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Collected Essays: v. 1$

Haym Soloveitchik

Print publication date: 2013

Print ISBN-13: 9781904113973

Published to Liverpool Scholarship Online: February 2021

DOI: 10.3828/liverpool/9781904113973.001.0001

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‘Religious Law and Change’ Revisited

‘Religious Law and Change’ Revisited

Chapter:
(p.258) Chapter Ten ‘Religious Law and Change’ Revisited
Source:
Collected Essays: v. 1
Author(s):

Haym Soloveitchik

Publisher:
Liverpool University Press
DOI:10.3828/liverpool/9781904113973.003.0010

Abstract and Keywords

This chapter surveys the author's essay which differentiates between the terms minhag and nohag. These may be roughly translated as “custom” and “habitual practice.” Custom (minhag) has a recognized threefold place in halakhah. It may adjudicate between two halakhic views; it may tilt the balance of an issue in which the law is unclear; and it may determine conduct in the interstices of the halakhah, there being no directives in the normative literature on the subject. Nohag, “habitual practice,” the focus of the essay, refers to conduct that is not viewed as custom, not perceived as part of a conscious religious tradition, but simply the way people of a community have traditionally acted on the assumption that these practices are legitimate, are in accord with the halakhah. What happens when a received practice is discovered to contravene the halakhah? It is in its attitude towards habitual practice that Ashkenaz parts company with other Jewish cultures.

Keywords:   minhag, nohag, custom, habitual practice, halakhah, religious tradition, Ashkenaz, Jewish cultures

FROM QUERIES RECEIVED over the years about ‘Religious Law and Change’, it is clear that I should have prefaced that article with a distinction that Jacob Katz used to make between two terms: minhag and nohag. These may be roughly translated as ‘custom’ and ‘customary practice’; better yet, ‘custom’ and ‘habitual practice’. The exact terminology isn’t significant; the different concepts conveyed by these two words are. Custom (minhag) has a recognized threefold place in halakhah. It may adjudicate between two halakhic views, as in ‘The custom of Ashkenaz is to follow Tosafot; that of Sefarad to follow Maimonides’. It may tilt the balance of an issue in which the law is unclear (be-makom she-ha-halakhah rofefet).1 Finally, it may determine conduct in the interstices of the halakhah, there being no directives in the normative literature on the subject. Much of our daily prayer is custom, and such phrases as ‘in Poland it is customary not to recite av ha-raḥamim on this Sabbath’ or ‘at this point in prayer the Sefardim add …’ abound in the literature. What characterizes minhag, custom, in all these three instances is that the practices described are both legitimate and recognized by their practitioners as part of the religious inheritance of the community. When it comes to local minhag, all Jewish communities are remarkably tenacious in defending their customs and vindicating their religious traditions, and little distinction can be drawn among different Jewish cultures of the Middle Ages, or of the modern period for that matter. Nohag, ‘habitual practice’, on the other hand, refers to conduct that is not viewed as custom, not perceived as part of a conscious religious tradition, but simply the way people of a community have traditionally acted on the assumption that these practices are legitimate, are in accord with the halakhah.

The subject of both this essay and ‘Religious Law and Change’ is nohag. (p.259) What happens when a received practice is discovered to contravene the halakhah? This question is made even more acute when the matter touches upon something enjoined by the halakhah (issur ve-heter), as consumption of non-kosher foods, in view of the unquestioned rule that neither custom nor habitual practice can allow that which the halakhah clearly forbids.2 It is in its attitude towards habitual practice that Ashkenaz parts company with other Jewish cultures.

In my essay ‘Can Halakhic Texts Talk History?’ I dealt at length with the issue of hitḥil le-himashekh, which Rashi, and all commentators in his wake, interpreted as expressing a principle of separation,3 namely that grape juice ceases to be simply ‘grape juice’ and becomes ‘wine’ and subject to yein nesekh when the process of separation of the liquid from the crushed grapes begins.

This ruling caused R. Yitsḥak of Dampierre, the famed Ri, considerable soul-searching. He was bothered by the fact that all too often in the course of the exhausting treading—easily the most arduous process in wine production, in which women and children were never to be employed, only able-bodied men—the treader took a drink by dipping a cup into the vat (cuve) and filling it with juice. Should this cupful be reckoned as the ‘onset of separation’? On the one hand, some of the wine in the tub has been strained off. On the other hand, this is not the onset of the process that will separate the rest of the juice from the crushed grape. That will occur when a strainer is put over large bowls placed under the spigot, the spigot is opened, and strained wine flows into these receptacles.4

This was not a theoretical question. The French community, it will be remembered, had allowed Gentiles to be involved in the transportation and handling of the open cuve—which inevitably involved some contact with the wine it contained—until the moment the spigot was opened.5 If cup-dipping constituted hamshakhah, Gentiles regularly touched Jewish wine well after the onset of that process, and most ‘kosher wine’ was not at all kosher. Nevertheless, Ri wrote: (p.260)

‘Religious Law and Change’ Revisited

And it would appear to me that the [instance of the inserted cup] is forbidden, and I wish that the custom in such cases were to forbid [the wine in the tub] … However, I do not feel sufficiently empowered to forbid [this wine] since the custom has been to allow [it] since the days of our teachers, may they rest in peace. And as they act with their cuves so they act with mine, when they purchase wine for me. May our Rock save us from all stumbling, sinful error and punishment and may He lead us in the way of His commandments to fulfill them properly.6

Ri’s conduct highlights the striking identification of the Tosafists with the religious standards of their community, a solidarity displayed most noticeably when they have serious reservations about those standards. In almost every phase of wine production—in supervision of the cuves after the treading, in transportation of the wine by Gentile wagoners, in the purging (hakhsharah, hag’alah) of the vessel that contained yein nesekh, and in the sale of Gentile wine that had been given as payment in kind for outstanding debts, the Tosafists advised taking extra precautions and not relying on common practice, writing: ‘it is best to act more stringently in this matter’, ‘it is proper to act more stringently’, and ‘may he who acts more stringently be blessed’.7 The same phrases or their equivalent are strewn throughout the first two chapters of ’Avodah Zarah, which deal with Jewish–Gentile relations.8 What is never found in their writings are such phrases as: ‘The scholar [talmid ḥakham, tsurva de-rabbanan] should here act more stringently’, or ‘he who has an ounce of Torah [re’ahtorah] in him should abstain from this’.9 The intellectual elite of Ashkenaz never saw itself as constituting the religious elite.10 Its level of (p.261) observance was one and the same as that of the community from which it sprang and in which it dwelt, and it never occurred to the Tosafists that they should act ‘better’ than their co-religionists. Individuals might practice a heightened ritual observance and would undoubtedly reap their reward in the world-to-come. But no group, however scholarly, need stand higher than did the community in its level of observance. The Ashkenazic community appeared to the Tosafists as a kehillah kedoshah, a holy congregation, whose religious practices were a living embodiment of the dictates of the Torah. Any contradiction between its practices and the demands of the halakhah was illusory. This cultural axiom outweighed the community’s cognitive conclusions. Again and again in the field of yein nesekh, its members raised serious questions about the common practice, but each and every time they concluded by endorsing it.11 And so, despite all his deep reservations, Ri still wrote: ‘And as they act with their cuves, so they act with mine, when they purchase wine for me.’

