Crisis discourse and framework transition in Maimonides’ Mishneh Torah

Omer Michaelis

doi:10.1515/opphil-2020-0140

Article Open Access

Crisis discourse and framework transition in Maimonides’ Mishneh Torah

Omer Michaelis

Published/Copyright: November 16, 2020

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From the journal Open Philosophy Volume 3 Issue 1

Abstract

In his works from the past decade, Menachem Fisch offered an analysis of a crucial distinction between two modes of rationalized transformation: an intra-framework transformation and an inter-framework one, the latter entailing a revolutionary shift of the framework itself. In this article, I analyze the attempt to produce such a framework transition in the tradition of Jewish Halakha (i.e., Jewish Law) by one of the key figures in its history, Moses Maimonides (1135–1204), and to explore how this transition was rationalized and promoted by the utilization of crisis discourse. Using discourse analysis, I analyze the introduction to Maimonides’ great legal code, Mishneh Torah, and explore the modes by which he sought to establish, install and stabilize a homogenous and centralistic legal order at the center of which will lie one – that is, his own – Halakhic book.

Keywords: Maimonides; Jewish Halakha; framework transition; Mishneh Torah; Medieval Judaism; crisis discourse; Menachem Fisch

1 Introduction

In his works from the past decade, Menachem Fisch offered an analysis of a crucial distinction between two modes of rationalized transformation: an intra-framework transformation and an inter-framework one, the latter entailing a revolutionary shift of the framework itself. The specific philosophical problematics of the inter-framework transformation have been explored in both Fisch’s collaborative study with Itzhak Benbaji, The View from Within (2013) and in his independent study, Creatively Undecided (2017).^[1] The point of departure for both works is the critical enterprise of Immanuel Kant, and in particular the Kantian realization in the First Critique with regard to judgments that are constituted by a set of a priori principles, i.e., framework dependent. However, the idea that this set of principles is determined once and for all by one’s cognitive capacities alone is challenged in both works. Instead, Fisch argues, in a Hegelian fashion, for a relativized and dynamic conception of “principles,” one that acknowledges their constant transformation in tandem with the transformation of discourses. Moreover, this changing formation of principles not only is constitutive of our scientific knowledge, but also enables the standards on the basis of which normative judgments are issued and with reference to which they are assessed. Any position whatsoever, including the kind of critical position that facilitates intra-framework change, is circumscribed, in principle, by the horizons of the criticized framework itself, and is always-already dependent on our commitment to a specific framework. For it is this very framework which supplies us with the justifications and rationales for taking a position, including a critical position when the framework is found incoherent or in some sense lacking.

But if any position that is not arbitrary draws its reasons from within the framework, Fisch argues, how is the framework itself to be criticized from within? How can the standards, or the conceptual framework to which we are committed, be effectively subjected to a critical appraisal if it is by means of these very standards that we conduct our appraisal in the first place? How is it possible, without becoming fully antithetical to the very basis of one’s judgment, to perform a suspension of the framework that predefines the boundaries and horizons of possibilities?

The prevalent mode of modification, elaboration and revision throughout the course of the Jewish tradition in its various discourses has been the intra-framework mode, whose criteria are part and parcel of an hermeneutical infrastructure that provides participants in the discourse with an array of interpretative possibilities when encountering a problem. However, a different mode of transformation, though far rarer, also constitutes an important part of the tradition. This mode of change involves retracing the horizons of the tradition, reconfiguring its vocabulary and altering the canonical constellation. At least according to one of its manifestations in the Jewish tradition, this type of transition involved the employment of crisis discourse, in a mode that consists of – as I aim to show – both constative (or indicative) and performative utterances, that allowed for a suspension of a prevailing framework. In this article, I will analyze the attempt to produce such a framework transition in the tradition of Jewish Halakha (i.e., Jewish Law) by one of the key figures in its history, Moses Maimonides (1135–1204), and to explore how this transition was rationalized and promoted by the utilization of crisis discourse. The work that will be discussed in the article is the great legal code, Mishneh Torah, in which Maimonides sought to establish, install and stabilize a homogenous and centralistic legal order at the center of which will lie one – that is, his own – Halakhic book. The literary unit that I will focus on is the work’s introduction, both for its programmatic character and for the fact that it represents Maimonides’ most intricate and elaborate employment of crisis discourse in the work.

The discursive structure of the introduction to Mishneh Torah, as will be presented shortly, is characterized by a complex dialectic movement between two poles: on the one hand, relating the “Oral Law” and the Halakhic tradition back to its asserted source in Sinai, emphasizing the lasting nature of this relation which is retained across generations despite the cumulative nature of the Halakha,^[2] and accentuating its unitary character; while on the other hand stressing the presence of an ongoing threat to the “Oral Law” (i.e., the Halakhic tradition), its arrival at states of crisis, and eventually, the decisions that prevented its destruction. The crises of the Oral Law are depicted in the Maimonidean narrative not only as threats of havoc and disintegration, but also as the conditions of the existence of works that are placed at the very core of the canon and as catalysts for the creation and formation of these works.

