The Gra's Teaching on Halakha and Custom

 

 

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This shiur is dedicated in memory of Israel Koschitzky zt"l,
whose yahrzeit falls on the 19th of Kislev. 
May the world-wide dissemination of Torah through the VBM
be a fitting tribute to a man whose lifetime achievements
exemplified the love of Eretz Yisrael and Torat Yisrael.

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I. INTRODUCTION

 

            As we know, the Gra was first and foremost an extraordinary Halakhist. It stands to reason that the Gra's methods of halakhic decision-making were shaped in light of his one-of-a-kind personality and the unique manner in which he developed into one of the greatest Torah authorities in Israel. In this shiur we shall examine these issues.

 

            The Gra's early biographers summarized the manner in which he grew into a great Torah authority, saying:[1]

 

From his youth he did not gain wisdom and understanding and Torah from a rabbi or teacher, and builders did not toil with the pure soul of this righteous man, and they had no part in the preparation of his greatness. His might was his own, he was lofty all by himself, holy from the womb. From the dawn of his childhood, wisdom and knowledge raised him like a father… Like a spring he grew strong, overflowed and passed through, and not from a rabbi or friend.

 

The Gaon of Vilna did, of course, have teachers. For example, when he was a child he studied with the author of the "Penei Moshe" commentary to the Yerushalmi. The common impression, however, among his contemporaries is that in a very short time there was nobody capable of teaching him. Thus, the assessment is that the Gra did not have any mortal teachers. He was "holy from the womb"; he learned Torah by himself, directly and without mediators. "Hs entire genius was exclusively his own."[2] As was noted by the author of "Aliyot Eliyahu," this stands in absolute contradiction to Chazal's assertion: "One who learns on his own cannot be likened to one who learns from his teacher." This statement of Chazal is not valid in the case of the exceptional greatness of the Gaon.

 

It is easy to see how this fact underlies two of the Gaon's ideas about Torah study: On the one hand, extreme independence that precludes subordination to the views of Torah authorities of earlier generations; on the other hand, the importance of connecting every particular of Halakha to its ancient source in the words of Scripture or Chazal.

 

These principles led the Gra to a policy with particular characteristics in the realms of Halakha and customary practices. His method of halakhic decision-making, like his collection of specific rulings, highlight the connection between these two connected tendencies: On the one hand, a reconstruction of the original talmudic Halakha, and on the other hand, a disregard of accepted custom whenever it deviated from the plain sense of the talmudic text. In the coming shiurim, we shall acquaint ourselves with the halakhic world of the Gaon of Vilna. We will be accompanied by the following questions: With which halakhic positions did the Gra disagree, and against which accepted customs and practices did he object? Why did he do so, and how strongly? We shall also discuss the issue: Were his views, at times revolutionary, accepted by the community at large? But first we must familiarize ourselves with the world of customary practices that the Gra encountered. This world is the result of spiritual and cultural movements that took shape and struck roots over the course of centuries.

 

II.         "GO OUT AND SEE WHAT THE PEOPLE ARE DOING"

 

            Accepted custom was always one of the most important foundations of halakhic decision-making. In two places in the Babylonian Talmud (Berakhot 45b; Eiruvin 14b) we find that the law was decided on the basis of the rule: "Go out and see what the people are doing." The posekim turned this guideline into a broad and general principle. The Rivash (Responsa, no. 58) writes: "And the great principle governing any law that is in doubt is 'Go out and see what the people are doing.'" The source for this is the Yerushalmi (Pe'a 7:5, and elsewhere) in the name of Rabbi Yehoshua ben Levi:

 

If the application of a law is in doubt in the courts, and you do not know what its nature is, see how the people act, and do the same.

 

            Attention should be paid, however, to an important development in this regard. Even when the Yerushalmi proposes that customary practice should serve as a general rule for halakhic decision-making, it does so only in situations where "the law is in doubt." That is to say, in cases where based on the ordinary rules of decision-making, it is difficult for us to reach an unequivocal conclusion. In such cases, asserts the Yerushalmi, common practice resolves the doubt. A famous example of this is found in Pesachim 66 in a passage dealing with Pesach eve that falls on Shabbat. As we know, the offering of the Paschal sacrifice sets aside the prohibitions of Shabbat. But if, for example, they forgot to bring a knife with which to slaughter the animal before Shabbat, there is a problem. For carrying a knife in the public domain is merely a preparatory act that enables the offering to be brought, and therefore it does not set Shabbat aside. The Halakha in this case had been forgotten, and Hillel decided the matter based on the customary practice that the community had accepted: to bring the knife in an altered manner, stuck into the animal's wool.

