Secondary Sources of Jewish Law: Contemporary Treatises
Primary Sources of Jewish Law
The Written and the Oral Law
Commentary on the Talmud
Research Strategy: Basic Structure of the Babylonian Talmud
Research Strategy: Understanding How a Hebrew/Aramaic Page of the Babylonian Talmud Is Constructed
Research Strategy: Using Translations of the Talmud
Research Strategy: Using Legal Codes
Research Strategy: Using Responsa
Appendix A: Concise Jewish Law Primary Source Outline
Appendix B: Expanded Jewish Law Primary Source Outline
Appendix C: Anatomy of One Law
Appendix D: Breakdown of Civil/Criminal Law Contents of the Mishneh Torah
Appendix E: Breakdown of Civil/Criminal Law Contents of the Shulchan Aruch
Appendix F: Bibliography of Published Bibliographies and Contemporary Treatises
Bibliography of this Research Guide
Jewish law begins with the immutable and unchangeable laws found in what is called the Written Law (the Torah) and its companion law, the Oral Law (or Oral Torah). Flowing from these sources is an entire system of law that was developed over centuries by rabbis from around the world. The substance of Jewish law is found, not in any official government pronouncement, but rather in the intellectual product of rabbis of the past 2000 years. The authoritativeness of a legal work has been determined, not by force of arms or sovereign government, but rather by the work's acceptance by the Jewish people over a period of time. In other words, Jewish law is found in the rabbinical works that history has accorded the force of law. These works, and the laws contained within them, flow from rabbinical interpretation of the Written Law and the Oral Law. These rabbinical works take many forms, but can be grouped in the following general categories: the direct commentary on the Oral Law called the Gemara; commentary on the Gemara; legal codes compiled from the laws in the Torah, Oral Law and Gemara; and case law decisions applying these laws (called responsa). In sum, the corpus of primary sources of Jewish law is made up of the Written Law, the Oral Law, and associated authoritative intellectual product of rabbis.
Much of this material addresses the particulars of Jewish religions observance and the ancient Temple rites. However a component of Jewish law deals with matters that are today thought of as civil law and criminal matters: business relationships, evidence, torts, property, theft etc. It is this component, called by many modern scholars of Jewish law, mishpat ivri, which will probably be the primary focus of most Jewish legal research and scholarship conducted in the context of a secular law school library. While this research guide does not exclude information about the religious and ritual laws, it will offer more detailed information about researching the mishpat ivri component of Jewish law.
The following research guide is broken up into two main sections. The first section explains how the researcher who is not well-versed in Jewish law can use secondary resources written by contemporary scholars as a tool to conduct Jewish law research. In the second section, the content, historical development, and authority of each of the major authoritative primary sources of Jewish law is explained. Included in this section are research strategy tips offering practical advice on how to use these sources. These sections are contained in a gray "research strategy box."
Research in Jewish law (halakhah - Heb.) is extremely complicated and will be difficult for the non-expert. None of the primary sources are in English, and although a most have been translated, not all of them have. Primary sources of Jewish law can date back over two thousand years and are not integrated and organized in a comprehensive and integrated system of authority as is the American legal system. Complicating matters further is the lack of a clear distinction between primary sources and normally would be considered a secondary source. For example, a rabbi's commentary on the Torah may have such authority that the commentary itself functions as a primary source of law. For purposes of this research guide legal works that function as an actual source of the law itself, even though by definition may be a secondary source of law, will be treated as a primary source of Jewish law. Another obstacle to the non-expert is the lack of a comprehensive finding tool for Jewish law (such as a digest system or searchable database).
Because the uninitiated researcher will face many obstacles in the use of primary sources, contemporary treatises, are probably the most important research tool for the non-expert. Contemporary treatises of Jewish law form a body of literature written by contemporary scholars and rabbis about topics of Jewish law. These are written, for the most part, by scholars who are able to access the original sources in their original languages and these authors will almost invariably cite to those sources. These helpful resources may be multivolume sets, single monographs or law journal articles. Most law school libraries are likely to be far better stocked in these secondary sources than in the original sources discussed in the second section of this guide. These may be used to both learn about the substance of Jewish law on a subject and to find citations to primary sources that may be difficult to use. Ideally, these should be used as a gateway to the primary sources. However, there may be cases where the relevant primary source will be inaccessible either because it has not been translated or is unavailable generally in law school libraries.
