Precedents all the way down: halakha as a common law system (part 6)

6. Post-Talmud, pre-positivism: the Geonim of Bavel and Eretz Yisrael

The Geonic period (roughly 600-1100 CE) is far more important for understanding halakhic authority than is commonly assumed, especially by the positivistic accounts put forward by various interpreters of the Rambam. While these accounts typically posit that a sharp cut-off took place in halakhic history at the time of sof hora'a, the history of the Babylonian academies and their leaders, the Geonim, suggests otherwise. Not only did the Geonim verbally assert their authority (with the agreement of their academies and that of the exilarch) to make enactments which contradicted the Talmud, they actually did so on several occasions, producing decrees which would be honoured in courts throughout the diaspora for many centuries. The supremacy of Amoraic law, though incredibly important for Babylonian jurisprudence, was ultimately a convention backed by rabbinic consensus.

Moreover, though largely forgotten in Torah circles today, the Jews of Eretz Yisrael maintained their separate mesorah, including the Talmud Yerushalmi, which formed the bedrock for the halakhic teachings of its own academy and Gaonate. If their Talmud had been overruled by some decision in Bavel, nobody had told them. And not for lack of contact with Bavel, which repeatedly clashed with the sages of Eretz Yisrael. But, as far as we know, none of the polemics and arguments issued from Bavel made such claims as those made by modern positivists. Instead, the Babylonian argument focused on something different—mesorah.

It was mesorah, the long continuity with Jewish tradition passed down since Biblical times beyond memory, which the Geonim (of either centre) saw as the basis of their authority. Formal authority was involved, but it was not national; each Gaon and academy reigned only over a portion of the Jewish world: over Eretz Yisrael or over a part of Bavel, and over any community of the diaspora that accepted that Gaonate as its halakhic authority. The questions sent in from across the diaspora sought to appeal to the authority of the Geonim as teachers who not only knew, but exclusively possessed knowledge of the huge oral corpus which they called Talmud. This post, together with the next post, on the Rishonim, will help lay out how the Talmud Bavli really attained its position—not through formal authority, but through gradually expanding acceptance resulting from political and social developments.

Development of the Talmudim

As we saw in the previous installment, Hazalic halakhot and halakhic discussions were formulated decentrally and preserved orally. Their method of developing the oral law was chiefly one of preserving law (i.e. various types of precedent) and its meaning through examples, and/or of recovering meaning by logical analysis, extending the rule expressed in those precedents to new cases by analogy. Halakhic debate also gradually resolved disagreements and established the primacy of certain precedents through a consensual process. In other words, many disputes where, initially, multiple sides were recognised as valid gradually saw the dominance of one side become established as conventional.

The development of the Hazalic sources, especially in the case of the Talmud Bavli, was punctuated by epochal breaks most clearly correlating to important stages in the formation of Bavel’s academies. These epochs define the most important hierarchies of precedent in the oral law. The first break happened at the foundation of instruction of the oral Torah in Bavel by Rav and Shmuel, which occurred fairly soon after the redaction of the Mishna in Eretz Yisrael (about 200 CE). With the Mishna becoming central to halakhic instruction in both centres (now clearly differentiated as a text from other Tannnaitic teachings, i.e. baraitot), a new era was opened, that of the Amoraim. In Bavel,¹ the epochal shift was relatively abrupt, with generations of rabbis from Rav and Shmuel on maintaining greater deference to statements of the Tannaim.² For the Babylonian Amoraim, a Mishna or a Baraita was authoritative by definition: while an objection could be raised from such a teaching to an Amoraic teaching, it could only be overruled by a different Tannaitic statement (when shown to hold more authority). I noted in part 5 how in Eretz Yisrael, home of the Tannaim, the epochal shift was more gradual, and even the editing of the Mishnah itself probably continued a few generations into the Amoraic period. Ultimately, however, essentially the same rule emerged: Amoraim cannot contradict Tannaitic sources. This generational difference in authority between Tannaim and Amoraim, much like the resolution of disputes through emergent rabbinic consensus, was an example of an inequality of precedents established by convention.³

A similar rule later came to be applied to the end of the Amoraic period, which is traditionally said to have ended with academy heads Ravina and Rav Ashi in the 5th century CE,⁴ though, as we’ll see, it ended earlier in Eretz Yisrael. At the start of the subsequent Savoraic period (ca. 500-600 CE), the collection of teachings which had accumulated since the foundation of the Babylonian academies became closed to new material, a convention often known as sof hora’a. What exactly happened at this juncture is subject to dispute. Various rabbinic sources suggest that, following the height experienced during the reigns of Ravina and Rav Ashi, the Babylonian academies saw a period of difficulties which led to the decline in Torah learning which was subsequently recognised as meriting a new convention of deference to teachings and decisions formulated before that time.⁵ However, most academic scholarship argues, instead, that it was the onset of a new era of flourishing for the Babylonian academies. During this period, Torah learning became more centralised and the academies grew rapidly, developing from small circles focused around individual sages to large institutions with many teachers and students.⁶ In this school of thought, it was this development which is thought to have fostered the growth and development of the stam or anonymous voice (which makes up the lion’s share of the Talmud) during this period, synthesising statements from previous eras treated as conventionally authoritative. At any rate, once again, the previous era was recognised as holding authority relative to the new, adding another tier to the established hierarchy of precedents.

