Reviewed by Rabbi Reuven Chaim
Klein
In this rather insightful and
informative book, the authors offer us a broad look at the legal principles
used by Rabbi Yechiel Michel Epstein (1829-1908) in his multi-volume work Aruch
HaShulchan. Rabbi Epstein served as the Chief Rabbi of the Jewish community
in Novhardok (Novogrudok) for over thirty years. He authored many different
works including a commentary to the Haggadah shel Pesach (Leil
Shimurim), a commentary to the Jerusalemic Talmud (Michal HaMayim),
a volume of homilies (Drashos Kol Ben Levi), and a commentary to Rabbeinu
Tam’s Sefer HaYashar (Ohr LaYesharim).
Despite all his prolific literary
output, Rabbi Epstein’s greatest legacy is his magnum opus, the Aruch
HaShulchan. This vital work gives Rabbi Epstein the unique place amongst
rabbinic jurists in the last few centuries as the only authority to write a
code of Halachah ("Judaic jurisprudence”) that parallels the four
sections of the Shulchan Aruch — Orach Chaim (daily law), Choshen
Mishpat (civil law), Even HaEzer (family law), and Yoreh Deah
(ritual law) — and also rules on laws relevant for the future Messianic Era (Aruch
HaShulchan HeAsid). Broyde and Pill are both trained rabbis and professors
of law, making them appropriate scholars to investigate the legal methodologies
used by Rabbi Epstein in his highly-important work.
The scholarly book that Broyde
and Pill have written opens with a fascinating discussion of the history of Halachah,
detailing how when the Temple in Jerusalem stood, there was a central court
known as the Sanhedrin that functioned as the final arbitrator of Halachah
(not unlike the way that the Supreme Court plays a similar role in American
jurisprudence). However, after the Temple's destruction and the ensuing
decentralization of Halachic authority, Jews who sought clarification in
Halachic matters did not have one specific address to which they could turn.
This reality created the need for a written code of Jewish law with which all
Jews could consult for guidance in knowing the law.
As the authors explain, there are
two different models/styles for writing a code of law: Broadly speaking, the
first model of codifying Jewish law is typified by the Mishnah, which lays down
the law in a clear-cut and relatively unambiguous way. This model calls for
using concise, terse statements of the law, without getting into the complex
details such as proof-texts for the positions taken, excessive argumentation,
or other extra-legal matters. As Broyde and Pill explain, this simpler approach
was adopted by many great Halachic authorities throughout the ages including
Alfasi, Maimonides, and the Shulchan Aruch. However, the second model of
codifying Jewish Law has its precedent in the Babylonian Talmud itself, which
offers Halachic discourse and rulings within a wider web of meandering
dialectics, intensive analysis, discussion, and disputation, as well as non-Halachic
materials like moralistic teachings, historical observations, and Biblical
hermeneutics. This way of arriving at Halachah was broadly followed by Rashi
and the Tosafists, and later by the Rosh, the Tur, and various
super-commentaries to the Shulchan Aruch. Rabbis Broyde and Pill situate
Rabbi Epstein’s Aruch HaShulchan within this paradigm and demonstrate
how his work is largely archetypical of the second — Talmudic — modality, as
opposed to the Mishnaic model.
In their analysis of Aruch
HaShulchan’s rulings in the realm of Orach Chaim, Rabbis Broyde and
Pill reduce Rabbi Epstein’s Halachic methodology to ten legal principles. They
infer these principles directly from Aruch HaShulchan’s self-reported
reasons and justifications for his various rulings. In doing so, the authors provide
the background discussions to many of the various Halachic questions with which
Aruch HaShulchan grappled and showed how his final conclusions were
guided by the ten principle that they have identified. The third section of
this book offers 204 such examples.
The first of these principles is
the notion that normative Halachah should be primarily determined by the
Talmud. The core of Halachah must always be, in one way or another, rooted in
the Talmud—whether the Babylonian Talmud or the Jerusalemic Talmud. The most
optimal way of determining what the Halachah ought to be is how one reads the
Talmud. A clear, confident ruling seen in the Talmud itself trumps precedent
found in later Halachic works, no matter how authoritative or important those
works may be. That said, Rabbi Epstein’s second guiding principle maintains
that one must possess a sort of “epistemic humility” by which one is ready to
call into question one’s own reading of the Talmud if it is contradicted by a
consensus of other, earlier authorities.
When Rabbi Epstein himself is
unsure about how to read the Talmud’s final ruling on a given issue, then two more
guiding principles are in play: The first of those principles maintains that in
lieu of direct precedent from the Talmud, one must rely on precedent from later
Halachic authorities, like Maimonides or Shulchan Aruch. When those
sources are unhelpful or do not offer a consensus, then Rabbi Epstein relies on
secondary rules for resolving doubts. Namely, in cases of laws rooted in
Biblical Law, he rules stringently; while in cases of laws rooted in Rabbinic
Law, he rules leniently.
As Rabbis Broyde and Pill show,
Rabbi Epstein had also developed guiding principles that take into account the
force of minhag (“custom”), kabbalah (“mysticism”), and chumros
(“extra pious supererogatory conduct”) when formulating his code of law.
When forced to do so, Rabbi Epstein would also sometimes engage in
rationalizing/justifying changes to established Halachic norms in order to fit
the context of his time and place. Last but not least, Rabbi Epstein was also
cognizant of the very pragmatic fact that “the Torah was not given to the
Ministering Angels” and therefore adapts otherwise impossible or impractical
rules to fit reality.
My main criticism of this book is
mostly stylistic, as the authors are quite verbose and repetitive, which makes
reading the book more bland than succinct writing would make it. That said, I
do recognize how this repetitiveness and wordiness could benefit some novice readers
who are not as familiar with the concepts discussed. Moreover, this reviewer
would appreciate a more comprehensive look at Rabbi Epstein's work that
includes examples from his rulings on Even HaEzer, Choshen Mishpat,
Yoreh Deah, and even Aruch HaShulchan HeAsid. Perhaps this is
something that the authors are working on for the future. All in all, the
authors did magnificent work and have really provided us with a worthwhile
study on the Aruch HaShulchan.
