Response to Haym Soloveitchik,“The People of the Book: Since When?” in Jewish Review of Books, Winter 2012, pp. 14-18.

by tfishman2012

Talya Fishman

Kislev 5773


Reading Professor Soloveitchik’s remarks, I was unable to recognize the book that I wrote. I hope to demonstrate this to readers who have not yet read Becoming the People of the Talmud: Oral Torah as Written Tradition in Medieval Jewish Cultures, and who share my respect for Professor Soloveitchik’s rabbinic erudition. His misrepresentations skew the book’s claims and distort  its very subject. His wish is that my book might “sink…under the weight of its own insufficiencies.” My wish is that people read it, and judge for themselves.

An Outdated Paradigm and an Alleged Revolution

Academic students of Talmud and of geonica are well aware that the narrative Professor Soloveitchik unreservedly affirms is outdated. As a paradigm, it is inadequate, for it cannot account for anomalous and unignorable data. One need not be “radical” to acknowledge the need for a fresh assessment of the roles that the Babylonian Talmud played in Jewish culture from the era of the geonim through the twelfth century. The search for a new paradigm is impelled not by the student who engages scholarship and seeks to advance it, but by the accumulation of historical anomalies.

Becoming the People of the Talmud’s Portrait of the Geonim

The notion that the Geonim of the seventh through eleventh century were all-powerful Jewish authorities, who legislated from binding precedents in the Babylonian Talmud, has been challenged by a variety of findings, all quite soberly analyzed. Five centuries of Geonim did write thousands of responsa and many of these invoked the Babylonian Talmud, but this fact, in and of itself, does not “attest to the normative standing of the Talmud by the beginning of the ninth century, if not somewhat earlier,” as Professor Soloveitchik asserts.

For one thing, it does not take into account how the Talmud was used in the geonic responsa. When asked about the textual basis for certain laws, Geonim, at times, ignored talmudic teachings outright; in other cases, they invoked the Mishnah in ways that deviated from the approaches of the Amoraim, rabbinic predecessors of  the third through sixth centuries, whose teachings are preserved in Talmud. And when Geonim did adduce talmudic passages, they did not always select the most relevant ones.[1]

The inherited paradigm is also challenged by the discovery that Jews living far from Baghdad were nowhere near as dependent on the Geonim for legal guidance as earlier generations of historians had assumed.[2] This realization (discussed in Becoming the People of the Talmud) emerges quite pointedly from Professor Menachem Ben Sasson’s study of geniza materials pertaining to the Jews of Qayrawan (in today’s Tunisia).[3]

Beyond this, geonic responsa did not present Talmud as a stand-alone source of prescriptive authority, but as a source that needed to be consulted in tandem with living testimony. This explains why many responsa conclude with some variant of the phrase, “this is halakha [the Talmud’s legal teaching] and this is ma’aseh [attested practice].”[4]

Indeed, the strongest challenge to geonic segment of the narrative restated by Professor Soloveitchik comes from the Geonim themselves. Becoming the People of the Talmud discusses responsa in which heads of the Babylonian yeshivot steered questioners away from centralized authority, and enjoined them to maintain the practices of their own regions. In certain cases, Geonim actually insisted that these local traditions be ascribed greater weight than the teachings of the Babylonian Talmud itself. A perspective forcefully articulated by none other than Hai Gaon (939-1038), the last gaon of the Pumbeditha yeshiva, should make it clear that primary sources (and not my own “revolutionary” claims, pace Professor Soloveitchik) necessitate the search for a new paradigm.

In the late tenth and early eleventh centuries, Qayrawanese Jews wrote to the Babylonian academy of Pumbeditha because they were concerned that a longstanding local Rosh HaShana practice was at odds with a talmudic teaching that they had only recently encountered. The respondent, Rav Hai Gaon, answered with considerable vehemence. The questioners, he thundered,  should follow the ways of their ancestors. Raising this to the level of a principle, Hai asserted that the ultimate guarantor of the authority of any belief or practice is not a text, but, rather, the consensus of the Jewish people. Be it Torah, Mishnah, or Talmud, he insisted, no corpus can be authoritative in the absence of living authentication. After all, reasoned Hai, what guarantees the veracity of any of these corpora? How can Jews be certain that the Torah they revere is actually the text that was given by God to Moses? Were it not for the testimonies of living people, writes Hai, Jews might even doubt the written Torah itself!

