Rabbi Avraham of Sochaczew, author of Avnei neizer, was once hosted by one of his disciples in Warsaw, who was a very wealthy man. [The wealthy man] showed him a lovely drawing of the Rabbi, author of the Tanya [Shneur Zalman of Liady]. The Avnei Neizer said: The best impression of the Rabbi is obtained by studying his books.
—Yehuda GrinshpanFootnote 1In the second half of the eighteenth century in Eastern European, a Jewish religious revival began to coalesce. This awakening became known as “Hasidism,” from the Hebrew word ḥ asid, commonly translated as “pietist.” As a movement, Hasidism prospered throughout the nineteenth century. It endured the tribulations of the first decades of the twentieth century, in particular the displacement caused by the First World War. During the Second World War, Hasidism was decimated: its leaders were targeted, its insitutions destroyed, and its rank and file murdered. Despite the tragedy, Hasidism has experienced a rebirth, and today it thrives in various centers around the world, particularly in America and Israel.
The Hasidic movement was not characterized by central leadership and uniform practice. Rather, a plethora of Hasidic masters each ministered to a group of disciples or adherents, known as Ḥ asidim. As might be expected from a decentralized movement whose history spans more than two hundred and fifty years, the leaders who headed Hasidic communities have varied greatly. But in broad strokes, these Hasidic masters could be described as spiritual guides, religious thinkers, and communal leaders. Notwithstanding notable exceptions, Jewish law has not been the primary vocation of Hasidic masters.
It is therefore unsurprising that the contribution of Rabbi Shneur Zalman of Liady (ca. 1745–1812) is plotted along two axes, Hasidic leadership and Hasidic thought, whereas the legal writing and juridical activity of this famed Hasidic master have sadly been given insufficient attention. As a leading figure in Hasidism's formative stage, Shneur Zalman played a central role in confronting the Mitnaggedim, the Jewish opponents of Hasidism who felt that the movement was misguided in its religious thought, spiritual priorities, and innovative practices.Footnote 2 Shneur Zalman also developed a unique path of religious thought within Hasidism, which was subsequently espoused by students and descendants, and spawned a number of Hasidic groups. Shneur Zalman's particular strand of Hasidic philosophy was dubbed “Chabad”—an acronym for three faculties of the mind: wisdom (ḥokhma), understanding (bina), and knowledge (da‘at). Shneur Zalman's life, his role as a Hasidic leader, and his religious philosophy have been plumbed, yet consideration of the third significant vector of Shneur Zalman's activity—his role as a jurist—has too often been neglected.Footnote 3
The importance of Shneur Zalman's contribution to the field of Jewish law cannot be overstated. In authoring legal treatises, Shneur Zalman was an exception among early Hasidic masters.Footnote 4 He penned a code of Jewish law, widely known as Shulḥan ‘arukh ha-rav, “The Set Table”—meaning the code—“of the Rabbi,” as well as three legal monographs and responsa.Footnote 5 He also printed a prayer book, known in Hebrew as a Siddur—editing the text of the prayers, adding succinct instructions, and appending short legal treatises.Footnote 6 Yet, none of these influential writings, nor Shneur Zalman's juridical authority, have merited full assessment.
This neglect is unexpected given that Shneur Zalman's spiritual descendants—members of the Lubavitch Hasidic community—remain a visible presence in the contemporary Jewish world. Lubavitch, the surviving branch of the Chabad School, and named for the town where many Chabad leaders resided, proudly boasts representatives around the globe, many institutions of higher learning, and unparalleled influence in contemporary Judaism.
To be sure, biographies of Shneur Zalman abound.Footnote 7 Yet there has been no judicial biography that places this religious leader's legal oeuvre in its context. This context must be considered from a number of vantages. First, from within Hasidism: What is the relationship between Shneur Zalman's legal activity and his religious milieu, and do his legal opinions reflect a particularly Hasidic bent of Jewish law? Was he really such an exceptional figure or were other contemporary Hasidic masters also jurists of note?Footnote 8
Second, from the perspective of the history of halakhah (Jewish law): How does Shneur Zalman's code compare to other codes of Jewish law? What were the faults he was trying to remedy and how successful was he in his endeavor? What has been the long-range impact of this Hasidic master's activity in the realm of law?
Third, from a broader legal perspective: Shneur Zalman's legal activity was contemporaneous with the codification movement that grew out of the Age of Enlightenment. The first volume of Blackstone's Commentaries on the Laws of England was published in 1766, and thereafter the four-volume work was repeatedly republished in the eighteenth century. In the same period, Jeremy Bentham coined the verb “to codify,” as he actively advocated codification of the entire Common Law. Concurrently in continental Europe, legal codes were being established in different locales. These local codes were crowned by Napoleon's 1804 Code civil des Français—later renamed and better known as Code Napoléon, a treatise that would heavily influence law in many countries.Footnote 9 How does Shneur Zalman's code of Jewish law fit into the contemporary codification movement?
This programmatic essay provides the necessary academic scaffolding before these questions can be addressed. This scaffolding includes an assessment of the state of the research, an outline of salient questions raised by Shneur Zalman's legal works, and initial answers to those questions. The goal of this essay, therefore, is to lay the groundwork for construction of a judicial biography of Shneur Zalman that will define the contours of his contribution to Jewish law and contextualize his legal writing and juridical activity. It seeks both to highlight an area where legal history and the history of religion overlap and to demonstrate that this area is deserving of scholarly attention.
As a cross between between biography and legal scholarship, judicial biography seeks to link the subject's life story to the subject's activity and legacy in the realm of law. Although some scholars question the enterprise of judicial biography; others argue that consideration of a jurist's life can enhance our understanding of his legal opinions.Footnote 10 In the case of Shneur Zalman much biographical research has been conducted, both in Chabad scholarly circles and in academia.Footnote 11 Thus considering Shneur Zalman's legal activity will expand our understanding of the impact of his religious path on his legal writing, and more generally our understanding of the legal history of Hasidism. As Haym Soloveitchik has noted, there is “a growing recognition that Jewish intellectual history without halakhah is partial history only.”Footnote 12
STATE OF THE RESEARCH
Any attempt to write Shneur Zalman's judicial biography is complicated by the incomplete record of his legal works, some of which were destroyed in fires in 1810 and 1812.Footnote 13 Nonetheless, the surviving material suffices to lay the infrastructure for a judicial biography of this highly influential religious figure.
Bibliographic works from the late nineteenth century onwards listed Shneur Zalman's contribution to law; alas, because the scholarly focus lay elsewhere and because these were virgin efforts, the information they recorded was incomplete.Footnote 14 Indeed, the various genres that have referenced Shneur Zalman's legacy evidences awareness of his legal writings. Yet scholarship on Shneur Zalman—whether from the legal, biographical, historical, or philosophical genres—has made only cursory reference to his legal activity.Footnote 15
Notwithstanding Shneur Zalman's prominence in histories of Hasidism, historians have neglected his legal writings. Samuel Abba Horodezky, for instance, addressed aspects of Shneur Zalman's biography and thought. His description contrasted the uniqueness of Shneur Zalman as compared to his Hasidic peers from two perspectives: Chabad philosophy and Shneur Zalman's proclivity for traditional Talmud study.Footnote 16 Horodezky underscored that Shneur Zalman was unmatched in nascent Hasidism because he did not abandon his “Rabbinism”—meaning traditional Judaism as widely practiced before the advent of Hasidism:
Hassidism, which was hostile to Rabbinism, gave Rabbinism through one of its leaders a new fortification. Rabbi Shneur Salomon [sic] renewed the “Shulchan Aruch” [code of Jewish law]. Rabbi Shneur Salomon, who brought rationalism into Hassidism, was the only man who could compile a new book of laws. And in him we see these two extremes, Rabbinism and Hassidism[,] touch one another.Footnote 17
Horodezky's analysis was based on the then accepted axiom that Hasidism opposed traditional rabbinic authority, hence the singularity of Shneur Zalman. Horodezky's categorical assumption has since been called into question.Footnote 18 Although Horodezky correctly recognized Shneur Zalman's status as a jurist of note, he did not delve into the legal writings. Similarly, other writers on Hasidism also chose to focus on history and philosophy, but not on Shneur Zalman's legal legacy.Footnote 19
Biographies of Shneur Zalman were hardly more informative. The earliest biographies of Shneur Zalman were written in the second half of the nineteenth century, and the enterprise continues to the present.Footnote 20 These biographies mention Shneur Zalman's legal writings, but do not engage in serious analysis of the corpus. Contemporary academic scholarship on Shneur Zalman has largely avoided consideration of his legal writings.Footnote 21 This includes Immanuel Etkes' recent, well-received biography that placed Shneur Zalman's legal writings outside the bounds of the discussion.Footnote 22
CHARACTERIZATIONS OF THE LEGAL WORKS
There were exceptions to what can be portrayed as a general lack of interest in Shneur Zalman's legal legacy, but these efforts did not answer the need for judicial biography because they were methodologically flawed, and generally incomplete. These efforts are surveyed in chronological order.
