Marc B. Shapiro

Here is the passage as it appears in the censored Mikraot Gedolot Ha-Maor.

Fortunately, the new English translation of Siftei Hakhamim published by Metsudah includes the passage in its entirety.

2. In a recent post I referred to the Yemenite Rabbi Shlomo Korah and his experience in Lakewood. R. Korah has also published a commentary on Maimonides’ Mishneh Torah entitled Sefat Melekh. Although R. Korah presumably knows Arabic, for some reason he didn’t know what to make of the word שָם found throughout the Mishneh Torah, including right at the beginning:

יסוד היסודות ועמוד החכמות לידע שים שם מצוי ראשון

Numerous commentaries struggle with the word, and R. Korah offers his own interpretation, stating that it should be vocalized with a tzereh under the shin, not a kamatz.[2] Yet R. Samuel Ibn Tibbon, in the introduction to his translation of the Guide, already explained what the word means.

שבערבי כשירצו החכמים לומר שיש בעולם דבר או בנמצא דבר אחד, יאמרו שיש שם דבר אחד, רומזים במלת “שם” אל המציאות.

See also R. Joseph Kafih’s commentary to Hilkhot Yesodei ha-Torah 1:1. Confusion about the word שם goes back to medieval times, and in a recently published text of the Provencal sage R. Meir ha-Meili we see that he too did not know its meaning.[3]

R. Shlomo Korah should not be confused with R. Ezra Korah who is the translator of a new edition of Maimonides’ Commentary on the Mishnah that was published in 2009. The new translation is not very different than R. Kafih’s translation and is obviously based on the latter. It is also not an improvement on what R. Kafih provided us with. What makes this edition valuable is that each page is full of helpful notes compiled by a team of scholars. In fact, I don’t think anyone can seriously study Maimonides’ Commentary on the Mishnah without making use of this new edition.

Yet there is something deeply problematic about this edition. As is well known, R. Kafih’s translation of Maimonides’ Commentary sparked a new interest in study of this work, and for decades was the text that everyone used.[4] R. Korah’s new edition, which as already indicated is based on that of R. Kafih, only mentions R. Kafih once in the lengthy introduction.[5] Throughout the notes to the Commentary, R. Kafih is not mentioned, but is referred to as יש מי שכתב or יש מי שתרגם.

When will these people ever grow up and realize that just because you don’t agree with someone’s outlook doesn’t mean you can’t be a mensch and give him the scholarly credit he deserves? To give an idea of who R. Kafih was, R. Mordechai Eliyahu went so far as to state that was greater than R. Abraham Maimonides![6]

אנו, שאנו מכירים את הרב יוסף קאפח, הוא יותר טוב מבנו של הרמב”ם, איזה בקיאות יש לו בדברי הרמב”ם, הבן שלו לא ידע והוא ידע.

Here is the English dedication page of the new translation and the Hebrew title page.

Look at what it says in the dedication page. Is it possible that they told the donor that the translation that he was funding would be the first time that the Commentary on the Mishnah would be translated into Hebrew?

3. I have many unpublished rabbinic letters that readers will find interesting. Some of them need to be published in a journal, complete with an introduction and footnotes, as I have done in Milin Havivin, Or Yisrael, and elsewhere. (Discerning readers will note the incongruity of the two journals just mentioned.) For others, I don’t need to do anything but post them, as they are easy to read and self-explanatory.

Here is one such example. It is a 1950 letter from Chief Rabbi Isaac Herzog to R. Isser Yehudah Unterman, chief rabbi of Tel Aviv. I found it in the R. Herzog archive in Jerusalem and I thank the archive for allowing me to reproduce the letter. It is significant in that we see how impressed R. Herzog was with R. Elyashiv, and he hopes that R. Elyashiv will agree to move to Tel Aviv to serve as a dayan.[7]

Recently there was talk that if the Israeli draft bill was passed that the Belzer Rebbe would leave the State of Israel. Here is a February 14, 1948 letter from R. Herzog to a previous Belzer Rebbe. As you can see, R. Herzog was very upset when he heard that the Rebbe was thinking of leaving Eretz Yisrael due to the deteriorating security situation. He thought that this would create a hillul ha-shem and break the spirits of some of the Rebbe’s followers.

According to the Steipler, R. Isaac Zev Soloveitchik (the Brisker Rav) also wanted to leave Israel during the 1948 war, and even traveled to Haifa to receive his exit permit. In the end, he was prevented from leaving for reasons beyond his control, and didn’t continue his efforts in this regard. The Steipler explained that his desire to leave Israel was not because he was afraid but because he thought that the halakhah requires one to leave a place of danger to life.[8] I have difficulty understanding this view, as it would mean that all the Jews in Israel would have been required to leave. Presumably, R. Velvel’s point was that one who has no civilian or military role has to leave, since there is no justification for such a person to put his life in danger as he is not in any way contributing to the military cause.

4. In his latest article criticizing the haredi mentality, R. Berel Wein writes:

The great struggle of most of Orthodoxy in the nineteenth and early twentieth centuries against Zionism influenced all Orthodox thought and behavior. As late as 1937, with German Jewry already prostrate before Hitler’s madness and Germany already threatening Poland, the mainstream Orthodox rabbinate in Poland publicly objected to the formation of a Jewish state in the Land of Israel on the grounds that the heads of that state would undoubtedly be secular if not even anti-religious.

A number of people wanted details about this rejection of a Jewish state by the Polish rabbinate in 1937. Let me begin by saying that there is no truth to what Wein reports. The mainstream Polish rabbinate, represented by the Agudat ha-Rabbanim of Poland, never publicly objected to the creation of a Jewish state. The Agudat ha-Rabbanim included many rabbis who were Zionist and thus would never act in the way Wein describes. In fact, R. Yehezkel Lifshitz, author of the respected work Ha-Midrash ve-ha-Ma’aseh, was the head of the Agudat Rabbanim until his death in 1932. He was also a great lover of Zion who supported the creation of a Jewish state.[9]

In 1937, not only did Agudat ha-Rabbanim of Poland not reject the idea of a Jewish state, but it issued a public letter affirming the Jewish right to the Land of Israel. This letter also stated that under no circumstances could Agudat ha-Rabbanim agree with the removal of any part of the Land of Israel from future Jewish sovereignty.[10] Here is part of this letter, containing the Agudat ha-Rabbanim’s strong endorsement of a Jewish state.

ישמעו העמים הנאורים שהצהירו בסן-רימו על זכותנו הישנה והמוחלטת על נחלתנו הקדושה בגבולותיה שהציב בורא עולם ית’ את העוולה הנוראה שרוצים לעשות לנו. מחאתנו הכבירה צריכה להגיע לועדת המנדטים, למלך אנגליא, לנשיא ארצות הברית של אמריקה ולבישוף מקנטרבורי

Even Agudat Yisrael at its 1937 international convention in Marienbad (the third Kenesiyah Gedolah) did not reject a Jewish state, even though it was urged to do so by R. Elchanan Wasserman and R. Aaron Kotler. Neither R. Wasserman nor R. Kotler reflected the outlook of the mainstream Lithuanian or Polish rabbinate in this matter. In fact, according to the report of R. Samuel Aaron Pardes who attended the convention, R. Kotler agreed with R. Wasserman that acceptance of a Jewish state before the coming of the Messiah, even a State that would be completely Torah observant, is a denial of the messianic belief.[11] In other words, they both shared what would later be identified as the Satmar philosophy.

5. The internet is an amazing thing. Yechezkel Moskowitz, who listened to my Torah in Motion classes on R. Hayyim Hirschensohn, asked me where he was buried. I didn’t know but after only a couple of minutes online I found the answer: Riverside Cemetery in Saddlebook, N.J. The cemetery was very helpful and sent both me and Yechezkel a picture of the grave. Seeing that it needed to be cleaned up, Yechezkel took the opportunity to do this mitzvah, and here is how the grave currently looks.

Yechezkel also sent the picture to Kevarim.com and it can be found here here.

Here is a picture of R. Hirschensohn.

There is so much to be said about R. Hirschensohn and his enormous literary output and fascinating ideas in all areas of Torah. (I also have a number of unpublished responsa of his.) I have never seen anyone refer to the many short musings of R. Hirschensohn that appear in the Budapest journal Apiryon. I could have a lengthy post discussing any number of his short comments, that remind me both of R. Kook’s Shemonah Kevatzim and also of Nietzsche. Here is musing no. 46, which appears in Apiryon 3 (1926) p. 183:

יש עיקרי אמונה לישראל אשר אינם בספר רק בדם ובמורשה, ואם הספר מתנגד להם ישבקו לקראי דאינהו דחוקים ואוקמי אנפשייהו

The final words of the sentence are derived from Pesahim 59b, and the translation is (based on Artscroll) “Leave the verses alone, for they force themselves to be interpreted this way.”

What R. Hirschensohn is saying in the first part of the sentence is that there are Jewish principles of faith that are not to be found in a book, but are intuitive, i.e., part of our heritage and our blood. We can each come up with our own examples. One which comes to my mind is that it is a principle of faith not to try to settle Jewish problems by involving the non-Jewish authorities. Over thousands of years we have learnt that such an approach leads to all sorts of negative consequences, both foreseeable and unintended.

The second half of the sentence tells us that when a “book truth” contradicts the principle of faith we know intuitively, then the “book truth” is to be understood (reinterpreted if necessary) to conform to our intuitive faith. One can find similarities to this idea in the writings of R. Kook (see here and here where I discussed the observant Jewish masses’ innate natural morality and how according to R. Kook it is superior to the book-learning-based morality of the scholars).

The significance of R. Hirschensohn’s words is in 1) the denial that basic principles of faith are all found in books, and 2) the assertion that intuitive truths can effectively trump what appears in the canonical books. It is obvious that what when R. Hirschensohn writes of דם ומורשה he is speaking about the experience of the Jewish people as a whole, not about the Torah scholars. The Torah scholars are to be viewed as part of this experience of דם ומורשה , not something apart.[12]

In previous posts I have commented that one of the novelties of haredi ideology is the notion that the “Gedolim” are the carriers of all truth. See here where I quote R. Itzele of Ponovezh’s assertion that it is the people, עמך, not the Gedolim, who represent what today is referred to as Daas Torah.[13] This idea can be found in the Talmud and later rabbinic literature as well. When the Talmud and post-Talmudic authorities state
אם אינם נביאים בני נביאים הם  or
פוק חזי מאי עמא דבר  or
 קול המון כקול ש-די  or
מנהג ישראל תורה  they are not referring to the Gedolim but to the masses of pious Jews, the ones who make up the kehillah kedoshah.

Earlier in this post I referred to R. Kook and Nietzsche. Some readers might be thinking that I should write “R. Kook and Nietzsche lehavdil.” Yet R. Hirschensohn rejects the notion that this word should be used to distinguish Jews from non-Jews. See his commentary to Horayot (Jerusalem, 1926), part 3, p.6a.

For those who do want to use the word, R. Hirschensohn says that it is wrong to say הגוי להבדיל since it is precisely the Jews whom God chose to separate as his special people. Therefore, one should say (if he want to use the word),  “Nietzsche and R. Kook lehavdil.” Yet as mentioned already, R. Hirschensohn rejects the usage of this word when it comes to Jews and non-Jews. In addition to what I already quoted, he writes:

R. Hirschensohn is assumed by everyone to be very liberal, in both his outlook as well as in his halakhic decisions. Yet this is not the entire truth, as we can see from his comment in Apiryon 3 (1926), p. 101, where he describes the “New Orthodoxy”, also known as “Conservative”, as akin to Christianity!

היהדות היא פעולת המוח על הלב הנצרות היא פעולת הלב על המוח, אך רבים מחליפים המושגים, לזאת נמצאים יהודים כשרים רבים אשר הם באמת לדאבון לבבינו נוצרים במסוה יהודית אשר קוראים בשם אורטודוקסיה חדשה או קאנסירוואטיף.

He states that in traditional Judaism  the mind is the center, and the heart is influenced by it, while in Christianity it is the reverse, with the heart influencing the mind. The problem with the “New Orthodox” is that they too put the stress on the heart over the mind. As we all know, when the heart is the determining factor, then Jewish law must be constantly updated in accord with people’s changing feelings.

His very next musing (ibid.) is undoubtedly directed against Hasidism, which he sees as mixing up the heart and mind.

עוד כת אחת יש בישראל אשר אם שהם שומרי תורה, אבל יש בהם עירבוב המושגים והתנגשות הלב והמוח

And finally, what is one to make of the following statement (ibid.) that removes Christian belief (as opposed to worship) from the status of avodah zarah?

אין בהנצרות ע”ז רק אולת ושגעון, אבל ההשתחויה מול התמונות הקדושות להם היא עבודה זרה גמורה ע”כ אמרו יום נצרי לעולם אסור.

Does this mean that a belief alone can never rise to the level of avodah zarah?

There is a lot more I want to say about R. Hirschensohn. In the Limits of Orthodox Theology I mentioned his view that even in Messianic days animal sacrifices would not be reinstated. He also has some significant comments about sacrifices in the introduction to his Nimukei Rashi, vol. 3. (This four volume commentary on Rashi is an outstanding work of scholarship.) 

