JEWISH LAW ASSOCIATION STUDIES XXX Celebrating 100 Years of Ḥevrat Hamishpat Haʻivri JEWISH LAW ASSOCIATION STUDIES (JLAS) ISSN: 0890-7552 JLAS I: The Touro Conference Volume (B.S. Jackson, Editor) JLAS II: The Jerusalem Conference Volume (B.S. Jackson, Editor) JLAS III: The Oxford Conference Volume (A.M. Fuss, Editor) JLAS IV: The Boston Conference Volume (B.S. Jackson, Editor) JLAS V: The Halakhic Thought of R. Isaac Herzog (B.S. Jackson, Editor) JLAS VI: The Jerusalem 1990 Conference Volume (B.S. Jackson and S.M. Passamaneck, Editors) JLAS VII: The Paris Conference Volume (S.M. Passamaneck and M. Finley, Editors) JLAS VIII: The Jerusalem 1994 Conference Volume (E.A. Goldman, Editor) JLAS IX: The London 1996 Conference Volume (E.A. Goldman, Editor) JLAS X: The Jerusalem 1998 Conference Volume (H.G. Sprecher, Editor) JLAS XI: Law, Judicial Policy and Jewish Identity in the State of Israel (D.B. Sinclair, Editor) JLAS XII: The Zutphen Conference Volume (H. Gamoran, Editor) JLAS XIII: Jewish Family Law in the State of Israel (M.D.A. Freeman, Editor) JLAS XIV: The Jerusalem 2002 Conference Volume (H. Gamoran, Editor) JLAS XV: Jewish Biomedical Law (D.B. Sinclair, Editor) JLAS XVI: The Boston 2004 Conference Volume (E. Dorff, Editor) JLAS XVII: Studies in Medieval Halakhah in Honor of Stephen M. Passamaneck (A. Gray and B.S. Jackson, Editors) JLAS XVIII: The Bar-Ilan 2006 Conference Volume (J. Fleishman, Editor) JLAS XIX: Jewish Commercial Law. Essays in Memory of George Webber (J. Cohen, Editor) JLAS XX: The Manchester Conference Volume (L. Moscovitz, Editor) JLAS XXI: Israel as a Jewish and Democratic State (A. Maoz, Editor) JLAS XXII: “Wisdom and Understanding”. Studies in Jewish Law in Honour of Bernard S. Jackson (L. Moscovitz and Y. Rivlin, Editors) JLAS XXIII: The Fordham Conference Volume (D.B. Sinclair and L. Rabinovich, Editors) JLAS XXIV: The Netanya Conference Volume (Y. Sinai, Editor) JLAS XXV: Jewish Law and its Interaction with Other Legal systems (C. Hayes and A. Israel-Vleeschouwer, Editors) JLAS XXVI: Jewish Law and Academic Discipline: Contributions from Europe (E. Ancselovits and G. Wilkes, Editors) JLAS XXVII: Judaism, Law and Literature (M. Baris and V. Liska, Editors) JLAS XXVIII: The Jewish Family (H. Fox and T. Meacham, Editors) JLAS XXIX: The Impact of Technology, Science, and Knowledge (E.S. Ancselovits, E.N. Dorff and A. Israel-Vleeschhouwer, Editors) Jewish Law Association Studies XXX Celebrating 100 Years of Ḥevrat Hamishpat HaʻIvri Edited by Malka Katz, Mordechai Anton Kanevskiy and Amos Israel-Vleeschhouwer The Jewish Law Association 2022 Copyright © 2022 Jewish Law Association All rights reserved. No portion of this publication may be duplicated in any way without the express written consent of the publisher, except in the form of brief excerpts or quotations for the purpose of review. Printed by IngramSpark Printing ISBN 978-1-7351796-3-6 (paperback) ISBN 978-1-7351796-5-0 (hardcover) ISSN: 0890-7552 Published and Distributed by: Phillip I. Lieberman On behalf of the Jewish Law Association Email: phlieberman@alumni.princeton.edu The Jewish Law Association Officers 2018/2022 Chairman: G. Wilkes Vice-Chairman: P.I. Lieberman Treasurer and Secretary: L. Rabinovich Secretary for Publications: A. Israel-Vleeschhouwer The Association seeks to promote the research and study of Jewish law through congresses, the publication of a journal, Jewish Law Association Studies, and making other publications in Jewish law available to its members at concessionary rates. For further details of membership, please contact the Treasurer and Secretary at LRabinovich@barclaydamon.com. CONTENTS 1: LEVI COOPER, Rabbi Akiva Eger and the Second Cholera Pandemic: Legislation, Social Action, and Mysticism 2: MARC B. SHAPIRO, “Halakhic Fiction” and Minhag Mevatel Halakha, with a Focus on the Post-Shulhan Arukh Era 3: MICHAEL J. BROYDE and SHLOMO C. PILL, The Rule of the Talmud vs the Rule of Rabbinic Consensus in the Orach Chaim Section of Rabbi Yeheil Mikhel Epstein’s Arukh HaShulhan 4: MALKA KATZ, Jewish Law—Ashkenazic or Sephardic: Toward an Examination of the Status of Sephardim and Mizrahim in the National Renaissance of Jewish Law 5: TIRZA KELMAN, What Makes a Text Responsa? R. Israel Isserlein’s Trumat HaDeshen as a Case Study 6: RON S. KLEINMAN, The Power of Monetary Customs to Override Halakhah: Developments in the Time of the Rishonim 7: YAACOV SHAPIRA, Forcing a Partner to Immigrate to the Land of Israel: Between Husband and Wife – Nomos and Narrative 8: LILAC TORGEMAN, The Contract between Rabbi Nathan Amram and Raphael de Picciotto: A Rare Exemplar of an Issachar-Zebulun Agreement 9: ELIMELECH (MELECH) WESTREICH, The Emergence of Elements of Negotiability in Jewish Law in Provence 10: MICHAEL WYGODA, Equal Child Support 1-24 25-60 61-81 82-98 99-110 111-125 126-167 168-181 182-197 198-217 BOOK REVIEWS — Jonathan S. Milgram, Book Review Editor 11: SAUL J. BERMAN, Review of Chaim Saiman, The Rabbinic Idea of Law 12: AMIT GVARYAHU, Review of Benjamin Porat, Justice for the Poor: The Principles of Welfare Regulations, from Biblical Law to Rabbinic Literature 13: ORIT MALKA, Review of Berachyahu Lifshitz, The Halacha: By God or by Man 218-220 221-225 226-229 5 WHAT MAKES A TEXT RESPONSA? R. ISRAEL ISSERLEIN’S TRUMAT HADESHEN AS A CASE STUDY by TIRZA KELMAN From the Geonic period at the end of the first millennium C.E, to this very day, numerous questions about halakhic dilemmas have been sent to Rabbis, with expectation of an authoritative halakhic answer. These questions and answers, are collectively called in Hebrew “She’elot U’teshuvot” or as an acronym (parallel to “Q&A”): “Sh”ut”. This expression, and the English word “responsa” that is used to translate it, are not only a literal description of what these texts are. Sh”ut or responsa are the title of an important literary genre1 of Jewish legal texts, alongside with commentaries and novellae, and codificatory literature.2 The vast corpus of responsa available to us3 is only a fraction of the full body of historical correspondence, most of which was not preserved. Yet, what has survived—manuscripts from the medieval period, and printed books from the early-modern and subsequent eras—is still an enormous body of knowledge, and one of the important genres of Jewish legal writings.4 The short inquiry in this article, as a humble addition to the existing research of responsa using various methodological tools,5 can only be a starting  Postdoctoral fellow, The Department of Jewish History, Ben Gurion University of the Negev. Email: tirzak@post.bgu.ac.il. I wish to thank my colleagues, the editors, and the anonymous readers for their suggestions, corrections, and advice. 