by Marc B. Shapiro
What is the role of academic learning in the determination of halakhah? In particular, I am referring to knowledge which is not available to the posek and which would affect his halakhic decision. This is, of course, a wide-ranging issue of which I will only discuss one aspect here, that relating to forgery. However, since the issue of the Mosaic text and R. Moshe Feinstein is relevant here, and I mentioned both of them in my last posting, let me make a few brief preliminary comments on this.
In The Limits of Orthodox Theology I quoted the following comment of R. Bezalel Naor, who was quoting his teacher, the Gaon R. Shlomo Fisher of Jerusalem: “The truth, known to Torah scholars, is that Maimonides’ formulation of the tenets of Jewish belief is far from universally accepted.” For those who don’t know, R. Fisher is one of the gedolim of our time, and you can see many of his shiurim on yeshiva.org.il. Many of these shiurim focus on Talmud (and he has published the great rabbinic work, Beit Yishai), but R. Fisher is also the only one of our gedolim who is an expert in Jewish philosophy. This explains why his Derashot Beit Yishai are very different than other collections of derashot. Professor Zev Harvey told me that from R. Fisher’s edition of Crescas’ Or ha-Shem, it is clear that he used Wolfson’s Hebrew text found in Crescas’ Critique of Aristotle.
Someone I know currently attends R. Fisher’s weekly shiur on Avnei Miluim, the last half-hour of which is devoted to issues of hashkafah. Interestingly enough, he reported to me that a few weeks ago R. Fisher declared that he believes the Rambam abandoned his system of 13 Principles, the proof being that they are never mentioned as a unit in the Mishneh Torah. In my book, I noted that R. Shlomo Goren held the same view. R. Goren also makes another interesting point, that while in the Commentary on the Mishnah Maimonides requires one to actually believe in certain principles, in the Mishneh Torah he only requires you not to deny any principles. One who has never heard of a principle obviously does not believe in it, which makes him a heretic according to the Commentary on the Mishnah. But according to the Mishneh Torah, since this person does not actually deny the principle, he is not regarded as a heretic.
Getting back to R. Moshe, as is well known, he ruled that the Commentary of R. Yehudah he-Hasid was a forgery, as he could not imagine that a rishon would acknowledge that there were some post-Mosaic passages in the Torah. Only after my book appeared did Rabbi Naor tell me that the comment I quoted above in the name of R. Fisher was stated precisely with reference to R. Moshe’s positon on this issue. After R. Moshe banned R. Yehudah he-Hasid’s Commentary, R. Fisher commented that R. Moshe assumes that R. Yehudah he-Hasid has to accept the Rambam’s Principles, but in truth there were many disagreements with the Rambam, and R. Yehudah he-Hasid’s position on Mosaic authorship is one of them.
Along these lines, I read a recent shiur by R. Moshe Zuriel, a well-known baal machashavah in which he affirmed that all must accept the Thirteen Principles. I wrote to him asking what he would say about those who accepted the views of sages who disagreed with the Rambam, and I specifically referred to Ibn Ezra’s (exoteric) position that the last twelve verses were written by Joshua, which is a rejection of Maimonides’ insistence in the Eighth Principle that the entire Torah is Mosaic. He replied (emphasis added):
נחשב לכופר, והוא נחשב ישראל . . . וכן כל דבר שיש מחלוקת ראשונים
ויכרת יהושע ברית לעם: על זה להיותם עובדים את ה' ולהשאיר זכר לזה המעשה למען יבושו ישראל אם יסורו מאחרי ה' כתב יהושע את הדברים האלה בספר תורת הא-להים
הדגש הוא על מה שאומר כי משה אמר זה מפי עצמו, אבל אם יאמר פסוקים אלה נביא אחר כתב אותם מפי הגבורה ומודה שקטע זה הוא מן השמים ומפי הגבורה, אדם שאומר כך אינו נקרא אפיקורוס, מה שהגדיר אותו כאפיקורוס אינו זה שאמר שלא משה כתב את הקטע אלא בזה שהוא אומר שדבר שזה מדעתו ומפי עצמו אמרו ושאין זה מן השמים
Let me now speak of another issue, not of falsely ascribing forgery where there is none, but accepting as authentic that which is actually a forgery. The classic example is, of course, Besamim Rosh. There is no doubt that the volume is a forgery. There are those who have believed that at least some of the responsa are authentic, but it is more likely that the non-controversial material is a smokescreen for the controversial responsa. I plan to write an article about Besamim Rosh so I will not now reveal an internal proof, arrived at by use of a computer, that the book is a forgery. In an earlier article, I called attention to the fact that the Besamim Rosh assumes that a suicide has no share in the world to come, which is a popular 18th century conception, but not found among Ashkenazic or Sephardic rishonim.