First to present a preliminary discussion of Shneur Zalman's legal writings was Mordekhai Teitelbaum in his biography of the Hasidic master, published in 1910 to 1913. Although insightful, Teitelbaum's comments on the responsa are but initial observations. Regarding Shulḥan ‘arukh ha-rav, Teitelbaum noted the clear arrangement of the code, also pointing out that in general, Shneur Zalman ruled stringently. He also commented on the code's Hasidic context and, in a supplement to the biography, considered the question of when the code was written.Footnote 23
The 1940s saw three scholars attempt to characterize Shulḥan ‘arukh ha-rav: Yoel Diskin, Shlomo Yosef Zevin, and Chaim Tchernowitz (nom de plume, Rav Tzair). These attempts were not comprehensive, but any effort to construct a judicial biography of Shneur Zalman should take stock of their efforts and their shortcomings.
Diskin offered an analysis of select legal opinions, though he did not describe the treatises, nor did he typify Shneur Zalman's jurisprudence.Footnote 24 In a 1945 article, Zevin referred to Shneur Zalman as a “first-rate jurist,” noting that his lucid style endowed the code with unparalleled status. Zevin, quick to observe that style in itself is insufficient to grant eternal worth to a work, detailed three outstanding features of Shneur Zalman's code, terming them siddur (arrangement), nimukim (explanations), and hakhra‘a or pesak (decision making). Zevin's article has been reprinted numerous times, and his characterization has become a staple of scholarship on Shulḥan ‘arukh ha-rav.Footnote 25 Despite its ubiquity, Zevin's characterization has yet to be assessed. I therefore consider his effort at some length.
Under the rubric siddur, Zevin contrasted Shneur Zalman's code and the classic code of Jewish law penned by Rabbi Joseph Karo (1488–1575) and titled Shulḥan ‘arukh. Zevin underscored five facets of Shneur Zalman's organization, presentation, and language. First, Karo focused on issuing directives and therefore omitted background information, whereas Shneur Zalman detailed the sources and legal arguments that fashioned the law.Footnote 26 Second, Karo's code was designed as a practical handbook; Shneur Zalman's code had an additional objective: to teach its readers about the development of the law.Footnote 27 Third, thanks to Shneur Zalman's writing style the reader learns legal principles in addition to practical law.Footnote 28 Fourth, Shneur Zalman included definitions of legal terms, where his predecessors did not.Footnote 29 Fifth, Shneur Zalman's language was more precise.Footnote 30
Under the rubric nimukim, Zevin distinguished between two codification styles prevalent in the history of Jewish codification: codes that comprehensively detail how the codifier reached a conclusion; and codes that present the law as apodicta. Zevin viewed both approaches as flawed: comprehensive presentations are flawed because they are too detailed for the reader who simply seeks the rule; the apodictic approach is flawed because it is dry and often incomplete. Also, terse formulations of law gave rise to commentaries and super-commentaries that result in an incoherent multitude of opinions. Zevin declared that Shneur Zalman's code struck the ideal balance in this respect.
Zevin identified two further types of explanatory material that appear in Shulḥan ‘arukh ha-rav: rationales and legal sources. The rationales were either drawn from earlier sources and rephrased,Footnote 31 or were proposed by Shneur Zalman with no apparent source.Footnote 32 Shneur Zalman also indicated whether particular laws were part of the received legal tradition from time immemorial, or derived from biblical verses using hermeneutical principles.Footnote 33 Offering the legal source of a particular law was in harmony with what Shneur Zalman wrote in his first published legal treatise, where he urged his readers not to limit their study to practical law, but also to delve into its sources.Footnote 34
Finally, regarding the third feature of the code, termed hakhra‘a or pesak (decision making)—Zevin highlighted Shneur Zalman's ability to rule on disputed matters, such that his ruling was accepted beyond the circle of his disciples and adherents.Footnote 35
In assessing Zevin's contribution, it is apparent that he described Shneur Zalman's response to salient issues confronted by any codifier. Alas, Zevin's examples are more anecdotal than comprehensive. Regarding the third feature: Shneur Zalman's ability to rule—Zevin did not demonstrate his assertion by objective parameters. Moreover, the claim that Shneur Zalman's rulings were widely accepted is ironic because Lubavitch Hasidim—the contemporary bearers of Shneur Zalman's legacy—do not see the code as Shneur Zalman's final word: How laudable is a code that cannot command the fidelity of the spiritual descendants of the author?
A close reading of any code might allow us to distill the features that distinguish one work from its predecessors. Yet merely describing prominent features often raises further questions regarding the codifier's choices. For example, which codes influenced Shneur Zalman's style? Some of the features highlighted by Zevin can be found in other codes; Maimonides’ Mishneh torah comes to mind, for instance. What faults in previous codes was Shneur Zalman attempting to remedy?
Even the title of the code should be considered. The commonly used title “Shulḥan ‘arukh ha-rav” does not appear anywhere in the work; it is conventionally used to differentiate between Shneur Zalman's composition and Karo's earlier Shulḥan ‘arukh. What does the audacious re-use of the title “Shulḥan ‘arukh” indicate?Footnote 36
Although a good starting point, Zevin's observations call for comparative analysis. Furthermore, Zevin did not address one of the most important questions necessary for a judicial biography of Shneur Zalman: to what extent—if any—does Shulḥan ‘arukh ha-rav reflect Hasidism?
Around the same time as Zevin's article appeared, Chaim Tchernowitz related to Shulḥan ‘arukh ha-rav in his monumental work on jurists of Jewish law.Footnote 37 His account was divided into three parts: The first section focused on Shneur Zalman's motivation for composing legal works, and though Tchernowitz's assessment was historically flawed (and given the scope of Tchernowitz's project—necessarily incomplete), it is an important contribution in that he related to the Hasidic context of Shulḥan ‘arukh ha-rav.
