Crescas's Approach to Codification

Crescas's new halakhic code announced in the first part of the introduction to ’Or ha-Shem was to be Ner ’Elohim (The Candle of God).Footnote ² His legal work was to be complementary to his theological work: each volume was to provide enlightenment regarding one of the two pillars necessary for “loving and communing with God, which is the telos of human flourishing.”Footnote ³ The legal compendium was intended to guide Jews in their actions, while the philosophic work was to direct them in their beliefs; for action and belief are the two requisite elements for human perfection and immortality.

It is not clear when Crescas abandoned the project, or even if he ever actually began working on it. What is known, however, is that when writing this part of the introduction to ’Or ha-Shem—composed originally as a preface to Ner ’Elohim or to both works—he intended to complete it, and offered his rationale for the need to engage in the composition of a halakhic code (a disputed activity in the Jewish legal tradition).Footnote ⁴ He also set out his singular approach to codification, arguing for a particular type of legal code.

Crescas began by arguing for the need of presenting Jewish law in an all-encompassing yet readily comprehensible form:

Crescas grounded his argument for the importance of codes in his understanding of human perfection and talmud torah. According to Crescas, God, through the infinite outpouring of divine beneficence, provided the Jews with a path toward human perfection that was to result in communion with God and the obtainment of immortality. The path is composed of multiple commandments that God transmitted to the Jewish people through revelation to Moses and the subsequent interpretive and legislative efforts of the sages. Thus, since immortality and perfection are to be achieved through the practice of commandments, the study of Torah must possess a practical orientation.

By subordinating talmud torah to praxis, Crescas implicitly rejected the view that ascribed inherent value to study. Instead, he argued that Torah study should assist in the proper observance of the commandments; it should distill the discursive, scattered and indeterminate halakhic traditions into clear and concise legal directives, which could be widely accessed. The requisite product of talmud torah is, thus, a legal compendium that presents the halakhah in a comprehensible and comprehensive manner.

Crescas valorized legal writing that presented the final conclusions of halakhic argumentation and provided Jews with lucid and all-inclusive legal instructions. In this regard Crescas differed from the rabbinic tradition that valued the creative dialectic of Torah study over the adjudication of halakhah. This approach was generally adopted by Ashkenazi rabbis and achieved particular prominence among the Northern French Tosafists of the twelfth century. Their method of talmudic interpretation and halakhic decision-making was depicted by Ephraim Urbach in the following manner: “Their intention and purpose was not to establish the halakhah or to organize it in an intelligent manner in the form of large and small divisions; rather, it was to continue its creation and organic development.”Footnote ⁹

Some aspects of the approach of the Tosafists penetrated into Northern Spain when it was embraced by Naḥmanides, the founder of a rabbinic tradition among Catalonian and Aragonian scholars that persisted through the beginning of the fifteenth century.Footnote ¹⁰ These Iberian talmudic scholars—who in addition to Naḥmanides included R. Shlomo ben Aderet (Rashba), R. Yom Tov ben Avraham (Ritva), R. Nissim of Gerondi and R. Joseph Ḥaviva (a student of Crescas)—did not adopt the Tosafists's disdain of pesak indiscriminately. They addressed practical halakhic situations in their responsa and even composed halakhic monographs.Footnote ¹¹ Influenced by the method developed by the Tosafists, they viewed the highest form of talmud torah as ḥiddush. They composed primarily talmudic commentaries and novella (ḥiddushim), which allowed them to articulate their theoretical and dialectical interpretations of the talmudic text.Footnote ¹² Notably, even when they composed halakhic works, they eschewed the Maimonidean model of comprehensive codes and composed monographs on specific legal topics.

