Maimonides (1135-1204), known by the acronym Rambam (Rabbi Moses ben Maimon), is a figure the mere contemplation of whom is enough to restore one’s faith in the possibilities of the human spirit and particularly of Jewish tradition and culture. His self-confidence had in it no tincture of arrogance; he was simply and soberly aware of having an enormous task to do, and of possessing the mental and spiritual qualifications to do it. That task was nothing other than the renovation of Judaism, to equip it for the next thousand years or so by setting it in order and making it articulate up to the limits of human self-consciousness.
Since Judaism consisted of two main elements, halakhah and aggadah, or practice and thought, Maimonides produced two major works, one on practice, the Mishneh Torah, and the other on thought, the Moreh Nevukhim, “Guide to the Perplexed.” All his minor works, great as some of them are in themselves, were preparations for these two outstanding compositions. Isadore Twersky, in his meticulously researched study of the Mishneh Torah,1 has illuminated very many things, but the greatest contribution of his work to the understanding of Maimonides is his continual demonstration of the extraordinary unity of the whole of Maimonides’ literary output.
Twersky has distilled many years’ close study of the Mishneh Torah into a wide-ranging yet succinct treatment of such topics as the form, scope, and modes of classification of the Mishneh Torah; its language and style (a subject treated with much originality and wide literary reference); and the differences of method and aim between the Mishneh Torah and the Guide to the Perplexed, even when the two works deal with similar subjects (a fascinating inquiry which demonstrates Maimonides’ subtlety and complexity of mind). Many satisfying solutions to outstanding problems are offered, new lines of research are suggested, and problems are broached to which no satisfactory solution as yet exists.
Twersky is particularly good on the originality of Maimonides’ thought. Codification and classification are not usually regarded as creative forms of literary activity, but Twersky shows how much Maimonides’ philosophical and unifying trend of mind went into the task of bringing luminous order into an apparently chaotic field. With admirable accuracy and scholarship, Twersky shows how Maimonides’ profound rethinking of the whole vast corpus of Jewish law gave it a universality that it lacked in the works of other exegetes and codifiers.
The serene self-confidence of Maimonides in his huge task is shown in the very title he chose for his codification of Jewish law. The title Mishneh Torah, indeed, shocked other scholars by its presumption, for it is the name used by the Talmud for one of the books of the Torah itself, the book of Deuteronomy, which gives a second version of the laws found in the earlier books of the Pentateuch. The title Mishneh Torah has the meaning, “the repetition of the Torah,” or even “the second Torah.” Also, by a bold pun, the title invites comparison with the Mishnah, compiled about 200 C.E. by Rabbi Judah the Prince as a definitive summary of the Oral Law (though the word mishnah itself, with an “a,” means “repetition” only in the sense of teachings committed to memory by the method of repetition).
So Maimonides’ work seems to challenge the Mishnah itself, claiming to replace it or even surpass it as the embodiment of the Oral Law and authoritative companion of the Bible. For this reason, the title Mishneh Torah has not been used by the main body of Jewish scholarship but has been quietly dropped as a kind of solecism. Instead, the name used at first was Yad, meaning “hand,” a word made out of the two letters yod and dalet which together, conceived as numerals, make up the sum of fourteen, the number of the major sections of the work; later, by extension, the title used was Yad ha’hazaqah, or “The Strong Hand,” an honorific expression taken from the Bible. This was one of the many ways in which Maimonides was incorporated into the Jewish tradition while his more explosive and revolutionary aspects were quietly softened or bowdlerized.
To note the “explosive” in Maimonides does not, however, mean that it is correct to think of him as a skeptic or reformer. Twersky scotches firmly the attempts that have been made to portray Maimonides as a double-thinker, expressing sentiments that are correct on the surface while hinting darkly at views destructive of orthodox religion. Maimonides did express alternative views in different works or even in the same work, but in doing so he was fitting his interpretation to his audience or to his context; his divergent explanations are always reconcilable with each other when seen from a comprehensive perspective. It is the very breadth of his concepts which can lead to formulations shocking to the timidly Orthodox, who have adopted a limited view of Judaism that may actually be untrue to its historical scope and subtlety.
The mainstream of Orthodox scholarship has been curiously ambivalent toward Maimonides, and unwilling on the whole to come to terms with the full range of his personality. Maimonides is acknowledged by all as a great halakhist, whose phenomenal knowledge of the whole spectrum of talmudic learning (including its less studied aspects, such as the Palestinian Talmud and the Tosefta) is combined with an unrivaled ability to reconcile difficulties and arrive at brilliant and convincing conclusions. But the philosophical side of Maimonides, the side that produced the Guide to the Perplexed, has been the object of suspicion and even active opposition.
