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LEGITIMACY AND NECESSITY:

SCIENTIFIC DISCIPLINES
AND THE LEARNING OF TALMUD

DANIEL SPERBER

THE ROBERT M. BEREN


COLLEGE

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STUDIES IN JEWISH THOUGHT
AND IDENTITY

BEIT MORASHA OF JERUSALEM


We acknowledge with thanks the permission of Jason Aronson Publishers/
Rowman and Littlefield Publishing Group and the Orthodox Forum/RIETS
to republish the first part of Daniel Sperber’s now-expanded article: “On the
Legitimacy of Scientific Disciplines for True ‘Learning’ of the Talmud” by
Daniel Sperber, from the 1997 book Modern Scholarship in the Study of
Torah, edited by Shalom Carmy.

© Robert M. Beren College


Beit Morasha of Jerusalem
The Academic Center for Jewish Studies and Leadership
POB 29253, Jerusalem 91292 Israel
www.bmj.org.il ISSN 1565-8007
Shevat 5766 / February 2006

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PREFACE
It is with great pleasure that I present to the discerning public
this first essay in our new Studies in Jewish Thought and Identity
publication series.
In bringing to the public a selection of original research and opinion
writing penned by Beit Morasha faculty and associates, this series
seeks to stimulate public on, and consideration of, contending
approaches to the central religious and philosophical issues for
contemporary committed Jews.
This first offering – a provocative and far-reaching essay by the
Robert M. Beren Distinguished Professor of Talmud at Beit Morasha
– is an excellent example of the type of scholarship we seek to
engender: outstanding traditional Torah scholarship integrated with
modern research, exegetical methodology and academic discipline.
Beit Morasha of Jerusalem was founded almost fifteen years ago
with the aim of creating a sophisticated, well-rounded and sensitive
intellectual leadership capable of being the catalyst for a new Jewish
and Zionist identity for Israel.
In the army, in school systems, in politics and in communities across
the country, Beit Morasha facilitators and graduates of the Robert
M. Beren College are at the forefront of innovative Jewish and
Zionist identity initiatives.
Beit Morasha’s burgeoning reputation has drawn significant
funding and growing support from the finest philanthropies and
most discerning donors in the Jewish world. We are building the
Jewish leadership of tomorrow.

Prof. Benjamin Ish-Shalom


Founder and Rector

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BEIT MORASHA OF JERUSALEM was founded in 1990 to confront the erosion
of Israel’s Jewish and Zionist foundations. Its Robert M. Beren College
prepares and empowers a leadership capable of promoting Jewish and
Zionist identity. These leaders serve as the catalyst for a new understanding
between religious and secular Jews.
The College’s rigorous course of study and research draws upon the finest
intellectual traditions in the worlds of Torah and academic scholarship.
In cooperation with Bar-Ilan University, it offers postgraduate degree
programs in Talmud and Jewish Philosophy.
Beit Morasha facilitators and Robert M. Beren College graduates are at the
forefront of innovative Jewish and Zionist identity initiatives in the common
acculturating institutions in the lives of Israelis -- the Israel Defense Forces,
educational systems, government, and in diverse communities across the
country.
STUDIES IN JEWISH THOUGHT AND IDENTITY
The Studies in Jewish Thought and Identity series serves as a forum for
publication or re-publication of research and other writing on contemporary
issues penned by Robert M. Beren faculty, students and associated scholars.
Publication of an essay by Robert M. Beren does not imply endorsement of
the author’s views or conclusions.
BOARD OF GOVERNORS
Officers: Mr. Jay Pomrenze, Chairman of the Board; Rabbi Dr. Shlomo
Riskin, President and Co-Founder; Prof. Benjamin Ish-Shalom, Founder
and Rector. Members: Moshe Barner, Lee Botnick, Barbara Finger, Mendi
Gertner, Charlotte Green, Andrew Groveman, Amos Hermon, Isi Liebler,
Yitzhak Meiron, Chaim Nagus, Marta Schwarcz, Dr. Eli Silver
SENIOR FACULTY AND ADMINISTRATION
Rabbi Dr. Yehuda Brandes, Dean of the Beit Midrash for Men
Rabbi Dr. Benjamin Lau, Dean of The Moshe Green Beit Midrash:
Fostering Women’s Leadership in Torah U’Madah
Prof. Shalom Rosenberg, Israel Henry Beren Professor of Philosophy
and head of the Philosophy Dept.
Rabbi Prof. Daniel Sperber, Robert M. Beren Professor of Talmud and
head of the Talmud Dept.
Ms. Michal Tikochinski LL.B., Assistant Dean, Beit Midrash for Women
Dr. Alon Goshen-Gottstein, head of the Institute for the Study of
Rabbinic Thought
Dr. Moshe Hellinger, senior research fellow, Prof. Ernest Schwarcz
Institute for Ethics, Judaism and State
Mr. Paul Wimpfheimer, Executive Director
Mr. Edmond Hasin, Director of Robert M. Beren College
Rabbi Dr. Eliav Taub, Dean of Students and Director of External Studies
Mr. Amichai Berholz, Director of Beit Morasha Press
Robert M. Beren College is affiliated with Ohr Torah Stone Institutions
Avi Chai: A Founding and Ongoing Supporter

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EXECUTIVE SUMMARY
This study seeks to demonstrate that there is a clear need to use
scientific discipline when examining rabbinic texts. These disciplines
include textual clarification based on manuscripts and early printed
editions, philological studies to ascertain the exact meaning of
difficult terms, seeing the text in its historical, sociological and
literary settings, and the use of material (archeological) evidence in
many cases in order to understand the physical aspects of an object
discussed and for its sitz im leben. Without the appreciation of these
methodologies we often miss the main point of the text, and in some
cases even err as to the practical halachic implications thereof.
In the first part of this study I have outlined the necessity of such
a critical approach, both to the texts that were first formulated in
oral or manuscript form, and also those composed after the advent
of printing. In the second part I have given a number of concrete
examples of the sort of errors – of varying seriousness – on the
part of great authorities, who did (or could) not utilize these
methodologies, thus understanding their vital necessity in our times
where the means of their use are readily available to us.

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ABOUT THE AUTHOR

Rabbi Prof. Daniel Sperber is the Robert M. Beren Distinguished


Professor of Talmud and head of the Talmud Dept. at Beit Morasha
of Jerusalem. He also is the Milan Roven Professor in Talmudic
Research at Bar-Ilan University, and President of its Institute for
Advanced Talmudic Studies. A 1992 Israel Prize recipient for his
academic achievements in the fields of Jewish art, Talmudic history
and philology, Prof. Sperber is the author of the epic seven-volume
scholarly work Minhagei Yisrael (Mossad Harav Kook), and a
leading figure in religious-secular dialogue.
Born in 1940 in a remote castle in Wales, where his parents had set
up a German children’s refugee camp, Rabbi Prof. Daniel Sperber’s
unusual roots serve as the background for his unique scholarly
career. He studied at the Kol Torah yeshiva in Jerusalem, then
received a B.A. in art history from the Courtnauld Institute of Art,
and a Ph.D. in Ancient History and Hebrew Studies from University
College, both of London, England. At Bar-Ilan University, he has
served as chairman of the Talmud department, Dean of the Faculty
of Jewish Studies, director of Bar-Ilan’s Basic Jewish Studies
Program; and was founder of the Bar-Ilan University Press and the
university’s Jewish Art program and Jewish Art Museum.
Prof. Sperber’s specialties: Jewish history of the Roman Period from
a social-economic and agrarian viewpoint, Talmudic philology, text
editing and commentaries on minor Talmudic tractates, ancient
Jewish numismatics, everyday life in Talmudic times, and history
and development of minhagim (customs). Many of Prof. Sperber’s
more than 350 scientific articles and 20 books are enriched with
illustrations by the author. Recently published: Magic and Folklore
in Rabbinic Literature, The City in Roman Palestine and The
Halachic Customs of Israel: Sources and History, Volume 7.
As Chairman of the National Council for State Religious Schools,
he was instrumental in establishing a number of groundbreaking
educational institutions, including: Israel’s first religious high
school specializing in the arts, for women; a yeshiva high school
in Mitzpeh Rimon with an emphasis on ecology; a rehabilitation-
learning center for religious high school dropouts with a history of

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drug abuse and psychological problems; and yeshiva high schools
of the arts across the country, with an emphasis on the plastic arts,
drama, photography, theater and communications media. His aim:
to provide a far greater variety of models of religious education and
to advance the status of modern religious women.
As the founder of Yad Tamar Congregation in Rehavia, Jerusalem,
Prof. Sperber served as the community’s spiritual leader and Rabbi
for over twenty-five years. Among his greatest sources of pride: his
large family, including his American-born educator wife and their
ten children, ranging from a twenty-six year-old daughter to a nine-
year old adopted Ethiopian-born daughter.
A leader in religious-secular reconciliation, Prof. Sperber was a
member of the Tzameret Committee, formed to resolve Jerusalem’s
Bar-Ilan Road controversy. He was a co-founder of Beit Morasha of
Jerusalem. Prof. Sperber is Chairman of the Committee on National
Religious Education at the Ministry of Education. He is a member
of the Hebrew Language Academy and the Council for Archeology
at the Ministry of Education.

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PA R T I

T here is a well-known jibe attributed to the yeshiva world


and directed against those involved in the academic study
of Talmud. “We (“Yeshivahleit”) wish to know what Abbaye and
Rava said, but they (the academics) want to know what they wore.”
Now it is clear that anyone who devotes himself exclusively to
the externals of talmudic literature, such as historical background,
philology and linguistic characteristics of Babylonian Aramaic, and
so forth, will be missing the main point of learning. But, on the other
hand, those who believe they are involved in real learning, but lack
certain systematic disciplines, often miss the point of the sugya, and
may even err when attempting to derive from it a psak halakha.
In terms of the jibe with which we opened, at times it is indeed
important to know also what Abbaye and Rava wore.
Let us demonstrate this with two examples. Who constitutes for us a
greater paradigm, or role model, of classical talmudic learning than
Rashi? In one of his responsa we read as follows:
Once I saw the master (Rashi) praying without a girdle. I
was puzzled and said: How is it that he is praying without

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DANIEL SPERBER

his loins girdled? Surely they said in Tractate Berakhot


(24b), that one may not pray without a belt, and the reason
is that one’s heart should not behold one’s privy parts.
And he (Rashi) replied: It seems to me that in those times
the sages did not wear trousers, but merely long cloaks
that went down close to their ankles1 and all their clothes
were closed front and back, left and right. Therefore they
stated that one may not pray without a girdle, for they had
nothing to separate the heart from the privy parts other than
the girdle. (And indeed it seems likely that they had no
trousers, for in Tractate Shabbat…[120a] we have learned
in a Mishna what one saves from a fire, and eighteen
items of clothing that a person may save on Shabbat are
there enumerated…but trousers
are not mentioned.)2 But we do
wear trousers3, and even without
a belt there is a clear separation
between the heart and the privy
parts, and therefore we may pray
without a belt.4

W e see then that Rashi’s views as


to talmudic costume led him to
rule halakhically on a certain issue, or at
any rate to justify an existing custom.5
He probably visualized them wearing
something akin to the contemporary
garb [fig. 1].6 Actually his explanation is
based on a conjecture, and borne out only
tentatively by oblique talmudic evidence.
When we look into the issue more closely,
we find that in point of fact it is somewhat Figure 1
more complex and problematic. For while
indeed it is true that the Bavli does apparently not list trousers among
its eighteen garments and reads ÔȘ¯ÙÒ È˘Â, (which Rashi explains
as ˘Ï¢ÈÈÙ, probably meaning faissole, straps around the legs),7 the
Yerushalmi (Shabbat, 15d) reads: ÔȘȯ·Ò È˘8 ÔȘ¯·‡ È˘Â. ÔȘ¯·‡
probably corresponds with the Latin braccae (in Greek: βράκαι,
“trousers, pantaloons”),9 an article of attire well-attested in Roman

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LEGITIMACY AND NECESSITY: SCIENTIFIC DISCIPLINES AND THE LEARNING OF TALMUD

times [figs. 2,
3]. It is true that
they were less
commonly worn
by Romans than
by the Northern
nations, such
as the Celts—
indeed the word
is of Celtic
o r i g i n 10— o r
Asians, such
as the Persians.
However, in the
second century
C.E., the period
Figure 2 of the Mishna
and Baraita, they appear to have been worn in
Rome as well (though later forbidden by the
emperor Honorius in 397 C.E.).11
Now the attestation of the word in the
Yerushalmi, and indeed elsewhere in Palestinian
rabbinic literature,12 makes it clear that trousers
were known of, and worn, in talmudic Palestine.
Furthermore, ÌÈÈÒÎÓ, meaning trousers, are
also found in rabbinic literature (e.g., M.
Kelim 27:2, etc.). This strongly calls into doubt
Rashi’s supposition, and makes his reasoning
suspect. That Rashi was ruling in accordance
with the Bavli and not the Yerushalmi—with
which he may not have been acquainted13—is
a specious argument. For he based his ruling
on an assumption as to real-life practices in
talmudic times, and the assumption has been
shown to be questionable. One may, of course,
Figure 3 choose to separate the various elements in this
responsum, accepting the sevarah (speculative
reasoning), that “the heart may not see the privy parts”, but rejecting
the supposition that rabbis did not wear trousers and the proof for
this from the Bavli. And in that case, the talmudic directives in B.

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DANIEL SPERBER

Berakhot 24b would be addressed to people wearing loose cloaks,


but not to people wearing trousers. Be this as it may, what remains
significant is that Rashi (or his disciples) apparently regarded the
issue of whether the Tannaim wore trousers or not as meaningful to
his argument, and hence consequential to his own style of prayer,
and possibly to ours, too, for that matter. Thus, at times, knowledge
of everyday life in talmudic times can play a significant role in
the understanding of a talmudic text, and even in the subsequent
process of halakhic ruling.14
Here I should like to give a second example also related to clothing.
We begin with that which we find in M. Nidda 8:1:
A woman who has seen a bloodstain on her body adjacent to her
genital area is (ritually) unclean; (if the bloodstain is) not adjacent
to her genital area, she is clean…(If) she has seen it on her garment
(˜ÂÏÁ): below the belt (¯Â‚Á) she is unclean, above the belt she is
clean. (If) she has seen it on the sleeve of her garment: if the sleeve
reaches below the line of her genital area, she is unclean; if it does
not, she is clean. (If) she had been taking it off and putting it on
during the night, anywhere she finds a bloodstain on it renders her
unclean, since it returns (¯ÊÂÁ ‡Â‰˘ ÈÙÓ); and the same applies to a
pallium (ÌÂÈÏÙ· ÔÎÂ).
R. Ovadia Bertinoro explained: “ ‘since it returns (¯ÊÂÁ ‡Â‰˘ ÈÙÓ)’
– sometimes the top of the garment twists down to the genital area;
‘a pallion’ (his text is ÔÂÈÏÙ) – a mitpahat (˙ÁÙËÓ) with which she
covers herself…” Tiferet Yisrael, n.8, also explained: “a mitpahat
with which she covered her head, specifically without tying it, so
that it was possible that it would twist towards her genital area.”
They both followed in the footsteps of the author of the Arukh,
who defined the word “ÌÂÈÏÙ” in this Mishna as “a mitpahat with
which she covers herself.” Kohut has already pointed out (Aruch
Completum, 6:345-346) there that in this he followed the author of
Perush ha-Gaonim le-Seder Taharot, who explains that the word
ÔÂÈÏÈÙ found in M. Kelim 29:115 and M. Nidda 8:116 is derived from
Greek and means mitpahat (see the editor’s note there, p. 114, n.
8, who determines that the author was referring to πιλίον, pileum,
a felt hat).
The Mishna commentary Tosefot Yom Tov questioned and discussed
in-depth the Bertinoro’s explanation to Nidda 8:1: “…it also
troubles me that he wrote mitpahat here, and in general a mitpahat

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LEGITIMACY AND NECESSITY: SCIENTIFIC DISCIPLINES AND THE LEARNING OF TALMUD

is not a garment so large that she would cover herself in it, as the
‘three mitpahot’ of M. Kelim 24:14 prove, and (we see) from what
I wrote there at the beginning of ch. 29, etc.” The Mishna Aharona
also questioned Bertinoro’s approach: “The Rabbi explained it as
a mitpahat with which she covers herself, and, according to this,
the word is superfluous in the Mishna, since there is no difference
then between a haluk [the garment mentioned previously in the
same Mishna] and a mitpahat.” Later he brought the Rambam’s
commentary on this Mishna, who wrote (according to the Kafah
translation) that ÔÂÈÏÙ is · ˙¯‚ÂÁ˘ ¯Âʇ‰ (a belt she fastens). Thus,
the Mishna Aharona wrote that “according to the Rambam, who
explains it as a belt, it is possible to say that it is the apron (¯ÈÒ)
women wear, with which she does not even cover herself, since
it commonly twists around, as we teach in the tenth chapter of
Shabbat, etc.”
Rashi (Nidda, 57b) wrote: “ ‘ÒÂÈÏÂÙ· ÔÎÂ’ – a ma’aforet (˙¯ÂÙÚÓ)
with which she covers herself, an iril in ‘the foreign tongue’ (Old
French).” Since this iril is apparently a headscarf, 17 we may infer
that Rashi too follows the Gaon’s approach. On the basis of Rashi’s
explanation, the Tur (Yore De’a, 190) writes: “and so is the law, if
it [the bloodstain] is found on the ma’aforet with which she covers
her head, etc.” See Beit Yosef there (s.v. ‰˙ȉ ˘¢ÓÂ) who in a forced
explanation of the Rashba, wrote that this is the case “specifically
when she covers her hair with a robe (˜ÂÏÁ) or cloak (ÔÂÈÏÙ‡), just as
a loose covering without tying it well, but if she ties it well on her
head, and when she wakes up she also finds it well-tied, it is obvious
that she does not need to worry about it [i.e., the bloodstain], since
we see that it [the garment] has not turned around and has not
twisted to and fro” (quoted in the Tosefot Yom Tov). On the basis of
Rashi’s explanation, the Maggid Mishne explains the Rambam in
Issurei Biah, 9:11: “ ‘…and also her belt (¯Âʇ), anywhere blood it
found on it—she is unclean’ Mishna: the Mishna reads ‘ÔÂÈÏÙ· ÔÎÂ’,
and there are those who explain it as a ma’aforet with which she
covers her head” (see Tosefot Yom Tov there).
The Gaon’s explanation is difficult (as is Maimonides’), since it
already says explicitly in M. Nidda 8:1 that: “(If) she has seen it on
her garment: …above the belt she is clean,” and there is no place
further above the belt than the scarf around her head! To say that
the garment is so long that part of it reaches her genital area and
that she is therefore unclean (like the rule for a bloodstain found

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DANIEL SPERBER

on a sleeve of such length), would be a forced reading. Rather, we


must conclude that all of the garment could reach that area, and, as
the Mishna says, “it returns” from place to place. Clearly, then, the
commentator conflated the pilium-ÔÂÈÏÈÙ-πιλίον of M. Kelim with
the pallium-ÔÂÈÏÙ-παλλίον (‘Mantel’) of Nidda, as Epstein wrote.18
In the Aruch Completum (ibid), we read that R. Binyamin Mustafiya
came to the same conclusion.19
Indeed, one of the features of the pallium was its versatility: it could
be worn in many ways and styles, at times in direct contact with the
skin, without an undergarment beneath it, though more often as an
outer garment. In the words of Rich:20
A garment of this nature might be adjusted upon a person
in various ways according as the fancy of the wearer
or the state of the atmosphere suggested; and, as each
arrangement presented a different model in the set and
character of its folds, the Greeks [and the same was true for
the Romans] made use of a distinct term to characterize the
particular manner in which it was put on, or the appearance
it presented when worn.
Later, he summarized the major styles:
1. επίβληµα. Meaning literally that which is thrown on or
over…when the center of one of its sides was merely put
on to the back of the neck and fastened round the throat, or
on one shoulder, by a brooch (fibula), so that all the four
corners hung downwards…
2. αναβολή. Meaning…that which is thrown up…i.e. when
the part which hangs down on the right side…was taken
up, and cast over the left shoulder…When thus worn, the
brooch was not used; and the blanket, instead of being
placed on the back, at the middle of its width, was drawn
longer over the right side to allow sufficient length for
casting on to the opposite shoulder…
3. περίβληµα. Meaning…that which is thrown round one…
so adjusted as completely to envelope the wearer all round
from head to foot… Women also wore the pallium…as
well as men, and adjusted it upon their persons with
the same varieties that have already been described, as
evinced by numerous works of art both in sculpture and in
painting.