 

But what should we do in a case where the Gemara had reached a clear conclusion, only that the community had accepted a custom that contradicts the plain understanding of the sources? There is no precedent in the words of Chazal to indicate that the common practice should be adopted in such a situation. It is also difficult to imagine that the community can simply disagree with what emerges from the sources. But nevertheless, the rule of "Go out and see what the people are doing," was seen as valid in many such cases. The posekim understood that it is impossible to decide against the Talmud, but they "reconciled" the common practice with the sources, interpreting the latter in such a way that they do not contradict the accepted custom. This despite the fact that based on the sources themselves, we would never have considered such a solution.

 

III.        AWARENESS OF CUSTOMS AMONG ASHKENAZI JEWRY

 

            The truth is that on this point there was always a difference between the Jews of Ashkenaz and the Jews of Sefarad. The Posekim in Ashkenazi communities related to ancient customs with great respect, and were careful to take them into consideration when they came to issue rulings – of course, alongside their profound commitment to the written law. A similar attitude toward customs is not found among their Sefardi colleagues.

 

            This difference can be explained in various ways. One approach emphasizes the source of Ashkenazi customs – Ashkenazi customs have a strong and ancient source the value of which is not inferior to that of the Babylonian Talmud. This was not true of the customary practices of Sefardi Jewry, which developed naturally over the course of years. Therefore, in a case of contradiction, the Ashkenazi posekim aspired to reconcile the custom with the law, even at the cost of veering from the simple understanding of the words of the Gemara. In order to explain this, we must go into further detail regarding these two communities and their cultural-religious roots.

 

            Medieval Sefardi Jewry maintained a cultural continuity with the Torah centers in Babylonia. In the heart of Babylonia sat the Gaonim, who expressed through their activity the continued hegemony of the Babylonian Talmud. In the Middle Ages, the East and North Africa were tightly bound by commercial and transport connections, which the Gaonim exploited in order to spread the rulings of the Babylonian Talmud throughout the Moslem-controlled world – by way of talmudic commentaries, responsa and halakhic codes.

 

            In contrast, Ashkenazi Jewry was founded by immigrants from Italy, who were invited by the German rulers to settle in their land, based on the hope that they would prove useful in developing trade and the economy. Italy was outside the sphere of influence of the Baghdadi caliphate. It was part of the Byzantine expanse to which Eretz Israel belonged as well. In many senses, the customs of Eretz Israel took root in Ashkenaz through this "Italian bridge." This heritage took shape before the authority of the Babylonian Talmud became solidified. Even after that Talmud turned into the primary halakhic source, many of the ancient practices continued to survive alongside it. From here was born the tendency of the Ashkenazi Rishonim to justify ancient customs, and to reconcile them with the written halakhic sources.

 

IV.       ASHKENAZI PIYYUT

 

            I wish to illustrate this phenomenon by way of piyyut – one of the most prominent features of Ashkenazi spiritual life. During the sixth and seventh centuries, piyyutim were composed in Eretz Israel which were integrated into the Shabbat and holiday liturgy. This creative outburst captured the hearts of synagogue-goers in Eretz Israel, but there was sharp opposition to this practice in Babylonia. Various arguments were raised against these new additions that were introduced into the liturgy. Among other things, it was argued that some of the content of the piyyutim was erroneous from a halakhic perspective, and that their recitation constituted a forbidden interruption of the prayers and blessings. But the underlying issue was the fundamental reservation about such a novel and extreme change in the liturgical order established by Chazal.

 

How can anyone imagine setting aside a blessing or prayer of the prophets, and taking for himself the words of any person, be he prominent or insignificant, and add words of piyyutim or words of praise before God not in their proper time. As our Rabbis have said: One who sings God's praises excessively is uprooted from the world. And furthermore: One who says Hallel every day curses and reviles.

 

            These are the words of R. Yehuda ben Barzilai in his book, Sefer ha-Ittim (173), and they express the traditional position of eastern Judaism.

 

            As stated above, however, in Eretz Israel piyyutim were an integral part of synagogue life, and became a prominent feature of its spiritual culture. There was, indeed, a certain deviation from the written halakhic norms – that which raised the concerns of the Gaonim in Babylonia. The culture of piyyutim flourished also in Italy, and later in Ashkenaz. The Ashkenazi authorities recited the ancient piyyutim and composed new ones. Great effort was also invested in the study of piyyutim. Commentaries to the piyyutim were written in Ashkenaz so that the congregation would understand both their plain sense and also the allusions, which were frequently connected to various midrashim.

