Taking Precedent Seriously 63
also the reason he chose the Tur as the basis for the commentary rather than the Mishneh Torah,“the most widely-known work of halakhah.” Since the latter presents only one opinion—that of Rambam —on each halakhic question, it would not serve to lighten Karo’s workload. The Tur , on the other hand, already includes many of the opinions which Karo will need to cite.
95. This is meant literally. The texts Karo uses will be sedurim, laid out verbatim
for the reader, rather than summarized.
96.See Menachem Elon , Hamishpat ha'ivri(Jerusalem : Magnes, 1973), 1139ff. 97.See R. Chaim Yosef David Azulai, Birkey Yosef, CM 25, no. 29, for sources on
the antiquity of Karo’s procedure. For a comprehensive description of this tendency, as well as lists of the various“bancs” of poskim that served as the ultimate halakhic authorities in these communities, see Y. Z. Kahana, Mechkarim besifrut hateshuvot(Jerusalem : Mosad Harav Kook, 1973), 8-88, and Ovadyah Yosef, Sefer hayovel larav yosef dov halevy soloveitchik(Jerusalem : Mosad Harav Kook, 1984), 267-280.
98.See Bedek habayit, CM 25, near the end of the chapter:“I say that in our time,
the accepted minhag in our entire region to follow Rambam on all halakhic matters save those over which his words are difficult to understand and to reconcile.” It is significant that this remark follows Karo’s discussion of R. Asher’s endorsement of judicial discretion(Hil. Harosh, Sanhedrin 4:6). That is to say, while Asher declares that a judge may interpret the law as he sees fit, even against the views of the great poskim of the past, Karo notes that“in our region” such is not the practice if the great posek in question is Maimonides.
99.See Kahana, 69-71: according to many observers, Karo’s decisions in the
Shulchan Arukh tend to follow Rambam even in cases where the other two “pillars” of the law, Alfasi and R. Asher, disagree with him.
100. Kahana, 25-28. R. Asher’s opposition, as discussed above, is conveyed in Hil.
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Harosh, Sanhedrin 4:6. It is expressed as well by Asher’s son Yehudah, who criticizes the city of Toledo for adopting a takanah after his father’s death to decide the halakhah in accordance with Rambam except in those cases where R. Asher disagrees; Resp. Zikhron yehudah, no. 54.
.See Resp. Rashba 2:322. 1 find myself in some disagreement with Joel Roth,
The Halakhic Process, 93, on the thrust of this teshuvah, though this disagreement may be more a matter of emphasis than of essence. As I read him, Rashba places a much greater presumptive weight upon precedent than Roth seems willing to concede. Note that the sho’el who submits the question cites the Talmudic principle“a judge must rule on the basis of what he sees” (BT Bava Batra 131a) as an argument in favor of judicial discretion. Rashba , however, is not impressed by this, preferring to see the sages of our time— that is, the rishonim—as the(metaphorical, at any rate) equivalent of the ancient Sanhedrin.
102. Seder Tanna'im Ve’amora’im, ch. 24. See also Azulai, Shem Hagedolim, Sefarim,
samekh.
103. For the two positions, respectively, see Y. Yuval,“Rishonim ve’acharonim,
Antiqui et Moderni,” Zion 57(1992), 369-394, and Y. Ta-Shema, Halakhah , minhag umetzi‘ut beashkenaz, 1100-1350(Jerusalem : Magnes, 1996), 58-78. Menachem Elon , Hamishpat Haivri, 233, shares Ta-Shema’s view, although he makes no mention of the stages by which the rule developed during the medieval period.