The interpretations and analyses of earlier sources that were made in the Babylonian academies were maintained as an oral corpus,⁷ and it is this that was properly called ‘Talmud Bavli’. The different strata were memorised and preserved by specialists, each responsible according to their respective stratum—tannaim, amoraim (who were also named that) and stam (called garsanim). Individual teachers and students likely maintained written notes, but writing was generally deprecated—especially in the context of formal study. As long as it was only learned orally, Talmud would probably only crystallise fairly gradually. There are different estimates of when it was first put to writing, a development which in any case was likely its biggest step towards becoming a fixed composition. It is also clear that it was those places, far from the academies, where the Talmud arrived as a written text that would ultimately be the ones to take up its study in that form.

Unlike the long percolation of the Bavli, in Eretz Yisrael the Amoraic era, and thus also the development of the Talmud Yerushalmi, was cut short sometime in the late 4th century, and was left in somewhat unfinished form. In several ways, the written form the Talmud Yerushalmi took was probably quite similar to the form the Bavli would have taken had it been put to writing at that point. The Yerushalmi’s anonymous layer is quite abbreviated and much less discursive than the Bavli, which is part of why the Yerushalmi is so much shorter; it is thus made up of a far higher proportion of Tannaitic and Amoraic statements. It also has fewer resolutions of questions and disputes than the Bavli, explicit⁸ or otherwise.

What caused the abrupt end of the Amoraic period in Eretz Yisrael? Despite a paucity of written sources on this period, but based on extensive archaeological evidence, it is clear that the second half of the 4th century saw the extensive depopulation of Jewish towns in the Galil, where essentially all Torah activity was based. One of the main causes of this development was the destructive earthquake of 363 CE. There are also a couple of ancient sources attesting to the suppression of a Jewish rebellion in the area in 351 or 352, but no real archaeological evidence. Economic difficulty also seems likely. Whatever the causes, it is easy to connect these difficulties and the abrupt stop of the Yerushalmi’s composition and disappearance of rabbinic writing from the records in general. It seems almost certain, therefore, that the Academy of Teverya closed in the late 4th century, although, as the Roman decree of 429 CE (redirecting the tax of the Nasi) indicates, the Jewish courts continued to function in some capacity.⁹ Though this period (roughly 350-500) was extremely difficult for the Jewish population of the Galil, the evidence from the 6th century shows some degree of recovery, with a number of the main Levantine¹⁰ Geonic-era halakhic writings available to us dating from this era, which often draw extensively from the Yerushalmi. Indeed, during the following period, the Talmud of each Jewish centre would be central to its halakhic practices and the rulings of its leading rabbis.

The Geonic Era in Bavel and Eretz Yisrael

For a couple of centuries following the end of their respective Amoraic periods, we have relatively little detail or direct evidence about Jewish life in each centre. Near the end of this dark age, Islam conquered and united a Middle East which was previously divided between the warring Roman (Byzantine) and Persian empires. What is very clear that by the end of that time (roughly 700 CE, from which point onward we have much more written evidence), the Babylonian academies and their leaders, by now styled as Geonim, had achieved a place of great halakhic prominence in the larger Jewish world.¹¹ As a result, the same was true for their Talmud—again, a corpus of teachings maintained orally, even though it was by now at a highly mature (and less flexible) level of development.

During this period, the Babylonian academies held halakhic sway not only over the Jews of Babylonia, but also had significant influence over the diaspora. Halakhic questions would be sent to the Babyonian Gaonate from various communities in the diaspora, and many rabbis who would end up teaching in various communities outside Bavel received instruction in its study halls. With the Talmud Bavli being the foundation of Geonic instruction, these processes lay the foundation for its central place in halakha in later generations. The period saw a rich flowering of halakhic and other religious literature in Babylonia, both within and outside the academies. In the second half of the Geonic period starting with Rav Saadya Gaon, the Babylonian Geonim started producing halachic texts for distribution systematised from their talmud, which was a recognition of the impracticality of ongoing real-time deferral to the Geonim on all topics for distant communities. However, most likely, the Talmud itself was still not officially or fully distributed in written form until much later, perhaps only near the end of the Geonic era in the 11th or 12th centuries.

Nonetheless, as I already indicated in part 4, Bavel was not the only centre of Jewish learning during this time. The fortunes of the Eretz Yisrael Jewish community and its rabbis took a turn for the better in the 6th century. This is supported by archaeological evidence, including many synagogues built at the time, as well as the availability of some halakhic works from the 6th and 7th centuries, among them Sefer HaMa’asim, a collection of precedents and responsa, and Sefer Hahilukim bein Bene Mizrah liVne Eretz Yisrael (a listing of differences in halakhic practices and customs between the Jews of Bavel and Eretz Yisrael); recall also the mention of a Sanhedrin or academy in Eretz Yisrael in 520 CE in Seder Olam Zutta.

