Setting the Table

Front matter

» pwn

Non uaa Mado ON f: W pr vpn > pN PONS

“the Tab e

Contents

Acknowledgments viii Introduction x Part I— Setting the Table: The Codification of Jewish Law 1 Chapter One: Codifying Jewish Law 2 Chapter Two: Rabbi Yechiel Mikhel Epstein’s Arukh HaShulchan 33 Chapter Three Competing Models: The Arukh HaShulchan and Mishnah Berurah 45 Part II—The Methodological Principles of the Arukh HaShulchan 69 Introduction 70 Chapter Four: The Rule of the Talmud 83 Chapter Five Rabbinic Consensus 98 Chapter Six Resolving Doubtful Cases 110 Chapter Seven Non-Normative Opinions 135 Chapter Eight Supererogatory Religious Conduct 157 Chapter Nine Law and Mysticism 172 Chapter Ten Law and Custom 185 Chapter Eleven Temporal Rationalization of Halakhic Rules 208 Chapter Twelve Law and Pragmatism 223 Part I1J—Tllustrative Examples from the Arukh HaShulchan 249 The Arukh HaShulchan’s Methodological Principles for Reaching Halakhic Conclusions 250 The Ten Methodological Principles of the Arukh HaShulchan 252 Bibliography 395 Index of Biblical and Rabbinic Works Cited 405 Index of Names and Subjects 409

Index of Examples by Methodological Principle 413

Acknowledgments any people have contributed in different ways to the writing of this book, Me we would like to thank them: Thank you to the Emory University Center for the Study of Law and Religion, the Emory University Law School, Emory University Candler School of Theology, and the Judish London Evans Directors Fund at the Tam Institute of Jewish Studies, which all supported us in writing this work. In particular, we would like to thank Professor John Witte Jr. and Professor David R. Blumenthal, whose vision and hard work created the Center and the Institute, which continue to support excellent research, teaching, and publishing in Jewish law. We would like to thank the editors at Dinei Israel, who published portions of this work as an article in volume 33 of the journal. Portions of this book were also presented at the Jewish Law Annual Moscow Conference in 2018 and various other academic and popular lecture forums. We thank participants in those conversations, whose attendance, questions, and insights have enhanced this work. We also note that this work owes an intellectual debt to a prior work that one of us co-authored; some small portions of this work derive from Michael J. Broyde & Ira Bedzow, The Codification of Jewish Law and an Introduction to the Jurisprudence of the Mishna Berura (2014).

CHAPTER ONE Codifying Jewish Law

The Jewish Legal System: Then and Now alakhah, or Jewish law, is a system of rules, standards, practices, texts, tra-

ditions, interpretive and methodological principles, and institutions that constitutes the behavioral normative thrust of Judaism.! The rabbinic tradition understands halakhah as being rooted in the divine revelation of both the written text of the Torah—the first five books of the Hebrew Bible—and an oral tradition of explanations, qualifications, and expansions on the relatively sparse legal content of the biblical text.” In rabbinic thought, God communicated both the Oral Torah and Written Torah to Moses, who in turn conveyed these teachings to the Israelites. Subsequently, the text and these traditions were preserved and further developed by generations of prophets, priests, and (beginning in the later Second Temple period) by rabbis, who studied, taught, interpreted, and applied the Torah’s teachings.° By the second century CE, the Rabbis—the scholarly heirs of the Pharisees—had become the primary keepers of the Torah’s oral tradition of law, ethics, and theology.*

1 See generally Chaim Saiman, Halakhah: The Rabbinic Idea of Law (2018).

2 See Aaron Kirschenbaum, Equity in Jewish Law: Halakhic Perspectives on Law 10 (1991) (“The ultimate principle [Grundnorm] is the rule that the Torah, the Five Books of Moses, is of binding authority for the Jewish legal system. Parallel to this Written Torah is the Oral Tradition, which Jewish theology traces back to Moses [receipt of the tradition] from God’). See also Menachem Elon, Jewish Law: History, Sources, Principles 233 (Bernard Auerbach & Melvin J. Sykes trans., 1994); Mishneh Torah, Introduction.

See Mishnah, Avot 1:1.

