The Representation of the Land of Israel in Joseph Karo’s Shulhan ‘Arukh

Introduction

Joseph Karo’s (1488–1575) legal oeuvre marks a transition between the Jewish Middle Ages and early modernity. Of his legal works, two are particularly consequential: the analytic magnum opus Beit Yosef (“House of Joseph”), presented in the form of a commentary on Jacob ben Asher’s fourteenth-century lawbook Arba‘ah Turim (“Four Rows,” known as “Tur”), and its companion, Shulhan Arukh (“Prepared Table”). Karo composed Beit Yosef over an approximately twenty-year period (1522–1547, with later revisions), and its four parts were printed in Italy between 1550 and 1559 Shulhan Arukh was first published in Italy in 1565 In a brief introduction, Karo describes Shulhan Arukh as a lawbook that collects Beit Yosef’s rulings, presenting them “in a concise manner.” Shulhan Arukh is also to serve as a Jewish law aide mémoire, the content of which both seasoned scholars and students would come to know by heart through constant monthly study and repetition. While the story of Shulhan Arukh’s composition and reception is incomplete without reference to Moses Isserles’s (1530–1572) glosses and their early printing as part of the work (beginning in 1574), this presentation focuses on Karo’s own text.

Karo’s brief introduction to Shulhan Arukh does not fully account for how he composed it. Even Shulhan Arukh’s early readers recognized the lawbook’s clear indebtedness to the language of Arba‘ah Turim (especially) as well as that of Maimonides’s Mishneh Torah (twelfth century). Source-criticism reveals that at times, Karo introduces novel ideas into sequences of language he takes from these predecessors, especially Arba‘ah Turim. Karo’s literary interventions may be based on legal sources Arba‘ah Turim neglected or was unaware of, or they may be his own original formulations. Ongoing research demonstrates to date that there are demonstrable thematic patterns to two sets of these interventions, one of which is the subject of this presentation: Karo’s literary interventions touching on the land of Israel. Identifications of other literary interventions and their themes is a desideratum. Broader study of these thematic patterns beyond the “four walls” of Karo’s lawbooks may further illuminate his thought, public roles, and Safedian context.

Source 1 Translation

Shulhan Arukh Orach Hayyim 151.11

If at the time the synagogue was built, the community made a condition allowing them to use it as well for a non-sacred purpose, it is permitted to use it thusly when it is in ruins. But a condition is ineffective when the synagogue is habitable. And even when the synagogue is in ruins, a condition is ineffective to allow for a disgraceful use, such as planting and public accountings. These principles apply to synagogues outside the land of Israel, but no condition at all is effective as to synagogues in the land of Israel.

Tur Orach Hayyim 151

And if at the time the synagogue was built the community made a condition allowing them to use it as well for a non-sacred purpose, it is permitted to use it thusly when it is in ruins. But a condition is ineffective when the synagogue is habitable. And even when it is in ruins, a condition is ineffective to allow for a disgraceful use, such as planting and public accountings.

Beit Yosef to Tur Orach Hayyim 151

And the Tosafists wrote¹ that this principle “synagogues are made on condition” is only effective for those synagogues in Babylonia, for at the time of the redeemer’s coming (may it be speedily in our days), their sanctity will be canceled. But a condition is ineffective for those synagogues in the land of Israel, the sanctity of which endures forever.

Source 2 Translation

Shulhan Arukh Orach Hayyim 248.4

It is forbidden for Jewish travelers to depart three days prior to the Sabbath (i.e., Wednesday–Friday) as part of a desert caravan led by non-Jews. Everyone involved knows that the Jewish travelers will need to desecrate the Sabbath because, on account of the danger to life entailed by a desert journey, they will not be able to delay their journey and remain by themselves in the desert on the Sabbath. They are permitted to depart on Sunday, Monday, and Tuesday, and if thereafter a situation of danger emerges and the traveler must desecrate the Sabbath on account of the obligation of saving life, this is permitted and there legally is no Sabbath desecration. And the one who ascends to the land of Israel, if he chances upon a caravan even on Friday, since this is a matter of divine commandment, he may depart… .

Tur Orach Hayyim 248

One does not set sail on a ship within three days of the Sabbath. This rule applies to a discretionary matter, but setting sail is permitted as to a matter of divine commandment… And on the subject of “matter of divine commandment,” Rabbenu Tam² interpreted that to mean that wherever a person goes, be it for commerce, or to visit his friend—it is all considered to be a matter of divine commandment. Only traveling for the sake of traveling is considered to be a discretionary matter.