“… regarding the essence of the written Torah: How are we to know that it is indeed the Torah of Moses, that which he wrote from the Mouth of the Almighty, if not through the mouth [attestation] of the Community of Israel! After all, those who testify to it are the same ones who testify that, through this deed, [blowing the shofar in a certain manner] we have fulfilled our obligation; and [who testify that] they received this by means of tradition, from the mouths of the prophets, as Torah transmitted to Moses at Sinai. It is the words of the multitudes that testify to [the authority] of each mishnah and every gemara.”[5]

According to Hai Gaon, when living traditions are in conflict with talmudic teachings, the former must prevail. This clearly-stated view hardly meshes with Professor Soloveitchik’s rendition of the “standard version”, with its claim that “[b]y 800-825 C.E. the supremacy of the Babylonian Talmud was assured… [Its] rulings were accepted as normative by Jews throughout the Muslim world …” There is no doubt that the question posed by the Qayrawanese Jews attests to their willingness to be guided by the Geonim and by the Talmud. But Rav Hai’s response reveals that the Gaon himself did not regard the Babylonian Talmud, on its own, as the “normative” or supreme source of authority. His central point was that legal teachings in the talmudic text were  to be regarded as prescriptive only when they were corroborated by living tradition, i.e., practice. Hai’s perspective is quite different from that embraced by later medieval halakhists, yet the historiographic narrative endorsed by Professor Soloveitchik effaces this difference through anachronistic retrojection.

On Corpora that are “Normative,” and on Texts that are “Open” or “Closed”

Professor Soloveitchik ascribes to me the claim that “the Talmud became normative only in the course of the twelfth and thirteenth centuries.” Neither the beginning nor the end of this phrase is correct. Becoming the People of the Talmud pointedly avoids referring to the Talmud as “normative” for a number of reasons. To begin with, the study that I have undertaken is not equipped to measure “normativity;” this type of assessment may come into clearer (if not crystalline) focus as social and cultural historians of the Jewish Middle Ages complete more microhistorical research on specific arenas of behavior.[6] Apart from this, the term “normative” obscures historical complexities and reinforces a conceptual error: Cultural authority has never taken one single form; it has always been shaped (and reshaped) by a web of nuanced factors. The book I wrote highlights changes in the ways that the Talmud was used in different places and times, but identifies no single development or phenomenon as the “flipped switch” that made the Babylonian Talmud “normative”.

Similar errors of misattribution and apparent miscomprehension appear in Professor Soloveitchik’s ascription to me of claims that the talmudic text “was seen as an open book, especially in Ashkenaz, as scribes added to and subtracted from the text at will… It was the tosafists who closed the book of the Talmud, and made the Jews its people.” Nothing of the sort appears in Becoming the People of the Talmud.  I did not (and would not) use the terms “open” or “closed” because this binary is insufficiently nuanced to describe degrees of a text’s standardization, or to account for the types of reworking wrought by medieval copyists and readers. Moreover, the perspective that Professor Soloveitchik caricatures appears not in the book I wrote, but in writings by the late Professor Israel Ta Shma.[7] Becoming the People of the Talmud also makes no claims about “the so-called ‘Ashkenazi text’ of the Talmud (the one Fishman maintains was systematically emended and improved by Tosafist lights)…”  This imputation, along with those mentioned above, reveals that Professor Soloveitchik is tilting at (and provoked by) claims that I have not made and that I do not endorse. 

A Book Centered on the Tosafists? NOT!