4 See Rabbi Adin Steinsaltz, The Essential Talmud 22 (Chaya Galai trans., 2006).

W

In the early centuries of the Common Era, Jews experienced a series of major upheavals, including internal political and religious conflicts, the expansion of Roman control over Judea and the Galilee, the destruction of Jerusalem and the Second Temple during the Great Revolt of 66-73 CE, and the destructive suppression of the Bar Kokhba Revolt of 132-135 CE.° Largely in response to these events, the Rabbis determined that the preservation of Torah knowledge required fixing in formal texts the previously fluid and open-ended tradition. Rabbi Judah the Prince edited the Mishnah at the beginning of the third century, which provided a topically organized textual outline of the Jewish legal tradition as it then stood. More a digest than a code, the Mishnah includes numerous rabbinic opinions on many issues and typically determines singular standards of halakhic conduct only by implication.’ In the subsequent centuries, successive generations of Amoraim, rabbis who lived and worked in Jewish centers in both Palestine and the Persian Empire, subjected the text of the Mishnah to close analysis.’ These scholars used the Mishnah as a focal

S See Lawrence H. Schiffman, From Text to Tradition: A History of Second Temple and Rabbinic Judaism 157-76 (1991). 6 See Introduction to Mishneh Torah:

Why did our holy teacher [Rabbi Judah the Prince] do this [i.e. compose a textual restatement of Jewish law] rather than leaving the matter as it was [with a more fluid, orally transmitted tradition]? This is because he recognized that the number of students was diminishing while new troubles were constantly arising; the Roman Empire was spreading across the world and becoming ever stronger, and the Jewish people were spread in a wandering diaspora across the world. He therefore composed a single text that would be readily available to everyone—and which could be studied quickly—so that it would not be forgotten.

7 See Lawrence H. Schiffman, From Text to Tradition: A History of Second Temple and Rabbinic Judaism 177-200 (1991). The Mishnah was redacted in Galilee at the end of the second century CE by Rabbi Judah the Prince, who served as both the religious and political head of the Jewish community at the time. The Mishnah distills the teachings of the Oral Torah into rule-like formulations, some attributed to particular scholars and others left unattributed. Generally, these rules are organized topically by individual Mishnah (lit. “teaching”), chapter, tractate, and groups of tractates. See Menachem Elon, Jewish Law: History, Sources, Principles 1048-56 (Bernard Auerbach & Melvin J. Sykes trans., 1994). In addition to the Mishnah, a variety of other compilations of Oral Torah teachings were compiled around the same time and with substantial overlap with the Mishnah itself. See ibid., 1078-79. For a variety of reasons, however, the Mishnah came to be regarded as the most authoritative of these works—a status concretized by the Talmud’s being ultimately formulated as a commentary on the Mishnah. See ibid., 1057, 1061.

8 See Lawrence H. Schiffman, From Text to Tradition: A History of Second Temple & Rabbinic Judaism 214-27 (1991).

point of interpretation, a source of law, and a framework through which the far more expansive and untextualized contents of the halakhic tradition could be recalled, analyzed, and further developed. The content of these rabbinic discussions, which are referred to as gemara (lit. “studies”), were ultimately collected, organized, edited, and appended to the text of the Mishnah.? Together, the Mishnah and gemara comprise the Talmud. There are in fact two Talmuds: the Jerusalem Talmud is a relatively shorter text compiled in the latter half of the fourth century, and it reflects the rabbinic learning of Amoraim living in the Land of Israel; in contrast, the Babylonian Talmud is a much longer and generally more authoritative text compiled in the sixth century that records the scholarship of the rabbis living in the Persian Empire.!° Importantly, as a legal text, the Talmud is even less determinative than the Mishnah. The text of the Talmud often reads like a meandering discussion that flexibly incorporates jurisprudence, theology, ethics, and biblical interpretation. Talmudic Rabbis debate issues and offer proofs and counterproofs, although usually these discursive deliberations end without having reached a definitive legal ruling."

