Scales of Justice by Rabbi Zvi Hirsch Kalischer: From Rabbinic Tradition to Public Participation

Abstract

Rabbi Zvi Hirsch Kalisher (1795–1874), best known for his proto-national thinking and advocacy of settlement in the Land of Israel in the third quarter of the 19th century, was crowned a preeminent ”Precursor of Zionism”. However, his halakhic teachings, which have never been properly researched, represent a fount of perspectives that help refine our understanding of his ideological and activist program. This article focuses on Moznayim LaMishpat (1855) and his unfinished halakhic work that attempted to complete the Ḥoshen Mishpat codex, not by composing another commentary on the Shulkhan Arukh or an independent halakhic treatise but by glossing the text of the Shulkhan Arukh itself, as did Isserles. Apart from all the halakhot that were renewed by commentators and the halakhic approaches of the medieval sages that were absent from the Shulkhan Arukh and the Isserles glosses, this codex also contains the sources and reasons for the halakhot. Finally, Kalischer sought to restore the authority of communal autonomy that had eroded in the 19th century and had rendered the relevance of the laws of Ḥoshen Mishpat questionable by emphasizing public consent as an alternative to transcendent authority. He even extended the idea of public consent to the legislative, executive, and punitive powers of the monarchial legal system (Mishpetei ha-Melukhah) by arguing that these rested on the authority of the general public, just as they are vested in the king. In his view, public authority is not limited to community legislation or repealing the regulations of the Sages; it also wields the power of the monarchial legal system, which parallels the halakhic legal system.

1. Introduction

Rabbi Zvi Hirsch Kalischer’s (1795–1874) proto-national views and activities have earned him a place of honor in Zionist historiography. He, Moses Hess, and Rabbi Yehuda Alkalay are regarded as the “forerunners of Zionism”. Kalischer’s book Derishat Zion (Lyck 1862) promoted the idea of Jewish settlement in Eretz Israel. It was actually the third part of Emunah Yesharah (I-II, Krotoszyn 1843, 1869), dealing with issues of Jewish philosophy and seeking to defend the Oral Law, and it became a cornerstone of religious Zionist thought. His writings had a major impact on the formulation of this philosophy, and it has been widely discussed in the scholarly literature (Myers 2003; Yedidya 2018). In contrast, the other two sections of Kalischer’s Moznayim LaMishpat [=ML, Scales of Justice] (Krotoszyn and Königsberg 1855) have almost completely disappeared from halakhic discourse and the study of halakhic commentaries on the Shulkhan Arukh. In this article, I will call attention to the uniqueness of Kalischer’s halakhic writing in comparison to similar works of this genre, aiming to demonstrate his aspiration, unusual for his time, to update, summarize, and make accessible Hoshen Mishpat [=HM], a part of the Shulkhan Arukh, which had lost its relevance for practical life due to the loss of communal autonomy in Europe. I will also shed light on the adoption of the principle of public consent in various halakhic contexts in order to contend with this historic change, while seeking to situate his work in the period in which he lived.

Kalischer was born in Lissa in the province of Posen. After the division of Poland in 1793, Lissa came under Prussian jurisdiction along with the rest of the province. Until the middle of the 19th century, Reform had not penetrated the provincial communities despite having influenced other parts of Prussia, and most communities remained conservative. This was clearly evidenced by the rabbis, the majority of whom were Orthodox. Nevertheless, the Jews of Posen were becoming acculturated, and although they lagged behind Prussian Jewry in this respect, they distanced themselves from the Jews of Poland whence they had originated. At the beginning of the 19th century, when Kalischer was acquiring his Torah education, the yeshivot in this region were enjoying a period of prosperity; however, their success was waning, and they eventually closed. Naturally, this affected local Torah study and the level of scholarship (Sariel 2022).

In his youth, Kalischer studied under two of the greatest Orthodox rabbis of his generation: Jacob Lorberbaum of Lissa (1760–1832) and Akiva Eger of Posen (1761–1837). In 1818, after graduating from Rabbi Eger’s yeshiva, Kalischer completed his innovations and glosses on Mishnayot Nashim and Nezikin (printed in Mishnayot Vilna in 1908). He married Gittel Cohen from Nieszawa in 1819, and from 1823 until his death, he served as the presiding dayan (judge) on the bet din (rabbinical court) of Thorn in Pomerania on the border between Prussia and the Russian Empire.

Unlike Lissa and Posen, Thorn’s Jewish community was relatively small; no illustrious rabbinical traditions had become well-known, and no local yeshiva, not even a permanent synagogue building, existed there. At the time of Kalischer’s arrival, the Jews numbered no more than a few hundred in a general population of 7000 (Myers 2003, pp. 55–57). It was difficult to obtain a residence permit. In his application to the Thorn municipality, Kalischer undertook not to engage in trade. He declared that he had received a handsome settlement from his wife’s parents, as well as a sum of money from his own parents, and this would generate enough revenue to support the family.1 Shortly afterwards, he accepted an invitation to serve as the community’s rabbi and dayan (judge) but only on condition that he would not be paid a salary. It was his wife’s successful shop that provided the family with a livelihood. In his preface to the first part of ML, he thanks her for making it possible for him to dedicate himself to Torah study: “My righteous wife Gittel never upbraided me, saying what profit is there in constant study of Torah, go and earn some money […] Through her hard work she has liberated me from the travails of time to immerse myself in Torah (Kalischer 1855a, preface)”2. In addition to the study of Talmud and halakha, he also focused on Jewish philosophy and Bible commentary. He anxiously followed the developments in the Jewish world, and his writings touched on current events and included polemics against the Reform movement and modern literature, which, he believed, were undermining Jewish tradition.

Kalischer belonged to the Orthodox stream of Judaism, and he regarded himself as one of its representatives. He established a place for himself “among the remnant leaders in Germany who were God-fearing men, and in whose hearts burned the love of Holiness (quoted in: Katz 1958, p. 211)”3.

2. Halakhic Commentaries on the Shulkhan Arukh

Following the publication of Rabbi Yosef Karo’s Code of Jewish Law Shulkhan Arukh in the 16th century and the glosses of Rabbi Moshe Isserles (Rema), an inline commentary known as HaMapah (“the tablecloth”), a new literary genre of halakhic commentary, developed that contributed a great deal to the canonization of this halakhic codex. Beginning in the early 17th century and continuing well into the 19th century, when Kalischer wrote his ML, this genre included various types of commentary. The first type was the review, exegesis, expansion, and update of the Shulkhan Arukh and the Mapah. The basic premise of the authors of these commentaries was that these two works could not, by themselves, serve as an exhaustive codex of rules and should, therefore, be supplemented, favoring some rulings over others, clarifying issues, resolving contradictions, and introducing renewed rulings. The best examples of this type of interpretation are Sefer Meirat Einayim, Siftei Kohen, and Magen Avraham, which were compiled in the 17th century. These commentaries, in turn, became the subject of later commentaries, which established the earlier halakhic commentaries as a new halakhic canon headed by the Shulkhan Arukh. The second type of commentary was bibliographical, either linking the rulings of the Shulkhan Arukh to Talmudic and post-Talmudic sources, or pointing to works of halakha and responsa that dealt with the various topics under discussion. The clearest examples of this type are Be’er Hagola and the Vilna Gaon’s commentary, on the one hand, and Shaarei Teshuvah and Pitchei Teshuvah on the other. The third type is scholarly, regarding the Shulkhan Arukh as a platform for Talmudic debate and theoretical, conceptual, and legal study. The clearest examples of this type of commentary are Ketzot Hachoshen and Netivot Hamishpat, compiled in the 18th and 19th centuries. This division is not dichotomous. Some commentaries are appropriate for more than one type of interpretation (Tchernowitz 1947, pp. 137–278).