1 The term will be used not in the rigid definition (see M. Gray, A Dictionary of Literary Terms, Singapore: Longman York Press, 1992), 127-128, rather in the wider meaning of the term as a categorizing taxonomy tool. For discussion of the importance of generic inquiry in literary research see A. Fowler, Kinds of Literature: An Introduction to the Theory of Genres and Modes, (Cambridge, Massachusetts: Harvard University Press, 1982). 2 M. Elon, Jewish Law: History, Sources, Principles, (Philadelphia-Jerusalem: Jewish Publication Society, 1994) Volume III (hereafter: Elon, Law), 1101- 1103, mentions a few more categories such as guidebooks, biographies etc. 3 Elon, Supra note 2, 1462 discusses over three hundred thousand responsa texts in over three thousand different books. Ever since the sixties of the 20th century the Bar Ilan Responsa project had digitized hundreds of thousands of responsa texts, as an ongoing project that is still taking place. This, together with built-in search methods, dramatically changed the ways in which responsa are being used. 4 See: Elon, Supra note 2, 1454-1528, on the legitimacy of responsa as an authority in the field of civil Jewish law see B. Lifshitz, “The Legal Status of the Responsa Literature”, Sh’naton ha-Mishpat ha-Ivri: Annual of the Institute for Research in Jewish Law (Hebrew),1983, 265-300. Lifshitz emphasized the comparison between the responsa and a legal opinion sent as part of a wide legal discussion (276- 277), and between the responsa and a binding authoritative decision (290-296). 5 Elon and Lifshitz’s works mentioned above are examples of responsa research using comparative legal methodology. There has been much done with historical methodologies focusing on historical evidence that could be deduced from responsa. The most influential work of this sort is H. Soloveitchik, Responsa as a Historical Source (Hebrew), (Jerusalem: Shazar Press, 1990). For a summary of the history of the responsa literature and its research, see P. Haas, Responsa: The literary History of a Rabbinic Genre, Scholars Press, Atlanta, Ga, 1996, and Soloveitchik’s review: H. Soloveitchik, “Responsa: Literary History and Basic Literacy,” AJS Review, 24:2, 1999, 343–357. A new approach was adopted by A. Schremer, “Ma’ase Rav”: Halakhic Decision-Making and the Shaping of Jewish Identity, (Ramat Gan: Bar Ilan Press, 2019). Using the methodological tools established by the realist school of research of law, Shremer criticized the limits of the historical research of responsa that Soloveitchik demonstrated. Though focusing on the 100 JLAS XXX: Celebrating 100 Years of Ḥevrat Hamishpat Haʻivri point for a wider discussion regarding the boundaries of the responsa genre and of its characteristics, that I hope that will continue in the future. A. Responsa texts In the introduction to his broad chapter about the responsa as a central literary form of Jewish law, Elon defines the term ‘responsa’ as: “all of the recorded rulings and decisions rendered by the halakhic authorities in response to questions submitted in writing”.6 According to this definition responsa must be a textual (and not oral) ruling. It must be a response, meaning that the halakhic text is a reaction to an earlier submission of a question. Elon’s definition refers directly to the recording of the text. In order to be part of the responsa corpus the text must have been recorded, by the writing authority himself, by his addressee, by students, or by people from later generations. This recording can be, and has been, of many different types. As separate correspondents or as a collection, creating a broader body of knowledge. The role of the answering authority in the process of preserving his answers variates, from deep involvement and active editing to none. Obviously, the content of the responsa texts and their style are of many different natures. The questions regarding the boundaries of the genre and its shared characteristics, alongside with defining sub-genres and drawing what makes them a type, are significant ones when we want to understand the texts as well as the body of responsa in Jewish law. In most cases, relating to a medieval book of responsa as a unified literary work would be a modern or post-modern endeavor, and in many cases an anachronistic viewpoint. However, the halakhic book Trumat HaDeshen, written by 15th century scholar R. Israel Isserlein, is an exception. As I will demonstrate, discussion about the nature of this book, and its status as part of the genre of responsa, goes back several centuries. This article will show that the reasons both for and against viewing Trumat HaDeshen as responsa can help to define the characteristics of the genre. I wish to use this discourse—from early-modern rabbis through to modern scholars of Jewish studies—as a prism through which we can learn not only about the work and the questions it raised, but also about the genre of responsa and the way it was perceived by its readership. B. R. Israel Isserlein and his books R. Israel Isserlein was born at the turn of the 14th century7 to a rabbinic family. His father, Petachya, was the grandson of R. Israel of Kremes, the author of the influential book, Hagahot textual rhetoric of the responsa literature, as a tool to reveal the intentions of the authors, Shremer is interested in the historical and social context, and not the literary insights. The genre question, that the current article focuses on, is of a literary nature. Examples of applying methodological tools from the disciplines of law and literature to the study of responsa are M. Washofsky, “Responsa and Rhetoric: On Law, Literature, and the Rabbinic Decision,” in J.C. Reeves & J. Kampen (ed.) Pursuing the Text: Studies in Honor of Ben Zion Wacholder (Sheffield, 1994), 360-409, and S. Dill, Responsa and literature: literary aspects in questions addressed to Halakhic authorities and their influence on the Halakhic decision, Dissertation (Hebrew), (Ramat Gan, 2012). For an overview of the responsa genre presented as an introduction to the field see S. Glick Eshnav Le-Sifrut Ha-Teshuvot (A window to the Responsa Literature) (Hebrew) (New York & Jerusalem: The Jewish Theological Seminary of America, 2012). Glick mentioned the debate that will be discussed in this article, regarding the nature of Trumat HaDeshen, in note 527 on page 180-181 there. 