In rabbinic jurisprudence, the redaction of the Babylonian Talmud in the sixth century represents an important watershed event that divides Jewish legal history into Talmudic and post-Talmudic periods.!* This event, known as the “sealing” of the Talmud, established the Talmud as the principal and authoritative text of rabbinic Jewish law. Subsequent to the sealing of the Talmud, rabbinic scholars read earlier texts and traditions only through a Talmudic lens and regarded the Talmud as setting the inviolable boundaries of halakhic practice and discourse.!> Post-Talmudic developments and understandings of Jewish

9 See Menachem Elon, Jewish Law: History, Sources, Principles 1084 (Bernard Auerbach & Melvin J. Sykes trans., 1994). See also Rabbi Adin Steinsaltz, The Essential Talmud 3 (Chaya Galai trans., 2006) (“The formal definition of the Talmud is the summary of oral law that evolved after centuries of scholarly effort by sages who lived in Palestine and Babylonia until the beginning of the Middle Ages.”).

10 See Menachem Elon, Jewish Law: History, Sources, Principles 1095-98 (Bernard Auerbach & Melvin J. Sykes trans., 1994).

11 See Rabbi Adin Steinsaltz, The Essential Talmud $7 (Chaya Galai trans., 2006).

12 See Babylonian Talmud, Bava Metzia 86a.

13 See Introduction to Mishneh Torah:

All those things contained in the Babylonian Talmud—all Jews are obligated to follow them. Every town and country must observe all the customs, obey all the decrees, and uphold all the enactments of the Talmudic sages, for the entire Jewish people have accepted upon themselves all the things contained in the Talmud. The Sages who adopted the enactments and decrees, instituted the practices, rendered the rulings, and derived the laws [contained in the Talmud] included all or most of the scholars of Israel.

law must be grounded in sound readings of the Talmud and cannot be inconsistent with Talmudic standards. !+ Within these wide parameters, however, there was room for the de facto existence and de jure justification of a great diversity of legal opinion and religious practice. The move from abstract halakhic norms to practical standards of religio-legal conduct required substantial analysis and interpretation of Talmudic sources. Yet rabbinic scholars disagreed widely about how best to understand discursive and indeterminate Talmudic sources, and they also disagreed about the right methodological principles to be used in reaching conclusive legal rulings.!5 Additionally, the relatively wide normative boundaries established by Talmudic materials left substantial room for different Jewish communities to develop a range of customary religious expressions and extralegal practices.

As Jewish law developed in the centuries following the sealing of the Talmud, rabbinic scholars came to recognize a loose periodization of post-Talmudic halakhic development that helped establish further parameters for acceptable Jewish legal practice. The post-Talmudic era is conventionally divided into three periods. The period of the Geonim (“brilliant ones”) is generally understood to have lasted from the seventh century until the mid-eleventh century and is characterized by the rabbinic dominance of the Geonim, the heads of the great Talmudic academies of the Persian Empire, who filled the roles of authoritative transmitters and interpreters of the Talmud.!° As Jewish communities in Franco-Germany, Spain, and North Africa became more established while the Persian centers of Jewish learning were experiencing a decline,

They were the recipients of the tradition of the fundamentals of the Torah in an unbroken chain of transmission back to Moses.

14 See, e.g, Rabbi Yitzchak Yosef, Ein Yitchak, vol. 1, 55 (2009); Biur HaGra to Shulchan Arukh, Choshen Mishpat 25:6; Rabbi Yom Tov Lipmann Heller, Tosafot Yom Tov, Sheviit 4:10 (“Even though the Torah can be interpreted in numerous different ways . . . when it comes to legal rulings, however, a decisor must rely on what the scholars of the Talmud have said.”). Cf. Avraham Derbaremdiker, Seder HaDin 305-308 (2010) (discussing the parameters for the base-line legitimacy of halakhic rulings).

15 See Chaim Saiman, Halakhah: The Rabbinic Idea of Law 141-62 (2018). See also Moshe Halbertal, People of the Book (1997) (describing and explicating three distinct schools of rabbinic thought on how to view and understand the Talmud).