In his second section, Tchernowitz described Shneur Zalman's approach to Jewish law, but limited his examination to Shneur Zalman's first published work—Hilkhot talmud torah, “The Laws of Torah Study.” Despite Tchernowitz's claim that this work exemplifies Shneur Zalman's legal writings, Hilkhot talmud torah differs substantially in style from his other legal works. Furthermore, an attempt to extrapolate from one work to the other must take into account the fact that Shneur Zalman anonymously published Hilkhot talmud torah in 1794, whereas he never published Shulḥan ‘arukh ha-rav; the code was published posthumously by his sons from 1814 to 1816. In truth, Hilkhot talmud torah merits separate analysis.Footnote 38
In his third section, Tchernowitz related to the structure of Shulḥan ‘arukh ha-rav and made two interesting—though questionable—observations: (1) that Shneur Zalman replaced obsolete terms and (2) that he corrected grammatical errors that appear in earlier works. Both assertions are dubious: Shneur Zalman is not consistent either in his grammatical choicesFootnote 39 or in replacing terms.Footnote 40
Additional contributions to the discussion of Shneur Zalman's legal works came in the 1960s in commemorative volumes marking the 150th anniversary of Shneur Zalman's death. Yisrael Porat—like Zevin before him—highlighted three aspects of Shneur Zalman's code: the ordering of the laws, Shneur Zalman's decision-making ability, and his precise language.Footnote 41 Drawing examples from the laws of fringes to be placed on four-cornered garments (ẓiẓit) and from the laws of Passover, Porat asserted that they were representative of the entire work. Porat's assertion warrants careful examination because, according to Shneur Zalman's sons, these were the first two sections that their father penned. Porat's analysis—to the extent that it is methodologically sound—may at least be considered to describe Shneur Zalman's early efforts.
In the same publication, Aaron Wertheim—whose 1940 doctoral dissertation focused on the attitude of the Hasidic movement to Jewish law—acknowledged Zevin's work but nonetheless lamented that no one had dared to undertake a complete assessment of Shneur Zalman's non-Hasidic writings.Footnote 42
More recently, intense efforts to plumb Shneur Zalman's legal writing have emerged from Lubavitch circles. Avraham Alashvili published a summary of the Sabbath laws as codified in Shulḥan ‘arukh ha-rav (1990) and a three-volume compilation, titled Shulḥan ha-melekh (1991–1994), which contains explanations of the code based on the public discourses of Rabbi Menachem Mendel Schneerson of Lubavitch (1902–1994; hereafter referred to by the Hebrew acronym “Ramash”).Footnote 43 From 2002 to 2003, Alashvili produced a series of articles in a Lubavitch journal, focusing on the language of Shulḥan ‘arukh ha-rav and mining it for insights into Shneur Zalman's legal positions.Footnote 44 Alashvili's approach is based on the assumption that Shneur Zalman's choice of language was unwaveringly precise. Chabad tradition maintains that Shneur Zalman was meticulous in his choice of language when authoring his seminal work in Hasidic thought, Tanya, and Ramash applied this tradition to his analysis of Shulḥan ‘arukh ha-rav.Footnote 45 Alashvili's articles, therefore, can be viewed as an extension of Ramash's explanations (the very explanations compiled by Alashvili in Shulḥan ha-melekh).
Like Zevin, Alashvili compared Shulḥan ‘arukh ha-rav to earlier sources, but tended to add conclusions based on casuistic readings unbacked by comparative analysis.Footnote 46 Three of Alashvili's articles dealt with single cases, though he asserted that their theses could be applied to other cases. Two of his articles were based on a series of examples, and consequently present stronger arguments. Unfortunately, a closer look at Alashvili's conclusions reveals them to be conjecture phrased as definitive readings. Alashvili's contribution must be classified alongside other efforts to explore select passages of Shulḥan ‘arukh ha-rav (or for that matter, any code): Even to the extent that any particular reading might be plausible, it will not describe the entire code, nor will it distinguish the code from other legal works.
Alashvili's work is not entirely new. Rather, Alashvili is representative of a trend in contemporary Lubavitch scholarship. In 1973, Kollel Ẓ emaḥ Ẓedek—a Chabad-affiliated, Jerusalem-based institute for higher learning—published its first volume exploring a chosen topic in Shneur Zalman's code.Footnote 47 Printed soon after the institute's establishment, the volume was produced in response to Ramash's urging that institutes of higher Torah study publish novellae. Over the years, this institute has consistently produced works focusing on Shneur Zalman's legal writings, and similar institutes around the world have followed this trend. A further push in this direction came in 1976, when Ramash's exhortations precipitated the publication of two journals dedicated to Lubavitch research in Talmud and Jewish law, including Shulḥan ‘arukh ha-rav.Footnote 48 Thus, over the past half-century, Lubavitch writers have analyzed, annotated, elucidated, and extrapolated Shneur Zalman's legal positions, producing numerous publications that plumb aspects of Shulḥan ‘arukh ha-rav. The results range from short articles to full-length books by renowned Lubavitch scholars. Although these achievements should not be discounted, none of the efforts has succeeded in characterizing Shneur Zalman's legal writings or offering a judicial biography.
RESEARCH TOOLS
Fortunately for the judicial biographer, study of Shneur Zalman's legal writings can benefit from the invaluable research tools developed by the Lubavitch scholarly community, specifically glosses on particularly difficult passages, annotated editions that identify the sources of Shulḥan ‘arukh ha-rav, indexes, and bibliographies.Footnote 49 The current official Lubavitch librarian, Sholom Dovber Levin, has been at the forefront of these efforts, including the 1985 reprinting of the code with additions.Footnote 50 Levin, together with Alashvili and Yitzchok Wilhelm, headed the effort to publish an annotated edition of Shulḥan ‘arukh ha-rav, which appeared from 2001 to 2007.Footnote 51 Recent years have also seen the publication of annotated editions of the responsa.Footnote 52 In 2006, Levin published another important research tool: an index of Shulḥan ‘arukh ha-rav.Footnote 53 More recently, Levin recounted the history of the writing of Shulḥan ‘arukh ha-rav.Footnote 54
Bibliographies of Shneur Zalman's writings are another valuable research tool. Such a bibliography, published in 1969, was compiled by Abraham Meir Habermann.Footnote 55 Habermann's effort has since been superseded by Yehoshua Mondshine's 1984 bibliography of Shneur Zalman's legal writings. Mondshine's volume describes the structure of the writings, their dating, matters relating to censorship, and the favorable reception awarded Shulḥan ‘arukh ha-rav. The volume contains a comprehensive bibliography, listing editions of and commentaries on each work. While there is room to update Mondshine's volume, since much has been written in the last thirty years, it remains an indispensable resource.Footnote 56 Another volume worthy of mention is Yekutiel Farkash's collection of rules of arbitration garnered from Shulḥan ‘arukh ha-rav and Shneur Zalman's responsa.Footnote 57
Having assessed the state of research and detailed available research tools, I turn to the task of identifying key questions for a judicial biography of Shneur Zalman, and offer initial understandings.
HASIDIC CONTEXT OF THE CODE
Shulḥan ‘arukh ha-rav must be considered a product of the Hasidic milieu, firstly because it was authored by a leader who was central to the development of Hasidism in the late eighteenth century. This leads to consideration of the impetus for, and the objectives of, Shneur Zalman's code. More broadly, considering the Hasidic context of Shneur Zalman's code may shed light on how nascent Hasidism related to Jewish law.
Alas, the exact Hasidic context of Shneur Zalman's code is far from clear, though several possibilities have been suggested. One possibility is that the code was a project that evolved within the nascent movement. In their introduction to the code, Shneur Zalman's sons relate that the work was written at the behest of one of the central personalities of nascent Hasidism—the Maggid (Preacher) of Mezritch, Rabbi Dov Ber (d. 1772), who felt a need for a code, given economic pressures that led to lack of time for talmudic and halakhic studies. According to the testimony of Shneur Zalman's sons, not only was Shulḥan ‘arukh ha-rav written at the Maggid's request, but it was he who set the format—a format that mimicked Karo's Shulḥan ‘arukh. Moreover, Shneur Zalman began writing while under the Maggid's auspices.Footnote 58 Rabbi Yeruḥam Lainer of Radzyn (1888–1964), a Hasidic master unaffiliated with Lubavitch, claimed not only that the code was the Maggid's brainchild but that Shneur Zalman consulted the Maggid whenever he was uncertain as to how to rule.Footnote 59 This claim is based on a responsum in which Shneur Zalman writes that he consulted the Maggid regarding a particular legal matter in the summer of 1772.Footnote 60 But this is the only such statement. Moreover, as the majority of the code was written after the Maggid's death, Lainer's claim is unconvincing.