In discussing the origins of sacrifices, R. Hirschensohn sees no reason to assume that Cain and Abel actually brought sacrifices in the sense we think of. While for us, a sacrifice means placing something on an altar and burning it, R. Hirschensohn states that there is no evidence that this is what Cain and Abel did. It is possible that all Cain did was bring his vegetable offering to the top of a mountain where he would commune with God, and left it there. With Cain’s “meager religious philosophical knowledge” he perhaps thought that after he left it there, God would take it. This is how R. Hirschensohn explains that Cain concluded that his sacrifice was not accepted. He reascended the mountain after a few days and lo and behold, the sacrifice had not been taken by God. For Cain, this meant that God didn’t accept it. And what about Abel’s sacrifice? Here, too, R. Hirschensohn says that there is no reason to think that it was burnt on an altar. Rather, it was a gift to God, and what Abel did was send his offering away, so that it would wander freely. This was the gift to God, not that he killed an animal. If you look at Genesis ch. 4, all it mentions is that Cain and Abel brought their offerings to God, not that they were ever burnt as a sacrifice.

How then did the idea of offering animal sacrifices come to be? The first example we have in the Bible is that of Noah when he leaves the ark. At this time he was not yet permitted to eat meat and yet he concluded that it would be proper to kill animals and birds for God. Where did he get this notion? The question is especially sharp as one would have assumed that Noah would be more interested in ensuring that the species multiply, rather than killing members of them. After Noah offers his sacrifices, we are told (Gen. 8:21), “And the Lord smelled the sweet savour; and the Lord said in His heart: ‘I will not again curse the ground any more for man’s sake; for the imagination of man’s heart is evil from his youth; neither will I again smite any more every thing living, as I have done.” This would seem to imply God’s approval of Noah’s sacrifices. R. Hirschensohn’s suggested understanding of this episode is, I think, shocking in its boldness:

ואם שלא רחוק לפרש פסוק זה כמו שהקב”ה צחק בלבו ורחם על קטון דעת האדם החושב להודות לו על ידי עולה וזבח עולת הבהמה ועולת העוף לשורפם ולכלותם בעת אשר הם כל כך מעט בעולם וחושב זה לטובתו, שזה בכלל יצר לב האדם רע מנעוריו שגם מנחה לאל עושה בדרך אכזריות, אמנם צריכים לעמוד על מחשבת האדם ודעתו בהתפלספותו בפליסופיא [!] אלקות איך יוכל לחשוב שבזה יתרצה אל אדוניו?

R. Hirschensohn’s suggested explanation assumes that part of man’s heart being “evil” from his youth was the thought that he should serve God is such a cruel fashion as killing an animal, and God accepting this sacrifice was an example of God being kind to the simpleton Noah who didn’t know any better.

R. Hirschensohn continues by saying that he in no way rejects the sacrificial system. His explanation is only applicable to an era when eating meat was not allowed. However, once the Torah makes clear that killing an animal to eat it is not cruel, we cannot say otherwise. Furthermore, he says, it makes no sense for people who eat meat to object to sacrifices on philosophical grounds.

R. Hirschensohn still has to explain the origin of sacrifices, and his position is quite original. He states that in ancient days people showed their loyalty to one another by a ceremony in which blood was drawn from each of them and mixed together. Later it developed that instead of using human blood to seal covenants, animal blood was used. The next natural development was the notion that sacrifices to the deity should also involve blood, and this is why the nations began to offer sacrifices to their gods, including sacrifices for all the good the god did.

R. Hirschensohn adds that sacrifices represent instinctual religious feelings, and no one who believes in God can degrade such a sign of faith.[14]

Let me now return to what I wrote here concerning R. Hirschensohn’s discussion of the comment of Rashi to Genesis 26:8. The verse states that Abimelech looked out his window and saw that Isaac “was amusing himself with Rebekah.” Upon this verse, Rashi, based on a Midrash, states that Abimelech saw them having marital relations. In the earlier post I expressed surprise that some commentators thought it was appropriate for them to discuss the Patriarch’s sexual life. One reader called my attention to R. Levi ben Hayyim, Livyat Hen: Eikhut ha-Nevuah ve-Sodot ha-Torah, ed. Kreisel (Beer Sheva, 2007), p. 672, which is another example of what occasioned my surprise.

R. Levi contrasts Isaac negatively to both Abraham and Jacob. He regards the latter two as on a higher spiritual level, and thus closer to God, than Isaac, and brings a number of biblical proofs to support this contention. In a really outrageous comment, much more objectionable than R. Levi’s allegorical passages that R. Solomon ben Adret was so upset with (and which don’t appear at all problematic when seen in context), R. Levi suggests that Isaac’s blindness was brought on by the fact that he was so attracted to Rebekah’s beauty[15] that it led to him having too much sex! (Although R. Levi reflects an old superstition, there is actually a medically documented phenomenon of temporary blindness following sex.)

גם תראה היותו נמשך לתענוגים, עד שאהב עשו בעבורם ואמר (בר’ כז, ג): “ועשה לי מטעמים כאשר אהבתי”. ואפשר שזה סבב לו להרבות המשגל עד שכהו עיניו מראות, כי נמשך אחרי יפי רבקה, שהעיד עליה הכתוב שהיתה יפת תואר מאד, הלא אבימלך ראהו מן החלון מצחק עם רבקה אשתו

Finally, let me make one more point about sexual matters in the Torah. Genesis 35:22 states that “Reuben lay with Bilhah.” The Artscroll multi-volume commentary on Bereshit (i.e., not the Stone Chumash), p. 1522, states that in Shabbat 55b “the Sages emphatically declare that Reuben did not commit the sin of adultery. They proclaim that מי שאמר ראובן חטא אינו אלא טועה.”

I believe this to be a conscious distortion of what appears in the Talmud, in the name of “frumkeit”, of course. If you open up the Talmud to Shabbat 55b you find that, first of all, it is not the “Sages” who proclaim מי שאמר ראובן וכו’ but one of the Sages, R. Samuel Bar Nahmani in the name of R. Jonathan. This is a very minor point, since following this statement in the Talmud we find other Sages who agree with this statement, i.e., they also assume that Reuben never actually had sexual relations with Bilhah (and they are quoted in the Artscroll commentary to Bereshit). However, from the Talmud we also learn that there were Sages who disagreed with R. Jonathan and took the biblical text literally. It is none other than the Artscroll Talmud that, quoting Maharsha, explains that according to R. Eliezer, Reuben did have sexual relations with Bilhah.

The Artscroll commentary on Bereshit is a very long work (2232 pages), providing numerous perspectives on every verse. Yet in this case they chose not to include the view of R. Eliezer and R. Joshua that Genesis 35:22 is to be taken literally, and Reuben indeed had sexual relations with Bilhah. A conscious choice had to be made to exclude this view, and I think we all understand why. But doesn’t Artscroll’s choice in this regard show a real lack of respect for R. Eliezer and R. Joshua? Maybe others see things differently, but it appears to me that Artscroll stood in judgment, as it were, over R. Eliezer and R. Joshua, and decided that their view was not worthy of being included since Artscroll did not like what they said. This is hardly the sort of kevod ha-Torah that Artscroll is supposed to represent.

Marc B. Shapiro

There has been a great deal of discussion in the wake of the recent release of the Pew Research Center’s “Portrait of Jewish Americans.” Some have focused on the report’s evidence of increasing intermarriage and lack of any Jewish connection of many in the younger generation. Others have zeroed in on some of the survey’s anomalies and results that are simply not correct. For example, the survey informs us that 1% of Ultra-Orthodox Jews had a Christmas tree last year. I would be willing to bet that in the entire world there isn’t even one Ultra-Orthodox Jew with a Christmas tree, and 1% means at least a few thousand Ultra Orthodox households have Christmas trees. After adding in the Modern Orthodox, we are told that 4% of Orthodox Jews have Christmas trees. Being that the survey places the Orthodox at 10% of the Jewish population, and also tells us that there are 5.3 million adult Jews (another one the survey’s surprises), this leads to the result that more than 21,000 adult Orthodox Jews have Christmas trees in their homes.Since these results are not just improbable, but impossible, it raises the general question of how reliable the survey is when it comes to the Orthodox. Can anyone believe the survey when it tells us that in the 18-29 age bracket the Modern Orthodox only account for 1% of the country’s Jews while the Ultra-Orthodox account for 9%, or that in the 30-49 age bracket, the Modern Orthodox are 3% and the Ultra Orthodox 10%. We are also are told that 24% of Ultra-Orthodox Jews handle money on Shabbat but only 19 percent of Modern Orthodox Jews do so. (Who was it that said the Ultra-Orthodox are frummer than the Modern Orthodox?!)

When you read results like these you can only wonder what went wrong, and I hope we get some explanation as to how such results were generated. (Professor Jonathan Sarna has written to me that all surveys have absurd results for various reasons, and “one is to look at broad trends and ignore absurdities.”) Perhaps there was confusion about the way the questions were asked. Such confusion is the only way I can explain that only 64% of the Ultra-Orthodox agree that a person can be Jewish if he works on the Sabbath. The truth is that every Ultra-Orthodox Jew knows that a person who works on the Sabbath is still Jewish (albeit a sinning Jew). I presume that those who answered “no” to the question understood it to be asking if one can be a “good Jew” and work on the Sabbath. (In case anyone has been wondering, I use the term “Ultra-Orthodox” since that is what the survey uses. I don’t know why no one told the survey directors that this term is no longer regarded as appropriate.)

The sort of anomalies I have mentioned appear to be confined to matters of religious life, and other areas seem more believable. For example, we are told that 37% of Modern Orthodox households have incomes in excess of $150,000, which places them in the top ten percent of Americans. This strikes me as on the mark and illustrates one of the great problems with Modern Orthodoxy in the United States. Anyone who has been to Israel knows that there are non-haredi Orthodox Jews in all areas of life. You see men with kippot who are bus drivers, security guards, and doing every other job imaginable. Yet in the United States, Modern Orthodoxy has become largely an upper middle class phenomenon. The cost of a Modern Orthodox lifestyle, which includes expensive schools and camps, is simply beyond most people’s reach. I believe that this cost is a major reason why the Modern Orthodox camp has not picked up much in the way of ba’alei teshuvah.[1]

I have no doubt that many of the non-Orthodox admire the Modern Orthodox lifestyle, and would be willing to try it out, before learning the cost. Many non-Orthodox would also be happy to send their kids to Modern Orthodox schools, but they are not going to sacrifice a middle class lifestyle for this. Those who grow up Modern Orthodox and remain in the community are prepared to make the financial sacrifices (as well as limiting how many children they have). But for those who are not part of the community, the entry fee is simply too high. Needless to say, there are also those among the Modern Orthodox who drift away because of the financial cost, and this drifting often begin when the first child is enrolled in public school. As I see it, the financial burden is the great Achilles’ heel of Modern Orthodoxy, and what prevents it from any real growth. By the same token, those of us in the Modern Orthodox world must recognize that one of the great strengths of the haredi community is that there is room in it for everyone, from the wealthy real estate developer to the blue-collar worker. If, as so many predict, the future of American Orthodoxy is with the haredim, money (or lack of it) will play an important role in this story.

The Pew Report reported very high levels of intermarriage in the Jewish community.[2] Yet even among those who would never dream of intermarrying, we know that some engage in sexual relations with non-Jews. There is an interesting responsum in this regard by the late R. Moshe Stern, the Debrecener Rav, Be’er Moshe, vol. 4 no. 141.

R. Stern testifies to receiving numerous questions regarding this matter by the very people engaged in such behavior. For those who don’t know anything about R. Stern and who asked him questions, I can tell you that these were definitely not Modern Orthodox people or members of the Lithuanian yeshiva world.[3]

This volume of Be’er Moshe was reprinted in 1984 without any changes. However, sometime after that the volume was reprinted again. There is no indication of when this took place, as the title page is the same as the 1984 edition. (Presumably, the reprint was after R. Stern’s passing in the summer of 1997.)

The censorship of this responsum can only have one purpose, namely, so that people don’t learn about how some members of R. Stern’s community were having sexual relations with non-Jewish women.

What is the remedy for these men who are intimate with non-Jewish women? Repentance, of course. Yet there is a very strange opinion as to how to go about this repentance. R. Solomon Ephraim Luntshitz, in his Keli Yekar[4] to Numbers 19:21, says something which is so “out of the box” that I am shocked that it has not yet been censored from the Mikraot Gedolot. (Yes, I realize that it is just a matter of time.)

R. Luntshitz is discussing the statement in Yoma 86b: “How is one proved a repentant sinner? Rav Judah said: If the object which caused his original transgression comes before him on two occasions, and he keeps away from it. Rav Judah indicated: With the same woman, at the same time, in the same place.” In context, this means only what it says, but not that someone should actually put himself in this situation. Yet this is exactly the lesson R. Luntshitz derives.

He refers to Berakhot 34b, “In the place where penitents stand even the wholly righteous cannot stand.” R. Luntschitz cites an opinion that the ba’al teshuvah (penitent) of a sexual sin has to put himself in the exact same situation as he was before, that is, to be alone with the very same woman and overcome his inclination. This is not permitted to one who is “wholly righteous” since he is forbidden to put himself in this situation. But the penitent needs to do this in order for his repentance to be complete, and this explains how a wholly righteous one cannot stand where the penitent stands, since the penitent has to put himself in a situation that would be forbidden for the righteous one. R. Luntshitz explains that the very act of repentance, i.e., being alone with the woman, “makes the pure [the tzaddik] impure and the impure [the sinner] pure.”