I drew attention to this phenomenon in 1967 in my work on yein nesekh12 (p.262) This assessment was confirmed by my subsequent studies of pawnbroking and of martyrdom, together with Lau’s study of the ḥadash injunction (ḥadash beuts la-arets).13

One question, however, poses itself immediately. The vast halakhic synthesis of the Tosafists drew hundreds, if not thousands, of new conclusions from the Talmud, conclusions that in the course of time the Ashkenazic community accepted and that changed the face of religious life in Ashkenaz. Anyone who compares the skeletal rules of Passover or of Sukkot in the Siddur Rashi with the complex set of regulations found in Sefer Mitsvot Gadol, or the elementary dictates of basar be-ḥalav (milk and meat) in the Sefer ha-Pardes with the immense and intricate regulative universe found in the Sefer ha-Terumah or the Sha’arei Dura, sees immediately the vast transformation. Nor was this acceptance simply theoretical, as one sees from questions asked in medieval Ashkenaz that have meaning only if one assumes that doctrine ‘X’ or ‘Y’ of the Tosafists was the common practice. A similar picture emerges from minor handbooks found in manuscript, trivial works of no intrinsic worth but that mention in passing what the local practice was. The doctrines of the Tosafists had, indeed, seeped downward and become part of the habitual religious life of the Jewish community. Every one of these innumerable changes was an implicit criticism of past practices, yet the Tosafists never hesitated to propagate their new conclusions nor had they any qualms about writing codes whose peremptory tone proclaimed that these new observances were obligatory. Why did not the notion of kehillah kedoshah operate here? Why in all these areas did the Tosafists not view the received, habitual conduct of their communities ‘as informative of talmudic law’ as they did in yein nesekh? Why did they not see here ‘the deeds of the common folk as revelatory of the Divine intent’ as they did in kiddush ha-shem?

Take Rabbenu Tam, for example. No one tried harder than he did to justify popular practice in yein nesekh or kiddush ha-shem14 Yet he did not hesitate to disqualify all the Torah scrolls (sifrei Torah) of Germany as they were written in (p.263) ink that he deemed unfit for sacred scrolls.15 The same boldness and indifference to long-standing, entrenched practice exhibited itself in the realm of issur ve-heter. His remarks about the kosher status (kashrut) of a certain lesion of the lobes of the lung, unah ha-serukhah be-’umah are well known. Rashi and his revered teacher R. Ya’akov ben Yakar had declared that such a lesion did not render an animal un-kosher (terefah). The Tosafot reports that not only did Rabbenu Tam disagree but that he went so far as to proclaim that ‘anyone who permits such a lesion feeds Jewry un-kosher foods [terefot]’.16 Rashi’s allowance, however, was neither his innovation nor that of his teacher. R. Yitsḥak Or Zarua’ informs us that ‘Rabbenu Gershom, R. Shelomoh b. Shimshon of Worms, Rashbam, R. Yitsḥak ben Yehudah all allow the lesion of unah beumah and the custom in Mainz is also to allow it’.17 Rabbenu Tam was ready to proclaim publicly that both the French and German communities had been eating terefot for some two hundred years, yet refused to admit the possibility that they had at the same time drunk yein nesekh

The difference lay in the cost of the observance. Yein nesekh exacted from Jews a far higher price than did kosher meat or the keeping of the Sabbath. It had long been seen as an instance of insolentia Judaeorum. In the halcyon days of the ninth century, Agobard, bishop of Lyons, wrote in anger that Gentile touch defiled wine in Jewish eyes and made it unfit for their consumption. From the many privilegia that specifically granted to the Jews the right to sell their wine—and Jews paid handsomely for each and every right granted—one may gauge just how widely resented was the implied Jewish superiority contained in the yein nesekh ban. Innocent III himself inveighed against this presumptuousness, and one did not take lightly the anger of Innocent III.18 In a period of rapid devolution of Jewish status, in the atmosphere of growing (p.264) belief in ritual murder and in the blood libel, Gentile goodwill became ever scarcer. Yein nesekh was a constant provocation and there was everything to gain by its allowance.

And allowances presented themselves repeatedly to the Ashkenazic community. Rashi’s time witnessed the first appearance in Ashkenaz of the very plausible geonic ruling that since neither Christians nor Muslims libated, benefit (hana’ah) from yein nesekh was permissible. This allowed unrestricted trade in Gentiles wines, with all its enviable profits. Nonetheless, it was restricted by Rashi and the Tosafists, both French and German, to acceptance of Gentile wine only as payment in kind for a pre-existing debt. Entrepreneurial initiative in the growing wine trade, the major source of wealth in the cities along the Rhine and the Mosel, was ruled out, and with popular approval, for the Ashkenazic community strictly avoided any such commerce for over three centuries.19 In the days of Rabbenu Tam and Ri, a second and yet greater opportunity presented itself—to eliminate not simply the ban of benefit but the ban of yein nesekh altogether, to lift from the shoulders of Ashkenaz once and for all the heavy burden of this injunction. The argument, as posed in a pointed question from Ri to Rabbenu Tam, was simple and convincing and the permissive conclusion begged to be drawn; indeed, other communities did draw it. Ashkenaz, however, rejected it with shock.20 A generation later, a third allowance appeared. Ashkenazic scholars learnt of the Maimonidean view that wine that had an admixture of honey was not subject to yein nesekh. One could allow all cases of Gentile touch by the simple expedient of adding beforehand a touch of honey to the wine, as Jews in Spain and North Africa actually did. Maimonides further added that this was not a personal holding of his; all the ‘great scholars of the Maghreb’ had ruled thus. The Mishneh Torah was readily available in Ashkenaz in the latter half of the thirteenth century, as the Ashkenazic glosses to it, the Haggahot Maimuniyot, attest.

Those unfamiliar with the contents of Maimonides’ code would have learnt of the ‘honey allowance’ through the agency of the Mordekhai, one of the most influential works in the later Middle Ages.21 Yet Maimonides’ allowance (p.265) was ignored completely. In the first quarter of the thirteenth century, R. Yehudah of Paris (d. 1224) received a report that adding a touch of honey to the wine to forestall yein nesekh was standard practice of Jews in Islamic countries. R. Yitsḥak Or Zarua’ arrived independently at this position on the basis of a passage in the Yerushalmi and mentioned in conclusion the report from Islamic countries. His position, however, had no more influence, won no more acceptance than did that of Maimonides. Indeed, R. Yitsḥak’s permissive argument was never cited in the subsequent literature. What was cited from the Or Zarua’ was the exotic appendix, not the proof. ‘I think that some people heard from my teacher R. Yehudah of Paris that in the lands of Yishma’el and Egypt they are accustomed to add honey to the wine and yein nesekh no longer applies’ (emphasis added). His own son, in his abridgment of his father’s massive compendium, cited the reported practice of Islamic lands, not the allowance based on the Yerushalmi, as did similarly R. Yisra’el Krems (latter half of the fourteenth century) in his widely disseminated Haggahot Asheri.22 Even this report of the doings in distant lands was heard no more. Not for lack of relevance. Wine laced with spices and honey (hypocras) was a favorite medieval drink and was also thought to have medicinal properties. Sweeteners, moreover, were often used in northern climes either to counter the acrid taste of the tannins or to cover the onset of spoilage, which occurred quite early, as the wine was exposed on all sides to air because of the poor construction of the barrels.23 Yet Maimonides’ allowance was never invoked, nor that of the Or Zarua’, not even as a last resort position, as in cases of severe financial loss, hefsed merubbeh.24 It was stillborn; its permissive conclusions apparently interested few in Ashkenaz, either in the high or the late Middle (p.266) Ages. A report that there was some correspondence between a late fifteenth-century German glossator of the Mordekhai and his friend or relative in Crete only corroborates the silence of the sources:25

‘Religious Law and Change’ Revisited

My brother, R. Shelomoh of Candia, wrote to me that they permit (in Candia) wine laced with some honey or oil following the Maimonidean view, as they found no haggah [gloss] upon it [i.e. German Jews in Candia had adopted the Maimonidean position, as they found no dissent in the authoritative German gloss on Mishneh Torah, the Haggahot Maimuniyot]. And I wrote to him what I have said previously. It seems to me that we are accustomed [nohagim] to forbid such cases on the basis of the arguments that I have presented. I can’t go into further detail here.