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LEGITIMACY AND NECESSITY: SCIENTIFIC DISCIPLINES AND THE LEARNING OF TALMUD

He also brings proof from a painting in Pompeii (from the mishnaic


period) in which two women wear pallia (the plural form), each
in a different manner.21 We learn from here that: The pallium22 is
a garment which is wrapped around the majority of the body; it is
sometimes worn on its own directly over the skin; and while it can
be worn in different styles, it is never fastened tightly, moving easily
back and forth over the body. Therefore, since most of it can come
into contact with most parts of the body, it is a perfect example of a
garment that “returns” from place to place, and so the Mishna rules
that “anywhere she finds a bloodstain on it renders her unclean”.23
We see, then, that the confusion between pallium and pilium, which
may look identical in the Hebrew transcription, brought about an
unlikely interpretation of the Mishna, which found its way into the
law books, causing some consternation among poskim. However,
familiarity with the nature of talmudic clothing—in this case—
clarified the whole issue.
This will be even more evident in the next example from hilkhot
Shabbat. The Shulhan Arukh, Orah Hayyim 317:1, rules as
follows:
He who ties a permanent knot (‡ÓÈȘ Ï˘ ¯˘˜) [on Shabbat],
and one which is the work of an expert (ÔÓ‡ ‰˘ÚÓ), such as
the cameleers’ knot or sailors’ knot…and all such similar
knots [is guilty]. But if the knot he ties is not that of an
expert, though it is permanent, he is exempt.
R. Yisrael Meir ha-Cohen of Radin, in his classic Mishna Berura
and Be’ur Halakha, has lengthy descriptive analyses of the various
views of the Rishonim as to what constitutes a “permanent knot”,
and the differing degrees of prohibition pertaining to these knots.
One may summarize his findings as follows:
1. According to the Rif, Rambam and R.Yosef Karo:
a) A permanent knot is one that is never untied (i.e., that in
the first place was tied for an unlimited period of time and
that can remain tied forever), and is also that of an expert.
Tying such a knot on Shabbat entails bringing a purification
(˙‡ËÁ) offering.
b) A permanent knot that is not that of an expert, or an expert
knot that is not permanent—tying it is forbidden, but
entails no purification offering.

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DANIEL SPERBER

c) A knot that is not that of an expert and is not permanent


may be tied.
2. Rashi, Rosh, and other Rishonim, on the other hand, rule
that the main consideration is not the nature of the knot, and
whether it is that of an expert or not, but:
a) If it is intended to last permanently, it is forbidden, and
one who ties it is obligated to bring a purification offering,
even if is not that of an expert.
b) If it is intended to be a temporary knot, it is forbidden, but
one does not bring a purification offering for tying it.
c) A knot that one unties on the same day, even if it is an
expert knot, is permitted.
3. Some opinions have it that any knot that will be untied within a
week has the same halakhic status as a knot that will be untied
in the same day.

N ow the source of all these different views is to be found in the


first mishnayot of Shabbat ch.15 and the corresponding sugyot
in B. Shabbat 111bff. There we read as follows:
Mishna 1. These are the knots for which they [that tie them on
Shabbat] are culpable: cameleers’ knots, and sailors’ knots…
R. Meir says: One is not accounted culpable if one ties a knot
which can be untied with one hand.
Mishna 2. There are some knots for which one is not accounted
culpable as one is for a cameleers’ knot or a sailors’ knot.
[Thus] a woman may tie up the [corners of a] slit in her shift,
or the strings of a hair net or belt…A bracelet may be tied to
a belt but not to a rope; but R. Yehuda permits this. R. Yehuda
laid down a general rule: no one is accounted culpable for any
knot which is not permanent.
We see then, that Mishna 1, when wishing to explain what is
a permanent knot, gives the example of a sailor’s knot (and
a cameleer’s knot). The Talmud (B. Shabbat 111b) then further
elaborates this point as follows: “What is a sailor’s knot? If you say
it is the knot they tie onto the isterida, that is not a permanent knot.
No, it is the knot… of the isterida itself.” This brief passage is the
crux of the whole halakhic issue, for in it the setama de-Gemara24

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LEGITIMACY AND NECESSITY: SCIENTIFIC DISCIPLINES AND THE LEARNING OF TALMUD

(the anonymous portion of the sugya) explains to us what constitutes


a “permanent knot”. And the understanding of this passage
clearly depends upon the understanding of the word isterida, if
that is the correct reading. I have discussed this word elsewhere
in considerable detail.25 There I demonstrated—convincingly, I
believe—on the basis of Gaonic traditions, that the correct reading
is actually istedira, and that this is the (otherwise unattested) Greek
nautical term for “parral” (*ιστοδειρη, “collar of a mast”). The
parral is a rope twisted into a ring; its ends have been permanently
married into one another to thus forming a ring or collar that holds
together the ship’s yardarm to the mast. Through it is looped the
halyard, with a slipknot, and this halyard is used to raise and lower
the yardarm and sail into place on the mast. [fig. 4.]26 Without any
doubt the parral has been permanently knotted (married), and it
is equally clear that this has been done by an expert (mariner).
Thus, even without going any further into the rest of the sugya,

Figure 4

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DANIEL SPERBER

we see that the correct lexicographic explanation of the technical


term appears to corroborate the main normative halakhic opinion
of the Rif, Rambam, and R.Yosef Karo, namely that a permanent
knot is one that is knotted by an expert and is intended never to be
untied. To arrive at this conclusion, which is surely significant for
the understanding of the sugya, as well as for the establishment of
the normative pesak, we had to determine the correct reading of
the text (on the basis of manuscripts and early testimonia), interpret
(and emend slightly) an obscure Gaonic gloss, rediscover (or
reconstruct) a very rare Greek technical term belonging to Roman
nautical jargon, and corroborate our findings with concrete evidence
from contemporary reliefs and mosaics.27
Every step in this process of research was directly aimed at the true
comprehension of the talmudic sugya and the resultant halakhic
applications. In principle, the use of manuscript sources was no
different from that of learning a gloss (hagaha) of the Bah or the
Vilna Gaon; and reference to Byzantine-Greek dialectic dictionaries
was no different from the use of the Arukh. Furthermore, only
after extensive search and examination of Roman archaeological
findings did we uncover that corroborative evidence without which
the laconic (and the slightly corrupt) Gaonic gloss could not be
intelligently comprehended. And this gloss contains the major
source for understanding the sugya. Thus a full understanding of
the whole talmudic complex necessitates the use of, and, of course,
competence in a number of so-called secular discipline—linguistics,
classical archaeology, and so forth. This is really a rather obvious
point, but apparently it needs to be stressed and re-stressed in our
day and age, when the gap between “learning” and “studying” is
growing ever broader.28

T here exists a school of scholarship that is primarily involved


in unraveling the different strata of the talmudic sugya on the
basis of stylistic, linguistic, and logical criteria. 29 There is, I submit,
nothing radically new in this approach. Already the Geonim, such as
Rav Sherira in his famous epistle, informed us that certain passages
in the Talmud are Saboraic, that is, post-Amoraic.30 And since the
end of the Amoraic period is also “sof hora’a”31, the end of a period
of pesak32, it is surely essential (or at least valuable) to know which
elements of the talmudic text postdate that point of “sof hora’a”.

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Hence, the search after Saboraic passages, and their characterization


by language, style, and logical argument, is surely an integral part
of ‡˙ÎÏȉ„ ‡·Èχ ‡˙˙ÚÓ˘ ȘÂÒ‡Ï, understanding the talmudic text in
order to derive from it the practical halakha.
Indeed both the Geonim and the Rishonim were constantly aware of
the stratification of the talmudic text. Thus, for example, the Ritva
to Bava Metzia 3a: “All this formulation…is not an integral part of
the Gemara, but the wording of Rav Yehudai Gaon, and the scribes
inserted in into the Gemara proper, and there are many such cases
in our tractate….” And so also in his commentary to Ketubot 34b he
writes: “And our great teacher [i.e., the Ramban] explained that that
section is not the wording of the Gemara, but the interpretation of
Rav Yehudai Gaon, of blessed memory, and one should not deduce
from here with regards to another text….”33
Furthermore, attempts have been made to distinguish between the
words of the Amoraim and the explanatory glosses in anonymous
sections of the Gemara (“setama de-Gemara”),34 and this led to
a whole flourishing area of talmudic research in recent times.35
However, this distinction was already clearly made be the Rishonim,
and most especially by Ba’alei ha-Tosafot.36 Thus, for example,
the Tosafot in Shevuot 25a (s.v. Samuel) explain: “One may thus
say that this is not a part of Samuel’s dicta, but that the Gemara
explains thus according to his view, and there are many examples
of this in the Talmud.” And the Tosafot to Yevamot 8a (s.v. ki)
even goes so far as to say: the Talmud erred in [understanding] the
statement of Rava(!).37 Apparently, the Tosafot found it legitimate
to suggest that the later anonymous stratum of the Gemara contains
misunderstandings of earlier Amoraic statements. For in their eyes
these late anonymous glosses were less reliable and less canonic.
Thus, the Ritva to Bava Metzia 40a writes: “And even though
the above sugya explains thus …it is a sugya de talmuda be-alma
[i.e., this is not an authoritative passage], and does not constitute a
contradiction (kushia) to Rav Hisda.”
The great and saintly sage and scholar, R. Yehiel Yaakov Weinberg
(who followed in the footsteps of his mentor R. David Zvi
Hoffmann) was himself involved in this kind of methodological
analysis.38 He surely believed that while doing so he was fully
engaged in “limud Torah.” Let us cite a passage from one of his
classic studies.39 First he brings numerous examples of Rishonim

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DANIEL SPERBER

who were obviously aware of the distinctions we have mentioned,


and who solved difficult problems by positing that certain passages
were, for example, “an explanation that was written in the margin
and [subsequently] copied into the books.”40 He then continues:
From these examples, and many others like it, we see that
the Rishonim recognized these additions through their sharp
understanding, and this recognition sufficed them, and [hence]
they did not attempt to solve contradictions with forced brilliance.
However, our teachers, the greatest of the Aharonim, who
established for us the [mainstream] path of understanding sugyot
and whose books constitute the introduction to all who enter into
the world of talmudic learning, abstained from going along this
path of unraveling the sugya into its component parts, presumably
out of fear lest the authority of the holy Talmud be lessened and
undermined, and in this way the basis upon which the halacha
is founded will collapse. The truth is, however, that this method
of study in no way touches upon the principles of our received
halakha. Such views are determinations of those Torah giants [i.e.,
Aharonim] and are holy to us, and God forbid we move away from
their words even in the smallest degree. Nonetheless, there is in this
method of research special importance for the clarification of sugyot
and the understanding of their issues. How many wondrously
difficult problems, which can only be solved in the most forced
fashion or tiresomely sagacious argumentation, simply vanish in
the blink of an eye in the light of such examinations, and passages,
so obscure that scholars despaired of finding solutions for them,
suddenly became crystal clear of themselves.
He himself admits, then, that the latter-day giants of Torah
scholarship (with the exemption of a few lone examples, the Vilna
Gaon, the Neziv, R. D.Z. Hoffman, etc.) abandoned this line of
research. He nonetheless strongly affirms its legitimacy. He does,
however, briefly mention in passing the possible dangers connected
with this methodology, namely that the authority of the talmudic
text might be called into doubt, and the basis of practical halakha be
undermined. He easily dismisses these considerations, probably for
two (unstated) reasons:
1. He trusted that all involved in deep talmudic study had
the greatest of respect for the basic integrity of the text,
and any approach of the type described above would be

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borne out by traditions from the Geonim and Rishonim, by


incontrovertible stylistic evidence, and by closely reasoned
and wholly convincing deductive analysis. 41
2. Perhaps it was his view that such discoveries do not affect
practical halakha, as already established by the classical
poskim.42
However, had he been confronted with a situation where a whole
new basis for talmudic study was being promoted, one dealing
almost exclusively with the separation of strata, and where the lion’s
share of explanations depended upon the supposition that members
of the latter strata had, at best, only a partial understanding of the
statements of the predecessors from the earlier strata, he would
have doubtless been filled with consternation, and, we suspect, been
more cautious in his own practice of methodology, and certainly
extremely critical of this whole “new school”. Is it then merely a
question of degree? Could he have set limits and parameters for the
use of such a critical methodology? If it is essentially legitimate,
how can it be limited in its application? Or is it perhaps a question
of the ability of the researcher, his control of the sources, and the
stringency of his methodology?
For example, how would have R. Weinberger viewed the works of
Professor David Weiss-Halivni, one of the most erudite, brilliant,
and scholastically effective practitioners of this new school?43 Of
course, we cannot answer for him. But if we take the conclusions
of R. Irwin Haut as acceptable to the open-minded traditionalists,
Halivni’s work has much to be credited for, and is undoubtedly of
value to traditional talmudic scholarship.44 There are questions of
emphasis and degree; Haut feels that Halivni’s penchant for “literary
solutions”, as opposed to legal ones, is a little too weighted.45 But
he does not contest the legitimacy of his approach, or for that
matter, the competence of Halivni’s praxis. Perhaps he feels that
this “new approach” should be used as a kind of last resort, when all
traditional legalistic deductive reasoning has proved unsatisfactory.
But ultimately this too is a subjective criterion, and probably no two
people would agree on how to judge that point.
One possible criticism of any methodology that posits the lack, or
partial understanding, of the later talmudic authorities of the dicta of
their predecessors is that such a view diminishes our respect for those
ancient giants. It also posits that we understand the material better

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DANIEL SPERBER

than did the later Amoraim. Can our latter-day understanding be


superior to those of the earlier masters? They are angels compared to
us mere mortals, and if they were mortals, then compared with them
we are on the level of base animals (cf. B. Shabbat 112b). How dare
we measure ourselves against them, even to the extent of correcting
them?46 To this we may respond in a number of ways. Either like
Rashi to Shevu’ot 3b: “A mistaken student wrote this in the margin,
and the copyists [subsequently] put it into the Gemara,” that is, this
is not really of genuine talmudic pedigree and authority; 47 or like
Rashi to Sanhedrin 10b; “It is the custom of the tanna (the amoraic
memorizers of tannaitic texts) to err as to the reading and miss out
a word by lapse of memory; but he does not switch words…”. That
is to say, textual errors were unconsciously introduced into the text
already in amoraic times by professional memorizers, who were
not necessarily scholars. Indeed, they were likened to baskets laden
with stacks of manuscripts. They could quote by heart, and knew
not what they spake (see B. Megilla 28b, B. Sota 22a).48
Actually, the Geonim had already addressed themselves to the
question of how blatant errors infiltrated the talmudic text. In a well-
known Gaonic responsum in Teshuvot Geonim Kadmonim (78),49
dealing with mistaken biblical readings in the Talmud, we read:
…But you must examine carefully in every case when
you feel uncertainty [as to the credibility of the text]
what is its source (¯˜ÈÚ „ˆÈÎ), whether a scribal error, or
the superficiality of a second-rate student (È„ÈÓÏ˙„ ‡Ùˢ
ȇˆÈ·¯˙)50 who was not well versed… after the manner of
many mistakes found among those superficial second-rate
students, and certainly among those rural memorizer who
were not familiar with the biblical text. And since they
erred in the first place…[they compounded their error].51
Or perhaps we may respond that though we be midgets compared to
those erstwhile giants, once we have succeeded in clambering onto
their shoulders, we see further than they, and our horizon is broader
than theirs. (This, as is well-known, is the usual justification for
the standard ruling: ȇ¯˙·Î ‡˙Îω, the halakhah follows the view
of the latter authority.) Without pursuing this well–trodden area of
discussion any further,52 I believe we can state, without too much
hesitation, that the criticisms we raised can be properly rebutted,

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leaving the methodology, where practiced with wisdom, respect,


and restraint, methodologically legitimate.
We now turn to the question of the use of manuscripts and the
discovery of alternative readings. Can we emend rabbinic texts on
the basis of such testimonia, and what may be the long-term effect
of such emendation upon the normative halakhah? The position of
the Hazon Ish is fairly well known on this issue:53
I received your [material]. I found in them nothing new.
[As to] the photographs of the manuscripts, it is not my
way to pay attention to them. For we do not know who
wrote them,54 and we may well assert that the scribe wrote
them according to his wont. And it is well known that one
does not rely too much on new discoveries,55 but only on
the works of the poskim that were handed down without
interruption from generation to generation.56
Elsewhere he writes:57
You suggested an explanation of the sugya…emending the
Gemara on the basis of Ms. Munich [cod. hebr. 95]. Surely
[you cannot claim] that all the leading scholars throughout
the generations from the time of the Rishonim untill now
did not get to the true meaning [of the passage], because a
scribe erred and added something of his own in his Gemara
text and misled all the sages. I will have nothing of it…For
the Rishonim were prepared to lay down their lives on
behalf of the manuscripts that they had in their hands and
divine providence protected them so that the Torah be not
forgotten from Israel. And when they started to print the
Talmud, the leading scholars of the day toiled endlessly to
produce a correct and accurate text.58 Albeit, at times, one
can benefit from a manuscript to weed out errors that have
crept in over the ages. But an opinion that was licensed by
all the rabbis, without any doubt ever being raised, heaven
forbid us destroying it.59
My good friend and very learned colleague Professor Sid Leiman
dealt with the Hazon Ish’s view on this matter in an authoritative
article in Tradition60, and I need not repeat his conclusions.
However, I think it is fair to say that the position of the Hazon
Ish is hardly mainstream. For throughout the generations the
greatest Torah authorities made judicious use of variant readings

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DANIEL SPERBER

and traditions, emended texts and rules accordingly. From the


earliest Geonim, through the early Rishonim, such as Rashi and
Rabbeinu Tam, to the later Rishonim, like the Maharshal, and the
early Aharonim, such as the Bah and finally to the giants of more
recent times, the Vilna Gaon , the Neziv, and so forth, all these and
very numerous others, made a constant use of this methodology. To
return to Ms. Munich 95, when R. Raphael Nathan Rabbbinovicz
published his monumental Dikdukei Soferim in the second half
of the nineteenth century,61 in which he systematically gave the
alternative readings of the Munich manuscript,62 he received the
highest approbations from the greatest authorities of his time: R.
Yosef Shaul Nathansohn, R. Ya’akov Ettlinger, R. Yitzhak Elhanan
Spektor of Kovno, the Ktav Sofer, R. Shlomo Kluger, and so forth.
And the Gaddol of Minsk, R. Yeruham Leib Perlman, wrote of it:63
“Come let us give thanks to the author of Dikdukei Sofrim, who
copied out [talmudic] readings from the ancient manuscripts, and
oft-times enlightened us with them.” Indeed, his volumes were
used by R. Raphael Shapiro of Vienna, author of Torat Raphael, R.
Yeruham Perla in his monumental commentary to Sa’adya Gaon’s
Sefer ha-Mitsvot, R. Meir Simha ha-Cohen of Dvinsk, author of
Or Sameah, R. Menahem Mendel Kasher, in his Torah Sheleima,
and similar works. On further thought, the words of the Hazon Ish
become even less readily understandable,64 especially in view of the
fact that he himself made numerous textual emendations when he
felt it was necessary.65 It certainly does not represent the main trend
in traditional Torah scholarship. Perhaps it represents an attempt on
his part to offset a tendency to overestimate the importance of new
discoveries, manuscripts, Rishonim, and so forth, rather than part of
a systematic philosophy of halakhah.
Paradoxically enough, one of the Hazon Ish’s very daring
emendations in the Talmud is actually born out by the Munich
manuscript he so denigrated. Thus in B. Berakhot 35b we read: “The
earlier generations used to bring the fruits in [to their houses] over
roofs and through courtyards…in order not to have to separate their
tithes.” The Hazon Ish writes: “The word ‘courtyards’ is clearly an
error, for the main way of entry is through the courtyards” (Ma’asrot,
5:15). He bolsters his emendation with suitable references— B.
Gittin 81a, B. Bava Metzia 88a, B. Menahot 67b, and Rambam
Ma’asrot 4:1—in all of which this word is missing. And so, indeed
it is in the Munich manuscript, as cited by Rabinovicz in his

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Dikdukei Soferim to Berakhot (p.193). Furthermore, Rabinovicz,


in long note (n.4, ad loc.), discussed this matter, proving that since
the talmudic statement in Berakhot “is that of Rabbi Yohanan, and
he holds that a courtyard obligates tithes, and everyone agrees that
a courtyard obligates tithes [at least] by Rabbinic ruling,” the word
should indeed be deleted. He also notes that the Tzelah already
pointed this out. (And see the continuation of his lengthy note, with
additional comments of the Av Beit Din of Lvov). The Hazon Ish,
then, could have gained an additional verification of his emendation
from the manuscript, and added argumentation from Rabinovicz’s
comments.
Clearly, then we should not place too much credence on the printed
page, especially of the late editions, and certainly one should not
regard the printed edition as in any way canonic. And in order to
underscore our warning not overly to rely on the printed versions of
ancient texts, and the dangers inherent in doing so, we shall bring
just one example as a sort of cautionary tale.
Professsor Saul Lieberman, in his ha-Yerushalmi ki-Phshuto,66
discusses the passage in Y. Pesahim 2:2 (29a), which according to
the editio princeps reads a follows:
øÂ‰Ó ÁÒÙ‰ ¯Á‡Ï ¨¯˘Ú ‰˘Ï˘· ˆÓÁ ¯È˜Ù‰
.¯˙ÂÓ ¯Ó‡ ˘È˜Ï Ô· ÔÂÚÓ˘ ߯ Ư҇ ÔÁÂÈ ß¯
He renounced ownership of his leaven on the thirteenth
[of the month of Nissan]—what is [its status] after the
Passover? R. Yohanan forbade it. R. Simon ben Lakish
said: “It is permitted.”
R. Baer Ratner, in his Ahavat Tsiyon ve-Yerushalayim (ad. loc.),67
cites six testimonia from Rishonim (Rashba, Ittur, Ramban,
Rabbeinu Yeruham, Ritva and Recanati) that the reading is „Șى,
“he deposited”, and that the Yerushalmi is discussing a deposit of
leaven before Pesah, presumably in the hands of a gentile (see Ritva
and Recanati). According to this the Yerushalmi is asking what is
the status of his leaven after the Pesah and Rabbi Yohanan and
Rabbi Simeon ben Lakish differ on this point. The reading in the
Recanati is even more interesting, for it runs as follows:68
øÂ‰Ó ÁÒÙ‰ ¯Á‡Ï ¨È‚ „È· ˆÓÁ „Șى
He deposited his leaven in the hands of a gentile, what is its
status after the Passover?