16 See generally Robert Brody, The Geonim of Babylonia and the Shaping of Medieval Jewish Culture (1998) (for an overview of the Geonim, their work and context). See also An Introduction to the History and Sources of Jewish Law 203-14 (Neil S. Hecht et al., eds., 1996) (discussing the legal literature produced by the Geonim); id. at 228-34 (describing the lives and works of several major Geonic scholars); id. at 239-41 (explaining the perceived authority of Geonic rulings within rabbinic jurisprudence).

the era of the Geonim gave way to the period of the Rishonim (“first ones”).1” The period of the Rishonim lasted until the end of the fifteenth century and was characterized by furious scholarly activity that produced voluminous Talmudic commentaries, codifications of Talmudic law, and responsa literature in which rabbis answered legal inquiries posed to them by private individuals and communities.!® The third period, that of the Acharonim (“last ones”), is usually dated from Rabbi Joseph Karo’s publication of his seminal code, the Shulchan Arukh, around which nearly all subsequent halakhic developments and discussions revolve. Following the precedent established by the Arbah Turim, a fourteenth century restatement of Jewish law authored by Rabbi Jacob ben Asher, the Shulchan Arukh divided Jewish law into four main branches: Orach Chaim addresses the daily ritual routine, including laws governing the observance of the Sabbath and holidays; Yoreh Deah deals with those areas of ritual law—such as dietary observances—that do not relate chiefly to one’s daily routine; Even HaEzer concerns family law matters; and Choshen Mishpat addresses torts, contracts, property, and other civil law matters along with judicial procedure.!” Throughout the period of the Acharonim, many significant scholars—themselves as important as Rabbi Karo in status and authority—wrote annotations to the Shulchan Arukh, which solidified the place of the work and its surrounding commentaries as the modern touchstone of Jewish law.”°

According to the rabbinic jurisprudential tradition, long ago, during the biblical and Second Temple periods, Jewish law functioned much like most modern legal systems. Indeed, by many measures, the halakhah was very progressive for its time.?! As described—perhaps aspirationally—in traditional rabbinic

17 See An Introduction to the History and Sources of Jewish Law 271-358 (Neil S. Hecht et al., eds., 1996).

18 See An Introduction to the History and Sources of Jewish Law 359-96 (Neil S. Hecht et al., eds., 1996).

19 See Living the Halakhic Process 16-18 (Daniel Mann, ed., 2007) (providing an overview of the topics covered in each of these four sections of Rabbi Karo’s Shulchan Arukh).

21 See, eg, Gerald J. Blidstein, Capital Punishment—The Classic Jewish Discussion, 14 Judaism 159 (1965) (on capital punishment); Samuel J. Levine, 1 Jewish Law and American Law: A Comparative Study, 133-39 (2018) (on self-incrimination); Ephraim Glatt, The Unanimous Verdict According to the Talmud, 3 Pace International Law Review 316, 321-28 (2013); Shlomo Pill, Recovering Judicial Integrity: Towards a Duty-Focused Disqualification Jurisprudence Based on sources, the Jewish legal system had an executive authority as well as a federalized system of local courts answerable to regional appellate courts. These lower courts operated under the jurisdiction ofa high court known as the Sanhedrin? which functioned as a joint legislative and judicial assembly that resolved questions of Jewish law by majority vote. The king or other executive authority was ultimately bound to obey the law as determined by the Sanhedrin, as were all other subjects.?3 The Sanhedrin crafted rules of law that bound all, both by engaging in binding interpretations of the canonical texts of the Torah and by enacting legislative decrees of many different types, be they fences to protect Torah law, new decrees out of whole cloth to reflect differing realities, or even on rare occasions the suspension of the duties of Jewish law in response to exigencies.”4 Importantly, within this system, disputes and uncertainties about what the law was or required, as well as those about the relevant facts to which the law was to be applied, were ultimately subject to adjudication in the rabbinic courts—litigants were both obligated and obliged to obey the courts’ rulings. Here, the Sanhedrin functioned as the court of last resort; it resolved any persistent doubts about the law by issuing authoritative interpretations of the Torah and tradition, and it unified Jewish legal practice by resolving inconsistent rulings by lower courts.*> The determinations of the Sanhedrin were final, legally infallible, and binding upon all those subject to the Jewish legal system. In short, the Jewish legal system looked very much like any other legal system. In rabbinic thought,”° this system began to unravel at the beginning of the Common Era, a time when a number of factors contributed to the decline of Jewish law’s ability to continue functioning like any other public law system. Most importantly, Rome expanded its control over Judea and Galilee, and Jewish legal and political authority eroded rapidly in the early decades of the

Jewish Law, 39 Fordham Urban Law Journal $11 (2011) (on judicial bias); Shlomo Pill, Jewish Law Antecedents to American Constitutional Thought, 85 Mississippi Law Journal 643 (2016) (on checks and balances, equal application of law, government by consent); Shlomo Pill, The Political Enforcement of Rabbinic Theocracy? Religious Norms in Halakhic Practice, 2 Studies in Judaism, Humanities, and the Social Sciences 23 (2018) (on religious liberty).