Acknowledging the centrality of the discourse of crisis and identifying its implications, as I attempt in these pages, is the outcome not only of a close reading of the introduction to the treatise, but also of attending to the current state of research on Mishneh Torah, including its major achievements but also its insufficient account of the dynamics of crisis and its role in the creation and legitimization of the Halakhic code in its entirety. This acknowledgment would not have been possible if not for Isadore Twersky’s monumental Introduction to the Code of Maimonides, in which he ascribed what he called Maimonides’ “Drang zur Codification [Eng.: urge towards codification],” as a motive for the composition of Mishneh Torah, to the “historical adversity.”^[3] Nevertheless, in his study, Twersky framed the depiction of the crisis in the introduction to Mishneh Torah as one of the “motives” for the Mishneh Torah, and more specifically, as a “historical motive,” written in “response to contemporary need.” In his account of the then contemporary needs, Twersky refers to the crisis, or at least to the crisis as perceived by Maimonides, as a motive that is located “outside” the scope of the work and bears a contingent relation to it, a motive that at most can be extracted with some effort as a trigger for the writing of the work from its opening assertions. As Twersky puts it: “A review of the programmatic pronouncements also sheds light on the question of Maimonides’ motives and intentions, the germination of the idea which led to the genesis of the work.”^[4] In this study, I wish to take a different path, one that illuminates the crisis from the perspective of its linguistic operation in the field of the politics of the canon. The declaration of crisis is, as I will claim, an “argumentative move,” in the words of Quentin Skinner, that is enacted in a dense context.^[5] In order to fully assess Maimonides’ assertion, it will not suffice to analyze it as a representation of the motivations of the author. Instead, I shall inquire why propositions of crisis were put forward, what aims this act sought to achieve, or more precisely, what constellation did it aim to alter and what resources were employed for that purpose? To put it succinctly and preliminarily, I claim that the declaration of crisis legitimized for Maimonides a dramatic move in the field of Halakha, which otherwise would have lacked sufficient justification.

In a study of the figure and works of Maimonides, Moshe Halbertal also dedicated a discussion to the way in which Maimonides unfolds the history of Halakha in the introduction to Mishneh Torah. Halbertal’s analysis focuses on the role of the “geopolitical” crisis in the narrative, that is, on circumstances in which “the prospect of centralized, institutional halakhic authority – which depends on political stability – was lost.”^[6] In Halbertal’s words:

Maimonides appears to regard the rise of Islam, and the dispersion of Jewish communities to the Maghrib and Spain in its wake, as the ‘extraordinarily great dispersion’ that has taken place since the completion of the Talmud. His remarks about the intensified historical crisis of his own time appear to relate to the destruction of Andalusian Jewry by the Almohads.^[7]

Moreover, Halbertal aptly demonstrated the relation forged by Maimonides between the circumstances of the composition of Mishneh Torah and Rabbi Judah the Prince’s redaction of the Mishnah, and presented the broader theory of authority that is fundamental to Mishneh Torah, according to which a halakhic treatise gains authority through its dissemination and acceptance as binding by the people of Israel. Although these two points are foundational to this article, I wish to shift perspective and interpret both differently. Instead of accepting Maimonides’ claim about the crisis as a well-established fact and an external, circumstantial instrument, an assumption that has yielded further studies that focused on reconstructing the critical historical circumstances, I seek in the following pages to analyze the way in which the very pronouncement of crisis, as a declaration of a halakhic “state of exception,” allows Maimonides to reshape, in a dialectical manner, the discursive space and canonical politics in which the Mishneh Torah is situated. Maimonides does not only, and not essentially, describe in a series of propositional sentences the crisis that befell the sphere of Halakha in his days, but also declares, in a performative manner that will be explored below, a state of crisis along with the steps that must be taken to overcome it. This declaration is formulated in the Mishneh Torah as a rhetorical move that is well grounded in earlier Rabbinic sources. The following analysis, therefore, will both make use of discourse analysis and at the same time remain philologically attuned to the earlier Talmudic stratum, emphasizing the specific way in which these sources conceptualize crisis.

2 Crisis discourse in the introduction to Mishneh Torah

In order to articulate the dynamics that characterizes the Halakha, Maimonides creates in his introduction a mosaic of sources, inlaying and embedding numerous Rabbinic motifs and derashot, explicitly and implicitly, with or without a manipulation of the meaning of these motifs.^[8] At times, as I will show, this is done specifically in order to harness the sources’ rhetorical force and canonical capital. Thus, an appreciation of the introduction demands careful attention not only to the arguments presented in it but also to the ways in which it utilizes and intensifies Rabbinic tropes.^[9] Moreover, an assessment of the introduction along these lines – that is to say, an assessment that attends to its rhetorical force – will allow us to see not only its achievement as an assemblage of arguments that narrates the story of the formation of Mishneh Torah, but also its ambition as a speech-act seeking to legitimize the project itself and secure its authority among the diasporic people of Israel.