There are several types of these contemporary treatises. First there are general treatises, addressing the whole body of Jewish law in general. An example of this kind, and by far the most valuable resource in conducting research in Jewish law, is Menachem Elon's JEWISH LAW: HISTORY, SOURCES, PRINCIPLES (International Collection BM520.5.E4313 1994). This is a four volume work that is essential for anyone conducting Jewish legal research. The second type of treatise is subject-specific treatises, addressing a single Jewish legal issue or a general subject area of Jewish law. An example of this type is Steven Friedell's Some Observations on the Talmudic Law of Tort,15 RUTGERS L.J. 897 (1984). (Anglo-American Periodicals Collection) or MEDICINE AND JEWISH LAW, edited by Fred Rosner (Treatise Collection BM538.H43 M43 1990).
Another type of treatise that may be helpful is the "how-to" books. These books offer advice about how to conduct research in Jewish law. Some of these books offer a general overview of the mechanics of studying Jewish law. Others offer detailed information about reading and interpreting a specific resource, most often the Talmud. Because Talmudic discussion can be very complicated these books will be invaluable for the non-expert who is delving into a page of Talmud.
Some examples contemporary treatises in the library's collection include:
In sum, the research strategies outlined below for the legal codes, Talmud and responsa should be used in conjunction with contemporary treatises. These will help the non-expert wade through the vast body of Jewish law. Finding the right contemporary treatise is relatively simple. By entering "Jewish Law" or "Talmud"- into the library catalog's keyword search (BARON at http://baron.law.miami.edu/), almost all of the library's works on Jewish law will be retrieved. There are several excellent bibliographies and these are listed in Appendix F below.
Understanding the historic development of Jewish law is central to understanding the structure of the Jewish legal system and interpreting the law itself. Laws stemming from different periods and from different sources are accorded a different status as to their authoritativeness and changeability. Furthermore, in contrast to the American legal system, in which the most recent legal opinions are accorded primary authoritativeness, the opposite is sometimes true of the Jewish legal system. In the Jewish legal system, the greater the antiquity of the legal source, often the more authoritative it is considered. Furthermore, the structure of Jewish law differs substantially from the legal system of the United States.
The following sections will outline the historic development of the primary sources of Jewish law, explaining the contents of each source and its authority within the Jewish legal system.
The founding document of Jewish law is split into two parts: the Written Law and Oral Law. Jewish tradition holds that the source of these two sets of laws is divine revelation. While this is not important to the scholar or law student conducting Jewish law research in the secular law school context, the practical purpose of this traditional belief for such secular study of Jewish law is that both the Written Law and the Oral Law are immutable and unchangeable. The two serve as a sort of "constitution" for the legal system, except that this constitution may never be amended or changed. The Written and Oral Law together are categorized as d'oraita (literally "Torah law" in Aramaic). D'oraita law is immutable and unchangeable.
The Written Law is found in the Torah, also known as the Pentateuch (Treatise Collection BS12222.L54 2001 or Treatise Collection BS1223 1994 or Treatise Collection BS1225.3.J78 1989). The Torah's 613 laws form the basis from which all Jewish law is derived. "Every section, verse and letter - indeed even every ornamentation on the letters - of the Torah has been recognized as an authoritative source of Jewish law." (3 MENACHEM ELON, JEWISH LAW: HISTORY, SOURCES, PRINCIPLES 1020 (1994).) The Torah and its laws are the fundamental source for the entire system of Jewish law.
However the Torah does not stand alone in Jewish law. In fact, despite its position at the apex of sources of Jewish law, citation to a Biblical law alone is rarely a sufficient source citation to Jewish law. "Citing the Hebrew Bible for any proposition without understanding the applicable Oral Law is an inherently dangerous business." (Chad Baruch & Karsten Lokken, Research of Jewish Law Issues: A Basic Guide and Bibliography For Students And Practitioners, 77 U. DET. MERCY. L. REV. 303, 308 (2000).) This may seem counter-intuitive. The "constitutional-level" laws found in the Torah should seem to be able to stand alone. However the purpose of the Oral Law is to clarify, compliment and supplement the laws written in the Torah. Essentially, the Oral Law provides guidance on the nature and applications of the Written Law and a reference to the Written Law without a reference to the Oral Law will almost never accurately describe the complete valid and current Jewish legal position on a given subject.