One of the most surprising aspects of Professor Soloveitchik’s remarks is his framing of Becoming the People of the Talmud as a work centered around  the 12th and 13th century talmudic glossators. His reference to “the tosafists, whose oeuvre constitutes a major crux of her argument” is simply spurious. In a book with six chapters, my discussion of the Tosafist enterprise as a whole (and not only the glosses) is limited to several pages of a chapter entitled, “Textualization of North European Rabbinic Culture: The Changing Role of Talmud.” While it is true that the cultural undertakings of the Tosafists constitute a chronological endpoint of that chapter–which begins with an exploration of tenth century developments in Ashkenazic rabbinic culture– they are no more a chronological endpoint of the book than are the Rhineland Pietists, a subject treated in an entire chapter, about which Professor Soloveitchik is silent. (See below.)  Professor Soloveitchik’s construal of  a book with a vastly different focus and scope — chronologically, geographically and culturally– as a study of the Tosafists may testify to his failure to understand Becoming the People of the Talmud. Whatever the reason for his peculiar act of framing, it affords him the opportunity to stage a turf war over the  talmudic glosses themselves, and then to cast me in the role of a ludicrously unqualified encroacher. As any other reader of my book can attest, neither the glosses, nor their composers, constitute “a major crux” of  my book.

As a work of cultural history with its own arc of inquiry, Becoming the People of the Talmud is interested in tracking those concerns or perspectives voiced between (loosely) the tenth and twelfth centuries, that might be construed as markers or witnesses to certain types of Jewish cultural change. For this reason, the book’s subjects include not only the Tosafists, but the culture of the geonim; eleventh century Qayrawanese rabbinic commentators; Andalusian halakhists and poets, the Tosafists’ northern European rabbinic predecessors; medieval Jewish criticisms of curricular talmudo-centrism; the prominence of custom in medieval Ashkenazi culture; the worldview and practices of Rhineland Pietism, and even the burning of the Talmud by thirteenth century Christians. None of these cultural developments are merely of peripheral interest or importance. They collectively map the historical matrix within which the Tosafists have an important — but not the most important– place.

Describing the Cultural Activities of  the Tosafists

Other misrepresentations by Professor Soloveitchik pertain to Becoming the People of the Talmud‘s depiction of the Tosafists. Here is one: “Take her central claim that the tosafists focused on the concrete applications of Talmudic law, on turning the abstract formulations of the Talmud into a halakhic regimen, that they were preoccupied with the practical..” Another is his attribution to me of the position that the Tosafists “were not theoretically oriented, but were profoundly practical men. They sought to regulate the religious life of the Jews through the text that they had stabilized and succeeded in their endeavor by authoring a dense series of written instructions, issuing practical codes and detailed handbooks which summarized the upshot of the newly fixed talmudic discussions.” None of this is actually claimed in the book. I do not describe the Tosafists as figures who “focused on” or “were preoccupied with” either “concrete applications” or “the practical.” Nor is any claim about the Tosafists “central” to Becoming the People of the Talmud, as mentioned above.

In his own scholarly writings, Professor Soloveitchik emphasizes that the masters of dialectical virtuosity who crafted the Tosafot showed little interest in practical law. This point is of no small importance within the world of the yeshiva, for in that devotional setting, it is the dialecticians’ very disconnectedness from applied law that makes them paragons of  lomdei Torah lishma, i.e., those who study Torah (or more precisely, Talmud) for its own sake. When viewed solely through the lens of their talmudic glosses, the Tosafist scholars are peerless cultural models for all who aspire to fulfill this religious ideal.

But the work I have written is interested in the Tosafists for a different reason. Becoming the People of  the Talmud attempts to track any concerns or perspectives expressed by these scholars that might be construed, within a bounded historical framework, as markers of cultural change. Professor Soloveitchik seems to think that perspectives of  Rabbenu Tam preserved in Sefer HaYashar (outside the talmudic glosses) are of negligible importance, because they are  proportionally insignificant within the larger oeuvre of this Tosafist. Such a calculus is irrelevant to the historical inquiry undertaken in my book. From Becoming the People of the Talmud’s perspective, Rabbenu Tam’s concern with textual emendation and his predilection for consulting what he referred to as “old books” are made no less significant by considerations of proportionality.