In the Mishneh Torah, in accordance with his aim of providing a practical handbook of Jewish practice, Maimonides does not usually give his reasons for the conclusions which he states in brief codificatory form. But it is possible to arrive at his reasons either by consulting his more diffuse works (especially his Commentary on the Mishnah) and his many preserved responsa—replies to questions on halakhic matters, of which Twersky has made great and profitable use—or by simple reflection. The process of testing Maimonides’ legal expertise, by which his every word has been subjected to searching criticism over the course of centuries, has issued in a healthy respect for the Mishneh Torah on the part of legal specialists. However doubtful they may be about Maimonides’ philosophical interests, which have seemed to them dangerous and unnecessary, they cannot deny that he was a superb halakhist.
While Maimonides never achieved the unquestioning acceptance in halakhic matters that he seems to have desired, from the standpoint of sheer self-consistency and systematic thoroughness he is considered supreme—so much so that in the yeshivas of Eastern Europe it was held to, be almost impossible to discover a contradiction in Maimonides’ legal thought. It became the highest exercise of ingenuity to reconcile a “difficult Rambam,” that is, to show that an apparent contradiction between a Maimonidean decision and some talmudic statement was not really a contradiction at all, since Maimonides had foreseen the objection and had decided the matter in accordance both with his strategy in other parts of his system and with his idiosyncratic interpretation of one matter in its relation to other matters far-flung throughout the talmudic writings. In this sense, the Mishneh Torah achieved a kind of canonical status, offering occasions for many an ingenious discussion which would have been regarded as breaking the rules of the game if it had failed to provide a thrilling solution to the “difficult Rambam” with which it began and ended.
Yet in the same yeshivas, Maimonides’ great philosophical work, the Guide to the Perplexed, was under an unspoken ban, which even applied to the philosophical parts of the Mishneh Torah. For as Twersky shows in some detail, the Mishneh Torah, despite its apparently limited aims, does contain a great deal of philosophy, not only in the opening section, the Book of Knowledge—especially in its first subsection, “Fundamentals of the Torah”—but also more unobtrusively throughout the whole work. There was, indeed, a philosophical temper to everything that Maimonides wrote, but the strict legalists were able to perform an operation in which the philosophy was separated off and ignored. Some piquant illustrations of this tendency are to be found in the Shulhan Arukh (the 16th-century code compiled by Joseph Caro, a work that actually did acquire the kind of practical authority that Maimonides wanted for his Mishneh Torah), which sometimes quotes a passage of the Mishneh Torah verbatim but omits the philosophically-loaded phrase that links it with Maimonideanism in general.
The history of the opposition to Maimonides throughout the ages makes a fascinating story in itself, on which Twersky is able to touch only briefly. It began with the great “Maimunist controversy” of the 13th century, the upshot of which was in fact to make a separation between Maimonides the halakhist and Maimonides the philosopher, the latter to be treated with reserve at best. As time went on, the opposition to Maimonides moved beyond the confines of halakhists, who were mistrustful of philosophy in general as a distraction from talmudic study and as a breeding ground for skepticism, and it developed a philosophical side of its own. It culminated in the brilliant critique of Maimonides by S. D. Luzzato (1800-65) which blamed the rise of ultra-irrationalism, in the shape of the Kabbalah, on the ultra-rationalism of Maimonides.
Luzzato was against both Maimonides and the Kabbalah, seeing them as dangerous and opposed extremes. Yet extremes have a way of meeting, and in important ways Maimonides and the Kabbalah have something in common. Maimonides himself would have rejected such a suggestion with scorn. He knew nothing of the Spanish Jewish mysticism that culminated in the composition of the Zohar, but he was acquainted with earlier specimens of Jewish mysticism such as the Shiur Komah and regarded them as irrational, anthropomorphic, and spurious. Still, to view Maimonides as a dry-as-dust rationalist would be wrong. To him, philosophy itself was a kind of mysticism, because to exercise reason was to partake in a godlike activity and to enter into the mysteries of God’s creation. He thus boldly equated what we would call “science” with mysticism; in this he was followed much later by one of his most distinguished disciples, Spinoza.
Maimonides included a conspectus of scientific knowledge in his code of Jewish law, because the practical duty of every Jew to study the law of God included, in his view, the duty to study at least an outline of science. The outline that he gave in his Mishneh Torah seems today quaintly outdated, being based on an Aristotelian system of concentric spheres. But as Twersky points out, Maimonides admitted disarmingly that there might be much wrong in his outline. He argued that the Jewish tradition once contained books of science which had become lost, and it was therefore necessary to have recourse to the Greek scientists for at least an adumbration of this aspect of Torah; what he was doing was to indicate the space, as it were, in Jewish religion where this knowledge belonged, a space that could be filled as scientific knowledge advanced and the lost was gradually recovered. (Maimonides’ idea of lost Jewish books of science may seem a mere excuse for Jewish inferiority to the Greeks in this respect, yet it was not entirely unfounded, as was proved by the discovery in 1862 of a mathematical treatise by a 2nd-century rabbi, Nehemiah, Mishnat ha-Middot, containing geometrical knowledge that was advanced for its time.)