The main source for the Oral Law is a work called the Mishna (Treatise Collection BM497 1990). The Oral Law was initially handed down orally from generation to generation, until it was compiled and edited in 220 C.E. by Rabbi Judah Ha-Nasi (c. 135 C.E. - c. 220 C.E.). The historical period of the compilation and codification of the Oral law is called the (Tannaitic Period 1st Century C.E. -220 C.E.). The Mishna, largely organized by subject, "records the rules of the Oral Law as abstract, self-contained legal propositions" called mishnayot (lit. "mishnas"). An outline of the contents of the Mishna appears below in Appendix B.
In addition to the Mishna, there are other sources of the Oral Law. These sources are the halakhic midrashim (International Collection BM517.S63 A66 2002 (partial)) and the Tosefta (Treatise Collection BM508.13 E5 2002 (partial)). The halakhic midrashim are compilations of laws that correspond directly to a Written Law from the Torah. This is in contrast to the self-contained Oral Laws contained in the Mishna. Essentially the Mishna and the halakhic midrashim contain the Oral Law expressed in differing methodology of exegesis: mishnaic (self-contained) and midrashic (connected to a Written Law). (ELON at 1049.) The four major compilations of halakhic midrashim are listed on the outline in Appendix B. The Tosefta contains additional mishnayot not included in the final version of the edited Mishna.
In sum, the Written Law and Oral Law are the immutable (d'oraita) founding legal documents of the Jewish legal system. The source of the Written Law is found in the Torah. The Mishna is the major source of the Oral Law, but the halakhic midrashim and the tosefta are Oral Law sources as well. Laws developed after the close of the Mishna in 220 C.E. are not considered d'oraita, but rather d'rabbanan (Aramaic for rabbinical). In contrast to the d'oraita laws, d'rabbanan laws, made by rabbis, may be amended or modified, although no prescribed and universally accepted system exists for doing this.
The next primary source, and probably the most important source for the practical purpose of finding the law, is the Talmud. The Talmud is the source of thousands of d'rabbanan laws that were the result of rabbinical interpretation of the Mishna. The term "Talmud" is actually a bit misleading. The Talmud is actually a collective term for several individual works that are printed together in the same set of volumes. The Talmud consists of the Mishna (discussed above), the Gemara, and several commentaries on these works. In other words, the Talmud contains the text of the Oral Law, serves as the primary source of the d'rabbanan laws and also contains commentaries whose authority has risen to the level of a primary source of Jewish law. Therefore, as a package, the Talmud (with the Torah) is the the most important source of Jewish law.
The Gemara was developed in the Amoraic period (220 C.E.-500 C.E.) which was the first historical period after the close of the Mishna. The text of the Gemara records and reports seven generations-worth of debates and statements of the rabbis of the great academies of the Land of Israel and Babylonia. Put simply: as the rabbis of the Mishna argued about the Torah, the rabbis of the Gemara argued about the Mishna. (MELVIN KONNER, UNSETTLED: AN ANTHROPOLOGY OF THE JEWS 95 (2003).) The focus of the Gemara is the interpretation and application of the Mishna. These recorded debates and statements result in thousands of d'rabbanan laws that form the bulk of Jewish law today.
There are actually two different Gemara that appear in two different Talmuds: (1) the Babylonian Talmud or Talmud Bavli (containing the Gemara emanating from the academies of Babylonia) (Treatise Collection BM506.B6 E5 1997 or Treatise Collection BM499.5.E5 1965); and (2) the Jerusalem Talmud or Talmud Yerushalmi (containing the Gemara emanating from the academies of the Land of Israel). The Babylonian Talmud is the more complete and more widely used and cited of the two. When one refers to "the Talmud," this almost universally refers to the Babylonian Talmud.
The Post-Talmudic legal scholars are separated into three historical sub-periods: geonim (700-1050), reshonim (1050-1599), and aharonim (1600-today). The legal literature of these periods can be separated into three rough genres: (1) commentaries on the Talmud; (2) law codes; and (3) responsa (case law). (3 ELON at 1101-1102.) Each of these types of literature will be addressed in turn in the following three subsections.
Several commentaries on the Talmud function as primary sources of Jewish law and play a greater role than legal commentaries play in the American legal system. The most authoritative of these appears within the pages of the Talmud itself and are often considered as a part of the Talmud. The following are the major commentaries on the Talmud:
Several other commentators' notes are included in the extreme margins of the Talmud page. One of these commentators, considered one of the greatest Talmud scholars of all time, is R. Eliahu ben Shlomo Zalman (1720-1797), known as the "Vilna Gaon" or the "GRA."