In the course of time, editions of the Shulkhan Arukh and the Mapah featured commentaries that were incorporated around the main column of the page with the original treatise, similar to the Babylonian Talmud, the Jerusalem Talmud, Maimonides’ Mishneh Torah, and the Arba Turim. As the commentaries increased, so did the editions. Ultimately a hierarchy was created, which was reflected in the graphic design of the page: the Shulkhan Arukh and the Mapah in the main column in large letters, 17th century commentaries on both sides at the top of the page in medium letters4, and at the bottom of the page and the margins, in small print, were the rest of the commentaries5. Important but extensive commentaries, such as Rabbi Jonathan Eibeschütz’s (1694–1764) Urim VeTumim on HM and Kreti Upleti on Yoreh De’ah, were not published in these editions due to their length. The printed pages of the Shulkhan Arukh and its commentaries influenced how the text was studied and interpreted. The structure of the editions, that is, the architecture of the text at its various levels, became a major factor. According to Noam Samet, it changed the treatise from a book of rulings, around which were gathered various commentators, into an organizing hub of the Torah writing that ensued, thereby opening the door for the formation of interpretive literature, which was not necessarily intended as such (Samet 2016, pp. 38–40).

Nevertheless, commentaries evolved separately for each part of the Shulkhan Arukh. Each section accrued its own specific interpretations, and thus, an internal hierarchy of commentary was created. The first commentary on HM was Rabbi Yehoshua Falk (1555–1614) HaCohen’s Sefer Meirat Einayim, first printed in Prague in 1614. This work was opposed to reliance on concise halakhic codes to the exclusion of Talmudic sources of halakha, such as the Mishne Torah and the Shulkhan Arukh on the one hand, but on the other hand, it internalized the special place of the Shulkhan Arukh. According to Falk, his work essentially complements the Shulkhan Arukh, and it is not possible to rule from the original without consulting his interpretation (Samet 2016, pp. 41–44).

The second commentary on HM was Rabbi Shabtai Katz (1622–1663) HaCohen’s Siftei Kohen, first printed in Amsterdam in 1665. His work was similar in nature to that of Falk, and in Ferrara in 1691, the two commentaries were published together around the Shulkhan Arukh and the Mapa, under the name Torat Kohanim. Since then, they have appeared in a similar format in most editions of the Shulkhan Arukh, alongside an ever-expanding list of later commentators (Samet 2016, pp. 56–57).

The third commentary on this section, although written before Siftei Kohen, was Turei Zahav by Rabbi David Halevi Segal (1586–1667), first printed in Hamburg in 1692 as a separate exposition (Tchernowitz 1947, pp. 141–42).

The next commentary was Eibeschütz’s Urim VeTumim, printed in Karlsruhe in 1775. It is in two sections, with the first aimed at halakhic rulings, either confirming old rulings or renewing them, usually following the method of Sefer Meirat Einayim. The second part focuses more on yeshiva scholarship and casuistry. In the next two commentaries on HM—Ketzot Hachoshen (Lvov 1788) and Netivot Hamishpat (Zhovkva 1809)—that were printed together with the Shulkhan Arukh beginning in the 1860s, the scholarly nature is decisive, and there is limited affinity with the ruling (Tchernowitz 1947, pp. 241–45).

3. Motives for Writing

Kalischer’s work is a commentary on the HM section of the Shulkhan Arukh. The first part, dealing with the laws of dayanim (Jurisprudence, sections 1–27)6, was printed in 1855 in Krotoszyn. The second part, on laws of testimony and loan (sections 28–42), was printed the same year in Königsberg7. Additionally, 12 years earlier, Kalischer had published an experimental pamphlet in Krotoszyn titled Even Bochan in which he commented on section 89. He also wrote commentaries on other parts of the Shulkhan Arukh, although they were different in nature and limited in scope. A few years after his death, his son, Yehuda Leib, submitted his commentaries on the Yore De’ah to the publishers, and since then, they have appeared in many editions of the Shulkhan Arukh under the title Zvi Latzadik. His commentaries on parts of the Orach Chayim are still in manuscript8.

In the preface to the first volume of ML, Kalischer briefly outlined the nature and purpose of his commentary: “This is a broad clarification of every law according to our holy Torah, to explain the Rishonim (the rabbinic scholars between the eleventh and fifteenth centuries following the Geonim and preceding the Shulkhan Arukh) and the Aharonim, to verify the Torah and the rulings of halakha that derive from the well of living water of the greatest teachers, with innovations as well as old laws, showing where there is a place for findings (Kalischer 1855a, subheading)”. From the outset, this classifies his commentary as complementary in nature. He went on to expand on his goals.

Kalischer revealed that his primary purpose was to write halakhic codex, such as Ḥayyei Adam and Ḥochmat Adam, on parts of ḤM and Even Ha’ezer, as well as actually continuing the halakhic project of Rabbi Avraham Danzig (Kalischer 1855a, preface).

The inspiration for these two books, which 19th century Ashkenazi Jewry accepted as central halakhic books, and which were printed in numerous editions, shows that, in Kalischer’s opinion, he was destined for greatness as a halakhic teacher who summarized halakhic discourse, which had been renewed of late in a separate codex. Kalischer’s pretensions were greater than those of his teacher Yaakov Lorberbaum, who in the introduction to his essay, Netivot Hamishpat, declared, “I do not mean in my essays to teach practical halakha but to study it before sages like a student before his teacher (Lorberbaum 1809, preface)”. Later in the preface, as well as in the preface to his work Emuna Yeshara (1843), Kalischer compared himself to the prophet Jonah: when he was initially asked to refrain from publishing his treatise, an inner voice called to him, “Why are you hiding to flee? […] Why did you fall asleep? Arise, call unto your God and do not cease your work (Kalischer 1843, p. 4; 1855a, preface)”9. This self-awareness was also behind his pioneering call to the Jews of his time to act to change their historical situation.