6 Elon, Supra note 2, 1454. 7 S. Eidelberg, Jewish Life in Austria in the XVth Century, (Philadelphia: Dropsie College for Hebrew and Cognate Learning, 1962), 40. Eidelberg writes that he was born around 1390. I preferred the more flexible timing Yuval referred to. See I. Yuval, The Sages and Their Times. Spiritual Leadership of the Jews in Germany at the Close of the Middle Ages (Hebrew), (Jerusalem: Magnes Press, 1989), 65. Kelman: What Makes a Text Responsa? 101 Asheri.’8 We do not know much about his mother, except for the fact that she was murdered in the 1421 riots. Another victim of these riots was his uncle, who was his most influential rabbinic teacher, R. Aharon Blumlin.9 We do not know the full scope of R. Isserlein’s early intellectual and rabbinic career. His first post on historical record is his role as the Rabbi of Marburg.10 Nevertheless, we know that by then his influence was felt well beyond Marburg. He was already a highly regarded authority, whom other Rabbis consulted.11 Later R. Isserlein became the Rabbi of Weiner Neustadt, near Vienna, serving as one of the prominent leaders of Ashkenazic and Austrian Jewry. 12 He held this position until he passed away in 1460.13 Already in his lifetime he was known by the moniker, “the Trumat HaDeshen”14, after his famous halakhic work. Trumat HaDeshen is structured around 354 questions and answers, covering a broad range of halakhic topics15. The numerological value of the Hebrew word “deshen” (‫ )דשן‬is 354, corresponding to the number of questions and answers in the book.16 As Edward Fram proved, the number was even more rigid than the choice of questions. Although different manuscripts have slight differences in content, the total number of 354 is stable. R. Israel Isserlein’s legacy included besides Trumat HaDeshen, more texts that he wrote, including responsa. Some other texts were published as part of “Leket Yosher”, authored by Joseph son of Moses, a close student of R. Isserlein.17 This book also holds information about Isserlein’s deep awareness and intended editing of Trumat HaDeshen, for example by telling the readers that he intentionally included two parallel responsa texts that are variants of the same question.18 In 1519, both of R. Isserlein’s halakhic books, Trumat HaDeshen was printed as part one of a new volume in Daniel Bomberg’s Venetian printing press. Part two was P’sakim U’Ktavim (literally: “Rulings & Writings”), a collection of responsa and various fragments of writings by R. Israel Isserlein.19 At the time, the print revolution triggered by the invention of Johannes 8 Yuval, Supra note 7, 62. C. Tchernowitz, Toldot HaPoskim (Hebrew), Part II, (Jerusalem: Book for Export, 1979), 266 and note 14 there. 9 Yuval, Supra note 7, 62. D. Tamar, “The Spiritual Character of R. Israel Isserlein” (Hebrew), Sinai 32 1953, 175185, 176. According to Tamar’s text, R. Aharon is R. Israel Isserlein’s uncle on his mother’s side, but this is likely an error. A family tree of R. Aharon’s family, including R. Israel Isserlein, can be found in Yuval, Supra note 7, p. 62. 10 Eidelberg, Supra note 7, p. 40. 11 Eidelberg, Supra note 7, p. 41. 12 Eidelberg, Supra note 7, p. 39, p. 41. Tchernowitz, Supra note 8, p. 266. 13 Eidelberg, Supra note 7, pp. 39, 41. 14 Y. Dinari, The Rabbis of Germany and Austria at the close of the Middle Ages (Hebrew). (Jerusalem: Bialik Press, 1984), 303. Regarding the importance of Austria as a center of Jewish life during R. Israel Isserlein’s time and shortly before, see Yuval, Supra note 7, p. 62, and p. 73, note 1. 15 The term Trumat HaDeshen refers to the removal of the previous day’s ashes from the altar. a process that took place every morning around daybreak in the temple in Jerusalem, by the priests. 16 See E. Fram, “Regarding the Order of the Printed Edition of Terumat Ha-Deshen (Hebrew),” in Alei Sefer: Studies in Bibliography and in the History of the Printed and the Digital Hebrew Book, 20 (1999), 81–96, in particular, p. 82 and note 2 there. Later in the article (83-85) Fram described the process of creating the order of the print edition, taking into account the presence of multiple manuscripts of the text. Not aware of this Dinari (Dinari, Supra note 14, 09-313) discussed at length the justification of the existing order. 17 Yossel ben Moshe, Leket Yosher, edited by J. Frieman, (Berlin: Mekitzey Nirdamim, 1903-1904). 18 There, part 2, 22. 19 Based on the list of the books printed in the year 1519 in A. M. Haberman, The Printer Daniel Bombergi and the List of His Prints, (Safed: Museum of the Art of Print, 1978) (Hebrew), 31, one might conclude that P’sakim U’Ktavim 102 JLAS XXX: Celebrating 100 Years of Ḥevrat Hamishpat Haʻivri Gutenberg’s printing press (about a decade before R. Isserlein passed away) was still in its infancy. The decision to print R. Isserlein’s writings so early in the print revolution is a testament to the popularity of his works. During this period, printing was still a costly process, and the selection of books by printers signaled their confidence that the book would be a strong seller.20 In the case of R. Isserlein’s works, this projection was correct; the response to his two-part book was so positive, that in 1546 the two works were reprinted together, again in Venice, this time on the Justinian printing press. R. Isserlein’s books were highly influential, as evidenced by the numerous references in subsequent halakhic works of the early-modern period, beyond his Austrian-Ashkenazi context. When R. Joseph Karo published his Beit Yosef in the 1550s, less than one hundred years after R. Isserlein’s death, Trumat HaDeshen appeared in the list of books, detailed in the preface, that Beit Yosef will relate to. Most of the sections of both Trumat HaDeshen and P’sakim U’Ktavim are referred to explicitly in R. Karo’s authoritative book.21 . Similarly, R. Shmuel de Medina, 16th century scholar from Thessaloniki, referred to R. Israel Isserlein’s work more than twenty times in the former’s responsa book Shu”t Maharashd”am. In one instance, confronting R. Karo’s criticism of R. Isserlein’s opinion in the Beit Yosef., Maharashd”am notes the