The following example, one incident discussed in Becoming the People of the Talmud, (that Professor Soloveitchik does not mention) illuminates perspectives that would be lost were the Tosafists’ cultural profile constructed solely from their talmudic glosses. Sefer HaYashar preserves a sustained vitriolic exchange between Rabbenu Tam and Rabbenu Meshullam concerning the manner in which the Talmud was to be deployed in the service of legal decision-making. Like their geonic predecessors, both parties to this twelfth century debate understood – and maintained– the ancient rabbinic distinction between halakha and halakha le-ma’aseh; that is, they distinguished between a received legal teaching, and an attestation that the teaching in question was one implemented in practice. In other words, both scholars realized that talmudic legal teachings needed to be mediated, or vetted, before they could be presented as applied law.  They differed, however, over the precise sources of authority that were to be used, together with the Babylonian Talmud, in deciding law.[8] There is no doubt that both parties regarded the Talmud as “normative”(!), yet nothing less was at stake in this altercation than rabbinic legal epistemology itself.

This medieval feud challenges Professor Soloveitchik’s assertions in several ways. It reveals that the Tosafist, Rabbenu Tam, was not solely a dialectician, uninterested in practical matters of applied law. The debate,  preserved in a primary source, also constitutes an important “anomaly” to the historiographic narrative restated by Professor Soloveitchik. It demonstrates quite boldly that, as late as the twelfth century,  there was no rabbinic unanimity regarding the manner in which Talmud was to be used in adjudication.

Of Oral Culture and Textualization:

Though he credits me with writing “simply and clearly,” Professor Soloveitchik has apparently failed to understand that Becoming the People of the Talmud portrays the Babylonian Talmud’s path to cultural preeminence in northern European Jewish communities as a slow and undirected process. This process, better studied in other societies of medieval Europe, is referred  to in my book as “textualization.” Cultures and communities that underwent textualization came to ascribe greater value to the authority of the written word than to the oral testimonies and performances that had previously been privileged. Degrees of textualization can be discerned in the types of relative authority that a society imputes to written texts, on the one hand, and to human models, on the other. Degrees of textualization can also be seen in a community’s social hierarchies, reading habits, compositional predilections, classroom practices, approaches to adjudication (i.e., pesiqa or pesaq halakha) and assessments of the past. Textualization, as described in my book, is emphatically not about “the cultural transformation of Western Europe as its society shifted from orality to literacy,” as Professor Soloveitchik avers. I go out of my way in Becoming the People of the Talmud (e.g., pages 9 and 111) to emphasize that textualization does not correspond to a rise in literacy, or to the ability to write things down, or to the moment that specific oral traditions begin to circulate in writing.

Professor Soloveitchik’s ascription to me of the claim that “the leaders of the inscriptive process were the Tosafists” is false. My book notes quite clearly that the commitment of rabbinic traditions to writing in Ashkenaz dates back as least as far as Rabbenu Gershom, many generations earlier. If Professor Soloveitchik meant to ascribe to me the claim that the Tosafists were leaders of the textualization process, he would be equally incorrect. My book attempts to reconstruct the process through which northern European Jewish culture was transformed from one that privileged the authority of oral traditions and revered the masters who transmitted them, to one that privileged the authority of the talmudic text and admired those most adept at its analysis. But it does not regard any particular agent (or agents) as having “led” this process.

Another indication of Professor Soloveitchik’s seeming failure to grasp the concept of textualization appears in a comment that purports to describe my own argument. Referring to my book’s discussion of a particular ramification of the textualization process, he notes that, in certain medieval Christian populations, “‘charismatic figures’, ‘living repositories of tradition’ were replaced by ‘literate professional administrators.’” Immediately following this statement, Professor Soloveitchik asserts the following: “The halakhah in Northern Europe, Fishman claims, followed roughly the same path.” This is untrue. Though Professor Soloveitchik himself here equates “halakhah” with the types of human figures whose personal qualities, paths of training and preferred modes of transmission played a role in legal decision-making, I myself have never equated them, nor would I. Becoming the People of the Talmud is concerned with the ways that legal and other traditions are packaged and transmitted, but does not deal with halakhah, per se.[9]

Notwithstanding Professor Soloveitchik’s peremptory assertion that “the entire notion of orality in pre-tosafist Ashkenaz, which is developed by Fishman…is without foundation,” it would be hard to overstate the importance of the scholarship of Clanchy, Carruthers and Stock, for students  of medieval Jewish culture. Separately and collectively, their studies on medieval Christian Europe demonstrate that the very manner in which a tradition is transmitted – through oral communication and performance on the one hand, or through written texts which must be read, on the other—  affects the way in which recipients use the tradition, and the type of cultural authority that they ascribe to it. (Professor Soloveitchik himself communicated this insight in his eye-opening essay of 1994, “Rupture and Reconstruction.”)[10]