In the following pages, I present two motifs that will be reinterpreted in the specific context of the crisis discourse in the introduction to Mishneh Torah. In the course of this analysis I clarify both the character of the threat that according to Maimonides looms over the Oral Law in its halakhic manifestations and the character of the response that Maimonides deems necessary to protect and preserve it.

2.1 Succession and transmission

In the opening words of the introduction Maimonides addresses the notion of the continuity of the Oral Law by presenting the chain of transmission, a canonical motif drawn from the first mishnayot of the mishnaic tractate Avot. In order to discuss the chain of transmission and Maimonides’ specific application of it we need to ask first what it is that the ascription of a textual body to a chain of transmission imparts to it.

The clear purpose of the chain is to impart authority to the text (or to the specific persons or institutions that rely on it as its representatives or successors). Moreover, the chain traces not only the origin, but also the links that together create the continuum. In order for this rhetorical tactic to achieve its goal, and for the source to bestow its authority upon the very last link in the chain, several conditions need to be fulfilled. First, as demonstrated by Raymond Geuss in his philosophical analysis of the pedigree,^[10] the source needs to be positively assessed, that is, to be regarded in itself as a source of authority. Second, each link in the chain is required, in its own turn, to preserve the value imparted by the source. A missing link in the chain is, in the words of Moshe Halbertal, “a mortal blow to a mighty body of knowledge that becomes irretrievable.”^[11] Indeed, even a link that is not missing but merely valued as inferior can cast a shadow both backward – on the preceding link, for endangering the entire chain by delegating its authority to a party that did not succeed in preserving the tradition – and forward, on the succeeding links, since their bond to the source has been weakened. The general logic of the rhetorical tactic of presenting a chain of transmission and designating its links is a logic of legitimization, or at the very least of stabilization or a deepening of authority. It is generally employed as a step of valorization, performed by tracing an object back “through a series of unbroken steps of transmission to a singular origin,” that is, by presenting an unbroken chain in which every link preserves the value of the origin.

It is in light of this dynamic, I argue, that we ought to read the opening words of the mishnaic tractate Avot, which present us with the chain of transmission that proceeds from teachers to disciples, from the revelation in Sinai to the Rabbis of mishnaic times.^[12] In the celebrated words of the Mishnah:

Moses received the Torah from Sinai and passed it on to Joshua, and Joshua to the elders, and the elders to the prophets, and the prophets passed it on to the Men of the Great Assembly […] Simon the Just was of the remnants of the Great Assembly […] Antigonus of Sokho received from Simeon the Just […] Hillel and Shammai received from them […] Rabban Johanan ben Zakkai received from Hillel and from Shammai […]. Five disciples were there to Rabban Johanan ben Zakkai and these are they: Eliezer ben Hyrcanus, R. Joshua ben Hananiah, Rabbi Joseph, and R. Simeon ben Nethanel, R. Elazar ben Arakh.^[13]

The opening units of Tractate Avot are intended, in the words of Moshe Halbertal, “to trace an unbroken and reliable chain of transmitters,” in order to ensure the succession of Halakha as it was given at Sinai “all the way until the time the work was written.”^[14] And indeed, among the very last links of the chain is the circle of disciples of Johanan ben Zakkai, who are quoted often throughout the Mishnah and partake in its discursive shaping.

In his introduction to Mishneh Torah, Maimonides elaborates on the chain of transmission and its occurrences. Naturally, the last links in the chain are no longer the Tannaitic ones, and instead the chain now spans from the giving of the Torah to Moses at Sinai all the way up to the days of Maimonides himself – “our time,” in his words. Thus, the succession begins, according to Maimonides, with Moses transmitting the interpretation of Torah – that is, according to him, transmitting the halakhic texture that can be inferred from the verses – to Elazar and Phineas and Joshua and to a court of seventy elders. From this first stratum the transmission continues onward. These are the opening words of the introduction:

All the precepts which Moses received on Sinai were given together with their interpretation, as it is said, ‘And I will give to you the tables of stone, and the law, and the commandment’ (Ex. 24:12). ‘The law’ refers to the Written Law; ‘the commandment’ to its interpretation. God bade us fulfill the Law in accordance with ‘the commandment.’ This commandment refers to that which is called the Oral Law. […] ‘The commandment,’ which is the interpretation of the Law, he did not write down […]. Although the Oral Law was not committed to writing, Moses taught the whole of it, in his court, to the seventy elders as well as to Eleazar, Phineas, and Joshua – all three of whom received it from Moses. Many elders received the Oral Law from Joshua. Eli received it from the elders and from Phineas. Samuel, from Eli, and his court. David, from Samuel and his court […].^[15]

Much can be said about the character of this chain of transmission as reproduced here by Maimonides, and in particular about his unconventional choice of recipients of the Oral Law which together make up the succession of transmission and reception, about the new key figures in this succession,^[16] and about the cumulative manner in which the laws are extracted from the Written Law.^[17] In the present framework, however, I wish to emphasize one unique aspect of Maimonides’ use of the chain of transmission, which produces a displacement and a manipulation of the familiar continuum model. In stark contrast to the succession described in Tractate Avot, Maimonides presents the chain of transmission not only to testify to the reliability of the Oral Law but also to expose and underscore the constant danger it faces. As a rhetorical instrument, by introducing the threat as an essential element of the chain, Maimonides altogether changes its character, for instead of functioning as a stabilizing factor that allows for the concatenation of the Oral Law all the way back to its source at Sinai, the chain is now cast as essentially fragile throughout the generations. For its value to be protected, the community must succeed in faithfully transmitting it and retaining its unity, yet there is no guarantee that the community will be fit for this task.^[18]