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DANIEL SPERBER

Lieberman demonstrates conclusively that all these six testimonia


have no validity whatsoever, “as is usually the case with him (i.e.,
Ratner).”69 For anyone with a scent (Áȯ) of Torah will understand
that this reading is impossible.”70 He goes on to prove this from the
continuation of the Yeushalmi itself, and shows that every one of
the passages in the Rishonim must be emended in accord with the
true Yerushalmi text. Thus the passage in the Rashba is found in
another parallel place, and there the reading is ¯È˜Ù‰. The Ramban
has in the editio princeps: ¯È˜Ù‰. Rabbeinu Yeruham was quoting
from the Rosh, which reads: ¯È˜Ù‰. Internal evidence is brought to
correct the reading in the Ritva and the Recanati. In the latter case,
the context makes it completely clear what is the correct reading.
Thus the whole passage reads:
¯ÊÁ˘ ÈÙ ÏÚ Û‡ ¯˜Ù‰ ȉ ˙ÂÎÊÏ ¯ÂÊÁÏ ˙Ó ÏÚ ¯È˜ÙÓ‰˘ ˙„ÓÏ ‡‰
Æ· ‰ÎÊÂ
øÂ‰Ó ÁÒÙ ¯Á‡Ï ¨È‚ „È· ˆÈÓÁ ®°© „Șى ∫‰Ú˘ ÏÎ ˜¯Ù„ ‡Â‰‰Â
¯È˜Ù‰ ̇ Ï·‡ ÆÏÏÎ ¯È˜ÙÈ ‡Ï ‡Ó˘Ï ˘ÈÈÁ„ ÂÈȉ ¨¯ÂÒ‡ ¯Ó‡ ÔÁÂÈ ß¯
Æ˙È˘È¯Ù„Î È¯˘ ȇ„·
Thus you have learned that he who renounced ownership,
this is a true renunciation of ownership, even if afterwards
he regains ownership. And that which [we have learned]
in [the Yerushalmi] chapter Kol Shaßa: „Șى(!) his leaven
in the hands of a gentile, what is [its status] after the
Passover? R. Yohanan says it is forbidden—This is because
he suspects that he might not really have renounced
ownership. But if he did, it is certainly permitted, as we
have explained.
Here, then, two errors made their way into the text: ¯È˜Ù‰ turned
into „Șى, making nonsense of the strain of halakhic argumentation.
And ¯˘Ú ‰˘ÂÏ˘· must have been abbreviated in later editions to
‚¢È·, which was later interpreted as standing for È‚ „È·. Thus “the
thirteenth [of Nissan]” turned into “in the hand of a gentile”!71
Obviously the leaven had to be deposited into the hands of a gentile,
since had it been deposited with a Jew, in no way could it be
construed as permissible after the Passover. Therefore, if it was
deposited –„Șى—it had to be in the hands of a non-Jew. So there is
a sort of internal logic in this perverse corruption.
Now even though it is true “that anyone with a scent of Torah”
should have understood that this reading is patently absurd,

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nonetheless the garbled version of the Yerushalmi was used by R.


Hayyim Ha-Cohen Rappaport in one of his responsa72 to amend
the Yerushalmi, and this corrupt passage formed the basis of his
practical ruling. Some time later, Rappaport’s ruling was cited by
R. Nahum Moshe Yerushalimsky:73 “Even though what he writes in
his responsum is against the views of many gedolim, nevertheless,
he does have a great pillar upon which to support himself, especially
when great loss (‰·Â¯Ó „ÒÙ‰) is involved.”74
Let us give yet another example of the importance of a critical
approach to the printed text, and, in addition, the importance of
bibliographic knowledge, again taken from the field of halakha. In
Shulhan Arukh, Orah Hayyim 685:7 we read:
There are those who say that Parshat Zachor (Deut. 26:
17-19) and Parshat Para Aduma (Numbers 19) have to be
read mi-de-Oraita [by a command of biblical authority].
Consequently, villagers who do not have a minyan [quorum
of ten] must come to a place where there is a minyan on
those Sabbaths [when those portions are read] so as to hear
these readings which are de-Oraita [in a minyan].
The author of the Shulhan Arukh , R. Yosef Karo, expresses the
same opinion, that Parshat Para is also mi-de-Oraita, in a different
halakhic context in Orah Hayyim 146:2, where he writes: “and all
the aforesaid has no relevance to Parshat Zakhor and Parshat Para,
which have to be read in a quorum of ten mi-de-Oraita” However,
as R. Yehezkel da Silva (1659-1698) in his Peri Hadash (to Orah
Hayyim 146:2) asks: “whence do we know that Parshat Para [is
mi-de-Oraita]?” Similarly, the Shela argues that Parshat Para is not
mi-de-Oraita. And so the Bah (see Orah Hayyim 685).
R. Yosef Karo (Beit Yosef, Orah Hayyim 685), however, cited his
source for the opinion that Parashat Para is also mi-de-Oraita,
namely: “The Tosafot in the beginning of chapter ‡¯Â˜ ‰È‰
(Megillah, 17b) wrote that these are the chapters which have to
be read mi-de-Oraita, such as Parshat Zachor and Parshat Para
Aduma.” Furthermore, R. Israel Isserlein, in his Terumat ha-Deshen
(108), wrote that the Tosafot Ketzarot75 to Berakhot chapter two
explains that Parshat Zachor and Parshat Para must be read min
ha-Torah (i.e., mi-de-Oraita). However, in the Tosafot as we have
them in our editions, both in Berakhot and in Megillah there is
no mention made of Parshat Para. In Megillah 17b, s.v. Ï·, and

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DANIEL SPERBER

Berakhot 13a, s.v. ÔÂ˘Ï‰, it is implied that only Parshat Zakhor is


mandatory mi-de-Oraita. So too in Haggahot Asheri to Berakhot
chapter six (seven) (cited in Terumat ha-Deshen, ibid., and thence
in Magen Avraham to Orah Hayyim 685) we are told that Parshat
Zakhor must be read in [a quorum of] ten mi-de-Oraita. Likewise,
the Tosafot Sens (ibid.) knew of no reading of biblical authority
other than Parshat Zakhor.
On the basis of the above evidence, the Vilna Gaon, in his note to
the Shulhan Arukh (Orah Hayyim 685), wrote:
“and Parshat Para” (citation from the Shulhan Arukh)—
In our Tosafot there is no mention [of Para] neither in
Berakhot nor in Megilla 17b. Similarly, in [Haggahot]
Asheri, chapter 6, there is no mention of anything other
than Zakhor. And [R. Karo] chanced upon a corrupt
version [of the Tosafot texts].
The truth of the matter is, however, somewhat different. The
Maharshal,76 wrote as follows:
ÔΠ‡Â‰ ˙ÂÚË ∫·¢ ˜ÁÓ ‰Ó„‡ ‰¯Ù≠ßÂΠ˘„˜‰ ÔÂ˘Ï· ‰¢„· ßÒÂ˙
ƉÏÈ‚Ó„ ßÒÂ˙·
Tosafot s.v. ˘„˜‰ ÔÂ˘Ï·, etc. [The words] Para Aduma
[are] to be deleted, and the following marginal note added:
This is an error, and so too in Tosafot to Megilla.

Now the Maharshal’s emendations were all incorporated into the


text of the third Lublin edition of the Talmud, printed between the
years 1617 and 1634 (see note 58), and as a result from that edition
onward in all subsequent printings of the Talmud the words Parshat
Para Aduma are, indeed, absent. Understandably, then, neither the
Peri Hadash nor the Vilna Gaon, who had access to the emended
talmudic text, could find any mention of Parshat Para in either of
the Tosafot. However, in earlier editions of the Talmud, prior to
those emendations based on the Maharshal’s corrections, the words
Parshat Para Aduma do appear, as already noted by the remarkable
scholar, the Hida. In his Petah Einayyim to B. Berakhot (14b,
Livorno, 1790) , he writes as follows:
“And chapters which have to be read mi-de-Oraita, such
as Parshat Zakhor…” So [is the reading in] our versions,
and it is on the basis of the emendation of the Maharshal in

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[his] Hokhmat Shlomo. But the old (i.e., original) reading


is: Parshat Zakhor and Parshat Para, and it was cited by
the Beit Yosef and the Bah in Orah Hayyim 685.
Furthermore, such a reading is found in Tosafot Rabbi Judah (b.
Isaac) Sir Leon to Berakhot, ibid. (ed. R. Nissan Sachs [Jerusalem,
1949], p.161, especially no.37, pp.161-2). Incidentally, this version
was noted by the Hida in his Mahazik Berakha to Orah Hayyim 146:
1, as it was, too, in Tosafot Rabbeinu Peretz to Berakhot ibid., (ed.
M. Hershler [Jerusalem, 1984]), p.240; and also in Tosafot Rosh,
ibid. (apud Berakha Meshuleshet [Warsaw, 1863; reprint Jerusalem
1968]). And this same view is found in the Rashba to Berakhot, ad
loc.,77 and in the Ritva to Megillah ibid. (ed. I.M. Stern [Jerusalem,
1976], col. 120; see editor’s note 44. Likewise, see Tosafot-Rosh to
Sotah 33b (ed. J. Halevy Lipshitz [Jerusalem, 1968], p. 66; and see
editor’s note 15.)78
Indeed, a careful examination of our Tosafot in Berakhot will reveal
traces of the original reading. For the Tosafot reads as follows:
“…aside from the chapters which one has to read mi-de-Oraita,
such as Parshat Parah.” But why write “chapters” in the plural if
there is only one example of such a case? Clearly, then, the original
reading had at least two examples of chapters that one must read
mi-de-Oraita. (This point was already noted by Sachs, Tosafot
Rabbi Judah Sir Leon [p.162].) Thus it was not the Beit Yosef who
chanced upon a faulty version of the Tosafot, as the Vilna Gaon
thought, but, quite to the contrary, it was the Gaon who studied in
an emended version of the Talmud and its supercommentaries, one
which did not preserve the original readings.79
Of course, there is a view that printed books are more valuable
than manuscripts. We may refer to the words of R. Moshe Hagiz,
who writes that “…we do not have [reliable] scribes in our days,
and the majority of the scribes are spoiled and their quill has
been corrupted.”80 Consequently, he says, he does not quote from
manuscripts, only from printed books (with the exception of the
Zohar).81
However, he is speaking of manuscripts written during his own
day, after the advent of printing. But ancient manuscripts have a
somewhat different status; for they were assiduously checked and
corrected before they were allowed into a private house.82

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DANIEL SPERBER

That is not to say that we should always give credence to readings


in manuscripts. At times, even when a group of manuscripts all
agree as to a reading, it may still be incorrect, as Lieberman very
brilliantly demonstrated in his review of L. Finkelstein’s edition of
Sifre to Deuteronomy.83 An intelligent reading of the text, based on
a sound knowledge of rabbinic reasoning and a broad acquaintance
with the literature, is always a prime prerequisite for critical textual
analysis in this area.

I f real learning aims at getting to the true meaning of the talmudic


passage, it must concern itself with the accuracy of the text and
the meaning of the words. This is self-evident, and probably would
go uncontested by the yeshivah world. But these requirements
necessitate the competence in philological and lexicographical
disciplines, rarely to be found in the standard yeshivah “bohur”
(student). Perhaps the advantages to be gained from such long and
hard-won knowledge is so marginal that the investment in them is
not considered worthwhile. But is the process of their mastery to be
viewed as bitul Torah? If it is intended to deepen one’s understanding
of Torah, surely it comes within the category of “amala shel Torah”,
the toil and labor of Torah!
In addition, I would suggest that an understanding of the historical
and real-life contexts within which the Tanna’im and Amora’im
made their statements is necessary for a full understanding of
the text. This might well be contested by our theoretical polemic
“yeshivah bochur”. He might argue that the legal opinions of the
Sages are meta-historical: they are not dependent upon historical
periods and changes, but upon some kind of absolute logic and
unchanging ethical values. Indeed this is the position of those of
its dogmatist school.84 Some have even gone so far as to liken
law to mathematics, whose laws are immutable and correct in any
context. But this is an extreme position held by few. When different
principles come into play it is not because the rules have changed
but because the situation or context has changed.85 We shall not enter
into this complex arena of philosophical argumentation. Suffice it to
say that even the positivist-dogmatist would agree that in order to
understand why a certain “absolute” legal principle (sevarah) is
used in a specific text, one has fully to understand the context or

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situation in which it was formulated or to which it refers.86 Again


this seems obvious. But let us approach it somewhat differently:
When reading a contemporary responsum on a technological issue,
such as the use of a refrigerator on Shabbat, or a dishwasher on
Yom Tov, if the author of the responsum has, as is usually the case,
not given any technical data, such as the company that produced
the machine and its model number, the principles upon which it
functions, the date of when the question was raised, and so forth, we
may find ourselves needing to reconstruct it. For such information is
often crucial to the subsequent relevance of the responsum. One has
to know whether the light switches on and off as the door opens and
closes, what degree of heat is reached, whether thermostatic controls
are used, and so forth.87 Or again, many a responsum dealing with
the issue of smoking (on Yom Tov, e.g.) from before a certain date
is based on the supposition that smoking is healthful!88 Whereas
since the dangers involved in smoking have been scientifically
determined and widely publicized, the tone of the responsum has
radically changed.89 Thus, a knowledge of the historical context
of the responsum may be essential to determine its validity and
relevance for present day pesak.
The situation is not essentially different when dealing with ancient
halakhic sources. A fuller understanding of all aspects of the text is
not only legitimate but also essential. Hence, we should approach
any given talmudic passage with all newfound disciplines available
to us. At the same time we must be humble enough to realize that
ultimately our conclusions will never move out of the realm of
conjecture. Nonetheless, we may have understood the sugyah a little
more, a little deeper, and a little better. We may have solved some
additional problems that irked the earlier authorities. And we will
have advanced in our limud Torah.90

31
PA R T I I

I n this section, we will offer five examples that typify the


phenomenon of error in interpretation. The first example is a
matter of exegesis of the Talmud and has no practical ramification;
the second is a question of liturgy, where the “correct” wording of a
prayer is at stake; the third and fourth are actual halakhic issues; and
the fifth example deals with the application of one of the principles
of halakhic ruling. All of these examples illustrate what kind of
mistakes can be made when the scientific methods available today
are not employed. These examples, which are somewhat random
in nature and few in number, nonetheless demonstrate that we are
obliged to adopt these systematic methods in order to avoid such
pitfalls.

33
DANIEL SPERBER

A) As stated, the first example has no practical ramifications;


rather, it concerns a problematic explanation of a section of the
Yerushalmi, one that stems from a failure to check manuscript
editions of the text.
In the standard printed editions of Y. Pesahim 5:1 (31a), there is a
difficult passage:
ß‚ ¨ÔÈ„ ˙È· ·‡ Æ„ÓÏ ˙·‡Ó ˙ÂÏÈÙ˙ ∫¯Ó‡ ÈÂÏ Ô· Ú˘Â‰È ß¯
R. Yehoshua ben Levi said: The prayers were learned from
the Forefathers. The Head (“Father”) of the Court, etc.
The first section, „ÓÏ ˙·‡Ó ˙ÂÏÈÙ˙, is familiar to us from the
parallel passages in B. Berakhot 26b, and Y. Berakhot 4:1, but the
following words, ÔÈ„ ˙È· ·‡, have no apparent meaning here, and the
commentator Korban Ha’Eda concludes simply that these words
are to be omitted: ®ÔÈÒ¯‚ ‡ÏΩ) ‚¢Ï ÔÈ„ ˙È· ·‡. However, even when
seeking to erase an “incorrect” text, an attempt should be made to
understand how it was formed. In contrast to Korban ha-Eda, the
commentator Penei Moshe gave the following explanation:
ԢȄ ˙¢È· ·¢‡. This (acronym) represents what is said there
(in the Talmud): Abraham established the shaharit prayer,
as it is written: “Abraham rose up in the morning, etc.”
(Gen. 22:3), and (the sages) learned the morning prayer
from Abraham, and this is (the letters) ·¢‡. [He apparently
means the ‡ of ̉¯·‡ (Abraham) and the · of ¯˜Â·
(morning).] And his son Yitshak established the afternoon
prayer, which (the sages) learned from that which is
written about him, “to converse in the field” (Gen. 24:23),
and this “conversation” is a form of prayer, etc., and this
is (the letters) ˙¢È· (which stand for) Ô˜˙ ˜ÁˆÈ Â· (his son
Yitshak established), which refers to that which is written
about him in the afternoon, which is the minha prayer. (The
letters) Ԣȯ stand for Ya’akov, who established the ma’ariv
prayer, which they learned from the verse, “he struck upon
the place” (Gen. 28:11), and this “striking” is a form of
prayer, for it is written about ‰ȯ (song of supplication)
and ‰ÏÈÙ˙, “do not strike me” (Jer. 20:16); and the Talmud
abbreviated this to a hint and a sign. Another possibility
is to follow the text as it is in the books: ÔÈ„ ˙È· ·‡ [with

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ÔÈ„ instead of Ԣȯ], which signifies that just as the head of


the tribunal is called the father of the court since everyone
learns from him, so too we learn the prayers from the
Forefathers.
How forced are the words of this great commentator,1 perhaps the
greatest of all the commentators on the Yerushalmi? One senses his
lengthy deliberations, as he first offers a correction-corruption of
the text and then provides an alternative approach no less farfetched
than the first.
Furthermore, attention should be paid to the fact that there is a dot
in the text between the words “„ÓÏ” and “·‡”, which indicates
that they are two separate topics. This dot is found already in the
first printing of the Yerushalmi (Venice, 1523, 31d), which is, as is
well known, the progenitor of (almost) all the other editions of the
Yerushalmi [fig. 5].
Scholars have already demonstrated that this first printing is based
on the Leiden Manuscript (cod. Scal. 3), which is the most complete
manuscript of the Yerushalmi known, and was penned in 1289.2 The
person who prepared the manuscript for printing was an apostate
Jew named Jacob ben Hayyim ibn Adoniyahu3, about whom it
was said: ·Â˜‰ ¯Â¯ˆ· ‰¯Â¯ˆ Â˙Ó˘ ‡‰˙ (“May his soul be bound
up in the perforated bundle” instead of the customary ÌÈÈÁ‰ ¯Â¯ˆ,
“bundle of life”). He erased words and corrected them according

Figure 5

35
DANIEL SPERBER

to his understanding, and


the text as “proofread” by
him became the basis of the
first printing and those that
followed.
Of course, the author of
Penei Moshe, R. Moshe
Margolies, could not have
consulted the Leiden
Manuscript, which was not
available to him, and so he
could not have discovered
what is written in this
section of the manuscript.
However, today, when
we check the manuscript
(or its facsimile edition),
we see that there are
additional words that the
aforementioned proofreader
erased, and that the original
text was:
Â˙‡ „ȯ‰ ‡Ï ÎÙÚ‡ „Ú ˘¯‚
˙È· ·‡ Â˙‡ ÂÈÓ ‡Ï‡ Â˙Ï„‚Ó
ÔÈ„ [fig. 6]
The first word, “˘¯‚”, means
that the following material
is included in a different
section of the Talmud as
well.4 An early scribe,
not wanting to recopy the
whole section again here,
skipped over it and noted a
gap between „ÓÏ ˙·‡ and
Â˙Ï„‚Ó Â˙‡ „ȯ‰ ‡Ï ÎÙÚ‡
ÔÈ„ ˙È· ·‡ Â˙‡ ÂÈÓ ‡Ï‡ with
this word.
This section in its entirety
Figure 6

is found in Y. Berakhot

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LEGITIMACY AND NECESSITY: SCIENTIFIC DISCIPLINES AND THE LEARNING OF TALMUD