Beit Yosef to Tur Orach Hayyim 248

And thus did the Rivash³ write in a responsum (chapter 101 that this which our rabbi (=the Tur) wrote in the name of Rabbenu Tam is an extreme leniency. And he wrote that, nevertheless, ascending to the land of Israel is certainly a matter of divine commandment… .

Source 3 Translation

Shulhan Arukh Orach Hayyim 269

They are accustomed to sanctify the Sabbath in the synagogue.⁴ The one who sanctifies should not taste of the sanctification wine, but should give it to a child, for the sanctification should only be recited in the place of the Friday evening Sabbath meal. And originally, the practice of reciting the sanctification in the synagogue was only instituted on account of guests who ate and drank in the synagogue, to fulfill for them their obligation to sanctify the Sabbath prior to eating the Friday night meal. And now, the reasoning of those places that have been accustomed to recite the sanctification in the synagogue is that the enactment is not nullified even though guests do not eat in the synagogue. But it is better to institute the practice of not sanctifying in the synagogue, which is the practice of the land of Israel.

Tur Orach Hayyim 269

And they are accustomed in all places that the prayer leader sanctifies the Sabbath on Friday nights in the synagogue. And I am astonished: How has this practice spread?… for they only instituted the recitation of the Friday night sanctification in the synagogue on account of guests. And since there are no longer any guests who eat meals in the synagogue, it is appropriate not to sanctify the Sabbath there. And had I the power I would nullify this practice.

Source 4 Translation

Shulhan Arukh Orach Hayyim 306.11

It is permitted to buy a house in the land of Israel from a non-Jew on the Sabbath, and the non-Jew signs and brings the document to the non-Jewish courts.

Beit Yosef to Tur Orach Hayyim 306

It is written in the hagahot Asheri⁵ in chapter 2 of Babylonian Talmud tractate Mo‘ed Katan (paragraph 18 in the name of Or Zaru‘a⁶: “It is permitted to buy houses from a non-Jew on the Sabbath. How does one do it? The Jew shows the non-Jew wallets of dinarin (monies) and the non-Jew signs and brings the document to the courts.” End quote. And it appears that Or Zaru‘a is dealing with buying a house in the land of land of Israel, and as we say in the first chapter of Babylonian Talmud tractate Gittin (8b) and at the end of the chapter the name of which is “is greater” (Babylonian Talmud tractate Bava Kamma chapter 7 (BK 80b).

Hagahot Asheri, Mo‘ed Katan 2.18

It is permitted to buy houses from non-Jews on the Sabbath. How does he do it? The Jew shows the non-Jew a wallet of dinarim (coins) and the non-Jew signs and brings the document to the courts. From a’’z (Or Zaru‘a).

Or Zar‘ua 2.85

And there is another proof, for we say in the first chapter of Babylonian Talmud tractate Gittin (8b) that the one who buys a field in Syria is like one who buys a field in the outskirts of Jerusalem. The Jew tells the idolater, and he writes a bill of sale for him even on the Sabbath. For even though telling an idolater on the Sabbath to perform a labor for a Jew is a violation of Sabbath “rest,”⁷ the rabbis did not issue a decree prohibiting this on account of encouraging settlement of the land of Israel.

Source 5 Translation

Shulhan Arukh Orach Hayyim 566.4

They are accustomed to increase the number of penitential prayers in the blessing “Forgive us.”⁸ And there are those who are not accustomed to recite penitential prayers until after the conclusion of the eighteen blessings,⁹ and thus did the ancients (rabbis) institute in the land of Israel, which is the correct practice.

