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Mark Washofsky

104. For example, both Ya'akov and Yehudah, the sons of R. Asher b. Yechiel,

105

106.

understand their father’s comment in Hil. Harosh, Sanhedrin 4:6, as applying the rule hilkheta kevatra’ey to“the sages of one’s own generation”; see Resp Zikhron yehudah, no. 23. It should be noted however, that it is Asher’s sons who use the word batra to refer to their father; R. Asher does not use the word batra to refer to himself.

“Little doubt?” I shudder here to disagree with the conclusions of Professor Ta-Shema(Halakhah , minhag umetzi’ut, 76), whose writings have earned the status of batra on virtually every question of scholarship concerning medieval halakhic literature; see my“Medieval Halakhic Literature and the Reform Rabbi: A Neglected Relationship,” CCAR Journal, Fall 1993, 66-68. Yet I cannot follow him when he says that Isserles applies the rule hilkheta keva tra’ey to the scholars of his own generation. Isserles ’ formulation of this rule in SA CM 25:2 is nothing more than a quotation from a responsum of the fif­teenth-century scholar R. Yosef Kolon(Resp. Maharik , no. 94). And as Yuval (“Rishonim ve’acharonim,” at note 47) demonstrates by way of abundant citations from Kolon’s responsa, the latter includes as batra’ey only those scholars who flourished during the first half of the fourteenth century in Ashkenaz, a period stretching from the redaction of the Tosafot to the calami­ties of 1348-1349. Ta-Shema(p. 60) recognizes this as well. And the quotation gives us no hint that Isserles reads Kolon’s words any differently than did Kolon himself. Similarly, Isserles ’ reference to the rule hilkheta kevatra’ey in the Introduction to his Darkhey Moshe—where he criticizes Karo for not

adopting that rule—also restricts its coverage to such thirteenth and four­teenth-century works as Sefer Hamordekhai, Hilkhot Harosh, and the Tur. As Isserles himself puts it, Karo decides the law“according to the great geonim Alfasi, Rambam , R. Asher, but he pays no attention to the other great schol­ars of Torah , even though(the ones he favors) are earlier scholars(kama’ey) rather than later ones(batra’ey).” It is scarcely imaginable that Isserles would rank his own contemporaries among the“great scholars of Torah ”(revevata adirey torah), a designation customarily reserved for the long departed. R. Shelomo Luria, Isserles ” great Polish contemporary, likewise used the term batra’ey to refer to scholars of the past, although he included more Sefardim within this category than did Isserles ; see Yuval at note 68. The one difficulty with the position I have outlined here is the famous refusal by Isserles ’ teacher, R. Shalom Shakhna, to write a halakhic compendium because others would rule in accordance with that book on the grounds that hilkheta kevatra (Resp. Rema, no. 25; ed. Siev, p. 156b). This might be taken to mean that a con­temporary posek is himself a“latest authority” under this rule. Yet I think it is more plausible that Shakhna had in mind the potential influence his book would exert upon future generations. Isserles , at any rate, gives no indication that his own work enjoys such status; rather, when he decides in accordance with the“ his own generation.

Thus, in the responum cited previously(Resp. Rema, no. 25; ed. Siev, p. 156b), R. Shalom Shakhna refuses to write a halakhic compendium because he does

latest authorities,” he is referring to authorities other than those of

not wish to have the law decided in accordance with his views; rather, quot­ing BT Bava Batra 131a, he holds that“a judge must rule on the basis of what he sees”; i.e., his own reading of the law.