This is a strange passage for any number of reasons, not least of which that the action of being alone with the woman is itself sinful, even if it never leads to any sexual activity. Yet R. Luntshitz tells us that in this case we have an exception, and true repentance requires intentionally putting oneself in the exact same situation one was beforehand and this time overcoming one’s inclination. Of course, there is no guarantee that the person will emerge successfully from this self-imposed test. R. Israel Isserlein reports such an occurrence, where an individual put himself in this situation in order to achieve proper repentance, but ended up sinning again![5] Sefer Hasidim earlier warned against falling into precisely this trap.[6]

R. Luntschitz’s point is also found in his Olelot Ephraim, vol. 2, no. 228, showing that he was entirely convinced of his position.

R. Luntschitz was the rabbi of Prague, yet a later incumbent of this position, R. Ezekiel Landau, strongly rejects R. Luntschitz’s point. He acknowledges that many shared R. Luntschitz’s error, which I think is interesting since I can’t imagine anyone having such an opinion today.[7] R. Landau doesn’t tell us who else advocated R. Luntschitz’s view, but R. Mordechai Harris,[8] R. Dovid Yoel Weiss,[9] R. Yaakov Levi,[10] and Nahum Rakover[11] provide sources. Among these sources are R. Joseph ben Judah Loeb Jacob, Rav Yevi (Netanya, 2012), to Psalms 36:3, who quotes the Baal Shem Tov as offering the same approach as R. Luntschitz.

Jewish men getting together with non-Jewish women is, of course, not a new thing. The Talmud, Sanhedrin 82a, already refers to this possibility with regard to Torah scholars (!), concluding: “If he is a scholar, he shall have no awakening [i.e., teaching] among the sages and none responding among the disciples.”[12] Avodah Zarah 69b-70a deals with the status of kosher wine on the table when Jewish men are sitting together with a non-Jewish prostitute. Yom Tov Assis, in his article “Sexual Behaviour in Mediaeval Hispano-Jewish Society,”[13] discusses the situation in Spain where it was not uncommon for Jews to have non-Jewish mistresses.[14] Avraham Grossman also deals with this matter and his discussion includes other parts of medieval Europe as well.[15]

In R. Judah ben Asher’s responsa (Zikhron Yehudah, no. 91), we are told about the problem of Jews having sex with their non-Jewish slave girls (and also having impregnating them). A few centuries later, R. David Ibn Zimra testifies that there were men, learned in Torah, who even thought it was permissible for them to have sex with their slaves.[16]

The fact that the prohibition on occasional sexual relations (דרך זנות) with non-Jewish women is only rabbinic[17] no doubt contributed to many not taking it very seriously.[18] Maimonides, Hilkhot Issurei Biah 12:2, writes:

אבל הבא על הגויה דרך זנות מכין אותו מכת מרדות מדברי סופרים גזירה שמא יבוא להתחתן. ואם ייחדה לו בזנות חייב עליה משום נידה, ומשום שפחה, ומשום גויה, ומשום זונה. ואם לא ייחדה לו אלא נקרית מקרה אינו חייב אלא משום גויה. וכל חיובין אלו מדבריהן.

R. Moses Isserles [19] even mentions the view of the Tur that intermarriage itself (דרך אישות) is only a rabbinic prohibition.[20] The Bah explains the Tur’s view, Even ha-Ezer 16, as follows, leaving no doubt as to the matter:

אבל בשאר אומות . . . אין בהן איסור כלל מן התורה ואפילו בא עליהן דרך אישות אלא גזירה דרבנן.

This approach, incidentally, could explain how Esther married Ahasuerus, as the prohibition on intermarriage was not yet established.

Maimonides disagrees with the Tur and assumes that there is a biblical prohibition to marry any non-Jew (דרך חתנות), not simply the seven Canaanite nations. Therefore, he claims that Solomon converted all the women he married.[21] However, R. Raphael Berdugo disagrees, and states that there was no halakhic problem with Solomon marrying these women without converting them.[22] This leads him to discuss the story of Pinhas killing Zimri and the whole concept of kana’in pog’in bo. R. Berdugo explains that kana’in pog’in bo only applies when dealing with sexual relations that are public, promiscuous, and the woman is an idolator.[23]

ולא אמרו קנאין פוגעין בו אלא דרך הפקר ועובדת ע”ז ובפרהסיא.

According to R. Berdugo, following the Tur, Jews who are married to non-Jews are only violating a rabbinic prohibition. I mention this since I recently met someone who thought that in messianic days intermarried Jews will be subject to kana’in pog’in bo. I originally thought that this was a clear error. If you look at Maimonides’ formulation, Hilkhot Issurei Biah 12:4, you find that contrary to R. Berdugo he indeed includes all non-Jews, not just idolators, as subject to kana’in pog’in bo. (And see his very strong words against Jewish-Gentile sexual relations in Hilkhot Issure Biah 12:6-7.) Yet he is just as explicit that the sexual intercourse has to be public, just like with Zimri.

כל הבועל גויה בין דרך חתנות בין דרך זנות אם בעלה בפרהסיא, והוא שיבעול לעיני עשרה מישראל.

Based on this, it was clear to me that according that according to Maimonides (following Avodah Zarah 36b) an intermarried Jew is not subject to kana’in pog’in bo, as living together is not the same thing as שיבעול לעיני עשרה. Even if one were to reject this point, in the very next halakhah Maimonides states:

ואין הקנאי רשאי לפגוע בהם אלא בשעת מעשה כזמרי . . . אבל אם פירש אין הורגין אותו.

This means that the act of zealotry must take place during the actual sexual act, or at least this is what I thought. But when I investigated a bit I learnt that while my understanding is shared by many, there are also many who assume otherwise. For example, the always interesting R. Shemariah Menasheh Adler states that an intermarried man is indeed subject to kana’in pog’in bo.[24] He claims that Maimonides’ statement just quoted only refers to one who is engaged in an act of promiscuous sex in public. With such a man he can only be killed in the act, but Maimonides is not referring here to a man who is publicly living with a non-Jew. In such a case, R. Adler claims, there is no need for the zealotry to be בשעת מעשה. As for Maimonides’ explicit words כל הבועל גויה בין דרך חתנות , R. Adler claims that this only refers to the first act of marital sexual intercourse, and that it needs to be in public for kana’in pog’in bo to be applicable, but not once they have already established a home and are living together. R. Adler also quotes R. Solomon Kluger[25] as agreeing with his basic point, and I have found others as well.[26]

We have seen lots of strange stuff in recent years. Is it only a matter of time before someone disgusted with the high rate of intermarriage decides to act the part of kana’in pog’in bo?

It is also worth noting that most commentators and halakhists assume that kana’in pog’in bo only applies when there is a Jewish man and a non-Jewish woman, not the reverse. Despite this, we indeed have some examples in Jewish history of “honor killings”. For example, in 1311 a Jewish woman who married a Christian and became pregnant was killed by her brothers.[27]

In 1557 an Italian Jew killed his sister because her alleged sexual activity embarrassed the family. Elliot Horowitz, who mentions this case, adds: “Azariah Finzi, the girl’s father, saw fit to defend this action by his only son, asserting that it was ‘inappropriate for one calling himself a Jew, especially a member of one of the best families, to suffer a veil of shame upon his face, being mocked by all who see him for the blemish attached to his family’s reputation.’”[28]

In Teshuvot Hagahot Maimoniyot to Sefer Nashim, no. 25 (found in the standard printings of the Mishneh Torah), there is a responsum which describes how a woman cheated on her husband, apparently with a local non-Jew, and became pregnant. According to her father, she also killed her baby (“the mamzer”[29]) after it was born. Her father, worried that she would apostatize, asked, indeed pleaded with, the local rabbis to permit him to kill his daughter by drowning her in the river. The rabbis turned the request down.

בא אביה של שרה לפני שנים ממנו החתומים למטה ובא לימלך בנו להורות לו אם מותר להרוג בתו לטובעה בנהר ולאבדה מן העולם . . . [אמר אביה] אני מבקשכם בכל מיני תחינה שתתירו לי להורגה.

The case is actually quite sad since she was probably a teenager in over her head. The responsum describes how she would run away from home but her mother would convince her to come back. When her father rebuked her for her behavior, her reply was, “I am not the first woman who did something bad.”R. Asher Ben Jehiel, She’elot u-Teshuvot ha-Rosh 18:13, deals with a case of a woman who was intimate with a non-Jew and became pregnant from him. R. Asher affirms the local rabbi’s decision to cut off her nose. (See also R. Matityahu Strashun, Mivhar Ketavim [Jerusalem, 1969], p. 158 n. 3.)

Also relevant is a very strange story recorded in Ta’anit 24a. It begins by telling us that R. Yose ben Abin left his teacher, R. Yose of Yokeret. His reason was, “How could the man who showed no mercy to his son and daughter show mercy to me?” Let’s leave aside the story of R. Yose of Yokeret and his son. Here is what the Talmud records about him and his daughter.

He had a beautiful daughter. One day he saw a man boring a hole in the fence so that he might catch a glimpse of her. He said to the man, “What is [the meaning of] this?” The man answered: “Master, if I am not worthy enough to marry her, may I not at least be worthy to catch a glimpse of her?” Thereupon he exclaimed: “My daughter, you are a source of trouble to mankind, return to the dust so that men may not sin because of you.”

Although he did not physically kill his daughter, he did express the wish that she die (according to some it was an actual curse), and in the opinion of many commentators this is exactly what happened (see Hagahot ha-Bah, ad loc.). What makes this text so shocking is that the daughter was entirely innocent of any improper behavior. In other words, it was her very existence as a beautiful woman that created the problem, and as such it was better that she simply exit this world before any more men were led into sinful thoughts. I see no way that this story can be brought into line with mainstream rabbinic thought, despite many attempts to do so.[30] (At a future time I can present some lessons that contemporary moralists have derived from this story, which also are quite shocking.)

Returning to the matter of Jewish-Gentile sexual relations, while the Shulhan Arukh, Even ha-Ezer 16:1, following Maimonides, Hilkhot Issurei Biah 12:2, tells us that occasional sexual relations (i.e., no marital relationship) with a non-Jewish woman is only rabbinically prohibited,[31] R. Nissim of Gerona disagrees. Yet if we are indeed dealing with a Torah prohibition then what does the Talmud[32] mean when it states that the Hasmonean Beit Din decreed against sex with a non-Jewish woman? If it was already forbidden according to the Torah, there would be no need for such a decree.

R. Nissim suggests that the Hasmonean Beit Din’s decree was designed to add an additional penalty onto an already existing prohibition. It is not that occasional sex with a non-Jewish woman was banned by the Hasmonean Beit Din, but they merely added the penalty of lashes. The reason for this, R. Nissim points out, is that sometimes people are not concerned about heavenly punishments like karet, but they are concerned with an earthly punishment.[33]

Yet this is a minority view, and the standard approach is that there is no biblical prohibition on occasional private sex with a non-Jewish woman. Here is how the Encylopedia Talmudit sums up the matter[34]:

הבא על הגויה דרך זנות, איסורו מדברי סופרים, גזרה שמא יבוא להתחתן.

(In case people are wondering, I don’t think that this is the sort of information that should be spread among the masses, precisely because that some people might decide that violating a rabbinic prohibition is not such a big deal.)

I keep stressing Jewish men and non-Jewish women, since the situation of Jewish women and non-Jewish men has its own issues that should be postponed to another post. But with regard to Jewish women who are intermarried, let me note that according to R. Ovadiah Yosef, such a woman should be told to go to the mikveh. He also adds that she should not tell the mikveh lady about her situation (I assume because she might then be refused entry).[35]

To be continued.

 

In an earlier post here I mentioned some of the shocking things said by R. Chaim Kanievsky about R. Shmuel Auerbach. Someone asked me if I could put together a list of the harshest things said by Torah scholars about their contemporaries. This would be an interesting project, and we can also find some very harsh things in this regard in talmudic and midrashic literature. I must stress, however, that often these shocking (to our ears) statements are not as harsh as they sound, since they were not meant to be taken literally. Some rabbis use figures of speech that everyone understands are simply part of a literary genre.

Here is one such example. R. Abba Mari of Lunel, in his attack against the Jewish rationalists, tells us that if he had the power he would do as follows to his opponent[36]:

אקרע סגור לבו להיות בדמו ממרס.

This means “I will cut open his heart so as to stir his blood.” I am sure people in medieval times would also be offended by such a statement. Yet its meaning then was far removed from what it would mean today, and if any of our contemporaries spoke like this we would assume he needed to be institutionalized.

After reading the post, some also wrote to me to express dissatisfaction with the rabbinic leadership in the haredi world. Contrary to what some think, this sort of feeling is not new, and in every generation people have been disappointed with the rabbinic greats. Here, for example, is what appears in the anonymous letter printed at the beginning of R. Mordechai Benet’s Parashat Mordechai.

ואף הגדולים וחכימי דרא לא משגיחים רק לעצמם בלחודוהי לזכות עצמם בלחוד אבל לא לזכות דרא לעורר תשובה בעלמא.