 

            Rabbeinu Tam wrote a long responsum in which he defended the ancient practice. His words are cited in R. Tzidkiya Ha-Rofe's Shibbolei ha-Leket (no. 28). He argued that the halakhic "errors" in the piyyut literature can be resolved based on the assumption that they reflect the practices of Eretz Israel, and not the conclusions of the Babylonian Talmud. Some of Rabbeinu Tam's words are dedicated to the glorification of one of Eretz Israel's greatest paytanim, R. Eliezer ha-Kalir. Rabbeinu Tam argues that we are dealing with an ancient Sage from the Talmudic period, and that it is even possible that he should be identified with the Tanna, Rabbi Elazar ben Rabbi Shimon. So too Rabbeinu Tam rejected the argument that the piyyutim constitute an interruption of the service or invalid alteration of the prayer text. Hence, piyyut had critical significance with respect to the world of Halakha. If piyyut is a favorable and positive phenomenon, then we should relate to the early piyyutim as authoritative on the halakhic level as well. The conclusion that rises from this is that there is room to establish norms for observing the mitzvot that are not based exclusively on the Talmud.

 

            In light of this, it is not surprising to find that the Ashkenazi authorities noted the positive significance of the piyyutim, and even based themselves on sources from Eretz Israel that deal with the issue. Against the fundamental argument put forward by R. Yehuda ben Barzilai, that one should not add to the fixed prayer formulas, the author of the Shibbolet ha-Leket (ibid.) cites from Midrash Bereishit Rabba: "For each and every praise with which Israel praises the Holy One, blessed be He, He rests His Shekhina upon them." He also brings the words of the Pesikta, which praise Israel who on festival days "enter the synagogues and batei midrash and add prayers and add [recitations about] the sacrifices." These supports are midrashic, and they were written – as were most of the midrashim of that period – in Eretz Israel. We saw earlier that when "Sefer ha-Ittim" disqualified additions to the liturgy, he cited passages from the Talmud, such as "One who says Hallel every day curses and reviles." The spiritual culture in Babylonia focused on the study of Halakha based on the Talmud. Whereas that of Eretz Israel assigned at least equal importance to the piyyutim which were recited in the synagogues, and to the world of midrash which relates to feelings and imagination.

 

            Granting piyyutim entry into the liturgy involved the acceptance of two fundamental principles. First of all, respect must be shown to the customs and traditions of our forefathers, even if we do not know their source in talmudic literature. And furthermore, piyyut is not only an ancient practice – it is an on-going creative endeavor. If we accept the importance and value of piyyut, it follows that even Jews of later generations are permitted to compose new piyyutim, and indeed such piyyutim entered into the liturgy. What may be concluded from this is that even practices that continue to be created each day anew have weight in the establishment of the norms of spiritual life.

 

            To summarize, whereas the spiritual outlook of Babylonian and eastern Jewry in the Middle Ages is talmudic, halakhic, unified, centralized and authoritarian – the world of Eretz Israel is more personal, creative, emotional and spontaneous. This world recognizes and values spiritual life that doesn't necessarily stem exclusively from the Talmud. The heritage of Eretz Israel was handed down in great measure to Ashkenazi Jewry. Alongside the flourishing of the great Yeshivot in the Rhine valley, there was also a flowering of religious poetry. These tendencies also left a mark on the nature of the development of the religious act in these countries. Customs could develop not only based on textual considerations and dialogue with the sources, but also based on instinct and personal-popular understanding. These were found in Ashkenaz, alongside a glorious scholarly tradition, which also continued to develop.

 

V.        THE CRUSADES AND THEIR CONTRIBUTION TO ASHKENAZI CUSTOMS

 

            R. Dr. Chayim Soloveitchik suggests another explanation for the consideration that the Ashkenazi authorities gave to the customs of their ancestors. His explanation revolves around what happened during the first Crusade in 1096, a foundational experience in the collective consciousness of the community.

 

            As is well known, Christian mobs, stricken with religious zeal, while on their way to conquer Eretz Israel, destroyed the most magnificent Jewish communities in Germany of the time – Mainz and Worms – and sowed ruin and wreckage in other communities. Thousands were martyred for the sanctification of God's name. The horrendous events were documented in detailed chronicles, and were well known to Ashkenazi Jews across the generations.

 

            It would appear, however, that what left the greatest impression was the fact that many of the martyrs of 1096 did not suffer death passively. According to the chronicles, many took their own lives, and what is more, they killed the other members of their families, so that they should not succumb to forced baptism. Many of us are familiar with these awful events from the Kinnot that are recited on Tisha B'av. "We have not merited to raise you in Torah," said the fathers to their young children according to the piyyut's reconstruction, but "we shall offer you like a burnt-offering and incense, and merit with you the light" of the world-to-come.

