Guest post by R. Michael J. Broyde

Rabbi Michael Broyde is a law professor at Emory University, was the founding rabbi of the Young Israel in Atlanta and is a dayan in the Beth Din of America.

I have been working for a few years on the methodology of the Mishnah Berurah and the Aruch Hashulchan. It has been very intellectually rewarding and the first fruits of this effort has appeared in print entitled “The Codification of Jewish Law and an Introduction to the Jurisprudence of the Mishnah Berurah” (below) which was published in the Hamline Law Review volume in memory of David Cobin.

I hope over the course of the next year to publish a sefer on the methodology of the Mishnah Berurah which completes this article and then go on to finish my work on the Aruch Hashulchan‘s writing in Orach Chaim — and then on from there, I hope. For this article, I was blessed with an absolutely brilliant co-author, Rabbi Ira Bedzow, who is a graduate student at Emory and a student with me in our dayanut kollel in Atlanta.

A few brief words of introduction to the article might help.

The influence of two halachic giants from the end of the nineteenth century remains strong to this day. The first, Rabbi Yechiel Epstein, was the author of the Aruch HaShulchan, a novel and innovative work, with a simple organizational structure, which is grounded in the Talmud and classical post-Talmudic codes. On the methodological level, the Aruch HaShulchan is a fairly simple work. It has only two principles, Talmudic correctness and contemporary practice in Lita. Other opinions are rejected simply as “wrong,” and the complexity of the work is limited to determining talmudic correctness (no small feat) and harmonizing that with minhag Lita.

The second giant, and the methodological opposite to Rabbi Epstein, is Rabbi Israel Meir Kagan of Radin, the author of the Mishnah Berurah. At the foundational level, the Mishnah Berurah assumes that virtually all disputes of Jewish law and Talmudic understanding are irresolvable. “Correct” practice is therefore difficult to discern, and the defense of custom is not a sole justification for Jewish law. Moreover, according to Rabbi Kagan, the Shulchan Aruch, the supposed “set table of easily understood rulings for daily practice,” is not really as clear-cut as Rabbi Yosef Karo asserted. Rabbi Kagan, therefore, decided to write a jurisprudential masterpiece so as to elucidate for the layperson and legal scholar alike both what should be the normative halachic practice and why it should be so, both for complicated halachic matters and for simple practices of daily life.

The article is an initial analysis of Rabbi Kagan’s jurisprudential methodology as well as an introduction to the codification of Jewish law and the methodology of codification more generally. Soon to be part of a larger work, this article provides the basics in understanding the history and development of Jewish law and the uniqueness of Rabbi Kagan in this milieu. The article shows that in order to balance opposing forces of tradition and modernity, the Mishnah Berurah attempts to provide definitive halachic guidance to every question of Jewish law based on four central questions:

1. What is the common halachic practice of the community in a given situation? Does more than one minhag exist?

2. What is the spectrum of answers provided by the poskim to the question at hand?

3. What are the minimum halachic requirements one should try to fulfill?

4. How can one maximize observance in order to enhance his relationship with God?



To answer these central questions, the Mishnah Berurah’s methodology utilizes ten main halachic principles, which range from seeking the relevance of a position, to avoiding situations that result in trying to negotiate between conflicting priorities, to explaining why certain unsupported customs might be permissible. He also attempts to minimize the inherent tensions between Kabbalah and the Talmud, as well as incorporate the positions of the Gra, despite the fact that the Gra’s approach is diametrically opposed to the Mishnah Berurah‘s inclusive and holistic priorities.

After a long discussion of the theory behind the jurisprudence of the Mishnah Berurah, the article provides three examples to show how it works in practice. The examples range from intersex in Jewish law to the demarcation of public and private domains to wearing the tefillin of Rabbenu Tam and wearing tefillin on Chol HaMoed.

This article — and the book that will follow it — shows, I hope, that the complexity of the resolution of disputes in the Mishnah Berurah is not to be understated and that the work has a well nigh unique derech hora’ah.

I welcome comments, here or via e-mail.

P.S. We are already aware of the error in footnote 36 and the material related to that.

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