Shiur #09: Surveying Previous Research On The Vilna Gaon’s Commentary And Its Conclusions
Thus far I have tried to clarify the nature of the Vilna Gaon's scholarship and halakhic approach, through an examination of several sources, taken primarily from the Gra's commentary to the Shulchan Arukh and Ma'aseh Rav. Over the course of this clarification I reached certain conclusions regarding the Gra's methodological approach, as well as his overall system of values. As you can well imagine, I am not the first person to address these matters, and also, my conclusions are based on only a small part of a vast amount of material. Therefore, before we conclude our examination of this chapter of the Gra's thought, I would like to turn our attention to earlier studies of these issues. Of course, this review will also be very brief.
I have two goals here. First, I would like to understand what about the Gra's approach impressed earlier scholars, and what set it apart in their eyes. Second, I wish to see whether the conclusions that we reached in the previous shiurim are confirmed by their findings.
The following discussion will based on the work of two authors:
1) Rabbi Yehuda Leib Maimon, a polymath, a leader of the Mizrachi movement (and even one of the signers of Israel's Declaration of Independence), a very great Torah scholar and prolific and gifted writer. His remarks concerning the issues at hand are found in his book, Toledot Ha-Gra (Life of the Gra) in the chapter, Ha-Gra ve-Horo'atav be-Halakha (The Gra and His Halakhic Rulings).
2) Rabbi Chaim Tchernowitz, who conducted a thorough investigation of halakhic literature through the ages. Writing under the pseudonym Rav-Zair, he authored a comprehensive work entitled Toledot ha-Posekim (The History of the Arbiters of Halakha), which includes also a detailed examination of the Gra's commentary to the Shulchan Arukh.
Since we mentioned Rabbi Maimon, it would be fitting to begin with a few remarks about his method. Rabbi Maimon studied in the Yeshivot of Lithuania, where he also absorbed the scholarly-religious atmosphere that was profoundly influenced by the personality of the Vilna Gaon. Out of a sense of mission, he devoted much of his time collecting oral traditions from the elder scholars of Lithuania, and in this way ensured that their testimony would not be forgotten. For this reason, much of the material upon which his conclusions are based are stories and anecdotes which lack an authoritative literary source, and presumably this must be taken into consideration when evaluating the reliability of these reports. On the other hand, it can also be argued that the accumulation of anecdotes that reflect a characteristic feature of the Gra should be deemed trustworthy, even if we assume that not everything occurred exactly as reported. Our overall trust in Rabbi Maimon's accounts is supported by the fact that he also relied on written sources, concerning which he was exceedingly knowledgeable.
The Gemara as a source for understanding reality
As expected, the two scholars describe the outstanding feature of the Gra's commentary – identifying the sources of the Shulchan Arukh's rulings. Rav-Zair, in particular, goes on at length with the many examples that he brings. Here we will bring one example with far-reaching significance, from his work, Toledot ha-Posekim.
As is well known, a ritual slaughterer must examine his slaughtering knife by passing his finger along the blade, to ascertain that it is smooth and without nicks. Rabbi Yosef Caro remarks about the caution that is required for this examination:
Much composure and piety is required for examining the knife. Surely you see that a person may examine a knife two or three times and not feel a small nick, but then afterwards he finds it when at last he [properly] prepares his heart. [The efficacy of] a tactile examination depends upon the concentration of the heart. (Shulchan Arukh, Yored De'a 18:17)
The author of the Shulchan Arukh bases his final conclusion that tactile sensitivity depends upon concentration on simple realistic observation ("Surely you see, etc."). Seemingly, we are dealing here not with a ruling that requires a source, but rather with a factual determination that has halakhic implication. The Gra, however, saw fit to comment on the end of this halakha as follows:
A tactile examination, etc. – See chap. 9 of Shabbat, p. 88a (the story regarding Rava who so concentrated on his study that he did not feel pain in his fingers).
This anecdote about Rava, who was so engrossed in his study that he did not notice that he was hurting his fingers to the point that they bled, is brought by the Gra not as the source of particular law, but rather to support a factual assessment, that essentially any person can confirm from his own personal experience.
The two scholars also demonstrate that the Gra's phenomenal erudition allowed him to make use of the tools of textual emendation. According to the Gra, a contradiction between sources can frequently be reconciled by way of a simple but ingenious emendation of the reading, and in that way many casuistic distinctions proposed to resolve the difficulty are rendered superfluous. The Gra's confidence in his textual emendations enabled him also to reject the words of the Rishonim. The Gra's works are filled with such emendations. As for his commentary on the Shulchan Arukh, the term "scribal error" (ta'ut soferim)is mentioned more than two hundred times. Rabbi Maimon tells of several cases in which the Gra used this tool to reject distinctions proposed by distinguished Rabbis. Relying on forgotten sources, the Gra corrected mistakes that had crept into the text, and in that way resolved the difficulty, causing the collapse of dialectical edifices that been built upon those errors.