The Geonic Eretz Yisrael community claimed and exhibited substantial continuity from the Amoraic-era community of Eretz Yisrael. Though it was significantly smaller, the Eretz Yisrael academy’s influence nonetheless rivalled that of the Babylonian academies at times.¹² The academy (based in Tiberias until about 850, then in Jerusalem) and its leaders (styled Geonim like their Babylonian counterparts) held, for a time, significant influence over parts of the diaspora, especially the areas close to North Africa and Italy. For reasons partly lost to history, we know much less about the Eretz Yisrael academy and its community, but some things are certainly clear. One of them is that Eretz Yisrael maintained its own halakhic mesorah and its own halakhic approach, independent of Bavel and was founded, to a great extent, on the Talmud Yerushalmi, which was deeply influential, if not central, to the halakhic learning and practice of the Levantine communities in Eretz Yisrael and beyond.

On one specific issue, Eretz Yisrael actually enjoyed supremacy for a long time: determination of the calendar. As attested to by an early 9th century letter by a Babylonian Gaon, Bavel continued to defer to the calendrical calculations¹³ carried out by the academy of Eretz Yisrael.¹⁴ The letter justifies this based on the imperative to maintain the unity of Am Yisrael, but, as a later letter suggests, the Babylonian sages probably also felt incompetent to do the calculations, lacking knowledge of all rules involved.¹⁵ However, by 921 CE, something had changed. In that year, Ben Meir Gaon, head of the Levantine academy, announced a calendar for the coming year which met with rejection in Bavel. The controversy boiled over for a couple of years, with letters sent back and forth, and, for several years while the debate raged, the two centres celebrated holidays on different dates. A letter from Bavel claimed that, while the Levantine announcements used to be followed due to ignorance of the full calculation, a Babylonian delegation had come to Eretz Yisrael decades earlier to learn the full details; the calendar announced by Ben Meir did not match those calculations.¹⁶ It became an intractable debate over mesorah: whereas Ben Meir claimed simply to be following the rules of the mesorah, Bavel insisted otherwise. Eretz Yisrael’s insistence on its old precedence as seat of the Sanhedrin, but this was ultimately to no avail. After 927, the two calculations came back into alignment; by the next time the dispute was relevant again, in 1108, we have no record of anyone following the Levantine version.¹⁷ The calendar dispute of 921 came to be forgotten completely by the time of the Rishonim, and is known today almost entirely thanks to findings from the Cairo Genizah.

The calendar issue was hardly the only one of its kind, though certainly the only one with such highs takes. For much of the Geonic period, there was much disagreement between the Jewish centres over halakha and a real contest for influence. There was an extensive and well-documented competition between these centres of Torah learning throughout the Geonic period, with some exilic communities adhering to Jerusalem and some to Bavel, and many areas of the Middle East seeing Babylonian and Levantine communities existing side by side.¹⁸ The Babylonian academies could be quite dismissive of those of Eretz Yisrael, as evidenced by the Iggeret of Pirkoi ben Baboi, a polemic written in Bavel against the sages of Eretz Yisrael. Written by a student of Yehudai Gaon, the Iggeret is the earliest source we have about the conflict between Bavel and Eretz Yisrael. Its attacks focus on Levantine customs such as the insertion of piyyutim in prayers, saying shema yisrael in keddusha, writing Torah scrolls on parchment, and holding it to be permissible to eat the bread of a non-Jewish baker (assuming kosher ingredients) if no path yisrael is available.¹⁹ Addressed to a diaspora community (probably in North Africa) which had come under the influence of the academy of Eretz Yisrael, the letter thus aims to delegitimise that influence in favour of that of Bavel. Part of the motive for the fight over influence was financial, as the various diasporic communities would send money for the upkeep of the academies.

Though the Eretz Yisrael academy and its associated communities would persevere for several more centuries, the contest for influence was gradually won by Bavel. The Eretz Yisrael academy was always smaller and less influential than its Babylonian counterparts. Its influence, however, seems to have declined further after the transition from the Umayyad Caliphate, which had had its capital in different places in modern-day Syria, to the Abassid Caliphate, which moved the capital from Syria to Iraq (from 762 CE, to Baghdad), i.e., Bavel. Since this was now the seat of power and economic centre of the empire, it put the Babylonian academies (which themselves moved to Baghdad) in an even stronger position to dominate over their Levantine rival. The Babylonian academies were more (politically speaking) centrally located, were larger, and managed to raise more resources, all of which helped them spread their teachings and customs, including the Talmud Bavli, far and wide. The growing influence of Bavel was felt in Eretz Yisrael itself as well, with many Babylonian practices slowly creeping in. The academy moved to Tyre after being expelled from Jerusalem in 1071 by the invading Seljuk Turks. The Levantine communities themselves began to fall into decline and were hit very hard by earthquakes in 1033 and 1068. Their death knell came at the hands of the Crusades (1095-1291), which almost eradicated them within a few generations. The community in Fostat (Cairo) was one of the last few rumps, and around 1205 R. Avraham ben HaRambam, head of the parallel local community practising the Babylonian rite, led a successful drive to take over the Levantine synagogue and community and absorb it into his own.²⁰ Some remnants of Eretz Yisrael traditions remain to this day, especially in the Ashkenazi mesorah, but from this point on, the pre-eminent position of the Talmud Bavli—and Babylonian mesorah more generally—would be universal among Rabbinite²¹ Jewish communities.