Not only was Ashkenazic Jewry uninterested in allowing yein nesekh, it did not even seek to allow the customary injunction on wine condiments and substitutes—verjuice (boser) and vinegar (ḥomets). Popular convention in Ashkenaz had expanded the scope of the yein nesekh injunction to include boser and ḥomets touched by a Gentile. To our mind this appears as a trivial extension; it was anything but that in the Middle Ages and constituted a major inconvenience.

Both the French and German palates in medieval times sought a balance of two primary tastes—the heavily spiced and the sour.26 More than 50 percent of the Vivandier, a late medieval French cookbook that included many older recipes, was based on the combination of spicy and sour; another 25 percent of its recipes were based on one or the other taste exclusively. The acidic or sour taste was obtained in northern climes by liberal use of vinegar in cooking and, even more so, by the fermented juice of unripened grapes, which was called ‘verjuice’, the juice of green (vert) grapes. Not surprisingly, a vibrant market for such grapes developed. North-east of Rheims, for example, between the Vesle river and the Retourne, where the sun was insufficient to bring grapes to full ripening, farming concentrated on grains and green grapes, and for a month or (p.267) so, from early August to early September, wagonloads of verjuice wended their way to the markets in Rheims.27

Verjuice was occasionally drunk, as, more frequently, were sour, old wine and simple vinegar, either straight or with some admixture, usually wine. This sounds quite strange to our ears and, indeed, in the Middle Ages it would have sounded equally strange to people living in Mediterranean countries. However, wine is a subtropical fruit and requires several months of uninterrupted sunshine for full ripening. In the temperate zone, the sky is often cloudy, and successful viticulture is possible only in selected areas. Those who lived outside these areas or who were too poor to purchase the produce of the labor-intensive vines had to make do with whatever alcoholic beverages they could if they wished to escape momentarily from the troubles of this world. Few wines lasted more than a year, most only six months or so,28 and many regions were short of wine by the late spring. In England the shortage was chronic.29 Medieval viticulture had made great strides in growing grapes in an adverse climate; medieval cooperage (barrel-making), however, was still primitive. There were gaps between the staves and the base and between the individual staves—all of which were stopped up by rags, grass, or whatever came to hand.30 The air seeped into the barrels from all sides, and the acetous fermentation (‘vinegarization’) began early on. If one wanted wine in the late (p.268) summer, one had to drink wine that was well on its way to becoming vinegar, and the line dividing two- or three-year-old wine from vinegar was thin and fleeting indeed. Not surprisingly, sour old wine fetched a good price. In 1389, Richard Piques, bishop of Rheims, died; the audit of the episcopal estate listed ‘fifty queues [1 queue = 400 liters] at 30 sous a queue, twenty queues of old wine, not worth anything’.31 The ‘auditors’, as it were (commissaires-prisaires), assessed the old wine from the viewpoint of episcopal consumption; a less elevated perspective would have been more realistic (and profitable). Tax records from the Rémois registered wine prices from a year or two earlier (1387–8): new wine sold at 48 sous a queue; two-year-old wine at 20 sous a queue; three-year-old wine from 14 to 24 sous a queue. Some ten years later (1394–5), new wine sold at 36 to 56 sous a queue; two-year-old wine at 40 sous a queue32

The Talmud had expressly exempted vinegar from the yein nesekh ban,33 and logic would suggest that verjuice was equally excluded. Early Ashkenaz banned both—understandably, as only the thinnest of lines now separated slightly acid old wine from verjuice and souring wine from vinegar. Besides being drunk, both were regularly employed in the preparation of foods. Care then had to be taken that the Gentile help—Jewish communities were far too small to supply all the numerous hands needed in running a household in an age before plumbing and electricity—never touched, even inadvertently, these ubiquitous liquids. Rashi, in the commentary-code that he dictated to Rashbam, pointed out that vinegar was specifically permitted.34 This commentary-code achieved wide dissemination, but people never seized upon this allowance and maintained their old prohibitive posture. Somewhere in the years between 1149 and 1153, R. Meshullam of Melun, a Provençal scholar who had settled in northern France, attempted to allow, among other things, both vinegar and verjuice. Rabbenu Tam was outraged, and a correspondence in high and angry tones ensued.35 Their loud voices guaranteed that the purely (p.269) consuetudinary nature of the ban became widely known, yet there is not a whisper in the sources that this resulted in any relaxation of the widespread ban.36

Not only did the Ashkenazic community not seek to free itself of the injunction against yein nesekh, it did not even seek any policy of judicial leniency in this area, never endeavoring to ensure that questions of yein nesekh would be decided according to the more lenient view. R. Mosheh of Coucy, the author of the Sefer Mitsvot Gadol, discovered a dictum in the Yerushalmi stating ein medakdekim be-yein nesekh—one should not be too punctilious, i.e. one should not be too strict, in matters of yein nesekh37 He applied it, however, to one—classically problematic—case only, the leaking barrel that a Gentile had instinctively plugged,38 and made no further use of it, even though the dictum was a policy statement and invited, possibly demanded, broader application. His code had very wide circulation, yet no further mention is made of this dictum in the entire printed literature of Ashkenaz. One person and one person alone invoked this passage, an unknown R. Elyakim ha-Kohen of Friedburg, as reported in MS Oxford, Bodley 566. He, however, construed it economically—that one should rule leniently in yein nesekh in instances where the inquirer was a poor man.39 This reduced the dictum of the Yerushalmi to a subset of the well-known principle of hefsed merubbeh, namely, that in ritual law there is leeway for the decisor to render a lenient judgment when a strict one would entail serious loss.40 The only difference was that in most areas the principle of hefsed merubbeh was an option, whereas, according to this unknown scholar, in matters of yein nesekh it would be an obligation. Someone somewhere on the periphery advocated leniency for the poor, but no one advocated it for anyone else.

Of all the laws of yein nesekh, the most annoying and constraining was that (p.270) of nitsok41 If the Gentile helper opened the spigot of the barrel to fill a pitcher, not only was the wine in the pitcher forbidden, but also the wine in the barrel. If the maid poured herself a glass of wine from the pitcher, not only the wine in the glass was forbidden, but equally that in the pitcher. Worse yet, if the glass of the Gentile was not washed after she had drunk from it, and someone poured some wine into it, the traces of wine in the glass proceeded to render the contents of the pitcher forbidden, and if someone used the glass to pour himself a drink from the barrel, a common enough occurrence, the contents of the entire barrel were forbidden.

Jewish communities in the Middle Ages were, as I have said, far too small to supply all the hands necessary to run a household in the days before plumbing and electricity. Gentile help was indispensable. As neither coffee nor tea had yet arrived in Europe, and water was viewed as fit only for beasts (or for the poor, who differed little from beasts),42 wine was the daily drink, at least of all those who could afford it. Germs were an unknown hazard at that time, and people regularly ate the leftovers of others.43 There is no reason to assume that if someone drank wine from a glass and a little was left over, people would bother to wash it out before filling it again with wine for their own consumption. Yet now Jews had to insist that their helpers wash out all glasses from which they had drunk wine. The resentment this must have generated is obvious. Moreover, if anyone picked up a glass that someone had drunk from and poured himself a drink, and later it was discovered that the glass had been used by the helper, the contents of the entire pitcher or the entire barrel were forbidden. Such occurrences were inevitable and intolerable.