The first threat to the continuum, and the action taken to address it, is described by Maimonides as occurring in the days of Judah the prince.^[19] In contrast to the succession described as uninterrupted right up to the days of the redactor of the Mishnah, who, according to Maimonides, is the author of the book of Mishnah, the hour of Judah the Prince is presented as a time of crisis for the Oral Law:

And why did our holy master act thus [put the oral tradition to writing] and not leave the matter as it was? Because he saw that the disciples were becoming fewer, and new calamities were coming upon them, and the Roman government was expanding and growing stronger, and Israelites were wandering away to the ends of the earth.^[20]

The sequence of transmission, according to this account, does not occur uninterrupted throughout history but rather is exposed to the vicissitudes of time, and constantly vulnerable, we suddenly realize, to the danger of a severance of the chain. In addition, in order for the continuum to survive the threat, Judah the Prince was demanded to transgress the guiding principle that had endured from the times of Moses, namely, the principle of refusing to put the Oral Law to writing for any purpose other than memorandum.^[21] And indeed, the measure taken by Rabbi Judah the Prince achieves its aim and reinstalls the succession, allowing for the chain to pick up its continuity once again as if it had never been interrupted, as the following passage depicts:

Then he and his court sat for the rest of his life and studied the Mishnah openly. And these are the distinguished wise men which were in the court of our holy master and received from him: his sons Simeon and Gamaliel. And Rabbi Effes […] all these wise men are the most distinguished men of the generations.^[22]

Furthermore, the preservation of the Oral Law is not only an act of guarding a body of knowledge, namely, the commandments as interpreted and extracted by every generation using the “hermeneutic principles” that govern the production of a valid interpretation; it also entails preserving Oral Law as an institution embodied in the authority of the great court and in the application of its rulings to the whole of Israelite existence.^[23] The court as depicted by Maimonides constituted the axis of authority that made it possible to overcome the wide dispersion of communities, and functioned as a solid foundation that endured in the face of the fluctuations of time and fate.^[24] Herein lies another difference between Tractate Avot, in which the court is not mentioned, and Maimonides’ introduction. In fact, Maimonides embeds the institution of the court within the chain of transmission, from its very beginning in the days of Moses. The centrality of this institution to the succession of Halakha in the account given in the introduction to the Mishneh Torah can be inferred by the very fact of its insertion into the first link in the chain, the point at which the whole of the Oral Law is transmitted, by Moses, “in his court, to the seventy elders.” The importance of the court is further attested by the fact that it is the most frequent term in the introduction, repeated as much as fifty times and recalled in every link up until the time of Hillel, and from Hillel to Judah the Prince it is mentioned under the principle that “in each generation, the head of the then existing court or the prophet of that time wrote down for his private use a memorandum of the traditions which he had heard from his teachers, and which he taught orally in public,”^[25] and even beyond this it applies up to the time of the redaction of the two Talmuds, about which it is said: “These two Talmuds contain an exposition of the text of the Mishnah and an elucidation of its abstruse points and of the new matters that had been added by the various courts from the days of our holy master, till the compilation of the Talmud.”^[26] The time of the Talmuds is depicted by Maimonides as perched on the verge of another threat to the succession:

After the Court of Rav Ashi, who compiled the Gemara which was finally completed in the days of his son, an extraordinarily great dispersion of Israel throughout the world took place. The people emigrated to remote parts and distant isles. The prevalence of wars and the march of armies made travel insecure. The study of the Torah declined. The Jewish people did not flock to the colleges in their thousands and tens of thousands as heretofore; but in each city and country, individuals who felt the divine call gathered together and occupied themselves with the Torah.^[27]

Indeed, the crisis of the Talmudic age not only involves an anxiety over the ominous possibility of the termination of the chain, caused by the drop in the number of disciples, but also witness another type of threat, namely, the disintegration of Halakha as a consequence of the splintering of the institution of the court into multiple courts. In the words of Maimonides: “Each court that was established in any country, after the time of the Talmud, made decrees or introduced customs for those residing in its particular country or for residents of various other countries, its enactments did not obtain the acceptance of all Israel because of the remoteness of the settlements and the difficulties of travel.”^[28] This deteriorated state of affairs is depicted by Maimonides in the powerful words: “The court of any particular country consisted of individuals and the great court of seventy-one has ceased to exist a few years before the compilation of the Talmud.”^[29] With these words Maimonides hints, first, at the nature of the enterprise undertaken by Rav Ashi and its indispensability, but also at a paradigmatic change and a transformation in the structure of the authority in which the succession of the Oral Law is embodied. The great court, now inoperative, is not replaced by a consensus among the different courts of the different Jewish communities, but instead by what Maimonides calls the acceptance of the community in its entirety, “all of Israel,” and the community’s authorization of the text as binding.^[30] This radical change, indeed a framework transition, is embedded in the Maimonidean narrative by a displacement and an alteration of the crucial factor that empowers the contents of Halakha in every generation:

[…] and the new matter evolved in each generation, which had not been received by tradition but had been instantiated by application of the thirteen hermeneutical principles and were agreed upon by the great court […] and these were instantiated by the great court by the hermeneutic principles, and which were decreed by the elders, which have judged thus […] and the great court of seventy-one has ceased to exist a few years before the compilation of the Talmud […] all these matters mentioned in the Talmud were accepted by all Israel, and those sages who instituted or decreed or introduced costumes or issued judgments and taught that a certain ruling was correct, constituted all, or the majority, of the sages of Israel, and they were the ones who received the tradition concerning the principles of the Torah in its entirety, from each other, up to Moses.^[31]

The disintegration of the great court heralds a new epoch in the history of Halakha. The challenge that the Oral Law faces with the loss of its axial institution, along with the unprecedented threat to which it has been subject, suggests an ominous future that awaits it after the compilation of the Talmuds. This future is indeed realized, according to Maimonides, in the days of the Geonim, when, in spite of their virtues, their profound wisdom and the assertion that they are the ones who “elucidated [the Talmud’s] obscurities, and expounded the various topics with which it deals,” a gap was opened between the different authorial figures, and they came to form the first generation of the scission.^[32] In contradistinction to the Talmud, which obtained the acceptance of “all Israel,” the age of the Geonim is a time of decentralization.^[33] Maimonides’ short account of the Geonic times is ambiguous, moving between an acknowledgment of the supreme effort to retain the Torah in its diasporic times and an insinuation of the incapacity of the Geonim to retain Halakha’s cohesion and safeguard its totality in the face of danger. The Halakhic oeuvre of the Geonim, according to Maimonides, although responding aptly to the difficult questions of the “residents of every city,” was not ambitious and foresighted enough to counteract the process of the Halakha’s deterioration so that by the times of Maimonides he describes its predicament thus:

In our days, severe vicissitudes prevail, and all feel the pressure of hard times. The wisdom of our wise men has failed; and the prudence of our prudent has vanished. Hence, the commentaries of the Geonim and their compilations of laws and responses, which they took care to make clear, have in our times become hard to understand so that only a few individuals properly comprehend them.^[34]

Maimonides’ own “historical” moment, then, like the preceding times of the compilation of the Talmuds and the days of Rabbi Judah the Prince, witness a severe threat to the continuation of the Oral Law. To underscore the specific character of this threat, let us look closely at two sugiyot from the Babylonian Talmud to which Maimonides alludes when writing about the three critical times mentioned above.

2.2 Lest Torah be forgotten from Israel

The first sugia is extracted from the Babylonian tractate Shabbat, and is alluded to by a paraphrase of a verse fragment from Isaiah (29:14), “And the wisdom of our wise has failed; and the prudence of its prudent shall vanish,” which is interlinked in the Babylonian passage to a verse from Deuteronomy:

As for the Torah, Rab said, “The Torah is destined to be forgotten from Israel: ‘the Lord will inflict baffling plagues upon you and your offspring’ (Deu. 28:59). But I do not know how they will be baffling. Then it is said, ‘Truly, I shall further baffle that people with bafflement upon bafflement; And the wisdom of its wise shall fail [And the prudence of its prudent shall vanish]’ (Isa. 29:14), so it means that this ‘baffle’ involves the Torah.” Our Rabbis have taught: When our Masters entered the vineyard in Yavneh they said: The Torah is destined to be forgotten from Israel, for it is said, “a time is coming, declares my Lord God, when I will send a famine upon the land: not a hunger for bread or a thirst for water, but for hearing the word of the Lord,” and it is said: “They shall wander from sea to sea and from north to east to seek the word of the Lord, but they shall not find it.” (Ibid., 8:12) ‘[…]The word of the Lord’: That means, Halakha. ‘[…]The word of the Lord’: That means, the end. ‘[…]The word of the Lord’: That means, prophecy. [And what is the meaning of] “They shall wander from sea to sea and from north to east to seek the word of the Lord, but they shall not find it”? They said, A woman is destined to take a loaf of bread in the status of heave-offering and make the rounds of synagogues and houses of study to find out whether it is unclean or whether it is clean, and no one will understand. […] R. Simeon b. Yohai says, “God forbid that the Torah should be forgotten from Israel, as it is said, ‘for it will never be lost from the mouth of their offspring.’ (Deu. 31:21). But then how should I interpret the verse, ‘[they shall wander] to seek the word of the Lord, but they shall not find it’ (Amo. 8:12)? There will be no distinct Mishnah or distinct Halakha in any place. ^[35]