Maimonides’ justification for his idea that science was at one time a recognized mode of Jewish study lay in his interpretation of two terms found in talmudic writings: ma’aseh bereshit (“the work of the Beginning,” or Creation) and ma’aseh merkavah (“the work of the Chariot,” i.e., the mysteries described in the first chapter of Ezekiel). These were the two focuses of mystical speculation, and were pursued by adepts with great caution and fear of untoward consequences; it was in these very speculations that Elisha ben Abuya, the rabbinical renegade, lost his faith and others lost their health or reason. Maimonides, however, with extraordinary directness, swept away the air of mystery surrounding these studies and declared that ma’aseh bereshit was nothing other than physics, while ma’aseh merkavah was metaphysics, both studies for which the intellect was adequate without mystical or magical techniques.
This identification was of course hotly disputed on all hands, and especially by the advocates of Jewish mysticism, to whom the texts dismissed by Maimonides as crude anthropomorphism were full of sublime truths that could not be reduced to the rational categories of Aristotelian philosophy. The question of anthropomorphism, indeed, is the central one in discussing Maimonides and his critics. For Maimonides the rationalist so exalted reason that it became the only point of contact between the human and the divine. To suggest that there could be any likeness or affinity between man and God arising from man’s body or bodily affections and emotions was, to Maimonides, unthinkable. One of the main tasks he set himself in his philosophical work, the Guide to the Perplexed, was to explain away all the apparent anthropomorphisms of the Bible (for example, references to “the hand of God” or even to God’s “anger” or to His feelings of sorrow, remorse, or love) as metaphors pointing to something in God that was wholly intellectual.
For the kabbalists, such explanations were mere reductivism, taking all the poetry and personal content out of man’s relationship to God. All the biblical passages that Maimonides felt called upon to explain away were seized upon by the kabbalists as the special expression of mystical truth. The anthropomorphisms expressed the kinship between the organs and affections of man’s body and the mystical Body of God. To the kabbalists, man was akin to God not in his intellectual activity (in which indeed man’s limitations became particularly apparent) but in his less conscious bodily being, in which God had etched profound and suggestive symbolisms of His own supra-intellectual Being.
It may even be that Maimonides’ scorn for the human body and his exaltation of the intellect lay behind his decision to provide a comprehensive code of Jewish law in his Mishneh Torah. For there is detectable in his account of his motives in composing this work a certain impatience with the tendency of legal discussion to proliferate and expand so as to occupy the whole intellectual horizon of Jewish scholars. By compressing all this discussion into a handy compendium, he hoped that it would be possible to bypass such endless argumentation and to confine the legal aspects of Judaism to their proper bounds, thus opening the required space within Judaism for the higher contemplative activity of science and metaphysics, in which man approached most nearly to the contemplative activity of God Himself.
Twersky has much of importance and interest to say about the relationship between philosophy and law in Maimonides’ thought. He devotes the largest section of his book to this topic, and to the reactions aroused in other Jewish thinkers by the positions taken by Maimonides. A focal point in this controversy was the interpretation of a certain talmudic passage which seemed to concern the relative status of the different departments of Jewish learning. The passage (Sukkah 28a), in commenting on a tradition that Rabban Yohanan ben Zakkai had studied every “great thing” and every “small thing” in the Torah, says: “‘A great thing’ means the ma’aseh merkavah; ‘a small thing’ means the legal discussions [havayot] of Abaye and Rava.” Abaye and Rava were talmudic authorities of the post-Mishnaic period whose acutely-argued disagreements on halakhic questions were regarded as the apex of Jewish legal science and were the model for the legal subtleties which delighted the school of Tosafists (the successors of Rashi) whose work was roughly contemporary with that of Maimonides. To such Jewish scholars, the havayot of Abaye and Rava were no “small thing” at all, but the very breath of their nostrils. To them, philosophy was no “great thing,” but a wearisome distraction of profitless speculation, diverting the sharp brains of promising young men from matters of solid and lasting importance.