high regard of Trumat HaDeshen by his teacher, R. Joseph Taitazak22, one of the most prominent scholars from the Iberian Peninsula who moved to the Ottoman Empire: I call heaven and earth as witnesses23 on my behalf. Thus, the sayings of the writer of Trumat HaDeshen were considered by my teacher, the great Rabbi, our Rabbi Joseph Taitazak, may his righteous memory be blessed, [to be as significant] as the sayings of the Rosh, his memory be blessed.24 C. Trumat HaDeshen vs. P’sakim U’Ktavim As mentioned earlier, both Trumat HaDeshen and P’sakim U’Ktavim contain questions and answers written by R. Isserlein, but there are very different. P’sakim U’Ktavim, the second part of the 1519 volume and all the later editions, is of the same nature as other halakhic collections of the time, such as Shu”t Maharil, Shu”t Mahari Bruna, and others: unedited letters that the writer, in this case R. Isserlein, received and sent, and some fragmental texts of original halakhic discussion. Trumat HaDeshen, the first part of the volume, is very different. The edited work 25 is a collection of 354 questions and answers, edited to be generic and hypothetical. For example, no was published before Trumat HaDeshen. Actually, they were printed in one volume, with Trumat HaDeshen appearing as Part I. 20 J. D. Galinsky, “And this Scholar Achieved more then Everyone for All Studied from his Works: On the Circulation of Jacob b. Asher’s Four Turim from the Time of its Composition until the end of the 15th century (Hebrew),” Sidra 19 (January 2004), 25-45, 35. 21 See T. Kelman, ‘I shall create halakhic ruling… for that is the objective’: The Dimension of Halakhic Ruling in Joseph Karo’s Beit Yosef, (Hebrew) Dissertation, (Be’er Sheva, 2018), 128 and note 32 there. 22 Regarding R. Joseph Taitazak, see M. Benayahu, “R. Joseph Taitazak – Head of Spain Diaspora in Turkey (Hebrew)” in M. Benayahu (ed.) Rulings of Mahari”t R. Joseph Taitazak, (Hebrew) (Jerusalem: Yad Harav Nissim Publications, 1987), 11-22. 23 Based on Deuteronomy 32, 1. 24 Shu”t Maharashd”am, part Even Haezer, 155. The Rosh, R. Asher son of Yechiel, was one of the most important halakhic rulers in the Castilian tradition. Regarding this specific comparison, it is interesting to note that R. Asher fled to the Iberian Peninsula after achieving prominence as an Ashkenazic Rabbi. All translations of sources in this article are by the author. 25 Dinari, Supra note 14, p. 302. Kelman: What Makes a Text Responsa? 103 names of parties appear in Trumat HaDeshen, and contemporary Rabbis are generically referred to as ““‫ – גדול אחד‬one great man/Rabbi. In P’sakim U’Ktavim, names of the original recipients of the letters appear, as well as names and details of the situations discussed. The halakhic writers in the early-modern period26 related to P’sakim U’Ktavim as a collection of writings and responsa. In contrast, they viewed Trumat HaDeshen as a book composed by the author, using the genre of responsa as a model. Moreover, they all refer to this distinction as a known fact. When R. Chaim Joseph David Azulay (the Chida) discussed R. Isserlein and his work in his encyclopedic book Shem HaGdolim,27 he wrote simply: The Rabbi Israel Isserlein wrote Shu”t Trumat HaDeshen, and [the content is] not rule of thumb; ]rather], the Rabbi himself raised a doubt [the question] and revealed the answer.28 Modern scholars of Jewish studies questioned this distinction. In the 19th century, Berliner29 published a list of parallels between Trumat HaDeshen and other texts written by R. Isserlein. He claimed that the existence of such parallels proves that Trumat HaDeshen was actually genuine responsa. This claim was adopted by Freiman, in the introduction he wrote to the edition of Leket Yosher, which he published in 1903, referring to the parallels between passages in Leket Yosher, which was authored by a close student of R. Isserlein, and texts from Trumat HaDeshen.30 Decades later, Dinari dealt extensively with the question,31 leaving the two opinions on the table.32 By examining the parallels used to substantiate the claim that Trumat HaDeshen is classic responsa, we can discern that many are not halakhic questions at all; rather they are halakhic passages that appear in answers in Trumat HaDeshen as well in another source written by R. Israel Isserlein.33 In addition, a close reading of the texts reveals that at least part of P’sakim U’Ktavim was written after Trumat HaDeshen. There are even passages in which R. Isserlein refers to Trumat HaDeshen when he responds to a question in P’sakim U’Ktavim. We can see an obvious example of this by comparing P’sakim U’Ktavim 194 and Trumat HaDeshen 154, both of which deal with the same issue.34 Modern scholars concluded from this that Trumat HaDeshen 154 was a responsum based on the question that appeared in P’sakim U’Ktavim. However, the brief text of P’sakim U’Ktavim 194 points to the opposite conclusion: R. Isserlein actually writes: “And I wrote in length about this in one of my answers…” referring to his detailed answer in Trumat HaDeshen 26 These texts will be presented below. Literally meaning, “The Name of the Great Ones.” This biographical and bibliographical work, written in the 18 th century by R. Chaim Joseph David Azulay, indexed thousands of rabbis and books. Printed at the cusp of the modern era, this encyclopedic project is a significant source for understanding the existing knowledge of historical traditions, some more accurate and evidence-based than others. 28 Chaim Joseph David Azulay, Shem HaGdolim, (New York: Tora Or, 1958), 60. 29 A. Berliner, “Rabbi Israel Isserlein: Ein Lebens- und Zeitbild,” Monatsschrift für Geschichte und Wissenschaft des Judentums, 18 (1869), 269-277 (German),273-274. 30 J. Frieman, Introduction, in Yossel ben Moshe, Leket Yosher, Part II, edited by J. Frieman, (Berlin: Mekitzey Nirdamim, 1904), 14. 31 Dinari, Supra note 14, pp. 304-309. 32 Dinari, Supra note14, p. 309. 33 The significance and importance of these passages of P’sakim U’Ktavim call for research that has not been done yet. The existing discussion about R. Israel Isserlein’s work focused on the questions and answers in the book (for example see Tchernowitz, Supra note 8, pp.268), but the full texts are richer than that. 34 This responsa deals with a case in which a person begins a three-day fast immediately after Shabbat. The question regards the laws of Havdala, the ritual for concluding Shabbat, which a) must be conducted before consumption of any food, after Shabbat; b) includes consumption of wine; c) cannot be performed later than Tuesday (during which time, the three-day fast is still in effect). 