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The Rabbbinic Decisors and the Halakhic Material in the Or Sameah


Yitshak Cohen


Ono Academic College

June 9, 2011

Jewish Law Association, Forthcoming

Abstract:     
Rabbi Meir Simcha adopted an independent adjudicatory style in the Or Sameah, not hesitating to rule the way he saw fit, even if this led him to dispute Maimonides’ rulings. This approach led to significant, and at times far-reaching, halakhic ramifications which expand Maimonides’ corpus to touch on cases he never discussed. Perhaps, it was owing to this tendency and RMS’ own perception of himself as a rabbinic decisor that later rabbinic decisors treated him as a decisor, not merely as a commentator. They accepted his halakhic rulings as normative and even relied upon him in cases where his rulings disputed those of Maimonides himself! They did not call into question his authority to dispute Maimonides and their rejection of interpretations that disputed Maimonides were due to local considerations, not matters of authority. Not only did the decisors use the OS to gain insight into Maimonides’ halakhic writings but also to find answers different than the standard ones to particular halakhic questions. We have found his legal opinions cited not only in the decisors’ writings but also in the rabbinical courts and in the appeals courts. His distinctive interpretations sometimes influenced or even decided the courts’ final verdicts.

In reviewing tort law, we discussed several laws in which RMS disputed Maimonides’ rulings and even ruled more stringently than him. The rabbinic decisors or judges sitting in various courts tended to accept his stances. In the realm of issur veheter, when addressing marital law, RMS innovated fundamental legal principles that differed from the norm, transferring the debate to the realm of private law, and ipso facto leading to a situation in which the wife’s interests were granted greater protection in various legal circumstances. The decisors also tended to accept these fundamental goals and consequent rulings. In a case where RMS’ halakhic innovation strayed beyond the boundary of what was deemed acceptable and reasonable all the judges saw fit to reject his opinion, banishing it from the halakhic discourse.

Alongside my examination of the impact these aforementioned “interpretations” I explored how the decisors dealt with RMS’ supplementary commentary. In adjudicating cases where Maimonides’ position was unclear or where there was a lacuna in the Code, the decisors turned to RMS’ commentary to supplement the Code, knowing full well that Maimonides might not have agreed with this new position. We have seen that RMS’ independent style of adjudication, whether through expansion or supplementation, takes on great significance in the later decisors’ eyes. This adjudicatory style has yet to receive scholarly attention.

As one might have expected, OS also adopts a third more conventional approach, which I have labeled the analytical-interpretive approach. This latter hermeneutic gives rise to interpretations that resolve contradictions in the Code, lays to rest difficulties that have been voiced, identifies Maimonides’ sources, and so on and so forth. Predictably, the decisors have had no trouble utilizing these interpretations to adorn or embellish their rulings.

Number of Pages in PDF File: 34

Keywords: Rabbi Meir Simcha, Or Sameah, Maimonides, halakhic, rabbinic decisors, commentator, authority, rabbinical courts, marital law

JEL Classification: K30, K39, K40, K49

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Date posted: December 17, 2012  

Suggested Citation

Cohen, Yitshak, The Rabbbinic Decisors and the Halakhic Material in the Or Sameah (June 9, 2011). Jewish Law Association, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2190468

Contact Information

Yitshak Cohen (Contact Author)
Ono Academic College ( email )
Tzahal Street 104
Kiryat Ono, 55000
Israel
972 2 6793849 (Phone)
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