In sum, on one page of the Talmud are actually several different works written in different centuries, as early as the 3rd Century c.e., as late as the 19th Century and anywhere in between. These works were written all over the world, from Babylonia to the Land of Israel to Spain, Italy, North Africa and Eastern Europe. The heart of the Talmud, the Mishna and Gemara appear in the center column of each page, but the entire Talmud page comprises the great discussion that spans both time and geography and together forms the seminal primary source of Jewish law.
The structure of the Talmud tracks the structure of the Mishna, therefore it is necessary to first understand how the Mishna is structured. The Mishna is divided into six "orders" (seder-sing. sedarim-pl.), each dealing with a subject area: (1) Zeraim (lit.-seeds) dealing with agricultural and food laws; (2) Moed (lit.-holidays) - laws relating to holiday and Sabbath rituals; (3) Nashim (lit.-women) laws relating to marriage and divorce; (4) Nezikin (lit.-damages) laws of tort, other civil law and criminal law; (5) Kodoshim (lit.-holy things) laws relating to the Temple sacrifice and ritual; and (6) Taharot (lit.-purity) laws relating to ritual purity. Each order is divided into tractates (masekhet-sing. masekhot-pl.). Each tractate is divided into chapters and each chapter is made of up individual laws called mishnayot (mishna-sing.). See Appendix B below for a complete listing of the tractates of the Mishna. The Talmud is divided into tractates and chapters that track the tractates and chapters of the Mishna. It is important to note, however, that the Talmud does not contain a tractate for every Mishna tractate. In the listing of Mishna tractates in Appendix B, tractates marked with a "*" indicate that a Talmud tractate corresponds to that Mishna tractate.
The Talmud, tracking the tractate and chapter divisions of the Misnha, is also divided by page number. The pages, also called folios, follow the following system: 2a, 2b, 3a, 3b, 4a, 4b, etc. The numbering begins from the beginning with each new tractate, but there is not a page 1a or 1b. Each tractate begins with page 2a. All of the page information appears at the top of each page: chapter name, chapter number, tractate name, and page number. It is important to note, that in the untranslated Talmud, all of the page and chapter numbers are written in Hebrew characters, not in Arabic numerals. The Schottenstein translation contains all of this information in English on the translation page. Citations to the Talmud are to the tractate name and the page number. For example, in the citation "TB Baba Batra 29a", the "TB" refers to the Talmud Bavli (Hebrew for Babylonian Talmud), the tractate is Baba Batra and the folio is number 29a.
Even when researching the Talmud in English, it is beneficial to understand how the page is constructed in the Hebrew and Aramaic. As discussed above the pages of the Talmud are set up in a unique fashion. The different works that make up the Talmud (Mishna, Gemara, commentaries) are all placed together on the same page. In a sense, each page of Talmud contains a conversation whose participants are diverse historically (spanning over a thousand years) and geographically (they lived in places as varied as Babylonia (in present-day Iraq) and France). Understanding this unique set-up is helpful to understanding a translation, even if not a word of Hebrew is understood. While all the pages do not look identical, the basic structure is similar:
The major translations usually do not follow this physical structure of a central column and margin columns. Also, most do not contain full translations of Rashi, Tosefot or the extreme margin commentaries. Although this research guide focuses on the Schottenstein Edition it will also refer to the Soncino Edition. (THE HEBREW ENGLISH EDITION OF THE BABYLONIAN TALMUD (1989). ( Treatise Collection BM499.5.E5 1965).) in contrast to the Schottenstein Edition.
The Schottenstein Edition uses a unique system for its translation. First, the Hebrew/Aramaic page used is the classic "Vilna edition" folios that have been the standard edition since its publication in 1886. The Hebrew/Aramaic page is on one side of the open volume and its translation is on the opposite page. However, the translation of one of the Hebrew/Aramaic folios takes several English pages. For example, it takes two pages of English translation to translate page 28a of tractate Baba Batra. Sticking to the practice of keeping the Hebrew/Aramaic page opposite the English translation page, the editors include the complete page 28a opposite each of the two pages translating it. In other words, the Hebrew/Aramaic page "28a" appears twice. A gray bar along the central column of the Hebrew/ Aramaic (Mishna/Gemara) denotes portion is translated on the opposite page. On the English page, the first page of translation of 28a is indicated with a superscript number: 28a1. The second page is labeled "28a2." Pages that take more than two pages to translate are numbered with superscripts "3 ", " 4 ", etc. These page numbers appear on the top margin of the page along with the chapter name, chapter number and tractate name. Therefore the top margin of the first translation page of page 28a of tractate Baba Batra reads:
CHEZAKAS HABATIM CHAPTER THREE BAVA BASRA 28a1
(Note that "Baba Batra" is the same thing as "Bava Basra." In Hebrew, many words may be properly pronounced in two different ways with interchangeable letters. In many words a "b" is interchangeable with a "v" sound. The same rule can apply to the "t" and "s" sounds).