Crescas, a student of R. Nissim of Gerondi, viewed himself as an additional link in the rabbinic chain that emerged from Naḥmanides and his students. In theological matters, Crescas drew extensively from Naḥmanides and R. Nissim.Footnote ¹³ Nevertheless, he differed with the orientation of the Catalonian and Aragonian rabbinic tradition from the time of Naḥmanides in regard to the question of the nature of talmud torah. Crescas adopted a more utilitarian understanding of the value of the study of Torah: one studies Torah in order to adjudicate law. He never attributed independent value to the study of Torah. Consequently, in contrast to Naḥmanides and his students, Crescas valued comprehensive halakhic codes, which allowed a Jew to navigate the deep and rough waters of the halakhic sea.Footnote ¹⁴ And although Crescas did view the halakhic process as dynamic and creative, for him ḥiddush related to the creation of new laws and not the dialectic study of Talmud, he therefore never entertained the composition of ḥiddushim.Footnote ¹⁵ In this regard, Crescas came closer to the Geonic-Sephardic rabbinic tradition that favored codificatory literature and placed less stock in dialectical and innovative talmudic interpretations.Footnote ¹⁶

While disputing the underlying methodology of Mishneh Torah, Crescas supported Maimonides's preference of codes over ḥiddushim and his choice to compose an all-embracing code. Yet, he provided a unique justification for his choice of legal genre that ran counter to Maimonides's philosophic orientation. Crescas linked his argument for the importance of codificatory literature to his criticism of philosophy, critiquing Maimonides's and his students’ rationalistic approach to the question of the means to obtain human perfection. Crescas argued extensively against their theory of the acquired intellect, which led them to view the ultimate purpose of the commandments as intellectual perfection.Footnote ¹⁷ He vociferously opposed this understanding of the reason for the commandments and maintained that the performance of commandments contributed directly to the achievement of eternal reward.

Still, Crescas did not dismiss the view that certain commandments can contribute to intellectual advancement.Footnote ¹⁸ Nor did he disagree with the opinion that intellectual perfection could assist in obtaining summum bonum.Footnote ¹⁹ But he rejected the philosophic view that intellectual perfection was necessary for obtaining ‘olam ha-bah and that ultimately all commandments were directed toward it. For Crescas, human perfection was achieved primarily through the performance of the commandments. What is more, the commandments acted as receptacles for the reception of divine overflow and could only be activated through precise adherence to the legal dictates concerning their performance.Footnote ²⁰ Thus, due to their direct contribution to the attainment of eternal reward and the activation of divine overflow, clear and concise instructions regarding practical halakhah were required.

It has been suggested that Maimonides's involvement in codes was a product of his philosophic commitments. According to this interpretation, Maimonides wanted to liberate students of philosophy from the need to delve into legal minutia.Footnote ²¹ In a letter to a student, he stated: “If one spends time studying commentaries [of the Talmud] and the disputes in the Talmud … then one is wasting one's time.”Footnote ²² If so, Maimonides and Crescas arrived at the same conclusion from antithetical premises. Maimonides embraced comprehensive codes because he wanted to allow the scholar to devote himself to theoria. Crescas embraced comprehensive codes because he believed that human perfection is primarily connected to praxis.

Proper Characteristics of a Legal Code

In the quotation from Crescas's introduction to ’Or ha-Shem cited above, Crescas alluded to his understanding of the proper characteristics of a legal code: “inasmuch as perfect and encompassing knowledge of things consists in three things—[1] the precision with regard to them, [2] their easy apprehension, and [3] their preservation and remembrance; the divine Wisdom decreed that [the Law] be in such a manner that these three things attain to it in the most perfect way.”Footnote ²³ Thus, according to Crescas, a code can lead to a full and proper understanding of the commandments only if it possesses three characteristics: exactness, universal comprehensibility, and facility of memory. At this juncture, though, he did not yet elaborate on the means for achieving these characteristics within the confines of a code. In particular, he did not address the tension between achieving comprehensiveness and accuracy, on the one hand, and ease of understanding and memorization, on the other.

Crescas's understanding of the possibility of composing a code that met the necessary criteria emerged from his critique of Maimonides's monumental halakhic work, Mishneh Torah.Footnote ²⁴ He focused on three aspects of Maimonides's method of codification. First, Crescas objected to Maimonides's failure to document his sources. Second, he opposed the presentation of norms without citing differing views. Third, he critiqued what he perceived as Maimonides's omission of broad principles and definitions and his exclusive focus on particular and concrete legal conclusions.