22 The Hebrew and Aramaic word is commonly thought to derive from the Greek Synedrion, a translation of the Hebrew term “Men of the Great Assembly.”

23 See Mishneh Torah, Hilkhot Melakhim, 1:1-2:6. See also An Introduction to the History and Sources of Jewish Law 41-43, 127-30, 147-50 (Neil S. Hecht et al., eds., 1996).

24 See Mishneh Torah, Hilkhot Mamrim 1:1, 2:1-9. On rabbinic legislation generally, see Menachem Elon, Jewish Law: History, Sources, Principles 477-544 (Bernard Auerbach & Melvin J. Sykes trans., 1994).

25 See Mishneh Torah, Hilkhot Mamrim 1:4.

26 Aaron M. Schreiber, Jewish Law and Decision-Making 226-77 (1979).

Common Era. According to the Talmud, the Sanhedrin’s criminal jurisdiction lapsed around 30 CE.’ It ceased formally functioning as the supreme judicial and legislative authority of the Jewish legal system altogether following the destruction of Jerusalem in 70 CE.”® Various rabbinic assemblies and proto-Sanhedrin bodies continued to meet in the following centuries in order to debate and determine various pressing issues of Jewish law, but even these august bodies never wielded the kind of top-down juridical authority to determine the law possessed by the legislatures or high courts of other systems.”? The Sanhedrin could no longer impose uniformity of practice among the now widely scattered and largely independent communities of the Jewish diaspora. By the mid-fourth century, any formal juridical authority to determinately decide the substance and requirements of Jewish law ceased to exist altogether.°° The Mishnah (c. 200 CE) bears witness to this phenomenon and illustrates the devolution of the Court by routinely recounting various conflicts among the Sages without attempting to resolve them.

Due to its exilic development since the beginning of the Common Era, without a Sanhedrin or centralized system of judicial authority, Jewish law has evolved for the last two thousand years and developed without any clear method for resolving disputes. Talmudic, medieval, and contemporary debates about Jewish law linger, since direct, categorical rules of resolution (such as, for example, majority votes of the Supreme Court in the United States or Papal pronouncements in Canon law) do not exist. The exact reason for this is beyond the scope of this introduction,>! yet some methodological explanation will allow the reader to have a better understanding of the relationship of the modern classical work of Jewish law, the Arukh HaShulchan, to other jurisprudential approaches to Jewish law and other legal systems. Frequently, the methodology of Jewish law is unintelligible to those well familiar with other legal systems but who lack a crisp understanding of the functioning of Jewish law on a practical and historical level.>”

27 See Babylonian Talmud, Avodah Zarah 8b.

28 See Babylonian Talmud, Sanhedrin 37b.

29 See A History of the Jewish People 317-23 (H. H. Ben-Sasson, ed., 1985).

30 See Babylonian Talmud, Bava Kamma 84b.

31 For one account of the intentional multivocality of Jewish law, see Shlomo Pill, Law as Engagement: A Judeo-Islamic Conception of the Rule of Law for Twenty-First Century America (2016) (Dissertation). See also Avi Sagi, The Open Canon (2007). For historical explanations for rabbinic legal disagreement, see, e.g., Introduction to Beit Yosef to Arbah Turim.