When he approached the task to compose a new halakhic codex, however, he realized that, in the case of HM, it was impossible. He claimed that, unlike Yore De’ah, where the disputes are few and in a case of doubt it is possible to reconcile all opinions with a stringent ruling, HM contains multiple disagreements, and every halakhic position has a negative impact on one of the disputing parties. Therefore, it is not possible to make a halakhic ruling without a thorough clarification of the various methods and their clear submission for scholars by glosses and commentary:

To mediate between those who disagree through an honest opinion and to avoid controversy in Israel […]. When it is impossible to know the meaning of a thing, I clarified where it can be found, and which opinion should not be attached to it. Also from which place the Rishonim are more inclined to one opinion. In this way I addressed every detail, both large and small, to remove obstacles and stumbling blocks […] to grasp the ruling.

(Kalischer 1855a, preface)

Kalischer goes on to describe his goals. First, he intends to bring together all the commentaries on this section up to the present day. Second, he hopes to clarify difficult and even incomprehensible parts of the Shulkhan Arukh. Third, he will explain the reasons for the laws, inspired by Rabbi Mordechai Yoffe (1530–1612), also known as Ba’al HaLevushim, who composed an alternative codex to the Shulkhan Arukh in order to explain the reasons for the laws, albeit in a much shorter format. For example, he clarified why there is no judgment on the eve of Shabbat and festivals “because the judges are likely to err (Kalischer 1855a, p. 23)”.

Fourth, he will bring new halakhic rulings from recent generations. Fifth, he will make halakhic decisions in places where there are disputes, either by way of compromise or by siding with one opinion while bringing evidence for his decision. Finally, he will justify difficulties that were not satisfactorily explained by the Rishonim and the Aharonim (Kalischer 1855a, preface). This commentary was, therefore, intended to update and complete the Shulkhan Arukh and to constitute the final word on the subject.

The publication of a comprehensive, practical halakhic treatise on the laws of HM at that time, aimed at German Jews, was a step toward the opposite pole of the emerging trend of reform, which found expression in Die Autonomie der Rabbinen (Schwerin 1843), a popular book by liberal rabbi Samuel Holdheim who nullified the Talmudic laws, claiming that they countermanded the validity of the statutes and laws of the state (Wiese 2007). However, ML is not a reaction to reform or a polemic with it. Kalischer believed in the vitality of the laws of HM and was optimistic about their relevance over time.

4. The Unusual Format of the Composition

The aspiration towards completion is reflected in the graphic design of the page. Unlike the many commentaries alongside the main column, where only the words of Yosef Karo and the glosses of Moshe Isserles appear10, or an independent essay in which they are not presented in their entirety and in sequence11, in this volume, the words of Kalischer himself are either interspersed or follow those of Karo and Isserles in a different format called Mishnah Akharonah “because it recounts in Mishneh Torah the laws of HM from first to last with new, well-elucidated explanations and laws (Kalischer 1855a, preface)”. On the right side of the central column and below appear broader halakhic discussions concerning the ruling, which he called ML. In the left margin of the page, Kalischer added references to Talmudic and post-Talmudic halakhic sources, similar to the bibliographic essays Ein Mishpat and Ner Mitzvah that were printed in the Babylonian Talmud (Vilna printing press), under the heading Mekom Hamishpat. The fact that he printed his rulings in the same column as Karo and Isserles is an indication of his self-esteem as an arbiter and his assumption that these two pillars of halakha, despite their centrality, were not the last word in rulings. He believed their codex to be incomplete and in need of updating and completion, not just clarification. However, unlike Falk and Katz, he reverted to the old glossary proofreading system that had prevailed until the time of Isserles. In fact, his treatise was intended to replace the editions of the Shulkhan Arukh that had been printed with commentaries on both sides, where the commentators had already been assimilated into the body of the central column and long explanations were not necessary for halakhic rulings. Kalischer’s approach was an attempt to restore the original work to its original purpose—a book of rulings—instead of its current status as an organized hub for Torah writing. The motives for his writing and the structural design of his work, Mishnah Akharonah, indicate that he was striving, in some way, to sign off on this part of the canonical halakhic codex.

To this end, Kalischer assembled more than twenty affirmations from rabbis in communities in Prussia, Galicia, and Congress Poland, as well as rabbis of the Berlin community: Rabbis Yaakov Yosef Ettinger and Elchanan Rosenstein, author of the commentary Haktav VehaKabbalah on the Chumash (Pentateuch); Rabbi Yaakov Zvi Mecklenburg of Königsberg, the Malbim, Rabbi Meir Auerbach—later, the Av Bet Din of Jerusalem—Rabbi Zvi Hirsch Chajes, Rabbi Israel Yehoshua Trunk, Rabbi Yitzhak Meir Alter—later, the first Rebbe of Gur Chassidut—Rabbi Dov Ber Meislish of Krakow, Rabbi Yehoshua Heschel Ashkenazi of Lublin, and Rabbi Baruch Rosenfeld of Golub. The size and diversity of this group of approbators were rare for halakhic books of that time, as well as for Kalisher’s other books.

Aware of his great presumption in following in the footsteps of Karo and Isserlis as the final arbiter, Kalischer likened his enterprise to the order of law in the Great Sanhedrin during the Second Temple period:

Let it be like in the Sanhedrin, which begins with the least and finishes with the greatest. So I began to pave a new direction of ruling. Those greater than myself will apply the crucible of examination, and they will add precision to the spirit of judgment with their great opinions, continuing to ascertain truth and justice.

(Kalischer 1855a, preface)

Kalischer’s intention is also reflected in his opening words. Whereas Karo began his part of the HM as follows: “At this time we discuss the laws of confessions, loans, and the address of women, inheritances, gifts, and pecuniary damage to one’s fellow, things that are common, and entail financial loss”, Kalischer opened with a number of passages clarifying the historical chain that led to Israel’s laws at this time, at the beginning of the book, inspired by the Ba’al Haturim’s introduction to HM. Unlike Ba’al Haturim and Ba’al HaLevushim, who began with a general discourse on the value of the law, Kalischer opened with the biblical commandment to appoint qualified judges in the Land of Israel, “Judges and enforcers shall there be in all your gates”, meaning gates in the sense of Eretz Israel. The commandment is to appoint judges in every city [...]. Those judges must be ordained, each by his own teacher, all the way up to Moshe Rabbeinu, who ordained Joshua (Kalischer 1855a, p. 1). He then quoted the original halakha, which forbids adjudicating before laymen, and he even retrospectively annuls their decision, except in the case where the litigants accept laymen as arbiters. In contrast to the double division of Rabbi Joel Sirkis (HaBach, 1561–1640), which was also brought as a ruling by the author of Ketzot Hachoshen12, according to which the Torah also gave permission to unauthorized dayanim to rule on confessions and loans while the decisive ruling was only in the hands of authorized dayanim, Kalischer renewed the tripartite division. The Torah only gives authorized judges permission to adjudicate “by way of a tribunal”. If a layman rules by way of a tribunal in the manner in which he summoned the litigants, even if the litigants were reluctant, the ruling is dismissed. If the litigants themselves come for litigation before laymen, then they have expressly accepted them as their adjudicators, and such acceptance is sanctioned from the Torah (Kalischer 1855a, p. 1).