The foreboding danger declared by the text is the forgetting of Torah in Israel. In the cited passage above, the Babylonian sugia weaves together two earlier Tannaitic sources. One of the sources, first quoted in the Tosefta, depicts the convention of the sages in Yavneh.^[36] The other, expounding on the verse “[they shall wander] to seek the word of the Lord, but they shall not find it”, appears first in the Sifre Deuteronomy.^[37] As demonstrated by Shlomo Naeh,^[38] the earlier presentation of these sources does not refer to any sort of calamity^[39] but is instead concerned with the “sheer abundance,” and with the question of handling the plentitude. The anxiety attested to in the Tannaitic strata concerns the danger of Halakha losing its cohesiveness due to the overflow. This threat calls for a restructuring of the Halakha in such a way that will bring order into its multiple contents. In the words of Naeh: “This prosperity of the words of Torah, which, as it were, multiply as if by themselves, arouses a concern in the heart of the sages, fearing that if worst come to worst one shall seek a word of Torah or word of scribes and will not find it.”^[40] In contrast to the Tannaitic context of the sources, and even while the general problem – namely, the problem of organizing the Halakha – is retained, the tonality of these very sources is altogether altered in BT Shabbat, and an emphasis is put on the calamitous character of the prevailing state of affairs and the attendant fear of loss. Instead of prosperity, the Bavli casts the situation as grave and depicts the loss of wisdom from Israel. Moreover, a careful reading of the passage elucidates the type of danger declared by Maimonides in his introduction. Indeed, the loss of Halakhic cohesion is delineated by Maimonides as the literal annulment of the Oral Law and as a disintegration of the communal texture that unites Jewish life throughout the diaspora. This loss is not partial – that is, a loss that concerns only one dimension, however important, in the life of the community – but fatal to the community’s most fundamental organizing principle, and even entails the loss of the community itself as a community anchored in the singular moment at Sinai. Not as a direct consequence of an external enemy will the community be destroyed, but because of its inability to preserve the unity of Halakha in the face of danger. The threat that “There will be no distinct Mishnah or distinct Halakha in any place” means, for Maimonides, the loss of a foundation that bestows upon the Halakha its unitary character and counteracts the inclination toward disintegration. This, in Maimonides’ account, is not related to any state of overabundance, but to a diminution and atrophy, as stated in his words about the time of the compilation of the Mishnah, “Because he saw that the disciples were becoming fewer, and new calamities were coming upon them;” the time of the compilation of the Talmud, “The study of the Torah declined […] [and only] individuals who heeded the divine call gathered together,” and his own time.^[41]

Another Babylonian source, presented in BT Temurah (14b), reveals the radical response that the threat of the forgetting of Torah requires:

Thus said R. Abba b. R. Hiyya b. Abba in the name of R. Yohanan: Those who write down Halakhot are as if they are burning the Torah, and one who learns from them is entitled to no reward. R. Judah b. Nahmani, the interpreter of R. Simeon b. Laqish, expounded: One verse says: ‘Write down these words’ (Exo. 34:27), and another verse says: ‘for in accordance with [lit. by the mouth of] these words’ (Exo. 34:27). This means to tell you, oral matters you are not allowed to put in writing, and those that are to be in writing you are not allowed to orally cite. And a Tanna of the school of R. Ishmael taught: ‘Write down these words – [only] these are the words that you may write, but you may not write down Halakhot! [By way of reply:] perhaps a new matter should be different [regarding these regulations]. For R. Yohanan and R. Simeon b. Laqish were studying a book of aggadah on the Sabbaths, and they expounded in this way [to explain their actions]: ‘It is time to act for the Lord; violate your Torah’ (Psa. 119:126), they said, it is better that Torah be uprooted, than that the Torah be forgotten from Israel.^[42]

In light of the comparison of those who write down oral teachings to those who burn the Torah, the sugia discusses the case of R. Dimi who sought to write down an issue of Halakha and send it to R. Joseph, and excuses his act, in spite of the prohibition, based on the abnormal permission of “It is time to act,” which applies at a time of imminent danger for the sake of preventing the Torah from being forgotten.^[43] The violation of Torah is decisively bound up, in this daring exegesis, with the threat of forgetting the Oral Law.

This sugia is echoed in Maimonides’ discussion of the writing down of the Mishnah by Rabbi Judah the Prince. More precisely, the words of the sugia are both hushed and concealed in the words of Maimonides, and at the same time intensified and broadened to a dramatic extent. Hushed in what sense? Indeed, the peril of Torah being forgotten remains explicit in the words of Maimonides, but his depiction of the response to this peril as an infringement of the Oral Torah’s modus operandi is only faintly present.^[44] While the prohibition on the act of writing is modestly stated at the beginning of the introduction – in the seemingly neutral statement that the “commandment,” meaning the interpretation of the Torah, that is, the body of Halakhot, Moses did not commit to writing – Rabbi Judah the Prince is presented as the one who authored “the book of Mishnah.”^[45] Rabbi Judah’s transgression is enshrouded in a question, posed nonconspicuously yet alluding strongly to the sugia discussed above: “And why did our holy master act thus and not leave the matter as it was? […] [in order that it] could be promptly studied and not be forgotten.” In contradistinction to this clandestine embedding of the context of the sugia within the introduction, note how Maimonides simultaneously intensifies the sugia – which in its original context addresses the issue of writing matters of Halakha through a secondary discussion about written words of Aggadah – by situating it, unprecedentedly, in the history of the Halakha,^[46] as a foundation for the Mishnah in its entirety.