Maimonides, however, seemed to have good talmudic authority for his view that there are more important things in Judaism than legal discussions. Does not the passage just quoted call the havayot of Abaye and Rava a “small thing” as compared with the ma’aseh merkavah? Even if the term ma’aseh merkavah were understood to mean not metaphysics (as Maimonides argued), but mysticism (as the kabbalists maintained), the dictum would seem to assign a subordinate position to the study of the halakhah. Twersky translates Maimonides’ own comment on the matter as follows:
It is not proper to dally in the pardes2 till one has first filled oneself with bread and meat; by which I mean knowledge of what is permitted and what is forbidden, and similar distinctions in other classes of precepts. Although these last subjects were called by the Sages “a small thing” . . . still they should have the precedence. For the knowledge of these things gives primarily composure of the mind. They are the precious boon bestowed by God, to promote social well-being on earth, and enable men to obtain bliss in the life hereafter. Moreover, the knowledge of them is within the reach of all, young and old, men and women, those gifted with great intellectual capacity as well as those whose intelligence is limited.
Maimonides’ remarks about the “small thing” and the “great thing” are in accord with his attitude, expressed elsewhere, toward the practical precepts of mitzvot. The purpose of all these precepts is to prepare mankind, or at least a minority of mankind, for a higher stage of being. This is the root idea behind Maimonides’ explanations of the meanings of the commandments, explanations which he undertook boldly in a spirit of rationalism despite talmudic warnings against such attempts and the deep suspicion of more traditional scholars that explanations would end in merely explaining away. Twersky’s treatment of the topic of Maimonides’ work on the “reasons for the commandments,” ta’amei ha-mitzvot, is extremely thorough and enlightening.
There can be no doubt that the traditionalists’ suspicion of this aspect of Maimonides’ work was justified insofar as he tended to dislodge the mitzvot from their preeminence in Judaism and assign them an honored but subordinate place in the scheme of human perfectibility. They were turned into instruments rather than ends, intended to bring about a world of tranquility and peace of mind in which the true purpose of life, namely, the contemplation of God, could be pursued without disturbance or interruption. Since, however, this latter goal could be attained only by a minority of gifted souls and then only under optimal conditions, for the great majority of mankind the highest aim was simply to fulfill the mitzvot, thus insuring their own future reward and also contributing toward the endeavors of those capable of entering the pardes of metaphysical contemplation.
This elitist and instrumentalist vision was instinctively rejected by those to whom the keeping of the mitzvot was a passionate and ultimate concern. It was also rejected by the kabbalists, who, though sharing Maimonides’ idea of a contemplative elite, saw the mitzvot not as mediate and rational steps toward securing the conditions necessary for contemplation, but as the subject matter of mystical contemplation itself, since every mitzvah was for them a magical act promoting the unity of God and His universe, and symbolizing some aspect of that unity.
How then did the traditionalists cope with the talmudic passage that seems to describe halakhic study as a “small thing” compared with the study of the “work of the Chariot”? How did scholars such as Rashi and the Tosafists, to whom halakhic study was all-in-all, interpret this passage? They denied that the expression was to be equated with the field of halakhic studies as a whole and took it, in context, to mean “minor topics of halakhic discussion arising out of lacunae in the halakhic tradition due to attrition.” As for Maimonides’ view—that the “small thing” referred to is halakhic discussion as such—a typical reaction is that of Joseph Caro (not an opponent but rather a great admirer of Maimonides): “The master wrote what he wished, and would that it had not been written.”
How do we today stand in relation to this controversy between Maimonides and the traditional halakhists? This is a question with which Twersky, by his terms of reference, does not deal, but which his book compels us to face. At first sight it would seem that we are bound to be on the side of Maimonides, with his enlightened demand for a rational understanding of everything in Judaism (though, as Twersky makes clear, he did not base religious faith itself on such an understanding). Can there be any doubt that we must prefer the universalist stance of Maimonides, taking all human knowledge as his province, to the narrow horizons of the Tosafists, confining themselves to the “four cubits of the Law”? Can we possibly prefer the obscurantism of the traditionalists to the all-questing curiosity of Maimonides, by which he anticipated, for example, the methods of modern anthropology in his search for the “reasons of the commandments”? Taking a broad sweep of history, cannot we see Maimonides as representing Judaism at its most confident, positioning itself in the center of human culture, while the Tosafists represent a turning inward, an abdication brought about by the dwindling perspectives of exile and persecution?
All this is undeniable. Yet there is something to be said for the Tosafists, too, even from the standpoint of the modern world, or perhaps especially so. For modernity has not vindicated Maimonides’ view of science and metaphysics as the way to the contemplation of reality, or God. On the contrary, science has come to be considered more and more practical in aim and orientation, its “laws” or hypotheses being not reflections of ultimate reality but temporary assumptions adopted as a framework or network of observations and lasting only so long as practical consequences of utility are seen to flow from them.