There is a talmid hakham, Rabbi Reuven Amar, who republished the Besamim Rosh and argues in his introduction that Saul Berlin was one of the gedolim. For all of his talmudic learning, Amar is very ignorant in this matter. He knows nothing about the history of Berlin and his haskalah ties. If he did, he would not have wanted to defend him. Yet Amar did know that many halakhic authorities quoted the Besamim Rosh, and he therefore wanted to turn it into a kosher book.
The problem Amar was faced with is what concerns me. What is one supposed to do with pesakim that rely on the Besamim Rosh? Fortunately, there can’t be many. In fact, offhand, I don’t know of any responsum in which a decision is based entirely, or even heavily, on Besamim Rosh, so that if you took this work away the decision would fall.
However, this is not the case with another forgery, as here the forgery is cited by all halakhic authorities of the last 140 years. I am referring to the Sefer ha-Eshkol, attributed to Rabbi Abraham ben Isaac. It was published by Rabbi Zvi Benjamin Auerbach (1808-1878), one of the leading German rabbis of his time. He was also the most prominent member of the famous Auerbach rabbinic family, which together with the Bamberger and Carlebach families (the ABCs, as they were known) were the most prominent rabbinic families in Germany.
According to Auerbach, his Sefer ha-Eshkol came from a Spanish manuscript. The work quickly became popular among scholars and was adorned with Auerbach’s commentary Nahal Eshkol, which is a mine of rabbinic knowledge. It came as quite a shock when in 1909, many years after Auerbach had died, the great scholar R. Shalom Albeck accused him of having invented the story of the Spanish manuscript in order to enable him to forge the work. This accusation aroused a great storm and four of the leading Orthodox scholars – David Zvi Hoffmann, Abraham Berliner, Jacob Schor, and Hanokh Ehrentreau – rushed to defend Auerbach, publishing the booklet Tzidkat ha-Tzadik (Berlin, 1910).
It is obvious that Auerbach’s defenders never gave Albeck’s charge any serious consideration. In their eyes, the fact that Auerbach was universally regarded as a tzadik, as well as one of the gedolim of Germany, rendered the accusation invalid from the start. There was no way they could impartially consider the evidence. In their mind they knew that for a pious Jew, some things are just impossible. Albeck responded to Tzidkat ha-Tzadik with the booklet Kofer ha-Eshkol (Warsaw, 1911), which explains how Albeck knew that the work is a forgery. In discussing the dispute between the four scholars on one side, and Albeck on the other, R. Shlomo Yosef Zevin showed which side he was on.
אחד מול ארבעה – וההרגשה היא, שהנצחון לצדו של האחד
Needless to say, the supposed Spanish manuscript has never been found. In the words of Prof. Haym Soloveitchik, “Auerbach’s Eshkol appears as a clear forgery, incorporating arguments found in sixteenth, seventeenth, and even eightennth-century writings. . . . [The work] should not be used for historical purposes. For this reason, I criticized Avi Sagi and Zvi Zohar for citing Auerbach’s Eshkol in their Giyur u-Zehut Yehudit. R. Bezalel Naor writes:
I was told the following anecdote by Rabbi Aharon Lichtenstein. Licthenstein’s father-in-law, Rabbi Joseph Baer Soloveitchik (of Boston) expressed to Rabbi [Hayyim] Heller his amazement that the same obscure opinion of Mordecai in Niddah was to be found in the Eshkol, to which his mentor Hayyim Heller responded: “That is all?! You can find in Auerbach’s Eshkol a peckel Peri Megadims.” (Yiddish, a pack of Peri Megadim). . . . Prof. S.Z. Leiman informs me he found other irregularities in Auerbach’s historical works.”