For Crescas, Maimonides's apodictic and undocumented legal statements did not allow for resolution in a case of disagreements between him and other leading scholars. “We are not rescued from perplexity and doubt,” wrote Crescas, “when we find in books of other great authors the contrary of his approved position and opinions.” But he did not elaborate further on the basis of his objections to Maimonides's failure to cite his sources and differing views.Footnote ²⁵ Unlike other critics of Maimonides's methodology, such as R. Abraham ben David and R. Asher ben Yeḥiel, Crescas devoted little attention to these innovative features of Maimonides's code.Footnote ²⁶ Indeed, he focused his criticism primarily on what he perceived as the lack of attention to the conceptual underpinning of particular legal decisions:

Here Crescas underscored the infinite nature of the law, whose particulars were so abundant that they precluded the grasp of the finite human intellect. Thus, according to Crescas, Maimonides's chief failure was his inability to distinguish between finite general principles and infinite particular laws. As a result, Maimonides's code is unsuccessful on all three counts: exactness, universal comprehensibility, and facility of memory. Its failure to uncover the bedrock guidelines and rules leads to imprecision, because true knowledge necessitates an understanding of the root “causes” (sibbot).Footnote ²⁸ Likewise, by presenting only abundant particular laws, accessibility and facility of memory are precluded.Footnote ²⁹ A myriad of particulars, even if organized topically, are beyond the grasp of the human memory.

Crescas's Critique of Maimonides's Work

Crescas's assessment of the failures of Maimonides's Mishneh Torah clashed with the Rambam's self-perception of the achievements of his work. While Crescas faulted Maimonides's legal magnum opus for lacking the three attributes of a perfect code: comprehensiveness, precision, facility of memory and understanding, and conceptual rigor, Maimonides saw in his work these very qualities. Indeed, in his programmatic statements concerning the composition of Mishneh Torah, Maimonides asserted that he had achieved unparalleled comprehensiveness and precision, brevity and accessibility that allowed for comprehension and retention, and a new conceptual mode of classification.Footnote ³⁰

Maimonides' most extensive account of his motivation and reasoning in choosing the underlying methodology for his code of law appears in the introduction to his Sefer ha-miẓvot (Book of the Commandments):

In this bold and audacious pronouncement, Maimonides highlighted the comprehensive nature of Mishneh Torah and its ability to incorporate within it the wide-ranging corpus of rabbinic literature so as to make the study of other works otiose.Footnote ³² He added that his work could be easily comprehended and memorized. Thus, Maimonides justified various features of his code—including his omission of divergent opinions and legal sources, the inclusion of laws currently non-binding, and the use of mishnaic Hebrew rather than Aramaic or Biblical Hebrew—by the need to achieve comprehensiveness, lucidity, and brevity that would allow for universal comprehension and retention. Indeed, Maimonides composed his code for all Jews, believing that even the untutored Jew could arrive at and retain a comprehensive understanding of the law.

Maimonides also stressed the meticulous care he devoted to crafting the structure of the work in a systematic fashion.Footnote ³³ He related that he eschewed previous codificatory classifications, such as an enumeration of the 613 commandments or the mishnaic approach, and opted for a conceptual classification for his legal compendium.Footnote ³⁴ He argued that the new topical approach provided a contribution to mnemonics: “[it] should render it easy for one who wishes to learn something from it by memory.”Footnote ³⁵ He also viewed it as providing a significant contribution to the conceptualization of halakhah. Indeed, scholars of the Mishneh Torah have concluded that this work represents a great advancement in the systematization of the law within the confines of a legal code. By bringing together disparate laws under the rubrics of various legal topics, Maimonides created new halakhic spheres and provided a new conceptual basis for existing ones.Footnote ³⁶

Maimonides's immense pride in the exhaustive scope and architectonic structure of his work, which he viewed as unprecedented, was not without justification. Commenting on the Mishneh Torah, even Crescas declared that Maimonides “worked wonders” (hifli la‘asot).Footnote ³⁷ Still, Crescas clearly rejected Maimonides's self-understanding of the stylistic features and methodology of his code. For Crescas, the axial problems of Maimonides's code of law stemmed from his ignoring of the two elemental principles of halakhah.

