Taking Precedent Seriously 61
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79.
80.
81.
his Commentary to the Mishnah(Kafich ed.), 47:“The Halakhot of our teacher R. Yitzchak(Alfasi) is the equivalent of all previous(post-Talmudic ) works ... having corrected all their errors. I disagree with his rulings in no more than ten places.”
comparing it to its Talmudic source are likely to misunderstand or misapply that ruling) and 94:5(Rambam “writes as does a prophet[divrey nevu’ah, and this is definitely not meant as a compliment], without accompanying argumentation”).
See Mark Washofsky,“R. Asher b. Yehiel and the Mishneh Torah of Mai monides : A New Look at Some Old Evidence,” in David R. Blumenthal , ed., Approaches to Judaism in Medieval Times, Volume III(Atlanta: Scholars Press, 1988), 147-158.
. Hil. Harosh, Sanhedrin 4:6. 76. 77. 78.
BT Sanhedrin 33a.
Sefer Hameorot to Alfasi Sanhedrin, fol. 12a.
In Katuv Sham, Rabad’s hasagot on Razah’s Sefer Hame'orot, ed. Jerusalem (1990), 198(to Razah, fol. 12a).
[t is uncharacteristic because of Rabad’s reputation for creativity in halakhic
thought. I say“creativity” and not“independence.” The latter refers to the willingness to disagree with one’s predecessors while remaining within the broad outlines of their own understanding of the sugya, while the former signifies new interpretations that blaze new paths in Talmudic understanding. On this view of Rabad, see Haym Soloveitchik ,“Rabad of Posquieres: A Programmatic Essay,” in E. Etkes and Y. Salmon, eds., Studies in the History of Jewish Society... Presented to Professor Jacob Katz (Jerusalem : Magnes, 1980), 7-40. The difficulty, obviously, is that Rabad made a literary career out of departing from the geonic view of the Talmud and the halakhah, just the sort of thing that he apparently condemns in this hasagah. Soloveitchik ’s attempt to reconcile the career with the hasagah(namely, that what Rabad“actually says” is that discarding geonic doctrine is virtually unheard of in halakhic circles; see at 12-13, n. 10) has much affinity with some ideas about precedent that I want to talk about in the next section of this article. It does not, however, close the gap between Rabad the creative halakhist and Rabad the conservative critic of Razah. Perhaps the best we can do is to say that the purpose Rabad set for himself in Katuv Sham is precisely that: to criticize Razah wherever the latter is vulnerable, even if Rabad himself would not proceed in the spirit of that critical note. On the icy personal and literary relations between the two Provencal scholars, see Y. Ya-Shema, Rabbi zerachyah halevy baal hama’or uveney chugo(Jerusalem : Mosad Harav Kook, 1992), 126-149. BT Rosh Hashanah 25b. On the rule yiftach bedoro keshmuel bedoro, see Yisrael Ta-Shema, Halakhah , minhag umetzi'ut be’ashkenaz, 1100-1350(Jerusalem : Magnes, 1996), 67-70. On the other hand, the Sefer Hama'or itself is characterized by its support of judicial independence and by Razah'’s opposition to the tendency to make the rulings of any one halakhic work(in this case, the Alfasi) the automatic standard of legal correctness within the community. See Ta-Shema, Rabbi zerachyah halevy, 58ff.