27 104 JLAS XXX: Celebrating 100 Years of Ḥevrat Hamishpat Haʻivri 154. The parallels between Trumat HaDeshen and other texts by R. Isserlein can teach us more about his work. For instance, they might indicate that he encountered incidents that were similar to questions that appeared in the book. But this does not prove that the questions in Trumat HaDeshen were based on fact. None of lists of parallels undermine the clear difference between Trumat HaDeshen and the other texts. Clearly, Trumat HaDeshen was composed by its author as an organized and standardized halakhic work, using the form of questions and answers as a framework, filled in by situations that might have been reality. D. Fiction or nonfiction, authenticity and history Is the text of Trumat HaDeshen part of the responsa genre? As we can see, this question can be asked from different perspectives, based on different assumptions. Examining the different approaches towards Trumat HaDeshen through the prism of the literary genre question draws attention to the unexplicit assumptions held by readers of halakhic writings about what classifies a text as responsa. As we will discover, the existence of a question and a response is not an exhaustive definition of the genre. If we rephrase the modern discussion between historians, we might conclude that the question debated is whether the questions in Trumat HaDeshen are situations that actually happened. From a literary point of view, this would involve a debate about whether to relate to the questions in R. Isserlein’s book as fiction or non-fiction. The authenticity of the texts of responsa, unintentionally revealing details about actual time and place, is an important feature for historians, using them as a source for historical information.35 An intentionally composed and hypothetical question does not carry the same historical weight. Thus, Trumat HaDeshen is not necessarily an ideal source for gleaning historical facts, as most of the questions were composed as generic. Nevertheless, some historical information can be extracted from the situations mentioned in the questions, and the scope of possibility from the author’s point of view can teach us a good deal about his experiences and worldview. Further, the fact that Trumat HaDeshen’s questions were composed and edited by R. Isserlein does not prove that they do not reflect actual situations, although most of the time they might not. This issue is at the crux of a discussion in Shulchan Aruch Even Ha’ezer 130, which is dedicated to issues regarding divorce certificates that were not signed properly. In his gloss (no. 20) the Beit Shmuel (R. Shmuel Feybush, also of 17th century Poland) discusses Trumat HaDeshen 248, but cautions not to relate to the text of this question, as we would to other questions in the book: Even though it says in Trumat HaDeshen, “When he makes a mistake in his father’s name” [father of the divorcee] and he did not write “in his name” it is not to say in his name he would claim it unacceptable, because otherwise why did he not write the rule “in his name”. [In most cases] in Trumat HaDeshen one cannot say “that was what happened,” for the questions in Trumat HaDeshen were not written according to a case that actually happened. For we shall say even though he did not set [the questions] according to a case that actually happened. In any event, this answer is brought also in his writings, and there he set [the question] according to a case that actually happened, [and based on this] we say that also this answer in Trumat HaDeshen is about a case that actually happened. 35 See note 5 above. Kelman: What Makes a Text Responsa? 105 This text proves that the parallels in R. Isserlein’s writings are not a modern discovery, and that the early-modern halakhic scholars were aware of the parallels between Trumat HaDeshen and P’sakim U’Ktavim. The Maharsha”ch36 rules that Trumat HaDeshen permits mistakes only in the father’s name, and not in the name of the divorcee signing, referring to specific parallels in P’sakim U’Ktavim.37 Discussing his text the Beit Shmuel reminds us that although the text of Trumat HaDeshen was composed intentionally, there are various possible factors that can explain the author’s choices of wording. While some word choices can be considered as source for halakhic learning, others might be not as significant. However, this argument is not the only possible conclusion; one might claim that R. Isserlein could have written the current case differently if he wanted to, as the Beit Shmuel himself explains he usually did. Modern research claimed that the traditional attitude that considered Trumat HaDeshen as a book and not as responsa was incorrect. This opinion lacked awareness of the great extent to which the early-modern rabbis were conscious of the parallels between Trumat HaDeshen and R. Isserlein’s other writings. The traditional distinction did not ignore the roots of Trumat HaDeshen in the reality of R. Israel Isserlein’s life, but emphasized his accomplishment in composing a book of halakhic knowledge, structured in the format of questions and answers, while not being actual responsa. Questions about situations that involve halakhic dilemmas, and answers written by an esteemed halakhic authority are the core of responsa, and exist in Trumat HaDeshen too. Thus, the shared characteristics of Trumat HaDeshen and classic responsa can help us see the differences between them more clearly. Interestingly, arguing that the early modern rabbis were mistaken, the historians who categorized Trumat HaDeshen’s questions as non-fiction and therefore responsa, actually thought that they agreed to the definition of the genre that they understood that was reflected in the earlier approach. From their point of view, being nonfiction was what made the text responsa, and once they would prove that the situations actually happened the earlier approach would be proved wrong. Nevertheless, the earlier discussion is focused on two very different questions: First, given that Trumat HaDeshen was formatted as a cohesive book by R. Isserlein, and not merely a selected collection of texts that he wrote sporadically