The law of nitsok is unique to yein nesekh and exists in no other area of ritual law. Not surprisingly, there developed in Provence a school that held that as nitsok was singular, every attempt should here be made to be as lenient about it as possible. It was further claimed that this was the stance of the great R. Zeraḥyah ha-Levi, Ba’al ha-Ma’or, though his actual statement on the matter is ambiguous.44 No hint of such a doctrine is to be found in Ashkenaz. Indeed, (p.271) if anything, the developments there are somewhat the reverse. The existence of the law of nitsok was a matter of debate in the Talmud. Jewish communities the world over—Babylonia, Egypt, the Maghreb, Spain, Provence, Italy, and Ashkenaz—ruled, one and all, that the holding was that nitsok obtained in yein nesekh. Rabbenu Tam came along and, unimpressed by universal consensus, argued with his customary power that all this was a mistake.45 It was clear from the Talmud that nitsok did not obtain in yein nesekh. So convincing were his arguments that Naḥmanides wrote that, were it not for the rulings of the Ge’onim and R. Alfasi, he would follow Rabbenu Tam. Not surprisingly, the major halakhic decisors in thirteenth-century France, such as R. Mosheh of Coucy, R. Yitsḥak of Corbeil, and Rabbenu Perets, either ruled in accordance with or were strongly inclined to Rabbenu Tam’s view. However, other Ashkenazic scholars adhered to the old injunctive perspective. Some advocated a compromise position: nitsok was operative in yein nesekh, but allowance would be made for instances of hefsed merubbeh, major loss. An unknown French author of the latter half of the thirteenth century by the name of Yeruḥam wrote simply, ‘The custom is to forbid nitsok.’ Despite the enormous lightening of the load that Rabbenu Tam’s view would have allowed, there is no evidence that the Ashkenazic community hastened to the gate to adopt it.46

This was scarcely the case with other Jewish cultures. Jews under Islam, at least those of Muslim Spain, the Maghreb, and Palestine (and one should probably add Egypt), freely invoked the allowance of a honey admixture. This view had not only been unopposed by the rabbinic authorities, it had even received their full approval.47 The ‘honey allowance’ survived the Reconquista, and Jews of Christian Spain conducted themselves as had their predecessors.48 (p.272) When Ri’s shocked inquiry to Rabbenu Tam49—‘Do you realize that if you combine two plausible rulings, Rashi’s and your own, the injunction of yein nesekh disappears?’—became common knowledge, it provided the rationale for the abolition of yein nesekh first in Spain, and later on in Italy and Moravia.50 There isn’t a hint of such conduct in France or Germany. As I have written: ‘The Ashkenazic community was animated by a fierce sense of the heroic in the face of persecution and intensely felt their dissimilarity to the heathen world around them. Yein nesekh seemed to them an appropriate symbol of this distinctiveness, and they did not begrudge the price they had to pay for it.’51

The cost of yein nesekhwas high; how much more so was the cost of kiddush ha-shem, with its murders, suicides, and parental killing of children lest they fall into Christian hands and be raised as idolaters?52 Not surprisingly, in no area did the Tosafists defend communal practice more. The greatest Tosafists—Rabbenu Tam, Ri, R. Shimshon of Sens, possibly Ravyah, certainly R. Me’ir of Rothenburg—all justified their people’s conduct, even if this entailed sanctioning suicide; some even found a justification for the slaughter of children.

The attitude towards Christianity evinced by the Ashkenazic community and the extreme price it was willing to pay for it shaped the attitude of the Tosafists towards communal practice in allied areas, and I emphasize the word ‘allied’. Fifty years ago, Jacob Katz pointed out the Tosafists’ policy of justification of many of the popular allowances in Jewish–Gentile relations.53 They justified such things as trade with Gentiles on Sunday, trade in animals and selling of weapons throughout the year, serving as Gentile nursemaids and having Gentiles serve as Jewish nursemaids—all practices that had been forbidden in the Talmud.

The bifurcation that takes place here between the Tosafists and the (p.273) scholars of Provence, Catalonia, and Spain is noteworthy. In the matter of trade on Christian holidays, scholars from all cultures participated equally. The Talmud had forbidden trade three days before a religious holiday and three days after, not to speak of on the holiday itself. In the Roman world such holidays were few. Christianity, however, had adopted the seven-day week of the Jews, and every Sunday was a religious holiday. This meant that no trade was ever possible with Christians. This was patently absurd: could God have sent His people into exile and denied them the basic means of sustenance? So scholars from every culture sought the means of allowing Jewish–Gentile commerce. The Tosafists, however, proceeded to find halakhic justification for a wide range of business practices, trade in problematic items, and Jewish–Gentile interactions, as the ones previously mentioned. The Tosafists sought to justify in detail the varied initiatives taken by the members of their community to earn their keep from the surrounding Gentile society and to legitimate the web of Christian–Jewish relations that existed in their time. The sages of the other cultures would have little of this. That the halakhah permitted Jewish economic survival was unquestioned; however, this scarcely meant that the specific steps that Jews of Provence or Spain had taken to earn their livelihood were in full accord with the halakhah. It certainly did not mean that one should justify closer and warmer relations with the surrounding society, not to speak of adopting some of its latitudinarian attitudes. The problems of religious observance and of freethinking were too widespread in their communities for the scholars of southern Europe to entertain the notion that the prevalent was the true, that popular practice was the living embodiment of halakhic norms, and that any proper interpretation of the law’s dictates must take these practices into account.

The same parting of the ways took place in the matter of usury. To the framework question—Is the lending of money at interest to Gentiles permitted?—there was a common response. True, some opinions in the Talmud forbade it; however, it was inconceivable that Jews should be condemned to live in the Diaspora, pressed into the role of lenders, and forbidden to earn their living from this profession.54 The Tosafists moved from there to justify a wide range of specific financial arrangements practiced by members of the Ashkenazic community. The Talmudists of other cultures studiously refrained from following suit. R. Shemu’el ha-Sardi (of Cerdaigne) asked Naḥmanides in Gerona: On what basis do Jews rely on Rava’s opinion in the Talmud and employ one type of mortgage to avoid the usury injunction, when it seems clear that the talmudic holding is against this position? Naḥmanides replied in (p.274) astonishment: Jews are openly taking interest from their co-religionists, and you are bothered that they conduct themselves in some business dealings in line with opinion ‘A’ in the Talmud when it seems that the ruling is in favor of opinion ‘B’!55

Not only did the Catalonian and Spanish scholars not justify the practices of their communities, they declined even to cite the justifications advanced by the Tosafists. The school of Naḥmanides and his disciples, Rashba, Ritva, Rah, and Ran, constituted the second stage of the dialectical revolution in halakhah. The first stage was Rabbenu Tam and Ri, the second, the Spanish-Catalonian school. The works of Naḥmanides and his disciples invariably open with the problems raised by the Tosafists, present the tosafist solutions, and proceed either to amplify them or suggest new ones. However, when it comes to questions of communal practice, these works systematically refrain from reproducing the solutions of the Tosafists. Their authors embraced the method of the Tosafists, refined their thought, and gave it its most sophisticated expression. They fully acknowledged their debt and proclaimed that ‘They [the Tosafists] are the teachers, they are the instructors, and they are the revealers of all hidden things.’56 However, no hidden halakhic insights were to be found, to their thinking, in the habitual religious practice of the people.