Tur Orach Hayyim 566

And they are accustomed to increase the number of penitential prayers in the blessing “Forgive us.” And the Ri¹⁰ explained that they rely on that which we say¹¹ “And if he wishes to add petitions at the end of each petitionary blessing of the Amidah reflecting that blessing, he may do so.¹² But he must begin with a petition reflecting that blessing, and afterwards he may lengthen it with words of appeasement of God and pleas as he wishes, whether in private or public. And that which Rabbi Yehoshua ben Levi said,¹³ that one can say petitions after his Amidah prayer even like the order of the Yom Kippur prayer service,¹⁴ does not exclude adding personal petitions at the end of each blessing if he began with a petition reflecting that blessing. But rather, after the Amidah prayer, he can begin saying petitions however he wishes—which is not the case in the middle of the Amidah prayer. And there are places in which they are accustomed to recite petitions after the conclusion of the eighteen blessings. And thus Rav Amram¹⁵ wrote, that one may recite petitions in “Forgive us.” And thus did Rav Natronai¹⁶ say: “It is the practice of the two academies¹⁷ that in the morning of a public fast they recite seven petitionary prayers and three in the afternoon. And if there is sufficient time in the afternoon, they recite five.” And thus did Rav Sar Shalom¹⁸ write: “It is not our practice on a public fast day to recite petitionary prayers after the eighteen blessings (the Amidah), but rather in ‘Forgive us.’”

Beit Yosef to Tur Orach Hayyim 566

And they are accustomed to increase the number of petitionary prayers in the blessing “Forgive us.” And the Ri explained that they rely on that which we say: “And if he wishes to add petitions at the end of each petitionary blessing of the Amidah reflecting that blessing, he may do so,” etc. And the Tosafists wrote in the first chapter of Babylonian Talmud tractate Avodah Zarah (8a, s.v. “im ba”) that Rabbi Yehoshua ben Levi’s statement that one can say petitions after his Amidah prayer even like the order of the Yom Kippur prayer service means what it says, but that he may not add petitionary prayers in the middle of his Amidah prayer. And continue the Tosafists, one can say that our practice now on fast days to lengthen the Amidah prayer with scriptural verses of mercy and petitionary prayers in the blessing “Forgive us” is due a community’s being different (i.e., a community is permitted to take liturgical liberties that an individual may not). End quote. And it appears that the Tosafists’ reasoning is that they understand that which we say: “‘And if he wishes to add petitions at the end of each petitionary blessing of the Amidah reflecting that blessing, he may do so’ means adding a few things, but not to go on at length to the extent that we do.

Source 6 Translation

Shulhan Arukh Orach Hayyim 576.11

And similarly, over rain. How so? Were the rains to be overwhelming to the point of causing anguish, these affected people may pray about them (for the rains to stop), for there is no greater anguish than this, that houses collapse and people’s homes turn out to be their graves. And in the land of Israel one does not pray for the cessation of excessive rains, for it is a hilly land, their houses are built of stone, and excessive rain is a goodness for them. And one does not fast to cause a goodness to pass away. But now in Safed there are house collapses on account of rain, and one prays about them (for a cessation of the excessive rain).

Tur Orach Hayyim 577

One prays concerning any trouble, that it not come upon them, except for excessive rain, since one does not pray for the cessation of an excess of goodness. And this applies to a hilly land that requires much rain. But a sunken land for which excessive rain is a hardship and in which, moreover, it causes house collapses, one prays for the rains to stop since there is no greater anguish.

Source 7 Translation

Shulhan Arukh Yor’eh De‘ah 251.3 (excerpt)

And the poor of one’s house take precedence over the poor of one’s town, and the poor of one’s town take precedence over the poor of another town. And the inhabitants of the land of Israel take precedence over the inhabitants of outside the land.

Tur Yor’eh De‘ah 251

And the poor of one’s house take precedence over the poor of one’s town, and the poor of one’s town take precedence over the poor of another town.

Beit Yosef to Tur Yor’eh De‘ah 251

It was taught in the Sifrei¹⁹ (see piska 63): your brother (Deuteronomy 15:7)—this is your brother from your father. One of your brothers this is your brother from your mother. This teaches that your brother from your father takes precedence over your brother from your mother. In one of your gates—the people of your town take precedence over the people of another town. In your land—the inhabitants of the land of Israel take precedence over the inhabitants of outside the land. And the inhabitants of outside the land, from where do we derive that they should be given charity? Scripture says, which the Lord your God gives you—this comes to include every place where Jews live. End quote. And the SeMaG²⁰ wrote this tannaitic passage into his lawbook (there 207a), as did the Mordecai²¹ in his legal notes to the first chapter of (Babylonian Talmud tractate) Bava Batra (paragraph 503).

