Opposition to the ‘Shulhan Aruch’: Articulating a Common Law Conception of Halacha

Abstract: Because the two monumental works of medieval codification of halacha—Maimonides’ Mishneh Torah and R. Yosef Karo’s Shulhan Aruch—achieved canonical status, it is easy to overlook their rather unorthodox nature vis-à-vis prior halachic literature. The Mishna, the founding codex of Jewish law, despite its normative structure, includes dissenting opinions as an integral part of its discourse. Moreover, the Talmud, in its exposition of the Mishna and its contemporaneous legal sources, is frequently inconclusive, lacking a clear determination of the authoritative position. Sixteenth-century Poland witnessed fierce opposition to the Shulhan Aruch led by three figures—R. Shlomo Luria, R. Yehuda Loew ben Betzalel, and R. Haim ben Betzalel. In this paper I examine the nature of the shared claims against codification put forward by these seminal figures, with an eye toward elucidating the philosophy of halacha implicit in their approach. In the final section of the paper, I demonstrate the deep affinity between this approach to halacha and what is termed in contemporary jurisprudence “common law reasoning.”

Biography: Leon Wiener Dow teaches Talmud and Jewish philosophy at Kolot and at Bina’s Secular Yeshiva. A doctoral candidate at Bar Ilan University, he is writing his dissertation on constructing a philosophy of halacha based on the thought of Franz Rosenzweig. Leon received his B.A. magna cum laude from Princeton University, where he studied in the Department of Religion and the Woodrow Wilson School for Public and International Affairs; his M.A. in Jewish Thought from the Hebrew University of Jerusalem; and private rabbinic ordination from Rabbi David Hartman. He lives in Jerusalem with his wife Bruria and their five children.