Geonic conceptions of halakhic authority

On what basis did the Geonim justify their authority? For both Gaonates, the foundation of halakhic authority was mesorah (received tradition) and the detailed knowledge of its various forms, hierarchies and hermeneutics. Each claimed to have a continuous chain of legal tradition linking them to the Tannaitic sages, and therefore to Sinai. The authority of the teachings of previous generations derived from their own authentic transmission of earlier traditions or the logical reconstruction or inferral of rules through hermeneutics, tested through extensive debate over the generations. Halakhic disputes were, as described previously, largely resolved through gradual growth of consensus around formulaic rules of adjudication among different sages, generally based on trends in local rulings.²² Forms of formal authority did exist in both centres, particularly semikha,²³ but it does not seem to have been central, and was not often asserted. Even the academy of Eretz Yisrael, which, with its semikha, might have had a basis to claim the national authority of the Sanhedrin, did so rarely. Instead, legitimate authority derived primarily from mesorah.

Within this context, decisions were generally founded primarily on a form of informal authority best labelled as epistemic authority:²⁴

‘A person is an epistemic authority [or possesses epistemic authority] if he is considered an authority by another or by others with respect to some field or area of knowledge. Thus, X is a … epistemic authority if there is some Y who considers X an authority for Y in some realm … For Y to consider X a … epistemic authority for Y means that at least under certain conditions and at least to some extent, Y is willing to believe what X says in R …’

In the case of the Geonim, as in the case of their predecessors, this kind of authority derived from the authentic knowledge of received oral traditions (the mesorah). In other words, the Geonim of Bavel did not see the Talmud Bavli as authoritative because it was enacted by some body with universal formal authority, they saw their own rulings as authoritative because they possessed (epistemically) the corpus of teachings they called ‘Talmud’ in their academies. Those learning in their academies had privileged access to the living continuation of the mesorah, and those raised to the level of Gaon were recognised as the greatest authorities (i.e. experts) on the Talmud as a whole. No-one else had access to it unless they travelled to Bavel to learn it. Even receiving an answer to a question sent to a Gaon did not really constitute access to Talmud, since (according to the Geonim) a written answer was inherently imperfect, capturing but a fragment of the whole meaning without the live context and nuance provided by face-to-face instruction.

Moreover, the Geonim repeatedly took the view that precedent in the form of either received teaching (mesorah) or practical precedent (minhag) was a necessary component of pesak halakha. As put by R. Yehudai Gaon: ‘I have never given you an answer to a question except where I had evidence from the Talmud and I had learned it halakha lema’ase from my master and my master from his master. But something with basis in the Talmud but which I had not received as halakha from my master… I have never told you’; or, put more starkly by R. Hai Gaon: ‘and greater than any other evidence, “go out and see what the people are doing”, this is the foundation and support [for our rulings]. And afterwards we look at all the things that were said in the Mishna or the Talmud on this matter.’²⁵ In other words, to the Geonim, no text was authoritative on its own, and required backing from minhag or mesorah. No teachings of Hazal constituted positive law (which would have made them authoritative in and of themselves), and the development of halakha over time (in Bavel, or any other community) required mesorah to clarify which teachings were authoritative and which were not. It was a legal system founded upon precedent.

Pirkoi Ben Baboi identifies the Geonic position requiring a received tradition with a teaching (a baraita) discussed in the Talmud Bavli itself (Bava Bathra 130b):²⁶

תנו רבנן: אין למדין הלכה לא מפי תלמוד, ולא מפי מעשה, עד שיאמרו לו הלכה למעשה. שאל ואמרו לו הלכה למעשה – ילך ויעשה מעשה, ובלבד שלא ידמה

The Sages taught: One may derive the halakha neither from an oral teaching [lit. talmud] nor from an incident where one saw a ruling issued in a certain manner, unless one is told explicitly that it is the practical halakha. If one asked and was told the practical halakha, he may go and act upon the ruling in those circumstances, provided that he does not compare [and apply the ruling to other circumstances by analogy].²⁷

The essence of the oral law, in this view, is the intervening, compounded role of succeeding generations. Received tradition is necessary to navigate the web of past precedents and know which ones are authoritative, and even then only after extensive learning can someone reliably extend the application of a given halakha to other cases. The approach of the Geonim of Eretz Yisrael was similar with regard to their own mesorah. Indeed, Faur draws an equivalence between the treatment of the foregoing baraita in the Bavli and the teaching cited in the Yerushalmi, ‘מנהג מבטל הלכה’ (‘practical halakha [lit. minhag] trumps [theoretical] halakha’).²⁸ In other words, a textual source cannot override the received tradition.

Geonic authority and the sof hora’a convention in Bavel

As we mentioned above, the convention of sof hora’a was important for structuring the hierarchy of past precedents for the Geonim of Bavel. While Geonim had no problem dissenting from earlier Geonic opinions, Amoraic precedents held a higher status.²⁹ This does not mean they were bound by everything we know today as part of the Talmud Bavli, but only to parts of it attributed to a named Amora or held by tradition to originate from those days. Moreover, even the interpretation of more authoritative precedents was subject to mesorah and minhag. This meant, for example, that interpretation of the relationship among different sugyot often followed tradition rather than the plain language of the Amoraic statements, let alone that of the stam. Lastly, as we’ll see below, under some circumstances even felt justified setting aside clear Amoraic precedents by the extraordinary means of a takanna (enactment).