Admittedly, the sons' account is of questionable historicity, for this is the sole report of what precipitated the code, and, unfortunately, the report was not penned by Shneur Zalman. The sons—who were not eyewitnesses to the eventsFootnote 61—published the account in the first volume of Shulḥan ‘arukh ha-rav, which appeared in 1814, two years after their father's demise.Footnote 62 This account has been accepted by scholars,Footnote 63 but considering the lack of corroborating evidence, the introduction may be more indicative of the sons’ perception than the father's experiences.
Another suggestion highlights the clash between Hasidim and Mitnaggedim as the context for Shulḥan ‘arukh ha-rav. Scholars who took this line argued that the code allowed the Hasidic faithful
to have no need to join those who were studying, in their studies. And in this way the Hasidim separated from the general population, and they became their own distinct community. Likewise, in this way [Shneur Zalman and his school] separated from their brothers the Hasidim in the regions of Volhynia, for Rabbi Shneur Zalman also departed from his colleagues, the students of the Maggid of Mezritch, in the foundations of his approach to Hasidism.Footnote 64
The extrapolation from the uniqueness of Shneur Zalman's Hasidic philosophy to his legal writings is shaky. If anything, the form and content of the code belie the notion of a separatist treatise. As Zevin's analysis implies, the uniqueness of Shulḥan ‘arukh ha-rav lies in finer points, and these innovations pale in comparison to the singularity of Shneur Zalman's Hasidic thought.
Tchernowitz offered a different account of what sparked the Shulḥan ‘arukh ha-rav project, based on his understanding of legal-historical processes. Tchernowitz highlighted two factors: First, he sought to place Shneur Zalman's undertaking in the broader context of Jewish codes, explaining that codes were written at historical junctures when people were inspired to pursue in-depth study of disciplines other than law. Thus, Maimonides’ code was written when the study of philosophy reigned, and Karo's code was a product of a community that lauded the study of Kabbalah. Philosophy and Kabbalah are both gnostic pursuits; a code of law is a psychological counterpart to these endeavors, since authoring a code is a quest to resolve legal uncertainties. Shneur Zalman's code sprouted from the Hasidic awakening, and hence fits this model.Footnote 65
Second, Tchernowitz sought to place Shulḥan ‘arukh ha-rav in its specific historical context: the nascent Hasidic movement. Intent on warding off accusations of Hasidic antinomianism, the Maggid—according to Tchernowitz—designed the code to prove that Hasidism was not bent on uprooting law. Others took a similar approach, but ascribed this intention to Shneur Zalman.Footnote 66 Echoing other scholars, Tchernowitz added that an internal publication by one of their own would encourage Hasidic adherents to study Torah without entering the mitnaggedic playing field of the standard Shulḥan ‘arukh.Footnote 67
Tchernowitz's account of authorial motives suggests a startling conclusion: If Shneur Zalman embarked on this project in the early 1770s, and the Maggid was coaxing his student beforehand, then according to Tchernowitz the Maggid sought to counter his opponents even before the first ban against the Hasidim was proclaimed in 1772. Levin went further in connecting Shulḥan ‘arukh ha-rav to the conflict by raising the possibility that Shneur Zalman wrote part of the code while in Vilna in 1772 on a mission to confront the Mitnageddim.Footnote 68 Such claims lack supporting evidence. Indeed, given the time lag between writing and eventual publication, I find it difficult to accept any claim that the composition of Shulḥan ‘arukh ha-rav is directly related to the clash between Hasidim and Mitnaggedim. This gap confutes any polemic motive in the authorship of Shulḥan ‘arukh ha-rav.Footnote 69
Moshe Rosman suggested an entirely different Hasidic context for Shulḥan ‘arukh ha-rav. Rosman noted that Shneur Zalman “obviously did not rush to publish” the code, leaving his sons to posthumously publish a work “that had the declared purpose of making the law accessible to every person without intermediation of halakhic experts.” According to Rosman, this was part of the leadership gambit by Shneur Zalman's son Dov Ber, who sought to promote equality among group members and democratization of knowledge of Hasidic doctrines. According to Rosman,
Presenting the everyday obligations of a Jew in an accessible form was a good way to promote these goals. If everyone could read the law for himself and know it, then each individual might feel that he understood what the rebbe [Hasidic master] demanded of him, even without a personal interview or listening to the rebbe's sermons.
Rosman viewed this decision as part of Dov Ber's efforts to consolidate the disciples of his deceased father under his own leadership, using uniform law to provide identity and group unity as “an important step in the institutionalization of a group that had been based on the charisma of a single leader.”Footnote 70
The notion that, by promoting a uniform praxis, Shulḥan ‘arukh ha-rav would bind the Hasidim holds true only if the code advocates a distinctive practice. Yet Shulḥan ‘arukh ha-rav is generally unremarkable in this respect. Indeed, in their introduction, the sons underscored that the work was a summary of extant halakhic literature, rather than a break with existing tradition. Shneur Zalman seldom discussed laws that had not appeared in earlier legal writing and Shulḥan ‘arukh ha-rav is a conservative work that did not promote a distinctive praxis.Footnote 71
Nevertheless, I accept Rosman's point about Shulḥan ‘arukh ha-rav being the glue for Dov Ber's inherited Hasidim since the work provided a new canonical legal text for the nascent group. Evidence in support of this assertion can be seen in Dov Ber's introduction to the fourth volume of Shulḥan ‘arukh ha-rav, first published in 1816:
I decree that [members of the Hasidic brotherhood] institute as a fixed practice in every shul [synagogue] that they study and delve into the laws that appear throughout this text—the part of the Shulchan Aruch entitled Orach Chayim [the first section of the code, dealing with daily ritual law]—which has been published almost from beginning to end.Footnote 72
Dov Ber also suggested gradated study programs of classic Jewish texts. Notably, each program included studying Shneur Zalman's recently published code. Dov Ber went further, calling for a communal undertaking to study Shulḥan ‘arukh ha-rav. This enterprise involved dividing the section of the code that deals with daily rituals among members of the community in such a way that the community would collectively study the entire work once or twice a year.Footnote 73
HASIDIC CONTENT IN THE CODE
Apart from determining Hasidic context, another aspect of Shneur Zalman's legal oeuvre concerns content: do Shneur Zalman's legal writings reflect Hasidic thought? Wertheim denoted Shneur Zalman's code “one of the central pillars of the halakhic literature in Hasidism”Footnote 74—but the meaning of this declaration is unclear. It has yet to be shown that Shulḥan ‘arukh ha-rav is Hasidic in substance, and arguments for specifically Hasidic content in the code are unconvincing.
Tchernowitz (who claimed that Shneur Zalman was responding to Mitnaggedim) correctly noted the absence of Hasidic footprints in the code, arguing that Shneur Zalman “authored the Shulḥan ‘arukh precisely according to the method of the Mitnaggedim,” and concluding that “we cannot find any trace of a Hasidic departure from the letter of the law, as it is accepted in the rulings of the Shulḥan ‘arukh and its commentaries—even in matters where Hasidim differed from the Mitnaggedim.”Footnote 75
Tchernowitz, however, distinguished between the first edition of Shulḥan ‘arukh ha-rav and its second edition, of which we have precious few sections: “Indeed in the ‘second edition’. . . he altered his method and his style entirely . . . in that there he introduced some laws according to Kabbalah and Hasidism.”Footnote 76 Tchernowitz's assertion is curious: the second edition has a Hasidic imprint, whereas the edition that was reportedly written at the Maggid's behest does not reflect Hasidism. But the problems with this assertion go beyond irony. In a footnote, Tchernowitz cited three examples, noting that changes between the editions “prove extra piety (ḥasidut) in the second edition as opposed to the first.”Footnote 77 To the extent that the second edition calls for “extra piety,” it still says nothing about Hasidism; unless “extra piety” in general can be shown to be a particularly Hasidic value, or the particular expression of “extra piety” is patently Hasidic. Neither possibility has been proven.