In our discussions thus far, we have not yet encountered the Gra's use of textual emendation, but in light of the centrality of this method for the Gra, it would only be right to bring at least one example to illustrate this phenomenon.
The Shulchan Arukh (Orach Chayyim 31:1) issues the well-known ruling that one is not to don tefilin on Shabbat or Yom Tov. Since these days are designated as "a sign" between God and Israel, putting on another "sign" would be considered an insult to them. In the next paragraph, we find a disagreement between the Shulchan Arukh and the Rema:
On the intermediate days of the festival as well one is forbidden to don tefilin for this very reason, for the intermediate days of a festival are also considered to be a sign.
Rema: But some say that on the intermediate days of a festival one is obligated in tefilin (Beit Yosef in the name of the Rosh). And this is the customary practice in all of these districts. (Shulchan Arukh, Orach Chayyim 31:2)
The Rema rules, in the wake of the view of the Tosafot and the Rosh, that tefillin should be worn on the intermediate days of a festival. The Tosafot adduce proof for their positon from a passage in tractate Beitza. The Mishna there permits one to send "utensils," i.e., articles of clothing, to another person on Yom Tov:
One may send clothes, whether sewn up or not yet sewn up… provided they are necessary for the festival… This is the general rule: Whatever may be used on a Yom Tov may be sent [on a Yom Tov]. (Beitza 14b)
Based on this Mishna, Rav Sheshet permits (ibid. 15a) one to send tefilin on Yom Tov. Abaye raises an objection that one may not don tefilin on Yom Tov, and the Mishna only allows to send "whatever may be used on a festival." Rav Sheshet answers by changing the punctuation in the last clause of the Mishna:
This is what he means to say: Whatever one uses on a weekday may be sent on a Yom Tov.
One thing is not open to debate: The Mishna conditions its allowance on the fact that the item being sent is "necessary for the festival." From here we see, argue the Tosafot, that tefilin are worn on the intermediate days of a festival, since one is permitted to send them on Yom Tov.
The Gra in his commentary to the Shulchan Arukh rejects this argument:
This is incorrect, as there is a scribal error in the Mishna, for in the Yerushalmi, the first chapter of tractate Beitza, it is explicitly stated in the Mishna: "Even though it is not necessary for the festival."
Thus we see that a relatively remote source, the Yerushalmi, provides the Vilna Gaon with foundation to emend the text. We are already familiar with the Gra's tendency to rely on the Yerushalmi, but here he does not explain why he prefers the reading of the Yerushalmi over that of the Babylonian Talmud. In any event, adopting this reading allows the Gra to reject the position of the Tosafot.
The Gra's halakhic enterprise: the essential Goal
Beyond the actual method and character of the Gra's commentary, the more fundamental question is what is the larger concept standing behind it? On this matter the two scholars emphasize different points. Each of them sees the Gaon's contribution in the framework of one of the fundamental issues that preoccupied the Torah authorities in those days.
For Rabbi Chaim Tchernowitz, the background to the Gra's efforts is a major debate that arose regarding the Shulchan Arukh itself, almost as soon as it was published. The publication of the Shulchan Arukh accelerated the process by which halakhic decision-making and observance became detached from the Talmud, as it made it possible to issue halakhic rulings based on an abridged summary of the practical laws, so that it was no longer necessary to examine the actual talmudic sources. In the eyes of many critics, this detachment was liable to lead to unfavorable results, e.g., impaired halakhic decision-making, and diminished occupation with the study of the words of Chazal in their original contexts. Indeed, prominent rabbis living in the coming generations expressed their reservations and even opposition to Rabbi Yosef Caro's enterprise. The list includes the Maharal of Prague, his brother Rabbi Chaim ben Betzalel, and Rabbi Shelomo Luria (Maharshal). What position emerges from the Gra's commentary to the Shulchan Arukh?
Rav-Zair argues that the Gra's opinion contains a paradox. On the one hand, it is clear that his main goal was "to return to the Talmud," because practical halakhic decisions must be based exclusively on the Talmud and the other works of Chazal. On the other hand, the wide acceptance of the Shulchan Arukh made it the fundamental work upon which all practical halakhic observance came to be based. This brought the Gra to write a commentary on the Shulchan Arukh and the Rema, which clarifies and grounds their respective opinions. The Gra does not hesitate to disagree with the Shulchan Arukh, but without a doubt his approach in general reflects respect and appreciation for the place that the work acquired for itself over the course of the previous one hundred and fifty years that preceded his commentary. This respectful attitude of the Gra appears to have been driven by two factors.