First, Crescas asserted that Jewish law was comprised of infinite particulars. Law was a boundless entity that continued to expand dynamically and infinitely, and whose particulars could not be confined or encompassed.Footnote ³⁸ Second, the Jewish law's expansion and growth were enabled by the existence of finite and concise foundational guidelines, definitions, and principles. These principles in turn served as exegetical tools for the derivation of new laws from existing halakhic material.Footnote ³⁹

For Crescas, the relationship between the finite and concise foundation of the law and its infinite details could be seen in the relationship between the Written Law, the divinely revealed hermeneutic principles, and the additional halakhic laws that flew from them:

According to Crescas, the “foundation” (yesod) of each law was concisely, explicitly, and precisely stated in the Written Law. But the myriad of its detailed minutiae, implicit in the Biblical text, must be derived through the thirteen hermeneutic principles of R. Ishmael, which allowed for the generation of new post-biblical laws.Footnote ⁴¹ R. Ishmael's principles, however, were only effective for generating laws from the Written Torah. Crescas implied that new principles had to be introduced to derive new laws from post-biblical legal texts.Footnote ⁴²

Crescas viewed these two principles as the lynchpin of any attempt at codification. On the one hand, the first principle dictated that Jewish law was open-ended and any attempt to close off continuous halakhic creativity was wrongheaded. On the other hand, the second principle provided a means of composing an encompassing code despite the infinite nature of the law. Crescas here diverged from the traditional understanding of the infinite and expanding Torah that was generally associated with opposition to codification.Footnote ⁴³ Instead, he argued that an encyclopedic code that embraced the totality of Jewish law (including the norms that were continuously added to the corpus of law) could be accomplished through focusing on the theoretical grounding of the law. These bedrock principles of the law allowed for the derivation of new laws from the existing laws. By grasping the principles, one encompassed the law in its entirety.

Crescas critiqued Maimonides's approach to codification and developed his own methodology accordingly. Although Maimonides's legal approach was more conceptual than previous attempts at codification, Crescas judged it as not adequately rigorous and overly occupied with concrete cases. According to Crescas, by focusing on the particulars of the law, Maimonides mistakenly conceived of the law as a static system and failed to provide guidance in adjudicating new cases that resulted from the infinite nature of the Torah. Consequently, in depicting his own code, Crescas asserted that he would compose a “compilation, which contains the commandments of the Law with their causes according to the subject matter, with conception of their definitions and their general principles” (ha-gedarim ve-ha-klalim).“Footnote ⁴⁴ This feature—and not topical classification—would allow for universal understanding and memorization. One could grasp and memorize the entire law through its substratum. This would allow for the adjudication of future laws.

To use his intended compendium properly, Crescas urged his reader to come to his code with a deep understanding of Talmud. Here too, Crescas differed from Maimonides in attempting to write a code for talmudic scholars rather than less educated Jews. Crescas's choice of crafting his work for a scholarly audience followed from his decision to focus on the conceptual underpinnings of the law. He implied that the Talmud scholar would use his composition to address any question by employing the principles of his code, which served as hermeneutic rules. Thus, it seems that Crescas wanted to provide new exegetical tools that would play a similar role as R. Ishmael's hermeneutic principles. Just as R. Ishmael provided rules for deriving law from the Bible, Crescas was to proffer new hermeneutic rules that would allow for generating new laws from the rabbinic tradition.

Crescas and Gersonides's View of the Roots of the Law

Crescas's approach to codification was fashioned in dialogue with and in contrast to Maimonides's (as is the case with his approach to various other philosophical and theological issues). But Crescas's deliberation on the principles of law was also in conversation with his other primary philosophical interlocutor, Gersonides.Footnote ⁴⁵

Throughout his commentary on the legal sections of the Pentateuch, Gersonides was concerned with surfacing the roots of the law.Footnote ⁴⁶ Indeed, in the introduction to his commentary on the Torah, he averred: “We will enumerate the roots (shorshei) of the laws of [each] commandment, according to what is apparent from what is written regarding them and will cite the places in the Talmud where these roots and the branches and the branches sprouting from the branches are explained, in the most succinct form possible.”Footnote ⁴⁷ He added that he intended to write a book of commandments that would detail the roots of each commandment, thereby “covering all that which is written about it in talmudic wisdom.”Footnote ⁴⁸ Thus, like Crescas, Gersonides intended to compose a comprehensive code structured as a work on the conceptual underpinning of each of the commandments.