He went on to cite the Sages’ ruling to permit dayanim who are not ordained to deal with laws of confessions and loans to avoid causing problems for borrowers. In other words, lenders might fear that borrowers would delay the repayment of loans, and they would have difficulty finding ordained dayanim to obtain the money and, therefore, they would refrain from lending. This ruling was made possible because the Sages defined lay dayanim as emissaries of ordained dayanim. Finally, he explained that, at a time when there were no ordained dayanim, the Sages extended their ruling to encompass robberies and injuries “in order to bar the door against robbers and perpetrators of evil (Kalischer 1855a, p. 2)”13, but restricted the ruling to financial losses. At the beginning of the first section, he even added to the original wording of Yosef Karo “harms his friend’s money” the words “or steals (Kalischer 1855a, p. 2)”:

In fact, this opening is similar to several prefaces by Maimonides in his introduction to Mishneh Torah, where he explains the historical background of various laws or phenomena to which the law refers, such as the laws of prayer, the laws of Chanukah, and the laws of idolatry (Twersky 2000, pp. 168–75). This is essential to make it a complete codex from every aspect, with no need for further interpretations, and not just an updated codex. The inclusion of reasoning for the laws, along with the laws themselves within the main text, integrates with this trend.

Another similarity to Maimonides can be seen in the idiom “veyeraeh li” (it appears to me). Kalischer employs it for his renewed rulings, which were not discussed at all in the halakhic literature that preceded him (Shailat 1995, p. 443). Thus, for example, he writes on section 34, 19, about the ruling that the testimony of a slave is inadmissible, “it appears to me that wherever the judge is entitled to set an estimate, he can include the testimony of the slave, if he knows the slave does not lie (Kalischer 1855b, p. 29b)”. Another way in which he indicated a renewed ruling was through the words ‘my opinion’ in the ‘judgment’ section of his treatise. Like Maimonides, he rarely renewed rulings himself, relying mainly on the arbitrators who preceded him.

5. The Sources of His Work and the Halakhic Hierarchy

The sources of Kalischer’s work are numerous, starting with the Talmud and the Gaonim, continuing with the Rishonim and commentators: Hilchot Rabbi Alfasi, the Mishne Torah of Maimonides, the Arba Turim of Rabbi Yaakov ben Asher and their commentators, and ending with the Aharonim headed by the commentators on the Shulkhan Arukh. His library included the last published works of the Rishonim and the Aharonim, including Spanish and Polish Talmudic commentaries, which were revived in the 18th century (Reiner 2009).

In the introduction to his work Kalischer listed the authorized commentators on HM: “Semah, veShakh, veTaz, Tumim, Ktzot Hachoshen, and Netivot Hamishpat”. However, a closer look reveals that this is not a simple list of succession from the earliest to the latest commentators. In the Mishna Akharonah section, which supplements the writings of Karo and Isserles, Kalischer refers repeatedly to Falk (Semah), somewhat less frequently to Katz(Shakh), and even less so to the Urim VeTumim and Segal (Taz). The paucity of references to Ketzot Hachoshen and Netivot Hamishpat is understandable because of the theoretical scholarly nature of these works.

In section 25, 2, Kalischer cites Moses Isserles, quoting Joseph Colon Trabatto, according to whom “in every place where the words of the Rishonim are written and the later poskim disagree with them, in the same way that the poskim sometimes disagree with the Gaonim, we follow the later rulings, as seen in hilkhata kebatrai (the practice of accepting the later ruling) from Abaye and Rabba onwards”. Hilkhata kebatrai, which states that, in cases where there is no decision between the disputing posskim, the accepted ruling is the later ruling, first appears in the Gaonic literature with reference to the Amoraim. It was actually followed in Ashkenaz in the 15th century, as well as by post-Talmudic arbitrators, and it was adopted by Isserles (Ta-Shma 1980; Yuval 1992; Wosner 1997).

Discussing the rule of hilkhata kebatrai, following Katz, where it is clear that his wisdom and value are equal to the former, Kalischer followed Rabbi Yair Hayyim Bachrach (1638–1702), author of the Havot Yair responsa, who applied this rule to HM for later generations:

If Sefer Me’irat Einayim and Siftei Cohen (Shakh) have contradict each other, the decision is according to the Shakh, because he is the latter, unless the dayan clearly prefers to rule according to Sefer Me’irat Einayim. It seems to me that the same applies if the Tumim concurs with Sefer Me’irat Einayim or another one of the great Aharonim. We then follow Sefer Me’irat Einayim.

(Kalischer 1855a, p. 102)

Kalischer regards hilkhata kebatrai as applying only to the Shulkhan Arukh and the early 17th century commentators. However, in the event that there is a dispute, then, based on hilkhata kebatrai, he adopts the ruling brought by Eibeschütz in the name of Bachrach, according to whom the words of Karo and Isserles are the words of the Mishna, and anyone who makes a mistake, it is as if he has made a mistake in the Mishna or the Talmud, and his ruling is nullified. Similarly, the rulings of Falk and Katz are words of the Mishna, and in the event of a dispute between them, the ruling of Katz should be preferred for he is more recent, unless one of the most recent arbitrators agrees with Falk. In this context, Kalischer accepted the inner hierarchy of the HM, which was established in the later editions of the Shulkhan Arukh. It should be noted that, from the 18th century onwards, there was a halakhic tradition, originating in the will of Rabbi Yonah Landsofer of Prague (1678–1712), according to which, wherever Falk and Katz disagree, the ruling is according to Falk (Landsofer 1757, the author’s will). However Kalischer preferred the halakhic tradition that originated with Bachrach (Bachrach 1699, pp. 83b–84a; Eibeschütz 1776, p. 26a).

Kalischer did not directly disagree with Karo and Isserles, but he frequently did not interpret their words literally or else he qualified them significantly, in the same way that both Talmuds interpreted the Mishna. In ML, he sometimes discusses the rulings of Falk, Katz, Segal, or Eibeshütz and rejects them because a method brought by one of the Rishonim or Aharonim seems more correct to him.

6. Explicit Reference to the Exchanges of the Time

In the mid-19th century, the period in which Kalischer wrote his treatise, profound changes were taking place in the religious life of German Jewry. The liberal stream in Judaism supported the religious reforms that began to emerge in the first half of the century, conquering many communities throughout Germany, infusing them with a critical and skeptical attitude to halakha, and introducing a new kind of community rabbi. At the same time, secularization among the Jews of Central and Western Europe became more widespread, and as a result, the halakhic observance of many Jews diminished significantly. Kalischer addressed these transformations in philosophical essays and articles in the press, condemning the reform camp while defending the traditionalists. Echoes of these changes can also be seen in this work.