4:1, and in the Leiden


Manuscript it spans more
than three pages (from the
bottom of page 29 to the
end of page 32) [fig. 7]. The
early scribe skipped over
all of this, marking the gap
with the aforementioned
˘¯‚, while the proofreader
of the Venice edition erased
this marker and left us with
a difficult passage, leaving
only a lone telltale dot in
its place. That proofreader
also apparently made a line
under the words ¯Ó‡ ÈÂÏ Ô· in
Berakhot to remind himself
that the whole passage is
found elsewhere as well.
Here we see that two strange,
difficult explanations given
by one of the greatest
commentators on the
Yerushalmi stemmed from
not checking the source in
its manuscript form.5

B) The second example is a


question of liturgy that was
explained well by R. Ya’acov
Hayyim Sofer (grandson
of R. Hayyim Palache)
in his book, Ma’amar
Ya’akov (Jerusalem, 1992,
p.120 f.). He was asked
if the line in the Shabbat
mussaf prayer, È·‰Â‡‰ Ì‚Â
¯Á· ‰Ï„‚ ‰È¯·„ should be
Figure 7

changed to what seems to be

37
DANIEL SPERBER

more grammatically correct and appears in most prayer books: Ì‚Â


¯Á· ‰Ï„‚ ‰È¯·„ ÌÈ·‰Â‡‰.
Over the course of twenty pages, demonstrating an amazing grasp
of the sources, he proves that the original text is È·‰Â‡‰ Ì‚Â and
rules that it should not be changed. He also demonstrates that the
“amended” version was created by the well-known grammarian,
R. Shlomo Zalman Hanau, who printed a siddur titled Sha’arei
Tefilla (Jessnitz, 1725) in which he “corrected” the texts that were
“faulty” according to those rules of Hebrew grammar he considered
correct. The sages of that generation “leapt up and were enraged
that R. Hanau did violence to the siddur and garbled and perverted
innumerable texts in the prayer book of the Ashkenazim” (Ma’amar
Ya’akov, p.124).
One of the harshest critics of R. Hanau was R. Ya’akov Emden6,
who devoted a special treatise, Luah Eres, to the refutation of
the former’s “corrections” and the reestablishment of the proper
text (Altona, 1869; a new edition by D. Yitshaki, Toronto, 2001).
Interestingly, in R. Emden’s own siddur, Amudei Shamayim
(Altona, 1745-1748) the text is “ÌÈ·‰Â‡‰ ̂”7, and we would
seemingly be justified in assuming that, in this instance, he agreed
with R. Hanau’s correction. [fig. 8.]
However, this assumption would be false, since R. Emden writes in
Luah Eres (1.117.45):
“ÌÈÓ· ‰ÂÏω”(Ps. 150:4) R.Z.H. added the letter Yod here,
and this is a great mistake. I also made this mistake, since
my siddur [Amudei Shamayim] was printed from my copy
of Beit Tefilah [the siddur of R. Hanau], and I did not make
the effort to fix all of the mistakes in it first, even though
I proofread them before I gave them to the worker, as
I apologized in the introduction to the second section of
Luah Eres.
(See Ma’amar Ya’akov, p.126.) In addition, R. Sofer (p.127)
quotes R. Emden’s comments on the printing of his siddur, Amudei
Shamayim, in his book of responsa, Sheilat Ya’avets (Lemberg,
1884) 2.17.9b:
But first I will make a general point about my book,
Amudei Shamayim (and the building of the tower8).
They were produced with great urgency, without any
prior preparation, organization or transcription, and were

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LEGITIMACY AND NECESSITY: SCIENTIFIC DISCIPLINES AND THE LEARNING OF TALMUD

Figure 8

not subjected to clarifying analysis and scrutiny…and so


this labor came upon me suddenly, and the Lord’s hand
was firmly upon me, bringing me to shoulder the burden
of the kingdom of heaven, and perform the labor which
many need. The worker stood over me, pressing, for his

39
DANIEL SPERBER

daily bread depended on it. Therefore, I could not delay


and postpone the mitzva, and was not concerned that some
things were not fully explained…
Thus, we can see that R. Emden’s siddur was reprinted from R.
Hanau’s siddur, without a systematic correction of the text. Only a
close reading of all of R. Emden’s writings on the topic allows us to
understand the nature of his siddur and that it does not contradict the
conclusion that the proper text is “‰È¯·„ È·‰Â‡‰”.
All of this teaches us that we are obliged to check as carefully as
possible not only the manuscripts of early sources nor even just the
first printed editions, but also the relatively late editions of works
compiled in the age of printing, and to learn how they were formed
and the nature of their reliability in order to avoid the pitfalls in our
path.

C) The third example is of far greater consequence, since it relates


directly to the decision of a vital, practical matter of Halakha. The
lenient halakhic ruling of R. Avraham Yitshak HaCohen Kook
permitting the sale of farmland in Israel to gentiles for the entire
Sabbatical year in order to circumvent Sabbatical prohibitions is
well known. This leniency is based on three principles:
1) The Sabbatical year is today only a rabbinical law
(Ô·¯„Ó).
2) There is a lack of clarity about which year is the Sabbatical
year.
3) Purchase of land in Israel by a gentile exempts it from the
Sabbatical laws. (Even though this last point is a matter of
great controversy, one may follow the lenient approach in
accordance with the famous rule ‡ÏÂ˜Ï Ô·¯„ ˜ÙÒ – when
there is uncertainty pertaining to Rabbinic rulings, we may
rule leniently.)
All of this was spelled out by R. Kook himself in great detail in his
important book, Shabbat Ha’Arets (Jerusalem, 1910).9
One criticism of his position was that the sale of land in Israel to
a gentile is prohibited by the Torah, since the rabbis explain the
phrase ÌÁ˙ ‡Ï (Deut. 7:2) to mean “do not grant them (idolaters)
a landholding” (see B. Avoda Zara 5a), and thus constitutes a more

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LEGITIMACY AND NECESSITY: SCIENTIFIC DISCIPLINES AND THE LEARNING OF TALMUD

severe violation of biblical halakha than the transgression of the


rabbinical laws of the Sabbatical year.10
In response to this criticism, R. Kook penned an additional aspect
in his argument for leniency: in a time of urgency (˜Á„‰ ˙Ú˘), it is
possible to rely upon the opinion of the Bah, who disagrees with
R. Yosef Karo, and rules that Ishmaelites are not included in the
category of idolaters to whom the Torah prohibits giving gifts or
selling land in the verse “ÌÁ˙ ‡Ï”. R. Ovadiah Yosef repeated this
argument,11 and ruled that it is permitted “to sell land in the Land
of Israel to an Ishmaelite who is not an idolater.” His reasoning is
as follows:
It would seem that this matter is the subject of controversy
between two great authorities, since in Beit Yosef, Hoshen
Mishpat, 249, he wrote: “and what our teacher [Tur] wrote,
that it is forbidden to give a gift to an idolater, does not
exempt the Ishmaelite (who is not an idolater), but rather
the partial proselyte (·˘Â˙ ¯‚), who has accepted the
obligation of the Noahide Laws, and this is the one for
whom we are commanded to provide sustenance.” On
this the Bach wrote: “His words [those of the Beit Yosef]
are difficult, for if so, why did our teacher write “to an
idolater” and thus leave room for the misinterpretation
that Ishmaelites are exempt?…According to this, the
Ishmaelites, who live within a religious framework and
are not idolaters, and believe in His Divinity, May He Be
Blessed, certainly it is permitted to give them gifts [and, by
the same logic, to sell them land], following the opinion of
the Bach…etc.
R. Yosef bolstered his claim by adding the following point: “and
this is also the logical implication of the words of Tosafot, Yevamot
23a… who wrote that ‘establishing a covenant with all idolatrous
nations is forbidden as in “ÌÁ˙ ‡Ï”’(and they repeated this at the
end of their comments).”
Indeed, this is the sense of the Bah’s words as they are found in
the (standard) texts which were available to R. Kook and R. Yosef.
However, it has already been noted that this section of the Bah was
tampered with by censors12, and in the new edition of Tur,13, this
section was printed in its full, original form (p.422):14

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DANIEL SPERBER

It is forbidden to give a gift to an idolater. Beit Yosef


wrote that “this does not exempt Ishmaelites, but rather
exempts the partial proselyte, he who has accepted the
Seven Noahide Laws, and this is the one for whom we
are commanded to provide sustenance [but all the other
gentiles have the same status].” His words are difficult:
why would our teacher write “idolater” and thus leave
room for the misinterpretation that Ishmaelites are exempt?
[And it is my humble opinion that since the authorities
do not tolerate the mention of the word “gentile” (È‚)
in an uncomplimentary way, they removed the word
“gentile” and wrote instead “idolaters”. But the real text
of Our Teacher’s books is: “It is forbidden to give a gift to
a gentile15, etc.” as it says in the end of the first chapter of
Avoda Zara.
Here we see clearly that according to Bah it is forbidden to give a gift
to any gentile whatsoever, and the same applies to the sale of land in
Israel to a gentile is also forbidden, and only permitted to the partial
proselyte who has accepted the obligation of the Seven Noahide
Laws. As a result, we can only conclude that R. Kook’s additional
argument is invalid, and his leniency is in fact partially based on the
censor’s corruption of the text, hardly a reliable source!
The same holds true for the additional proof brought by R. Yosef,
since it was also based on the text which appears in regular editions,
whereas inspection of that passage in Tosafot (Yevamot 23a) as it is
found in the first printing of the Babylonian Talmud (Venice, 1520)
reveals the following: (fig. 9)
that verse—is written about the Seven Nations, and even
though the verse “ÌÁ˙ ‡Ï” is also written, there in the first
chapter of Avoda Zara we established that it applies to all
nations…and even though “ÌÁ˙ ‡Ï” refers to all nations.
Clearly, in their original form Tosafot explain that the prohibition
of “ÌÁ˙ ‡Ï” applies to all nations, including Ishmaelites, and only
censorship brought about the addition of the acronym ‡¢ÚÚ, which
stand for ÌÈÏÈχ ˙„Â·Ú È„·ÂÚ, (idol worshipers), creating the phrase
“all idolatrous nations”. In fact, this acronym was not inserted at
the close of Tosafot’s comments, and the phrase remains “since ‘‡Ï
ÌÁ˙’ applies to all nations”.16
Therefore, these two proofs are null and void, since they have been

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Figure 9

43
DANIEL SPERBER

shown to be based on the correction-corruption by the censor, and


they do not support the claim that land in Israel may be sold to an
Ishmaelite; indeed, the original texts of these sources prove just
the opposite17, that the prohibition of “ÌÁ˙ ‡Ï” applies to all non-
Jewish nations.

D) The fourth example relates to a very serious issue: the


relationship between the text of the Tanakh found in the Talmud and
the commonly used Masoretic text, in particular when the Talmudic
version is the source text for an important halakha.18 The question
is: which version should we adopt in writing our Torah scrolls, and
which will render Torah scrolls unfit for use. The most famous
sugya on this topic is the one which deals with the question “̇ ˘È
?˙¯ÂÒÓÏ Ì‡ ˘È ‡ ‡¯˜ÓÏ”, “Does the traditional vocalization of the
Scripture take precedence in interpretation, or does the traditional
Scriptural text without vowels take precedence?,” a sugya which
appears in several places in the Talmud. We will cite part of one
sugya, the one found in B. Sanhedrin 4a:
For we learned: Beit Shammai say, “All (offerings) whose
blood was sprinkled on the external altar in one portion
[i.e., instead of the normative two sprinklings], atone…
and the purification offering (˙‡ËÁ) [requires at least] two
portions. And Beit Hillel say, “Even when he has given
a purification-offering in one portion he has atoned.” And
Rav Huna said, “What is the reasoning of Beit Shammai?
[They follow the way the Torah is read aloud:] ˙Â¯˜
˙Â¯˜ ˙Â¯˜, here we have six [sprinklings], four for (the
optimal performance of) the mitzvah, two as a minimum
requirement. And Beit Hillel [following the way the Torah
is written] say, “‘˙¯˜ ˙¯˜ ˙Â¯˜’, here we have four
sprinklings, two for the mitzvah and one as a minimum.
However, the Masoretic text reads, “˙¯˜”(Lev. 4:25), “˙¯˜”(ibid,
30), “˙¯˜”(ibid, 34), without the letter  (vav) in all three places.
Later in that sugya (4b) we read:
Does everyone agree that the vocalization takes
precedence? Do we not learn: ˙ÂÙËËÏ ¨˙ÙËËÏ ¨˙ÙËËÏ—
Here we have four. (These are) the words of Rabbi

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Yishmael. Rabbi Akiva says: the proof is superfluous; ËË


is two in Katfi, and ËÙ is two in Africi.
From here the rabbis derived the halakha that the four passages
contained in tefillin should be placed in four separate compartments
in the tefillah shel rosh.19 Tosafot wrote there:
This is problematic, since in none of these instances is
there a vav between the pey and the tav. Some explain that
since the word is written ˙ÙËÂËÏÂ, we take the vav from the
beginning and insert it at the end…This is difficult…and
Rabbeinu Tam explains that the vav in “˙ÙËÂËÏ” is the
source, and that our text is as follows: “,˙ÙËËÏ ¨˙ÙËËÏ
˙ÙËÂËÏÂ, here we have four.”
Tosafot points out that in the Masoretic text (found in our
Humashim) the letter vav is missing at the end between the pey
and tav, “˙ÙËÂËÏ”(Ex. 13:15), “˙ÙËËÏ”(Deut. 6:8), “˙ÙËÂËÏ” (ibid,
11:18). Therefore, four passages cannot be learned from here, only
three can, and this is what precipitates the various explanations,
which are palpably forced.
Various Rishonim labored to resolve the contradiction between the
Masoretic text and the Talmudic quotations of the Tanakh.20 Rashba,
in a responsa attributed to Ramban (232), was asked:
Question: Is a Torah scroll rendered unfit by missing or
extra vowels that contradict the Masorah? For I say that the
Masoretic texts are not better than the Talmudic ones…I do
not wonder about the Aggadic interpretations…rather…in
the matter of ˙¯ÂÒÓÏ Ì‡ ˘È ‡ ‡¯˜ÓÏ Ì‡ ˘È…I thought to
fix them, but I am overawed by this matter…let me know
your opinion about this.
Response: It is my opinion that, yes, indeed, no changes
should be made to the Torah scrolls according to the
Masorah or midrashei aggadah…Nevertheless, whatever
comes as part of an halakhic ruling in the Talmud, such as
˙Â¯˜ ˙¯˜ and ˙ÎÒ· and ˙ÙËÂË…in such cases we certainly
do correct the minority, and so it is in every instance, even
missing or extra vowels should be corrected according
to the majority, for the Scripture says so in the verse:
“follow the majority” (Ex. 23:2), and we teach in Sofrim
[6:4, pp.169-170, in the Higger edition, New York, 1937]:

45
DANIEL SPERBER

“Three Torah scrolls were kept in the Temple court…and


they would sustain two and nullify one.”21
This means that in every place where the Talmudic quotation of a
verse contradicts the Masora, the text found in majority of books, i.e.
the Masora, should be adopted. Indeed, in his famous work, Kesset
ha-Sofer, R. Shlomo Ganzfried ruled this way (Sec.2, Prologue, Ch.
25, p.25): “we find that in some places our teachers, masters of the
Talmud, disagree with our teachers, masters of the Masora, and we
follow the masters of the Masora.” Later in that work (p. 103a, in
Lishkat ha-Sofer, his commentary on Kesset ha-Sofer) he wrote:
In the book Minhat Shai he wrote, and I quote: “I have
already prefaced to you that in every place that the Talmud
or Midrash contradict the Masora with regard to missing
and extra vowels, we follow the Masora…(this applies)
not only to Aggadic interpretations…rather even when
Halakha is derived from it… and what the Minhat Shai
said makes the most sense, that the masters of the Masora
disagreed with the masters of the Talmud and the Halakha
is like the masters of the Masora…etc.
As stated, Kesset ha-Sofer based his comments on those of Minhat
Shai22 (R. Yedidya Shlomo Norzi, died in 1616), on Lev. 4:34:
And as I have already prefaced, wherever the Talmud or
Midrash contradict the Masora with regard to missing or
extra vowels, we follow the Masora, and (this applies)
not only to Aggadic interpretations…rather even when
Halakha is derived from it…and in the She’elot u-Teshuvot
ha-Ramban (=Rashba), Ï¢Ê, No. 232, he was asked about
this... and Ramban answered him that in every instance,
even regarding missing and extra vowels, we fix the
minority of Torah scrolls according to the majority, for the
Scripture says so in the verse “follow the majority (Ex. 23:
2).”23
Furthermore, the book Kesset ha-Sofer received an endorsement
from Hatam Sofer [=R. Moshe Sofer], which was printed at the
front of the book:
…so I instruct all of my students who are obligated to
heed my voice, that from the day when the aforementioned
Kesset ha-Sofer is printed, from then on they should not
give permission or grant license to any scribe unless he

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LEGITIMACY AND NECESSITY: SCIENTIFIC DISCIPLINES AND THE LEARNING OF TALMUD

is knowledgeable and well-versed in this book, just like


the butchers (shohatim) who receive certification…and a
scribe who does not know this book will be disqualified
from his craft, and will review his lessons as the rabbi
requires. Thus I instruct my sons and students, May God
Bless them, etc.
Thenceforth, all the scribes in Hatam Sofer’s sphere of influence
had to pen their scrolls according to the instructions of Kesset ha-
Sofer, who determines, among other things, that when the Talmudic
quotations of the Tanakh contradict the Masoretic text, the latter is
to be followed.
We have seen that R. Ganzfried’s ruling is based on the comments
of Minhat Shai, who in turn relied on the responsum of Rashba
(attributed to Ramban). However, the text of Rashba’s responsum
is missing a few lines, contains errors as well as garbled phrases.24
The original text can be reconstructed from the responsum of
Radbaz, vol. 4, no.101 (=1172), who wrote:
…rather, the essence of the matter is what I will tell you,
that in every case of an extra or missing vowel from which
the Talmud derives halakha, such as “˙¯˜ ˙Â¯˜” and
such as “˙ÎÂÒ ˙ÂÎÂÒ” …in these and other such cases,
the Torah scrolls should be fixed they contradict the
Talmud. But when there is an extra or missing vowel
from which Halakha is not derived, rather only Midrashic
interpretation is made, we shall not alter any scroll
according to interpretation or according to the Masora,
rather we follow the majority, for this is no better than
all major and minor laws about which we say, “follow the
majority”, and so we should correct scrolls according to
the majority of scrolls in a matter which does not pertain
to Halakha…since Rashba was already asked about this
matter, and he, may his memory be a blessing, answered
that, “Yes, indeed, no changes should be made to the scrolls
according to the Masora or midrashei aggada”…and at the
end he wrote: “Nevertheless, whatever comes as part of a
halakhic ruling in the Talmud …in this case we certainly
do make the correction. And in every place, even missing
or extra vowels, we correct according to the majority, for

47
DANIEL SPERBER

the Scripture says so in the verse “follow the majority”,


and we taught in Masechet Sofrim…etc.25
This is also explicit in the words of R. Shimon ben Tsemah Duran
(died 1444) in She’elot u-Teshuvot ha-Tashbetz, sec.3, no. 160:
But Rashba has already written in a responsum that we do
not rely on Midrashim to fix Torah scrolls, and leave them
as they are, except where halakha is derived, such as ˙ÎÒ
˙ÂÎÂÒ ˙ÎÒ and ˙Â¯˜ ˙¯˜ ˙¯˜ and the like.26
From here we can see that Rashba’s original words are the exact
opposite of what Minhat Shai, followed by Kesset ha-Sofer,
understood from the defective text of his responsum.
The halakhic ruling that emerges from Rashi’s original words is the
one reached by Hida in his book, Le-David Emet (Jerusalem, 1988),
p.18:27
(When there is) any extra or missing letter that leads to
a halakhic ruling according to the Talmud, such as ˙¯˜
˙ÂÎÂÒ ˙ÎÂÒ ˙Â¯˜, the Torah scrolls should be corrected
(according to the Talmud).28
Indeed, we saw above that the garbled version of Rashba’s opinion
has determined the halakhic practice in Ashkenaz ever since the
publication of Kesset ha-Sofer due to the endorsement-decree of
Hatam Sofer. However, it should be noted that Kesset ha-Sofer was
first published in 1835 as a 35-page volume [fig. 10]. To this volume
alone Hatam Sofer gave his endorsement before his death in 1839.
An expanded version of Kesset ha-Sofer was printed in Hungary in
1871, over thirty years after Hatam Sofer’s death, and then repeated
many times [fig. 11]. Naturally, Hatam Sofer’s endorsement was
also included in the expanded version, which is 138 pages long,
since it includes extensive additions and corrections29 in an added
section called Lishkat ha-Sofer [fig. 12]. Only in this section do we
find the rule that “we follow the masters of the Masora”. However,
Hatam Sofer’s endorsement of the book never related to this section,
and who knows if he would have granted it at all after reading this
section.