Finally, a couple of people corresponded with me regarding the stories of great rabbis who had totally sublimated their emotions. There are other stories that could be told of rabbis who were not even (at least outwardly) emotionally affected by the death of a child. This is sometimes held up as an example of piety and acceptance of God’s decree. Yet R. David Ibn Zimra (Radbaz) had an entirely different perspective.[37] Regarding one of the “gedolei ha-dor” who when his son died did not shed a tear, Radbaz was asked if this is a good characteristic or not. In his reply, Radbaz does not mince words about how wrong this is, seeing such “piety” as cruel, un-Jewish, and evidence of a psychological problem (to use a modern formulation):

זו מדה רעה מורה על קושי הלב ועל רוע תכונת הנפש והיא מדת אכזריות והוא דרך הפילוסופים האומרים כי זה העולם הכל הוא מעשה תעתועים

by Eliezer Brodt

Fixing a Typesetting Error in Order to Understand

The View of the Mishnah Berurah on Women Wearing Tefillin

by Michael J. Broyde

mbroyde@emory.edu

While there has been considerable recent discussion regarding women wearing tefillin, I will not review here the general topic but rather focus specifically only the view of the Mishnah Berurah.  I believe the view of the Mishnah Berurah has been widely misunderstood due to two identical typesetting errors in the text, one in the Mishnah Berurah itself and one in the Biur Halacha.  It is not my intent to address the normative halacha in this article.

Background Sources

Rabbi Karo (OC 38:3) states simply:

נשים ועבדים פטורים מתפילין, מפני שהוא מצות עשה שהזמן גרמא.

Women and slaves are exempt from the mitzvah of tefillin since it is a positive time bound commandment.

Rema adds to his exemption, noting:

 הגה: ואם הנשים רוצין להחמיר על עצמן, מוחין בידם.

If women wish to be strict for themselves, we protest.

is adopting the view of Tosafot and the Pesikta Rabati that we ought to protest such conduct, essentially prohibiting it.

But this blanket statement of the Rema does not sit well with some commentators.  The Olat Tamid[1] (38:4) writes:

ואם הנשים רוצין וכו׳: הטעם כתב בכלבו משום שאינו יודעת לשמור את עצמן בנקיות עכ”ל ואני תמה אם כן למאי הצריכו בגמרא פרק מי שמיתו לפרש מפני שהוא מצות עשה שהזמן גרמא הנשים פוטרות מן התפילין ת”ל דאפילו אס רוצים להחמיר אסורין להניח תפילין, שהרי אינן ידעת לשמרם בטהרה! אלא ודאי דליתא להאי טעמא לפי סוגיות הגמרא וכן אמרינן בר”פ המוצא תפילין דמיכל בת כושי היתה מנחת תפילין ולא מיחו בה חכמים אע”ג דבפסיקתא א’ להיפך דמיחו בה חכמים מ”מ אנן אגמרא דידן סמכינן. מיהו יש  לדחות, הא דלא מפרש גמרא הטעם זה משום שרוצה ליתן טעם גם לעבדים דפטורות ואי משום טעם זה לבד היה נראה דעבדים חייבים שהרי בודאי הם יודעים לשמרם בטהרה ולפיכך מפרש מפני שהוא מצות עשה שהזמן גרמא • דמש”ה גם עבדים פטורים מיהא מהא דאמרנן דלא מיחו בה חכמים משמע דאם האשה זקנה וידעינן בה שיודעת לשמור את עצמה דאין למחות בה ובה”ג מיירי התם:

The Kolbo writes that the reason is because women do not know how to guard themselves with cleanliness.  I was amazed at this, as if that is the case, why does the Talmud in chapter me shemeto need to explain that women are exempt from tefillin because it is a time bound positive commandment?  Wouldn’t it be true [according to Kolbo] that [whether they are exempt or not and] even if they wish to be strict on themselves, it is prohibited from them to don tefillin since they do not know how to watch themselves with purity!  Rather, it must be that this reason [i.e., that women may not wear tefillin due to cleanliness issues] is not correct according to the Talmudic text.  So too, it says in the beginning of the chapter Hamotzee tefillin that Michal Bat Shaul donned tefillin and the Rabbis did not rebuke her; even though one Pesikta says the opposite, that they did rebuke her, nonetheless, we follow our Talmudic source.  However, one could rebut the [previous] proof, [because perhaps] our Talmud [in me shemeto] does not give this explanation [cleanliness] since it wants to offer a reason why slaves are also exempt.  And if it were for this reason [cleanliness] alone, it would appear that slaves are obligated in donning tefillin, since they certainly know to keep themselves clean.  Therefore the Talmud explains [that women are exempt from tefillin] because of the principle of time bound positive commandments, since it is for this reason that slaves are also exempt. Nevertheless, the source that says the Rabbis did not rebuke Michal does imply that if a woman is elderly [i.e., post-menopausal] and we know that she is capable of watching herself [to stay clean], one should not rebuke her.  And it is such a case that the Talmud has in mind there [i.e. in me shemeto, where women are said to be exempt from wearing tefillin, not categorically forbidden from doing so]. 

The Magen Avraham does not agree with this Olat Tamid.  Magen Avraham (38:3) states:

מוחין כו’ – מפני שצריכין גוף נקי ונשים אינם זריזות להזהר אבל אם היו חייבים לא היו פטורין מה”ט דהוי רמי אנפשייהו ומזדהרי כנ”ל דלא כע”ת:

We protest: Since they need a clean body and women are not particularly careful with cleanliness; but if they were obligated, they would not be exempt for this reason since they would accept the mitzvah upon themselves and they would thus be conscientious.  Such appears to me to be the rule, and not like the Olat Tamid.

The whole thrust of the Magen Avraham is to reject the approach of the Olat Tamid) who permits women to wear tefillin when they are clean). Magen Avraham accepts that once one is not obligated to wear tefillin, one is not careful to be clean and only those obligated are careful, whereas Olat Tamid thinks cleanliness is unrelated to obligation. [2]

Now consider whether one ought to rebuke a [male] slave who wishes to wear tefillin.  Like a woman, he is not obligated in the mitzvah of tefillin, but yet he seems to have no practical issue with guf naki factually. If he were to don tefillin (which he is not obligated to at all) should we rebuke him?  One could claim that the Rama (and the Taz for that matter) both implicitly agrees that a slave is not rebuked since only women (and not slaves) are mentioned as subject to rebuke. Pre Megadim (Mishbatzot 38:2) [3] disagrees and states:

מוחין. עיין ט”ז. ומ”א [ס”ק] ג’. ומשמע עבדים אין מוחין שיכולין להזהר. וזה אינו, דגם כן אין זהירים דפטורים, וגם גריעי תו מנשים דעד א’ נאמן באיסורים וספרה לה [ויקרא טו, כח]. ועבדים בסתמן לא [נאמנים] עיין ש”ך יו”ד סימן א’ [ס”ק ב]. גם על כרחך פשיטא אין מניחין שלא יעלו אותו ליוחסין וכדומה:

We Object:  See Taz.  See Magen Avraham 3. And this implies that when a slave dons tefillin one does not object, since they can be careful [about cleanliness].  This is wrong, because they are not careful since they are exempt.  Furthermore, slaves are worse than women [in this mitzvah] since “one witness is believed regarding ritual matters” (as it says in Lev 15:28) “she counts” but slaves are not believed; see Shach YD 1:2.  One must also adopt the obvious position that slaves do not wear tefillin [even though they can keep clean] so that we should not mistake them as full Jews.

We protest: since they need a clean body and women are not particular to be conscientious about being careful [to be clean].

The Mishnah Berurah thus explains why women do not don tefillin by quoting only the rationale that is consistent with the Olat Tamid’s understanding of the Rama, namely: this halacha is fundamentally about cleanliness, and not necessarily obligation (which categorically excludes all women and all slaves, no matter how clean).  Thus, in contrast to Pre Megadim and Magen Avraham, the Mishnah Berurah leaves out the idea that “אבל אם היו חייבים לא היו פטורין מה”ט דהוי רמי אנפשייהו ומזדהרי” (“but if they were obligated, they would not be exempt for reasons of cleanliness”) since that is not consistent with the Olat Tamid, and the Mishnah Berurah holds the Olat Tamid is correct about even a slave.[6] In other words, slaves should be rebuked because they are not meticulously careful to be clean independent of their lack of obligation to put on tefillin.

The Typographical Error in Biur Halacha 39:3

Chapter Thirty Nine of the Shulchan Aruch addresses who can write tefillin, which is a different question than who can don them, although somewhat related.  This is made clear by the comments of the Mishnah Berurah writing in the Biur Halacha in 39:3 which even more forcefully adopts the view of the Olat Shabbat.  The Shulchan Aruch notes that a convert may write tefillin and the Mishnah Berurah continues in the Biur Halacha 39:3 by stating directly:

כשר לכתוב תפילין – כ”ז איירי בגר צדק. ולענין גר תושב הסכימו הפמ”ג ול”ש ומחה”ש [ועוד הרבה] דפסול מטעם דהא אינו בקשירה והשע”ת[7] המציא דבר חדש דאיירי הד”מ דמכשיר בגר תושב דקיבל עליו כל המצות חוץ מאיסור נבילה וא”כ הלא ישנו בקשירה ובאמת נלענ”ד שגם זה אינו דהלא עכ”פ אינו מוזהר על הקשירה ותדע דאטו אם אשה ועבד יקבלו עליהן מצות תפילין יהיו כשרים לכתיבת תפילין ואם תדחה משום דמוחין לנשים על הנחת תפילין וכדלעיל בסימן ל”ח ז”א דכל זה רק מחמת חומרא בעלמא שחוששין להפסיקתא אבל ש”ס דילן סובר דאין מוחין ע”ז וכדאיתא שם בב”י ועוד עבדים יוכיחו דאין מוחין בהן וכמו שכתבתי לעיל במ”ב בשם התו”ש:

A convert may write tefillin: All this is discussing a proper convert, but as to a ger toshav, the Pre Megadim Levushai Serad, and Machatzit Hashekel [as well as many others] all agree may not write tefillin since they are not obligated to don tefillin.  Sharai Teshuva finds another novel matter here when he notes that the Darchai Moshe permits a ger toshav [to write tefillin] since he accepted all the mitzvot other than eating not kosher meat, since he is permitted to don tefillin.  In truth in my opinion even this is not correct, since such a person is also not obligated in donning tefillin.  And you should know that concerning even a woman and a slave who accept upon themselves to the mitzvah to don tefillin could they write tefillin?[8]  And if you push this off, since we rebuke women on donning tefillin as noted in chapter 38, that is wrong, since this pushing off is only a mere stricture grounded in being fearful of the Pesikta, but our Talmud rules that one does not rebuke on this as is noted by the Bet Yosef, and even further, we do not rebuke slaves as I noted in the Mishnah Berurah there in the name of the Tosafot Shabbat.

And of course, as the standard new editions of the Mishnah Berurah now note, there is a typographical error — the last words in the Mishnah Berurah should read Olat Shabbat here also, changing the ת to an ע, making it clear that the Mishnah Berurah has a consistent preference for the approach of the Olat Shabbat-Olat Tamid over the approach of the Magen Avraham and the Pre Megadim, as a better explanation of the Rama.  (The Mishnah Berurah then continues to explain why women and slaves – who can put on tefillin as a matter of tefillin law – still cannot write them.[9])

According to the Mishnah Berurah, the Rama directs rebuke of women in 38:3 for donning tefillin not as a matter of the minimal technical halacha, but only as a chumra bealma since he is of the view that the Pesikta’s formulation is inconsistent with the Bavli and thus not the formal mandatory rule of halacha ever (just like the Olat Tamid notes).[10] Furthermore, the Mishnah Berurah makes it clear here that he is ruling against the Pre Megadim on the matter of rebuking slaves who don tefillin which he left as an open dispute in 38:12.

A Test Case: The Cheresh

Consider a test case: Should we rebuke a cheresh (fully mentally incapacitated man) who wishes to wear tefillin, if he is competent to maintain cleanliness?  This is an excellent test case.  He is Jewish (like a women is), but exempt from all mitzvot, including tefillin, and he lacks the basic credibility that even a Jewish woman has to label food items as prohibited or permissible, so two of the three reasons of the Pre Megadim apply to him, mandating rebuke.  For our present purposes, his “risk profile” vis-à-vis wearing tefillin thus falls in between a slave and a woman: he is riskier than a (post-menopausal) clean woman and less risky than a slave.

Olat Tamid states (37:1) that since a cheresh can maintain cleanliness, he should not be rebuked for donning tefillin.  The Mishnah Berurah (37:12) rules that way and he cites as precedent for this the classical work Baer Hatev, who in turn cites the classical work Olat Tamid![11]

חרש המדבר ואינו שומע או שומע ואינו מדבר חייב להניח תפילין אבל אין שומע ואין מדבר אין מוחין בידו מלהניחם אם רוצה [בה”ט]:

A cheresh who speak but cannot hear, or hear but cannot speak is obligated in tefillin, but one who can neither listen nor speak one does not rebuke them when they don tefillin if they wish. [Baer Hatev]

Thus, from the Mishnah Berurah’s ruling regarding a cheresh, we see that he clearly rejects the view that “one is not obligated may not don tefillin since such a person will not be particularly careful to be clean.” Rather, Mishnah Berurah only cites the Pre Megadim’s view about slaves apparently in deference to the Pre Megadim’s other concern: since slaves are not full Jews, permitting them to wear tefillin might confuse others about their personal status as full-fledged Jews.[12]  Otherwise, Mishnah Berurah adopts the Olat Tamid’s explanation of the Rama in this halachic area – i.e. focusing on cleanliness, and not automatically deeming exempt individuals as incapable of maintaining proper cleanliness.