Tchernowitz's distinction between the two editions was the focus of Joseph Sat's 2010 master's thesis, which analyzed the two editions of the first four sections of the code. Sat argued that the second edition reflects Hasidism in its additional content, in its reorganized form, and in the catalyst that led to its composition. Sat identified Shneur Zalman's growing stature as a Hasidic master as the backdrop to this second edition:
As his power in the realm of Hasidic leadership grew, he felt a growing sense of obligation to guide the learners in their service [of God]. This [was true] even regarding the composition of a legal code [shulḥan ‘arukh], whose primary concern is practical Jewish law.Footnote 78
Sat's analysis is unconvincing. First, his attempt to link juridical confidence and time served at the helm of a Hasidic community demands more compelling evidence. To be sure, a jurist must enjoy his constituency's confidence, particularly in legal systems that lack effective enforcement mechanisms, as was the case for Jewish law in Shneur Zalman's milieu. Alas, it remains to be demonstrated that juridical self-assurance is born of time served as a Hasidic master, rather than time served as a jurist. Second, Sat did not distill Hasidic values from the second edition; rather, he based his conclusions on general features. Third, Sat did not set out to analyze the legal writings in toto, so his conclusions must be tested on Shneur Zalman's other works, particularly those written later in his life once he was an established figure.
Avinoam Rosenak argued that Shulḥan ‘arukh ha-rav is “suffused with the spirit of the Maggid” and “is indeed a project cast in the image of Shneur Zalman's teacher, the Maggid; and one can sense within it echoes (even if distant ones) of the spiritualist inclination.” Rosenak grounded this conclusion on Shneur Zalman's emphasis on theory in Shulḥan ‘arukh ha-rav, linking this feature to the Maggid's Hasidism. The “echoes” are subtle, for Rosenak also noted that “even if Shulḥan ‘arukh ha-rav is more expansive at some points than its predecessors, it does not depart from them in any way that would fundamentally distinguish it.”Footnote 79 Thus Rosenak identified Hasidism in the presentation of law, though not in the norms themselves.
Methodologically, the work of Sat, Rosenak, and other scholars, invites rigorous research on a further trajectory: a comparison of Shneur Zalman's legal writings and those of other jurists of Jewish law—both Hasidic jurists and jurists unconnected to Hasidism. Soloveitchik illustrated the importance of this comparative angle in another context:
No jurist, certainly no religious jurist, dreams of interpreting the law according to his personal inclination; he seeks simply to discover what the sources say on the matter. And if he is of any stature, his words will read as a series of objective and ineluctable conclusions. Only by comparing his solution with those of others does subjectivity becomed [sic] apparent. Law leans towards continuity and has an antipathy to radical change; thus the revolutionary jurist must disguise his innovations—at times, even from himself. Only by aligning a man's interpretation with those of his predecessors can its innovative character be discerned, and only by studying its impact upon his successors can its significance be evaluated.Footnote 80
Such an examination would reveal whether Shulḥan ‘arukh ha-rav is “Hasidic” in content. To date, no research has convincingly demonstrated that Shulḥan ‘arukh ha-rav exhibits Hasidic values. This possibility itself is noteworthy: a leader of the nascent Hasidic movement, who writes a code of law devoid of Hasidic influence.
Though traces of Hasidism are not attested in Shulḥan ‘arukh ha-rav, Shneur Zalman's other legal writings require separate consideration. The legal material found in Shneur Zalman's Siddur (Prayer Book) gives greater prominence to kabbalistic sources, though it remains to be shown whether kabbalistic influences are particularly Hasidic expressions of the esoteric tradition. Similarly, Shneur Zalman's responsa require separate consideration, since that genre of legal writing often reflects current events and is likely to give voice to vicissitudes of nascent Hasidism. Indeed, certain issues that were flashpoints between Hasidim and Mitnaggedim—such as the question of ritual slaughter knives and the matter of changing prayer rites—are discussed in Shneur Zalman's responsa.Footnote 81 Quantitatively a relatively minor contribution to the genre, the content of Shneur Zalman's responsa has yet to be fully explored.Footnote 82
CONTRADICTIONS IN THE LEGAL WRITINGS
Portions of Shneur Zalman's rulings have reached us in more than one edition, and the different renditions are not always consistent. There are two types of contradictions: (1) different rulings in different legal treatises, such as Shneur Zalman's Siddur as compared to overlapping topics in Shulḥan ‘arukh ha-rav,Footnote 83 and (2) contradictory rulings within Shulḥan ‘arukh ha-rav, presumably indicating sections written at different junctures or for different purposes.Footnote 84
These contradictions have captured the attention of Chabad devotees. Rabbi Avraham David Lavot (1815–1890) was the first to detail some of these changes.Footnote 85 Rabbi Abraham Haim Noe (1890–1954) offered a more comprehensive list of 192 differences between the code and the legal material in the prayer book.Footnote 86 Other Lubavitch scholars identified additional cases.Footnote 87 Two master's theses written in Bar-Ilan University's Talmud department, by the aforementioned Joseph Sat and by Zipporah Maidanchik, also tackled this issue.Footnote 88 Sat's thesis shifted the focus from the Siddur to the two editions of the code. To Sat's credit, even where the law remains unchanged, he identified differences between the editions.
Identifying the differences between works and editions is only the first step. For the judicial biographer the real issue is why Shneur Zalman changed his rulings. As yet, no definitive answers have been provided. Noe bemoaned the fact that scholars of Shneur Zalman's generation had not embarked upon comparative research “for then, we certainly would have merited great and wonderful things, and knowledge of the real reasons [for the changes].”Footnote 89 Nonetheless, a number of directions have been proposed by bearers of Shneur Zalman's legacy and by other scholars.
Shneur Zalman's brother, Rabbi Yehudah Leib of Yanovichi (fl. 1800); his grandson-in-law, Rabbi Neḥemiah Ha-levi Ginsburg of Dubrovna (1788–1852); and his grandson, Rabbi Menaḥem Mendel Schneersohn of Lubavitch (1789–1866; known by the title of his multi-volume legal work Ẓemaḥ Ẓedek) all reported that Shneur Zalman had revised certain rulings. They attributed the revisions to Shneur Zalman's own sense that in his first attempt he had overly relied on Magen Avraham, the seminal commentary on Karo's code written by Rabbi Avraham Abele Gombiner (1635–1682).Footnote 90 Drawn from contemporary, firsthand evidence, this plausible report accounts for some revisions but does not explain all the changes.
Lavot suggested that Shneur Zalman originally ruled according to accepted principles of Jewish law; hence he did not grant decisive legal weight to Jewish esoteric tradition. Subsequently Shneur Zalman gave preference to opinions of kabbalists, even if this meant going against established legal rules.Footnote 91 Indeed, a cursory look at Shulḥan ‘arukh ha-rav reveals that Shneur Zalman adopted opinions of kabbalists only when their positions did not conflict with those of jurists of Jewish law; a principle he stated unequivocally.Footnote 92 In his later works, however, Shneur Zalman preferred the positions of kabbalists, even when they conflicted with opinions of jurists.Footnote 93 What precipitated this change? Lavot did not address this question.
To recall, Tchernowitz understood Shulḥan ‘arukh ha-rav as a work designed to prove the fidelity of Hasidism to Jewish law. Consequently, he suggested that Shneur Zalman adopted the positions of the kabbalists only after despairing of obtaining approval from the opponents of nascent Hasidism. According to Tchernowitz, therefore, later editions should be considered revisions of earlier positions.Footnote 94 Tchernowitz, however, provided no supporting data for his sequential account. Moreover, not all the differences between the additions can be accounted for by reference to Kabbalah.