One reason is pedagogical. The Gra wanted to influence the study methods of his time, and to achieve this end, it would be wise to exploit the popularity of the Shulchan Arukh and append to each of his rulings a "reminder" that all halakhic authority draws exclusively from ancient sources. According to this, the Gra's plan was drawn up in accordance with the goal that he wished to reach – influencing the method of studying Halakha.
On the other hand, the idea of writing a commentary on the Shulchan Arukh came into being out of a true recognition of the virtue of the book. Divine providence brought success to both Rabbi Yosef Caro and Rabbi Moshe Isserles, and against that the Gra did not want to or could not argue, and he certainly could not lead a revolution that would undermine the standing of his predecessors. This may be seen from the words of the Gra that have reached us. On the one hand, the Vilna Gaon was himself capable of writing a "Shulchan Arukh," and the principle of independence in halakhic decision-making he passed on even to those who came after him. Rabbi Chayyim of Volozhin cites in his name the instruction, never to ignore the halakhic truth as it emerges from the Gemara, even if that means he will have to reject a ruling of the Shulchan Arukh. On the other hand, when he was asked why in fact he did not write a new Shulchan Arukh, he answered: "I have not received permission from heaven." Providence decided in favor of the Shulchan Arukh, and the Gra bowed his head in this matter, though perhaps with a certain grinding of his teeth.
Let us now move on to Rabbi Maimon. In his view, the Gra's main contribution should be seen in light of the methodological debate in the world of halakhic scholarship between pilpul, which involves the use of subtle legal, conceptual and casuistic differentiation, and peshat, which involves interpretation in accordance with the plain meaning of the text. In his eyes, the two most striking characteristics of the Gra's halakhic thought (which we too noted) are his adherence to peshat as opposed to pilpul and his phenomenal erudition. Rabbi Maimon notes the mutual relationship between the two: When a particular law is difficult according to the plain meaning of the sources, one way of resolving the difficulty is by moving away from the peshat, that is, by using pilpul. The Gra did not take this path, but rather made use of his erudition; the vastness of his knowledge opened before him sources which could reconcile all of the difficulties.
It should be noted that Rabbi Maimon was personally very occupied with this issue. He dedicated a separate study to the matter, called Ha-Noten be-Yam Derekh. The book is arranged as an imaginary debate between two Torah scholars, one exceedingly sharp and the other particularly fluent in the source material, each one claiming superiority for his scholarly approach. After all the arguments are presented, the sharp scholar concedes that study based on the plain meaning of the text, which emphasizes erudition over sharpness, is the correct and tested method for resolving every difficulty in the most reliable manner possible.
As for the Gaon of Vilna, it is clear that there is truth in this perspective, but nevertheless in light of our study it must be stated that it does not tell the entire story. The uniqueness of the Vilna Gaon is much more far-reaching.
When we oppose pilpul to peshat, we locate ourselves on the axis of interpretation, and move between its two poles. But the uniqueness of the Vilna Gaon lies in the fact that by implication he abandons this axis entirely. The Gra did not only distance himself from acute pilpul; it is more correct to say that he was hardly interested in interpretation at all. In his commentary, not only does the Gra avoid pilpulistic explanations, but rather he prefers to skip over interpretations altogether, and instead he refers us to the sources. The question that he comes to answer is not "why is this the case?" but rather "from where do I know this?" In his eyes, this is the important question. And this is a statement about his values.
The Gra's sources: old and new
In their discussion regarding the Gra's sources, the two scholars whose views we have examined focus on the Gra's phenomenal ability to find new sources. But they do not consider the most essential aspect of the Gra's enterprise – his goal is not to say something original, but rather to connect each ruling to its sources. For this reason some of their examples of the Gra's ingenuity are embarrassing.
For example, the following case is cited by both of the aforementioned scholars. The Rema (Even ha-Ezer 61) refer to the custom that the bridegroom and the bride fast on the day of their wedding. Rabbi Maimon notes that the Posekim explain this custom by saying that the sins of the bridegroom and the bride are forgiven on the day of their wedding, but we do not find a clear source for this. The Gra in his commentary refers us to a passage in the Yerushalmi which relates to the verse that says that Esav took Machalat the daughter of Yishmael as his wife: "Was Machalat her name? But surely her name was Basmat! Rather, all of his sins were forgiven [nimchalu]" (Yerushalmi, Bikkurim 3:3). However, when we open the Beit Shemuel on Even ha-Ezer, we discover that the source of this rationale regarding the forgiving of sins is in a responsum of Maharam Mintz. And indeed, an examination of the words of Maharam Mintz (109) reveals that he already brought the same Midrash cited later by the Gra – though not in the name of the Yerushalmi, but rather in the name of the "Midrash." In other words, the Gra did not uncover a new source that was not known to his predecessors, but rather he referred us to a source that was known to them, but was not mentioned by the commentators to the Shulchan Arukh.