The reasons for this differ in different cases. Firstly, as discussed above, the Talmud had not even reached its final (written) form, and had multiple strata, some of which originated or continued to be developed after Ravina and Rav Ashi.³⁰ A good example is the laws of birkot hashahar. In the Bavli (Berakhot 60b), a series of blessings (berakhot) are prescribed to be said, beginning at the moment when a person wakes up and continuing alongside specific actions one takes when getting up and getting ready for the day’s activities. But the Geonim took a different approach. As attested to in several responsa, the Geonim instructed that no blessing should be said before netilat yadaim (ritual hand washing):³¹

אמרו חכמים בהרואה מקום כדפתח עיניה מאי אמר כי לביש מאי אמר וכולי. ומשמע דכל אחת ואחת לומרה בעיתה ובקומה אלא משום הטינוף כך הלכה כיון שנינער אדם משנתו אסור לברך אפילו ברכה אחת עד שירחץ ידיו כמו שנאמר הכון לקראת אלהיך ישראל לפיכך כיון שעומד אדם משנתו ניפנה ומתקן עצמו ונוטל ידיו ופניו ורגליו ומברך על הסדר וכיון שאין לו רשות לברך עד שנוטל ידיו

The sages said in [chap. 9 of Berakhot]: when he opens his eyes, what does he say; when he gets dressed, what does he say etc. This appears to mean that each blessing should be said at its proper time. However, due to the uncleanliness, this is the halakha: when a man wakes up from his sleep it is forbidden to say even a single blessing until he washes his hands, as it says [Amos 4:12]: ‘Prepare to greet your God, Israel.’ Therefore, when a man gets up from his sleep, he relieves himself and then prepares himself by washing his hands, face, and feet, and then says the blessings according to their order, as he is not permitted to bless until he has washed his hands.

Though the halakhot of morning blessings are recorded clearly in the Talmud Bavli before us, the Geonim had no problem contradicting it. Moreover, they express their ruling through a new derasha which is not attested to in any Talmudic sources. It is not unimportant, of course, that the passage in question is written in stam, naming no specific sages as the author or transmitter of this legal material. This suggests that the passage in question is quite late in origin, originating with the savoraim or stammaim who followed the Amoraim. As such, and in the context of a Talmud which was substantially a set of oral compositions as described above, the Geonim may have had a tradition that this Savoraic position, even though it was preserved and would ultimately make it into the written form of the Talmud, was rejected in the generations following its compilation. Alternatively, the Geonim themselves felt legitimate in rejecting it given the fact that it was of such late origin, and not among the recorded positions of Amoraim or Tannaim which were made binding by the convention of sof hora’a.

Extra-talmudic traditions would also affect how Geonim cited Amoraic opinions in their rulings.³² I will describe one example. B. Bava Bathra 136a and B. Gittin 72a discuss a Tannaitic dispute between Rabbi Yehuda and Rabbi Yose on the subject of legal documents (the examples discussed here are wills and bills of divorce). The question is how to make the document’s effect dependent on one’s death (e.g. the example in B. Bava Bathra discusses a partial transferral of title to land from father to son, to take place immediately, with completion of the transferral to take place upon the death of the father). While Rabbi Yehuda requires the document to include the formulation ‘from today and after my death’, Rabbi Yose says it is not necessary (M. Bava Bathra 8:7); Rabbi Yose’s reasoning is explained in the Talmud as being that the date written in a document proves when it is meant to take effect. Notwithstanding the convention that disputes between R. Yehuda and Rabbi Yose are to be ruled according to the view of Rabbi Yose (B. Ta’anith 26b), and even though both talmudic passages state that the halakha follows Rabbi Yose, R. Nahshon Gaon rules according to Rabbi Yehuda. He cited a tradition that the academies follow Rabbi Yehuda, following a decision by Rava recorded on B. Gittin 85a. Though that passage (at least as available to us) does not suggest Rava was referring to anything but bills of divorce, the stammaitic analysis there seems to suggest a broader point of ruling against Rabbi Yose in this dispute. While R. Nahshon Gaon’s mesorah follows this analysis on both sugyot mentioned above, most later posekim (e.g. Rambam, Bartenura) would follow the Amoraic conclusions recorded in each one separately. This apparent departure from the Talmud, then, was probably also not a violation of sof hora'a; indeed, it is very difficult to find rulings in which Geonim do go against the Amoraic stratum of the Talmud.³³

It seems that the only legitimate way for Geonim to depart from Amoraic precedents was through takknot (enactments, or what some label ‘decrees’ or ‘legislation’). What is distinctive about enactments, as opposed to rulings or responsa, is that they are prospective, and, more significantly, make no claim to derive from existing law. They are an explicit attempt to create new law rather than expound old law. There is some debate as to the real number of Babylonian Geonic takkanot.³⁴ Geonic writings use the word quite frequently, perhaps more frequently than their actual occurrence. Menachem Ellon counts at least six takkanot based on attestations in various sources, including the Geonim themselves and the Rambam.³⁵