32 Until the modern era, rabbinic scholars have been relatively unconcerned with producing systematic accounts of the philosophy and methodology of Jewish law. Unlike Islamic law,

From the time of the disbanding of the Sanhedrin through the centuries following the redaction of the two Talmuds, disputes as to what the Jewish law should be in any specific case were resolved by an informal, consensus-based voting process in which the ordained rabbis of the generation participated.* Not every dispute, however, was resolved, and since there was no consensus on what the normative practice should be, the law was sometimes left open with more than one practice considered reasonable and legitimate.** Indeed, one who studies Talmud sees that most of the Talmudic disputes are left unresolved textually, and most are not resolved through inferential logic even when the text is studied as a whole.*°

From the early eighth century until modern times, the process for resolving Jewish legal disputes further deteriorated to the point that even informal consensus was no longer possible. Absent the ability to reach deliberate, consensus-based conclusions about what Jewish law should be, diverse halakhic opinions gradually proliferated, and the range of different legal views and practices on many issues steadily expanded. As a result, indeterminacy and disagreement became both an unavoidable fact of Jewish law that made it increasingly difficult to know the correct rule or standard of practice, as well as a serious impediment to the Jewish legal community’s ability to settle on any

Canon law, Roman law, and Common law systems, pre-modern rabbinic thinking, with only a few exceptions, never produced systematic accounts of its own jurisprudence and methods of legal decision-making. Some indications of specific halakhic scholars’ own decision-making methods can be found in the introductions to those rabbis’ major halakhic works (for instance in Maimonides’s introduction to his code, Mishneh Torah, and Joseph Karo’s introduction to his Beit Yosef), as well as scattered throughout various responsa (see, e.g., Responsa Masat Binyamin, no. 62) and commentaries (see, e.g., Rabbi Shabbatai HaKohen, Klalei Horaah B’Issur V’Hetter).

33 Thus, for example, the Talmud sometimes concludes a dispute with the word “vehilkheta,” which is generally understood to mean “and this is the proper practice,’ denoting the consensus that is mentioned above.

34 In some instances, a consensus developed, but uncertainty has since arisen as to what that consensus ruling actually was, or to what extent a consensus had actually formed on certain points of law, which is itself often a matter of Talmudic interpretation itself. See generally Arbah Turim, Choshen Mishpat 25; Beit Yosef to Arbah Turim, Choshen Mishpat 25 (discussing variant views among early medieval authorities on the extent of Talmudic consensus).

35 See, eg, Rabbi Moses ben Jacob of Coucy, Introduction to Sefer Mitzvot Gadol (1547) (noting that the length, complexity, and dialectic nature of Talmudic material prevents it from being a source of determinate legal directives). See generally Shlomo Pill, Law as Engagement: A Judeo-Islamic Conception of the Rule of Law for Twenty-First Century America, Ch. 5 (2016) (Dissertation).

very widely accepted methodology for resolving halakhic disputes. The lack of doubt-resolving institutions and methods made increased legal disagreement inevitable; at the same time, the proliferation of legal disagreement made it impossible to garner widespread acceptance of any particular doubt-resolving institutions or methods.

There are several reasons for this substantial deterioration of the rabbinic jurisprudential system’s ability to resolve legal doubts and clarify halakhic uncertainties. First, as the Jewish diaspora became more dispersed throughout Europe, Africa, Asia, and eventually the Americas, geography made communication across communities difficult. Building consensus through discourse and interaction is difficult even if all the scholars are in one location and interested in consensus; as the Jewish community became spread out over vast areas of land, it became virtually impossible.*° Second, by the era of the Rishonim, increased interest in Talmud study in geographical areas with very diverse living conditions led different Jewish communities and schools of rabbis to very different ways of understanding the legal implications of Talmudic texts based on their respective social, cultural, environmental, political, economic, and religious contexts.*’ This not only resulted in different ways of thinking about and practicing Jewish law, but this also meant that even attempts at reaching rabbinic consensus across geographic bounds were stymied by scholars in different contexts speaking very different jurisprudential languages. Consensus remains possible when disputants merely disagree, but it becomes an increasingly remote possibility when discussants are merely speaking past each other with fundamentally different understandings of the subject matter at hand.°® Third, diverse social and economic conditions began to make it harder to apply the Talmudic rules to new realities with consensus. Regionalism became a significant complexity in climate, community, economy, and many other factors. Finally, diversity increased the degree to which classical rabbinic texts became corrupted through copying and printing errors, which led different

36 See, e.g., Introduction to Beit Yosef to Arbah Turim.

37 See, e.g, Rabbi Menachem Meiri, Introduction to Responsa Meiri Magen Avot (drawing on the Aristotelian idea that people tend to think and act like those around them to explain the proliferation of rabbinic disagreement over halakhah); Rabbi Israel Salanter, Ohr Yisrael, no. 30 (arguing that “subjective emotional forces which human beings cannot fully eradicate from their cognitive processes” prevent halakhic scholars from understanding anything more than “what their own eyes see”).