In uncovering the roots of the commandments, Gersonides's intention was twofold. Firstly, he attempted to identify the derivation of each commandment and its legal details from the Written Torah.Footnote ⁴⁹ In this regard, Gersonides developed alternative hermeneutical principles—what he designated as topoi (mekomot)Footnote ⁵⁰ —to the thirteen hermeneutical principles of R. Ishmael. Secondly, he attempted to identify conceptual rules governing each commandment. For example, at the end of the pericope Va-yikra, Gersonides examined the commandment of the ‘olah sacrifice and suggested twenty-two legal principles (shorashim).Footnote ⁵¹

Crescas's notion of legal conceptualization clearly drew more from Gersonides's second approach to understanding the roots of the law. But despite the similarities, a number of differences between the two scholars’ approaches to conceiving the theoretical underpinning of the law can be noted, although Crescas's failure to develop his approach precludes a detailed comparison between their views. Firstly, Crescas viewed his project as continuous with and complementary to R. Ishmael's hermeneutical principles, while Gersonides conceived of his approach as an alternative to that of the talmudic sages in general and R. Ishmael in particular.Footnote ⁵² Secondly, Crescas spoke of providing definitions of each commandment and in Derashat ha-pesaḥ, he implemented this approach regarding the commandment of destroying leavened bread.Footnote ⁵³ This aspect of Crescas's approach had no place in Gersonides's system. Thirdly, Crescas's emphasis on the infinity of the law is absent from Gersonides's philosophy of law, and from his philosophy in general.

The Infinity and the Law

Infinity looms large in Crescas's innovative philosophic, scientific, and theological approaches. It is particularly prominent in his discussions of physical theory, which form the cornerstone of his critique of Maimonides's proofs of God's existence, unity, and incorporeality.Footnote ⁵⁴ Crescas analyzed and rejected some Aristotelian scientific propositions that function as premises for these proofs. Infinity was also central to his theory of divine attributes, power, and creation and the notion of the infinite Torah served the lynchpin of his halakhic philosophy,Footnote ⁵⁵

The conception of the infinite Torah does not appear explicitly in biblical or midrashic sources. And although Crescas's notion of the expanding Torah and his view that only principles were revealed at Mount Sinai possess rabbinic roots,Footnote ⁵⁶ the notion of the infinite Torah was introduced only by the kabbalistic tradition.Footnote ⁵⁷ Thus, it seems that Crescas's conception of the infinite Torah is an example of the impact of kabbalistic sources on his philosophy. Although Crescas's dependence on the kabbalistic notion of the infinite Torah is clear, due to the ubiquity of the notion in kabbalistic texts, it is doubtful that he relied on any specific source.

The kabbalistic notion of the infinite Torah concerned the possibility of unlimited interpretations of the Written Torah.Footnote ⁵⁸ Thus, kabbalistic sources conceived of the infinite nature of the Torah as a hermeneutic principle that governs the exegetical possibilities of the text. According to Crescas, the infinite nature of the Torah determined the infinitude of the law; halakhah was boundless and the particulars of Jewish law could not be confined within a finite work. Secondly, the kabbalistic notion of the infinite Torah is connected to kabbalistic theosophy, according to which the infinity of the Torah derived from the infinity of the sefirot. In contrast, Crescas anchored his conception of the infinity of halakhah in a more philosophic conception of God.Footnote ⁵⁹

To understand the theological foundation for Crescas's understanding of the infinity of halakhah, we must turn to the prooemium to the introduction of ’Or ha-Shem. Crescas began it with an encomium to God's creative power, kindness, and beneficence: “Blessed be the name of the Lord and exalted above all blessing and praise, Who has shown His marvelous loving-kindness with His creatures to bring them into existence, to create them after the absolute nothingness.”Footnote ⁶⁰ He also exalted God's providence, highlighting divine loving-kindness and goodness: “And He, in the greatness of His loving-kindness and the abundance of His goodness, from the place of His habitation looked forth and did choose the House of Jacob that His glory might dwell amongst them, that they might love and fear Him, and serve Him and adhere unto Him, for this is the ultimate human happiness.”Footnote ⁶¹

This proem resembles standard encomia to God that appear in the prefaces of other medieval Jewish philosophic works.Footnote ⁶² However, in addition to the standard praise, Crescas alluded to the function that God's beneficence, as manifest in creation and providence, played in his legal philosophy, set out in the introduction.