Noe noted four differences between Shulḥan ‘arukh ha-rav and Shneur Zalman's Siddur (in addition to a willingness to rule against Magen Avraham):
(1) Shulḥan ‘arukh ha-rav was written according to the Ashkenazi prayer rite (the accepted prayer rite in Europe), whereas the Siddur followed the rite of the great Safed kabbalist Isaac Luria (1534?–1572).
(2) The code prefers the opinions of jurists of Jewish law, whereas the legal writing in the prayer book gives preference to Luria's opinions.
(3) Where it is unclear whether a blessing should be recited over a particular food, Shneur Zalman originally ruled that no blessing should be recited, but later ruled that the particular food should not be consumed.
(4) In his later writings, Shneur Zalman preferred the stringent opinion in an attempt to satisfy the greatest number of opinions possible; that is, maximum position compliance.Footnote 95
It is not certain that Noe's outline furthers our understanding.Footnote 96 His first two points echo Lavot's explanation; the very approach Noe criticized for not being comprehensive. Noe's third point is based on nine examples, but appears to be a specific application rather than a category.Footnote 97 Regarding the fourth difference—the tendency toward stringency and maximum position compliance in later works—Noe acknowledged that, on occasion, Shneur Zalman ruled leniently in later works. The issue of calculating nightfall—a matter with consequences for the end of Sabbath observance—is an illustrative example: Shneur Zalman initially adopted the stringent position, but subsequently preferred the lenient ruling. Such exceptions call into question whether what truly drove Shneur Zalman was a tendency towards maximum position compliance; it is likely that his stringent rulings were a byproduct of other stimuli. Beyond acknowledging the jurisprudential possibility that a decisor may revise his earlier opinions, Noe offered no explanation for what precipitated the changes made by Shneur Zalman.
According to an exchange reported by Lavot, Rabbi Hillel Paritcher, one of Shneur Zalman's followers, once asked Shneur Zalman how one should act when there is a conflict between kabbalists and halakhists; that is, between purveyors of Jewish mystical tradition and purveyors of Jewish legal tradition. Shneur Zalman responded that primacy should be given to the kabbalists. The disciple challenged his teacher by pointing out that in his code Shneur Zalman stated a preference for the opinion of the halakhists. Shneur Zalman gave the following cryptic reply: “Thus write the halakhists, but the kabbalists write that we should follow the kabbalists as opposed to the halakhists.”Footnote 98 While writing his code, Shneur Zalman identified as a halakhist and therefore preferred the rulings of halakhists over kabbalists; later on when wearing a different hat he identified as a kabbalist and hence preferred the opinions of kabbalists over halakhists. This suggests a shifting self-image of the jurist rather than an evolving understanding of law.
Noe cited—and rejected—a different explanation for the textual variants, one that focused on the intended audience of each work: the code was written for the general public, whereas the prayer book was intended for Shneur Zalman's followers. Non-Chabad writers adopted this distinction, including Hasidic masters who were also jurists: Rabbi Avraham Bornsztain of Sochaczew (1838–1910), Rabbi Ḥayim Elazar Shapira of Munkács (1871–1937), and Rabbi Ḥoneh Halbershtam of Kołaczyce (1884–1942).Footnote 99 This approach is reminiscent of Tchernowitz's account in which he asserted that Shulḥan ‘arukh ha-rav was written with an eye toward Mitnaggedim, whereas the Siddur was designed for the Hasidic faithful. Noe dismissed this explanation, declaring: “Are Hasidim different from the rest of the world, to instruct them a different law, regarding the laws of ẓiẓit, and tefillin, and Sabbath, and the like?”Footnote 100 Noe's definitive rejection of this possibility is ironic, given that Shneur Zalman's grandson-in-law acknowledged that it may be incumbent upon disciples to act in accord with their teacher's rulings, even in cases where the majority of decisors rule otherwise.Footnote 101 Noe cited this passage in the introduction to his own code of Jewish law, where he accorded a priori primacy to Shneur Zalman and his school.Footnote 102 Indeed, it is common fare today for a practitioner of Jewish law to rule differently for two individuals in consideration, for instance, of their ethnic origin. Thus, a different law for a defined group is at least a jurisprudential possibility and should not be dismissed out of hand.
Sat's study yielded five features characterizing the four extant sections of the second edition of Shulḥan ‘arukh ha-rav as compared to the first edition:
(1) influence of Kabbalah: preference for kabbalists over halakhists, citations from kabbalistic literature, explanations grounded in kabbalistic ideas, use of kabbalistic terminology;
(2) opening expositions and formulations of principles that group together a number of detailed instructions;
(3) introduction of the notion that fulfilling legal requirements is a form of imitatio dei;
(4) addition of rationales from other disciplines, such as ethics and philosophy, leading to a tendency toward stringency;
(5) restating the law, rather than copying passages or phrases from earlier works.Footnote 103
Based on this description, Sat suggested that the changes resulted from “the strengthening of [Shneur Zalman] during his lifetime, and the liberty that he sometimes took to disagree with his predecessors.”Footnote 104 In other words, in his later works, Shneur Zalman felt free to forge his own jurisprudential path. This may be the thrust of Lavot's explanation regarding Shneur Zalman's move to incorporate Kabbalah. Similarly, the familial reports regarding the lessened weight of Magen Avraham in Shneur Zalman's later decisions bespeak a break from shackles. The later works also exhibit a willingness to adopt the rulings of medieval jurists, without the mediation of later authorities; a point indicated by Shneur Zalman himself.Footnote 105 Shneur Zalman's evolving self-confidence may also be what his sons intended when they wrote:
In the course of years, his scholarship grew in depth and in breadth. . . . When he composed the part entitled Yoreh Deah [that deals with ritual law], and in particular, the laws of Niddah [menstruation] which he composed in his later years: as he grew older, he added strength and courage to his halachic acuity.Footnote 106
This plausible explanation for the changes points to the qualities of confidence, independence, and courage that a decisor may acquire with time. It suggests an evolution in Shneur Zalman's life that has yet to be described. For a judicial biographer, this possibility invites comparisons between Shneur Zalman and veteran jurists whose approaches developed over time.
NORMATIVE LEGACY
From a juridical perspective, the question is not simply why Shneur Zalman changed his approach, but also how the variant norms should be appraised. Normative legacy could be measured by various parameters; primarily, how rulings were treated by subsequent jurists.Footnote 107 A particular permutation of this parameter would involve an examination of cases where Chabad legal tradition rules against Shneur Zalman, often favoring the opinion of his grandson Ẓemaḥ Ẓedek.Footnote 108 The impact of a jurist may also go beyond the question of binding law: Shneur Zalman's code spawned legal writing among his descendants and disciples, especially commentaries, efforts to complete missing portions of the code, and an attempt to write an abridged version of Shulḥan ‘arukh ha-rav.Footnote 109 These endeavors reflect Shneur Zalman's legal legacy. Such questions address the impact of the jurist over time, though they reveal little of his biography.