De Leon is commonly said to have died in 1305, so unless the forgery was done at the very end of his life, we would be dealing with a 13th century forgery. In his Ha-Nigleh she-ba-Nistar, p. 144 n. 203, Ta Shma indeed writes
In Mordechai Breuer’s Modernity Within Tradition, p. 202, in discussing Orthodox scholarship and how it was often not rated highly by others because of its binding preconceptions, he writes:
One such example was the attempt of some scholars, especially R. Kirchheim in Frankfurt and Schalom Albeck in Poland, to expose the chief scholarly work of the late Rabbi B.H. Auerbach of Halberstadt (Ha-Eshkol, with commentary and notes, Nahal Eshkol, Halberstadt, 1861), as a plagiarism and a forgery. In spite of certain discrepancies in Auerbach’s work, this attempt failed after his defenders could prove that the attacks had not been free of prejudice.
Breuer seems to be mistaken in pointing to the dispute over the authenticity of B. H. Auerbach’s edition of the Eshkol as an example of this phenomenon [i.e., Orthodox scholarship being looked down on]. To begin with, the main assault on Auerbach was led by Shalom Albeck (1858-1920), himself an Orthodox Jew. Secondly, this dispute had nothing to do with dogma interfering with scholarship, but was simply a question of whether Auerbach had forged the text. Finally, it is not so clear that Albeck’s attempt failed, as Breuer would have it. On the contrary, the authenticity of Auerbach’s edition is still highly questionable.
Yet the point Breuer makes actually has relevance to another aspect of this dispute, and here I refer to the defense of Auerbach by the four scholars. Here we do find dogma of a sort, since they make it clear in their defense that the whole accusation is ipso facto invalid, and they even cite the Rambam, Commentary to Avot 1:6, that if you see a tzaddik do something that looks like a sin, you must assume that there is a reasonable explanation, even if it is very far-fetched.
Albeck’s response to this is that the Rambam is referring to a tzaddik who commits a sin between him and God, but not someone who
מתעה את לבות גדולי ישראל מורי ההלכה ודורשי החכמה, ודאי מצוה וחובה על כל איש המכיר בו, להוציא את בלעו מפיו, למען יהיה לאות לבני מרי, ולא יוסיפו לחלל ש"ש ולזייף את התורה
Rabbi Jehiel Jacob Weinberg raised a similar concern with regard to the Shulhan Arukh. There are certain halakhot which are based on false readings. He wondered if in a case like this we have to establish a new halakhah, or since we have accepted the Shulhan Arukh’s ruling we don’t change the halakhah but rather find a different justification for it.
Some might also see some connection with another position of R. Weinberg. As I noted in my book. R. Tam’s states that sex with a Gentile does not cause a woman to become forbidden to her husband. R. Weinberg had ethical problems with the reason R. Tam gives, and I don’t think it goes too far to say that he thought that, from our modern perspective, R. Tam’s justification is to be regarded as immoral. Yet I also note that in seeking to find a heter for a woman who committed adultery with a non-Jew to return to her husband he is prepared to make use of R. Tam’s position. I don’t think this raises any problems, since at the end of the day, R. Tam’s position is part of the halakhic tradition. If it can be used to to reach a lenient decision, then it serves a purpose, even if the contemporary posek doesn’t agree with the underlying assumptions of R. Tam’s pesak (Parallel to this is the widely accepted view that there is nothing wrong with using information derived from Nazi experiments on humans if it can help people. Obviously, everyone agrees that the experiments should never have been carried out, but once they were, the information can be used) As I said, I don’t see this as problematic, but I mention it since some might see it as an inconsistency in R. Weinberg.
An example which is more directly relevant is the following. In June of this year Prof. David Berger gave a presentation at Yeshivat Chovevei Torah on Jewish views of Christianity (as well as how to relate to Chabad). In his discussion of Christianity he explained the concept of shittuf, first mentioned by the Tosafists, and how in its original meaning it did not mean that non-Jews are permitted to believe in one God divided into different parts. Those who want the details on this can see Katz’ discussion in Exclusiveness and Tolerance. Katz was the first academic scholar to point to what he regarded as the common misinterpretation of the Tosafot. In addition, a number of poskim have concluded similarly, most notably the son of the Noda bi-Yehudah, whose responsum was published in his father’s work.