Corresponding to his narrative of the compilation of the Mishnah, Maimonides proclaims a crisis taking place in his own times, along with the necessary response. In the forceful Hebrew formulation of Isadore Twersky, “The gloom of events and upheavals engulfed the generation. It left its impression on the nation and there came to be an hour of emergency that demanded reparation.” Maimonides’ response to “this challenging situation in which knowledge of Torah is sadly lacking or exists very precariously […] was the composition of a comprehensive Code which would facilitate halakhic study in every conceivable way.”^[47]

What constitutive discursive role does the designation of crisis, or an “hour of crisis” in Twersky’s words, perform in the introduction to Mishneh Torah, and what exceptional procedures does it legitimize? Instead of discussing, like Twersky, the historical emergency as a circumstantial tool on which Maimonides relied in the writing of his work (though without undermining the possibility that Maimonides did in fact conceive of his age as a time of great distress), my own aim here is to discuss the declaration of a state of emergency as an intra-traditional apparatus utilized by Maimonides to set and stabilize the comprehensive Halakhic code, thereby significantly transforming the discursive space of Halakha.^[48]

3 Crisis and authority in the introduction to Mishneh Torah

On these grounds, I, Moses the son of Maimon the Sefardi, bestirred myself, and, relying on the help of God, blessed be He, intently studied all these works, with the view of conjoining matters elucidated by all these works in regard to things forbidden and permitted, unclean or clean, and the other rules of the Torah—all in plain language and terse style, so that thus the entire Oral Law might become systematically known to all, without citing difficulties and solutions or differences of view, one person saying so, and another something else,—but consisting of statements, clear and convincing, and in accordance with the conclusions drawn from all these compilations and commentaries that have appeared from the time of Moses to the present, so that all the rules shall be accessible to young and old, whether these appertain to the (Pentateuchal) precepts or to the institutions established by the sages and prophets, so that no other work should be needed for ascertaining any of the laws of Israel, but that this work might serve as a compendium of the entire Oral Law, including the ordinances, customs and decrees instituted from the days of our teacher Moses till the compilation of the Talmud, as expounded for us by the Geonim in all the works composed by them since the completion of the Talmud. Hence, I have entitled this work Mishneh Torah, for the reason that a person, who first reads the Written Law and then this compilation, will know from it the whole of the Oral Law, without having occasion to consult any other book between them.^[49]

Maimonides’ declaration regarding the crisis of his times is not exhausted by its “propositional” quality, that is, by its content representing a state of affairs and corresponding to the historical circumstances in which it was written.^[50] Furthermore, it does not merely present the structural affinity between the writing of Mishneh Torah and canonical moments of gathering the Oral Torah, first and foremost by Judah the Prince and the redaction of the Mishnah. Above these goals, Maimonides’ introduction is designed to establish an authoritative status for his treatise within the discursive realm of Halakha. In other words, Maimonides composes his introduction as a series of performatives.^[51] The performative speech act, as presented by J. L. Austin, is neither “true” nor “false,” and indeed cannot be so precisely because it does not “‘describe’ or ‘report.’” It does not represent a state of affairs, and is not uttered or written in order to affirm or deny an existing fact. The performative performs differently. Indeed, what distinguishes the performative is its being an act, a dynamic intervention in a prevailing state of affairs. The question in the present context, then, is this: How can Maimonides intervene in such a manner in the realm of Halakha without his act being condemned as insolence with respect to the predominant modes of Halakhic deliberation? Put otherwise, the principal difficulty that arises from the treatise is condensed in the question whence and in what sense can Maimonides be invested with the authority to generate the Mishneh Torah when the very act of writing the treatise challenges the predominant structures of authority and seeks to undermine them insofar as Maimonides’ aim is to alter them forever?^[52] Paradoxically, the introduction to Mishneh Torah does not challenge the Halakhic discourse primarily through contentious rulings but instead seeks to transform it radically through the very act of its writing. Unlike those actions performed within the confines of the prevalent Halakhic discourse, that is, decisions that in Maimonides’ phrasing pertain to the “rules, decrees, ordinances and customs” generated by authorized representatives of the community, Maimonides performs an act whose very enactment seeks to acquire the authority to be enacted, an authority that at the time of the writing of the Mishneh Torah has yet to be acquired.^[53] The narrative unfolded by Maimonides in his introduction not only revisits the past times of the Oral Law and addresses the present in which Maimonides claims to “bestir” himself and write his “great treatise,” but also deals, to no lesser extent, with projections for the future. The introduction addresses the treatise’s foreseeable future in a complex manner, and in effect, by anchoring the treatise in the discourse of crisis, aims to bring forth the future conditions that will allow for the acceptance of the treatise.^[54] The authority sought by Maimonides will be invested in his treatise only if the transformation in the structure of authority that the treatise itself seek to bring about through the declaration of crisis in the realm of Halakha is successfully completed. Yet at the time of writing, this future, in which Maimonides’ depiction of a grave crisis and his far-reaching response to it will be acknowledged and affirmed, is but a speculative future, a wish that might well be frustrated since only the test of time stands to fulfill it.^[55]

