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The argument we have analyzed last week, according to which a certain rabbi was unaware of previous sources, has been used quite often in Halakhic literature, and covering it in this forum is impractical. For those who wish to further study the matter, I am providing some sources in the footnotes[i], and here I will only highlight two twists on that argument, which are surprising when taking into account the stature of the authors of the rejected opinions.

First Twist: The author was not familiar with reality
R. Meir Eisenstadt (1670-1744), aka Maharam Ash, disagrees with Rabbenu Yaakov b. Rabbenu Asher, the author of Arba’a Turim, regarding the blessing on sugarcane. The blessing depends on the question whether sugarcane is eaten in its natural form or only after being processed. Maharam Ash argues that Rabbenu Yaakov was not aware that in its country of origin, sugarcane is eaten raw[ii]. That argument can potentially be applied to any halakhic ruling where ignorance of different circumstances and standards is possible.

Second Twist: The author did not see the primary source
R. Nissim Haim Moshe Mizrahi[iii] overrides the ruling of R.Yisrael Iserlen (1390-1460), in his book Terumat HaDeshen, which is widely used by Poskim.[iv] He argues that R. Iserlen did not see the original text he relies on, but only its reference in a later source, and that had he seen it, he would not have written what he wrote. Almost two hundred years later, another Hakham with the same last name, though not related, R. Shalom Yitzhak Mizrahi (1923-1995), used the same argument against R Yehiel Michel Epstein, the author of Arokh HaSulhan, saying that he had not seen the original words of Nahmanides, on whose opinion he relies[v].

The most powerful use of this argument, however, is found in the seminal ruling by R. Abdallah Somekh (1813-1899), in which he allows the Jews of Kolkata to use the municipal water system for a Mikveh[vi]. R. Somekh rejects the words of R. Moshe Sofer, better known as the Hatam Sofer (1762-1839), who is considered a giant in the field of Halakha, and one of the founding fathers of Jewish Orthodoxy after the emancipation in Europe. While in the previous sources I have presented the contested author was accused of not seeing the original words of a relatively contemporary rabbi, from the 13th century or later, R. Abdallah Somekh argues that the misquoted source here is a primal one. That source is the Tossefta, which is second in authority only to the Mishnah, and which is considered one of the central sources of Oral Law in the rabbinic period. Not only that, R. Somekh writes that the Hatam Sofer erred in his interpretation[vii]:

וכל זה גרם לו להגאון חתם סופר הנזכר משום דלא ראה הדברים בשרשם. שלא ראה התוספתא בשרשה אלא ראה דוקא דברי התוספות יום טוב, ושגג בהם, ואלו היה רואה התוספתא בשרשה לא היה כותב כן כלל

All this happened to the Hatam Sofer because he has not seen the original text of the Tossefta, but rather only the way they were quoted by Tosefot Yom Tov[viii]. Had he seen the original Tossefta he would never have written that.

We are left with the notion that when approaching a Halakhic problem, one should not be deterred by the opinions of previous authors. While treating them with respect and reverence, we are allowed and encouraged to research and reevaluate arguments made in previous generations, and to search for instances of misunderstanding or reliance on secondary sources.

To be continued…

Rabbi Haim Ovadia

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Twists on an Argument Halakha: Behind the Scenes, part 4 — No Comments

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