At the beginning of modern thought stands the giant figure of Immanuel Kant, whose view was that reality is not to be found in the categories of science or metaphysics (which merely reflect the articulations of the human mind), but in the deliverances of the human conscience, and in the sphere of human action and morality. In this view science itself achieves validity not by pointing to a reality above and beyond the petty sphere of human action (as philosophers of the ancient and medieval world held), but as the handmaid of morality, giving to mankind new practical options but in no way instructing in their use or pointing to a sphere of being beyond their use. Man as moral agent is in touch with reality; man as scientist or metaphysician is merely exploring the parameters of his own mental constitution.
This was Kant’s message, and it was seized on by modern Jewish thinkers like Hermann Cohen as bearing out what Judaism had always stood for (though Kant himself never understood that Judaism was the greatest exemplar of his doctrines, and indeed stigmatized Judaism as an example of pre-moral “heteronomy”). But Kant’s demotion of science and apotheosis of morality was also a belated vindication of the traditional halakhists in their controversy with Maimonides. For the traditional halakhists, rejecting the Maimonidean ideal of the contemplation of God through physics and metaphysics, and insisting instead on the biblical injunction, “know Him in all thy ways” (Proverbs 3:6; i.e., through deed and action), gave centrality to the ancient Jewish morality which regarded human decision and action as the most solid of all realities, and devoted to it the same serious consideration and intellectual fervor that the Greeks gave to their theories of substance, form, and geometric and atomic structure.
It may be objected to this account of the traditional halakhists as Kantian philosophers that they were concerned in much of their activities with matters of ritual law (kashrut, Sabbath and festivals, and ritual purity) which would not have been recognized by Kant as belonging to the sphere of morality at all. To this more than one reply may be given. First, there is another area, apart from the moral, to which Kant gave ontological status, and that is the area of the aesthetic. To live and act morally is to approach reality, but there is also such a thing as living with style. Now, the Jewish ceremonial laws belong in a certain sense to the aesthetic or poetic side of life, comprising as they do a stately and ordered pattern of the seasons of the year, of the stages of individual life from infancy to old age, and of the permutations of the “raw and the cooked” in eating, sexual intercourse, communal interchange, and all the other aspects by which human communities differentiate themselves and achieve identity.
This area does not share with morality the attribute of formal universality that might seem essential to the real, yet its very particularity makes up some of the paradox of art, by which what is most specific achieves universal value (as when a novelist writes a work of lasting importance by catching the flavor of his birthplace). It is important to note that Judaism expressly refuses to claim universal validity for its ceremonial laws; yet this very refusal to impose a single style on humanity can now be seen (after the era of imperialist religion has ended in thorough disillusion) as a religious pluralism that is itself a subtle form of universalism—a recognition of the right of mankind to develop a diversity of cultures.
Second, and even more significantly, it may be urged, in the light of modern psychological approaches to religion, that the area of ritual and ceremony lies in some sense at a deeper level than either ethics or theology. Through expiation, sacrifice, and taboo, rituals represent a dramatic acting-out of deep fears involved in basic acts of human daring, such as the raping of Mother Earth in agriculture, the killing of animals for food, or the assumption of parental responsibility in the administration of a state. Ways of coping with these fundamental fears differ in different societies, but the total symbolic system comprised in a ritual pattern may express a particular society’s orientation more profoundly than the more conscious systems of law and theology that are built up by rational processes. In addition, in Judaism, ritual has always given voice to a special sense of closeness to God, with whom the Jews “stand on ceremony” both by developing rites expressive of love and in a more negative way (when it is feared that God’s special love may be turning into disappointment) by multiplying anxious observances of respect in the manner of favored yet apprehensive courtiers in the palace of a touchy king.
Jewish mysticism has always sensed the power and profundity of the ceremonial system and has sought to revive its primitive meaning in daring and poetic ways. Jewish rationalism, by contrast, of which Maimonides is the supreme exponent, has adopted a different approach. On the one hand, it has tended to dissolve the ceremonial into the moral, by seeing ceremonies as a form of moral preparation or conditioning: the inculcation of habits of orderliness, decorum, respect, and amiability. On the other hand, it has regarded the primitive and irrational character of some of the ancient ceremonial laws as a concession to the primitive and irrational side of humanity, which could not be eradicated at one blow. For Maimonides, humanity had to be led gradually toward more rational forms of expression. His attitude toward the sacrificial system associated with the Temple, for instance, which he considered a necessary but preliminary stage on the way to something higher, gave great offense both to the kabbalists, for whom the sacrifices were deep and eternal mysteries, and to the traditional halakhists, for whom the sacrifices were simply part of the declared word of God, not to be explained or explained away but understood in all its legal minutiae.