There is only a full translation of the center column (Mishna/Gemara). The beginning of a Mishna is noted by the term "Mishna" in large letters and the beginning of a Gemara is noted in the same way. In general, the Mishna portion is short, usually only a portion of one page and the Gemara can be as long as several pages. The center column of many pages will be only Gemara text and no Mishna text will appear.
The translation section, which appears on the top portion of the English page, is made up of bold type and normal type. The bold type is the word for word translation of the Mishna or Gemara that is supplemented with language in "normal-type" that has the effect of making the language flow in English and therefore be more understandable. This is one of the major advantages of the Schottenstein edition. The "normal-type" supplements allow for more a readable translation than a straight translation, but the bold type still indicates what the actual language of the Mishna or Gemara states. Furthermore, embedded in the English is the Hebrew/Aramaic text. Each bold type word for word translation phrase is accompanied with the Hebrew/Aramaic text. This may make reading the translation a little more difficult, since the text is interrupted with Hebrew characters, but this system was probably intended to help people with a basic knowledge of Hebrew learn how to study the text in the original language. However, it is still relatively easy to skip over the Hebrew phrases and read only the bold translations and the "normal type" supplements that together form a readable translation of the Mishna and the Gemara. (The Soncino edition is more of a traditional translation, one page of Hebrew/Aramaic for one page of English. Also, the Soncino does not use the bold system to denote exact word for word translation versus supplementary language to make the text flow. Finally, the translation page is entirely English, uninterrupted by any Hebrew or Aramaic. Other editions and translations may use different methods to effectively translate the Hebrew and Aramaic text.)
As stated above, the Schottenstein edition only translates the center column of the Talmud page, consisting of the Mishna and the Gemara. The Rashi, Tosefot and margin notes are not translated. However, each page contains extensive explanatory footnotes that are drawn from these sources as well as from commentaries not appearing on the Talmud page. Through these footnotes a significant portion of the Rashi, Tosefot and other commentaries are included in the English, but they are not translated in completion and in a way that corresponds directly to the Hebrew text.
Another helpful feature is the English language introductions. In the Schottenstein edition, each tractate and each chapter within a tractate contain an introductory essay. These essays are very helpful in introducing the topics that will be discussed in the tractate and chapter. The Soncino edition only contains tractate introductions. Another resource available are the guides to Talmud study and interpretation. A bibliography of these is listed at Appendix F.
There are also numerous authoritative commentaries that do not appear within the pages of the Talmud. Dovid Landesman's book, A PRACTICAL GUIDE TO TORAH LEARNING (Treatise Collection BM503.5.L36 1995) contains extensive citations to the classic commentaries on the Talmud and Mishna, as well as citations to other works of Jewish law. (LANDESMAN, at 9-34 (1995).)
Authoritative commentaries on the Mishna that include R. Moshe ben Maimon's (Rambam or Maimonides) (1135-1204) commentary on the Mishna, R. Ovadiah of Bertinoro's (Bartinura) (c.1450-c.1515) commentary on the Mishna and Tosfot Yom Tov by Yom Tov Lipmann Heller (1579-1654). These are also not inserted onto the Talmud page. Dovid Landesman's book, A PRACTICAL GUIDE TO TORAH LEARNING (Treatise Collection BM503.5.L36 1995) contains extensive citations to the classic commentaries on the Talmud and Mishna, as well as citations to other works of Jewish law. (LANDESMAN, at 9-34 (1995).)
The Talmud is not a strictly legal source. It examines religious, ethical, moral and philosophical subjects as well as legal issues. Furthermore, the legal issues are intertwined with the non-legal subjects (called aggada). Even the legal discussions often flow from topic to topic, exploring disagreements among rabbis and often without stating a clear, concise and final rule. Finally, although the thematic pattern of the Mishna is followed, laws addressing almost any subject can be addressed in any part. In other words, laws of the same subject will not always appear together. The result of all of this is that it can be extremely difficult to find an actual law from within the Talmud (and therefore its commentaries).