E) As a final example, we will cite the words of R. Yitshak Nissim


at the end of his essay “Hagahot ha-Rema Al ha-Shulhan Arukh”
(in: Sinai, Sefer Yovel, Jerusalem, 1958, p.39):

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LEGITIMACY AND NECESSITY: SCIENTIFIC DISCIPLINES AND THE LEARNING OF TALMUD

Figure 10

At the end of our words we will mention another matter


about which the later authorities disagreed since they
did not have a precise knowledge of the date of Rema’s
death. Kenesset ha-Gedola30 wrote in the name of Masset

49
DANIEL SPERBER

Figure 11

Binyamin [by R. Benjamin Aharon son of R. Avraham


Selnick, Cracow, 1633] (Ch. 27) that Rema was a later
authority than Maran [=R. Josef Karo]. The author of

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LEGITIMACY AND NECESSITY: SCIENTIFIC DISCIPLINES AND THE LEARNING OF TALMUD

Figure 12

Masset Binyamin, who was Rema’s student, certainly


knew that Rema had died before Maran, and he wrote
this because the glosses were written after Shulhan
Arukh was, whereas the Sepharadi authorities wrote that
only one who outlives another is considered the later
authority.31 R. Avraham Adadi already noted in his book,
Vayikra Avraham32, that all of this work out if we say that

51
DANIEL SPERBER

Rema died in 1580, as is written in the text of the divorce


contract (get). However, according to what the Hida wrote,
that Rema died in 1573, in is impossible to consider Rema
the later authority, since the tsaddik’s departure came three
years before Maran’s. Once we know that Rema died
three years before Maran, Maran is certainly more to be
considered the later authority.
The explanation of his words is as follows:33 In the Even ha-Ezer
section of Shulhan Arukh, 154, in the first edition that included
Rema’s glosses (Cracow, 1580), in the section dealing with the
divorce contract (seder ha-get), p.53a-b, the following is printed
[fig. 13]:

Figure 13

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LEGITIMACY AND NECESSITY: SCIENTIFIC DISCIPLINES AND THE LEARNING OF TALMUD

Gloss: And the text of the divorce contract used in these


countries, in particular in this city, has already been spelled
out at the beginning of this chapter: “On the third day of
the week, the third day of the month of Sivan, in the year
five thousand three hundred
Here the column ends, and below it is printed the word “thirty”. The
next column reads:
hundred and forty since the Creation of the world,
according to the count we keep here in Casimir, known as
Casimere…
From this language in Rema’s gloss, some claimed that he was
still alive in “the year five thousand three hundred forty since the
Creation of the world”, meaning 5340/1580, since he wrote this date
in his text of the divorce contract. However, anyone who examines
this text closely will see that the original version was “five thousand
three hundred [and] thirty”, and the word thirty, which serves as
the page-marker34 below the column, should also be at the head of
the next column. However, the printers changed the date to “five
thousand, three hundred and forty”, leaving out the page-marking
word “thirty”, and adding the word “hundred” a second time. They
did this, of course, in order to “update” the text, since this edition
was published in the year “five thousand three hundred and forty”!
R. Nissim has already demonstrated in his essay (p.33) that Rema
died on the eighteenth of Iyyar, Lag B’Omer 1572/5332, three
years before R. Yosef Karo.35 As a result, we conclude that R. Karo
is, in this sense, the later authority whose halakhic decisions take
precedence.
As stated above, these five examples should serve as a warning
for us that we need to check the halakhic sources printed in our
books as carefully as possible when we come to study, and all the
more so when we come to decide the halakha. For these books not
infrequently have been distorted or corrupted, missing lines and
even entire sections, sometimes according to the one who prepared
the manuscript for printing, sometimes at the bidding of the censor,
and sometimes due to the carelessness of the scribe or printer. All
those who are committed to Halakha should make every effort to
examine the original source and establish the proper text.36

53
ENDNOTES
Part I
1 As, for example, in the Beit Alfa mosaic (6th century) where Abraham,
in the binding of Isaac is clothed in such a manner.
2 Elfenbein (infra, n. 4) printed this section in brackets, perhaps indicating
that it is not a part of Rashi’s statement, but a later gloss by a disciple. I
here assume that this is part of Rashi’s statement. The whole responsum
is found in Or Zarua I, sec. 128, 45a, and at the end it is written: ·˙ÂΉ
Ï¢ˆÊ ‰ÓÏ˘ È·¯ ÂÈȉ ·¯Â ¨ßÚÓ˘ ߯ ·¯‰ ‡Â‰, that is to say Rashi (Rabbi
Solomon b. Isaac), and also in Shiltei ha-Gibborim to the Mordechai to
Shabbat chapter 1. On R. Shmayah, see A. Grossman, The Early Sages
of France (Jerusalem, 1995), index of names, p.625b (Hebrew).
3 For a description of “leg-garments” during the XI-XIII centuries in
Western Europe, see C. Koehler, A History of Costume (New York,
1963), p.136,. See also Knaur’s Kostümbuch: Die Kostümgeschichte
aller Zeiten von Henry Harald Hansen (Munich & Zurich, 1984),
no.77, fig. 162.
4 Teshuvot Rashi, ed. Elfenbein (New York, 1943), no. 262, pp.305-
306. On the use of trousers in medieval France, see G. W. Rhead,
Chats on Costume (London, 1906), pp.69, 114 (referring to Strult,
Dress and Habits of the English People (1842)). See my additional
comments in my Minhagei Yisrael, vol.7 (Jerusalem, 2003), p.96,
note 7.
5 See note 1. Cf. Ch. Tchernowitz’s comment in Ha-Goren 10 (1928).
6 From A. Rubens, A History of Jewish Costume (New York, 1973),
p.86.
7 See Darmesteter and Blondheim, Les Gloses françaises… (Paris,
1929), no. 456, p.62.
8 ÔȘȯ·Ò = συβρίκον (σουβρίκον) “outer garment,” superaria. See
E.A. Sophocles, Greek Lexicon of the Roman and Byzantine Period
(Cambridge, MA. and Leipzig, 1914; reprint, Hildesheim and New
York, 1975), p.1001a, s.v. συβρικός; S. Krauss, Griechische und
Lateinische Lehnwörter 8a, s.v. ÔȘȯ·Ò.
9 S. Krauss, Griechische und Lateinische Lehnwörter in Talmud, Midrash
und Targum (Berlin, 1898), p.8 s.v. ÔȘȯ·‡.
10 It is related to Scottish breeks, English breeches and Old English brèć,
etc.
11 See Codex Theodosianus 14.10.3; Lampridius, Alexander Severus 40.
See W. Smith, W. Wayte, and G.E. Marindin, A Dictionary of Greek and
Latin Antiquities, vol. 1 (London, 1890), pp.314-315. See further R.A.
Gergel, “Costume as Geographic Locator: Barbarians and Prisoners
on Cuirassed Statue Breastplates”, in The World of Roman Costume,
ed. J.L. Sabesta and L. Bonfanto (Madison and London, 1994), p.197,
who describes a remarkable cuirassed statue from Sabratha in Libya
(p.198, fig. 12.7), which celebrates the Flavian conquest of Judaea.
(See C.C. Vermeule, Berytus 13 (1959), p.44, no. 85, pl. 8, fig. 25.)

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LEGITIMACY AND NECESSITY: SCIENTIFIC DISCIPLINES AND THE LEARNING OF TALMUD

He describes the Jewish male captive seated in a pile of oval shields,


wearing a sagum around his torso and fastened at his right shoulder, and
also, surprisingly according to Gergel, wearing bracae. Gergel adds:
“In this particular instance, the costume worn by the two captives on
the Sabratha breastplate is principally the product of artistic license and
bears no correspondence to actual Jewish costume: Jewish males do not
wear trousers.” However, we may call into doubt Gergel’s definitive
statement, as Jews did, on occasion, wear trousers. See further A.T.
Croom, Roman Clothing and Fashion (Stroud, 2000), pp.54-56; and
C.H. Kraeling, The Synagogue, (New Haven, 1979), index: Clothes,
Trousers. Figures. 2 and 3, are taken from Smith’s Dictionary ibid.
Trajan’s column was dedicated to the emperor in 113 C.E. See L.
Rossi, Trajan’s Column and the Dacian War (London, 1971), for a full
discussion of the column.
12 Yelamdenu to Gen. 3:22, apud Aruch s.v. ÔȘ¯·; see Aruch Completum,
vol. 2, ed. A. Kohut, p.201b.
13 There has been a good deal written on this subject. See, e.g., A.Y.
Bromberg, Rashi ve-ha-Yerushalmi (Jerusalem, 1945), and R. Zvi
Hirsch Chayes’ glosses to Ta’anit ad fin., and his Imrei Binah, sec. 5ff.
14 In fact, Rashi’s assumption does seem to be partially correct, namely
that the sages did not usually wear trousers, but merely cloaks. See,
e.g., B. Shabbat 118a, on R. Yossi’s glima, ÌÎÁ „ÈÓÏ˙ Ï˘ ˜ÂÏÁ, in
B. Bava Batra 57b, etc. Indeed, trousers were not so common. See
S. Krauss, Kadmoniyyot ha-Talmud 2/2 (Tel Aviv, 1945), p.216; on
girdles, see pp.217-227; and on undergarments, pp.200-215. For
a full discussion of the girdle, “gartel”, one should add the halakhic
element of “hikon”, “ÔÂΉ”; see B. Shabbat 10a, Shulhan Arukh, Orah
Hayyim 91:2; a full discussion is presented in J. Lewy’s Minhag
Yisrael Torah, vol. 1 (New York, 1990), pp.141-143, and, more
recently, my Minhagei Yisrael, vol.7, pp.94-107, where I treated this
issue in considerable detail. For a similar issue, see Mishna Berura
2:1.
15 Der Gaonäische Kommentar Zur mischnaordnung Teharoth, Y.N.
Epstein ed. (Berlin, 1921), p.74.
16 Ibid, p.114, line 2.
17 See A. Darmester & D. S. Blondheim, Les gloses françaises, p.103,
no. 752: “‘Orel’ écharpe pour couvrir surtout la tête”. Following their
lead, see R. Y. Gukovitsky, Sefer Targum ha-La’az (London, 1985), p.7,
no.115 and M. Katan, Otzar ha-La’azim (Jerusalem, 1984), p.161, no.
2442.
18 Der Gaonäische Kommentar , p.114, n. 8.
19 Despite the fact that Kohut did not accept his opinion; see there and
compare with Arukh ha- Shalem, volume 1, p.217a, entry ÔÂÈÏÈÙ‡, and
Krauss’ note in Tosafot ha-Arukh ha-Shalem, p.329, on entry ÌÂÈÏÙ.
20 A. Rich, A Dictionary of Roman and Greek Antiquities (London,
1893).

55
DANIEL SPERBER

21 See further, Smith’s Dictionary, vol.2, pp.318-22, entry pallium; and


also Darenberg et Saglio, Dictionnaire des antiquités Grecques et
Romaines, pp.285-293, entry pallium.
22 It should be noted that the pallium was not particularly popular in
Rome, as we find in Smith’s Dictionary, vol.2, p.322a, in W.C.F.
Anderson:
In Rome itself the Greek mantle [i.e., pallium -- D.S.], never became
naturalized, though under the name pallium, it was well known to them
as the distinctive mark of a Greek. Indeed, palliatus is used as meaning
Greek, in opposition to togatus, meaning Roman, not only in the well-
known division of comedies into palliatae and togatae, but apparently
in ordinary speech. Conservative Romans regarded it as beneath their
dignity to wear a pallium, and we find it cast up as a reproach against
Scipio Africanus (Liv. 29.19) and Rabirius (Cic. Pro Rab. 9.25) that
they did so. Cicero speaks with indignation of Verres (Verrem 5.33.86),
“stetit soleatus praetor populi Romani pallio purpureo tunica talari”,
and even under the Empire Germanicus offended some people by
adopting a “par Graecis amictus” (Tac. Ann. 2.59).
23 See further what I wrote in my Material Culture in Eretz-Israel During
the talmudic Period (Jerusalem, 1993), pp.132-140 [Hebrew].
24 We shall not go into the question of the possible dating of the setama
de-Gemara, but merely note that it is probably late Amoraic. Halivni
himself has changed his position on this issue several times as is evident
from a comparison of the various introductions to the different volumes
of his Sources and Traditions (see note 43).
25 See my Nautica talmudica (Ramat Gan and Leiden, 1986), pp.40-44.
26 Ibid, p.42.
27 Nautica talmudica, ibid. A further corollary of the issue of the
“permanent knot” may be found in the responsa Avnei Nezer, Orah
Hayyim, 183, on the knots on phylacteries. See, on this, Y. Lewy,
Minhag Yisrael Torah, p.72.
28 I have elaborated on this issue in greater detail in my Material Culture,
citing many examples, and hence I shall not here pursue this point any
further.
29 See, most recently, S. Friedman’s excellent, Talmud Arukh – BT
Bava Mezi’a VI: Critical Edition with Comprehensive Commentary
(Jerusalem, 1997). For a methodological introduction to this approach,
see S. Friedman, “A Critical Study of Yevamot X with a Methodological
Introduction,” in: H.Z. Dimitrovsky (ed.), Texts and Studies: Analecta
Judaica vol. 1 (New York, 1977), pp.283-321 [Hebrew] (henceforth
Yevamot X).
30 See, e.g., B.M. Levin, Rabbanan Savorai ve-Talmudam (Jerusalem,
1937), pp.26ff.; A. Aptowitzer, Ha-Tzofeh le-Hokhmat Yisrael 4 (1875),
pp.17-19. The material has been summarized, with a full bibliography,
by Friedman, Yevamot, pp.284ff. On the Savoraim in general, see Y.E.

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LEGITIMACY AND NECESSITY: SCIENTIFIC DISCIPLINES AND THE LEARNING OF TALMUD

Ephrathi, Tekufot ha-Savora’im ve-Sifruta (Petah-Tikva, 1973), and my


own entry in the Encyclopedia Judaica, 14:920-921, s.v. Savoraim, and
in Ha-Encyclopedia ha-Ivrit, 25:424.
31 On ‘sof horaah’, see S. Albeck, Sinai: Sefer Yovel, ed. Y.L. ha-Cohen
Maimon (Jerusalem, 1958), pp.57-73, and Ch. Albeck, ibid., pp.73-79.
See also D. Rosenthal, Tarbiz 49 (1979-1980), pp.52-61 (with relevant
biography).
32 On this concept see M. Elon, Jewish Law (Philadelphia and Jerusalem,
1994), vol. 3, p.1091-1093. See also the very important study of S.Z.
Havlin, in Researches in Talmudic Literature, (Jerusalem, 1983),
pp.148-192 [Hebrew], especially 160-162.
33 See the plentiful material cited by Friedman, Yevamot, pp.84ff.
34 See note 24 above.
35 See, e.g., the numerous writings of the late Avraham Weiss (and his
disciples), and, more recently of David Halivni Weiss, etc.
36 See Freidman, Yevamot X, pp.287ff.
37 See Freidman, Yevamot X, pp.290.
38 Y.Y. Weinberg, Mehkarim be-Talmud (1937-1938; reprint [posthumously
in his Seridei Eish, vol.4], Jerusalem, 1969); see Friedman, Yevamot X,
p.288.
39 Seridei Eish, pp.119-120.
40 Ra’avia, Weinberg, ibid., p.119.
41 See Weinberg, ibid., p.114.
42 Infra, note 44.
43 See mainly his series Sources and Traditions: A Source Critical
Commentary on the Talmud [Hebrew], Moed (Jerusalem, 1975, 1982);
Nashim (Tel Aviv, 1968); Nezikin (Jerusalem, 1993-2003); etc. See my
review of the first volume in The Jewish Review (May 1969). A very
instructive example of the significant effect of the use of this kind of
literary analysis on practical contemporary halakhic issues may be found
in E. Schohetman’s “Kiddushin Mahmat Ones”, Sinai 105 (1990), p.118,
and again in his “Hafka’at Kiddushin”, Shenaton ha-Mishpat ha-Ivri 20
(1997), pp.354-355. There he seeks to demonstrate that the passage in
B. Bava Batra 48b, beginning “he acted in an unseemly fashion towards
her, therefore they did unto him in an unseemly fashion, and annulled his
marriage…”, is not part of the original sugya there, but was transferred
from B. Yevamot 110a, meaning that the sugya in Bava Batra does, in
fact, not discuss “annulment of marriage”. This has very considerable
implication for an understanding of the concept of hafka’at kiddushin
(annulment of marriage), which Schochetman argues, bolstering
his view with citations from classical authorities, that annulment of
marriage can only be affected by a court when a get (bill of divorce)
is also given. He explains that the annulment process, mentioned in
B. Ketubot 3a, B. Gittin 33a, B. Yevamot 90b, and B. Gittin 73a, can,

57
DANIEL SPERBER

in certain circumstances described in the above sources, validate the


get, otherwise invalid, thus annulling the marriage, but without a get-
a situation described in Bava Batra 48b- no such annulment can be
effected (p.359). Such a conclusion greatly reduces the possibilities of
utilizing the concept of hafka’at kiddushin as a possible solution – one
of several – to solve the problem of the recalcitrant husband who is
unwilling to grant a bill of divorce to his wife, even after the court (beit
din) has ruled that he is obligated to do so. See further the comments
of A.A. Edrei, “The Beit Din’s Prerogative and Marital Law,” Shenaton
ha-Mishpat ha-Ivri 21 (1998-2000), pp.30-31.
44 I. H. Haut, The Talmud as Law or Literature (New York, 1982).
Certainly his questions are no less meaningful and provocative than
those of Rabbi J.H. Dünner, chief-rabbi of Amsterdam (1874-1912),
whose “Anotations Criticae” (Hagahot) to the Bavli, Yerushalmi,
Tosefta and Midrashim, have been reprinted by Mossad ha-Rav
Kook under the title 3 ,„¢ˆÈ¯‰ È˘Â„ÈÁ vols. (Jerusalem, 1981-1983).
Halivni suggested answers that are usually more to the point. On
Dünner, see the late Professor Benjamin De-Fries’ biographical essay
and appreciation at the beginning of vol. 1 of Mossad ha-Rav Kook
reprint (pp.9-32). De-Fries raises the ideological question: “However,
R. David Zvi Hoffman raised the issue of psak: would not [Dünner’s]
Hagahot in the present form be utilized, against his will, to undermine
the whole structure of the Shulhan Arukh?…But one may answer
that critical research comes only to delineate lines of growth and
development of the halakha in a scientific fashion, but is not intended
to refute the halakha and its conclusions in its dogmatic and mature
form…[The scientific approach] recognizes stages of development and
the strange vicissitudes of evolution which at times bring about changes
in interpretation and mutation of forms. But in practice we accept the
psak as it is derived from the sugya, and as it evolved into its final
form…[p.31].” See De-Fries’ continued analysis.
45 Haut, pp.70-71.
46 For a similar such question in the later periods of halakhic development,
see E. Schohetman’s excellent article, Bar Ilan 18/19 (1985), 170-195,
as to the problem of ÌÈ¢‡¯‰ ÏÚ ÊÚÏ ˙‡ˆÂ‰, casting doubts or aspersion
on the earlier authorities.
47 See R. Yaakov Hayyim Sofer (great-grandson of the Kaf ha-Hayyim),
Yehi Yosef (Jerusalem, 1991), p.132. Sometimes this is formulated thus:
‰ÈÏÚ ÌÈ˙Á È˘‡ ·¯ ¯· ¯Ó Â‡Ï (this passage does not bear the signature of
[the editor of the Talmud] Mar Bar Rav Ashi), i.e., not really a part of
the Talmud.
48 See S. Lieberman, Hellenism in Jewish Palestine (New York, 1962),
p.88, 90, 92, 97-98, etc. See also the important study of B. Gerhardsson,
Memory and Manuscript: Oral Tradition and Written Transmission in
Rabbinic Judaism and Early Christianity (Copenhagen, 1961). On
B. Sota 22a, see E.S. Rosenthal, Iranica Antiqua 1, (1982), p.73, n.
23; J.C. Greenfield, Joshua Finkel, Festschrift (New York, 1974),