To be sure, there is a tendency among the Tosafists to justify communal practice in other areas too, as in the time of the evening prayers or clapping (hashma’at kol) on the holidays—certainly more than is found among Provençal scholars or those of the Spanish-Catalonian school.57 Ashkenaz did have a more positive communal self-image than did other cultures. However, one must be careful not to exaggerate its extent or the scope of these occasional justifications. One must equally never forget that implicit in the new and ever-expanding norms of the Tosafists was a vast criticism of the practice of their contemporaries and even their revered forefathers. The inclination that we find among the Tosafists in these other fields does not differ substantively from that of Rashi. He, too, occasionally defended a widespread practice, and his pupils even report:58 (p.275)

‘Religious Law and Change’ Revisited

If a Jew received from a Gentile a present [of mulberry wine, to which grape wine was often added before drinking] and sent it on to another Jew, our teacher [i.e. Rashi] does not require [the second Jew] to check [whether or not the wine added was kosher] for Jews are not suspected [of being lax in this matter, and one may assume that the original recipient checked this out] for ‘all the community are holy, all of them’ [Num. 16: 3].

Yet at the same time Rashi’s sweeping interpretive enterprise dictated a major revision of established practice. We are familiar with the sifrut devei Rashi, a series of works of Rashi’s pupils, such as the Siddur Rashi, Maḥzor Vitry, and Sefer ha-Oreh—parts written at Rashi’s dictation, most based on the students’ own observations and inferences—that cover all of what would be now called ‘Oraḥ Ḥayyim’ and significant sections of ‘Yoreh De’ah’. What are these if not an attempt at the reconstruction of Jewish ritual? To us these works appear banal, but in their time they were anything but that. They appear wholly redundant to us because we take Rashi’s interpretation as a given. After all, this is the way we understood the sugya from the outset. (That is why most were not published until the late nineteenth and early twentieth century.) However, at the time, these works were transformative. Rashi’s disciples were only too well aware that his great commentary had far-reaching implications for proper religious practice and felt duty-bound to publicize them. It is difficult to imagine that they would have done so without his consent.

The major change in the attitude to religious praxis comes, as in so many other areas, with Rabbenu Tam and Ri. One suspects that the events—or their perception of the events—of 1096 played no small role in this transformation of perspective. They, however, systematically justified communal practices only in those areas that demanded major sacrifices and had elicited conduct that could only be characterized as supererogatory. I confess to being incautious in my formulations in ‘Religious Law and Change’. To be sure, I took care not to attribute this attitude to scholars of the eleventh century, including Rashi—though this was widely attributed to me—and carefully confined it to the Tosafists and to the Tosafists alone. However, I spoke of a general attitude on the part of these thinkers. I based my remarks on my researches in yein nesekh, usury, and martyrdom. What eluded me was that I had studied these topics precisely because the Jews were here subject to relentless pressure, and I had been interested in observing how law and praxis responded to powerful constraints. In yein nesekh and martyrdom, the Ashkenazic community acted (p.276) above and beyond the call of duty. In matters of ribbit its conduct was not supererogatory, but it maintained full compliance with that onerous injunction under progressively more trying circumstances and equally refused allowances which were not deemed authoritative.59 It was for this reason that the Tosafists defended the apparent ‘breaches’ in religious conduct. They systematically vindicated communal conduct so that it should never be thought that the centuries of sacrifice paid for the observance of yein nesekh and the abstention from taking interest from their fellow Jews had all been in vain, for all the while people had been drinking that despised and forbidden drink and had for centuries transgressed all the numerous injunctions against ribbit. The Tosafists thought and wrote as they did about martyrdom because they could never entertain the notion that the ‘holy ones’ (kedoshim) who had committed suicide rather than be touched by the ‘slush waters’ of the baptismal font were self-murderers. They also knew beyond all doubt that the parents who, before committing suicide, had slaughtered their children so that they might die as Jews and go to an eternal life, rather than be raised as Christians, live as idolaters, and suffer an eternal death, were not vile murderers who should be buried at the far end of the Jewish cemetery. They were the true children of the Patriarch. Like Abraham, they had been called to immolate their primordial instincts on the altar of God; unlike him, they had received no last-minute reprieve. They deserved, the Tosafists believed, burial with full honors, and their final resting place was deservedly in the ‘bosom of Abraham’.

Afterword

Pages 262–3

Adiel Schremer in ‘Shikul Da’at Hilkhati: “Pelugat ha-Re’ah” u-Meḥkar ha-Halakhah ha-Bikorti’, Diné Israel: Studies in Halacha and Jewish Law, 28 (2011), 138, n. 153, argues that from much the same numerous privilegia permitting Jews to sell meat to Gentiles, no less than to sell them wine, one sees that Gentiles were equally resentful of the laws of terefot (un-kosher meat). Terefot meant, in effect, that meat unfit for Jewish consumption was still good enough for Gentiles. Not surprisingly, then, Jews had to pay handsomely for the right to sell such meat to Christians.

Schremer’s point is well taken and one that I should have anticipated and neutralized in advance.

Both terefot and yein nesekh were resented by Gentiles, but not to the same extent and scarcely with the same intensity. Terefot was known to Gentiles; it was not regularly experienced by them. Few Gentiles witnessed or would have wanted to witness the rites of the Jewish (p.277) abbatoir, as the inspection of the lungs (bedikat ha-re’ah) and occasionally that of the intestines (benei me’ayim)—an odoriferous procedure. Gentiles could touch Jewish meat, handle it, and do with it whatever they wished, without any untoward halakhic effect. This was scarcely true of the ubiquitous wine. Jews refused every proffered cup, the symbol of hospitality and good fellowship. (The refusal of alcoholic drink is usually seen as a calculated insult.) If a Gentile so much as touched or poured any wine, that wine became unfit for Jews to drink. So long as the wine was in existence, a safe distance had to be kept between it and the Gentile. Nor can we tabulate the enormous bitterness that this engendered among those employed in Jewish homes, most of whom were Gentile (the Jewish community was too small to supply the number of hands necessary to run a home that had neither electricity nor plumbing). If a servant poured himself a drink from a pitcher, the entire pitcher was forbidden. If he failed to wash out the cup from which he drank—and before the existence of germs was known, this was usually the case—and someone then used the cup to draw wine from the cask, all the wine in the cask became forbidden. Human forgetfulness being what it is, such cases were frequent. In an age when corporal punishment was routinely practiced by masters upon servants and apprentices— and such rights continued well into the eighteenth century—many a servant was beaten for such lapses. Christian servants must have hated the yein nesekh injunction and shared their feelings with their co-religionists.

Moreover, the second central consideration is the willing, indeed, voluntary maintenance of the injunction. In terefot, there were no ready allowances waiting to be employed; in yein nesekh there were several. Jews could not have banished terefot from the law books; their religion demanded its observance. They could very well have abolished yein nesekh altogether or greatly restricted its scope. They did neither.

Notes:

(1) JT Pe’ah 7: 6; fo. 20c, in the Venice edition; col. 108 in the edition of the Academy of Hebrew Language (Jerusalem, 2001).

(2) As to the oft-cited remarks of R. Eizik Tirna (Yitsḥak mi-Tirnau) in his Sefer ha-Minhagim, ed. S. Y. Spitzer (Jerusalem, 1979), 2, about the permissibility of eating the fat of the rumen (ḥelev hakeres), they refer to custom, to its right to adjudicate between two different views in all areas of the halakhah, including that of issur ve-heter. On the controversy over the permissibility of eating the fat of the rumen, see Y. E. Zimmer, ’Olam ke-Minhago Noheg (Jerusalem, 1996), 250–61.

(3) Above, pp. 180, 185, 211.