In my response to Berger I asked the following question (addressing myself to him):
You are certain that the common understanding of Tosafot is mistaken. Yet this understanding became the standard for poskim in Western Europe. It is also shared by the Rama. Do you feel that there is anything wrong with someone who agrees with you as to the historical truth nevertheless relying on those poskim who misinterpreted the Tosafot? In other words, do the decisions of the poskim based on Tosafot have independent validity even if their interpretation of Tosafot is incorrect?[15a]
While I understand Berger’s point, I think some reading this might be very uncomfortable with such a notion, namely, that one can have a historical truth and a halakhic truth, with the two being at odds with each other; or to put it another way, that a halakhic truth can be based on a historical error and yet still have validity. This brings us dangerously close to the old Latin Averroist notion of "double truth." [15b]
Returning to Auerbach’s Eshkol, I am aware of only one posek who has refused to grant it any validity, and I daresay that the overwhelming majority of poskim are not even aware that it has been subject to controversy. The posek I am referring to is Rabbi Yitzhak Ratsaby. For those who don’t know, R. Ratsaby is one of the leading – if not the leadiing – Yemenite posek in Israel. He is an incredible scholar whose many works are particularly valuable as he records a variety of Yemenite practices and quotes from relatively unknown Yemenite writings, including from manuscript. He comes from the Kabbalah-friendly Yemenites, as uses the appellation of אחר in referring to R. Joseph Kafih.  Reflecting the typical haredi outlook, when he needs to refer to R. Kook, he writes "הרא"ק." Doing so denies R. Kook the rabbinic titles given other great rabbis, and also spares haredi eyes from even seeing the name “Kook” in print. Most haredi readers won’t even recognize who he is referring to. This is particularly unfortunate as it was R. Kook who stood together with many of the great Yemenite rabbis in opposing R. Yihye Kafih’s anti-Kabbalah stand. In Emunat ha-Shem, the volume published against R. Yihye Kafih, R. Kook’s two letters appear at the beginning. R. Kook is referred to as
רבנו הכהן הגדול נר ישראל וקדושו גדול הדור ונזרו מרן
Despite this flaw, there are many very interesting things in his works. Because my last post dealt with issues of dogma, let me refer to what R. Ratsaby states in Olat Yitzhak vol. 1 no. 259. He refers to the list of 24 heretics with no share in the world to come, enumerated by Rambam in Hilkhot Teshuvah, ch. 3. Among those are people who say there is no God, or there is more than one god – in other words, classic heretics. But according to R. Ratsaby, even though these people are heretics with no share in the world to come, that doesn’t mean that they can’t fulfill someone else’s religious obligation. As R. Ratsaby puts it
אפילו אותן עשרים וארבעה והנוספים עליהם שברור ומוסכם שאין להן חלק לעוה"ב, לא שמענו שאינן מוציאין אחרים ידי חובתן בברכות וכיוצא בזה, דסוף סוף הוא מחוייב בדבר וכל המחוייב מוציא יד"ח
R. Ratsaby is not referring to allowing such a person to daven for the amud, for which someone must be a proper Jew. Rather, he is speaking of the halakhah per se, i.e., if a heretic can be motzi someone else. I think the instinctive response of people would be that, of course, someone who is a heretic cannot be motzi someone else, and R. Moshe Feinstein states so explicitly. R. Ratsaby removes the issue from one of belief, and instead focuses on the obligation.which all Jews share.
In this same teshuvah, R. Ratsaby also points out something else quite interesting. Following the list of the twenty four who have no share in the world to come, Rambam gives a list of another group who, if they persist in certain evil actions (e.g., embarrassing someone in public, shaming scholars, etc.) also have no share in the world to come. He quotes R. Avraham ben ha-Rambam (hiddushim at the beginning of Ma’aseh Rakah) who cites his father as explaining that the way this works is that someone who is accustomed to do such bad things things will, almost of necessity, not be inclined to do what needs to be done to achieve immortality. In fact, it is much more likely that he will be led to those sins that really do deprive you of the world to come. But one should not take what Rambam writes literally, namely, that these sins by themselves cause one to lose his share in the world to come.