In the second section of ML, Kalischer deplores the fact that the leaders of the communities no longer adhere to tradition. Their calculations are based on self-interest rather than being for the sake of Heaven as in the past, “it is because of our many sins that we have lost people of faith whose actions in former times were only for the sake of Heaven (Kalischer 1855a, pp. 9–10)”. He cites the appointment of liberal rabbis of his generation, who advocate for amendments to religion and the reduction in halakha, as an example of a violation of the prohibition on appointing unfair dayanim:

In this generation young men have arisen, because of our many sins, and regardless of whether they know many languages or even if they only know one in which they can prattle, they are appointed rabbis despite not knowing the Torah properly, not being honest in their deeds, and sabotaging the vineyards (of Torah).

(Kalischer 1855a, p. 33)

The 1797, General-Juden-Reglement für Süd- und Neu-Ost-Preussen completely negated the authority of the rabbis, which, in the past, had also included the laws of HM, noting that no Jew can be called to order or punished for any violation of the Jewish faith or violation of halakha within his own home. The Emancipation Order of Prussian Jews of 1812 again ratified the prohibition on rabbis and community leaders assuming judicial authority. At the same time, judicial authority was also removed from the Jewish communities in Austria, Bavaria, Hesse-Kassel, and Baden, and it only remained in effect to some extent in Württemberg and Altona (Meyer 1997, pp. 101–3). An echo of the authorities’ abrogation of the community’s ability to ostracize can be heard in Kalischer’s commentary in Mishna Akharonah (section 1, 6) on Karo, according to which a person who shames another should be ostracized until he appeases him. “In our generation we have no power to ostracize according to the laws of Israel, and if he does not want to obey he can only be forced to do so by the courts of the authorities (Kalischer 1855a, p. 7)”.

However, the diminution of civil jurisdiction in most Central and Western European countries, usually, is not evident in his writing. In fact, he challenges this reality and how its ongoing character has left its mark on the halakhic enterprise of its predecessors. He tries to solve this fundamental issue by bringing a general halakhic principle from the recent past. In this context, he continues the halakhic discourse of the first half of the 18th century, maintaining that, from the early 18th century, some German communities have had the right to litigate in the courts in cases of bills of exchange (hilluf ketav). This goes contrary to the opinion of Eibeschütz in his Urim VeTumim, even though Kalischer also regarded this preference as impinging on Torah law (Kalischer 1855a, p. 161). The prevailing Talmudic halakha, which was also upheld in the Shulkhan Arukh (HM, section 26), forbade appealing to the non-Jewish courts even if both litigants agreed to do so. In practice, exceptional circumstances occurred over the course of time, which made it necessary to apply to the non-Jewish courts to exercise ownership of assets. In 1720, a regulation was enacted in the Metz community, according to which, despite the general prohibition in cases of bills of exchange (hilluf ketav) and promissory notes, it was permissible to apply to the non-Jewish courts in the first place. Similar regulations were enacted in other German communities. Eibeschütz believed that the court should be appealed to, and its ruling should be accepted, as the litigants had undertaken to do so when signing these bills (Berkovitz 2020, pp. 127–31). Kalischer elucidated that the community ruling, which is based on the fact that the signatories to these bills were committed to accepting the laws and courts of land, actually led to a situation parallel to one in which the Bet Din ordered the litigants to appeal to the non-Jewish courts, “They instituted a ruling like those that permitted judgment in a court of law (Kalischer 1855a, p. 161)”. He succeeded in maintaining part of the communal juridical powers, both in theory and in practice, by delegating the coercive power to the non-Jewish courts.

Along with the religious changes taking place in the Jewish communities of Germany, scientific and technological changes were also taking place in Europe, raising new halakhic questions and leading to a re-examination of older questions (Breuer 1992, pp. 252–65). In section 5, Kalischer introduced a ruling that a deaf person who is able to hear through a megaphone (“sprachrohr”) is permitted to testify (Kalischer 1855b, p. 33b). The technological innovation, which enabled those who were born deaf to hear, led Kalischer to treat people who used this device as ordinary people for all intents and purposes, not just with regard to their religious obligations14. This ruling is a precedent, as far as I know, and shows his openness to modernity and his willingness to examine and adopt technological innovations into halakha, just as he maintained that machine-made matza is kosher, together with his fellow rabbis in Germany.

7. Popular Consent as a Halakhic Power

The Tannaim and Amoraim (The Sages of the Mishnah and the Talmud) allowed for public input in halakha in two main areas: regulations of the Sages (Elon 1994, pp. 643–65, 780–879) and communal enactments. Regarding the former, the Babylonian Talmud states “a decree cannot be ordained unless the majority of the public can abide by it” (Avodah Zara, 36a), and in the event that such a decree has already been issued and has not been accepted by the majority, the decree is void: “Every edict which the rabbinic court ordered the public and most of the public did not accept it, is canceled” (the Jerusalem Talmud, Shabbat).

However regarding the latter, the halakhic source of community legislation, which gives authority to all members of the community, can already be found in Tosefta:

Townspeople are authorized to stipulate regarding prices, measures, and the pay of laborers, and to enforce their decree. Townspeople are authorized to pronounce, “Anyone seen [dealing with] the authorities [malkhut] shall pay thus and so”. They are authorized to enforce their decree.

(Tosefta Bava Metzia, XI, 23)

The medieval Sages established the institution of communal enactments within the context of communal Jewish autonomy in Christian and Islamic countries and sought to determine its systems and boundaries: the relationship between the public and its religious and political leadership, the relationship between majority and minority, and the guiding principle of public benefit (Elon 1994, pp. 678–779; Kanarfogel 1992; Kaplan 1994, 1996). They also regarded public acceptance as the source of authority for new halakhic legislation. This is how Maimonides, in his introduction to Mishneh Torah, explained the reason why the Babylonian Talmud obligates all Jewish communities (Maimonides 1957, p. 13), and Rabbi Asher ben Jehiel explained why Rabbenu Gershom’s prohibition against polygamy applies to all German Jewry (ben Jehiel 1607, p. 68b; Grossman 1988). Rabbi Zechariah Frankel (1801–1875), founder of the rabbinical seminary at Breslau, which mediated between liberal and Orthodox Judaism (Schorsch 1994, pp. 255–65; Brämer 2000), made these sources central to his overall halakhic method, which emphasized the general will in halakhic jurisprudence as a crucial factor for accepting some moderate reforms while rejecting others: “The will of the people determines what it wants to preserve and uphold, the will of the people supersedes halakha and authority (Frankel 1844, p. 21)”. He believed that the living religious consciousness of the community has the same validity as divine revelation, and therefore, the religious leadership has no authority to carry out reforms in Judaism against the will of the general public, even if they can be justified halakhically. However, according to Frankel, the majority of the public supports certain moderate reforms, and therefore, they can be introduced and halakhically justified (Meyer 1988, pp. 84–89, 105–7). For example, he and his students at the rabbinical seminary supported reforms such as omitting the Av Harahamim prayer on the Sabbath, permitting the use of stam yeinam (wine touched by a non-Jew) and chalav nochri (milk from a cow that was not milked by, or under the supervision of, an observant Jew), and carrying objects in the semi-public domain (‘karmelit’) on the Sabbath (Breuer 1992, p. 14).