(4) Teshuvot Maharaḥ Or Zarua’, ed. M. Avitan (Jerusalem, 2002), #174, p. 165, s.v. u-khe-divrei..

(5) ‘Can Halakhic Texts Talk History?’ (Chapter 7 above).

(6) Teshuvot Maharaḥ Or Zarua’, #174, p. 165, s.v. u-khe-divrei..

(7) e.g. ’Avodah Zarah 31b, s.v. ha-sholeaḥ; 55b, s.v. amar; 74b, s.v. de-havah..

(8) e.g. Tosfot R. Elḥanan ’al ’Avodah Zarah, ed. A. Y. Kreuzer (Jerusalem, 2003), 2a, s.v. laset ve-latet (p. 5); ibid. 15b, s.v. ein (p. 85).

(9) As in Yam shel Shelomoh, Bava Kamma (Prague, 1616–18), 8: 9.

(10) This has already been noted by J. Katz in ‘Ma’ariv bi-Zemano ve-she-lo bi-Zemano—Dugma le-Zikah bein Minhag, Halakhah ve-Ḥevrah’, Zion, 35 (1970), 47–9; reprinted in id., Halakhah ve-Kabbalah: Meḥkarim be-Toledot Dat Yisra’el ’al Medoreiha ve-Zikatah ha-Ḥevratit (Jerusalem, 1986), 187–8. English version in id., Divine Law in Human Hands: Case Studies in Halakhic Flexibility (Jerusalem, 1998), 107–9.

Ri’s remarks in Ḥagigah 22a, s.v. ke-m’an, are revelatory. The beraita had ruled that one could not include an ’am ha-arets in the birkat ha-zimmun (Berakhot 47b). The sharp religious and social split that existed in talmudic times between ḥaverim and ’amei ha-arets did not exist in the Middle Ages, certainly not in the small Ashkenazic communities. When called upon to reconcile this dictum with the popular practice of scholars and ignorant folk joining in one zimmun, R. Elḥanan invoked another talmudic passage (Ḥagigah 22a), which stated that one could treat ḥaverim and ’amei ha-arets in an equal manner to reduce resentment and social tensions (mi-shum eivah). Ri, however, did not like the tone of superiority implicit in the invocation of the Ḥagigah passage. He preferred to invoke the passage in Berakhot 16b that forbade religious presumptuousness—lo kol ha-rotseh litol et ha-shem yitol. No one nowadays should have the presumption to call himself a ‘scholar’ vis-à-vis his co-religionist, regardless of the latter’s level of knowledge. ‘Religious Law and Change’ Revisited‘Religious Law and Change’ RevisitedHe adds le-’inyan zeh because with respect to some other matters, such as exemption from taxes, the category of talmid ḥakham was still applicable.) Technically speaking R. Elḥanan’s answer is superior. The Talmud in Ḥagigah provides a specific allowance for erasing the line between learned and ignorant. The passage in Berakhot about religious presumptuousness is stated with regard to a totally different matter, keri’at shema’. One can use it by analogy only and by a broad analogy at that. R. Elḥanan’s colleague, R. Yehudah Sir Leon of Paris, sought the better of two worlds, by citing the tannaitic formulation in Ḥagigah ‘Religious Law and Change’ Revisitedrather than the amoraic one of eivah, a formulation that turned the meaning of the passage in Ḥagigah into something very much akin to Ri’s explanation. Tosfot Rabbenu Yehudah Sir Leon ’al Berakhot, ed. N. Sachs, ii (Jerusalem, 1972), 47b, s.v. amar rav huna. (To forfend misunderstanding, I should add a methodological note. R. Elḥanan’s position does not evidence elitism or contemporary tension. Noting a discrepancy between a talmudic dictum and popular practice, he cites another talmudic passage to solve the problem. That passage employs the phrase mi-shum eivah, which he simply reproduces. In Ri’s distant and superfluous analogy of keri’at shema’, we have a ‘measurable deflection’, which is entirely lacking in R. Elḥanan’s argument. R. Yehudah Sir Leon’s position is more difficult to assess. After all, he too but invokes a talmudic passage. To my eye, however, R. Yehudah’s citation is too elegantly apropos to be entirely unconscious. Opinions, however, could differ on the matter. Cf. D. Malkiel, Reconstructing Ashkenaz: The Human Face of Franco-German Jewry, 1000–1250 [Stanford, 2009], 177.).

(11) See my Ha-Yayin bi-Yemei ha-Beinayim—Yein Nesekh be-Ashkenaz: Perek be-Toledot ha-Halakhah be-Ashkenaz (Jerusalem, 2008), 169–320.

(12) ‘Minhag, Metsi’ut ve-Halakhah: Yein Nesekh, Nituaḥ le-Dugma’ (MA, Hebrew University, 1967)..

(13) ‘Pawnbroking: A Study in Ribbit and of the Halakhah in Exile’, Proceedings of the American Academy for Jewish Research, 38–9 (1971–2), 203–68. A much-amplified version of the study appears as Chapter 6 above. Halakhah, Kalkalah ve-Dimmuy ’Atsmi: Ha-Mashkona’ut bi-Yemei ha-Beinayim (Jerusalem, 1985) is a Hebrew version of the pawnbroking article but carries the analysis of Ashkenazic thought through the 13th century and, more to our purposes, treats in detail the contrasting developments in Provençal and Spanish thought. ‘Halakhah, Hermeneutics and Martyrdom in Ashkenaz’, Jewish Quarterly Review, 94 (2004), 77–108, 278–99. (This essay will appear in the second volume of this series.) B. Lau, ‘Ḥadash be-Ḥuts la-Arets: Le-Darkhei Hitmodedut ha-Poskim be-Mikrei Pa’ar bein Halakhah le-Metsi’ut’ (Ph.D. diss., Bar-Ilan University, 1997)..

(14) See Ha-Yayin bi-Yemei ha-Beinayim (above, n. 11), 185–9, 215–22, 261–6, 298–303, 353–4; ‘Halakhah, Hermeneutics and Martyrdom’, 85–96.

(15) Tosafot, Megillah 19b, s.v. ’al; Niddah 20a, s.v. pali; Or Zarua’, i (Zhitomir, 1862), #542: ‘Religious Law and Change’ RevisitedSee M. Z. Bat-Yehoudah, Les Encres noires au Moyen Age (Paris, 1983), 103, n. 16, 117–21.

(16) Sefer Ha-Yashar, Ḥelek ha-Ḥiddushim, ed. S. S. Schlesinger (Jerusalem, 1955), #449 (pp. 267–8); Ḥullin 47a, Rashi, s.v. afilu; Tosafot, 46b, s.v. heinu (end).

(17) Or Zarua’, i, Ḥullin, #411, fo. 112b (end). See Sefer Ravyah ’al Ḥullin, ed. D. Deblitski (Jerusalem, 1976), #1089; Sefer Ravyah, ed. D. Deblitski (Benei Berak, 2005), iv, #1069. (Rabbenu Gershom’s allowance was his final position on this question. Initially he forbade such a lesion, then he began to have doubts, and finally he allowed it. See Ma’aseh ha-Ge’onim, ed. A. Epstein [Berlin, 1910], 82, and MS Oxford, Bodley 566, fo. 18a. See also the language of Rabbenu Gershom cited in Teshuvot u-Fesakin me’et Ḥakhmei Ashkenaz ve-Tsarfat, ed. E. Kupfer [Jerusalem, 1973], 1–2.).