38 For a discussion of some of the fundamentally different understandings about the nature of Jewish law and the proper methods for reaching halakhic decisions, see generally Moshe Halbertal, People of the Book (1997).

communities to sometimes work with different versions of the authoritative sources of Jewish law. Other texts disappeared entirely from certain regions, while some texts were deemed authentic and binding in some communities and not so much in others.°?

Many other factors and reasons were present as well. The truth is obvious to anyone invested in law: absent a binding mechanism for forcing a consensus, such as voting or a high court of final jurisdiction, legal systems are rarely able to avoid the specters of widespread legal disagreement, indeterminacy, and uncertainty. Ponder for a minute what would happen in the United States with its fifty state supreme courts and thirteen federal circuit courts of appeal if the United States Supreme Court ceased resolving disputes between these various judicial authorities about what federal law is and what it requires. Even with a functioning Supreme Court, there is substantial diversity in how federal law is understood and applied in the courts of various states and circuits. Absent a final arbiter to “say what the law is,’4° as Chief Justice John Marshall put it, grand diversity would take shape in a very short amount of time.4! In this sense, the Jewish legal tradition is no different than any other; it once functioned with a relatively high degree of legal determinacy, but in the absence of institutions empowered to force uniform legal resolutions and the conditions necessary to support the development of widespread consensus, Jewish law in the medieval and modern periods can be characterized as a complex, messy universe of texts, traditions, authorities, and opinions that make it notoriously difficult to determinatively conclude what the law is and what it requires on most issues.

* k k k *

Regardless of the precise reasons, Jewish legal disputes became common by the early Middle Ages. In the absence of a widely accepted procedural method or judicial institution for resolving halakhic disagreements, legal decision-making became highly analytical. The principal method for determining legal uncertainties and resolving disputes was to demonstrate that one conclusion or line of reasoning substantially represented the more analytically correct

39 See generally Rabbi Moshe Walter, The Making of a Halachic Decision 163-66 (2013).

41 Indeed, many scholars maintain that among the most important jobs the United States Supreme Court does is enforce uniformity of federal law on important matters. For more on this, see Michael J. Broyde, Note: The Intercircuit Tribunal and Perceived Conflicts, New York University Law Review 62, 610-50 (1987).

understanding of the Babylonian Talmud. Support for any one halakhic opinion over others rested upon which view was seen by any particular scholar to be more consistent with accepted and authoritative Talmudic sources.”

The opinion shown to be a more accurate and analytically persuasive interpretation of Talmudic intention, given the particular context in which it was being applied, was accepted as normative. The significance of relying on such an analytic approach to resolving halakhic questions, in contrast to earlier models of dispute resolution that were utilized while the Sanhedrin still functioned or when widespread consensus remained possible, should not be underestimated. In earlier eras, Jewish legal normativity rested less on the analytic correctness of a given ruling or determination and much more on the institutional or procedural provenance of the legal conclusion in question. Judgments of the Sanhedrin were per se correct, and rabbinic consensus provided its own self-referential and independent justification for accepted legal conclusions.® To use Justice Robert Jackson’s famous description of the authority of the United States Supreme Court, halakhic rulings determined by consensus or by the Sanhedrin were not final because they were infallible but rather were regarded as infallible because they were final.** In the absence of such institutions and mechanisms, however, the normativity of any claimed rule of Jewish law had to rest on its substantive correctness in analytic terms.

Nevertheless, in many cases, the analytic tools used to evaluate the plausibility of competing Talmudic understandings and applications were insufficient to answer halakhic questions or resolve rabbinic disagreements—oftentimes more than one answer was deemed plausibly true within the confines of the Talmudic discourses. Indeed, there are many cases where post-Talmudic discourse reached an impasse and was unable to provide an intellectually honest determination of which view should be considered more analytically correct. For instance, regarding a Talmudic discussion of whether the daughter of a non-Jewish man and a Jewish woman is permitted to marry a kohen, a member of the priestly families of the tribe of Levi, three equally legitimate readings