It was on this basis that he retired from the Conference of Liberal Rabbis in Frankfurt (1845), following the demand to adopt German as the main language of prayer at the expense of Hebrew. Frankel maintained that explicit Talmudic permission to pray in any language, which was also the ruling in the Shulkhan Arukh, does not prevail over the living religious consciousness of the public, which is strongly connected to the sacred language of the people. Frankel was convinced that emphasizing the authority of the will of the people was a guarantee against radical and reckless reforms. He believed that the people’s historical commitment to halakha would continue to leave its mark, so they were in no hurry to relieve themselves of this burden (Frankel 1844, p. 22).

We do not know whether Kalischer and Frankel were personally acquainted or whether they corresponded, but in at least two cases, Kaliescher praised Frankel. In 1869, following the appearance of the prayer book composed by Rabbi Manuel Joel of Breslau, which was a compromise between the traditional version and that of Abraham Geiger, Kalischer praised Frankel for objecting to toning down the terms referring to virtue and choosing the people of Israel in the prayer book. Some years later, Kalischer relied on the rabbinical ordination certificate, given by Frankel to his student Zelig Gronemann, to recommend the latter for the position of rabbi (Yedidya 2010). In 1862, Frankel thanked Kalischer for donating his book ML to the library of the Breslau Rabbinical Seminary.15

Although Kalischer did not support Frankel’s moderate reforms (Kalischer 1863), his halakhic writings leave place for public opinion in various halakhic spheres. Already in his commentary on the Mishnah (Horayot, 1, 4), written early in his rabbinical career, he opposed the halakhic policy towards stringency when it displeased the public: “The bet din can forbid that which is permissible, because this is probably also what the majority of the public wants (Kalischer 1908, p. 20)”. In his last years, he expressed a similar idea in his commentary on the Chumash, with regard to the policy of the desired ruling of community rabbis, “every dayan or rabbi is forbidden to do anything that the majority of the public is not comfortable with (Kalischer 1876, p. 5)”.

Although many laws in HM ceased to exist in the practical lives of Jewish communities in Central and Western Europe, due to the abolition of communal autonomy, Kalischer referred to the work of establishing halakha and its interpretation as a practical necessity (Kalischer 1855a, preface) and not merely theoretical study, and he edited the two parts of his work accordingly. Kalischer sought to circumvent the problem of the jurisdiction of the Bet Din in a time of weakened communal autonomy, which consequently undermined the relevance of some laws in HM, by emphasizing the principle of public acceptance and public authority for halakhic legislation, in parallel with the transcendent authority of the Torah, as embodied in the ongoing practice of halakhic arbitrators throughout the generations. Although the Chatam Sofer also emphasized the authority of the public to legislate and give their customs the validity of a vow based on the Torah, he was referring to collective acceptance made in the past that is also binding in the present (Kahana 2015, pp. 382–411), whereas Kalischer was concerned with public consent in the present—his own time—when the community had lost its power of coercion, and commitment to halakha was left to the free choice of its members 16.

Rabbi Kalischer’s emphasis on the principle of public acceptance is expressed in various halakhot by his adoption of the halakhic opinions of the Rishonim, which were not expressed as halakha in the Shulkhan Arukh, as well as a new and comprehensive interpretation of this principle. In the 17th and 18th centuries, the leadership of the communities in the German-speaking region was entirely in the hands of community leaders who belonged to the local economic elite, and they seldom needed the consent of the public for their decisions and regulations. The growth of the Ashkenazi communities, at this time, to hundreds and thousands of members made it difficult to always ensure cooperation among their members, as might have been the case in the small communities of the Middle Ages (Meyer 1996, pp. 165–72; Katz 1963, pp. 97–100; Reiner 2006). Rabbi Ya’ir Hayyim Bacharach of Worms claimed that the authority to communal legislation is given to a small group, which was elected by the public, and not to the majority of the public (Berkovitz 2020, pp. 109–12). In contrast to the commentators on HM who preceded him, Kalischer challenged this perception in his halakhic treatise.

In section 2 of HM, Josef Karo ruled that “every Bet Din, even if not ordained in Eretz Israel, if people are involved in criminal offenses, they can adjudicate on killing, property, and all punitive laws, even if there is not complete evidence […] The greatest sage of his generation or the community leaders who have been assigned by the Bet Din”. The source of this halakha is found in the words of the Tanna Rabbi Eliezer ben Yaakov, quoted in the Jerusalem Talmud (Hagiga 2, 2), and in the Babylonian Talmud (Sanhedrin 46a), according to which “a court issues punishments that are not from the Torah […] in order to place boundaries on the Torah”. This halakha gives the Bet Din punitive authority that is not permanent law for the purpose of comprehensive and urgent social rectification (Kirschenbaum 2016). Maimonides ruled these things to be halakha, as did Karo, as we have seen, while limiting the governing body that wields this exceptional authority.

Kalischer limited Karo’s ruling, stipulating that public opinion should also be taken into account when this exceptional authority is put into effect. With regard to the greatest sage of the generation, he followed the interpretation of Rabbi Yitzhak Alfasi and Ba’al HaTurim that “he must be appointed by the Nassi [president] or Resh Galuta [exilarch], or else he should be of such greatness that there is no one in his generation like him, then all of Israel will trust him (Kalischer 1855a, p. 8)”. In the extensive deliberation of ML, he wrote that even the greatest men of the generation, such as Rav Ami and Rav Asi, could not expropriate food prices if the public objects (Kalischer 1855a, p. 10). This went against Sirkis’ interpretation of this halakha, according to which there was no need for public acceptance in the case of Gdol Hador (the greatest sage of the generation).

Regarding the community leaders—the political leadership—Kalischer was even more reserved and wrote, following Mordechai ben Hillel and Eliezer ben Joel Halevi, that the case is that: “the public accepted them as a Bet Din that supervise all their affairs”, and even in such a case, “the community leaders can merely follow the old practice. They should reinforce it through punishments… according to the needs of the community. However, in financial matters such as overcharging or new taxation, which were hitherto not practiced, they have no authority to do so except if the public agree to this (Kalischer 1855a, p. 8)”. On the other hand, Falk, followed by Urim VeTumim and Netivot Hamishpat, wrote in their commentary on this halakha that, for the needs of the public, the community leaders can expropriate money even without public acceptance.