(18) Patrologia Latina, ed. J. P. Migne, vol. civ, p. 826; Agobard of Lyons, Opera Omnia; L. van Acker, ed., Corpus Christianorum, Continuatio Medievalis 52 (Brepols, 1981), 193; J. Aronius, Regesten zur Geschichte der Juden im Fränkischen und Deutschen Reiche bis zum Jahre 1273 (Berlin, 1902), 90; R. Hoeniger, ‘Zur Geschichte der Juden Deutschlands im Mittelalter’, Zeitschrift für die Geschichte der Juden in Deutschland, 1 (1887), 141; S. Grayzel, The Church and the Jews in the XIIIth Century, revised edn. (New York, 1966), 73, 127–8. For the later Middle Ages, see G. Mentgen, Studien zur Geschichte der Juden im mittelalterlichen Elsaß, Forschungen zur Geschichte der Juden 2 (Hanover, 1995), 560, n. 612.

(19) See my Yeinam: Saḥar be-Yeinam shel Goyim (Tel Aviv, 2003), 31–90.

(20) See the extensive discussion in Yeinam, 104–21, and J. Katz’s discussion in Bein Yehudim le-Goyim (Jerusalem, 1960), 55–6. (The passage is found in the English version of that work entitled Exclusiveness and Tolerance [Oxford, 1961], 46–7.).

(21) Maimonides, ‘Hilkhot Ma’akhalot Asurot’, 11: 10. Mordekhai, ’Avodah Zarah, #841, Vilna edn., fo. 43b (top). The printed text is confirmed by numerous manuscripts of the Mordekhai, including what is far and away the best one, MS Budapest, National Museum 2o 1, fo. 234 (bottom).

(22) Or Zarua’, iv (Jerusalem, 1890), Avodah Zarah, #189. R. Ḥayyim Or Zarua’, Piskei Or Zarua, in Shitat ha-Kadmonim ’al ’Avodah Zarah, ed. M. Y. H. Blau (New York, 1991), iii. 289, #74. Haggahot Asheri, ’Avodah Zarah, 2: 12. (I have corrected the name of his teacher found in our text of the Or Zarua’ on the basis of the citation in the Haggahot Asheri.) I should add that if something is composed in equal measure of wine, honey, and spices, or has sizeable quantities of these ingredients, it constitutes a new product known as inomlin (’Avodah Zarah 30a) and is not subject to yein nesekh. At bar here is either wine with a trivial amount of honey or a wine laced with spices and honey. The product is clearly wine and is viewed as such—wine with an added sweetness and tang.

(23) Hypocras: Le Mesnagier de Paris, ed. G. E. Brereton and J. M. Ferrier (Paris, 1994), 776–8; H. E. Sigerist, ed., The Earliest Printed Book on Wine, by Arnold of Villanova (New York, 1943), 34–44; S. Pegge, ed., The Forme of Cury: A Roll of Ancient English Cookery, compiled about A.D. 1390, by the Master-Cooks of King Richard II (London, 1780), 86–7; Olivier de Serres, Le Théâtre d’agriculture et mesnage des champs, ii (Paris, 1804–5), 613–14; reprinted (Paris, 1996), 1168–9. On hiding the taste of spoilage: J. Strayer, ed., Dictionary of the Middle Ages, vi (New York, 1985), s.v. ‘Honey’, p. 28. B. Pferschy, ‘Weinfälschung im Mittelalter’, in Fälschungen im Mittelalter, Proceedings of the International Congress of Monumenta Germaniae Historica, Munich, 16–17 Sept. 1986, v (Hanover, 1988), 670–6.

(24) See below, n. 40.

(25) Jerusalem, National Library of Israel, Goldschmidt 4to 6697 (Min ha-Genazim, #3) fo. 10a. Aḥi in medieval correspondence may mean either friend or relative.

(26) B. Laurioux, Manger au Moyen Age (Paris, 2002), 31. See also B. S. Rose, ‘A Medieval Staple: Verjuice in France and England’, Oxford Symposium on Food and Cookery 1989 (Oxford, 1990), 205–12. German recipes differ in no way from the French, see M. W. Adamson, ‘Medieval Germany’, in M. W. Adamson, ed., Regional Cuisines of Medieval Europe: A Book of Essays (New York and London, 2002), 163, 185. On the older origins of many of the recipes found in the Taillevant, see B. Laurioux and O. Redon, ‘Emergence d’une cuisine médiévale: Le Témoignage des livres’, in H. Bresc, ed., Matériaux pour l’histoire des cadres de vie dans l’Europe occidentale (1050–1250) (Nice, 1984) 97–9.

(27) J.-P. Devroey, L’Éclair d’un bonheur (Paris, 1989), 83, 146–7.

(28) This was first argued by Y. Renouard in ‘Le Vin vieux au Moyen Age’, Annales du Midi, 76 (1964), 447–55; reprinted in id., Études d’histoire médiévale, 2 vols. (Paris, 1960), 249–56. It ran against the considerable authority of F. von Bassermann-Jordan (Geschichte des Weinbaus, 3 vols., 2nd edn. [Frankfurt am Main, 1923], 471–2), whose views were to be seconded in G. Schreiber, Deutsche Weingeschichte. Der Wein in Volksleben, Kult und Wirtschaft, Werken und Wohnen. Volkskundliche Untersuchungen im Rheinland 13 (Cologne, 1980), 295–6. However, Renouard’s views have won general acceptance. See e.g. H.-J. Schmitz, Faktoren der Preisbildung für Getreide und Wein in der Zeit von 800 bis 1500, Quellen und Forschungen zur Agrargeschichte 20 (Stuttgart, 1968), 62, 67, 70; M. Lachiver, Vin, vigne et vignerons en région parisienne du XVIIe au XIXe siècle (Pontoise, 1982), 114–15; R. Matheus and M. Matheus, ‘“Je älter der Rheinwein, je mehr Firne bekömmt er, welches dem Kenner am meisten gefällt”: Beobachtungen zum Geschmackswandel im Mittelalter und in der Frühen Neuzeit’, Mainzer Zeitschrift, 96–7 (2002) (Festschrift Schütz), 73–4; R. van Uytven, ‘Der Geschmack am Wein im Mittelalter’, in M. Matheus, ed., Weinproduktion und Weinkonsum im Mittelalter, Geschichtliche Landeskunde 51 (Stuttgart, 2005), 124–5; see though D. Kerber, ‘Der Weinbau im mittelalterlichen Koblenz’, in M. Matheus, ed., Weinbau zwischen Maas und Rhein in der Antike und im Mittelalter (Mainz, 1997), 279. For the few wines that constituted the exceptions to this rule, see M. Lachiver, Vins, vignes et vignerons: Histoire du vignoble français (Paris, 1988), 77; J. Verdon, Boire au Moyen Age (Paris, 2002), 152–5.

(29) See the remarks of R. Yitsḥak b. Perets of Northampton cited by R. Ya’akov Ḥazan in his Ets Ḥayyim: Halakhot, Pesakim u-Minhagim, ed. Y. Braude (Jerusalem, 1962), i. 196.

(30) Ha-Yayin bi-Yemei ha-Beinayim (above, n. 11), 82–3.

(31) ‘Old wine’ meant wine over a year old; see Renouard’s article cited above, n. 28. In medieval Hebrew sources the terminology is flexible. ‘New wine’ generally meant wine that had not yet fermented or had just fermented, what was called ‘must’ in Middle High German (yayin ḥadash shekorin most); ‘old wine’ denoted wine less than a year old. Last year’s wine was often called just that—yayin de-eshtakad. See ibid. 85, n. 264.

(32) Devroey, L’Éclair (above, n. 27), 117–18.

(33) ’Avodah Zarah 29b–30a.

(34) Or Zarua’, #152. On this commentary–code, see ‘Can Halakhic Texts Talk History?’ (Chapter 7 above).

