הסברא דלא חש לה תלמודא
This approach is likely to have been transmitted to Rambam from the Geonim
via the Rif. See Ran to the Rif at the
end of the fourth chapter of Beitza “badelet”.
In footnote 2 of his Rejoinder, Rabbi Krakowski questioned why I cited this principle of the Yad Malakhi
in order to clarify Rambam’s methodology rather
than what he suggests is a “more relevant” rule of the Yad Malakhi (#495) which appears to significantly qualify what I
quoted. The reason for my choice of quotation from the Yad Malakhi is that it is contained in his subsection dedicated
specifically to the rules and methodology adopted by the Rambam. By contrast
#495, proposed by Rabbi Krakowski, is a citation from the Yad Malakhi’s broader Kelalei
and consistently applied
by the Rambam in reaching
his Mishneh Torah rulings. The Kessef Mishneh regards it as so basic and self-evident that we find him casually
dismissing, within Rambam’s approach, the sort of tangential sugyot that
Tosafot integrate in order to produce radical interpretive and legal
innovations12. In Rambam’s approach, it is simply not legitimate to reinterpret
the plain meaning of a primary sugya
in order to integrate the implications of a
tangential passage.
Scenario B: Apparent
contradiction in underlying rationale:
The second scenario is that of multi-sugya disharmony, which
does not involve a clash between a primary sugya’s ruling and
counter-indications from tangential passages.
Rather it consists of a set of parallel rulings
in different areas of halakhah,
all of which are either explicitly – or according to an implied
understanding – underpinned by a
single halachic principle which appears to be inconsistently applied13.
Multi-sugya disharmony: A helpful case
study
A good example
of this phenomenon of parallel sugyot
whose underlying principle appears to us to be
inconsistent, which was discussed both in my response and Rabbi Krakowski’s
Rejoinder, is the question of כוונה צריכות מצוות.
In Hil. Hametz u-Matzah (6:3), Rambam rules that one
fulfils the obligation of eating matzah even without intention (kavanah), but in Hil. Shofar (2:4) Rambam
rules that without kavanah, one does not
fulfil the mitzvah of shofar.
The
problem is further
HaShas in the name of the Ba’al Ha’Ittur
of France - a colleague of Rabbeinu Tam - who as expected
pursued an approach more
consistent with the Ba’alei Tosafot.
This difference between Maimonidean and Tosafist approaches to the necessity
and desirability of integrating tangential sugyot, even where this requires an
innovative rereading of the primary source, is demonstrated in the next
footnote.
12 See Kessef Mishneh
to Hil. Yesodei HaTorah
5:1:
.ולית ליה דרשה דאל תקרי לבת לומר דהיתה אשת איש
Contrast this with the lengths to which the Ba’alei Tosafot go
to reconcile and integrate this tangential sugya with the primary one (and the radical
halachic leniency this produces) in Sanhedrin
74b “veha” - as well as the
important comments on this of the Meiri to Ketubot
3a.
13 It is concerning this second
scenario that Rabbeinu Chananel (Baba
Batra 52) cites Geonic traditions that it is not proper to seek to innovate
interpretations and distinctions in order to reconcile Talmudic rulings with
apparently contradictory underlying principles. Rather we rule with each case according to its own conclusion and pesak:
והיכא דקשיא תרוייהו אהדדי בטעמייהו ולא מפרק קשיא עבדינן כי הא בדוכתא וכי הא בדוכתא ולא חיישינן לאשכוחי טעמא
ולפרוקינהו
This source has been cited in a number
of scholarly works cited in my previous
essay which see it as representing
a broader Geonic tradition and is further
supported by the analysis in this essay.
(See also Professor
Brody’s letter at the front
of this volume).
complicated by Rambam’s
ruling in Hil. Keriat Shema (2:1) that Keriat Shema requires kavanah, while in Hil. Megillah (1:2) Rambam does not require kavanah for the obligation of Megillah to be fulfilled.
