Oral Tradition & Gemara
Gemara’s agadic information is fascinating and provides important sociohistoric and sociopolitical material to scholars even today. Tosefta provides Amora’im precedents to measure the impact and relevance of the Mishna’s legislation. Barita is used to reconcile apparent contradictions in the reported opinions of Tanna’im. The Mishna and Gemara together are called Talmud.
Talmudic halakha does not follow the Mishna’s classification system. The halakha and agada are much more extensive than in Mishna; the agada may not address the legal discussion directly, and other legal discussions may also intrude into the discussion at hand. Talmudic halakha is thus recorded inside tractates which do not necessarily resemble where such halakha occurs in the Mishna’s classification system. The mass of information in Talmud makes it impossible to accomplish the primary purpose of Mishna: To classify and standardise halakha.
The Responsa evolved to address this matter. There is such discursive information in Gemara that no one can master it all. A class of post-Talmudic scholars, the Geonim, began to answer questions addressed to them. Responsa represents a time and place and thus has the same limitation of Midrash: A Gaon in Castille could rule differently than a Gaon in Frankfort on the same question.
There was no standard answer, and the drive for normalisation led to indexing and digesting all the available halakha. These works are called halakhot gedolot. The difficulty with halakhot gedolot is the compilation is not necessarily in a logical order. The legal codes were compiled to address this limitation. The legal codes imposed a structure, which had been missing since Talmudic times. Responsa are still used. They no longer attempt to standardise observance. A modern Responsa can only apply to those individuals who accept the ruling. Some Reponsa authors, such as Rav Moshe Fienstein (GRHS), are used a great deal as arbitrators of tradition, but such responsa today impose minhag (custom) – in very few instances does it impose halakha.
Minhag & Halacha
Let’s look at the difference between minhag and halakha as we conclude our overview of Torah Shelbapeh.
Minhag is local custom. It displaces halakha in many situations. The Spanish tradition, for example, has a burial tradition completely unknown to Poland. These variances occurred because Jewish communities at one time were dispersed and isolated from each other. A single code of halakha was reasonable when the vast majority of Jews lived in Sefarad – the lands west of the Mediterranean Sea in Southern Europe and and Western Asia.
When a plurality of Jews, and eventually a majority, lived in Ashkenaz a single code was practical only if the minhag Ashkenaz was accommodated. All of the major halakha codes were authored by Sefardic rabbinic authorities: Rambam (Mishneh Torah), Rosh (Tur) and Yosef Karo (Shulhan Arukh). We’ll survey these major codes in the next section.