Another example of this phenomenon: At the beginning of the laws governing a nidda (a menstrual woman)(Yoreh De'a 183), the Rema notes that the prohibition of nidda applies not only to a married woman, but even to a single woman. He attributes this ruling to a responsum of the Rivash (425). Here the two scholars are thrilled by the fact that the Gra succeeded in pointing to the source of the law in "an explicit Mishna" in the third chapter of tractate Ketubot: "These are the maidens who are entitled to [payment of] a fine - one who has intercourse with a nidda" (one who rapes her must pay the fine despite the prohibition of nidda). This indicates that the prohibition applies even to an unmarried woman. The Gra in his commentary brings additional support to the ruling from a precise reading of a passage in tractate Keritut. The truth of the matter is that both sources were already cited by the Rivash in his responsum. It is reasonable to assume that the Gra was capable of finding these sources on his own, but the identification of these sources is not the Gra's innovation. In addition, the reader may wonder about the very need to prove this law. Is there any hint whatsoever in the Torah that the prohibition of nidda applies only to a married couple? Bringing proof here is slightly reminiscent of what we saw above, that the Gra "proves" that the efficacy of examining a knife increases with greater concentration.
Without a doubt the Gra's commentary is filled with discoveries that never occurred to his predecessors. But on the other hand, on very many occasions the Gra brings sources that were already known. Many rulings in the Shulchan Arukh stem from responsa of the Rishonim, and the printed Shulchan Arukh refers the reader in parentheses to the Rashba or the Terumat ha-Deshen. In such cases the Gra understands that his role in the commentary is to point to the talmudic passage upon which the said Rishon based his ruling. It is as if the Gra is saying to us: As opposed to what it says here, the source is not actually the Terumat ha-Deshen, but rather a passage in tractate Ketubot.
Therefore, when we come to evaluate the Gra's commentary, it is not enough to consider the many innovations and discoveries, or his methodological approach. Without denying the importance of these things, attention should also be paid to the essential message that surrounds them. The Gra's statement is not limited to the field of knowledge; he has an important message in the realm of consciousness. He is busy connecting the ruling, the person who keeps it, and the servant of God as such, to the Torah – that same Torah that is identified with the tradition that reaches us from the most ancient times.
(Translated by David Strauss)
 Rabbi Maimon was involved in a similar project that targeted European rabbis in general; the traditions the he collected and adapted can be found in his books "Midei Chodesh be-Chodsho" and "Sarei ha-Me'a."
 As we find in the following story: A suit was once brought against the Chafetz Chaim, and his lawyer tried to impress the judge by relating a story that proves the exceptional honesty of his righteous client. When the judge asked him: "Do you believe that story?" the lawyer answered: "I don't know whether this really happened, but on the other hand, people do not tell such stories about you or me." (I once saw this story documented, but I do not remember where. In any event, the message that it wishes to convey is undoubtedly true.)
 It may be surmised that the words in parentheses were added by the publisher, the Gra's disciple, R. Menachem Mendel of Shklov.
 The Kaufmann MS of the Mishna confirms the standard reading, against the Gra's emendation. The Gra's position here is that since there is no unequivocal proof from the Babylonian Talmud in either direction, the matter should be decided in accordance with the words of the Zohar, which are cited at length by the Beit Yosef (ad loc.), that one is forbidden to don tefilin on the intermediate days of a festival. This itself may be the reason that the Gra decided in favor of the reading in the Yerushalmi, for the Gra is of the opinion that there are no contradictions between the standard halakhic sources and Kabbala.
 This statement is reported by the sons of the Gra in the introduction to the Gra's commentary to the Shulchan Arukh. The instruction given to Rabbi Chayyim of Volozhin is found in a letter of Rabbi Chayyim (cited in Toledot ha-Posekim, III, p. 218).
 This Midrash is found in Midrash Shemuel (17, ed. Buber).
 For one who rapes a married woman is liable for the death penalty, and therefore he is exempt from paying the monetary fine, based on the rule that if a person committed two or more transgressions with a single act, he is exempt from punishment for the less severe crime.