Maimonides can thus sometimes be convicted of a certain superficiality in his treatment of ritual law. For example, he explained the awesome expiatory rite performed on the discovery of the corpse of a person murdered by an unknown hand as merely a form of publicity intended to expedite the identification of the murderer. This is both prosaic and inadequate. Yet he was a pioneer of historical method in seeing certain ceremonial laws as adaptations of pagan ritual, either positively, as in the sacrificial laws, or negatively, as in the prohibition of “cooking a kid in its mother’s milk.” Both positive and negative adaptations he viewed as means of weaning a people away gradually from primitive obsessions, either by a prohibition against customs similar to pagan rites or by new rites in which the pagan fixation was given a more rational direction. There can be no doubt that such considerations played a part, in historical fact, in the development of biblical ritual: for example, in the substitution of animal for human sacrifice, and notably, in the laws of ritual purity. The movement toward sublimation and rationalism has indeed been part of the continuing historical process of Judaism, and Maimonides was in tune with this process; though he was not in tune with the opposite process, also historically evident in Judaism, by which elements of pagan psychology were retained and even revived in a form consistent with the ultimate dominance of reason.
Maimonides’ quarrel with the traditional halakhists is thus a very complex controversy, in which there is much to say on both sides. On the one side we have lofty universalism, philosophical breadth, and a sense of historical development; on the other, we have a love of the articulations of human life and problems, and a conviction that God is to be found not in mathematical or metaphysical abstractions but where justice is done, where the weak are supported against the strong, where temptations are overcome, where the commandments of the Covenant are obeyed. On the one side, we have a vision of the steady, gradual transcendence of the weakness of the flesh (all allowance being made for the difficulty of the process), until, in a state of bodiless intellectuality, communion with the Divine is attained. On the other side, we have a vision which does not rise above the conditions of living as we know it, but which sees in the very imperfections of the flesh, and in the struggle to mold them into a shape both ethically and aesthetically pleasing, the artistic task set to man by God—just as the sculptor would not be glad to be deprived of the brute matter from which he shapes his art.
A striking saying in the Pirkei Avot, paradoxical though it sounds, would never seem alien to the traditional halakhists, though it might fall harshly on the ear of Maimonides: “Better is one hour of repentance and good deeds in this world than the whole of the world to come.” Maimonides was more at home with the continuation of the saying: “. . . and better is one hour of the tranquility of the world to come than all the life of this world.” Yet the two parts make one saying, and are incomplete without each other.
We may now ask how Maimonides’ difference from the traditional halakhists is reflected in the design of his great halakhic composition, the Mishneh Torah. Despite their admiration for this work, the halakhists were most uneasy not only about its philosophical aspects, but about its pretensions to be definitive in the region of halakhah. Why was it that Maimonides in general declined to give reasons for his decisions on complicated halakhic questions which had exercised the greatest legal minds since the close of the Talmud? Did not this superb arrogance show that Maimonides intended to bring the era of halakhic dispute to an end, substituting for the customary give-and-take of halakhic discussion a monolithic consensus based on his own ipse dixit?
Maimonides’ motives in making the Mishneh Torah into a book of oracular decisions are fully discussed by Twersky. He shows that the codificatory form as used by Maimonides had respectable antecedents and filled a real need; that the suppression of cluttering detail in fact helped to bring out the main structure of the law, and was thus a contribution toward understanding the rationale for the law; that Maimonides himself was far from seeking to be an oracle, and planned to write a companion volume to the Mishneh Torah specifically for the use of advanced scholars, giving the sources and reasons for his decisions; and (a point developed in fascinating detail) that the Mishneh Torah finds room for a surprising amount of non-codificatory material in the way of anecdotes, statements of personal preferences, citing of multiple opinions and variant customs, and hortatory devices directed toward the emotions of readers, all of which does not amount to a blurring of the basic codificatory form but is enough to humanize the work and rescue it from being a dry-as-dust law book.
Nevertheless, it is still permissible to note that Maimonides differed significantly from the traditional halakhists in his attitude toward discussion and difference of opinion in halakhic matters. On the whole, the halakhists enjoyed disagreement. It provided opportunities for sharpening their wits, for scoring points against rivals, for making new discoveries, and generally for participating in an intellectual game which was religiously sanctioned and approved, being melekhet shamayim, the “work of heaven.” Maimonides, by contrast, despite his own consummate mastery of the game, found the endless sparring inconclusive and wearisome. He was prepared to admit that some points were bound to be subject to argument, but on the whole, he thought, there must surely be an end to controversy, a general settlement of outstanding issues, and a release from legal conundrums, so that the mind could be freed for more important things—for the “great things” of the ma’aseh merhavah as opposed to the “small thing” of the “discussions of Abaye and Rava.” Taking all possible qualifications into account, it was this general settlement and truce to argument that the Mishneh Torah was intended to embody.