Source 8 Translation

Shulhan Arukh Yo’reh De‘ah 310.3

A non-expert who looked over a firstborn animal which was then slaughtered erroneously on his say-so, the animal is buried and the non-expert compensates the owner from his own resources. How much should he pay as compensation? If he is in the land of Israel, he should pay half the value of a large animal and a quarter of the value of a small animal. And outside the land, he should pay half the value of either a large or small animal. And today, in which most fields even in the land of Israel are not in the possession of Jews, it is permitted to raise small cattle even in the land of Israel. Therefore, even in the land of Israel he pays half the animal’s value as compensation.

Tur Yo’reh De‘ah 310

A non-expert who looked over a firstborn animal which was then slaughtered erroneously on his say-so, the animal is buried and the non-expert compensates the owner. And how much should he pay as compensation? If he is in the land of Israel, he should pay half the value of a large animal and a quarter of the value of a small animal. And outside the land, he should pay half the value of either a large or small animal.

Source 9 Translation

Shulhan Arukh Even Haezer 45.2

Today, the entire kingdom of the land of Israel, Egypt, and Turkey are not accustomed to be concerned about nuptial gifts, except in Constantinople, where they are concerned about them.

Tur Even Haezer 45

One is concerned about nuptial gifts. And Rashi²² explained that if the prospective groom settled marriage terms with the prospective bride initially and sent her nuptial gifts afterwards with witnesses, we are concerned that perhaps he sent them to her for the sake of legal betrothal, and she will require a bill of divorce to terminate the relationship. Therefore, if most of the town are accustomed to betroth and send nuptial gifts afterwards, we are concerned that they sent the gifts for the sake of legal betrothal. But if most of the town are accustomed to send nuptial gifts first and legally betroth afterwards, we are not concerned… and according to Rashi’s explanation, we are concerned, therefore it is good to be wary… to be stringent. And thus was the conclusion of my lord, my father, the Rosh, z’’l.²³

Source 10 Translation

Shulhan Arukh Even Haezer 142.1

An agent who brought a bill of divorce from one place to another outside the land of Israel, or from the land of Israel to outside the land, or from outside the land to the land of Israel: if the agent was present at the time of the writing and signing of the bill of divorce, he states before two valid witnesses, “It was written before me and before me it was signed.” Afterwards, he gives it to the wife in their presence and she is divorced by it. And this is so even if his witnesses are unknown to us … . and if the husband protests, we do not pay attention to him… . And similarly, an agent who brings a bill of divorce within the land of Israel and says, albeit unnecessarily, “It was written before me and before me it was signed,” we do not pay attention to the husband should he protest… . And why did the sages require saying “Before me it was written, and before me it was signed” outside the land of Israel? In order that the woman not need to uphold the validity of the bill of divorce were the husband to object, because witnesses are not necessarily available to uphold a bill of divorce’s validity from one place to another outside the land. And it appears to me that today, even in the land of Israel, the agent must say: “Before me it was written, before me it was signed.”

Tur Even Haezer 142

One who brings a bill of divorce from a province of the sea and the husband made him an agent to bring it to his wife, the agent must stand by the bill’s writing and signing and say: “Before me it was written and before me it was signed.” But an agent from the land of Israel need not say this. And the reason is that witnesses are not available to uphold the validity of the bill of divorce outside the land and if she remarries through it today or tomorrow the husband may come and protest and she will be unable to find witnesses to uphold it. Therefore the sages instituted that she not be divorced by it until the agent says “Before me it was written and before me it was signed,” and they believe him, and then are not troubled by the husband’s protest. But in the land of Israel, where she can uphold it, she may remarry through it even though the agent did not say “Before me it was written and before me it was signed”… . but also in the land of Israel, if the agent says “Before me it was written and before me it was signed,” this declaration helps to push off the husband’s protest, even though it is unnecessary.

Source 11 Translation

Shulhan Arukh Hoshen Mishpat 30.2

Even though witnesses in monetary cases do not require intense cross-examination, their testimony is invalid if they contradict each other in their responses to inquiries and investigations. But if they contradict each other in their responses to examinations, their testimony stands. How? If one witness says: “X borrowed from Y in Nisan,” and the second says: “No, it was in Iyar,” or one says: “X borrowed from Y in Jerusalem,” and the second says: “No, in Lod,” their testimony is invalid.

Tur Hoshen Mishpat 30

And even though there is no need of intense cross-examination, if the witnesses in a monetary case contradicted each other in their responses to inquiries and investigations, their testimony is invalid:

But if they contradicted each other in their responses to examinations, their testimony stands. How? If one witness says: “X borrowed from Y in Nisan,” and the second says, “No, he borrowed from him in Iyar,” or if one said, “X borrowed from Y in such-and-such a place,” and the second said: “No, it was in such-and-such a place,” their testimony is invalid.