Conclusion

The Mishnah Berurah does not address the question of whether a carefully clean woman who wants to don tefillin may do so. Such a radical break with tradition would never be raised or considered in a completely hypothetical vacuum by the Mishnah Berurah.  The Mishnah Berurah simply never discusses the matter and he is silent.  How should we understand his silence?  Did he think we ought to rebuke such a woman as a matter of tefillin law[13]?

With all of this data in hand – most importantly, the proper text of the Mishnah Berurah – it is reasonable to conclude that the best way of interpreting the Mishnah Berurah is that he does not think that a woman who is sufficiently careful about guf naki[14] needs be rebuked – as a matter of tefillin law – if she does don tefillin.  Proof to this can be found from: (1) his citation of the Olat Tamid in the case of a cheresh and a slave and (2) the Mishnah Berurah’s referral to the view of the Pesikta as a חומרא בעלמא, a mere stricture, [15] and (3) his focus on cleanliness as the reason for rebuke of women, like the Taz and the Olat Tamid.

Further proof of this is the unstated view of the Mishnah Berurah can be found from: (4) the Mishnah Berurah’s rejection of the formulation of the Magen Avraham that all those who are exempt are prohibited as a matter of tefillin law and (5) the Mishnah Berurah’s sub-silento rejection of the Gra’s view that the Pesikta and the normative Bavli both agree that women ought to be rebuked and (6) the Mishnah Berurah’s implicit rejection of the view of the Levush (and others) that while Michal bat Shaul could put on tefillin because she was unique, no one else can.[16]

There is no other viable theory left other than to accept that — to the Mishnah Berurah — the proper way to understand the Rama’s rule that one should rebuke a tefillin donning woman is limited to one who either is not clean, which is the base line view of the Talmud Bavli or, as chumra be’alma, to rebuke any woman who is “not particular to be conscientious about being careful [to be clean]” as he states in 38:13.

Thus, the purpose of this article is to make an intellectually honest point which hopes to contributes to reasoned discussion: those who have acknowledged the view of the Olat Tamid as permitting slaves, clean women and chereshim to don tefillin, and yet dismiss that view as supposedly rejected by all normative poskim, are mistaken, once the correct text of the Mishnah Berurah is established.

To what extent this has any practical halachic application is for a different discussion.  For example, there might very well be other excellent rationales outside of technical tefillin law prohibiting such conduct,[17] or one could look to the view of the Magen Avraham and Pre Megadim and object to women wearing tefillin due simply to their lack of obligation or one could note that even without the rebuke obligation, tefillin are still no better than tzitzit and our rule is that women do not wear them either as a matter of very old custom. None of this practical halacha is the focus of this paper. [18]

The attached six pages are copies of the front matter and relevant pages from two modern editions of the Mishnah Berurah which note the typographical errors mentioned and correct them.

1.  The Accusation.

Rabbi Joseph Samuel ben R. Zvi (d. 1703) – more popularly known as ר’ שמואל ר’ חיים ר’ ישעיה’ס – served as a member of the rabbinic court in Cracow for some 26 years, after which he was appointed Chief Rabbi of Frankfurt in 1689.1 An avid collector of books and manuscripts, he made good use of them in listing in the margins of his copy of the Talmud variant readings, emendations, and annotations to the text of, and commentaries on, the Babylonian Talmud. These were published posthumously in the Amsterdam and Frankfurt editions of the Talmud, 1714-21. Today, they are incorporated in every edition of the Vilna Talmud, and every student of the Talmud benefits from the efforts of this great rabbinic scholar.2

One of the many tasks of the leading rabbis in the 17th and 18th centuries was to write letters of approbation on behalf of mostly young rabbinic scholars seeking to publish their manuscripts. R. Joseph Samuel wrote some 40 such letters of recommendation during his lifetime, not an insignificant number in those days.3 This, despite the fact that he looked askance at the recommendations that many of his colleagues were writing, and was less than impressed by the quantity and quality of books being published. Indeed, at one point he called for – and apparently instituted – a moratorium on the publication of rabbinic works in Germany, claiming that many of them were superfluous and some were even harmful.4

On January 2, 1701, R. Joseph Samuel wrote a letter of approbation for a kabbalistic work by R. Mordechai Ashkenazi, an otherwise unknown author (then) who was a protégé of the distinguished Italian rabbi and kabbalist, R. Abraham Rovigo (d. 1713).5 The book, entitled אשל אברהם, and the letter of approbation, were published later in 1701 in Fürth. After a lengthy critique of the proliferation of works on Kabbalah in the late 17th century, the letter reads, in part:6

They [the new authors of kabbalistic works] are guilty of two evils. First, they neither know nor understand the deeds of God. Second, they cause the common folk to slight the rabbis expert in the exoteric Torah. The common folk assume that rabbis not expert in Kabbalah are not true scholars. So they cast away their expert rabbis, listening instead to the enchanters, whose wisdom is borrowed from others. I can testify that this is true [i.e., that the enchanters’ wisdom is borrowed from others], for I was involved in such a case. I recall vividly how some fifty years ago I owned a copy of a delightful kabbalistic work entitled התחלת חכמה. Some upstart student, a novice with no knowledge based on accumulated learning, printed the book under his own name. He simply plagiarized the entire book.

2.  The Identity of the Plagiarized Book.

No book entitled התחלת חכמה has ever appeared in print. It therefore could not have been plagiarized by anyone. Moreover, R. Joseph Samuel did not reveal the name of the plagiarist and the title of the book in its plagiarized form. This literary riddle was first raised in print early in 1976 by the noted bibliophile, Abraham Schischa of London.7 The solution was not long in coming. That same year, R. Shmuel Ashkenazi, also a noted bibliophile, solved the riddle.8 He correctly identified התחלת חכמה as the title of a kabbalistic book in manuscript form, still available in a variety of contemporary libraries.9 In book form, it was entitled מעין החכמה and it first appeared in print in Amsterdam in 1652.10 The plagiarist who published מעין החכמה under his own name was R. Abraham Kalmankes of Lublin. Ashkenazi provided other useful information as well, but all that is important for our purposes is that he clearly identified R. Abraham Kalmankes as a plagiarist. As such, he agreed fully with R. Joseph Samuel’s characterization (in his letter of approbation) of the novice upstart student. The  late Professor Gershom Scholem also identified R. Abraham Kalmankes as a plagiarist. He would write:11

“He [R. Abraham Kalmankes] published the pirated book entitled Hathalat Hokhmah under his own name. The matter is alluded to in the letter of approbation by the rabbi of Frankfurt to the book entitled  Eshel Avraham.”

It is our contention that R. Abraham Kalmankes has received less than a fair hearing in the court of modern scholarship. If we reopen the investigation, it is because much of the evidence has either been misconstrued or overlooked. The reader will have to decide for himself whether or not Kalmankes was, in fact, a  plagiarist, and whether or not he should be better remembered for his seminal contribution to Jewish teaching and literature.

            a) Claims of the Author/Editor

מעין החכמה, the first book to appear under R. Abraham Kalmankes’ name, is a short introduction to Lurianic Kabbalah. Indeed, it was among the earliest such works to appear in print. The title page of the quarto sized volume is followed by a one-and-a-half page introduction (pages 2-3). The introduction is followed by the text (pp. 4-22), which consists of 78 tightly-knit chapters (פרקים), perhaps more properly labeled today as paragraphs. Thus, several of the “chapters” consist of no more than15 lines of print (and, sometimes, even less). Scattered throughout the book are occasional comments in parentheses. These may reflect an educational tool used by the original author to clarify a difficult term by means of a gloss, creating — in effect — what we would call today a footnote. Or, as appears likely, these may reflect a second hand, i.e., material added to the base text by someone other than the author, e.g., a later editor of the original manuscript. Our immediate concern, however, will not be with the book’s content or structure, but rather with its authorship. What are the claims of the title page and the introduction? What do they tell us about the authorship of

מעין החכמה?

The title page basically announces the content of the book.12 It is a kabbalistic manual, we are informed, the likes of which has yet to appear in print. It provides the kabbalistic underpinning upon which all of R. Isaac Luria’s teachings rest. The title page then indicates that the book’s secret teachings are being  brought to press [ Hebrew:תעלומים  הוציא לאור] by “the exceedingly wise and young divine kabbalist, R. Abraham, son of the Gaon, Chief Rabbi and Head of the Yeshiva, R. Aryeh Leib, scion of the Kalmankes family of Lublin.” Note that the phrase “being brought to press by” is ambiguous. It is unclear from the title page whether R. Abraham Kalmankes is being presented as the author, editor, or publisher of מעין החכמה.

We perforce turn to the introduction, which – if read carefully – resolves much of the ambiguity of the title page.13The introduction, written and signed by R. Abraham Kalmankes, begins with a justification for the book’s publication. Briefly, Kalmankes, himself a victim and survivor of the Chmielnitzki massacres, informs the reader that he was puzzled by the seemingly endless exile of the Jews, with redemption nowhere in sight. After much reflection – and deeply influenced by kabbalistic teaching – Kalmankes concluded that it was faulty prayer that was prolonging the exile of the Jewish people. Jewish prayer was not piercing the heavens and reaching God on high. He compared the state of the Jewish people to a ship adrift at sea, with no one on board who knows how to steer the ship to safety. Nothing will change, argued Kalmankes, until kabbalistic teaching spreads throughout the Jewish communities. The seeds of redemption were planted by R. Isaac Luria, the master of proper kabbalistic prayer. Alas, he died before redemption set in, but he left a successor, R. Hayyim Vital, who in turn left “a basket full of manuscripts,” i.e. he reduced to writing the kabbalistic teachings of R. Isaac Luria, especially those relating to prayer. Once these teachings were mastered by Jews the world over, redemption would be at hand.

Unfortunately, “the basket full of manuscripts” was not being made available to the Jewish community at large. Kalmankes explains that those who horde the manuscripts refuse to publish them. This, for two reasons. First, for reasons of vanity. By retaining the manuscripts for themselves, they became the masters of esoteric teaching and the power brokers to whom all had to turn for guidance. Second, for reasons of profit. The owners of the manuscripts charged a hefty price for those who wished to view and copy them. Kalmankes decided to put an end to this scandalous state of affairs by acquiring and publishing one of the manuscripts that preserved some of the key esoteric teachings of R. Isaac Luria. Moreover, he “added a few comments of his own, in order to benefit the many readers,” almost certainly a reference to the comments in parentheses mention above. He gave the manuscript a new title, מעין החכמה [Wellspring  of Knowledge], for “just as a wellspring begins with a narrow opening that ultimately widens as it fills with water, so too this book begins with nuggets of wisdom that broaden and deepen as one grows in wisdom.” Kalmankes concludes the introduction with the following signature: “These are the words of the youngest

member of the group, Abraham, son of my father and teacher Rabbi Aryeh, son of the Gaon, our teacher and rabbi, the honorable R. Joseph Kalmankes Yaffe of Lublin.”

            b) Editions

Some of the confusion surrounding מעין החכמה relates to the multiplicity of published kabbalistic works with the title מעין החכמה, some of which have been mistakenly ascribed to Kalmankes in library catalogues throughout the world.

Confusion surrounding Kalmankes’ alleged plagiarism is also due, in part, to variant readings that appear in the later printed editions of מעין החכמה, for which Kalmankes can hardly be held responsible. After brief mention of some unrelated kabbalistic works with the title מעין החכמה, we will list and describe each of the printed editions of Kalmankes’ מעין החכמה.

An anonymous kabbalistic treatise entitledמעין חכמה  (ascribed in part to Moses) is included in the collection entitled ארזי לבנון (Venice, 1601).14 It is unrelated to Kalmankes’ מעין החכמה. The Ashkenazic printing house of the partners Judah Leib b. Mordecai Gimpel and Samuel b. Moses Ha-Levi published yet another anonymous kabbalistic treatise entitled מעין החכמה (Amsterdam, 1651).15 Frequently reprinted, it too is unrelated to Kalmankes’ מעין החכמה.