The approach endorsed by Rabbi Krakowski to this second multi-sugya scenario
understands the Rambam to have surveyed the Talmudic landscape, determining the halakhah in these four cases in a way that
would avoid any conflict between their underlying reasoning. Only after
having achieved a satisfactory resolution would Rambam be prepared to include
these laws within his Mishneh
Torah. This presumption entitles the question to be
asked, legitimately, why Rambam recorded these laws regarding kavanah in a way which appears to constitute a direct contradiction.
Commentators who pursue Rabbi Krakowski’s approach typically respond by
proposing qualifications and innovative interpretations in order to distinguish
between the various sugyot
in question and thus show that Rambam’s rulings
align perfectly.
The more detailed and elaborate these proposed innovative theories
become, however, the more powerfully the question presents
itself as to why Rambam himself failed to mention – or
even hint at – his subtle reasoning. Are we to
assume that all of these theories were so obvious to Rambam and his immediate
audience that he felt that it would be unnecessary to mention them? To the Chazon Ish, such a suggestion was preposterous:
“It is a wonder, how is it possible
that Rambam…conceals this matter within his language as if he were trying to
hide his intention from his students?…[it] would be possible to discuss were
the law to appear explicitly in
the Talmud, but it is not proper to innovate a new law…which requires one to
construct innovation upon innovation…It is impossible for a wise person to understand this logically. The words
of Rambam would be [thus turned into] a secret code. [If this was Rambam’s
meaning], why would he not have explained himself properly?” 14
Rambam, a systematic and methodical thinker,
was certainly not averse to disclosing
the underlying principles which guided whole sections of case law in Mishneh
Torah, happily introducing certain chapters with
guidelines that clarify his categorisation of Talmudic law. Before embarking,
for example, on his detailed enumeration of the laws of forbidden work on Chol Hamoed, Rambam
first clearly sets out the governing principles as to when work is and is not
permitted:
כל מלאכה שאם לא יעשה אותה במועד יהיה שם הפסד הרבה עושין אותה ובלבד שלא יהיה בה טרח הרבה. כיצד....15
And perhaps more significantly for our discussion, Rambam introduces
his laws of Temurah with an explanation as to why this commandment attracts a penalty of
lashes, even though this is inconsistent with the general
rule of אין מעשה בה שאין לאו עליו לוקין. What is crucial is that, in both of these examples, the guiding explanation
14 Gilyonot to Chiddushei
Rabbeinu Chaim Halevi
al HaRambam Hil. Ma'achalot Assurot
3:4, and to Hil. Yom
HaKippurim 5:1.
15 Hil. Shevitat
Yom Tov 7:2.
furnished by Rambam is found within the Talmudic text itself rather
than being the fruit of his own innovative reasoning. This makes it even harder
to argue that, in other rulings that are perceived
to present contradictions, Rambam intended that his
readers engage in whole processes of pilpul and innovative interpretation in
order to discover his intent.
We return now to our case study of כוונה צריכות מצוות, where it is being argued that Rambam’s apparently
contradictory rulings were guided – and can thus be resolved by – an unstated underlying principle. Let us ask ourselves just how likely it is
in this case that such a guiding principle was so obvious to Rambam that he
considered it unnecessary to record for his readers.
When surveying the mass of learned writing on the subject, it is
striking quite how many variant approaches to this question of reconciliation
are offered by respected traditional commentators. Some seek to distinguish
between the nature of the action or speech involved in each of the mitzvot, or whether or not the person performing the mitzvah receives any form of physical benefit. Others suggest that the
distinction lies in the type of kavanah
under discussion, while a further group proposes
that there is no underlying logical
distinction at all between the cases, rather
the apparent inconsistency is
the result of a gezerat
hakatuv. Each of the suggested rationalisations is
keenly debated and questioned by these commentaries16, with the Maggid Mishneh concluding that none of them pass muster and that there must be a
corrupted text involved. Rambam’s own son, in the letter we quote below, states
that he was puzzled for years by this question. Yet we are to suppose that
Rambam subscribed to one of these innovative rationalisations and nevertheless
remained absolutely silent about it – presumably in the understanding
that it would be obvious to his readers and therefore unnecessary to state?