Medieval arbitrators were not always in agreement as to the limits of authority and the coercive abilities of the religious and political leadership in the case of public decisions and the degree of public consent required. Kalischer reduced the cases in which community leaders can introduce new regulations for the public and expanded the cases in which public opinion is required. In fact, he was of the same opinion as Rishonim, who explained that the authority of community leaders depended upon public acceptance rather than their connections, financial status, or abilities, as others maintained (Kaplan 1996)17.

Following this halakha, Isserles ruled that “it is everywhere the practice that the community leaders in their city are like the Bet Din Hagadol, issuing punishments and forfeits as is the custom […] and they must be completely accepted”. Kalischer initially objected to the ruling of Isserles, arguing that, even where the custom authorizes the community leaders to institute regulations, their regulations are not valid if the majority protests, “they are not acceptable if they go against the majority opinion (Kalischer 1855a, p. 9)”. Since the source of their authority is the public, they cannot go against the will of the majority of the public.

The distinction made by Kalisher between the town dignitaries and the public (the townspeople), while pointing to the public as the sole source of authority for the dignitaries, was not self-evident. In 1862, Rabbi Eliyahu Guttmacher (1796–1874) of Gräetz, who was Kalischer’s partner in his plans for the settlement of Eretz Israel, wrote a halakhic answer to Rabbi Shmuel Heller (1803–1884) of Safed discussing the authority of community leaders to impose a regulation and boycott offenders, including the minority that opposes the regulation in the first place. In Safed, as with other Jewish communities throughout the Ottoman Empire at that time, communal autonomy included the authority to boycott religious lawbreakers. In his reply, Guttmacher argued, relying on Rabbi Hananel’s commentary on the above-mentioned Tosefta, that the meaning of the phrase “townspeople” in halakhic literature does not apply to all the residents of the city but only to the “dignitaries”. It is only they who have the authority to impose regulations on the community, not the general public (Guttmacher 1984, pp. 219–24)18. Kalischer ignored this interpretation and referred to the authority of the general public.

Ultimately, he rejected the ruling of Isserles, pointing out that the prevailing custom in his day was to consider public opinion ahead of time and not only in retrospect when there is a protest, a custom he believes should be observed, because the majority of the public follow the tradition of their leaders:

And indeed in these countries and in this generation we see that it is not customary to follow the ruling of Isserles, because the custom in all congregations is that in every important matter such as a new amendment or the appointment of a rabbi or congregational leader or ritual slaughterer, the entire community comes together, and indeed this custom is better for this generation, because in our time we have lost those who, in earlier times, performed all their deeds for the sake of heaven, so it is better not to rely on individuals but rather on the majority.

(Kalischer 1855a, pp. 9–10)

The argument he brought in favor of public opinion was similar to Frankel’s argument for rejecting radical reforms in halakha, although he did not believe that the public had the authority to approve moderate halakhic reforms.

Another halakha in which Kalischer emphasized public opinion relates to section 7 of HM in which Karo ruled, following the Jerusalem Talmud (Yoma 6: 1) and the Arba Turim, that a woman is disqualified from judging. Following this halakha, Kalischer brought two interpretations from the Tosefoth of the Babylonian Talmud (Shevuot 29b), which explained why Deborah the prophetess judged Israel, despite being a woman: A. A woman can teach halakha to the judges of Israel; B. A woman can legislate when the public accepts her as a judge. After debating whether the rulings of a woman who was accepted by the public as a judge has the same validity as those of a man, he said that her judgments are equally valid in every respect (Kalischer 1855a, p. 29). It should be noted that most of the commentators on the Shulkhan Arukh did not refer, at all, to the words of these Tosefoth, with the exception of a few who were quoted in the commentary, Pitchei Teshuvah, only with regard to the first explanation about whether a woman is qualified to teach halakha, similar to the words of the Arba Turim. Rabbi Jacob Ettlinger of Altona quoted the Tosefoth on public acceptance in Arukh Laner, his commentary on the Babylonian Talmud, which was published nine years after ML, anchored in the biblical verse “‘And the Israelites would come to her for decisions” (Judges 4:5)—they came to her voluntarily and accepted her judgments (Ettlinger 1931, p. 67a).

Kalischer also disagreed with Karo, who ruled that a ger (convert to Judaism) is unfit to judge, and wrote that “If the majority of the public sees that there is no one as great in wisdom as he, they can appoint him” to hold the position of judge or any other public appointment to adjudicate on all monetary and criminal matters. The exception is that, even with communal consent, a Ger can’t be anointed as king because “if he does not do so [his task as judge, etc.] faithfully, he can be demoted, but a king cannot be demoted (Kalischer 1855a, p. 28)”. Karo’s ruling is derived from the Babylonian Talmud (Yebamot, 102a), based on the biblical verse that a ger cannot be appointed to a position of authority, including the office of a judge, “You shall be free to set a king over yourself [...] set as king over yourself one of your own people” (Deuteronomy 17:15). This applies to all positions of authority. Kalischer followed Rabbi Chaim Benvenisti (1603–1673), author of the Knesset Hagdolah commentary on the Shulkhan Arukh, who derived the opposite position from the case of Shemaiah and Avtalion, who were appointed presidents of the Sanhedrin despite the fact that they were gerim. His reasoning was that this law exists only in the case when the public is forced to appoint a ger to the position of minister or judge, but if the public accepts it, there is nothing wrong with the appointment, whereas in the case of a king, public acceptance is not helpful because the Torah speaks in negative terms: “You cannot set over yourself a foreigner who is not your brother”, making it clear that public acceptance does not ratify such an appointment.

Kalischer quoted Eibschütz, according to whom Shemaiah and Avtalion were appointed to the position by kings of the Hasmonean dynasty, who were authorized to do so by virtue of royal law (Mishpatey HaMeluchah)—a legal system parallel to the halakhic system (Lorberbaum 2001)—but he rejected him, claiming that “a dayan of the Bet Din and the public are comparable to a king (Kalischer 1855a, p. 27)”, meaning that the public as a whole also has the authority of royal law, not just the king. Kalischer pointed out that the public has the power to appoint a ger and a woman to judge, hold positions of authority, and impose the death penalty, as examples of this principle. The authority of the public to accept a woman and a ger as dayanim is derived from royal law and not because of the dispositional nature of civil law in monetary matters (bKetu., 56a), and therefore, it also applies in criminal law.

He inferred the public’s authority to issue a death sentence from the story of Shimon Ben-Shetach, the president of the Sanhedrin, who ordered 80 witches hanged in Ashkelon in one day (Mishnah, Sanhedrin, 4: 6). This story is discussed in the Babylonian Talmud in the context of the ruling of Rabbi Eliezer ben Yaakov, “A court rules and punishes not from the Torah”. Kalischer understood it to mean that the special authority of royal law also extends to the public who made the appointment. In section 2, which discusses this rule, he emphasized the importance of public consent in enforcing this rule. Apparently, he came to this conclusion because he did not find a satisfactory explanation for the special authority of the Bet Din to act contrary to halakha.