Four different editions of Kalmankes’ מעין החכמה have appeared in print. They are:

1. מעין החכמה, Amsterdam, 1652. Printed by the Immanuel Beneviste publishing house during the lifetime of its author/editor Abraham Kalmankes, it is the only reliable edition of Kalmankes’ מעין החכמה. As such, we will claim that Kalmankes can be judged only on the basis of this, and no other, edition of מעין החכמה. For a detailed description of the book, its title page, and introduction, see above.16

2. מעין חכמה, Koretz, 1784. This edition was printed by the Johann Anton Krieger publishing house which, in Koretz, was devoted to the publishing of kabbalistic and hasidic works.17 Although Kalmankes’ title of the book is retained, the title page ascribes the book to R. Isaac Luria and makes no mention of Abraham Kalmankes. More importantly, this edition omits Kalmankes’ introduction to the book. The text is a slightly revised and updated version of the Kalmankes edition. It incorporates most of Kalmankes’ parenthetical notes, with slight revision.18 The text was edited in its present form sometime between 1698 and 1784, i.e. well after Kalmankes’ death.19

3. מעיין חכמה, Polonnoye, 1791. Printed by the Samuel b. Yissokhor Baer Segal publishing house, this edition of מעין החכמה  appears at the end of a collection of kabbalistic works whose title page reads: ספר הר אדני.  מעיין חכמה is accorded no title page of its own. It begins with a skewed version of Kalmankes’ introduction, entitled: הקדמת המחבר ספר מעיין חכמה. No such title is applied to Kalmankes’ introduction in the first edition. We have already indicated (see above) that the introduction is omitted entirely from the second edition, so no such title appears there. The introduction to this, the third edition, closes with the name of the author:  אברהם בן מהו’ ארי’ בן הגאון מה’ משה יוסף קלמן מלובלין. In the first edition, however, Kalmankes’ grandfather’s name is given as: הגאון מורנו ורבנא כמוהר”ר יוסף קלמנקס ייפה מלובלין, with no mention of either משה or קלמן. The text that follows is entitled: התחלת החכמה האלהות כפי דרך האר”י אשכנזי ז”ל הנקרא ספר מעיין החכמה. It differs considerably from the text published in the first two editions. It  mostly lacks Kalmankes’ parenthetical comments strewn throughout the first two editions. It regularly omits readings that appear in the first two editions, and often adds material that is lacking in the first two editions. Indeed, it is a different manuscript version of the Lurianic digest that was first published by Kalmankes in 1652.20

4. מעין החכמה, Lvov, 1875. No publisher’s name is given. This is a hybrid version drawn from two earlier printed editions. Kalmankes’ introduction is drawn from the skewed version that accompanies the Polonnoye, 1791 edition. The text is drawn from the Koretz, 1784 edition.21 As such, this edition has no independent value and requires no further discussion.

            c) Relationship of the Published Editions to the Extant Manuscripts

No one has written more intelligently about the history of Lurianic kabbalistic manuscripts than Yosef Avivi.22 What follows is essentially a brief account of the relationship between the published editions of Kalmankes’מעין החכמה and the extant manuscripts, based largely (but not entirely) upon the results of Avivi’s investigations.

Numerous manuscripts copies of the kabbalistic treatise entitled התחלת החכמה, most of them dating to the 17th and 18th centuries, are extant in libraries throughout Europe, Israel, and the U.S. While they vary slightly from each other, they clearly reflect a single recension of an early 17th century kabbalistic treatise. The anonymous treatise, whose original title is unknown, was written by a disciple of Luria in Damsascus and then sent to Italy. There, the manuscript was copied and circulated under a variety of names such as קונטרס ההיכלות, כללי חכמת שיעור קומה, התחלת החכמה, and התחלת חכמה. It was precisely because a manuscript copy of התחלת חכמה came into the possession of R. Joseph Samuel b. R. Zvi of Cracow sometime prior to 1652, that he was so startled when he saw Kalmankes’ printed edition of מעין החכמה. Even after the printed edition made its debut in 1652, new manuscript copies of the kabbalistic treatise were written and circulated under a variety of titles, now including the title מעין החכמה.

Avivi has shown that the  התחלת החכמה manuscripts formed the first part of a larger Lurianic treatise that originally included a second part as well. Whereas the first part focused entirely on עולם האצילות, the second part focused  on עולם הבריאה — and is extant in manuscript form only. The two parts were separated from each other, and largely due to Kalmankes’ publication, the first part became an independent work entitled מעין החכמה. In sum, Kalmankes’ מעין החכמה is an accurate copy (with the addition of occasional glosses by Kalmankes) of an anonymous early 17th century Lurianic treatise that circulated widely under a variety of titles, including the title התחלת החכמה.

            a) Family History

The accusation of plagiarism leveled against R. Abraham Kalmankes by R. Joseph Samuel b. R. Zvi, and seconded by both R. Shmuel Ashkenazi and  Gershom Scholem, was not accompanied by any discussion of R. Abraham Kalmankes himself. When and where did he live? How did he make a living? What other books did he author? Was he an inveterate plagiarizer?23 Had such an investigation been conducted, we suspect that the accusation of plagiarism would not have been leveled at all.

In a brief biographical account of Kalmankes published in 1992, the author of the account bemoans the fact that so little is known about Kalmankes’ life history.24 Nonetheless, much more is known about him – and his family — than the meager snippets of information recorded in the 1992 biographical account or in the standard discussions of מעין החכמה. We will take as our point of departure the clear reference in Kalmankes’ introduction to מעין החכמה to his distinguished grandfather, “the Gaon, our Teacher and our Rabbi, R. Joseph Kalmankes Yaffe of Lublin.” For our purposes, what is most important about the grandfather is that after an illustrious rabbinic career in Lublin, he spent his last years in Prague, where he died, and remains buried to this day.25 The elaborate epitaph on his tombstone informs us that he died at the age of 56 on Sunday,13 Tishre, in the year 5397 (= October 12, 1636).26 The significance of this information will become apparent shortly, but first we need to turn elsewhere.

In 1678, at the family owned printing press in Lublin, R. Abraham Kalmankes published the only other work he would publish in his lifetime. Entitled ספר האשל, it is a masterful (and typical seventeenth century) rabbinic commentary on the book of Genesis.27It was the first installment of a planned commentary on the entire Torah, but apparently the rest of the commentary either never materialized or was never published.  The commentary is essentially a midrashic-halakhic work, replete with citations from the Midrash, Talmud, Codes (especially R. Joseph Karo’s שלחן ערוך), and kabbalistic literature. The volume itself is accompanied by a series of letters of recommendations by rabbis from Kremenitz, Lublin, Brisk, Pinsk, Grodno, Vilna,28 and more, all attesting to Kalmankes’ rabbinic scholarship. Once again, Kalmankes prefaced his work with an informative introduction. Kalmankes alludes to the many trials and tribulations that accompanied him through life, including hazardous trips to Egypt and the land of Israel. He was near death on several occasions during his travels, but managed to make his way back safely to Lublin.29 Upon his return, he undertook to publish two works in his lifetime. This, in order to fulfill the talmudic dictum: “Happy is he who arrives here [i.e., on High] with his talmudic teaching in hand.”30 Since according to biblical teaching, a matter is established by “two witnesses,” Kalmankes was determined to author two books and publish them, so that he would have them “in hand” when necessary. The first book, ספר האשל, intended for a more or less popular audience, took the form of a commentary on the book of Genesis. The second book, entitled ברכת אברהם, was intended for talmudic scholars only. Kalmankes informs us that the manuscript copy of ברכת אברהם was completed and that he looked forward to its publication. Sadly, it was never published. What  needs to be noted immediately is that Kalmankes never imagined that his earlier publication of מעין החכמה could count as one of his “two witnesses”! (And this was in 1687, long before R. Joseph Samuel b. R. Zvi leveled his accusation of plagiarism in 1701.) Indeed, מעין החכמה is not mentioned at all in Kalmankes’ introduction to ספר האשל. Clearly, he did not consider it a book that he had authored.

Elsewhere in the introduction, Kalmankes notes that he will make a special effort to cite דברי תורה from his grandfather, R. Joseph Kalmankes, who he describes as: “א”א זקני מ”ו הגאון מוהר”ר יוסף קלמנקס, זצ”ל, אשר מנוחתו כבוד בק”ק פראג.”  Kalmankes adds that upon his grandfather’s death in Prague, all of his writings were lost, and that he – Kalmankes – will therefore record his grandfather’s teachings as he heard them from his disciples. “For,” explains Kalmankes, “I merited to sit at his feet only until the age of ten. Thus, I was a child, and have no real knowledge of his novellae.” We, of course, cannot be certain whether Kalmankes sat at his grandfather’s feet in Lublin or Prague (or both). If only in Prague, and if Kalmankes was ten years old when his grandfather died, we have the latest possible date of birth for Kalmankes, namely 1626, for we have already established that Kalmankes’ grandfather died in 1636. Kalmankes, of course, could have been born earlier than 1626, and we have reason to believe that this was the case.

At the other end of the spectrum, it seems likely that R. Abraham Kalmankes died somewhere between 1678 and 1701. That he was still alive in 1678 is attested by the publication of ספר האשל in that year, and by several of the letters of recommendation dated 1678, all of which describe Kalmankes as alive and well. Since Kalmankes never responded to the devastating accusation of plagiarism made against him in 1701 by a leading rabbinic contemporary, it is probably safe to assume that he died before the accusation appeared in print. Though we cannot pinpoint the year of his death with precision, the most likely candidates are either 1692 or 1693. Kalmankes died in Lvov, where he served on its rabbinic court as דיין.31 The text of the epitaph on his tombstone was copied and published in 1863 and reads:32

Thus, Kalmankes died on 15 Nisan on a Tuesday.33 But in which year? The text states unequivocally that it was in the year whose numerical value was embedded in the biblical phrase תתן אמת ליעקב.34 But the copyist (in 1863) informed his readers that, due to an erasure, he could no longer determine which letters from the phrase were enlarged or highlighted on the original tombstone. This makes it difficult, but not impossible – as we shall see – to calculate Kalmankes’ approximate year of death. Since Kalmankes died on the first day of Passover which fell on a Tuesday, seven candidates (between the years 1678 and 1701) present themselves: 1679, 1686, 1689, 1692, 1693, 1696, and 1699. The Hebrew equivalents for these years are: [5]439, [5]446, [5]449, [5]452, [5]453, [5]456, and [5]459. Now the numerical value of a combination of letters from the phrase תתן אמת ליעקב must add up exactly to one or more of the above Hebrew dates. Only two solutions are possible: [5]45235 and [5]453.36 These are 1692 and 1693, respectively.37 In sum, if we had to give mostly approximate dates for the three generations of the Kalmankes family mentioned by R. Abraham Kalmankes in both of his publications, they would be:

R. Joseph Kalmankes:    1580-1636

R. Aryeh Kalmankes:      1600-167038

R. Abraham Kalmankes: 1620-169339

b) Citation from מעין החכמה in ספר האשל

Critical for our discussion is the fact that R. Abraham Kalmankes cites מעין החכמה in his ספר האשל!40 It is the only reference to מעין החכמה in ספר האשל.The passage reads:41

Or we can explain this by citing a passage from R. Isaac of blessed  memory, i.e., by first introducing a passage by R. Isaac Luria Ashkenazi — which is mentioned in chapter 14 of the book מעיין החכמה, which I brought to press [literally: to the publishing house] — which states that during the period of creation…

If one examines chapter 14 of מעין החכמה, the passage cited by Kalmankes in ספר האשל appears exactly as referenced, but Luria’s name appears nowhere in the text of chapter 14! This is precisely because מעין החכמה was a repository of Lurianic teaching which he – Kalmankes – brought to press. Kalmankes never claimed authorship of the book, and he tells us so in his own words in 1678, long before any accusation was leveled against him.

Ultimately, whether or not Kalmankes is viewed as a plagiarist will depend largely on one’s definition of plagiarism.42 In terms of literary (as distinct from oral) plagiarism, a reasonable definition would seem to be:

Plagiarism is the act of appropriating in print another person’s ideas,          writings, or words, and passing them off as one’s own by not providing proper attribution to their original source.

Even aside from the definition itself, the moral opprobrium attached to any specific act of plagiarism will depend on a variety of factors. Thus, it seems to me, that the more literal and lengthy the borrowing, the more heinous the offense. Motive too will surely play a role in determining the severity of the offense. We turn to the specifics of the Kalmankes case.One can certainly sympathize with R. Joesph Samuel’s outrage when, in the 1650’s, he chanced upon a copy of the recently published מעין החכמה. He leafed through its pages and realized instantaneously that it was virtually word for word a printed copy of a manuscript he owned under the title התחלת חכמה. Worse yet, prominently displayed on the title page of the pirated book was the name of the “divine kabbalist,” R. Abraham Kalmankes, a name otherwise unknown to R.Joseph Samuel. He could only conclude that this was a blatant case of plagiarism that called for condemnation. Indeed, he was still upset about the matter some fifty years later!

But, as we have seen, the title page of מעין החכמה is somewhat ambiguous about Kalmankes’ role in its authorship and publication. It simply states that Kalmankes הוציא לאור the תעלומים, i.e., he published the secret or hidden digest of Lurianic teaching. One suspects that R. Joseph Samuel never examined Kalmankes’ introduction to מעין החכמה. Had he done so, he surely would have noticed that Kalmankes admits openly that he is publishing a manuscript that contains a digest of Lurianic teaching, authored by a disciple of Luria – and not by him. Kalmankes’ states unequivocally that his contribution to the volume is limited to the few comments he added (almost always in parentheses) and to the new title, מעין החכמה, he provided for it. It is only in the third edition of מעין החכמה, published in Polonnoye, 1791 – long after Kalmankes’ death – that a skewed version of Kalmankes’ introduction is labeled: הקדמת המחבר ספר מעיין חכמה, in effect suggesting that Kalmankes was the author of מעין החכמה. Anyone who reads this skewed version of Kalmankes’ introduction, and compares it to the original, will realize at once that it is was created in 1791 in order to harmonize its content with that of a different manuscript version of the Lurianic digest (one that lacked Kalmankes’ comments) that was being attached to it.43

 We have also the clear evidence from Kalmankes’ introduction to ספר האשל, published by him in 1678, that he sought to author and publish two books in his lifetime, so as not to be embarrassed when he was called “on High.” He provides the titles of both books, yet makes no mention of the fact that he had authored and published a book called מעין החכמה. He knew full well that this was a book written by others, which he had brought to press. Indeed, as we have seen, he cited מעין החכמה in his ספר האשל. When doing so, he stated openly that it was a Lurianic work that he had brought to press.