How does Maimonides handle this problem of authorizing the treatise? In order to gain authority he leads the Halakhic authority to its limits: “In our days, severe vicissitudes prevail, and all feel the pressure of hard times. The wisdom of our wise men has failed; and the prudence of our prudent has vanished,” and it is from this limit that he takes the permission to write the treatise. The crystal lucidity of Maimonides’ prose, the steady hand with which he guides the reader through the introduction to the Laws Concerning the Foundations of the Torah, is in fact misleading, for his words carry the vibration of a provocative, hanging on a thin thread, its status as yet undecided. Maimonides’ ambitious enterprise, which he describes as necessitated by his time, is an audacious dare, which at the time of its writing throws its full weight on the future possibility that it will be accepted by “all Israel” and retroactively acknowledged as binding.

In contrast to the authority of a derivation of a law in accordance with the hermeneutic principles for legal reasoning, or the authority of the court as representative of the community, both of which are grounded in the prior authorization of an institution or a practice, Maimonides’ introduction turns authority into a contested arena within which the rest of his treatise plays itself out. His words, which seek to “conjoin matters elucidated by all these works in regard to things forbidden and permitted, unclean or clean” to the point that “a person who first reads the Written Law and then this compilation will know from it the whole of the Oral Law, without having occasion to consult any other book between them,”^[56] are uttered in a space that has been voided of authority due to the critical situation declared. They demand to be considered as resulting from circumstances in which it is not only unforbidden to perform such an act (the act of writing them in such a manner), but indeed required in light of the threat to the stability of the Halakha as a cohesive corpus. That being said, Maimonides does not wish to prolong or extend this zone of indeterminacy created by his introduction, but rather, ultimately, to nullify it by the future authority accorded to his treatise, that is, by the acceptance of the whole code as a fitting response to the emergency declared in its introduction. The tension between the establishment of Torah and its destabilization is at its height in the introduction to the Mishneh Torah, for it is here that Maimonides simultaneously draws the authority to write the treatise in its entirety from the critical time and seeks to overcome that critical time by writing the treatise. In other words, the treatise summons the calamitous time into its realm in order to be written, all the while wishing to banish it. The introduction you have just read, Maimonides seems to suggest, is the first step toward overcoming the crisis of Halakha declared within it; a deviation from the historical path that is leading the Halakha to its ruin; a daring effort to address the Halakha’s destabilization in the hour of Israel’s diasporic existence.

In this sense, it is important to see the crisis that Maimonides declares – that is, his rendition of the destabilization of Halakha and the demand to take the risky act of transforming and reorganizing the Oral Law – in its full complexity, for the crisis is not merely a negative principle in the production of the Mishneh Torah but rather a necessary and productive element in the dialectic that generates the great enterprise of Mishneh Torah. The loss of the binding force of Oral Law, due to the statement that in his time “only a few individuals properly comprehend them,” and the weakening of Halakhic authority from the time of the Geonim onward are the very factors that made such a work of codification possible. The Halakhic void created by the crisis is the treatise’s condition of possibility, and acknowledging Maimonides’ claim about the unique distress of his period is the condition of its reception. In order to achieve the canonical status sought by its author, Mishneh Torah must overcome its problematic starting point as an act performed without permission.^[57] In other words, the treatise must gain its aspired authority by gaining a binding status for an act performed in aberration from the very framework of the prevailing modus operandi of Jewish Halakha. This status Maimonides hopes to secure through the future influence of the treatise’s introductory words, that is to say, through the broad acknowledgement, first, of his time as a time of distress comparable in scale to the threat foreseen at the time of the redaction of the Mishnah, and second, of his response as an adequate one, analogous to that of Rabbi Judah the Prince.^[58] Maimonides’ effort to stabilize the Halakha by means of the crystalline structure of the Mishneh Torah is achieved at the cost of a radical, even if only temporary, undermining of the stability of the Halakha as an all-encompassing discursive framework that provides the measure and matrix for every act. His lucid legal ruling, which unfolds throughout the work and seeks consistently to clarify and thus remove disputes, casts a light so blinding that it conceals the chasm upon which the treatise is founded as well as the uncertainty of its future at the time of its writing.^[59]

Acknowledgments

I am grateful to Menachem Lorberbaum, Menachem Fisch, Yossef Schwartz, Moshe Halbertal, Orit Malka and Michael Fishbane for stimulating criticism and insightful suggestions on earlier versions of this article.

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Received: 2020-09-10

Accepted: 2020-09-23

Published Online: 2020-11-16

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Articles in the same Issue

https://doi.org/10.1515/opphil-2020-0140

Keywords for this article

Maimonides; Jewish Halakha; framework transition; Mishneh Torah; Medieval Judaism; crisis discourse; Menachem Fisch

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