Returning to the Eshkol, many years ago I was studying R. Ratsaby’s Olat Yitzhak, vol. 1, and on page 410 I came across the following:
לענ"ד אין לחוש לדברים מחודשים שבספר זה שהוא בחשש גדול של זיוף, ואין להכחיש מה שהלב מרגיש
חשד הזיוף אצלי הוא מתוך העיון בדברים החדשים שם בקרב הראשונים ולקוחים מדברי אחרים (מה שראיתי דר"כ [=דרך כלל] היה לקוח מהבית יוסף) וגם הסגנון, שחנני השי"ת להכיר כזאת בטביעות-עין והלואי שאני טועה, אבל רחוק בעיניי מלצרפו עכ"פ לענין הלכה. ספר כופר האשכול לא בא לידי
I wrote back to him asking why, if he regards Auerbach as a forger, does he cite the Nahal Eshkol. He replied
The summer is fast coming to an end, and with it, my free time to write things like this. But I have a number of other examples of forgery which I might post here, if people are interested (I am saving my examples of censorship for the book which I am hard at work on). Many people have told me that they like my “derekh agavs,” so I threw a lot of them in here, and I apologize to those who don’t like the many tangents.
Since I don’t know when I will have a chance to write a new introduction to my book, and it is once again in the news with Rabbi Leff’s review, let me quote the following passages from R. Kook’s Shemonah Kevatzim 1:30-31 (I hope that R. Kook is still an acceptable authority for Jewish Action). Two important things stand out. First, while not condoning orthopraxy, R. Kook states that one who is observant, despite the fact that he denies ikkarim, is to be regarded as an erring Jew, not as a heretic. R. Kook’s position is a complete rejection of the idea that people who are shomrei Torah u-mitzvot can be read out of the fold and be regarded as heretics because of their incorrect beliefs. The second important point is that he rejects the Rambam’s entire theological conception of Principles of Faith and alligns himself with the Ra’avad, showing once again that the Rambam’s position has not attained unanimity.
ובזה הננו קרובים לסברת הראב"ד, שהשיג על הרמב"ם במה שקרא למי שמאמין ההגשמה באלהות מין. ונוכל להסכים, שכל זמן שאותו המגשם לא יעשה לו פסל ותמונה, הרי לא גמר את מחשבתו, ונשארה היא עדיין בחוג הרוח שלא תוכל להיות נכללת בשם עקירה ויציאה מן הדת
In other words, according to R. Bin Nun there is no justification today for calling people heretics because they reject one (or more) of the Thirteen Principles. (when he refers to hakhamim disputing matters, he is not referring to Torah scholars, but the general scientific-intellectual world). Whether R. Bin Nun is correct in his analysis of Rambam is not my purpose at present; I only wish to show that this outstanding rabbinic figure has a very tolerant view, one which rejects the Thriteen Principles as determining who is a heretic.
A future post will deal with other issues of this controversy, and at that time S. Z. Havlin's article on the issue in Yeshurun vol. 13 will be discussed.
 Professor Isadore Twersky once mentioned in class that although this book’s title should have mentioned Maimonides, in 1929 Harvard University Press would not publish a book with such a title. In this regard, he also called attention to the title of Sarah Heller Wilensky’s doctoral dissertation, “The Teaching of Issac Arama in the Framework of Philonic Philosophy.” This, too, is a false title, and the subject of the dissertation is seen more clearly by the title of the Hebrew book: R. Yitzhak Arama u-Mishnato. As Twersky explained, Harvard’s Department of Near Eastern Languages and Civilizations did not want a dissertation on a Spanish Jewish thinker unless it was given a more universal theme, hence the “Philonic Philosophy,” an allusion to Wolfson’s theory of philosophy, but this was put in just for show. Incidentally, Fisher’s edition of Or ha-Shem is responsible for my taking credit as being the only student ever to have made Prof. Twersky laugh in class. It was the 1990-1991 year and we were studying Crescas in his seminar. Twersky would often ask me to read, during the course of which he would often correct my pronounciation. When Fisher’s edition of Crescas appeared I immediately bought it and brought it to class. When Twersky called upon me to read, I replied that this time he wa not going to be able to correct my pronounciation. He asked, “why not?” to which I replied, holding up my new book, that I just purchased a new edition of Or ha-Shem, and it is “menikid.” This was too much for even the eternally staid Twersky, and he too was brought to a chuckle. (From inyana de-yoma, someone asked me if Noah Feldman studied with Prof. Twersky. He was not in any of Twersky’s seminars that year. He was, however, in Prof. Septimus’ seminar as well as that of Prof. Leiman, who was at Harvard in fall 1989 as a visiting scholar. In those years, long before he became famous [now, notorious] I would often tell people that one of my fellow students, an undergraduate taking graduate classes, was perhaps the most brilliant person I knew - a much better head than mine - and I have known many intellectual heavyweights. Yet I have read some people, who certainly don’t know him, describing Feldman as an expert in Shas and poskim. This is laughable. He has a great mind, and can grasp a Tosafot quicker than almost anyone, but he never spent any serious time in limudei kodesh after high school. I think my father best summed matters up after reading his article. He said: “Feldman may be very smart, but he isn’t very wise.”).