            There doesn’t seem to be much evidence here for plagiarism, as defined above. Kalmankes’ מעין החכמה was based upon a Lurianic manuscript that was anonymous and was circulating under a variety of titles. Kalmankes never claimed authorship of the manuscript, and indicated clearly that all he did was to provide the manuscript with a new title and some brief annotation. This he did for the best of motives, namely to bring about the ultimate redemption of the Jewish people. He did not pass off the work as his own (other than the title and the annotations, which were legitimately his own creation); he withheld no proper attribution.

On the other hand, three distinguished scholars, R. Joseph Samuel of the seventeenth century, and R. Shmuel Ashkenazi and the late Professor Gershom Scholem of the twentieth century, were persuaded that Kalmankes was a plagiarist. Perhaps they felt that the appearance of Kalmankes‘ name on the title page of מעין החכמה,  preceded by the words “אב בחכמה ורך בשנים המקובל האלוהי כמוהר”ר,” with no mention of any manuscript or attribution to others, was sufficiently misleading – and, perhaps, even deliberately intended – to create the impression that Kalmankes was the author of the book. If so, they would argue, he deserves to be listed among the plagiarizers. I am not persuaded that this is the case, but in deference to the three distinguished scholars mentioned above, I have allowed the title of this essay to read as it does. At best (or: worst), it is a mild case of plagiarism, if even that.44

1 For biographical studies of R. Joseph Samuel b. R. Zvi, see H.N. Dembitzer,

כלילת יופי (Cracow, 1893), vol. 2, pp. 144b-152b; M. Horovitz, Frankfurter Rabbinen (Jerusalem, 1969), ed. J. Unna, pp. 94-97 and 296-297; and idem,

רבני פרנקפורט (Jerusalem, 1972), ed. J. Unna, pp. 67-69 and 212. For the epitaph on his tombstone, see idem, אבני זכרון (Frankfurt, 1901), p. 151. For legendary accounts of R. Joseph Samuel, see E. Sternhell, “,תולדות יצחק” p. 2b, in Y.I. Billitzer, באר יצחק (Paks, 1898); and Y.L. Maimon, שרי המאה (Jerusalem, 1955), vol. 1, pp. 231-233.

2 For an assessment of R. Joseph Samuel’s contribution to the printed text of the Talmud, see Y. S. Spiegel, עמודים בתולדות הספר העברי: הגהות ומגיהים (Ramat-Gan, 2005), second edition, pp. 404-407.

3 See L. Loewenstein, מפתח ההסכמות (Lakewood, 2008), ed. S. Eidelberg, pp. 99-100.

4 H.N. Dembitzer, op. cit., vol. 2, p. 150a.

5 See G. Scholem, חלומותיו של השבתאי ר’ מרדכי אשכנזי (Jerusalem, 1938); and Y. Tishby, נתיבי אמונה ומינות (Jerusalem, 1964), pp. 81-107. Cf. the historical vignette in Rabbi P. Katzenellinbogen, יש מנחילין (Jerusalem, 1986), ed. Y.D. Feld, pp. 74-75.

6 The original reads:

7 A. Schischa, “שלושה ספרים נעלמים,” עלי ספר 2(1976), pp. 237-240.

8 S. Ashkenazi, “שתי הערות,” עלי ספר 3(1976), pp. 171-173. For an expanded version of Ashkenazi’s comments in עלי ספר, see his אסופה: ארבעה מאמרים מאוצרות הר”ש אשכנזי שליט”א (Jerusalem, 2014), pp. 49-53. Cf. S.Z. Havlin, “הערת העורך,” עלי ספר 11(1984), p. 134.

9 These include the National Library in Jerusalem, the Bodleian Library at Oxford, and a host of other libraries in Europe and the United States. For an early description of two such manuscripts in the National Library in Jerusalem, see G. Scholem, כתבי יד בקבלה (Jerusalem, 1930), p. 63, manuscript 2512, and p, 117, manuscript 47. The Bodleian Library lists some 10 manuscript copies of התחלת חכמה in its collection. See A. Neubauer, Catalogue of the Hebrew Manuscripts in the Bodleian Library and in the College Libraries of Oxford (Oxford, 1886), column 1001. Cf. the corrections to these listings in M. Beit-Arie and R.A. May, eds., Catalogue of the Hebrew Manuscript in the Bodleian Library: Supplement of Addenda and Corrigenda (Oxford, 1994), passim. A manuscript copy of התחלת חכמה was in the private library of R. Joseph Solomon Delmedigo in 1631. See his נובלות חכמה (Basel, 1631), p. 195a. The precise title of the book varies in the manuscripts, with the most common titles being התחלת חכמה  and

התחלת החכמה.

10 See L. Fuks and R.G. Fuks-Mansfeld, Hebrew Typography in the Northern Netherlands 1585-1815 (Leiden, 1984), vol. 1, pp. 176-177, entry 233.

11 See the undated loose page, in Scholem’s hand, appended to Scholem’s copy of מעין חכמה at the National Library in Jerusalem. Cf. ספריית גרשם שלום בתורת הסוד היהודית: קטלוג (Jerusalem, 1999), vol. 1, p. 312, entry 4188.

12 See the scan of the title page.

 

13 See the scan of the introduction.

14 The title is so listed on the pages of the treatise itself in ארזי הלבנון, pp. 46b-47a. On the title page of ארזי הלבנון, it is listed as מעיין החכמה. The frequent and easy interchange between the spellings מעין and מעיין and the spellings חכמה and החכמה characterizes virtually all the printed editions of the various books bearing these titles.

15 L. Fuks and R.G. Fuks-Mansfeld, op. cit., vol. 1, p. 195, entry 270,

16 Only a handful of copies are extant world wide. To the best of my knowledge, the first edition of Kalmankes’ מעין החכמה has not been photo-mechanically reproduced, and it is not available online (as of the date this note was recorded). Nor is it available on any of the standard electronic collections of rabbinic literature, such as HebrewBooks, אוצר החכמה, or אוצרות התורה. I am indebted to the National Library in Jerusalem and the Jewish Theological Seminary in New York for making their copies available to me. The scans of the title page and the introduction are reproduced here courtesy of the Bibliotheca Rosenthalia, now in the Special Collections of the University of Amsterdam (online catalogue: http://permalink.opc.uva.nl/item/001748453).

17 H. D. Friedberg, תולדות הדפוס העברי בפולניא (Antwerp, 1932), p. 61.
18 One key revision appears on p. 1, chapter 2, where ספר ויקהל משה is referenced. The book is not mentioned in the first edition of Kalmankes’ מעין החכמה, nor could it have been, since ספר ויקהל משה was not published until 1698. The reference is to R. Moshe Graf, ויקהל משה (Dessau, 1698). It does not appear likely that Kalmankes saw Graf’s work in manuscript form, since מעין החכמה was published in 1652 and Graf was born in 1650.

19 For the date of Kalmankes’ death, see below. The Koretz, 1784 edition was photo-mechanically reproduced in Jerusalem, 1970.

20 The Polonnoye, 1791 edition of מעיין חכמה was photo-mechanically reproduced in Jerusalem, n.d. (circa 1998), in a thin, dark blue, hardbound volume whose spine and outer cover read צדיק יסוד עולם, and whose title page reads הר אדני. (In other words, when seeking a copy in a bookshop of the reprint of the Polonnoye, 1791 edition of מעיין חכמה, whatever else you do, don’t ask for a copy of מעיין חכמה.)

21 As noted by S. Ashkenazi (see above, note 8), the title page of the Lvov edition indicates that its text is based upon the Koretz edition, and reproduces the very biblical phrase used by the Koretz edition for indicating its original date of publication in 1784. But by highlighting a different set of letters within the same biblical phrase, the Lvov edition announces to the reader that its date of publication is 1875.

22 Y. Avivi, קבלת האר”י (Jerusalem, 2008), 3 volumes, passim. See especially vol. 1, pp. 204-208, 443; and vol. 2, pp. 565-568, 840-841. See also, idem, “כתבי האר”י באיטליה עד שנת ש”פ”,” עלי ספר 11(1984), pp. 91-134; and “הערה,” עלי ספר 12(1986), p. 133.

23 “Plagiarism is something people may do for a variety of reasons but almost always something they do more than once.” So T. Mallon, Stolen Words: Forays into the Origins and Ravages of Plagiarism (New York, 1989), preface, p. xiii.

24 Rabbi M.Y.S. Goldenberg, “פתח דבר,” to the reissue of R. Abraham Kalmankes’ ספר האשל (Brooklyn, 1992).

25 On R. Joseph Kalmankes Yaffe of Lublin, see J. Kohen-Zedek, שבת אחים ( St. Petersburg, 1898), pp. 59-76; S. B. Nissenbaum,  לקורות היהודים בלובלין, (Lublin, 1920), second edition. pp. 36-37; S. Buber, אנשי שם (Cracow, 1895), p. 89, entry 217;  and S. Englard, “צפונות יוחסין (א), “ ישורון 3(1997), p. 680, note 6 and p. 694, note 36a.

26 See K. Lieben, גל עד (Prague, 1856), German section, p. 46; Hebrew section, pp. 34-35.

27 R. Abraham Kalmankes, ספר האשל (Lublin, 1678). Few copies have survived. For the copy at the Bodleian Library, see M. Steinschneider, Catalogus Librorum Hebraeorum in Bibliotheca Bodleiana (Berlin, 1860), vol. 1, column 752, entry 4458:1; and A.E. Cowley, A Concise Catalogue of the Hebrew Printed Books in the Bodleian Library (Oxford, 1929), p. 45. For the copy at the British Library, see J. Zedner, Catalogue of the Hebrew Books in the British Museum (London, 1867), p. 14. For the copy at Yeshiva University’s Mendel Gottesman Library, see B. Strauss, אהל ברוך (London, 1959), p. 31, entry 534. To the best of my knowledge, the first edition of Kalmankes’ ספר האשל has not been photo-mechanically reproduced, and is it not available online (as of the date this note was recorded). Nor is it available on any of the standard electronic collections of rabbinic literature, such as HebrewBooks, אוצר החכמה, or אוצרות התורה. A new edition of this exceedingly rare volume was made available by Rabbi M.Y.S. Goldenberg (Brooklyn, 1992) and we are indebted to him. Nonetheless, one needs to use this new edition with caution; the text has been “improved” for the modern reader. A comparison of the texts of the title page, as they appeared in 1678 and 1992, serves as an indicator of the occasional liberties taken with the text. A seemingly enigmatic woodcut (opposite the opening page of the commentary on Genesis) depicting a Jew (Kalmankes?) drawing water from a well (מעין החכמה?) – and framed in an elaborate frame marked by two angelic beings holding up a crown inscribed with the words כתר תורה – was not reproduced in the 1992 edition. See the attached scans:

28 The letter of recommendation from Vilna, dated 1673, was written by its Chief Rabbi, R. Moses b. David Kramer (d. 1687), the paternal great-great-grandfather of the Vilna Gaon.

29 These vicissitudes of life may account for the additional first names of Kalmankes, who in ספר האשל is identified as אשר יעקב אברהם קלמנקס. For the practice of changing names and/or adding additional first names when confronted by difficult circumstances, see R. Judah He-Hasid, ספר חסידים (Jerusalem, 1957), ed. R. Margulies, p. 214, paragraph 245 and notes. Cf. A. Teherani, כתר שם טוב (Jerusalem, 2000), vol. 1, pp. 293-315.

30 B. Pesahim 50a and parallels.

31 S. Buber, op. cit., p. 45, entry 101.

32 G. Suchestow, מצבת קודש (Lemberg, 1863), second edition, vol. 1, no pagination, entry 32.

33 The opening line ביום טוב נהפך כי טוב פעמים signals that Kalmankes died on a holiday that fell on the day when כי טוב was said twice. The next line identifies the holiday as 15 Nisan, i.e., the first day of Passover. The day כי טוב was said twice refers, of course, to the third day of creation, i.e. Tuesday. See Gen. 1:10 and 12.

34 Buber, loc. cit., writes with confidence that the highlighted letters are אמ”ת, which would indicate that Kalmankes died in [5]441 or 1681. But in 1681, the first day of Passover fell on a Thursday, not on a Tuesday. Suchestow was more circumspect, indicating it was no longer possible to determine which of the engraved letters were enlarged or highlighted. He left the problem unresolved. The usual practice for highlighting was the placement of a protruding dot over the engraved letters that were to be used for reckoning the year of death. The problem cannot be resolved by emending the second line to read ט”ז בחודש ניסן instead of ט”ו בחודש ניסן, since the second day of Passover can never fall on a Tuesday. See שלחן ערוך, אורח חיים, סימן תכח: א.