over the years, is it still a part of the responsa genre? The second question has to do with the ramifications of the genre categorization. As I will demonstrate, the early-modern rabbis deliberated the status of Trumat HaDeshen, and considered this a question that has jurisprudential ramifications. E. The legal significance of the authorship of the question As stated above, early-modern halakhic writers related to Trumat HaDeshen as a book written by R. Isserlein imitating the format of responsa, as a fact known to all. In various contexts they referred to this work, differentiating it from classic responsa and from his other texts we know of. Reading these references closely can be a tool to understand their views not only about Trumat HaDeshen, but also about the genre of Responsa and its defining characteristics. Shu”t Maharsha”ch Part 1, Q. 142. Maharsha”ch is the Hebrew acronym of, “Our teacher, R. Shlomo Cohen.” The 16th century rabbi grew up in Greece, and served as the rabbi of several Ottoman Iberian organized Jewish communities. 37 P’sakim U’Ktavim 138. Another passage that can be part of the discussion is P’sakim U’Ktavim 197. 36 106 JLAS XXX: Celebrating 100 Years of Ḥevrat Hamishpat Haʻivri In the 16th century halakhic work, Beit Yosef on Orach Chaim 263,38 R. Karo quoted two different texts written by R. Isserlein: Trumat HaDeshen 4 and P’sakim U’Ktavim 153. Both texts deal with the same question: What should one do if he came late to the Friday evening prayer services? As a rule, the conclusion of Mincha (the afternoon services) and commencement of Friday night prayers constitutes a declaration of the onset of Shabbat, for the congregation and the entire community. Should the latecomer still recite the Friday afternoon prayer, or had he lost the opportunity to do so? In both Trumat HaDeshen and P’sakim U’Ktavim, R. Isserlein writes that the latecomer should recite the Mincha prayer, but there is a significant difference between the two texts. In Trumat HaDeshen the premise is that the person who came late will be praying Mincha while the community already continued to accept Shabbat, and in P’sakim U’Ktavim R. Isserlein explicitly stipulates that one should pray the Friday afternoon prayer only if he thinks he will have time to finish it before the crowd transitions into the Friday night Shabbat prayers. R. Karo does not hesitate, and states clearly that the ruling that must be followed is the one from Trumat HaDeshen: And as a matter of halakha, it seems that we should trust what he wrote in Trumat HaDeshen more than what he wrote in his [other] writings, for what a man writes in a book he is more punctilious [about] than… when writing [other types of] his writings. This rule that R. Karo establishes—that an organized halakhic book is more reliable than a collection of responsa because the author is more meticulous when writing it—is not the only way to look at the difference between the genres of Jewish law books and responsa.39 R. Karo highlights one phenomenon that characterizes responsa: The writer will be in a hurry, expected to respond as soon as possible. This is somewhat problematic from R. Karo’s point of view, because the text may not be perfect, as would be the case when the author addresses the same issue in an unhurried manner, without the pressure of replying to any parties. From R. Karo’s point of view, the fragmented nature of the texts of responsa and its ad-hoc nature, is an integral part of the genre. In the generations after R. Karo, three rabbinic commentators on his Shulchan Aruch discussed different aspects of the difference between Trumat HaDeshen and an ordinary book of responsa. They referred to varying halakhic issues and noted different jurisprudential implications, but they based their argument on the same fundamental characteristic of Trumat HaDeshen: R. Isserlein’s authorship of the questions, as well as the answers. In Trumat HaDeshen, not only did R. Isserlein edit a text of a question he received, rather it was him who composed the questions, and not a less learned person describing a specific dilemma. This fact is significant, because responsa will usually reflect two voices, one who wrote the question, and another who wrote the answer. The gap between them regarding knowledge, assumptions, and even cultural background might be large or small, but it will exist, and should be noted. A question rephrased by the answering authority would lose some of the original perspective, but would still preserve the gap in other means. 38 The first edition was published in 1550, on the Justinian printing press in Venice. On the topic of the relationship between halakhic codification and Responsa, see Y. Z. Kahane, “The Ruling and the Response” (Hebrew), Bar Ilan Yearbook 1 (1963), 270-281. See also Y. S. Spiegel, Chapters in the History of the Hebrew Book - Writing and Transmission (Hebrew), (Ramat-Gan: Bar Ilan Press, 2005), 275-297. Dinari wrote about this topic focusing on R. Israel Isserlein’s work, in a large footnote. See Dinari, Supra note 14, 303-304, note 223. Eitam Henkin wrote about the ethnic context of the different opinions regarding this question. See E. Henkin, “Should Halakhic Books Be Preferred or Should Responsa Books?”, HaMaayan 227, 2019, 19-22. 39 Kelman: What Makes a Text Responsa? 107 The first example of this kind of legal discussion will regard the rules about the commandment to separate Challah in Shulchan Aruch Yore De’a 328. When one bakes bread with a certain amount of dough, a piece of the dough must be ritually removed and discarded in accordance with Jewish law, in order to make the dough permissible for consumption. R. Karo rules that one must not separate Challah without permission of the owner of the dough. In the second gloss of the Ta”z40 on this clause of the Shulchan Aruch he discusses the debate about the text of Trumat HaDeshen 188, held by Ashkenazi rabbis ever since the appearance of R. Moshe Isserles’ Darkei Moshe, a commentary on the Beit Yosef41. This is the question as it is worded in R. Isserlein’s book: Question: The mistress of the house had her maid knead dough, and she [the mistress] went out before separating the Challah. Before she returned, the dough fermented [rose] as much as it should, such that if it would be left longer without baking, it would spoil. Therefore, the maid wants to separate the Challah without the permission of the