In light of Rambam’s own description of his non-innovative Mishneh Torah methodology as well as the illuminating sources cited in the first
section of this essay, we are entitled to ask ourselves whether there exists a
far more plausible alternative which can explain Rambam’s
recording of these
apparently contradictory
Talmudic rulings.
What might have been running
through Rambam’s mind when he recorded these laws regarding the requirement of kavanah?
We can assume
that Rambam was aware of and would
have considered all – or at
least most – of these suggested rationalisations. There
is no way for us to determine whether he fully embraced any one of these
possibilities and rejected others or, in keeping with the Maggid Mishneh, found none of them particularly persuasive.
Alternatively, he might have considered all of them to be potentially valid resolutions
with no way to confirm which one the Talmud truly intended17.
None of this is
16 The various
approaches and the questions proposed
to challenge each of them are summarised in the Mesivta
to Berachot in the Iyunim category #7 titled
כוונה צריכות מצוות.
17 Rambam might
even have entertained the possibility that these apparently inconsistent applications of מצוות כוונה צריכות are the result of some form of compromise, in which the same
basic question follows different opinions in different areas of halakha. See
for example Rabbeinu Tam (Kiddushin
23b s.v. Rabbi Eliezer, and some other Rishonim
to that sugya) who considers that the
legal principle of בעלה כיד אשה יד is applied
inconsistently for this reason.
relevant, however, since Rambam in Mishneh Torah simply
“records the law as it emerges from the Talmud” [Kessef Mishneh] and
therefore “it would not have occurred to Rambam to innovate explanations from
his own mind” [Migdal
Oz]. Had the Rambam been studying a tractate of
Talmud or presenting a shiur on the topic he
may well have analysed the relative merits and drawbacks of each of these
theories as part of the broader project of Talmud Torah. As far as his Mishneh Torah methodology goes,
however, Rambam has informed us in the letter to Rabbi Pinchas HaDayan that he only recorded
clear Talmudic conclusions and does not include innovate explanations which are
absent from the Talmudic text18.
It is important to stress this this methodology is not, as Rabbi
Krakowski caustically caricatures it: “Rambam was contradicting himself because
that was his methodology19”. Rather he is recording each Talmudic ruling
as it emerges from the sugya in question,
confident that the Talmud possessed a valid rationale for its apparently
inconsistent rulings. Speculation as to what that unstated Talmudic rationale
might have been, however, is not part of the agenda of Mishneh Torah, as will be discussed in more
detail below.
Rambam’s methodology, which was demonstrated in Talmud Reclaimed to be the continuation of a prior Geonic approach, is reflected in his son’s two-tiered approach to this question of apparently
contradictory rulings in the Mishneh Torah regarding כוונה צריכות מצוות. First, Rav Avraham ben
HaRambam maintains that this deep question should not be addressed to his
father:
ברכת אברהם סי' לד:
ואי קשיא לך מאי שנא שופר ומגילה משאר מצות, זו ודאי קושיא עמוקה היא,
והיא על
הגמרא לא
על אבא
מארי זכרו לחיי העולם הבא
Secondly, having noted that the question can nevertheless be legitimately posed to
the Gemara, Rav Avraham proceeds to offer one of the many resolutions
summarised above:
וכמה זמן נתקשית לי קושיא זו אחר פטירת אבא מארי ז"ל עד דאשכחת בה טעמא והוא שהמצות דאמרינן בהו מצות אינן צריכות כוונה מצות שקיומן בעשיית
מעשה שגוף אותה העשייה היא
המצוה
18 In this case, the clear Talmudic
conclusions are explained
by the Kessef Mishneh:
דבתקיעת שופר כיון דחזינן דרבי זירא אמר לשמעיה איכוין ותקע לי נקטינן דצריך כוונה אבל בכפאוהו ואכל מצה כיון דלא חזינן
בגמ׳ מאן
דפליג עליה
בהדיא לא דחינן לה
Unfortunately, Rabbi Krakowski’s
quotation from this Kessef Mishneh (and
accompanying sarcastic comment) in the Rejoinder omits
these crucial words at the start of his commentary which make it clear that Rambam is ruling
on the basis of the kelalei hapesak in
each respective sugya rather than
relying on an innovated interpretation (albeit that there is a subsequent suggested rationalisation once
the ruling has been made the function of which
will be discussed below).