This difference in temper between Maimonides and the traditional halakhists really reflects a difference in the Talmud itself. Many talmudic passages support the view that differences of opinion among scholars are to be deplored; that such differences were not part of the original practice of the Torah but arose through degeneration or troublesome times, which causes the truth to be forgotten and dissension to take its place. Yet even more numerous texts actually glorify the process of disagreement: for example, the famous passage in which a voice from heaven blesses both the warring houses of Hillel and Shammai, saying, “Both are the words of the living God”—giving the preference to the house of Hillel precisely because it was more inclined to accede in argument and thereby show a less dogmatic, more dialectical spirit. The apotheosis of argument and disagreement is found in those talmudic stories that depict God Himself engaged in argument on halakhic matters with the members of His heavenly academy (even, on one occasion, having to send for a corporeal expert from Babylonia to settle the dispute).
Those who regard the halakhah as the supreme science do not believe that it can ever be permanently settled, any more than a mathematician wants or expects to find a final equation that will wind up the whole discipline of mathematics. Now this readiness to face infinite disagreement can certainly lead to inconclusiveness and untidiness in practice, but it also means that the law is flexible, ready to meet new circumstances, while the opposite urge to codification and finality can lead to an undesirable freezing. The desire for unity and rational comprehensiveness that characterizes a thinker like Maimonides can lead to a synthesis that is doomed to obsolescence by its own definiteness.
Codification and proliferation may indeed be considered necessary and complementary aspects of the development of Jewish religion. After all, the Bible itself was a codification of a mass of heterogeneous oral material; and no sooner was the Written Law composed than it immediately and inevitably gave rise to an Oral Law, balancing and softening the rigidity to which all written formulations are subject. Codifications tend to take place at times of crisis, when the living body of oral transmission is threatened. This is true of the Bible, collated and canonized in the wake of the Assyrian invasion and the loss of the Northern Kingdom. It is true also of the great codification of the Mishnah, in the wake of the defeats by Rome and the loss of sovereignty. Maimonides’ code too arose from a deep sense of insecurity and fears for Jewish continuity, as he himself plainly says in his preface to the Mishneh Torah.
Yet there is also a natural rhythm by which a tradition spreads itself in luxuriance and then requires to be tightened into viable form. While the opposition of the traditional halakhists to codification can be seen as a laudable desire for fluidity and a resistance to over-rigid formulations, it cannot be denied that formlessness too has its dangers. The Tosafist tradition can lead to a kind of obsessional indecisiveness, making ever more subtle legal distinctions and raising ever more wire-drawn questions, until the purpose of law, which is to act as a guide to action, is lost sight of. There are thus times when the progressive thing to do is to cut the Gordian knot and come out with a series of clear-cut decisions in the form of a code. In its historical context, the Mishneh Torah was undoubtedly such a progressive force, and a renewal of a Judaism that had become formless. The only question is whether the means by which it achieved such clarity of form might eventually inhibit the further growth and vitality of Jewish law.
To help answer this question I sought in Twersky’s book, but did not find, some account of the principles by which Maimonides decided what the law actually and finally was, in the welter of conflicting authorities of talmudic and post-talmudic times. This is a highly technical matter, and may have been omitted by Twersky for that reason. Yet I wish he had devoted a considerable section to this subject, since nothing could better reveal Maimonides’ attitude toward the sources of disagreement and the possibility of finality. Such a treatment would also have thrown much light on the relevance of talmudic law to our own day.
The Talmud itself usually does not give an explicit ruling on disputed legal points but is content to explain and discuss the views of the disputing authorities. It seems more concerned to show that each rabbi has a consistent and plausible position than to decide which is right or which should be followed in practice. But the Talmud does have certain guidelines by which a determination can be made between competing authorities, such as the famous rule that when Rav and Samuel disagree, the halakhah is according to Rav in ritual matters and according to Samuel in civil matters. Such rules, however, are not adequate to decide more than a proportion of disputed cases (and even then, there is always the possibility that some of the rules themselves may be subject to talmudic dispute). Consequently, it is necessary for a decisor (posek) to invoke a number of post-talmudic rules, such as the one that (after a certain date) later authorities are to be preferred to earlier authorities, a rule which (combined with other factors) has the important corollary that the Babylonian Talmud is to be given preference over the Palestinian Talmud (Yerushalmi).