mistress of the house. Is [she] allowed to do so or not? Towards the end of his gloss the Ta”z writes: It seems in my humble opinion that the writer of Trumat HaDeshen himself did not rely on this [leniency, to allow taking of Challah without permission] [in a situation where there is] no concern about the dough spoiling, for at last, he mentioned the permission specifically [in a case where there is a concern of] spoiling. And so, in the question he set there in Trumat HaDeshen, he [restricted his leniency] to [a case of possible] spoiling of the dough. And it is known [that] the way of Trumat HaDeshen is setting the questions himself. The Ta”z learns R. Isserlein’s halakhic opinion not only from the answer, but also from the question, which R. Isserlein worded himself. The Ta”z points out that once we are aware that the question was composed by the answering Rabbi, we must acknowledge that the details in the question are not random, but rather chosen specifically. If R. Isserlein chose to compose a question and answer about a case in which there is a concern that the dough is about to spoil, one cannot ignore the implied prohibition against separating the Challah without permission of the owner in an ordinary situation. Similarly, in the glossa of the Sha”ch 42 to Shulchan Aruch Yore De’a 196 (no. 20 in the Sha”ch’s glossa), he discusses the halakhic debate about Trumat HaDeshen 245, held in the centuries before his own. The Shulchan Aruch writes about the minimum number of days that must elapse before a woman may start counting the required seven clean days towards ritual immersion. The rule at R. Isserlein’s time and place was that the minimum days must be counted from the time 40 Ta”z refers to R. David Halevi Segal, whose glossa on the Shulchan Aruch are known as Turei Zahav (literally, “gold columns(“. Just as the book is known by the Hebrew acronym, Ta”z, so is the 17th century author, who was one of the most influential Rabbis of Poland at that time. 41 The later halakhic scholar, R. Moshe Isserles (“Mappa”), who commented on the Shulchan Aruch, adding the Ashkenazi input into the text, was much more influential and famous; his earlier Darkei Moshe, that was in many ways parallel to R. Joseph Karo’s earlier Beit Yosef, was an important source of halakhic scholarship for the earlymodern Ashkenazi Rabbis. The discussion of Trumat HaDeshen 138 appears in the Darkei Moshe on Yore De’a 328, note 3. 42 Sha”ch refers to R. Shabtai Cohen, whose glossa on the Shulchan Aruch were known as Siftey Cohen (literally meaning “lips of priest,” and play on words of the author’s name). Both the book and the author were known by Hebrew acronym, Sha”ch. The book was the first glossa on the Yore De’a section of the Shulchan Aruch, and the author attracted attention and grew in stature upon publication of this work. This, despite his young age and the fact that he did not hold any official position at the time. 108 JLAS XXX: Celebrating 100 Years of Ḥevrat Hamishpat Haʻivri that the woman’s menstrual bleeding started. This would mean disregarding the time of the last intercourse, though in the Talmudic discussion the time of the last intercourse was the point to count the days from. Question 245 in Trumat HaDeshen questions the limits of the generic rules: Question: A woman that did not have intercourse in the last seven days, or her husband was not in town, and she saw blood, must she anyway wait before counting the seven clean days, just like a woman that had intercourse the day she saw blood, or could she start counting as soon as she stops seeing blood? As in many other cases, the gloss of the Sha”ch contains an argument that incorporates the rulings of the Ba”ch.43 Regarding Trumat HaDeshen 245, the Ba”ch claimed that although the situation of a man being out of town is mentioned in the question, R. Isserlein did not think that it was like the other cases, and that is why it is not mentioned in the answer. The Sha”ch argues that such a claim is a strong one when reading texts of actual responsa, but is not accurate when learning Trumat HaDeshen: For it is known that the questions that are in Trumat HaDeshen were composed by R. Israel Isserlein author of the answers himself … and it is not that he was asked by others, as in his ruling writings. Moreover, … because in the question he compares her husband not being in town to not having intercourse, therefore [we must conclude] that in the answer it is so [as well]. Due to the fact that the question in Trumat HaDeshen was written as part of his endeavor to teach his opinion, it should be studied and analyzed as seriously as the answer, in order to understand the text properly. From the arguments of the Ta”z and the Sha”ch, we can pin down characteristics of responsa literature by distinguishing Trumat HaDeshen as different: When we read a classic responsa text, the questions might contain elements of information that are not relevant to the halakhic opinion of the answering authority. The legislation task of selecting the facts that are significant for the legal categorization is open for different hermeneutic options. The halakhic conclusions drawn from the text might be implemented in situations that are slightly different than the original situation described in the question. At the same time, facts from the question that are not mentioned in the answer might warrant a different response that we do not have in front of us explicitly. These claims will be legitimate because the question describes a specific case that raised a halakhic dilemma. The composer of the question might have not chosen each word with particular care and the responding Rabbi might have not answered in the same way if the circumstances were to be different. Moreover, it should be noted that the rulings that appear in an anthology of responsa by definition were a factor of questions and dilemmas that people brought to him. However, these characteristics of responsa cannot be applied to a book like Trumat HaDeshen, in which the wording of the questions is not random. Therefore, the possibility to expand the rulings to other cases, which might be somewhat similar, is more limited. F. What can Trumat HaDeshen teach us about the genre of responsa The debate regarding the fit of Trumat HaDeshen into the genre of responsa is based on the fact that R. Isserlein chose to write his book using the conventions of the basic structure of the responsa genre: a jurisprudential opinion written as a response to a question describing a specific case in a realistic manner. 