19 Ibid. p221.
Rav Avraham’s split approach raises a number
of difficulties:
·
If this apparent
contradiction is indeed
a deep question, why would
it not be relevant to raise against his father and only against the
Gemara?
·
When Rav Avraham proceeds
to provide one of the several resolutions listed above, distinguishing between the required kavanah which
must accompany different types
of commandments, does he intend
to say – as Rabbi Krakowski maintains – that this was also his father’s intended yet unstated resolution?
In addition, there remains one excellent question
raised by Rabbi Krakowski in his
rejoinder which I have not yet addressed:
·
What would Rambam have said to someone who asked him whether mitzvot other than shofar and matzah require kavanah? Are we to believe that the Mishneh Torah has no opinion about this
basic question20?
The final section
of this essay
will be devoted
to responding to these questions.
MISHNEH TORAH: “TORAH SHEL BAAL PEH” NOT “GEMARA”
The final piece of this jigsaw requires us to analyse
Rambam’s introduction to his Mishneh Torah, paying careful attention to the crucial
way in which he defines
the terms that he uses there21.
וְרָאִיתִי ְלַחֵבּר ְדָּבִרים הַמִּתְבָּרְרִים מִכָּל אֵוּלּ הַחִוּבִּרים ְבִּעְניַן
הָאָסוּר וְהַמֻּתָּר, הַטָּמֵא וְהַטָּהוֹר, עִם שְׁאָר ִדּיֵני הַוֹתּרָה, כֻּלָּם בְּלָוֹשׁן בְּרוּרָה ְוֶדֶרְך קְצָרָה, עַד שֶׁתְּהֵא וֹתּרָה ֶשְׁבּעַל פֶּה
כֻּלָּהּ סְדוּרָה בְּפִי הַכֹּל
בְּלֹא קֻשְׁיָא וְלֹא ֵפּרוּק כְּדֵי שֶׁלֹּא יְהֵא אָדָם ָצִריְך לְחִוּבּר אַחֵר ָבּעוֹלָם ְבִּדין מִדִּינֵי ִישְׂרָאֵל, אֶלָּא יְהֵא חִוּבּר זֶה
מקבּץ לַוֹתּרָה שֶׁבְּעַל פּה כֻלָּהּ לְפִיכך קָרָאתי שֵׁם חִוּבּר זֶה: משׁנֵה תוֹרָה –
לפי שֶׁאָדם קוֹרֵא וֹתּבּרָה שֶׁבִּכְתַב תְּחִלָּה וְאַחַר ָכְּך
קוֹרֵא בָזֶה וְיוֵֹדַע מִמֶּוּנּ וֹתּרָה שֶׁבְּעַל פֶּה כֻלָּהּ
Notice how Rambam is repeatedly focused on his Mishneh
Torah being an all- encompassing compilation of Torah Shel Baal Peh. While in common
contemporary parlance, Torah Shel Baal Peh is a term employed loosely to refer to the entirety of the oral
tradition, for Rambam it represents something far more specific. When advising
his readers how their curriculum of Torah study should be structured, Rambam
provides a crucial clarification.