(35) Sefer ha-Yashar, Teshuvot (Berlin, 1892), ##45: 1, 46: 3, 47: 4, 48: 4. On the date see A. Reiner, ‘Rabbenu Tam u-Venei Doro: Kesharim, Hashpa’ot ve-Darkhei Limmud’ (Ph.D. diss., Hebrew University, 2002), 284–6.

(36) Ha-Yayin bi-Yemei ha-Beinayim (above, n. 11), 376–80.

(37) Sanhedrin 4: 7; fo. 22b in the Venice edition; col. 1287 in the edition of the Academy of Hebrew Language (Jerusalem, 2001); Sefer Mitsvot Gadol, ed. E. Schlesinger (Jerusalem, 1989), 298, Injunction 148 cited in Haggahot Maimuniyot (with regard to this specific problem), ‘Hilkhot Ma’akhalot Asurot’, 12: 4, n. 3.

(38) The problem was discussed and differing opinions offered by the widest range of scholars; see Ha-Yayin bi-Yemei ha-Beinayim (above, n. 11), 83, n. 253.

(39) Fo. 34b. The construction was based on what he took to be its context in the Yerushalmi. See Ha-Yayin bi-Yemei ha-Beinayim (above, n. 11), 365. No one by the name of Elyakim ha-Kohen of Friedburg is mentioned either in E. E. Urbach’s Ba’alei ha-Tosafot, revised edn. (Jerusalem, 1980), or in I. Elbogen, A. Freimann, and H. Tyckocinski, eds., Germania Judaica, i (Breslau, 1917–34; 2nd edn. Tübingen, 1963). Simcha Emanuel informs me that to the best of his knowledge this name appears nowhere else in the literature of the period.

(40) See Entsiklopediyah Talmudit, x (Jerusalem, 1961), s.v. hefsed merubbeh, pp. 32–41.

(41) See Ha-Yayin bi-Yemei ha-Beinayim (above, n. 11), 277–8.

(42) Ibid. 99–100.

(43) N. Elias, The Civilizing Process (Oxford and Cambridge, Mass., 1993), 51, 55.

(44) Orḥot Ḥayyim, Ḥelek Sheni, p. 255. R. Ya’akov b. Mosheh of Bagnols in his Issur ve-Heter (in Shitat Kadmonim ’al Ḥullin, ed. M. Y. H. Blau [New York, 1989], 129) contends that R. Zeraḥyah allowed nitsok only in cases of hefsed merubbeh. The latter’s words are cited in Ba’alei Asufot, MS Moscow, RSL, Günzburg 73, fo. 61a ‘Religious Law and Change’ Revisited‘Religious Law and Change’ RevisitedAs to Sefer Ravyah ’al ’Avodah Zarah, ed. D. Deblitski (Benei Berak, 1976), #1069 (p. 62); Sefer Ravyah, ed. D. Deblitski (Benei Berak, 2005), iv, #1069 (p. 41); and Teshuvot ha-Rosh, ed. Y. S. Yudlov (Jerusalem, 1994), 19: 1, see my remarks in Ha-Yayin bi-Yemei ha-Beinayim (above, n. 11), 366, n. 86.

(45) Sefer ha-Yashar, Teshuvot, #76: 4; Sefer ha-Yashar, Ḥelek ha-Ḥiddushim, #719; Teshuvot Ḥakhmei Tsarfat ve-lotir, ed. J. Müller (Vienna, 1881), #1; Tosfot R. Yehudah mi-Paris in Shitat Kadmonim ’al ’Avodah Zarah, ed. M. Y. H. Blau (New York, 1969), ii, 72b, s.v. amar (p. 346); Ravyah, p. 90; Or Zarua’, #215.

(46) Ha-Yayin bi-Yemei ha-Beinayim (above, n. 11), 303–4.

(47) Teshuvot ha-Rambam, ed. J. Blau (Jerusalem, 1960), ii, #269. Menaḥem Ben-Sasson has drawn my attention to J. Blau, ‘Etslenu be-al-Andalus, Etslenu ba-Magreb’, Mesorot, 7 (1953), 43–50.

(48) See the passage in MS Paris, Bibliothèque Nationale 1391 published by I. Levi in ‘Un recueil de[s] consultations de[s] rabbins de la France méridionale’, Revue des études juives, 39 (1899), 237:

‘Religious Law and Change’ Revisited

And I recall, in my childhood they used to sell wine in our houses and Spanish Jewish merchants would come and buy wine from us and fill large vessels [with it]. Subsequently, they would take honey and put [a quantity] the size of an olive in each vessel. I asked them why they did this. They replied so that the wine would not become forbidden by Gentile touch. Simcha Emanuel drew my attention to this passage.

(49) Tosafot, ’Avodah Zarah, 57b, s.v. le-apukei; Tosfot R. Yehudah mi-Paris ’al ’Avodah Zarah, 57b, s.v. le-apukei. For a full discussion of the issue, see Yeinam (above, n. 19), 105–15.

(50) Spain: Avraham b. Natan ha-Yarḥi, Sefer ha-Manhig, ed. Y. Rafael (Jerusalem, 1961), 660. Italy: K. Schlesinger, ‘Maḥloket be-’Inyanei “Setam Yeinam” be-Italyah bi-Shenat Shasah (365)’, in B. Kurzweil, ed., Yuval Shai: Ma’marim li-Khevod Shemu’el Yosef ’Agnon be-Hagi’o le-Sevah be-Yom Tet be-Av Tashyaḥ (718) (Ramat Gan, 1958), 281–348; G. Kohen, ‘Le-Toledot ha-Pulmus ’al Setam Yeinam be-Italyah u-Mekorotav’, Sinai, 39 (1975), 62–90. Moravia: She’elot u-Teshuvot Ramah, ed. A. Ziv (New York, 1970), #126; see also the Haggah of R. Shelomoh Luria (Rashal) to the Tur cited in R. Yo’el Sirkes, Bayit Ḥadash, ‘Yoreh De’ah’, #114, s.v. kol.

(51) ‘Religious Law and Change’ (Chapter 9 above).

(52) Ibid. A full discussion of the sources and their analysis can be found in ‘Halakhah, Hermeneutics and Martyrdom’ (above, n. 13).

(53) Bein Yehudim le-Goyim (above, n. 20), 35–45. In the English version of that work, entitled Exclusiveness and Tolerance (above, n. 20), the passage is found on pp. 24-36.

(54) See ‘The Jewish Attitude to Usury’ (Chapter 5 above).

(55) Teshuvot Ramban, ed. C. B. Chavel (Jerusalem, 1975), #42.

(56) Ḥiddushei Ramban le-Massekhet Makkot ve-Dinei Garmi, ed. M. Hershler (Jerusalem, 1975), 106: hem ha-morim, hem ha-melammedim, hem ha-megalim kol nitman..

(57) Katz, ‘Ma’ariv bi-Zemano’ (above, n. 10); Tosafot, Betsah 30a, s.v. tenan..

(58) Ma’aseh ha-Ge’onim, p. 83, and in the parallel passages cited by I. S. Elfenbein in his edition of Teshuvot Rashi (New York, 1943), #163. The editors of the Ma’aseh ha-Ge’onim drew here upon a lost work entitled Likkutei Rashbam as evidenced by MS Cambridge, Add. 2580, fo. 106b, gloss. If our passage is typical, Rashbam, no less than R. Shemayah and several anonymous pupils, engaged in disseminating Rashi’s rulings.

(59) See Chapter 6 above, pp. 126–8, 133–4, that chapter’s Appendix, note 182, and Chapter 9 above, pp. 253–4 and n. 27 ad loc.