Can a scribal error in an authoritative text change Jewish law?
By SHLOMO BRODYfish and chips 311(photo credit: Bloomberg)
We previously discussed whether the ancient prohibition of consuming meat and fish together remained valid given that talmudic health concerns regarding this combination are no longer true. While that topic raised questions regarding the legal standing of contemporary science, the alleged prohibition of fish and cheese, observed in certain Sephardi communities, also explores the impact of inaccurate texts on Jewish law.While Jewish law proscribes various mixtures of milk with meat, it excludes fish from the latter group, deeming it instead as an independent neutral category (Hulin 103b). As such, any potential problem with eating fish with either meat or milk will not fall under the rubric of classic laws relating to kashrut. The Talmud does ultimately prohibit combining meat and fish for different reasons – health concerns – and this position is codified in the Shulhan Aruch within ritual laws relating to hygienic practices (OC 173:2). Similar sentiments are never expressed regarding milk and fish, with two passages (Hulin 76b, 111b) implicitly stating that it is entirely permissible (Shach YD 87:5).The first legal text to allegedly ponder such a prohibition was the Beit Yosef, a 16th-century legal commentary written by the famed Rabbi Yosef Karo of Safed. After noting fish’s neutral status, the text continues, “Nevertheless, one should not eat fish in milk because of danger, as explained in OC 173:2.” Yet while Karo mentions milk, the proof text cited deals with meat! Rabbi Moshe Isserles (Darchei Moshe), followed by many other prominent decisors (Taz YD 87:3), contended that a scribe errantly copied the word “milk” instead of meat, which would further explain why Karo never recorded the milk with fish prohibition in the Shulhan Aruch, his authoritative code. These authorities concluded that fish may be consumed with dairy products, a position adopted by almost all Ashkenazi authorities (Aruch Hashulhan YD 87:15).As a whole, manuscripts regularly suffered from poor penmanship, slipping of the eyes and misunderstandings by unlearned or confused copyists. The problems that ensued from these mishaps became more pervasive following the 20th century recovery of a treasure trove of manuscripts in the Cairo Geniza, which provided further evidence of variant ways in which central texts were recorded and understood.Medieval authorities would change various norms based on alternative readings from different manuscripts. Maimonides, for example, dismissed a certain halachic position advocated by earlier authorities because he believed that their decision was based on faulty talmudic manuscripts (Hilchot Malveh Veloveh 15:2). Yet reasonable people can disagree on how to weigh the alleged evidence of variant manuscripts, with Maimonides’s regular interlocutor, Rabad of Posquierres, contending in this case that the ruling of the earlier authorities remained sound (Magid Mishne).As Rabbi Moshe Bleich has documented, a separate question relates to whether the composition of authoritative legal codes, such as the Shulhan Aruch, precludes the subsequent use of variant texts (Tradition 27:2). One issue relates to the discovery of previously unknown rabbinic positions regarding old halachic disputes.Some argue that had authorities seen these earlier statements, they might have changed their own opinion (Introduction, Yabia Omer OC 5). Others retort that the Jewish people have already accepted normative practices which should not be altered (Moda’im Uzmanim 4:274).At other times, widespread practices became established on the basis of texts which, on the basis of manuscript evidence, are now deemed inaccurate. As Prof. Daniel Sperber has noted, figures like Rabbi Yisrael Meir Kagan struggled with this phenomenon (MB 551:32). In theory, the law should follow the position found in the accurate manuscripts. Yet once a practice has become established, it might take on independent stature (Minhagei Yisrael 3:14).In our case, the alleged textual error was noted immediately and the practice was more easily dismissed. Yet some authorities, mostly Sephardi, defended this prohibition. Rabbi Haim Benivieste contended that Karo’s prooftext only intended to show that fish and milk were prohibited like other actions deemed unhealthy (Haghot BY YD 87). Others claimed they knew of doctors that believed there is a genuine health fear with this combination (Pit’hei Teshuva), at least within certain locales (Kaf Hahaim OC 173:3).One 18th-century scholar famed for his rabbinic and scientific knowledge, Rabbi Isaac Lampronti, found no historical evidence of any medical danger, but asserted that we should continue to follow the traditional practice. This sentiment was shared by Rabbis Ovadia Yosef (Yehaveh Da’at 6:48) and Haim David Halevi (Tehumin 17). The latter, after noting the medical and textual rationale for abandoning this practice, nonetheless contended that since it is not a big inconvenience, Sephardim who observe this stricture should maintain their traditional practice. The topic highlights how texts, reason and traditional practices can become intertwined in determining ritual practices.