These post-talmudic rules—a convenient summary of them can be found in the Talmud Encyclopedia (Hebrew) under the heading “Halakhah”—are themselves subject to a number of queries. Who decided that they should be binding? What if there is a dispute among post-talmudic authorities (as frequently happens) about the scope or application of one of these rules? Once a decision is finally arrived at and accepted in practice, what about the rulings that have been rejected? Are they consigned to the limbo of forgetfulness, or do they retain some kind of legal force, so that in certain circumstances they can be resuscitated? In other words, how final is a final decision; can it be reversed in certain circumstances? If final and irreversible, what constitutes this finality? Is it the authority of the decisor, or is it the consensus of “all Israel,” or possibly the authority of “custom,” by which a law achieves sacrosanct status merely by the passage of time?
The views of Maimonides on these questions would make a deep and important study. As an approximation, one can say that, on the one hand, he showed a bold independence of method in arriving at his own decisions, but, on the other hand, he threw his weight in the direction of making decisions, once arrived at, irreversible. He often ignored the rule concerning the primacy of the Babylonian Talmud, following instead the Palestinian Talmud or even Tannaitic works other than the Mishnah. As for the Geonim, the successors in Babylonia of the rabbis of the Babylonian Talmud, he treated them very often in a cavalier fashion, and certainly did not regard them as having any authority superior to his own. Thus he showed an admirable flexibility in his own handling of the rabbinic material and a refusal to be bound by rule-of-thumb methods that would substitute mechanical decisions for ones based on a fresh appreciation of all considerations involved.
Yet on the whole he did not side with the perpetuation of such methods in the future. He wanted his Mishneh Torah to put an end to the era of independence of thought in halakhic matters and to act as the definitive solution of outstanding halakhic problems, so that the minds of Jewish intellectuals would be freed for meta-halakhic matters. If he had succeeded in his aim, he would have made Jewish law monolithic.
A significant aspect of Maimonides’ stance is his attitude toward the minority opinions of the Talmud itself. It is a perpetual question why the Talmud and rabbinic literature generally are never satisfied with handing down decisions, but always record the arguments that took place, giving loving care to the exposition of opinions that are never adopted in practice. The Talmud itself asks why this is so, and offers several answers, one of which is that a minority opinion may on some future occasion act as the basis of a new halakhah (Mishnah Eduyot 1:5). Maimonides records this point in his code, and explains that the apparently contrary ruling of the Mishnah—that no decision of a Sanhedrin may be reversed except by a Sanhedrin “superior to it in both wisdom and numbers”—applies only to the reversal of a special enactment (gezerah), not to a decision on a point of law.
This would seem a matter of tremendous significance for the flexibility of Jewish law; it means that a minority opinion expressed in the Talmud retains such force that it can always be used for the enactment of a new law (that is, by a properly constituted Sanhedrin). There is no doctrine in Judaism comparable with the Catholic doctrine of the infallibility of the Church. No ex cathedra pronouncements exist that can never be declared wrong. Although the authority of the Talmud is supreme, the Talmud declares no unequivocal party line, but consists of a series of arguments one of which may be provisionally adopted while all the others remain alive. This being so, the continued vitality of talmudic law is assured.
Yet Maimonides himself did not draw this conclusion. The era in which a decision of one Sanhedrin could be reversed by a subsequent one ended, according to him, with the redaction of the Talmud. After that, by a “decision of all Israel” (when and where, he does not say), the upshot of the talmudic discussions became final and irreversible law. And where is this “upshot” to be found? Naturally, in his Mishneh Torah. So the aim of the Mishneh Torah in the last resort is to end the debate and clear the decks once and for all.
This aim, by another “decision of all Israel,” was not allowed to succeed. Though, in theory, everyone agrees that the Talmud is binding for all time, there has always been resistance to the view that the “upshot” can be set down in final and irreversible form; moreover, respect for the Talmud means that even its dissenting views have to be allowed some force. It is, thus, Maimonides’ actual practice and spirit in the Mishneh Torah rather than his aim at finality that are his legacy to later generations, including our own. A universalism that sees Judaism in the context of world culture, and also as comprehending the full range of mankind’s moral, ritual, and political behavior, is the enduring bequest of Maimonides and of his masterpiece, the Mishneh Torah.
1 Introduction to the Code of Maimonides (Mishneh Torah), Yale University Press, 641 pp., $40.00.
2 I would prefer the translation, “to enjoy the bliss of the pardes,” since the Hebrew le-tayyel (“to stroll”) carries no pejorative meaning (such as is suggested by “dally”), being derived from a talmudic passage (Sanhedrin 102a) depicting the righteous “strolling” in the company of God in the Garden of Eden in the world to come. The word pardes, meaning “garden” or “paradise,” is the Talmud's term for mystical (or, as Maimonides would have it, philosophical) studies. (See Hagigah 14b for the danger entailed by such studies.)