This view is similar to that of Rabbenu Nissim Girondi (1315–1376), according to whose dynamic interpretation the powers of the Bet Din, in reality, include societal duties unique to the king in the conceptual governmental model (Brand 2010; Stone 2008; Harvey 2013). Kalischer also acknowledges alternative Batei Din, which operate by virtue of royal law, where the criteria for appointing judges and the authority to administer punishment are different from the traditional Batei Din. Instead of having royal power suffice, Kalischer holds that their power comes from the public. He recognized the general public as the source of the Bet Din’s authority since “they are like the emissaries of all of Israel (Kalischer 1855a, p. 27)”. In fact, he was several decades ahead of Rabbi Kook, who addressed the issue of the proper form of government at the present time when a king could not be appointed and believed that governmental power was in the hands of the entire people (Ben-Artzi 2010, pp. 81–86). Unlike Kook, Kalischer believed that, even during the Hasmonean period, the general public had the authority to act in accordance with the laws of the monarchy.

In section 27, which deals with the prohibition to curse a person in God’s name, which is derived from the verse “You shall not curse the deaf” (Leviticus, 19:14), Karo ruled that, if a person curses a dayan, “He will receive lashes, because it is forbidden to curse a judge”. Kalischer commented in Mishna Aharona “It is written in the Tumim that at this time, when dayanim have no authority, the ban does not apply. I have written in ML that anyone who is accepted by the whole public as a Rabbi and Av Bet Din it is like an ordained dayan and therefore obligatory (Kalischer 1855a, p. 163)”.

Thus, according to Kalischer, when the public accepts a dayan he holds the position of an authoritative sage, and, accordingly, whoever curses him violates the Torah prohibition of “You shall not curse God” (Exodus, 22:27), which does not apply in the case of a dayan that the public did not accept. In this halakha, too, there is a symmetry between the authority of the public and the transcendental authority revealed in the Oral Torah. Not only does the public have the authority to appoint dayanim whom the halakha refrains from appointing, but the judges that the public accepts enjoy a status parallel to the status of the Sages, who have been consecutively ordained by virtue of the authority of Moshe Rabbeinu.

Another aspect of the great significance of the fact that the public accepts the dayan can be seen from his quoting Urim veTumim, at the end of section 3, with regard to a situation where the government forces the public to accept a dayan. Rabbenu Tam, Rashbam, Rabbi Avraham ben Nathan, and 150 rabbis imposed an ancient ban “that no person may take power, not by a king, etc., if the majority of the congregation does not appoint him (Kalischer 1855a, p. 16)”. Although in an era when communal autonomy had been abolished, so such a sanction could no longer be applied, Kalischer chose to bring these things to halakha to emphasize the importance of public acceptance of the dayan who wields authority and the deep aversion to people who use their power to do so against the will of the public.

Kalischer could count on public acceptance as another pillar of halakhic authority that would not lead to reform because, in the region where he resided—the Polish territories of Prussia—throughout the first half of the 19th century, acculturation processes lagged behind other German areas, and most Jews remained faithful to tradition. Even those who violated halakha did not challenge its legitimacy (Myers 2003, pp. 74–82; Lowenstein 1992, pp. 85–87). In his hometown of Thorn, this situation persisted until the 1860s. It was not until 1863, 8 years after the publication of ML, that Kalischer wrote in HaMaggid newspaper about a non-radical change in this aspect, when Moritz Rahmer (1837–1904)—a student of Zechariah Frankel at the Jewish Theological Seminary in Breslau—was appointed rabbi of the community:

Until now, this city in which I have lived for some forty years was a faithful city. Crooked ways were stopped by choosing the straight path, and the footsteps of the sheep made a path to our God through zealous guarding of our holy ancestors’ ways. But now new faces have come here.

(Kalischer 1863; Translated in Myers 2003, p. 193)

By the mid-19th century, on the other hand, Orthodox rabbis in large communities, such as Berlin, Frankfurt, and Hamburg, could no longer trust that public consent would not lead to reform.

8. Conclusions

In conclusion, Kalischer’s unfinished halakhic work was an attempt to bring an end to the halakhic codex of HM, not by composing another commentary on the Shulkhan Arukh, or by an independent halakhic treatise such as Hayye Adam and Arukh Hashulkhan, but by completing the text of the Shulkhan Arukh itself, as did Isserles in his day. He approached this enterprise out of the same self-awareness, of one destined to make his mark, that accompanied his proto-Zionist work.

Apart from all the halakhot which were renewed in the batei midrash (study halls) of commentators and the halakhot of the medieval sages, which were absent from the Shulkhan Arukh and HaMapah, this codex also contains the sources and reasons for the halakhot, including more extensive writings such as Maimonides’ Mishne Torah and HaLevushim of Rabbi Mordechai Yoffe. This work purported to present practical, rather than theoretical, halakha, such as some parts of Maimonides’ halakhic work. He sought to resolve the violation of the authority of communal autonomy, which was characteristic of his time and affected the relevance of the laws of HM, by emphasizing an alternative source of authority to that of transcendental authority—public consent.

For Kalischer, consideration of public opinion lay at the heart of his halakhic enterprise. He partially supported Zechariah Frankel’s view that this principle has the power to reject halakhic reforms that are unacceptable to the majority of the public19. He even extended it to a ruling that the legislative, executive, and punitive authority of royal laws is vested in the general public, just as it is vested in the king. In his view, public authority is not limited to community legislation but also wields the power of royal law, which parallels the halakhic legal system. At a time when batei din had been stripped of their powers of jurisdiction due to the abolition of the legal autonomy of the Jewish community, Kalischer placed halakhic authority on the same footing as transcendent authority—the authority of the general public.

Kalischer could rely on the consent of the public because, in the region where he lived and worked, especially in his city of Thorn, most Jews remained faithful to tradition. In earlier times, the organization of the community was based on the sanctity of tradition, and the authority of the rabbinate representing it increased in the 17th and 18th centuries (Katz 1963, pp. 108–11), but in the age of hasskalah and emancipation, the rabbinate lost its prestige and its monopoly as the representative of the sacred tradition. Consensual authority was more in line with the liberal-democratic winds that were beginning to blow across Europe during this period, as the continuity of tradition was becoming more voluntary and less dictated from above. The involvement of the public in the halakhic-legal system can create a renewed commitment to this system when the public endows rabbis and dayanim with authority on the one hand, whereas on the other hand, the rabbis and dayanim, as emissaries of the public, operating within the halakhic framework, must also take public opinion into consideration20.

ML did not leave its mark on halakhic literature as Kalischer had hoped. With the abolition of communal autonomy, the legislation of dayanim and testimony lost their practical relevance, and among scholars, treatises focusing on the scholarly-theoretical aspects, such as the Ketzot Hacoshen, took the place of works aimed at halakhic rulings. However, Kalischer’s support for more democratization of the religious leadership, and the halachic legitimacy for the inclusion of women in it, was several generations ahead of the modern orthodox discourse on similar religious issues.