ְוחַיָּב לְשַׁלֵּשׁ
אֶת ְזַמן לְמִידָת:וֹ שְׁלִישׁ
בַּוֹתּרָה ֶשִׁבְּכתַב, וְּשִׁלישׁ
בַּוֹתּרָה שֶׁבְּעַל פֶּה, וְּשִׁלישׁ
יָבִין ְוַיְשִׂכּיל אַחֲרִית ָדָּבר ֵמרֵאשִׁית,וֹ וְיוִֹציא ָדָּבר מִדָּבָר ִוידַמֶּה
דָּבָר לְדָבָר;
ְויָבִין ַבִּוֹדּמּת שֶׁהַוֹתּרָה ִנְדֶרֶשׁת בָּהֶן עַד ֶשֵׁיּדַע ֵהיאְַך הוּא עִקַּר ַהִוֹדּמּת,
וְהֵיאְַך יוִֹציא הָאָסוּר ְוַהֻמָּתּר ְוַכוֹיּצֵא ָבֶהן ִמְדָּבִרים שֶׁלָּמַד ִמִפּי הַשְּׁמוּעָה - ְוִעְניָן זֶה הוּא הַנִּקְרָא גְּמָרָא
20 Ibid. p221.
21 I am grateful to my friend,
Uzi Weingarten, for helping me clarify some of these
ideas.
[Hilchot Talmud
Torah 1:11]
A third of one’s allotted study time should be spent on the written
Torah, a third on “Torah
Shel Baal Peh” and a further third on Gemara. This
makes it clear that Rambam distinguishes absolutely between these two latter
categories. “Gemara”, the teasing out of untaught laws by means of careful
comparison with existing case law and textual analysis, is thus not part of
Rambam’s agenda in Mishneh
Torah, which he describes in its introduction as a compilation of the entirety of “Torah Shel
Baal Peh”.
With this in mind we can revisit Rambam’s letter to Rabbi
Pinchas HaDayan, quoted
above, where he writes that his Mishneh
Torah rulings merely replicate those of the sages
and do not involve “anything which has arisen from my own analysis”, but rather
seek, based largely on a received Geonic methodology, to record the clear
conclusion of each Talmudic sugya22. Any innovative interpretation and analysis, we have now seen, would belong to the
category of “Gemara” – a vital component of Talmud Torah which involves
ascertaining the halakhah in cases not found in the Talmud by means of careful comparisons to existing precedent
and textual analysis.
We are now also in a better position to appreciate the comments of
the Migdal Oz, a student
of the Rashba and the first of many commentators who sought to identify
Rambam’s Mishneh
Torah sources. This Spanish Rishon, in his
description of Rambam’s methodology, notes that the Mishneh Torah is focused
solely on recording rulings which are explicit in the Talmud – rulings
that we have now seen are categorised by Rambam as Torah Shel Baal Peh – and not Gemara.
וכבר כתבתי כמה פעמים כי ר"מ ז"ל אין לו עסק בחיבור משנה תורה זה אלא 23במה
שהוא
מפורש
בתלמוד
אבל
לא
במה
שנוכל
לדקדק
מן
התלמוד
Elsewhere, the Migdal
Oz ties this critical principle into the very title
of the work, mirroring in the process Rambam’s
comments in his introduction to Mishneh Torah:
וכי יעלה על הדעת שר"מ ז"ל יוציא מלבו טעמים ויכתבם בזה החבור וכבר כתבתי 24שהוא בורח מלשנות שום שנוי מן הגמרא ולכך קראו משנה תורה
22 This idea is strongly emphasised by Yemenite sage and noted
Maimonidean scholar, Rabbi
Yosef Kappach in his commentary to Hil.
Chametz uMatzah 1:5:
תמוה מאוד לדעתי להכניס מושג...לתוך שטתו של רבנו אשר כל דבריו כאמור אינם אלא ריכוז מקורות ובמקרה של חידוש יסוד שאינו הבנת פירוש מקור דרכו להעיר "הורו הגאונים"
וכיוצא, ואם שלו אומר הוא "יראה לי..."
