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193
The Torah u-Madda Journal (14/2006-07)
 AResponse to Rabbi Ephraim Buckwolds Critique of “Rabad of Posquières: AProgrammatic Essay” 
I
would like first to apologize to Rabbi Ephraim Buckwold for my delayin replying to his extensive critique of my article on Rabad of Posquières in the Jacob Katz
Festschrift 
.
1
Achapter in a book that Iwas finishing had grown out of all proportion, and I decided to publishit as a separate work.
2
At the time, I thought that with a little rearrang-ing and a touch of re-plastering the structure of the original work couldbe retained, and the book finished within several months. In fact, thebook hadtobeentirely re-organized and new chapters written. This hastakensometwoand a half years, and it is onlynow that I am free toaddress his scholarly critique.Itis a pleasure to have an essay in the history of Halakhah scruti-nizedand evaluated by a genuine
talmid h.akham
;tohavean article onRabad evaluated by the editor of an outstanding edition of the
Ba‘aleiha-Nefesh
,
3
is a double blessing. Rarely have I had so learned a readerand a disputant of such distinction.
R. Buckwold’s article contains many substantive criticisms and, if I readit correctly, it is also undergirded by a twofold anger. First, my con-
HAYMSOLOVEITCHIK
H
AYM
S
OLOVEITCHIK
is the Merkin Family Research Professor of Jewish History andLiterature at Yeshiva University. Among his publications are
The Use of Responsa asan Historical Source
and
Yeinam: Trade in Gentile Wine
,both in Hebrew.
 
tention that Rabad was a revolutionary and that he dispensed with“Geonic tutelage” strikes him as gross, even disrespectful misinterpreta-tion of Rabad. How could anyone “dispense” with the Geonim? How could anyone “render the Geonim irrelevant”? He is equally upset at my claim that Rabad “transformed his heritage” or that the revolutionary  jurist “disguises his revolution—at times even from himself.The second aspect of my article that has awakened his wrath is hisview that I contended that some of Rabad’s doctrines were forged inpart in responses to contemporary problems, to historical conditions of his time. Though he is courteous enough not to say so explicitly, thissmacks to him of attributing to Rabad tendencies best associated withReform or Conservative Judaism. He vigorously denies any such agendaon the part of Rabad and proceeds to expose what he believes are thesubtle ways that I have insinuated these heretical notions into my pre-sentation of Rabad and his work.Iwould liketo begin by addressing his underlying anger at m“Reformist” portrait of Rabad and then turn to his specific critiques of my essay.Passing for the moment the issue of whether or not I actually con-tended what he attributes to me (we will deal with that later on), hisoutrage is nevertheless misplaced. In the matter of response to contem-poraryproblems, one has to clearly distinguish between the realm of rit-ual and civil law, between the area of 
Orah..ayyim and Yoreh De‘ah
andthat of 
.oshen Mishpat 
.The Reform movements of the past two cen-turies have centered on ritual law; adjustments of 
.oshen Mishpat 
are anongoing enterprise of Halakhah. Suppose religious Jews were to insiston having all their business litigation adjudicated by rabbinic courts, orthat the State of Israel were to hand civil litigation over to rabbiniccourts; does R. Buckwold not think that efforts would be made to justify the existence in Halakhah of corporations, of the stock markets, of cred-it cards? What would he say of a decisor or respondent (
dayyan
or
meshiv 
)who uponbeing asked to adjudicate the inheritance of WalterAnnenberg, were to rule that Mr. Annenberg had all the while been apauper, and that there were precious few assets to be divided among hisheirs? Most of Annenberg’s famous business acquisitions were exercisesof the purest
asmakhta
;the bulk of his assets were in stocks and securi-ties—intangible goods (
davar she-einbo mammash
or
davar shelo ba la-olam
)which are not subject to acquisition; and as for his famous artcollection, almost all of it had been acquired from Gentiles, and theproper modes of acquisition (
kinyan
)hadnever been employed.
The Torah u-Madda Journal 
194
 
The world of affairs is not under Jewish control; corporations existas does the stock market, and they will not disappear because Halakhahrefuses to recognize them. The sages of the Talmud (
.azal 
)realizedthis and grappled with these problems, as did the Geonim andmedieval talmudists (
rishonim
), as R. Buckwold himself states furtheron in his essay.
4
If Halakhah is to regulate the office no less then thehome, it must come to grips with an alien reality and give it recog-nizance in its thinking. Both Modern Orthodox and most
h.aredi
com-munities have no need for any work on
.oshen Mishpat 
similar to the
 Mishnah Berurah
on
Orah..ayyim
,for Halakhah stops at the officedoor. In their personal life they live lives of scrupulous religiosity; intheir business affairs they live like pagans, by the law of the Gentiles.That they do so is understandable; less understandable are those whotake their paganism as a mark of purity.
Seder Nezikin
exists for themas a beautiful world of theory, not as a regulative system. One does notsully this pure world with dross of daily affairs. Living in an open soci-ety in a modern democratic state, such a bifurcation between the pub-lic and private sphere is possible, and the binding force of 
.oshen Mishpat 
is entirely optional. This was not the case in the closed corpo-rate states of the Middle Ages. Each group was charged with regulatingthe affairsofits members, and if it had ceased to do so, its self-govern-ment and survival were seriously endangered. Self-government wasprerequisite for Jewish continuance, which meant grappling with intract-able economic realities and finding halakhic categories on the basis of which to adjudicate the issues that arose from their existence. To say that Rabad wrestled with the dearth of currency in his time or theurgent need for greater credit mobility is not to discredit him. It sim-ply means that he lived in an era where it was axiomatic that the fullspectrum ofone’sactivities fell within the orbit of Halakhah, and thatGod’s word was not to be consigned as now to the inner sanctum of the home and synagogueR. Buckwold further feels that the response to contemporary prob-lems yields a false or specious Halakhah. To my thinking the problem of sale of notes of indebtedness (
mekhirat h.ov 
)like that of credit cardstoday is simply a challenge to halakhic thinking, as is a problem or objec-tion (
kushya
)posed in the
beit midrash
.Both stimuli can generate a cor-rect response or a specious one, and instances of good and bad repliescan be found in abundance for each of the two catalysts. The fact that atheorem is a response to a contemporary 
kushya
scarcely invalidates it;similarlyaresponse to contemporary challenge is not disqualified by its
Haym Soloveitchik
195

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