Crescas's view of God's loving-kindness emerges most clearly in the section on creation in ’Or ha-Shem.Footnote ⁶³ There he elaborated on the theory of continuous creation. Arguing against Aristotle's theory of the eternal universe and Gersonides's theory of eternal matter, both of which denied that matter and form were creations of God, Crescas claimed that the world in its entirety was created ex nihilo by God. Crescas, however, did not equate creation ex nihilio and a temporal beginning for the universe through a single divine act of creation. Instead, he argued for the compatibility between creation and the perpetual existence of the universe. Towards this end, he posited an eternal divine will that continuously ordained the existence of the universe and a perpetual overflow of existence from God, which was an expression of the unbounded divine goodness.Footnote ⁶⁴ Thus, according to Crescas, God's volitional creation was not confined to an instant of time, because God's infinite beneficence dictated that the procession of existence continue for infinite duration.

Toward the end of his treatment of creation, Crescas seems to have backtracked from his rejection of an absolute beginning of time: “The complete truth as brought in the tradition is that God created it [i.e. the universe] and brought it into existence at a particular instant, as it states ‘God created (Genesis 1:1).'”Footnote ⁶⁵ Crescas, however, immediately declares:

Thus, even according to Crescas's revised view, God's creative power did not cease after the first act of creation. It continuously manifests itself through further acts of bringing new worlds into existence. These unceasing acts of creation are conduits of divine beneficence that dictate the infinite overflowing of God's goodness in the form of multiple worlds.Footnote ⁶⁹

Upon examination of Crescas's theory of creation, the relationship between creation and codification becomes apparent. His theory of creation is grounded in the view that God's beneficence brings about an infinite overflowing of goodness through the eternal creation of this world or the unceasing creation of many successive worlds. Likewise, Crescas's theory of codification is grounded in the view that God's beneficence brings about a continuous overflowing of goodness as a result of the perpetually expanding Torah that supplies added opportunities for Jews to achieve summum bonum. It is true that in the case of creation God's goodness is directed toward all humanity, while in the case of the expansion of the Torah, God's goodness is directed toward the Jewish people and represents divine providence toward them. Both instances, however, are brought about through a series of volitional acts, which are expressions of divine loving-kindness. Thus, Crescas's conception of creation and providence, which depicts God as continuously emanating goodness, provides the theological grounding for his understanding of the unfolding of Jewish law. By linking the notion of God's infinity to God's overflowing of existence, Crescas abandoned the theosophic foundation for divine infinitude provided by kabbalists. In its place, Crescas utilized a theme that is far closer to the philosophic tradition, particularly the Neoplatonic branch (although his version is more voluntaristic than the Neoplatonic theory of emanation).

Ḥasdai Crescas briefly adumbrated his halakhic methodology in the introduction to his philosophic work, ’Or ha-Shem. Due to his commitment to praxis as the primary path to human perfection, he followed Maimonides by arguing for the importance of a comprehensive and succinct legal code and opposed those who ascribed independent value to Torah study. However, despite their similar pragmatic orientation to talmud torah, Crescas disputed Maimonides on the proper goals and character of a legal code. Unlike Maimonides, he designated his code for Torah scholars and focused on the bedrock principles that are the bases for particular laws. According to Crescas, these principles allow the codifier to capture the infinite and boundless halakhah in a finite and accessible form. They also serve as exegetical rules that allow the Torah scholar to create new laws. In this regard, the halakhic enterprise resembles the process of creation and the scholar resembles God. Just as God is continuously engaged in creating this world and new worlds, so too Torah scholars are continuously engaged in creating new laws.