This is not in any way to downplay
the highly-skilled scholarship involved in compiling
and arranging the Mishneh Torah. Rav Kappach intended this as
a matter of high praise for Rambam’s Mishneh Torah – a work to which he produced
25 volumes of commentary. An excellent demonstration by Rabbi Asher Benzion
Buchman of the skill and profound insight evident in Rambam’s careful collation can be found in Hakirah #7, 2009, (especially pp 120- 122). Rabbi Buchman shows there how
delicately and deliberately laws are worded in ensure precision and maximise
meaning.
23 Commentary to Hil. Nizkei Mamon, end of chap. 2.
24
Start of chap. 4 of Hil. Shevitat
Yom Tov.
Returning to the three questions we posed above, it now makes
perfect sense that Rav Avraham ben HaRambam considered the apparent
inconsistency in principles which underpin Rambam’s rulings to be a question on
the Gemara and not on his father. After all,
Mishneh Torah is a compilation solely of Torah Shel Baal Peh which does not extend to speculating upon interpretations and
theories which are absent from the Talmudic text itself. Rav Avraham correctly
places the question of how to reconcile the underlying rationale underpinning these rulings in the realm of Gemara and, in this context, proceeds to
identify a possible resolution.
This leaves us with Rabbi Krakowski’s fascinating question as to how
Rambam would have responded to someone who asked him whether mitzvot other than the four ruled upon explicitly in the
Talmud and Mishneh Torah
require kavanah: what opinion does Mishneh Torah have concerning such a question?
The answer might be difficult to digest for someone who has not
fully absorbed and internalised the implications of the Mishneh Torah’s introduction. As we have repeatedly shown, Rambam’s agenda in
compiling Mishneh
Torah is to ascertain, arrange and record every
single Talmudic conclusion. These conclusions, which he understands to possess
binding status by virtue of their Talmudic approbation, form the final
expression and presentation of Torah
Shel Baal Peh (until such time as a new
authoritative body is established). This being the case, since mitzvot other than Shofar,
Matzah, Megillah
and Keriat
Shema are not mentioned in the Talmud, and since
the Talmud does not disclose any sort of general rule to guide kavanah requirements outside of those four cases, it would be impossible for any compilation of Torah Shel Baal Peh to
contain an opinion on the matter.
Were Rambam to have been consulted as a posek as to
the law regarding the requirement of kavanah
in other mitzvot, I would expect him to have answered, like his son Rav Avraham, in two stages. First, he would affirm
that the transmitted corpus of indisputable and fully-binding Torah Shel Baal Peh contains no clear guidance on the question. In view of this absence,
he would turn to “Gemara”, the third category of Torah study mentioned in his opening
chapter of Hilchot
Talmud Torah. This process would require him לדבר דבר לדמה – to explore and
thoroughly analyze existing Talmudic precedent and relevant scriptural sources
in order to propose what to him would be the most convincing way of ruling in
such a case.
Nevertheless, however firmly Rambam would be convinced of the correctness of his Gemara-based
ruling over that of his colleagues, he would recognize that it is not a ruling
issued by a Sanhedrin or authoritative body. Other posekim would therefore not
be precluded from arriving at different, well-reasoned, conclusions. Rambam’s
rulings as to whether other mitzvot
require kavanah
based on his own personal interpretations and
innovative reasoning would thus remain in the realm of Gemara and not become
part of the transmitted Torah
Shel Baal Peh corpus that Mishneh Torah represents25.
25 As noted above in his letter
to Rabbi Pinchas
HaDayan, if such a ruling
would appear, for whatever reason,
in Mishneh Torah, it would be
introduced with the words “yira’eh li”
to show that it was the product of personal reasoning and not part of Torah Shel Baal Peh.
I thank Hakira and Rabbi Krakowski for this opportunity to have further
clarified these fundamental
matters regarding Rambam’s Mishneh
Torah methodology. It is my hope that readers have
found this exchange as enlightening as I myself have.