The authoritative law codes provide a solution to this problem. Rabbis have undertaken the enormous task of creating comprehensive law codes by separating out the actual laws from the great Talmudic discussions and putting them together by subject. These are an extremely helpful resource, especially since these authoritative codes have the force of law themselves. Major codes include:
If it is necessary to start with primary sources, the codes may be an easier starting point for the non-expert than having to start with the Talmud. The most authoritative codes of Jewish law are: Maimonides' Mishneh Torah and Karo's Shulchan Aruch. It is important to note that there are other authoritative codes besides these, especially the code titled Arba'ah Turim or Tur, but because the Tur is probably not commonly held in law school libraries, the Mishneh Torah and the Shulchan Aruch will effectively serve the purposes most Jewish law research questions.
Mishneh Torah. The Mishneh Torah (Mishneh Torah should not be confused with Mishna as they are two different works of Jewish law.) is divided into 14 books each stating the laws of a single subject. Each book is divided into subject-area sections (titled "Laws of" or "Hilchot"). Each section is further divided into chapters and each chapter is divided into paragraphs. Each paragraph constitutes a single law. Laws in the Mishneh Torah are cited by section name, chapter number, and paragraph number. For example in the citation "MT, Nizkei Mamon 1:1" the MT stands for Mishneh Torah, Nizkei Mamon is the subject-area section and the 1:1 refers to chapter 1, paragraph 1.
The vast majority of civil and criminal laws (as opposed to laws dealing with religious observance) are found in Books 4, 11, 12, 13, and 14. These books contain laws relating to divorce, damages, sales, contracts, employment, inheritance, evidence and many others. The subject-area divisions and subdivisions (which are listed in Appendix D) make finding a specific law relatively simple by narrowing down where a law will be located. The tables of contents and indexes if included within a particular edition will also be helpful in locating a law.
Shulchan Aruch. The Shulchan Aruch is divided into four parts. Each of the four parts is divided into sections (halachot); each section is subdivided into chapters (simanim); and each chapter is subdivided into paragraphs, each containing a law (se'ifim). The four parts are Orach Chaim (laws addressing daily religious ritual observance), Yoreh De'ah (laws addressing ritual observances such as kashrut, circumcision burial and mourning), Even ha-Ezer (family law), and Hoshen Mishpat (civil and criminal laws).
The Shulchan Aruch is cited by part, chapter and paragraph: Sh. Ar. HM 201:1. "HM" is the part Hoshen Mishpat; "201" is the chapter number; and "1" is the paragraph number. The sections are given names, but they are not included in the citation as they are in the Mishneh Torah citations. See Appendix E for a subject outline of the chapter divisions of Shulchan Aruch, part Hoshen Mishpat.
An unabridged translation of the entire Shulchan Aruch has not yet been published. The common abridged translations contain a table of contents and/or indices that are relatively simple to use and locate laws on a specific subject-area. Emanuel Quint's work, A RESTATEMENT OF RABBINIC CIVIL LAW (International Collection KMK1572.Qu5), although not a direct translation of the Shulchan Aruch, restates the civil laws enumerated Shulchan Aruch, part Hoshen Mishpat, following its exact chapter divisions. This book is essential to any non-expert seeking to use the Shulchan Aruch.
There are also numerous commentaries on the Shulchan Aruch that are considered authoritative primary sources of law themselves. Some of these are traditional commentaries, explaining the Shulchan Aruch in detail, and others follow the codificatory form even updating the Shulchan Aruch with rulings that postdate its publication. Some of these commentaries are more common in law libraries than selections of the Shulchan Aruch itself. (Some of these "code-updates" and commentaries have titles that are very similar to Shulchan Aruch, and should not be confused with the original by Karo. An example is Aruch Ha-Shulchan by Yechiel Michel Epstein (1829-1908). Another example is Kitzur Shulchan Aruch (Treatise Collection BM520.9.G3513 1991) by Shlomo Ganzfried (1804-1886) which is a concise statement of the laws of Shulchan Aruch part Orach Chaim. Confusing things even further is the title Mishna Berurah by Yisrael Kagan (1838-1933) (the "Chafetz Chaim"), which is also a major commentary on Shulchan Aruch and not the similarly-named Mishna.)