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pp.63-69, summarizes as follows: “It is clear then that the term retnā
dĕmagūshūtā refers to a specific type of oral instruction in which the
accent was placed on memorization of a text without comprehension
of the context. The retna itself sounded like indistinct murmuring and
mumbling to the outsider since it was in all likelihood recited in an
unaccentuated monotone. The sort of tannā who could do no more than
repeat the text since he came under the category of ˘Ó˘ ‡Ï ‰˘Â ‡¯˜
Á¢˙ was aptly compared with the ‡˘Â‚Ó.”
49 Ed. Cassel (Berlin, 1848; reprint, Tel Aviv, 1964), 23b.
50 See, e.g., B. [M.] Levin, Otzar ha-Geonim to Berakhot (Haifa, 1928),
ha-Perushim, pp.8-9: “‡¯Ó‚ Â‰Ï ÛÈË˘È‡ ‰ÏÎ ßÈÙ ÈÚ„È ‡Ï„ ‡ÓÚ ¯‡˘ÂÆÆÆ
Æ…‡˙˘ ‰ÏÂ΄ ‡˙ÈÈ˘¯Ù ‰· ÂÙÈÒ‡ ÂÚË” (From R. Yehuda b. Barzilai of
Barcelona, Sefer ha-Ittim, ed. J. Schorr [Berlin, 1902], p.244.) I shall not
go into the question of what is the Tarbiza here. I hope to deal with this
question elsewhere. See also Otzar ha-Geonim to Megilla (Jerusalem,
1933), pp.6-7, and R. Brody’s comments on this Gaonic responsum
in Talmudic Studies 1, ed. Y. Sussman and D. Rosenthal (Jerusalem,
1990), pp.238, note 9, pp.264-265 [Hebrew]. This phenomenon was
already noted by Isaak Halevy in his Dorot Harischonim, vol.3 (Berlin
and Vienna, 1923), p.228.
51 The bracketed words are a free translation. Cf. Teshuvot ha-Geonim
Harkavy (Berlin, 1887; photographic reprint, Jerusalem, 1966), sec.
229, p.107; and Menahot 82b, Aruch Completum, vol. 8, ed. A. Kohut,
p.273, s.v. ı·¯˙, etc.
52 See I.M. Ta-Shma’s detailed study of this principle in Shenaton ha-
Mishpat ha-Ivri 6/7 (1979-1980), pp.205-423, and, recently, in his
talmudic Commentary in Europe and North Africa, vol.2 (Jerusalem,
2004), ch. 9 [Hebrew]. See further on the history of this concept R.K.
Merton, On the Shoulders of Giants (New York, 1965); D. Zlotnik,
“The commentary of Rabbi Abraham Azulai to the Mishna,” PAAJR 40
(1972), pp.147-168; M. Raffeld, Sidra 8 (1992), pp.119-140; J. Woolf,
ibid. 10, 1994, pp.57-59; S. Wosner, “Hilhheta ke-Batrai- A New
Perspective”, Shenaton ha-Mishpat ha-Ivri, 20, (1995-1997), pp.151-
167 [Hebrew]; A. Melamed, On the Shoulders of Giants (Ramat Gan,
2003) [Hebrew].
53 Kovez Iggerot, ed. S. Greinemann, vol.2 (Bnei Brak, 1990), no.23,
p.37.
54 This, of course, is not always the case. For example, the well-known
Leiden manuscript of the Yerushalmi (cod. Scaliger 3) was copied in
1280 by R. Yehiel ben R. Yekutiel ben R. Benjamin ha-Rofeh, who
was the author of the very popular edifying Ma’alot ha-Middot, and
a considerable scholar. See Lieberman’s introduction in the Kedem
photographic edition (Jerusalem, 1971). Such is the case with
numerous manuscripts whose colophons survive. This, then, is a rather
questionable generalization.

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55 This is a very complex issue that requires an extensive study in its


own right. Here we shall merely point out that the majority position
among the poskim is that the principle of hilkheta ke-batrai, we follow
the latest opinion, does not apply if the later authority was unaware
of the opinions of earlier authorities. And when this is the case, we
assume that had he known this earlier opinion, he would have judged
accordingly. Hence, we follow the earlier opinion, especially if it is
that of a Rishon. See, for example, Rema, Hoshen Mishpat 25:2: “But
if at times there is a responsum of a Gaon which was not mentioned in
the books, and we find them (later on) differing from him, we do not
have to follow the later authorities, because it is possible that they did
not know the view of the Gaon, and had they known they would have
withdrawn their view (Maharik, sec. 94).
This, as mentioned above, is the majority view, see Kenesset ha-
Gedola to Yoreh De’a 37, Beit Yosef, no. 50, 149. See further on this
matter, R. Yaakov Hayyim Sofer, Beit Ya’akov (Jerusalem, 1985), p.19,
n.5, 52-53; and his Tiferet Yitzhak (Jerusalem, 1981), pp.46, 115, etc.
Hence, discoveries of new early texts of Geonim and Rishonim should
certainly be taken into account. A case in point is the Meiri, who was
only recently fully discovered, and in whose writings we find numerous
psakim of relevance to our day. (See Beit Ya’akov, p.52, n.17). See,
eg., R. Ovadiah Yosef, Yabia Omer, vol.4, Orah Hayyim 24:11, who
writes that “if the Aharonim, who ruled stringently [on a certain issue]
had known the words of Meiri (to Rosh ha-Shana 28b), who plainly
holds the opposite view, they would certainly have abandoned their
own conclusions in favor of his” (p.103). And so too in vol. 4, Orah
Hayyim 5:1, he writes, “and had the aforementioned Aharonim seen
the responsum of R. Abraham son of the Rambam, they would surely
not have differed from him” p.48. See further his introduction to that
volume.
In fact, I suspect that the Hazon Ish himself would agree with his view.
This we may derive from the following: the Tur, Hoshen Mishpat, 280,
quotes the Rama in such a fashion that the Rama’s words contradict
themselves. The Beit Yosef points this out but is left with the question
outstanding (ÔÂÈÚ Íȯˆ), while the Darkei Moshe and the Derisha and
the Perisha struggle to solve the contradiction. The Hazon Ish (Hoshen
Mishpat 15) rightly points out that “the [full] reading is found in the
printed edition, and because the Beit Yosef and the Rema did not have
the Rama’s work they found difficulties with the Tur’s text. But now that
we have been graced with the writing of the Rama, the copyist’s error
has been revealed to us.” (The Rama’s Yad Rama was first published
in Salonika 1790, Bava Batra, and Salonika 1798, Sanhedrin. Rabbi
Joshua Falk, the latest of the three aforementioned authorities, died in
1614.) See S.Y. Zevin, Ishim ve-Shitot (Tel Aviv, 1966), p.327.
However, in the meanwhile, my good friend and very learned colleague,
Rabbi Professor S.Z. Havlin points out that the issue is somewhat more
complex than I made it out to be. First, he noted already implicitly

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in an article, published in Ha-Ma’ayan 8:2 (1968), p.36, that this


“discovery” of the Hazon Ish was first published by R. Shimon
Schkop in his Sha’arei Yosher (Warsaw, 1928), 5:11. The Hazon Ish
then discussed this same issue (without alluding to R. Schkop) in his
brother’s journal, Knesset Yisrael, vol. 8, in an article under the name
of ‡ÏÈ ˘È‡ (“Man of Vilna”), published in Vilna in 1912 (sec. 79,
pp.119-124) and thence to Hazon Ish, Hoshen Mishpat. 15. (In a note
at the end of the Knesset Yisrael article he wrote as follows: “Also in
Sha’arei Yosher…he discussed this issue at length, and concluded by
saying that it is imperative [‰ÂˆÓ] to declare that the Rema’s ruling is
incorrect. However, according to what we have explained above, the
ruling of the Rema is valid and Moshe [alluding to the Rema’s personal
name] is true and his Torah is true.” In a very complex discussion, the
Hazon Ish attempts to demonstrate that despite the error that crept into
the text of the Rema, the resultant ruling nonetheless stands. He ends
his discursive argumentation: “˙È˙ÈÓ‡ ‡¢Ó¯‰ ˙‡¯Â‰Â…” (and the ruling
of the Rema is true). It would therefore appear that his aim was to
demonstrate that the textual error does not, in fact, lead to an error in
the operative halakha. For the whole issue of the effect of the discovery
of new sources upon present-day halakha, see Havlin (ibid., pp.35-37),
and most recently the excellent study by R. Moshe Bleich, “The Role of
Manuscripts in Halakhic Decision-Making: Hazon Ish, His Precursors
and Contemporaries,” Tradition 27 (1993), 22-55.
A further aspect of this issue may perhaps be seen in the frequently found
argument that one does not have to follow a specific early authority
because he did not yet know the Zohar, which was only revealed after
his time. See, for example, Lewy, Minhag Yisrael Torah, pp.107, 132,
etc. See also, similarly, other outstanding halakhic sources, such as the
responsa of the Maharam (Rabbi Meir b. Barukh) of Rothenburg. See,
for example, R. Josef Katz, She’erit Yosef, ed. Ziv, (New York, 1984),
sec. 62, p.149, etc. The argument is, of course, that if they had known
the Zohar, they would have ruled in accordance with it. And the same
argument is applied to the rulings of the Ari . Thus, for example, R.
Yitzhak Barda (Responsa Yitzhak Yeranen, vol. 3, sec. 13) writes, “had
the Poskim known what the Ari knew, they would have reversed their
opinions.” So too, the Hida writes (Birkei Yosef, Orah Hayyim, 421:
1, etc.), “We follow him (the Ari) often even when he rules contrary
to Maran (=R. Yosef Karo). For the rabbis maintained (kim le-hu
Rabanan), that had Maran heard the words of the Ari, he would have
changed his mind.” (See M. Hallamish, Kabbalah in Liturgy, Halakhah
and Customs [Ramat-Gan, 2000], chapter 5, p.117-145 [Hebrew].)
Yet another aspect of this issue, and a very important one, is the
relationship between the Hazon Ish’s position and the principle of
hilkheta ke-batrai, the law is in accordance with the late authority.
The rationale behind this principle is that, though we may be lesser
intellects than our predecessors, of inferior knowledge and shallower
understanding, we stand like midgets upon their shoulders, the

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DANIEL SPERBER

shoulders of giants. And, hence, we have a broader horizon than they


do, see farther than they do. (See note 52 above.) Thus, for example, the
Radbaz, in his responsa, vol. 8 (B’nei Brak, no date), sec. 141, writes:
For if you do not say so, you have left no place for any of the latter-day
authorities to make any innovation ®˘Â„ÈÁ Ì˘ ˘„Á˙È˘© or add any point
®˜Â„˜„ Ì¢ ‡Ï© neither in reasoning nor learning ®‡¯Ó‚ ‡Ï ‡¯·Ò ‡Ï©, for
we will say to him: If what you say is true, the earlier authorities would
have said it. But this is not so. For no one’s knowledge is complete,
other than He to whom is perfection., may He be blessed…For the
latter-day authorities saw what the earliest ones did not see…and the
writings of their predecessors and built upon them, and made their
innovations, and it is for this reason we say the law is in accordance
with the later authority….[p.108]
It would then seem, at least at a superficial level, that the Hazon Ish’s
view is not consonant with this widely accepted position in Jewish
law, and constitutes a reversal from the normative trend in halakhic
development. This question requires further careful examination.
For yet a fuller understanding of the Hazon Ish’s viewpoint on the
development of the halakhah, see Hazon Ish, Kodashim, Terefot 5:
8; Nashim, Ishut 27:3; and Orah Hayyim, Kuntres ha-Shiurim, p.115.
And on this, see most recently the discussion of R. Zalman Menahem
Koren in Birurim be-Hilkhot ha-Ra’aya, ed. M.Z. Neriah, A. Stern, and
N. Guttel (Jerusalem, 1992), pp.433-442. See the continuation of this
article (pp.442ff) for an exposition of Rav Kook’s view as to Rema,
Hoshen Mishpat 28, discussed above in this note. I have digressed
somewhat at length in this issue, but this is because I believe it is an
issue central to the understanding of the mechanism and development
of halakha.
56 And see Hazon Ish Orah Hayyim, p.115, col. 2, sec. 6: “…and even
though one does not rely on manuscripts representing a noncontinuous
tradition…”, etc. For an interesting comparison, see Minhagei
Ziditchov, ed. Josef Gottleib (Jerusalem, 1971), Hosafot Minhagim,
no. 102, p.17: ‡Â‰˘ ˘È‡ ÈÙÓ ˘È‡ Ï·Â˜Ó ‡Â‰˘ ¯Ú ¯ÙÒ ‰ÊÈ‡Ó „ÂÓÏÏ ¯ÂÒ‡
‰Èχ ÈÙÓ One may not study from any book other than one which has a
direct continuous tradition that it is from Elijah [the Prophet]:
For references, see editor’s note, ibid.
57 Kovez Iggerot, vol.1, no. 32, p.59.
58 Presumably, he is talking about the first Venice edition, 1520 onward,
which was printed by the Christian printer Daniel Bomberg. However,
the text was prepared by scholars, such as Rabbi Hiyya, a Venetian
rabbi (mentioned in She’elot u-Teshuvot Binyamin Ze’ev, sec.71), Israel
Cornelius Edelkind of Padua, some of whom did a very poor job, so that
the text is replete with errors. See Rabbi R. Rabinovicz, Ma’amar al
Hadpasat ha-Talmud, ed. A.M. Habermann (Jerusalem, 1952), pp.35-
43, especially pp.40-41.

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It should be further pointed out that in Bomberg’s printing house, as


well as the printing house in Cremona, apostate Jews were used as
proofreaders, typesetters, etc., such as Vittorio Aliano in Cremona
(Rabbinowicz, Ma’amar, p.39, n.8), Yaakov ben Hayyim ibn
Adionyahu in Venice, who prepared the Leiden manuscript of the
Yerushalmi (n. 4 above) for the first Venice edition c. 1523, and who
may have converted later on in life. See further on Bomberg and his
prints, Marvin J. Heller, Printing the Talmud: A History of the Earliest
Printed Editions of the Talmud (Brooklyn, N.Y., 1992), p.135 et seq.
Then he also discusses whether Cornelius Adelkind, who worked with
Bomberg, was an apostate (pp.159-161). Additional apostates that
worked as his assistants were Fra Felice de Prato and Isaiah Parnas…
“all individuals of stature” (ibid. p.159).
Perhaps the Hazon Ish did not know those facts about the early printing
of the Talmud, or perhaps he was thinking of later editions, in which
such great authorities as R. Shlomo Luria (Maharshal), R. Shalom
Shachna, etc. were (directly or indirectly involved. See Rabinovicz,
Ma’amar, pp.61-62, on the first Lublin edition, etc. In any case, the
Hazon Ish’s generalization is somewhat idealized and probably bears
little relationship to the historical facts.
59 And of Kovez Iggerot, vol. 3, no. 48, p.69, and Hazon Ish to Orah
Hayyim 140, par. 3, p.471.
60 Vol. 19 (1981), 301-310.
61 Variae lections in Mischnam et in Talmud Babylonicam quom ex aliis
libris antiquissimus et scriptis et impressis tum e Codice Monacensi
praestantissimo collectae, annotationibus instructae, 1868-1897.
62 See preceding note.
63 Yitron Or to M. Sukka 1:1.
64 See Or Yaakov by R. Yaakov Hayyim Sofer, apud Yehi Reuven, by R.
Reuven David Nawi (Jerusalem, 1983), p.119, n.31; and see Sofer’s
Berit Ya’akov, p.229.
65 See Leiman, p.310, n.21, for an example. See further Kovez Iggerot,
vol. 3, no. 19, p.47., for what he wrote about the woeful textual studies
of the Tosefta, and also about inaccuracies in the modern editions of the
Talmud (ed. Vilna?), and Hazon Ish, Orah Hayyim, sec. 67, par. 12. See,
on this, R. Ovadiah Yosef’s comments in Yabia Omer, vol. 5, “Opening
Words.” The attitude of the Hazon Ish to textual emendation must be
further examined and perhaps his guidelines to a consistent policy—if
there be such—will be discovered.
66 Volume 1 (all that appeared) (Jerusalem, 1934), pp.397-398.
67 Pietrokov, 1908, pp.28-29.
68 Piskei Recanati, sec. 157.
69 Ha-Yerushalmi ki-Phshuto, p.398.
70 Ibid, p.397.

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DANIEL SPERBER

71 On corruption of abbreviated numbers, etc., see what I wrote in Sinai


62:5-6 (1968): 278-280, and R. Reuven Margoliot, Mehkarim be-
Darkei ha-Talmud ve-Hidotav (Jerusalem, 1967), pp.21-30, 51-61.
There may be another interesting example of such a corruption. The
Yerushalmi in Sanhedrin 4:7, when discussing who is qualified to judge
monetary laws, including bastards (mamzerim) brings a statement in
the name of Rabbi Yehuda that ÍÒ ÔÈÈ· ÌȘ„˜„Ó Ôȇ—one does not
examine carefully nesekh wine. The classical commentators were
unable to make any sense of this statement, which, of course, bears no
relationship to its context. R. Reuven Margoliot (ibid, pp.31-33) after
surveying earlier explanations and refuting them, made a bold attempt
to explain the statement by suggesting that the letters ÍÒ ÔÈÈ were the
initial letters of six rules concerning judgment of monetary laws. But
his suggestion, though brilliant, is forced.
Louis Ginzberg, in his notes to Abraham Geiger’s Kevutzat Ma’amarim
(ed. S. Poznansky [Warsaw, 1910], p.404), makes a more convincing
suggestion, namely that the text read originally: ‚¢È· ÔȘ„˜„Ó Ôȇ
— one does not carefully examine [a] thirteen [-year-old], i.e., to check
whether he has physical signs of maturity, but accepts him as an adult
on the basis of his age. As such, it would be parallel to what we have
learned in Berakhot 47b:
Ôȇ ≠ ˙Â¯Ú˘ È˙˘ ‡È·‰ ‡Ï˘Â ¨ÂÈÏÚ ÔÈÓÊÓ ≠˙Â¯Ú˘ È˙˘ ‡È·‰˘ Ô˘
ÆÔ˘· ÌȘ„˜„Ó Ôȇ ¨ÂÈÏÚ ÔÈÓÊÓ
A child who has grown two (body) hairs [a sign of maturity]
may join a zimmun, and one that has not may not join. And we
do not carefully examine a child.
(See the Gemara’s discussion ad loc.) Ginzberg explains that a child who
has reached the age of thirteen need not be examined for two hairs: we
assume he has indeed reached physical maturity. Similarly, he argues in
the case of monetary judgments. If he is thirteen, we may assume he has
reached physical maturity, and as such is qualified for adult privileges
and duties. The scribe misread ‚¢È , “thirteen”, as ¢È, interpreting these
as the initial letters of ÍÒ ÔÈÈ, and hence our meaningless text.
72 Mayyim Hayyim (Zitomir, 1857/8), sec. 4.
73 Minhat Moshe 4, printed in Kuntres Hukkat ha-Pesah (Warsaw, 1882).
74 See Margoliot, ibid, p.56 (where the bibliographic details require some
correction).
75 See E.E. Urbach, Ba’alei ha-Tosafot (Jerusalem, 1980), pp.600-601
(and especially n. 9), that this term refers to our Tosafot to Berakhot—
which are an abbreviation to the Tosafot of Rabbi Judah Sir Leon.
76 Hokhmat Shlomo to Berakhot (Cracow, 1581). On the nature of these
emendations, see the excellent study of I. Ron, Rabbi Solomon Luria
and the Textual Development of the Talmud (Ph.D. diss., Bar-Ilan
University, 1989 [Hebrew]). The emendations were based primarily
on severa (logical thought processes), rather than on manuscript
evidence.