However, according to more exacting counts, there are only two truly well-documented takannot which can confidently both be identified as takkanot and be attributed to the Geonim:³⁶ one regarding the divorce of a rebellious wife (ca. 650 CE) and another regarding collection of debt from movable property (ca. 787 CE).³⁷ In brief, a ‘rebellious wife’ refers to a situation in which a wife refuses her husband conjugal duties, either because she seeks to cause him anguish or because she is disgusted with him and seeks a divorce. The Talmud Bavli (Ketubot 63b) imposes a twelve-month waiting period before giving a bill of divorce in such a case. The language is a little unclear, but Brody demonstrates it was the understanding of the Geonim that the limitation was on the court, so that judges would not compel a husband to grant a bill of divorce before twelve months. Cases of this kind were affected by a new situation created after the Muslim conquest of the Sassanian empire (which took place in the 630s and 640s). The policy of the new regime created the risk that wives seeking a divorce would involve Islamic authorities to compel a husband to give a divorce, resulting in an invalid divorce according to Jewish law, or convert to Islam in order to have the marriage nullified in the eyes of the authorities. In response, the Geonic takkana removed the waiting period, allowing courts to seek to resolve such a situation by compelling the husband to divorce his wife immediately. The enactment regarding collection of debt from movable property also arose in reaction to a new reality: far fewer people were owning land during the Geonic era. This made the rule (of Amoraic and even Tannaitic origin) that when payment of a debt was to be collected from the heirs of the original debtor, marriage contracts, divorce bills, and debts generally (unless the document in question expressly stipulated otherwise) are to be paid from immovable property, impractical and even iniquitous. Thus the Geonim instituted that movable property be treated in the same way as immovable, being part of the default form of collection of a debt. Thus, both enactments were made in response to changing political and socioeconomic realities, and both clearly aimed to overrule Talmudic precedents.

To legitimate a new enactment, Geonim would seek wide rabbinic consensus, including all the academies and ideally also the sanction of the Exilarch, the official leader of the Jewish community in Bavel. That was the theory; in practice, while the enactment regarding a rebellious wife quickly received the sanction of the academies of both Sura and Pumbedita, the one relating to debt collection from movable property was initially only sanctioned by Sura and the Exilarch, Pumbedita initially opposed but later gradually coming to accept it.³⁸ The Geonim would also seek the instrument’s ratification at a formal gathering of sages.³⁹ By doing so, the Geonim may have intended to emulate the Sanhedrin’s authority. Nonetheless, the formal authority of these enactments was plainly local in nature. The Babylonian Gaonate did not constitute a real Sanhedrin, nor was its authority accepted universally as moré d’atra (local authority). The fact they felt the need to distinguish these acts as formal legislation issued by the authority of the Gaonate may suggest they felt a need for a distinct procedure to break with Amoraic precedent. In any case, the fact remains that they felt they had some authority to do so, specifically when joined by broader agreement of the Babylonian academies and legal institutions. In this way, they must have seen themselves as representing sufficient wisdom and number to legitimise the (specifically targeted) repeal of such a well-established convention as sof hora’a. While conventions like that of sof hora’a were central for judicial decision-making by virtue of being a devar mishna, they were founded upon rabbinic consensus (in this case, a local one), not national formal authority. Therefore, in specific cases, it could be departed from with sufficient rabbinic consensus, especially when expressed in terms of (local) formal authority—which fits the forms of the Geonic takanna.

It is arguable that the use of enactments by the Geonim should be nuanced. As Brody finds,⁴⁰ the takkana on debt collection seems to have met resistance from the start and the Geonim faced difficulties getting it accepted more broadly.⁴¹ He moreover argues that the paucity of takkanot we can confirm for this period shows that legislation was not an important feature of the Geonic halakhic system. This much is undoubtedly true; but as we saw, far from being a unique aspect of the Geonic period, the rarity of enactments dates all the way to the Tannaim, who passed few enactments after the Sanhedrins of Yavne or Usha. Though they may have been few in number, these enactments were not short-lived aberrations but were subsequently accepted in courts in Bavel and outside it for many hundreds of years, as is evident from the writings of many Rishonim. Moreover, for our purposes we have no sources indicating that opposition to any takkanot or difficulty in passing them arose from a conception that the academies in the days of the Geonim no longer had formal authority, while we have many sources bolstering the authority of the Geonim and their academies. Indeed, while Geonim had to respect sof hora'a, it is equally true that they saw themselves (together with their academies) as sitting in the same seat as Ravina and R. Ashi and clothed with a similar authority. Speaking of his academy, R. Sherira Gaon wrote: ‘...for this body is in place of (כנגד) the Sanhedrin and its head is in place of Moses our Master, and the customs (מנהגות) of the Sanhedrin are issued by it.”⁴²

Halakhic authority and the dispute between the centres

The centrality of mesorah to halakhic authority can also be seen in the contestation between the two centres. For the most part, each Gaonate (the Babylonian and the Levantine) saw its own mesorah as free-standing and independent of the other. Generally, neither side concerned itself with its inconsistency with the halakhic views of the other centre, although sometimes one side (especially Bavel) claimed supremacy for its mesorah, as in the calendar dispute. By contrast, any claim of formal authority is hard to discern from Geonic sources. This excerpt, from a responsa by Rav Hai Gaon is the closest they get:

ומילתא דפיסקא בתלמוד שלנו לא סמכינן בה על תלמודא דבני ארץ ישראל הואיל ושנים רבות איפסיקא ההוראה בתמן והכא הוא דאתבררו מסקני

If something is ruled on in the Talmud Bavli, in the same matter we do not rely on the Yerushalmi, given that for many years halakhic instruction ceased in Eretz Yisrael, whereas here, in Bavel, the conclusions of halakha were clarified.