 

In the eyes of later generations, these actions bestowed upon the martyrs of 1096 super-human status. Those who were capable of such actions were giants, pure and righteous people, the likes of which are nowhere to be found. If such were our Ashkenazi ancestors – the reasoning continues – it is unimaginable that there was anything wrong with their customs. The practices of such eminent people obligate us as well, and we must imitate them and adhere to their ways. Hence, when the Tosafists discuss a halakhic issue relating to which there exists a widely accepted custom from days of old, that custom is regarded as a source for deciding the law that is in no way inferior to a talmudic source.

 

In this context it should be remembered that from a purely halakhic perspective the actions of the martyrs of 1096 were problematic, to say the least. It is true that they stood before the threat of forced baptism, and the Talmud rules that with respect to the prohibition of idolatry, "one must let himself be killed, and not transgress."  But "letting oneself be killed" means that one must allow the heathen to kill him. Can this rule be expanded to allow a threatened Jew to commit suicide? And certainly the documented killings of relatives are cause for astonishment. Is it possible to find any basis whatsoever to permit, not to mention obligate, the killing of children in order to prevent their forced baptism?

 

About a hundred and fifty years later, a certain Jew was faced with the same unspeakable choice as were the Jews of Mainz. That Jew followed in their footsteps, and killed the members of his family (they even asked him to do so), but he himself was saved. Must that Jew atone for his actions? The question reached the Maharam of Rotenberg, and he struggled with it.[3] On the one hand, the Maharam knew that the early martyrs had acted in this manner, but he did not have a tradition from his teachers (i.e., the Tosafists) that permits such killing lekhatchila. In practice, he exempted that wretched Jew from the need to achieve atonement after the fact, relying on the purity of his intentions (for he acted "out of great love for our Creator"), and also on the precedent from 1096.

 

The Maharam's discussion reveals the tension that existed between strict adherence to what emerges from the sources and the admiration felt for the heroes of Mainz and Worms. It is doubtful whether the actions of those killed in 1096 would have merited endorsement from a purely halakhic perspective, but the Ashkenazi tradition praised and exalted them. This foundational model helped to establish the principle among Ashkenazi Jewry that the Talmud is not the only pillar upon which religious life rests.

 

VI.       THE GRA'S DARING

 

            In the eighteenth century, this line of development encountered the temperament and outlook of the Gra. The truth is that it was not actually an encounter, but a collision. According to the Gra, Torah study is an act of return to the sources and of constant connection to them. The nature of such study also impacts upon the religious act. In order for a certain practice to be accepted, it must follow from the accepted sources of the Oral Law; thus the principle, "Go out and see what the people are doing," falls from its mighty station. One must examine "what the people are doing" in order to test it, but not to accept it as an independent halakhic source. What would we have concluded based on our own understanding of the Torah? This is the important question, and not what all the people are doing. One must refrain from eating chadash, and not rely on the excuses that were offered to reconcile the custom that allows it. One must forbid usury, and not invent the heter-iska which was designed to circumvent the prohibition. As for the piyyutim, the Gra instituted that they should not be recited on any Shabbat, save for a few exceptions.

 

            The Gra's position did not always lead to a collision. The Gra left some of the piyyutim, though he insisted that they not be recited in such a way that they create an interruption of the service.[4] In general, there are certain customs with no clear source, concerning which the Gra did not adopt an attitude of rejection, but rather a different attitude, no less typical of him. For example, nowhere do we find in Chazal that a Chanuka candle should be lit in the synagogue. But the Rishonim already mentioned the practice of lighting a candle there with a blessing, and offered the explanation: As a reminder of the menora in the Temple. In "Ma'aseh Rav" there is no indication that the Gra had any reservations about the practice. In his commentary to Shulchan Arukh Orach Chayyim (571), the Gra suggests that the practice has a source. The Rabbis ordained that Hallel should be recited at the seder on the night of Pesach. Nevertheless, the Yerushalmi implies that it should be recited in the synagogue in order to publicize the miracle. And this is still the actual practice in many communities. The Gra suggests that the same applies here: the primary enactment was to light a Chanuka candle for "each person and his house," but nevertheless the miracle should also be publicized in the synagogue.

 

            What is typical here is that even when the Gra accepts a custom, his approach does not allow him to base himself exclusively on the common practice, or on the rationale offered by the Rishonim (as a reminder of the menora). It is necessary to join the custom to the halakhic principle which is the foundation of the mitzva of lighting Chanuka candles, i.e., publicizing the miracle, and to find a clear halakhic precedent in the words of Chazal.

 

            In the next shiur, I shall further clarify the Gra's unique daring in the realm of Halakha and custom.

 

(Translated by David Strauss)