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77 However, see Rashba to Megillah 17b, ed. Dimitrovsky (New York,


1965), p.72 n. 20, where he mentions only Parshat Zakhor. And see
Lieberman’s note in square brackets.
78 See also Tosafot Evreux to Sota, ed. Lifshitz (Jerusalem, 1969), p.94,
where we read: ‰ÙÂ¯Ú ‰Ï‚Ú ˙˘¯Ù ‰¯Ù ˙˘¯Ù ¨¯ÂÎÊ ˙˘¯Ù Ô‚Î
79 Furthermore, most of the testimonia of the Rishonim that we have cited
were not available to him. Thus, Tosafot Rabbi Yehuda Sir Leon first
appeared in Berakha Meshuleshet (Warsaw, 1863), and so, too, Tosafot
Rosh to Berakhot. The Ritva to Megilla appeared in Mikhtam le-David
(Leghorn, 1782), only some five years before the Gaon died, and then
in Sudilkov, 1833, etc. So, too, the full version of Tosafot Rosh to Sota
only appeared for the first time in print in 1968, in Lifshitz’s edition.
Only the Rashba to Berakhot should have been available to him, as it
was first published in Venice in 1523, and after being long out of print
it was republished in Amsterdam in 1715, and then again in Fürth,
1751, etc. It is, therefore, not clear to me how the Gaon apparently
overlooked this source. Perhaps he merely disagreed, and only stated
that the Tosafot texts were corrupt.
80 Mishpat Hakhamim (Wansbach, 1733), “the twenty-seventh level”, sec.
548.
81 See I. Z. Kahana, Mehkarim be-Sifrut ha-Teshuvot (Jerusalem, 1973),
p.303, n. 175.
82 See Ketubot 19b; Tur Yore De’a, sec. 179.
83 Kiryat Sefer 14 (1938), p.329-330. However, one must be very
careful before emending, especially against manuscript evidence. See
Lieberman, comments in Kiryat Sefer 15 (1939/40), p.56-57. Normally,
of course, one would not correct a whole group of independent readings.
See Tiferet Yitzhak, p.68, with copious references.
84 See I. Englard, Mishpatim 7:6 (1976), p.34-65. His seminal article was
followed by a number of fascinating responses: M. Elon, Mishpatim, 8:
1 (1977): 99-137; B. Shiber, Mishpatim 8:1 (1977): 91-98, etc.
85 See Albeck’s position, as described by Englard, ibid., p.60. See Albeck,
Iyyunei Mishpat 3, p.710; and cf. Shiber.
86 For a quaint example of this, see Shulhan Arukh, Orah Hayyim, 275:1,
and the Be’ur Halakha ad loc., s.v. ¯‰ ¯Â‡Ï, where there is a lengthy and
detailed description of oil lamps of his day, and the difference between
them and those of earlier times.
87 In contrast to the classical type of responsum, see the writings of Rabbi
Levi Yitzhak Halperin, of the Institute for Sciences and Technology,
such as, for example, Maaliyyot be-Shabbat (Jerusalem, 1983),
pp.15ff.
88 E.g., Pnei Yehoshua to Shabbat 34b, to Tosafot s.v. ÔȯÈ˙Ó.
89 See Rabbi Dr. M. Halperin’s essay in Emek Halakhah — Assia 1986,
pp.306-310.

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DANIEL SPERBER

90 For a very thoughtful study of the differences between “learning”


and “studying” Talmud, see Menahem Kahana, “Mehkar ha-Talmud
ba-Universita ve-ha-Limud ha-Mesorati ba-Yeshivah,” in Be-Havlei
Masoret u-Temurah (Rehovot, 1990), pp.113-142. See also the note at
the end of the second section.

Part II
1 See Levi Ginsburg’s comments in his introduction to Perushim ve-
Hiddushim ba-Yerushalmi, vol. 1 (New York, 1941), pp.124-125, and
in the English section pp.LVI-LVII.
2 See Saul Lieberman’s Mavo le-Ktav Yad Leiden (photocopy edition
of the Leiden manuscript of the Yerushalmi, Jerusalem, 1971), who
refers the reader to earlier research; (Z. Frankel, Mevo ha-Yerushalmi
[Breslav, 1870], p.143a; Schiller-Szinessy, Ve-Hema ba-Ketuvim,
[Cantabria 1878], from p.5; etc.) See also Y.N. Epstein, Tarbiz 5, 1934,
p.257; S. Lieberman Ha-Yerushalmi ki-Pshuto (Jerusalem, 1935),
the introduction from p.15; and so forth. Recently, see Y. Sussman’s
introduction to Talmud Yerushalmi: According to Ms. Or 4720
(Jerusalem, 2001), pp.9-40, with a detailed biography.
3 For more on this interesting character, see J.S. Penkower’s dissertation:
Jacob ben Hayyim and the Rise of the Biblia Rabbinica (Hebrew
University, 1982), with a detailed bibliography, and also the entry
“Jacob ben Hayyim Ibn Adoniyahu in The Dictionary of Biblical
Interpretation, ed. John B. Hayes, vol. A-J (Nashville, 1999), pp.558-
559.
4 This word was explained by S. Lieberman in his article, “Tikkunei
Yerushalmi 6” (at the end), Tarbiz 4, 1933, pp.107-110.[=S. Lieberman,
Mehkarim be-Torat Erets Yisrael, ed. D. Rosenthal (Jerusalem, 1991),
pp.210-213] See also E.S. Rosenthal’s comments in his Mavo le-
Yerushalmi Nezikin on Ms. Escorial (Jerusalem, 1984), pp.26-28, and
his article “Leshonot Sofrim,” in Sefer Yovel Shai, ed. B. Kurzweil
(Ramat Gan, 1978), pp.294-297. For a detailed bibliography on this
topic, see B.M. Bokser’s, An Annotated Bibliographical Guide to the
Study of the Palestinian Talmud II, in Aufstieg und Niedergang der
römischen Welt, 19.2 (1979), p.180.
5 Commentators have noted this previously. See, for example, R. Issachar
Tamar’s comments in his book, Alei Tamar, Moed, Part 1 (Alon
Shevut, 1995), p.249. He cites R. Baer Ratner in his Ahavat Tsiyyon ve-
Yerushalayim on Pesahim (Pietrokov, 1908, reprint Jerusalem, 1967),
pp.74-75. Compare with his entry on Berakhot (Vilna, 1901), p.105.
6 See Y.S. Penkower on the relationship between the two in his article,
“Minhag u-Masora — ‘Zekher Amalek’ be-Hamesh o-be-Shesh
Nekudot,” in Iyyunei Mikra u-Parshanut 4 (Ramat Gan, 1997), pp.127-
128.

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7 P.371a. See my comments on this siddur in Minhagei Yisrael, vol. 2


(Jerusalem, 1991), p.303, and vol. 7 (Jerusalem, 2003), p.58, n. 58.
8 A reference to his book, Migdal Oz (Lemburg, 1884).
9 As well as in the Additions and Emendations to that work (Jerusalem,
1937).
10 She’elot u-Teshuvot Mishpat Cohen (Jerusalem, 1937), nos. 58 and 63.
Indeed, there is great uncertainty whether “ÌÁ˙ ‡Ï” is a prohibition of
biblical or rabbinic status. In any case, it seems clear that there was no
such prohibition in the days of the Tannaim. See my Roman Palestine
200-400: The Land, Crisis and Change in Agrarian Society as Reflected
in Rabbinic Sources (Ramat Gan, 1978), pp.160-167, where I brought
proofs for this. See Sefer ha-Mitzvot le-Rasag [=R. Sa’adya Gaon], with
commentary by R. Yeruham Fischel Perla, (Warsaw, 1814-1817; New
York, 1962), v.2, Lo Ta’aseh 13-14, p.21b, where he shows that the
verse “ÌÁ˙ ‡Ï” functions as a support for rabbinic rulings according
to R. Sa’adya Gaon, and that, in fact, he does not count include it
in his count of Torah laws. However, it may be included in another
prohibition, and may apply only to the Seven Nations, etc.
11 In his article “Be-Inyan Heter ha-Mekhira” in Torah she-be-Al Peh.
15 (1973), p.31. The article was republished with some additions in
Tehumin 10 (1989), and this point is found there, pp.38-39.
12 See R. David Kahan’s books, He-Akov le-Mishor: Tikkunei Ta’uyot la-
Shas Hotsa’at Vilna, with a comprehensive introduction to censorship
and mistakes in the printing process (Brooklyn, N.Y., 1993), p.23, and
Avraham Yagel Yitshak Yerannen: Hartsa’ot u-Ma’amarim (Brooklyn,
N.Y., 2000), pp.107-108. See D. Z. Hillman, Tzefunot 1/2, 1989, pp.62-
63. See further Mossad ha-Rav Kook’s edition of the Rambam’s Sefer
ha-Mada, ed. S. Lieberman (Jerusalem, 1964), in a note to Avoda Zara
10.2, p.271. For more on the “work” of the censors in the Talmud, see:
Elbona Shel Torah (Berlin, 1929), from p.21f., by Shafan ha-Sofer
(pen-name of R. Shmuel Shraga, son of R. Shalom Feigensohn);
and also R. Rafael Natan Nata Rabinovitz’s important, Ma’amar al
Hadpassat ha-Talmud, ed. A.M. Habermann (Jerusalem, 1952), pp.72-
73 (on the Basilia [=Basel] edition, 1878-1881); and M. Benayahu,
Haskama u-Reshut bi-Defusei Venezia (Jerusalem, 1971), p.394, the
entry on Censorship (‰¯Âʈ); and, more recently, M.J. Heller, Printing
the Talmud: A History of the Earliest Printed Editions of the Talmud
(Brooklyn, N.Y., 1992), p.438a in the index, the entry on Censorship;
D.Z. Hillman, Tzfunot ibid. pp.62-68.
13 Jerusalem: Makhon Yerushalayim, 1994.
14 I enclosed the lines that are not found in standard editions in
parentheses.
15 It should be noted that the Rambam was not fully consistent in his use
of the word “È‚/gentile”. For in Ma’akhalot Asurot, 11:8, he wrote:
“Anywhere it says in this matter that the wine is prohibited, etc…. and
anywhere it says ‘gentile’ without specification, it is referring to an

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DANIEL SPERBER

idolater,”, while in Issurei Bi’ah, 12:1-10, the words “È‚” and “‰È‚”
refer even to gentiles who are not idolaters (only in the early printings
before the censors changed it to “Ì¢ÂÎÚ/idolater”). See Encyclopedia
Talmudit, the entry “È‚”, and footnotes 30-33 there. (I learned this from
an as yet unpublished article by R. Zvi Neria Guttel.) See above note
13, in the Mossad ha-Rav Kook editon of Rambam, Avoda Zara 10.2 for
a similar situation. For in Avoda Zara ibid he ruled as follows: “From
here you learn that it is forbidden to cure idolators (Ê¢Ú È„·ÂÚ) even for
pay.” And from this passage Kesef Mishne deduced that “if he is not an
idolator, you may cure him for pay, and draw him out of a pit”(see B.
Avoda Zara 26a). However, Rambam in a responsum (ed. J. Blau, vol.
2 [Jerusalem, 1960], no. 448, pp.725-728) was asked “concerning the
Ishmaelites [=Moslems] (that he had referred to in Ma’akhalot Asurot
11.7) that are not idolaters…” There he affirms that, indeed, they are not
idolaters However, in responsum 148 (ed. Blau, vol.1 [Jerusalem 1958]
pp.282-284), concerning circumcision of a non-Jew he states that “there
is no difference between an Ishmaelite and a Christian”, namely that all
may be circumcised for the purpose of circumcision, even though they
have no intention to convert. But if this circumcision is for curative
purposes, it is prohibited (basing himself on B. Avoda Zara ibid.). And
such is his ruling in Mila 3.7. However, in the Pe’er ha-Dor edition
(no. 60) the reading is: ÂΠ¯‡˘Ï Ì¢ÂÎÚ ÔÈ· ‰Ê· ˜ÂÏÈÁ ÔȇÂ'. See R. David
Yosef’s edition of Pe’er ha-Dor (Jerusalem, 1984), p.140 (Pe’er ha-
Dor was first published in Amsterdam in 1765, by R. Mordekhai Tama,
and received the approval of R. Ya’akov Sasportas.), and the editor’s
note 17, pp.140-141, for a detailed discussion of Rambam’s ruling on
this issue.
16 This is contrary to R. Ovadia Yosef’s apparent understanding.
17 However, R. Yosef brought other proofs for his argument that “‡Ï
ÌÁ˙” only applies to idolatrous gentiles and cited a responsum by
Rashba (vol. 1, no. 8) that was quoted by R. Hayyim Palache in
She’elot u-Teshuvot Nishmat Kol Hai (Salonika, 1832-1837), Yore
De’a 54. He also directs our attention to the Meiri on Avoda Zara 20a:
“Anyone from the religiously observant nations who believe in G-d, it
is unquestionably permitted and proper, even if he does not know him.”
Since the Meiri is commenting on the verse, “give it to the stranger in
your community to eat, or you may sell it to the foreigner,” (Deut. 14:
21), we may infer that he would permit selling land in Israel to such
religiously observant gentiles. R. Yosef adds that R. Tsvi Pesah Frank,
the chief rabbi of Jerusalem, also ruled this way in his Kerem Tsiyyon,
vol. 3 (1937), p.6. See the discussion of this topic by E. Shohetman,
Vayamideha le-Ya’akov le-Hok (Jerusalem, 1994), pp.20-21. Therefore,
R. Yosef’s halakhic conclusion may be correct, even though (some of)
his proofs are not fully substantiated.
For more on Meiri’s approach to “the religiously observant nations”, see
E.E. Urbach, “Shitat ha-Sovlanut shel R. Menahem Meiri—Mekorah
u-Migbaloteha,” in: Perakim be-Toledot ha-Hevra ha-Yehudit Bimei

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ha-Beina’im u-va’Et ha-Hadasha (Jerusalem, 1980), pp.34-44; J. Katz,


Exclusiveness and Tolerance (Jerusalem, 1961), pp.114-128 and his
article “Od al Sovlanuto ha-Datit shel R. Menahem ha-Meiri,” Zion. 46
(1981), pp.243-246; Y. Blidstein, “Yahaso shel R. Menahem ha-Meiri
la-Nokhri—bein Apologetica le-Hafnama”, Zion 51 (1986), pp.153-66
(especially pp.164-166 and p.156). See also Y. Ta-Shma’s observation
in Tarbiz 49 (1980), p.218 (a continuation of Y. Katz’s article, Tarbiz
vol. 48 (1979), pp.374-376, and D.Z. Hillman’s very useful article in
Tsefunot 1 (1989), pp.65-72.
Another point should be made about Rashba’s aforementioned
responsum. The question was: “And that which the youth asked you
about, the question of ‘a person sends (a gift) to a gentile’ (M. Hullin,
7:2; B. Hullin 93b), how does this fit with what they have said, ‘it is
forbidden to give a gift [to a gentile]’ (Avoda Zara, 20a)? And you
replied that the (Mishna speaks of) one who sends a haunch (yarekh)
to a gentile does not do so for free, but rather to pay him back for
something, or a gentile who is not an idolater. You spoke well…”
Rashba-or his petitioner-could postulate that the Mishna refers to a
gentile who is not an idolater only because the wording of the Mishna
is “ȯÎÂ”. This is also the wording in the text of the Rishonim (Rashba,
ed. Y.D. Ilan [Jerusalem, 1986], p.520; Ritva, ed. S. Rafael [Jerusalem,
1995] p.123, has È„Â‰È Âȇ=] È¢‡, non-Jew, see note 222 there]; Rivan,
ed. M.Y. Blau [New York, 1990], p.258; Meiri [New York, 1990],
p.175; Hiddushei Ra’a, ed. H. Porush [Jerusalem, 1988], p.180; The
Rif on Hulin with a commentary in Arabic, ed. Y. Kafah [Jerusalem,
1960], p.72; Hiddushei ha-Ri Mi-Narbona le-Hullin, ed. G. HaCohen
Lazebnik [Jerusalem, 1989], p.87; and so on.) This is also the wording
in the first printed edition (Venice, 1722), and in manuscript editions
of the Mishna such as the Hamburg 169 Manuscript (facsimile edition,
Jerusalem, 1972), p.129 of B. Hullin, etc., while most modern editions
of the Bavli (but not of the Mishna!) the wording is: Ì¢ÂÎÚ or ÌÈ·ÎÂÎ „·ÂÚ
(idol worshipper).
In addition, a close inspection should be made of the distinction made
by R. Estori ha-Parhi in his, Kaftor va-Ferah, ed. Y.P. Grossberg
(Jerusalem, 1959), Ch.20, p.28, between Ishmaelites, who are not
idolaters, and uncircumcised gentiles (ÌÈϯÚ), who are considered
idolaters with regard to rental of housing in Israel, but not for the
purchase of land in Israel prohibited by “ÌÁ˙ ‡Ï”. He also wrote there
(p.28) that the sale of land in Israel to gentiles is permitted in cases
of compulsion (Ò‡) etc, and that perhaps times of difficulty (˙Ú˘
˜Á„‰) are no less than compulsion. Also see the Makhon le-Limmudei
Mitsvot ha-Arets edition (Jerusalem, 1997), sec.1, p.195, n. 189, which
offers the following version, “and the rabbi, Ba’al ha-Ittur, rules like
the Yerushalmi even in a regular case”, which permits the sale of
land in Israel to gentiles even where there is no compulsion. R. Yosef
Blumenfeld also has this version in his edition (New York, 1958), p.315
(without any annotation), and this requires further study. On the status

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DANIEL SPERBER

of the Ishmaelites, see the Makhon le-Limmudei Mitsvot ha-Arets


edition, ch. 5, pp.79-80.
18 This example is based on an excellent, comprehensive article by my
good friend, S.Z. Leiman, “Masora and Halakha: A Study in Conflict”
in Tehilla le-Moshe: Biblical and Judaic Studies in Honor of Moshe
Greenberg (Indiana, 1997), pp.291-306. Much has been written on the
evolution of discrepancies in the text of the Torah. We will mention, for
example: O. Simon’s outstanding article, “Rav’a [R. Abraham ibn Ezra]
ve-Radak—Shetei Gishot le-She‘elat Meheimanut Nusah ha-Mikra,”
Bar Ilan 6 (1968), pp.191-239; M. Cohen, “Ha-Idea bi-Dvar Kedushat
ha-Nusah le-Otiyotav u-Vikoret ha-Text,” in E. Simon, Ha-Mikra va-
Anahnu, ed. A. Simon, (Tel Aviv, 1979), pp.42-68; and more recently,
M. Tsippor, Al Mesira u-Masoret: Perakim be-Toldot ha-Parshanut ha-
Keduma shel ha-Mikra, Tirgumo u-Mesirato (Tel Aviv, 2001), with an
extensive bibliography.
19 Compare with Zevahim, 37b, Menahot 34a, Sukka 6b.
20 Several of them were noted by S. Z. Leiman, pp.293, n. 8.
21 Compare his responsum on ˙ÂÏÎ≠˙ÏÎ in Numbers 7:1, in Teshuvot
ha-Rashba, ed. Dimitrovsky, vol. 1, Jerusalem, 1990, sec. 14,
p.51 (and cf. Beit Yosef, Yore De’a 275 ad fin). See further “Letter of
the Scribe Rabbi Abraham Hazzan and the Dispute Following upon his
Appointment as the Person Responsible for the Sifrei Torah,” Zefunot
11/1, ed. M. Benayahu (Jerusalem, 1971-1977), pp.213-215 [Hebrew].
22 The book Minhat Shai was first printed in Mantua in 1722-1744 and
reprinted in Vienna in 1813, and then in Warsaw in 1843-1845, and was
inserted into Mikra’ot Gedolot. The introduction to this book, Goder
Perets, was first printed in Pisa in 1820, and then in Vienna in 1813,
and printed under the name Mikdash Ya in Pisa in 1819 and in Vienna
in 1873.
23 See Leiman, p.304, n. 37.
24 See She’elot u-Teshuvot ha-Rashba, Makhon Yerushalayim edition,
(Jerusalem, 1997-2001), vol. 7, p.184, n. 21, which deals at length and
in detail with this version of the text. Compare this with what I note in
Minhagei Yisrael, vol. 3 (Jerusalem, 1994), p.16.
25 Radbaz continues, “Therefore, I myself went to the house of the
“proofreader” [the rabbi who “corrected” the Torah scrolls according
to the midrash of Rashbi, see the text of the question there], and I fixed
them and restored the crown of Torah as it had been at first, and in the
rest of the books. And I commanded him not to correct Torah scrolls
according to midrash, rather according to the majority of scrolls, and I
relied on Him, May He Be Blessed, for He knows the secrets of every
heart…etc. See further in Radbaz, vol.3, no. 1200, at the end of the
responsum, where he wrote that the Rashba answered: “that in every
extra or missing vowel which results in halakha, such as…we rely on
the masters of the Talmud, since they have already checked the matter
carefully…etc.” (Apparently, he summarizes the Rashba here and does