35 By highlighting the letters תתן אמ’ת’ לי’עקב’.

36 By highlighting the letters תתן א’מ’ת’  לי’עקב’.

37 These dates are based upon the assumption that the text of Kalmankes’ epitaph, as copied and published by Suchestow in 1863, is an accurate copy of the original. But this may not be the case. Suchestow’s מצבת קודש is marred by egregious errors. He sometimes copied and published as many as four different versions of the same epitaph! In another instance, he divided an epitaph into two parts, creating two dead persons when only one was called for. See the critiques of Suchestow in S. Buber, op. cit. (above, note 25), pp. vi-viii and in R. Margulies, “”,לתולדות אנשי שם  סיני 26(1949-50), p. 113 ( and throughout the later installments to this essay published in סיני between 1950 and 1952). Given that Kalmankes’ tombstone was close to 200 years old when it was copied in 1863, it is likely that the epitaph could be read only with great difficulty. While any attempt at emending the received text is speculative, a slight emendation of the first lines of the epitaph yields the following text:

שנת תתן אמ”ת ליעקב

ביום טוב נהפך טוב פעמים ואבל ומספד ונהי בכפלים

ט”ו בחודש ניסן נגנז צנצנת המן המאיר באספקלריא המאירה

The sense would be that Kalmankes died on 15 Nisan, on יום טוב, on a day when טוב was twice overturned. It was overturned first, because every day of the week of creation was described as  טוב(with the exception of the second and seventh days); and second, because it was יום טוב, a holiday. This would allow for 15 Nisan to fall on a Thursday, and indeed in 1681 (the numerical equivalent of אמ”ת), the first day of Passover fell on a Thursday. If so, Kalmankes may well have died in 1681.

38 These dates are an approximation. We know only that R. Aryeh Kalmankes died in 1671 or earlier, as his name appears with ברכת המתים in several letters of approbation dated 1671 and appended to ספר האשל.

39 These dates, as well, are an approximation. For possible evidence that R. Abraham Kalmankes died in 1681, see above, note 37. If Kalmankes was born in 1620, he would have been 32 years old when מעין החכמה was published in 1652. This fits well with his description on its title page as a רך בשנים. It also fits well with R. Joseph Samuel’s characterization of him (at the time) as an “upstart student.” It would also mean that he was nearing 60 years of age in 1678, when he published ספר האשל. This fits well with his bemoaning the fact – in the introduction to the volume – that the hair on his head and beard had turned gray and that old age was overtaking him.

40   It is astonishing that the author of the most comprehensive study of the Kalmankes family, J. Kohen-Zedek, שבת אחים (see above, note 25), concluded on pp. 67-68, that the authors of מעין החכמה and ספר האשל were two different people named Kalmankes (cousins, of course)! Among his proofs is the alleged fact that the author of ספר האשל was unaware of the existence of מעין החכמה. Alas, Kohen-Zedek overlooked the passage cited here. So too Gershom Scholem, who wrote: “המחבר [של ספר מעין החכמה] לא הזכיר את הספר בספריו הוא, כגון ספר האשל.” See the loose page in Scholem’s hand and the Scholem Library Catalogue, referred to above, note 11. Scholem, however, did not conclude with Kohen-Zedek that the authors of מעין החכמה and ספר האשל were two different people. Even more astonishing is the fact that the late bibliophile, R. Reuven Margulies, cited Kohen-Zedek’s conclusion approvingly. See R. Margulies, “לתולדות אנשי שם בלבוב,” סיני 26(1949-50), p. 219. It appears likely that Scholem (in part) and Margulies were misled by Kohen-Zedek.

41 ספר האשל (Lublin, 1678), p. 8b. We have printed the text as it appears

  in the first edition. In the 1992 edition, it appears on p. 29 as follows:

או יאמר באשר נקדים מאמר הר”י לוריא הנזכר בספר מעיין החכמה אשר הביאותיו לבית הדפוס בפ’ י”ד, שבשעת הבריאה…

 42 In general, see A. Lindey, Plagiarism and Originality (New York, 1952); T. Mallon, op. cit. (above, note 23); and J. Anderson, Plagiarism, Copyright Violation and Other Thefts of Intellectual Property: An Annotated Bibliography with a Lengthy Introduction (Jefferson, North Carolina, 1998).

43 Thus, in the introduction to the first edition of מעין החכמה, Kalmankes states:

וגם מעט מזער מדעתי הוספתי אך לזכות הרבים היא כוונתי (I added but a few comments of my own; my only intention is to benefit the many). In the Polonnoye, 1791 edition this was radically changed to: וגם מעט מזער מדעתי לא הוספתי אך לזכות הרבים היא כוונתי (I added not even the fewest of comments of my own; my only intention is to benefit the many). This change was made necessary because the kabbalistic manuscript now appended to Kalmankes’ introduction, and being published together with it for the first time, did not contain Kalmankes’ additional comments.   

44 I am deeply grateful to Rabbi Menachem Silber for reading and commenting on an earlier draft of this essay. The errors that remain are entirely mine.

Albert D. Friedberg’s Crafting the Commandments has just appeared. The Seforim Blog is happy to present the following excerpt from the book’s conclusion.

Scholars have ascribed far too much importance to Maimonides’ enumeration of the commandments and far too little to the motivations that lay behind his appropriation of R. Simlai’s aggadah as the basis for the enumeration and to the significance that Maimonides attached to this aggadah. The proximate reason for creating an enumeration was his need to have a reasoned and methodical outline of all Torah legislation in front of him, a reminder of topics to guide his preparation of the upcoming code of law, a massive and unique undertaking. Thus we find him saying in the introduction to the ShM [Sefer ha-Mitzvot]:

All this [I would do] in order to guard against omitting any topic [emphasis added] from discussion, for only by including them in the enumeration of the commandments [heading the various treatises] would I insure against such omission.

This sense is reinforced by some of the Rules, especially Rules 7 and 10-14, which are essentially taxonomic rules rather than definitions of what constitutes a mitsvah. I posited that the logically unnecessary identification of this outline with R. Simlai’s count of 613 commandments owed its existence to Maimonides’ desire to incorporate the two fundamental beliefs of the Jewish faith, God’s existence and His oneness, into the legal realm, and thus transform their intellection into obligations, a dramatic departure from the preceding geonic paradigm. I inferred this conclusion from a dispassionate and unapologetic assessment of the mitsvah count. Maimonides stretched the meaning of mitsvat ‘aseh well beyond its common rabbinic usage, relying uncharacteristically on an aggadah of questionable legal worth, a homiletic creation with didactic aims and no pretensions of being precise, and resorted to a contrived and hardly compelling logic to arrive at the numerical target, likely fully aware of the variant results that could be legitimately obtained.

The enumeration, qua a reasoned list of commandments, has diverted the attention of the countless students of his works ever since the ShM left his hands. But I posit that it was not R. Simlai’s dictum that 613 commandments were given to Moses at Sinai that was significant, but rather R. Hamnuna’s accompanying exegesis. Maimonides used R. Hamnuna’s midrashic exegesis that the verses I am the Lord thy God and Thou shalt have no other God before Me specifically formed part of the count of 613 commandments to prove that to intellect the existence of God and His oneness constituted a positive, performative obligation. The credibility of R. Hamnuna’s exegesis was even more firmly established when Maimonides inferred from its language what he believed was a theological truth: the nature of the commandments to believe in the existence of God and to believe in His oneness was categorically distinct from the nature and motivation underlying the rest of the commandments. He explained this distinction by averring that the former were philosophically demonstrable truths, capable of being apprehended without the medium of revelation, while the latter were only conventions, necessitating the mediation of a lawgiver and prophet.

The two articles of faith occupy the most prominent position in the MT, appearing in the opening lines of the Sefer ha-Madda’. In a letter to his disciple, Joseph b. Judah, Maimonides wrote that he undertook to compile a code of law in his zeal for the glory of God, “in seeing a nation bereft of a truly comprehensive book (diwan) of law, and bereft of clear and correct [theological] notions.”  Only the inclusion of these two beliefs in the canon of law could have satisfied the requirements of “a truly comprehensive book (diwan)” containing “correct theological notions.”  In sum, the unequivocal and unique statement found in R. Simlai’s aggadah, that the beliefs in God’s existence and His oneness constituted positive obligations, led Maimonides to appropriate the aggadah, adopt its numerical value of 613, and conflate it with the outline that he was preparing—all despite the constraints that it imposed.

In the second half of the book, I turned my attention to the sub-section of positive commandments and drew some conclusions from the way they are described and defined in the Halakhot. While my readings hinged on what Maimonides actually wrote, I recognized that, being human, Maimonides was bound to make the occasional mistake. That said, the exceptional (but more than occasional) omission of the formulaic phrase “X is a mitsvat ‘aseh” at the start of a topical discussion held my special attention because of the implausibility of it being forgotten: the phrase is rich, bold, highly informative, and consistent with Maimonides’ sustained interest for making categorical distinctions. Additionally, and just as importantly, my readings focused on how Maimonides expressed himself. The rhetoric, the literary presentation of his ideas, and the logic of composition mattered as much to me as the slight inferences one could arrive at by noting the absence or presence of a particular term, elements which have constituted the more traditional way of studying his works.

I began the book’s second section by noting that in the Halakhot, Maimonides moves away from the contrived artificiality adopted in the ShM of using the term mitsvat ‘aseh to designate all types of legal themes: here he applies the term to a very specific case, that of an absolute and unconditional obligation. Combing scriptural and rabbinic sources, Maimonides searches for clear indications of unconditional commands and imperatives to perform well-defined acts. These he designates boldly and prominently at the commencement of each topical
discussion, with a formulaic phrase that states that the directive at hand is a mitsvat ‘aseh. Where Maimonides withholds the mitsvat ‘aseh designation, I theorized that he must have done so because the scriptural and/or rabbinic evidence was insufficient to make such a determination. I tested for this evidentiary insufficiency, and when confirmed, I theorized further that under the influence of reigning Islamic legal theory (which was also heavily if not wholly influenced by rabbinic thinking), Maimonides opts for a softer definition. As a result, certain scriptural directives are categorized as recommendations rather than orders, wise pieces of advice rather than commands. Supporting these with scriptural proof texts, he labels them with the solo term mitsvah, a label that he also uses to designate rabbinical directives. The scriptural mitsvot include such prominent directives as to love and fear God, to imitate Him, to appoint a king, to heed the call of a prophet, to rebuke the sinner, to honor the wise, to testify in court, and a few others.

I conjectured further that Maimonides deliberately withheld the scriptural designation from certain commandments that had been labeled as scriptural in the ShM when the plain reading of the scriptural text did not appear to provide sufficient evidence for them, even when rabbinic interpretation suggested otherwise. To this end, he chose an artful but somewhat concealed literary device to designate them as such, the participle of correct practice. This is the case with such prominent practices as the recitation of the Shema, the binding of the tefillin, the writing and placing of the mezuzah and the study of Torah.

In the heavily politicized atmosphere of Cairo, where Rabbanites were both assiduously courted and continuously attacked by sectarian groups (largely Karaites) over the role of the oral law in interpreting Scripture, Maimonides chose to keep his radical opinions hidden yet recoverable. When applied to the legal sections of the Torah, Maimonides’ peshateh di-qera hermeneutics would likely raise hackles among his own co-religionists and, worse yet, give comfort to the deniers of the oral law. His carefully planted literary cues could lead the reader who is familiar with rabbinic terminology and unburdened by popular and superficial conclusions to discover the Master’s true opinion or at the very least sense his ambivalence.

Maimonides was informed by a hermeneutics of peshateh di-qera that was firmly and demonstrably anchored in the Andalusian tradition. His insistence on presumed philological validity, however, left him uneasily placed, uncomfortably close to sectarian investigation and interpretation. Ironically, this led him at times to mount a struggling defense of his own traditional Rabbanite views, well aware that the plain sense of Scripture did not lend convincing support for such a stance.

Consciously or unconsciously, Maimonides navigated his legal system between the Rabbanites and the Karaites, upholding the former’s respect for authoritative tradition and the latter’s insistence on relying only on philologically informed readings. Maimonides’ extraordinarily novel application of peshateh di-qera to the halakhic corpus threatened the very foundations of a Rabbanism, one that was intimately intertwined with the Talmud and its authority. Nahmanides understood this too well when he criticized Rule 2:

[F]or this book of the master, its content is delightful, full of love [based on Song of Songs 5:16] except for this principle, which uproots great mountains of the Talmud and throws down fortified walls of the Gemara. For the students of the Gemara, this notion is evil and bitter. Let it be forgotten and not said.

Of course, Maimonides would not have conceded this point: he would have maintained that his paradigm flowed quite naturally from the pages of the Talmud. Did not the Talmud’s quest for peshateh di-qera support the distinction between divine and man-made law? Did not the rabbis of the Talmud acknowledge that explicitly stipulated scriptural laws enjoyed an epistemic advantage over and a distinction from man-made laws? To Maimonides the answer to these two questions was a resounding yes.

Thanks to his remarkable codification, Maimonides left an indelible mark on Jewish law. Unfortunately, an important part of his jurisprudence, the exquisitely fine distinctions he made between divine and human law and between command and advice, was never fully appreciated, perhaps because of its radical import—or perhaps because Maimonides, for his own good reasons, hid many of these contributions behind formulaic omissions, terminological nuances, and subtle literary devices. It is this rich and layered nuancing that in some modest way I have tried to recover.