43 Ba”ch refers to R. Joel Sirkis, one of the most significant rabbis of the Polish Jewry, half a generation before the Sha”ch. The Ta”z was married to the Ba”ch’s daughter. His glossa on the Tur, which preceded the Shulchan Aruch, was known as the “Bayit Chadash” (literally, “new house”). As in other cases, the Hebrew acronym, Ba”ch, became the standard way to refer to him and his work. Kelman: What Makes a Text Responsa? 109 The modern historical controversy about the definition of responsa reveals the assumption, that these historians thought was obvious, as if what makes a text responsa is that it was written to answer a question which in reality awaited an answer by the authority that wrote it, as a historical fact. Berliner and subsequent historians continuing the discussion paid less attention to the structural aspects of the text itself, or to the role R. Israel Isserlein himself played in composing it. They did not distinguish between a question written in real time and a question phrased separately than the practical decision of how to act. More so, they did not refer to the option of hypothetical questions (phrased by a curious person seeking an answer from the answering authority, or by the answering authority himself).44 These issues are the ones that the early-modern rabbis focused on, pointing out several unique aspects of Trumat HaDeshen, distinguishing it from the genre of responsa. Different earlymodern writers emphasized different nuances. One type of difference concerns the process of creating the answer. A text of responsa will be composed under time pressure, while the addressee is waiting to apply the ruling that will be sent to him. When writing a book, the author can calmly investigate any topic at length, and chose his pace. While a responsum will be dispatched and affect the practical decisions of its audience soon after it is written, a book of questions and answers can be reviewed by the author over time. The interval between writing and publishing allows the writer to fine-tune his wording in the final text45. Additionally, the status of the questions in a collection of responsa are different than those in a halakhic book. Responsa, even when published as a book, are a collection of fragments, each created at a different point of time and often in different contexts. When creating a book of questions and answers, the different sections form a cohesive whole, which creates a greater picture, even than the one raising from an edited collection composed based on the inventory available to the editor. Regarding responsa books from early periods lacking documentation, we might not even be able to clarify the relationship between a particular anthology of responsa and the full corpus of answers that the author wrote. In contrast, in the case of Trumat HaDeshen, the corpus is a reflection of conscious decisions the author made, and is not just an assembly of texts, written and dispatched by the author over the years, alongside his ongoing response to questions that were sent to him. It is a text made for a learned scholar to consult, as part of the authoritative library, and not a practical solution of a concrete circumstance. The early-modern scholars who wrote about the unique aspects of Trumat HaDeshen distinguished it from the genre of responsa, especially regarding the unique status of the question. Composed by the author, with didactic and halakhic considerations influencing his choice of facts and the framing and phrasing of the question, the specific text of question in Trumat HaDeshen should be treated as part of the opinion of the answering authority. Although there might be exceptions to this, as the Beit Shmuel argued, he too accepted the idea that in the absence of a specific reason, the questions in Trumat HaDeshen should be viewed as hypothetical cases and not as actual events. Paradoxically, this character of the questions in Trumat HaDeshen narrows the cases in which it would be legitimate to implement the rulings stated in the answer. If the situation presented in the halakhic dilemma is not an actual incident, but rather a well-thought-out 44 Lifshitz, Supra note 4, 289 writes not only about hypothetical questions but also about questions pretending to be hypothetical. 45 This will be true for any edited volume of responsa published by the author of the answers or by any later editor. The implications of the process of preparing authentic responsa for publication awaits research that is beyond the scope of this article. 110 JLAS XXX: Celebrating 100 Years of Ḥevrat Hamishpat Haʻivri hypothetical case, one must question any attempt to expand the ruling to a broader range of situations. This is not only a theoretical distinction, rather a jurist’s tool used by early-modern authorities while learning R. Isserlein’s texts, as presented above. In another distinction between Trumat HaDeshen and classic responsa, a text of responsa usually contains two different voices. Even if the questions that appear in a collection of responsa were originally worded differently, they reflect different assumptions and contexts than those that appear in the answer. In some cases, they also reflect different cultural backgrounds. The dialog between the questioner and the answering authority in the subtext of the responsum enriches the text and its meanings. When written by the same person, as in the case of Trumat HaDeshen, the questions do not have a distinct personality. Though presented separately, the question and the answer function as two parts of the same text, leading to the writer’s conclusions. By any definition, the genre of responsa contains many different texts, from a range of geographic areas, and of historical eras. Hopefully, future analysis of the different texts will clearly reveal meaningful differences between various sub-genres. In the meantime, the case of Trumat HaDeshen, as a text imitating the conventions of the responsa genre, but not an outcome of correspondence between people seeking an authoritative answer from a halakhic leader, is a powerful test case. The analysis of Trumat HaDeshen’s qualities in this case study helps us define characteristics of texts that are part of the responsa genre, when parallel as well as when different.