Examining the normative treatment of contradictory positions in Shneur Zalman's own writings not only relates to the jurist's legacy, it also prompts us to consider how Shneur Zalman saw his own evolving work—a key question for judicial biography.Footnote 110
Chabad tradition is clear on the contradictions in Shneur Zalman's legal writings: Shulḥan ‘arukh ha-rav does not necessarily reflect the rule. Rather, Shneur Zalman's later work—primarily the legal material in his prayer book—is considered the normative text.Footnote 111
Chronology may appear to be an easily applied parameter; in the case of Shneur Zalman's writings it is, however, a complex yardstick. First, non-Chabad traditions raise the question: which text is in fact the final version? Rabbi Yiẓḥak Eizek Yehudah Yeḥiel Safrin of Komarno (1806–1874) indicated that the Siddur reflects Shneur Zalman's earlier opinion, whereas Shulḥan ‘arukh ha-rav gives voice to his final position.Footnote 112 In 1944, Rabbi Aharon Rokeaḥ of Belz (1880–1957) reported a tradition that when Shneur Zalman showed the first four sections of the code to the Maggid, he was praised for his diligent work. The Maggid, however, added that the world needed a “garment”; presumably meaning that the code was too lofty and pure for public consumption. From then on, Shneur Zalman changed his style, the result being the extant Shulḥan ‘arukh ha-rav. According to this report, the alleged “second edition” may be the early attempt that was shelved.Footnote 113 Rabbi Yoel Teitelbaum of Satmar (1887–1979) also reportedly did not accept the assertion that the Siddur reflected Shneur Zalman's final word.Footnote 114 Despite unequivocal Chabad tradition to the contrary, these accounts may find support in the fact that the Siddur was published before Shulḥan ‘arukh ha-rav.
A second point regarding the definitive Chabad tradition that the Siddur, as the later work, is the normative text: Lubavitch scholarship acknowledges that it is inaccurate to speak about one volume preceding another en bloc, for even within a particular volume we can identify earlier and later texts and, more importantly, changes in Shneur Zalman's rulings.Footnote 115 One example that has come to light is the case of Shulḥan ‘arukh ha-rav, oraḥ ḥayim, nos. 155 and 156.
In 1997 Nochum Grunwald noted a contradiction between Shulḥan ‘arukh ha-rav, oraḥ ḥayim 156:7 and 608:6 regarding the extent of the obligation to rebuke a sinner based on the biblical injuction to “Reprove your kinsman” (Leviticus 19:17). In one text, the person offering a rebuke is instructed to persist, “even one hundred times, until the wrongdoer strikes him or curses him” (156:7). In the other text, the person offering rebuke may desist from further chastisement as soon as the sinner retorts with a reprimand of his own (608:6). Grunwald's observation generated attempts to harmonize the sources that culminated in the conclusion—set forth by Grunwald, but then accepted by others—that nos. 155 and 156 were a later addition to Shulḥan ‘arukh ha-rav. As Grunwald acknowledged, scholars had noted that nos. 155 and 156 were different from the rest of the code: in style, in that there were citations from later works written by Shneur Zalman and other jurists, and because these sections were first printed in the 1856 Zhitomir edition of Shulḥan ‘arukh ha-rav.Footnote 116 The extant code, therefore, contains snapshots of Shneur Zalman's legal thinking at different stages of its evolution. The case of nos. 155 and 156 warns against generalizations about chronology of Shneur Zalman's legal writings, and indicates a potential pitfall in identifying normative legacy on this basis.Footnote 117
Maidanchik suggested a further implication of the different—though incomplete—later editions, in light of the Chabad approach that recognizes the latest version as authoritative. According to Maidanchik, if we can faithfully explain the variations between earlier and later editions, we may be able to extrapolate Shneur Zalman's later opinions in areas of law where only his initial writings have survived. After making this suggestion, Maidanchik retreated from this proposition.Footnote 118 Prominent Lubavitch author and activist Shalom Dovber Ha-levi Wolpo took a similar line; however, he recognized only a limited cadre of Shneur Zalman's descendants who were authorized to undertake this task.Footnote 119 Levin toned down this idea: in some cases, Shneur Zalman began working on a later edition but did not revise the actual code. In two areas of law such preliminary revision has survived, prompting Levin to extrapolate Shneur Zalman's revised—but not openly stated—rulings.Footnote 120 The unorthodox jurisprudential implication of this line is that a presumed legal opinion could trump Shneur Zalman's written and published ruling.
Is the Chabad approach that gives exclusive normative authority to Shneur Zalman's later positions—assuming they can be identified—necessarily correct? Juristic dynamism, as manifested in a decisor's ability to renounce an earlier ruling, is an important feature of active legal systems. But even if the author meant to replace his earlier work, perhaps the earlier work can still be considered a source of law? Also, not every change is necessarily a repudiation of previous rulings. What weight—if any—should be given to the reason for the change? For instance, is there a difference between evolution in the jurist's understanding of the law, on one hand, and outside pressure or a changed audience, on the other? According to Tchernowitz, the stimulus for Shneur Zalman's revision was his evolving attitude towards the opponents of Hasidism, not his evolving understanding of law. The notion that Shneur Zalman aimed to present different versions to different publics raises the possibility that the earlier renditions could still be considered bona fide sources of law.
An alternative approach was suggested by a jurist unaffiliated with Chabad, Rabbi Ḥanokh Henikh Pack (ca. 1880–1944). Commenting on contradictions in Shneur Zalman's legal writings, Pack candidly admitted, “I do not know which is the later composition—the Siddur or the Shulḥan ‘arukh [ha-rav].” He therefore suggested a different normative gauge: “It would appear that we should rely more on the Shulḥan ‘arukh [ha-rav] for it was prepared for practical law [halakhah le-ma‘aseh].”Footnote 121 In determining normative valence, Pack's approach looked to the literary source of the law, rather than to the date of composition. Thus a legal opinion cited in a genuine legal code like Shulḥan ‘arukh ha-rav would carry greater weight than a legal opinion cited in an ostensibly non-legal work such as the Siddur.
AUTHORIAL DECISIONS
An understanding of the format of presentation is essential in assessing authorial goals, intended audience, and the work's place within the legal system.Footnote 122 How did Shneur Zalman perceive his legal writing: a commentary on earlier works, a shorthand summary, a digest of other writings, or a new code? Who was the intended audience: laypeople; rabbis who dispense rulings to constituents; or learners intent on delving into law and its sources, developments, and permutations?
In the case of Shulḥan ‘arukh ha-rav these are complex questions because various sections of the code were written in different styles. The majority of the work, dealing with daily rituals, follows Karo's code; the laws dealing with ritual slaughter and menstruation mimic commentators on Karo's code; the Laws of Torah Study appear to be styled after Maimonides’ code;Footnote 123 and sections on Jewish civil law are written as digests of laws. In addition, there are individual instances of exceptional formats in Shulḥan ‘arukh ha-rav (like the aforementioned nos. 155 and 156).Footnote 124 Shneur Zalman's other legal works also contain a variety of formats. For instance, the Siddur’s laws of Counting the ‘Omer—the seven-week period between the festivals of Passover and Shavuot—is the only treatise in this volume that includes a discussion of variant opinions.Footnote 125 In some cases, a set of laws was written in more than one format: sometimes the different formats have survived, such as the three renditions of the laws of blessings; in other cases we only know of their composition.Footnote 126 In their preface, Shneur Zalman's sons acknowledged one significant change, attributing it to the projected audience: “In the part entitled Yoreh Deah [that deals with ritual law], he changed his approach and his language, since it would be consulted by experts who need to hand down halachic rulings on questions of ritual permissibility.”Footnote 127
In constructing a judicial biography another aspect to be considered is an author's choice to publish or to sequester manuscripts. During his lifetime, Shneur Zalman printed his Siddur (1803), the prayer book that included legal material, as well as three legal treatises: Hilkhot talmud torah (1794), on Torah study; Luaḥ birkat ha-nehenin (1800), on blessings to be recited over foods and fragrances; and Seder netilat yadayim (1801), on ritual washing of the hands before a meal. The bulk of Shneur Zalman's legal writings—Shulḥan ‘arukh ha-rav, in particular—was published posthumously. What is the significance of these choices? What factors influenced this decision? The translators of Shulḥan ‘arukh ha-rav acknowledged that “[t]here are many possible explanations” for why Shneur Zalman tarried. They then propose three:
Firstly, the conflict between the chassidim and their opponents sapped considerable time, energy, and financial resources. Secondly . . . [Shneur Zalman] continually revised his text, and it is possible that he had not arrived at a version which he desired to publish. In addition, the czarist regime often restricted the printing of Jewish texts.Footnote 128
From a legal perspective, the second explanation—that the author “continually revised his text” and therefore the extant manuscript should be considered a draft—might have an impact on our view of the normative legacy of the author. Wolpo maintained that Shneur Zalman did not print his code because the work was never completed, though he held that this did not detract from the binding nature of Shulḥan ‘arukh ha-rav.Footnote 129 Should Shneur Zalman's opinion of his own legal writings be taken into consideration in determining their normative weight?