Source 12 Translation

Shulhan Arukh Hoshen Mishpat 409.1 

One does not raise small cattle in the land of Israel, because their way is to graze in others’ fields and their resulting damage is common. But one may raise them in Syria and in the deserts of the land of Israel. And today, when it is uncommon for Jews to have fields in the land of Israel, it seems that raising small cattle in the land of Israel is permitted.

Tur Hoshen Mishpat 409

The sages instituted that people should not raise small cattle is a place of fields and vineyards but rather in forests, because the way of small cattle is to graze in others’ fields and their resulting damage is common. It is even forbidden to raise small cattle in the house, and even if the beast is not his. And the sages were strict about this in order to prevent damage, for a person is forbidden to cause damage to his fellow. Nevertheless, the essential enactment was for the land of Israel, except that the gemara says that Babylonia is considered to be the land of Israel for this purpose. And there are those who say that we are drawn after Babylonia as to all of our practices, and thus for us, too, raising small cattle should be forbidden. But it seems that we are not drawn after Babylonia as to this. The reason that raising small cattle was forbidden in Babylonia was because most of the fields were in the possession of Jews. And since now this reason is inapplicable, raising small cattle is permitted.

Source 13 Translation

Shulhan Arukh Orach Hayyim 601

1 On the second day of Rosh Hashanah …²⁴ and we read from “And God tested Abraham” (Genesis 22:1) until the end of the portion, and the reader that concludes²⁵ reads in the same manner as on the previous day, concluding with Jeremiah (Jeremiah 31:1), “Thus says the Lord, found favor in the desert” through “Is Ephraim not a dear child to me” (Jeremiah 31:20). And on the evening after Rosh Hashanah, we divide²⁶ as on the evening after the Sabbath, except that we bless neither over the spices nor the flame.

2 Even in the land of Israel we observe Rosh Hashanah for two days.

Tur Orach Hayyim 601

On the second day of Rosh Hashanah we pray and sound the horn as on the first day. And we read in parashat Vayera²⁷ from “And God tested Abraham” (Genesis 22:1) until the end of the portion.²⁸ And the reader that concludes reads in the same manner as on the previous day, and concludes with Jeremiah, “Thus says the Lord, found favor in the desert” through “Is Ephraim not a dear child to me.” And on the evening after Rosh Hashanah, we divide as on the evening after the Sabbath, except that we bless neither over the spices nor the flame.

Beit Yosef to Tur Orach Hayyim 601

And the Rif²⁹ wrote (Betzah 3b): “And we learn from this that the people of the land of Israel must observe two days of Rosh Hashanah.” And the Rosh³⁰ wrote (Betzah chapter 1, paragraph 4 that the Rif’s student Rabbenu Ephraim³¹ disagreed with the Rif and wrote that this (i.e., the two-day observance in the land of Israel) applies at a time when they would sanctify the new moon each month by sight. But now, when we rely on the secret of intercalation (i.e., there is now a set calendar and the date of each new month is known in advance), the entire land of Israel has gone back to being a “house of meeting” (beit ha-va‘ad)³² who have no doubt about the sanctity of the day, and they should only observe Rosh Hashanah one day:

And the Ba‘al Hama’or³³ wrote (there) in accordance with Rabbenu Ephraim’s words. And he wrote further that so were they accustomed in the land of Israel during all the generations prior to us to observe Rosh Hoshanah for one day—until now, when “new ones who came there but lately”³⁴ from among the sages of Provence instituted the practice of observing two festival days on Rosh Hashanah following the Halakhot (“Laws”) of the Rif. And Ba‘al Hama’or brought a proof that originally, they only observed one day… .

And Maimonides³⁵ wrote in chapter 5 of the Laws of the Sanctification of the Month (paragraph 8 and in chapter 1 of the Laws of Festivals (paragraph 21 in accordance with the Rif’s words. And the Rav Hamagid³⁶ wrote (there) that there are those who disagree and who hold that Rosh Hashanah must be observed for only one day in the land of Israel. But the words of the Halakhot (the Rif) and of our rabbi (Maimonides) are the principal ones, and so are we accustomed today to observe two days of Rosh Hashanah even in the land of Israel. His (Rav Hamagid) language ends here:

Footnotes

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