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not quote him verbatim.) For what constitutes the majority of scrolls,
see the previous footnote, and Leiman, p.295, n. 16.
26 Compare this with Meiri on Kiddushin 30a: “but in this matter the
Geonim agreed that since the Talmud is drawing a halakhic conclusion,
such as ˙ÙËËÏ and such as ˙ÎÒ· ˙ÎÒ· and such as ÂÏ Ôȇ from which
they learned halakha, see there, we rely on them, on the Talmud.” Also
see his book, Kiryat Sefer, ed. M. Hershler (Jerusalem, 1956), vol. 1,
pp.57-58 (Leiman, pp.199-200).
27 This abbreviated version of the book, Emet le-Ya’akov, by Y. Algazi on
the rules of reading from and writing Torah scrolls, was first published
in Leghorn in 1786. R. Ya’akov Yisrael Algazi’s book was first
published in 1764.
28 This is also R. Ya’akov ben R. Binyamin Ha-Kohen Poppers’ opinion in
She’elot u-Teshuvot Shevut Ya’akov (1741-1742), (Leiman, p.302).
29 The additions are found throughout the book, and alterations and
additions are evident starting with the first section. The division into
chapters of Kesset ha-Sofer is also different than in the first edition, and
it should be noted that there are statements in the second addition that
contradict the Hatam Sofer’s opinion. For example, in ch. 2, sec.12 (in
the first edition), we find the following halakha: “and even if he wrote
at first in black ink, and the ink later deteriorated and turned red, it is
also unfit for use,” with a reference to the halakha in ch. 5, sec. 23,
which reads: “letters and words that have been partially erased, if they
are legible enough that a child who is neither clever nor stupid is able to
read them, it is permitted to write over the letters to improve and renew
them, and this is not considered ‘out of order’, since the letters are
presently fit, and the ink he is adding is only meant to preserve them so
they will not be further erased…etc.” In the second edition, the former
halakha is found in ch. 3, sec. 2, but there is no reference to the average-
child-reader test, since the latter halakha does not appear in Ch.6 of
this edition, where the topic is discussed. It does appear, however, in
ch .9, sec. 9, which reads: “a letter whose ink has faded somewhat, if
it is still sufficiently black, it is permitted to write over it again, and
this is not ‘out of order’, since even now the letter is fit, and he is
only adding ink to clarify it and prevent it from being further erased.
However, if the letter has turned red, or any color other than black,
writng over it does not help, since this is ‘out of order’.” The reader is
referred to Hakira 7, found in Lishkat ha-Sofer, which, as stated above,
was not seen by Hatam Sofer. This halakha is discussed at length there
(pp.54b-55b) including the following statement on p.55a: “therefore,
it seems, according to my humble opinion, that if it is so faded that it
would have been unfit if had been written that way in the first place,
then when it happens afterwards it is also unfit, and writing over it
does not help for tefillin or mezuzah since it is ‘out of order’.” This
conclusion contradicts the opinion of the Hatam Sofer, who writes in
a responsum (Yore De’a 256) that the reason for the Magen Avraham’s
distinction between a defect present in the ink at the time of writing and

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DANIEL SPERBER

a defect which occurs later is that since the letters must be written in
ink, and it is natural for ink to fade and turn reddish over time, faded
ink is still considered ink. Therefore, writing over the faded letters is
effective, while letters which are discolored from the beginning cannot
be repaired, since ink must be black to be considered ink. Thus, we
see that Hatam Sofer distinguishes between original defects and those
which occur later. This was noted by R. Yehuda Horowitz in his book,
Gilyonei Mahari (1991), pp.84-85. (Also compare what he writes there
in his note on Hakira 7 on p.83.)
It is also noteworthy that Hatam Sofer, in his commentary on Hullin
17a, sought to explain R. Sa’adya Gaon’s commentary on Daniel 2:
3 and reached a novel conclusion. He did not know that this section
is an interpolation of a Karaite source into a commentary mistakenly
attributed to R. Sa’adya Gaon. See my comments in Minhagei
Yisrael, vol. 1 (Jerusalem, 1989), pp.149-153, and the important note
by my friend, Professor David Henshke, in Minhagei Yisrael, vol.
4 (Jerusalem, 1995), p.247. He further explained this phenomenon in
his article, “Al Halakha Hitsonit she-Nikhnesah Lifnai ve-Lifnim,” in
Tarbiz 65 (1996), pp.225-229.
30 Hoshen Mishpat, sec. 175, Beit Yosef no. 125.
31 Hilkheta ke-batrai, see above Part I, notes 41, 44.
32 [Leghorn, 1865], in the Klalim section, n. 81, p.120d.
33 R. Y. Nissim explained this on p.33.
34 For more on page-markers (“shomrei ha-daf” or “shomrei gilyonot”;
custodot in Latin) in printed texts, see A.M. Habermann’s book,
Ha-Sefer ha-Ivri bi-Hitpathuto: mi-Simanim le-Otiyot u-mi-Megilla
le-Sefer (Jerusalem, 1968), p.41. For their use in manuscripts, see M.
Beit-Arié, Hebrew Codicology (Paris, 1976), pp.59 and 65.
35 R. Nissim wrote there, in footnote 12: “See the text of the inscription on
his tombstone in Friedberg’s book, Luhot Zikkaron, (Drubitsch, 1897),
p.8. This is also the testimony of the author of Tzemah David, who
was, as is known, one of his students. Indeed, Taz on Orah Hayyim 420
wrote differently: ‘And I heard from an old man who claimed that he
was in Cracow in 5333 (1573) and Rema died on Lag be-Omer’. And
Hida also testifies in Shem ha-Gedolim in his entry that he heard from
his son who prostrated himself on Rema’s tomb in Cracow and said
that he saw the following words written on the tomb: ‘On the thirty
third day of the Omer, the year 5333, thirty-three years old…’ It seems
that R. Avraham Azulai’s memory must have deceived him, since the
tombstone has survived until today and all those who have copied it
write ‘5332’ (Also see Kelilat Yofi by R. Hayyim Natan Dembitzer, vol.1
[Cracow, 1888], p.17b, and the addendum of R. Menahem Krengel in
Shem ha-Gedolim ha-Shalem, p.71b). Also that which he wrote that he
died at thirty-three is certainly a mistake, since we find in his responsa
(no. 10) that he answered his relative Maharam mi-Padua about the
printing of Rambam’s Mishne Torah, and it is known that this edition

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was printed in Venice in the year 1550-5310, and there is no doubt that
he was no longer a youth. And I saw the same thing in the addendum of
the publisher of of Shem ha-Gedolim ha-Shalem there, who wrote that
in the ledger of the Burial Society he was referred to as ‘an old man’
(yashish). The truth of the matter is, apparently, that as R.H. Dembitzer
wrote, that ‘he judged Israel for thirty three years in Cracow’.”
For the text of the inscription see A. Ziv, Rabeinu Moshe Isserlish
(Rema) (New York, 1972), p.201:
The Rabbi, the Geon, the Western Lamp, the great one of the generation,
who is Moshe, Shepherd, Stone of Israel, Moshe was the Shepherd of
the Flock of Israel, he did God’s righteousness and justice for Israel,
spread Torah in Israel, established students for the multitudes of Israel,
and from Moshe until Moshe there has risen none like Moshe in Israel,
and this is the Torah of the sin-offering and the Torah of the burnt
offering, which Moshe placed before Israel, in the year of 5332 here in
Cracow.
As R. Nissim noted, Hida writes in Shem ha-Gedolim, no. 40, under the
heading, “Moharam Isserlish” (Leghorn, 1774):
And now verily I shall say that I heard from my dearly beloved son,
Shield of Avraham at his assistance, who merited visiting the tombstone
in the holy community of Cracow and the following inscription is
written on the tombstone of Moharam: “On the thirty-third day of the
Omer in the year 5333, at thirty-three years old…” All this my dear son
told me who recalled what he saw with his eyes and merited prostrating
himself on their tombstones…
It seems that it was difficult for the son, R. Avraham Azulai, to read the
inscription, since the Burial Society’s inscription in the margin of the
tombstone (Ziv, p.22 according to Luhot Zikkaron, sec. 1) reads:
Many will be dumbstruck and wonder, how at this moment when the
waves of time have surely surrounded me, we have gone from evil to
evil, and also come to dig up the land, and the treacherous water have
almost swept us away, and in an instant a spirit came out before God
and stopped the waves. However, there is no cause to wonder, for
looking on the resting places of the wise-hearted lions, from whose
produce all are satiated, [we see that] it is the merit of the sages and
their Torah which protected us. Behold, thus the leaders of the Burial
Society, a company of friends, seeking for the dead, have risen up and
through the efforts of volunteers of the people those tombstones have
been renewed, so that the memory of those sages may not depart from
their descendants. Renewed in Tammuz, 5554 (=1794). [fig. 14]
Therefore, in 1794 the tombstones were renovated, and Hida’s son saw
them before 1774, when the treacherous waters had washed them away
and it was almost impossible to read them. There is a repetition of the
words “wave-Ï‚” and “heart-·Ï”, which are also the numbers 33 and 32,
respectively, and thus hint at the date of Rema’s death, 33 in the Omer,
and the year of his death, 5332.

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DANIEL SPERBER

The words of Tzemah David


which were mentioned by
R.Y. Nissim are those of
Rema’s student, R. David
Ganz (1541-1613), ed.
M. Breuer (Jerusalem,
1983), p.142; ed. Hominer
(Jerusalem, 1966), p.76:
R. Moshe Isserles is the
perfectly pious one who
enlightened the eyes of the
Diaspora with his books,
Torat ha-Ola, Torat ha-
Hattat and Shulhan Arukh,
and established many
students and spread Torah in
Israel in the holy community
of Cracow for about twenty
years and went up to God in
the year 5332 [=1573].
The printers further confused
the matter of the date of his
death by printing in Darkei
Moshe on Yore De’a, 124:
17: “Long after I had written
this, I found the same thing
in a responsum of R. Levi
Ibn Habib which was printed
in the year 5360 [=1600], Figure 14
sec. 41…” According to this,
Rema was still alive in the
year 1600-5360! She’elot u-Teshuvot ha-Ralbah [=R. Levi ibn Habib]
were first printed in Venice in 1565 (5325), and the second printing was
in 1865 (5625). There is no record of a 5360 printing. Perhaps it should
read 5340, but this date is also incorrect. In the Machon Yerushalayim
edition of Tur, Yore De’a, they note (Hagahot ve-He’arot 65): “The
words ‘year 5360’ are not found in the manuscript edition, and it seems
likely that the words ‘year 5360’ are not words of Darkei Moshe…”
However, they still maintain that Rema died in 5333, and this is
incorrect; he died in 5332. (I checked the Sulzburg edition [1692] of
Darkei Moshe ha-Shalem, sec. 23, and it seems to have 5760/Ò¢˘ ˙˘,
but it is difficult to distinguish between the letters Samech/60/Ò and
final Mem/40/Ì in that printing.)
36 See also what I wrote in my Why Jews Do What They Do: The
History of Jewish Customs throughout the Cycle of the Jewish Year
(Hoboken, 199), pp.128-140, for an instructive example of a custom
resulting from a mistaken understanding of the Yerushalmi text, and

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LEGITIMACY AND NECESSITY: SCIENTIFIC DISCIPLINES AND THE LEARNING OF TALMUD

its subsequent corruptions. Recently, R. Eliyahu Soloveitchik wrote an


important article in Ha-Ma’ayan 43/2 (Tevet 2003), pp.73-78, entitled
“Hirhurim al Mahapekhat ha-Sifrut ha-Toranit ha-Hadasha,” where he
deals with the phenomenon of new scientific editions of basic texts,
such as Rambam’s Mishne Torah (by R. Shabtai Frankel), and Shulhan
Arukh (Orah Hayyim and Yore De’a by Machon Yerushalayim; Hoshen
Mishpat by Morasha Lehanhil; Even ha-Ezer by Makhon Rosh Pina),
the resistance to this “revolution”, its origins, the criticism of this
resistance and the roots of the debate. In the course of an excellent,
probing analysis that shows an understanding of both sides, he
brings quotations from Rishonim to demonstrate their approach to
the critical analysis of the text, such as: Rambam (Malve ve-Love,
16:2):
There are versions of the Talmud in which it is written…and I have
already checked the old versions and I found in them…and I received
part of an old Talmud, written on parchment in the way they wrote
about five hundred years ago and I found two versions of this halakha
in the parchments and in both it is written…and because of this error in
some of the books some of the Geonim ruled…
Ramban’s Milhamot Hashem (Bava Batra, Ch. 8, p.57b in the pages of
the Rif):
After I wrote this, I merited finding this halakha in an original version
of Halakhot, with corrections in the handwriting of the righteous one
(the Rif), May the memory of the tsaddik be a blessing, and I saw that
he wrote the following in the margin…until here was written in that
version. The eye of Our Teacher, may his memory be a blessing, saw all
the deliberations of the later authorities, and he went back and erased
this and corrected Chapter Mi she-Meto in this version…as is written in
the versions of Halakhot…
He also cited what R. Avraham Eliyahu Kaplan wrote in his famous
article on the need for a new commentary on the Talmud (Divrei
Talmud, vol. 1, Jerusalem, 1958, p.19):
Talmudists in western countries make extensive use of the method of
correction of the text according to alternate versions. There are those
who like it so much that they would make it the only method of learning
Talmud. There are also among the sharp-witted, well-versed scholars of
the east those who leave the proper path and go to the other extreme;
they have disregarded the alternate versions too much. This was not
the path of holiness of Our Teachers, the Rishonim, z”l; into the depths
of their analysis of the halakhot themselves they placed the textual
precision of the language of the halakhot. One who desires truth and
justice in interpretation must follow this path.
There is no doubt that this warning is very important for us.

75
INDEX
Ari R. Yitzhak b. Shelomo Luria,
(Jerusalem, 1534 Safed,
1572). Founder of modern
cabala
Arukh Lexicon of the Talmud by R.
Natan b. Yehiel (Rome, c.1035
– 1106)
Bah Commentary on the Tur by
R. Yoel Sirkes (Lublin 1561
– Cracow, 1640)
Be’ur Halakha Commentary to the Orah
Hayyim section of the Shulhan
Arukh by R. Yisrael Meir of
Radun
Beit Yosef Commentary on the Tur by R.
Yosef Karo
Bertinoro, Ovadia Rabbi and commentator of
the Mishna (Italy, c. 1450
– Jerusalem, before 1516)
Darkei Moshe Commentary on the Tur by R.
Moshe Isserles (see Rema)
Derisha, Perisha Commentaries on the Tur by
R. Joshua Falk Katz (Lublin
– Lemberg, 1614)
Yisrael Meir ha–Cohen of Radun Rabbi, ethical writer, talmudist
and posek (Lithuania, 1838–
1933)
Haggahot Asheri See Rosh
Hazon Ish Pen name and magnum opus of
R. Avraham Yishayahu Karelitz
(1878–1953), talmudic scholar,
posek
Hida Acronym of R. Hayyim David
Azulai (Jerusalem c. 1724
– Leghorn, 1807), talmudist,
cabalist and historiographer

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LEGITIMACY AND NECESSITY: SCIENTIFIC DISCIPLINES AND THE LEARNING OF TALMUD

Hoffman, David Zvi Rabbi, biblical and talmudic


scholar, Verbo (Slovakia) 1843
– Germany, 1921
Kenesset ha–Gedola Supplement to the Shulhan
Arukh by R. Hayyim
Benveniste (Constantinople,
1603 – Smyrna, 1673)
Korban Ha’Eda Commentary on the Yerushalmi
by R. David b. Naftali Fränkel
(Berlin, c. 1704 – 1762)
Ktav Sofer Pen name of R. Avraham b.
Moshe (“Hatam”) Sofer (1815–
1871), posek and commentator
Magen Avraham Commentary to the Orah
Hayyim section of the
Shulhan Arukh by R. Avraham
Gombiner (Gombin, c. 1635
– Kalisz, c. 1683)
Maggid Mishne Commentary on the Rambam’s
Mishne Torah, by Vidal Yom
Tov of Tolosa (2nd half of the
14th cent.)
Maharshal R. Solomon b. Yehiel Luria,
Brest–Litovsk, 1510 – Lublin,
1574
Meiri, Menahem b. Shelomo Scholar and talmudic
commentator, Provence, 1249–
1316
Minhat Shai Magnum Opus of Yedidya
Solomon b. Abraham Norzi
(Mantua, c.1560 – after 1626),
masoretic scholar
Mishna Aharona Commentary on Seder Taharot
of the Mishana by R. Ephraim
Yitzhak of Přemysl, 1882.
Mishna Berura Commentary to the Orah
Hayyim section of the Shulhan
Arukh by R. Yisrael Meir of
Radun

77
DANIEL SPERBER

Neziv Acronym of R. Naftali Zvi


Yehuda Berlin (Minsk,
1817 – Warsaw, 1893), head
of the Volozhin Yeshiva,
posek, talmudist and biblical
commentator
Or Zarua Halakhic code and talmudic
commentary by R. Yitzhak b.
Moshe of Vienna (Ashkenaz, c.
1200–1270)
Penei Moshe R. Moses Margolies, Lithuania,
18th cent.
Peri Hadash Commentary to the Orah
Hayyim section of the Shulhan
Arukh by Hizkiya di Silva
(Leghorn, 1659 – Jerusalem,
1698)
Perla, Yeruham Scholar and commentator
(Warsaw, 1846 – Jerusalem
1934)
Rabbinowicz, Raphael Nathan Talmudic scholar, Kovno, 1835
– Kiev, 1888
Rabbeinu Yeruham b. Meshulam Spanish talmudist, 1290–1350
Radbaz Acronym of R. David Ibn
Zimra (Spain c. 1479 – Safed,
1589), talmudist and cabalist
Rama Acronym of Meir b. Todros ha–
Levi Abulafia (Burgos, Spain,
c. 1180 – 1244), talmudist and
cabalist
Rambam R. Moshe b. Maimon,
talmudist, philosopher,
astronomer, and physician;
Cordova 1135 – Cairo, 1204
Ramban R. Moshe b. Nahman,
Spanish talmudist, exegete,
and physician; Gerona, 1194
– Eretz Yisrael, c. 1270
Rashba R. Shelomo b. Avraham Aderet
(Barcelona, 1235 – 1310),
talmudist, halakhic authority

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LEGITIMACY AND NECESSITY: SCIENTIFIC DISCIPLINES AND THE LEARNING OF TALMUD

Rashi R. Shelomo b. Yitzhak (Troyes,


1040 – Worms 1105). Biblical
and talmudic commentator,
Halakhist
Ratner, Dov Baer Lithuainian talmudic scholar,
1852–1917
Rema R. Moshe Isserles, (Cracow, c.
1520 – 1572), rabbi, posek, and
annotator of the Shulhan Arukh
Recanati, Menahem b. Binyamin Italian cabalist and halakhic
authority, late 13th–early 14th
cent.
Rif R. Yitzkah Al–Fasi, Eminent
talmudist, author of the
compendious Halakhot on the
Talmud, 1013, Fez – Lucena,
1103
Ritva R. Yom Tov b. Avraham
Ishbili (Spain, c. 1250 – 1330),
talmudist
Rosh Talmudic compendium by
R. Asher b. Yehiel, Germany
(c. 1250 – d. Toledo, 1328).
Annotated (“Haggahot
Asheri”) by R. Yisrael of
Krems (Austria 14th–15th cent.)
Saadya (b. Yosef) Gaon Gaon of Sura (Dilaz, Egypt,
892 – Sura, 942), talmudic and
biblical commentator, linguist,
philosopher
Shela Magum Opus of R. Yisha’iah
b. Avraham Halevy Horowitz
(Prague, c. 1565 – Tiberius,
1630), rabbi, cabalist and
communal leader
Sherira (b. Hanina) Gaon Gaon of Pumbedita (c. 900
– c. 1000). His famous epistle
traces the development of the
“Oral Torah”
Shulhan Arukh Canonic halakhic code by R.
Yosef Karo

79
DANIEL SPERBER

Terumat ha–Deshen Responsa by R. Yisrael


Isserlein (c. 1490, Ratisbon
– 1460, Neustadt), prominent
posek of his generation
Tif’eret Yisrael Commentary on the Mishna
by R. Israel Lipschütz (1782
– 1860)
Tosafot “Additions”: Critical and
explanatory glosses on the
Babylonian Talmud, mostly of
French or German origin, 12–14th
cent.
Tosefot Yom Tov Commentary to the Mishna
by Yom Tov Lippman Heller
(Bavaria, 1579 – Cracow,
1654)
Tur (or: Four Turim) Halakhic code by R. Ya’akov
ben Asher (d. Toledo, Spain,
before 1340).
Tzelah Talmudic novellae by R.
Yehezkel Landau, (also author
of the Noda Bi–huda)
Vilna Gaon (Gra) R. Eliyahu b. Shelomo
(Vilnius, 1720–1797),
prominent talmudist, biblical
commentator, grammarian
Weinberg, Yehiel Yaakov Talmudic scholar and posek,
Lithuania, 1885 – Jerusalem
1966
Yehudai (b. Nahman) Gaon Gaon of Sura, 760 – 764

80