This clearly refers to some conception of sof hora’a, although it may just as easily be understood through the concept of mesorah, asserting that some kind of decline had occurred in Torah learning in Eretz Yisrael that led to the irreversible loss of the mesorah there.

Far more common in Geonic responsa are comments such the following, which state Babylonian precedence matter-of-factly:

אנו על תלמוד שלנו סומכין, ומאי דפסיק הכא לא חיישינן למאי דאיתא התם. ודאי לגלויי מלתא דמסתמא הכא ⁴³או דלא מפרשא הכא ולא מכחשא נמי סמכינן עליה, אי נמי מלתא דפירושא

We rely on our own Talmud [the Bavli]. And where something was decided here, one should not concern himself with what was said there [in Eretz-Yisrael]. Nonetheless, certainly, where [the Yerushalmi] clarifies a matter [discussed in the Bavli] which we find obscure or unexplained, it does not contradict [what is in the Bavli], we do rely on it.

⁴⁴ותלמוד שלנו [הבבלי] שעליו אנו סומכין ועליו כל ישראל סומכין – מכריע

And our [Babylonian] Talmud on which we rely and on which all Israel rely—is decisive.

Indeed, we can see that Babylonian Geonim did not offer a consistent, nor even plausible rationale for precedence of the Bavli.

The claim that the Levantine mesorah had become lost and only later reconstituted (a reconstruction which was illegitimate in the absence of living mesorah) also appears in the Iggeret (letter) of Rav Sherira Gaon and even more explicitly in the Iggeret of Pirkoi ben Baboi, mentioned above. Ben Baboi’s central contention is that Roman/Byzantine persecution irrevocably broke the chain of mesorah in Eretz Yisrael. A generation or more after this break occurred, he argues, the buried rabbinic writings of an earlier period were recovered; from these and from the customs which had remained (themselves deeply affected and thus tainted by the persecutions) a new tradition was haphazardly pieced together. Bavel, by contrast, had always maintained the tradition, and thus its academies represented the true, authentic Oral Torah. Putting aside the question of the veracity of these claims, what is notable is that the argument focuses entirely on mesorah. At no point does Ben Baboi contest the teachings of Eretz Yisrael based on the formal authority of the Babylonian Amoraim or on the acceptance of the Talmud Bavli by the Jewish people or its rabbis. If Ben Baboi saw sof hora’a or even the formal authority of the Geonim themselves as an important reason for the supremacy of the Talmud Bavli, he does not seem to say so.

Conclusion

Looking at the period of the Geonim, there is plainly much that seems misaligned with the views of halakhic positivists. The Babylonian Geonim, with consensus support of the academies, retained the power to announce new rules overriding precedents usually protected by the sof hora'a convention. In their rulings, the Talmud (at least as we know it) was not always sacrosanct either. sof hora’a was not a statute, nor was the Talmud a set of statutes. If they thought the generation that ‘sealed’ the Talmud had held some form of formal authority which was now lost, they did not say so, nor did they act in line with such a conception.

In Eretz-Yisrael, meanwhile, the Geonim and academy followed their own distinct mesorah, and as a result did not feel bound by sof hora'a at all, nor indeed by any Babylonian convention or teaching. Though on multiple occasions this led to Babylonian criticism, these critiques never included an argument that the Talmud Bavli had become universally binding by virtue of some form of formal authority lost to later generations. What they claimed had been lost was the chain of mesorah—specifically, in Eretz Yisrael—whereas they, the Geonim of Bavel, had maintained it.

The absence of positivistic accounts of the halakhic system from the Geonic era is closely wound up with the oral nature of Talmudic teaching in that era, specifically in Bavel. By 1200CE, the time usually reckoned as the end of that era, the decline of the Babylonian centre was happening simultaneously with the dissemination of the Talmud Bavli as something it had never been before: a fixed written text. As we shall see in the next instalment, it was only when the Talmud Bavli became a written text that it came to be seen as authoritative in itself. It was in the hands of rabbis with less access to the prior history and mesorah of that new, written Talmud, that such positivistic halakhic theories would first come to be formulated.

1. Which did not have a Tannaitic era.

2. Rav occupies an ambiguous position as he is considered as both a first generation Amora and a last generation Tanna.

3. It may have been the result of the difference in authority between Bavel and EY at the time.

4. There are a few Amoraic statements that post-date Ravina and Rav Ashi themselves, but as contemporaries of these sages, they could arguably be considered an ambiguous transitional generation like Rav.

5. Philips, Shmuel 2023 - Talmud Reclaimed: An Ancient Text in the Modern Era

6. Rubinstein, Jeffrey 2003 - The Culture of the Babylonian Talmud

7. Brody, Robert 2013 - The Geonim of Babylonia and the Shaping of Medieval Jewish Culture; Rubinstein 2003, p1

8. such as והלכתא, meaning, ‘and the halakha is…’, relatively late statements appearing in the text of the Bavli before us.