Compilations of Responsa (written rabbinical opinions on legal disputes or issues) are a third type of post-Talmudic literature and primary source of law. The responsa literature is the "case law" of Jewish law, consisting of the decisions of rabbis that responded to questions of Jewish law submitted in writing. Questions would be submitted to a local rabbi who would then pass the question up to great scholar of Jewish law, who would answer the question. The following sections will discuss responsa in the three post-Talmudic historical periods.
Researching the responsa will be difficult, especially for the non-expert. There exists today 300,000 known responsa in 3000 books by dozens of authors. (3 ELON at 1462.) There is no comprehensive digest of all of these decisions. Compilations of responsa are the main tool to locate responsa on a specific topic. After the publication of the Shulchan Aruch, most compilations of responsa are organized according to the subject order of the Shulchan Aruch. While each individual compilation may be organized by topic, these decisions are not organized, indexed or digested across different compilations. Most are not translated into English. There is not even a comprehensive list of the compilations, let alone the individual decisions.
The best available strategy is to locate several major translated compilations and check each for the desired topic. Menacham Elon's JEWISH LAW: HISTORY, SOURCES, PRINCIPLES contains an extensive bibliography of compilations of responsa (International Collection BM520.5.E4313 1994).
In sum, Jewish law begins with the laws contained in the Written Law (the Torah) and the Oral Law (primarily the Mishna, but also the Halakhic Midrashim and Tosefta). The laws in these sources form the immutable (d'oraita) "constitution" of Jewish law. After the close of the Mishna, rabbis interpreted, studied and applied the laws contained in the Written and Oral Law and the result was numerous new laws created by rabbis (d'rabbanan). The Talmud (Gemara and its commentaries along with the text of the Mishna) records, explains and interprets the rabbinical discussions of seven generations that results in the body of d'rabbanan law. This large body of law is codified in clear definitive statements in the great law codes. Finally, the even larger body of responsa or case law records how these laws were applied by rabbis in real life situations. Contemporary treatises are helpful tools both as guide to using the primary sources and to the substance of the law itself.
While the previous paragraph sums up the main body of primary sources of Jewish law discussed in this Research Guide, there are other primary sources. These include the full Hebrew Bible or Tanakh (the Torah plus the Prophets and Writings), commentaries on the Hebrew Bible, aggadic midrashim (interpretation of the ethical and philosophical component of the Written and Oral Law), additional commentaries on the Talmud, commentaries on the major commentaries of the Talmud, commentaries on the major codes, major ethical works, rabbinical and communal enactments (called takkanot) and legal documents such as marriage contracts (ketubot).
An understanding of what the basic primary sources are, what they contain, how they are structured and their authoritativeness is necessary before researching Jewish law. The above explanation of these features of Jewish law is narrow in the number of primary sources discussed and basic in the explanation of those sources. However, this concise summary will offer the basic knowledge to begin to conduct research in Jewish law and to understand the fruits of that research.
Written Law - Torah
1. Oral Law (Tannaitic Period, 1st Century C.E. - 220 C.E.)
2. Amoraic Period (220 C.E. - 500 C.E.)
3. Post-Talumdic Period (Geonim: 7th Century - mid-11th Century; Rishonim: mid-11th Century - 16th Century; Ahronim: 16th Century - present)
1. Written Law - Torah
2. Oral Law - Tannaitic Period (1 C.E. - 220 C.E.)
3. Amoraic Period - (220 C.E. - 500 C.E..)
4. Post-Talumdic Period (Geonim: 7th Century - mid-11th Century; Rishonim: mid-11th Century - 16th Century; Ahronim: 16th Century - present)
Note: Books 4 and 11-14 of Mishneh Torah and the Shulchan Aruch part Hoshen Mishpat cover much of the same material, but in very different orders.
Mishneh Torah Civil Law Subject List
Book 4: Sefer Nashim (Book of Women)
Book 11: Sefer Nezikin (Book of Damages)
Book 12: Sefer Kinyan (Book of Acquisition)
Book 13: Sefer Mishpatim (Book of Civil Laws)
Book 14: Sefer Shoftim (Book of Judges)
Bibliographies of Primary Sources, Contemporary Treatises and Talmud Interpretation Guides
Select Annotated Citations of Contemporary Treatises
Helpful Internet Sites
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Researching Family Law
Sept. 24th, 12:30-1:30 in D236