Shneur Zalman's publication decisions may contribute to our understanding of the social dynamics of nascent Hasidism. Above, I argued that the fact that Shneur Zalman did not publish his code indicates that he had no polemic objectives in mind. In a similar, but opposite, vein, Wertheim suggested that Shneur Zalman chose to first publish his Laws of Torah Study in a bid to allay the concerns of Mitnageddim.Footnote 130 It seems significant that Shneur Zalman published this treatise while the Hasidic-Mitnaggedic debate raged, and shortly before he published his seminal Hasidic work. One Lubavitch scholar has argued that the two publications—Hilkhot talmud torah (1794) and Tanya (1796)—should be regarded as one work.Footnote 131
Another avenue of exploration concerns the decision by Shneur Zalman's sons to publish their father's legal manuscripts. Assumptions regarding Shneur Zalman's intentions may need to be reassessed, with greater weight awarded to the role of the sons, Dov Ber in particular. As Soloveitchik pointed out in another context, we may be “scrutinizing the vagaries of scribes or printers.”Footnote 132 Although we may not be speaking of “vagaries,” it is nevertheless problematic to ascribe the sons’ intentions to the father.
KABBALISTIC WORKS IN THE LEGAL LIBRARY
Hasidism drew heavily on kabbalistic tradition. How did Shneur Zalman mediate kabbalistic influences on Jewish law?Footnote 133 This issue must be approached from a number of angles. First, we must determine which kabbalistic sources were part of Shneur Zalman's legal world. Most of the kabbalistic material included in Shulḥan ‘arukh ha-rav, certainly in the first edition, can be found in writings of earlier codifiers. This observation implies that Shneur Zalman included only those kabbalistic sources that had already been accepted as part of the legal canon. Yet, there are cases where Shneur Zalman introduced kabbalistic material that did not appear in classic codes and commentaries.Footnote 134 Lavot, who noted that Shneur Zalman gave primacy to kabbalists in his later works, wrote that not only did Shneur Zalman use Zohar and Luria—as we might expect given their prominence in Jewish mystical tradition—but he also included the writings of the “early kabbalists such as Rav Hai Gaon and Nahmanides, etc.”Footnote 135 This leads us to ponder what the contents of Shneur Zalman's legal library might have been and which works of Kabbalah he read. As Justice Felix Frankfurter wrote, “Reading maketh a man only in part—yet how illuminating it would be to have a list of the books read by the justices.”Footnote 136 This question is significant not just for broadening our understanding of Shneur Zalman, but may shed light on the attitude towards Kabbalah in nascent Hasidism.
Whether kabbalistic influences on Shneur Zalman's legal writing are a particularly Hasidic expression of the esoteric tradition also remains to be examined.Footnote 137 A comparative analysis is needed in order to determine whether Shneur Zalman's approach differs from that of other authors who also introduced kabbalistic considerations into Jewish law. To illustrate the point: Sat's identification of the use of kabbalistic terminology and sources in the second edition of Shulḥan ‘arukh ha-rav may indicate that Shneur Zalman was a decisor sensitive to Kabbalah—a not uncommon phenomenon in the annals of Jewish law. If this is the case, then the use of Kabbalah might not indicate that Shneur Zalman was a particularly “Hasidic” decisor.
While kabbalistic influences are the most discussed facet of the different editions, the various editions also differ in ways that are not connected to Kabbalah. Thus, for instance, in the later works Shneur Zalman appears to take stock of ethical literature, expanding his legal library in a further direction.Footnote 138
CONCLUSION
Lytton Strachey described the biography enterprise as “the exclusion of everything that is redundant and nothing that is significant.”Footnote 139 Writing on the state of judicial biographies in Australia, Stuart Macintyre commented in a similar vein: “Biography presents in a particularly marked form the limits imposed by the rules of historical interpretation. Put simply, the rules lay down that you must report the evidence faithfully: you can't go beyond the evidence, and you can't withhold evidence of significance.”Footnote 140 Although Shneur Zalman has attracted study by Lubavitch scholars and from academic circles, the legal aspect of his career has yet to merit sufficient attention, and this is tantamount to withholding evidence of significance.
Shneur Zalman's role in the nascent Hasidic movement has been explored, his philosophy analyzed, his writings have been bibliographically recorded, as well as plumbed and annotated. In recent years, his legal works have been reprinted with scholarly glosses. Concurrently these volumes have generously been made available to the public on databases and via the Internet. Initial analysis indicates no Hasidic content in Shulḥan ‘arukh ha-rav. The responsa, however, do reflect the travails of the nascent movement and may be considered primary historical sources. Shneur Zalman's legal opinions have survived in a variety of renditions, and the relationship between them points to the jurist's evolving independence and confidence over time. As a result, Shneur Zalman's legal writings do not lend themselves to sweeping statements regarding normative legacy. Rather, each work—indeed, each section of a work—must be examined independently. Shneur Zalman adopted a variety of formats for presenting law, perhaps for different purposes or for different audiences. These authorial choices, and the fact that most of his legal writings were published posthumously, are not without normative implications. While scholars have highlighted aspects of Shneur Zalman's legal writings, there is still room for jurisprudential analysis and judicial biography.
Alongside the need for a judicial biography of Shneur Zalman, we should acknowledge that legal writings of Hasidic masters have not been totally ignored. As part of recent interest in judicial biographies, the spotlight has also been cast onto the Admor-Posek—that is, the Hasidic master who served in a dual capacity as a spiritual guide and as a legal decisor, of which Shneur Zalman is an early example.Footnote 141 Study of this model of Hasidic leadership has raised questions as to the extent and nature of the interplay between the normative realm of Jewish law, and the mystical and religious realms, communal structures, and the social networks of Hasidism. Scholars have begun to ask questions: Does the Admor-Posek's legal awareness and sensitivity affect his Hasidism? Does his Hasidism find expression in his legal opinions? Or are the two spheres entirely separate? In other words, can we identify a distinctly “Hasidic” law?
This direction also leads to questions in the social sciences: What are the implications in law of socio-religious aspects of the Hasidic community, such as the leadership position of the Hasidic master? How do unique Hasidic social networks affect legal decisions and the development of new legal institutions? Has the urbanization of Hasidic groups affected Hasidic customs?Footnote 142 Scholars of Hasidism have discussed the geographic networks of Hasidic groups in the context of Hasidic history and thought; these findings should be refracted through the lens of legal writings from the Hasidic milieu. Finally, to the extent that we can identify a “Hasidic” law, what is the relationship between the different genres of writing and of communication: the Hasidic discourse or public sermon, the Hasidic tale, and the responsum or code of law? While the starting point for such studies should be the Admor-Posek, these questions should also be asked regarding jurists who were not Hasidic masters, but were members of the Hasidic faithful. Thus, the creation of a judicial biography of Rabbi Shneur Zalman of Liady is but a step to a better understanding of the relationship of Hasidism—its leaders and constituents—to Jewish law.
ACKNOWLEDGEMENTS
This paper was written while I had the privilege of being a postdoctoral fellow in Bar-Ilan University's Faculty of Law; I am grateful for this opportunity. My sincere thanks to Yoel Finkelman, Dena Ordan, Amihai Radzyner, and Yehuda Ber Zirkind for their astute suggestions and insightful comments.