 R. Fisher has also expressed his support for the position of those rishonim – in opposition to the Rambam and R. Chaim Soloveitchik – who believe that one who, through no fault of his own, holds a heretical view is not to be regarded as a heretic.
 R. Moshe also detected a forgery in that R. Yehudah he-Hasid asks why homosexuality is forbidden, and then explains that the prohibition is to ensure that men procreate. According to R. Moshe, even asking such a question, and offering such a weak explanation, is a sign that the passage was not written by R. Yehudah he-Hasid but by a gay-friendly subversive. Yet as R. Chaim Rapoport points out, R. Yehudah he-Hasid is also quoted saying the same thing in the medieval Moshav Zekeinim al ha-Torah. Furthermore, the explanation he offers is also found in Ramban, Sefer ha-Hinnukh and Radbaz. See Rapoport, Judaism and Homosexuality: An Authentic Orthodox View (London, 2004), pp. 155-156.
 See my “Suicide and the World to Come,” AJS Review 18.2 (1993): 257 n. 54. Perhaps Prof. Shlomo Zalman Havlin will also use a computer to prove the forgery, much like he used a computer to show that R. Joseph Hayyim also wrote the book Torah li-Shma (link).
 Soferim u-Sefarim (Tel Aviv, 1959), p. 107.
 See also D. Simonsen, “Ueber die Vorlage des Sefer ha-Eshkol,” in Studies in Jewish Bibliography and Related Subjects in Memory of Abraham Solomon Freidus (New York, 1929), pp. 290-291.
 Israel M. Ta-Shma writes, concerning this defense (falsely attributing it to the editors of Sefer ha-Eshkol, vol. 4, rather than Bergman):
 Haym Soloveitchik, "Review of Olam ke-Minhago Noheg, by Yishaq (Eric) Zimmer," AJS Review 23.2 (1998): 227-228.
 See my "Review of Circles of Jewish Identity: A Study in Halakhic Literature by Avi Sagi and Zvi Zohar," AJS Review 27.1 (2003): 120-122.
 Post-Sabbatian Sabbatianism (Spring Valley, 1999), p. 209.
 Rabbi Zerahyah ha-Levi Ba’al ha-Meor u-Venei Hugo, pp. 40-41.
 He-Hadash Asur min ha-Torah (Jersualem, 2005), pp. 69-70, 152 n. 255.
 Regarding judging positions of rishonim as immoral, R. Shlomo Aviner writes (Am ve-Arzto (Jerusalem, 2002), vol. 2 pp. 436-437):
[15a] One should not assume that this is a verbatim transcription of my remarks, as they were not written out at the time.
[15b] Prof. Berger recently noted to Menachem Butler the following point: "At the same time, those realms [i.e., history and halakhah] are not so distinct that someone weighing the question of which position to adopt must, or even should, ignore his judgment about historical truth. Thus, I personally do not regard the pesak that Christianity is not avodah zarah for Gentiles as one I should adopt, even though it has desirable consequences. I do, however, grant legitimacy to an opinion affirmed by major authorities and do not quarrel with those who rely on it."
 Olat Yitzhak, vol. 2, p. 51.
 See ibid., p. 440.
 See his biography at http://www.ykd.co.il/hebrew/hebrew.htm.
 “’Kahal Shogeg’ Hiloniyim ve-Hiloniyut be-Halakhah,” Akdamut 10 (2000), p. 263.
 For those who don’t have access to the article, I should note that when he refers to hakhamim disputing matters, he is not referring to Torah scholars, but the general scientific-intellectual world.