9. Linder 1987 The Jews in Roman Imperial legislation

10. Scholars often call it the ‘Palestinian’ Talmud, ‘Palestinian’ rite, etc. which given the modern usage of the term many (including myself) will dislike, so I use Levantine whenever Eretz Yisrael gets a bit too repetitive.

11. As a sidenote, though the way they’re described often makes it seem like the Geonim had unified leadership over the academies or even over the whole Jewish community, Bavel was in fact divided among two or three authorities. The academies of Sura and Pumbedita were each usually led by a Gaon and each had their territorial sphere of influence within Bavel, as did the Exilarch.

12. Much of what we know about it comes from the Cairo genizah, which belonged to the Great Synagogue of Fostat, a synagogue which followed the Levantine nusah (prayer tradition) until about 1205.

13. It seems this was purely a determination based on a tradition of the appropriate calculations, judicial determination of months and years by reference to witnesses having ceased much earlier.

14. ?שר שלום, רחמים 1988, מתי נוסד הלוח העברי? מתי תוקן ומתי נחתם

15. This was no theoretical issue, as demonstrated by a number of actual dates from the early Geonic period which show significant divergence from the calendrical calculations maintained today.

16. ?שר שלום, רחמים 1988, מתי נוסד הלוח העברי? מתי תוקן ומתי נחתם

17. Stern, Sacha, 2019, The Jewish Calendar Controversy of 921/2 CE, 25

18. Libson, Gideon, 1995 “Halakhah and Reality in the Gaonic Period: Taqqanah, Minhag, Tradition and Consensus: Some Observations,” in Daniel Frank, ed., The Jews of Medieval Islam: Community, Society, Identity, 69.

19. Ginsburg, Levi 1928, Ginzei Schechter, vol. 2.

20. Though it seems the process may have taken some more time to complete. See רזיאל־קרצ'מר, ורד 2018 “עד מתי נהגו מסורות התפילה הארץ ישראליות במצרים? עדויות חדשות מן הגניזה”, תרביץ – רבעון למדעי היהדות, שנה פה, חוברת ב 309-36

21. i.e. non-Karaite

22. Teachings preserved as (oral) texts and passed on are not law in themselves but evidence of law, as I explain in more detail below.

23. In Bavel, semikha, like today’s rabbinic ordination, was merely an emulation of the ancient chain of ordination going back all the way to Moshe Rabbenu. After all, the limitation of ordination to Eretz Yisrael is recorded in the Talmud Bavli itself. The semikha which existed in Eretz Yisrael, on the other hand, was held to be a continuation of the semikha which had been passed down by the Tannaim and Amoraim For more about ‘semikha’ in both communities, see Blidstein, Gerand J. 1998 - ‘Maimonides on the Renewal of Semikha’, Jewish Political Studies Review 10:3-4.

24. Richard T. De George, The Nature and Limits of Authority (Kansas: 1985), 27. Quoted in R. Warburg, 2013 Rabbinic Authority: The Vision and the Reality.

25. Quoted in: Faur, 1978 Iyunim BeMishne Torah 34.

26. ibid.

27. The Talmud then asks: ‘What is the meaning of the statement: Provided that he does not compare? Don’t we compare cases [and rule by analogy] throughout the entire Torah?’ R. Ashi answers the question by qualifying that part of the statement by limiting it to the laws of tereifot.

28. Faur, 1978 Iyunim BeMishne Torah 34.

29. ברודי,ירחמיאל 2016 ציון בין הפרת לחידקל, עולמם של גאוני בבל, 148

(this is an expanded translation of Brody, Robert 2013[1998] The Geonim of Babylonia and the shaping of medieval Jewish culture)

30. The post-Amoraic additions are attested to explicitly by the Iggeret of Rav Sherira Gaon.

31. תשובות רב נטרונאי גאון [א"ח ט]; also attested to in סדר רב עמרם גאון, סדר ברכות השחר.

32. I.e. how Geonim would pasken Amoraic statements l’halakha.

33. Libson lists a few but these do not seem like assertions of authority or true violations of the convention (announcing a more stringent ruling than required by precedent, for example, is not usually considered extra vires or a breach of precedent, although it does show Geonim did not feel they were limited to reciting Amoraic precedents; in other words, just because it is post-Ravina and R. Ashi did not mean it had no authority).

34. It is also worth noting that it seems that takkanot were more common in the early stages of the Geonic period. The best attested takkanot date to the 7th and 8th centuries (Libson 73)

35. אלון, מנחם 1978, המשפט העברי, 531-46

36. Libson 73

37. ברודי, ירחמיאל 1984 "כלום היו הגאונים מחוקקים?" שנתון המשפט העברי של המכון לחקר המשפט העברי, תשמ"ד-תשמ"ו, כרך יא/יב 279-315

38. ibid.

39. Ibid, אלון 530

40. ברודי, ירחמיאל 1984 "כלום היו הגאונים מחוקקים?", 314-5

41. This should perhaps come as no surprise given that it went against earlier precedents than the other takkana, and even more so given it was not initially accepted by Pumbedita and therefore it was questionable if it had received ‘consensus’ support.

42. Iggeret Rav Sherira Gaon

43. תשובות הגאונים, ליק, סימן מו

44. זכרון לראשונים, סימן שמט