The relevance of this body of general scholarship for medieval Jewish culture has been made all the more obvious by academic scholarship in rabbinics. Not only has Yaacov Sussman determined that the Babylonian Talmud, a vast corpus of Oral Torah, was orally transmitted through the end of the amoraic period, Nahman Danzig has advanced the claim that oral transmission of Talmud was de rigeur in the geonic academies of Babylonia, through the mid-eleventh century.[11] These dramatic findings must be considered in conjunction with Robert Brody’s observation that the written text of the Babylonian Talmud continued to be lexically fluid through the end of the geonic period.[12] They are also of interest given Yonah Frankel’s determination, from manuscripts, that the definitive reading of one of Rashi’s talmudic glosses portrays the inscription of Talmud as a relatively recent development. Without supplying any substantive chronological reference points, Rashi contrasts the transmission practices of amoraim with those of later generations as follows:

“For in their days, the Talmud was not in writing, nor was it permitted to write it. However, because the hearts have become diminished, our generations have begun to write it.”[13]

Anyone who considers the implications of studies pertaining to oral-memorial culture and textualization in the Christian Middle Ages must, at the very least, contemplate the following possibility: The disparate roles that the Babylonian Talmud played in geographically remote medieval Jewish communities (such as those of Sepharad and Ashkenaz), both in pedagogy and in adjudication, cannot be separated from the ways in which Jews of each region encountered the Talmud’s teachings. Professor Soloveitchik might be correct in describing the ramifications of  orality studies as revolutionary, but disparaging the messenger is pointless.[14]

Overuse of Secondary Sources?

I deliberately brought diverse fields of scholarship into conversation by drawing on a broad range of secondary sources. Had I not done so, it is unlikely that Becoming the People of the Talmud could have offered  rudimentary answers to riddles like the following: The Jews of  Sepharad and of Ashkenaz, two rabbinic subcultures that emerged and developed only in the Middle Ages, both acquired familiarity with the Babylonian Talmud from the post-talmudic academies near Baghdad, and both communities acknowledged the authority of the Geonim as bearers of tradition.  Yet in their continuation and development of rabbinic scholarship, savants of medieval Sepharad were inclined to produce codes of law, which Sephardi Jews consulted for guidance, while those of medieval Ashkenaz were inclined to produce talmudic commentaries, which did not yield practical guidance. Why? These striking differences can be (and are) explained in Becoming the People of the Talmud, but only because the book explores a range of intertwined questions that are discussed in secondary works of scholarship, as well as primary sources: When did written texts of the Babylonian Talmud (or parts thereof) first circulate in the region in question? Were these texts of Oral Torah regarded as the definitive and stand-alone embodiments of Tradition, or were they regarded as written approximations, whose practical utility could only be determined through oral elaboration and consideration of  lived practice? What cultural weight did the community in question ascribe to written texts with legal content, especially when their teachings were not in synch with lived practice and orally-transmitted traditions?  Was the specific population in possession of a talmudic text a community that had undergone a slow and undirected cultural process of textualization, so that it came to ascribe greater value to the authority of the inscribed word than it had, previously, accorded oral testimony and performance? Is it mere coincidence that the Sephardic and Ashkenazic communities that contributed to post-talmudic rabbinic scholarship in such disparate ways had been related quite differently to the now-defunct Roman Empire? After all, Qayrawan and Al-Andalus had been located in the heartlands of a society whose administration and culture privileged the written word. The Rhineland communities, on the other hand, were located on the frontiers of that empire, in an area which resorted to custom – a source of authority transmitted mimetically, through performance and oral teaching— for several centuries following the fall of Rome. If written teachings and orally-transmitted traditions, two sources of cultural authority, are not always in synch, and if the weighting of one source over the other reflects regional values and assumptions, shouldn’t historians of medieval Jewish culture explore the ways in which the dominant populations of a given locale, Muslims or Christians, related to and used their own authoritative written texts?

Matters Left Unsaid: Debates over Historical Interpretation

Readers of Professor Soloveitchik’s remarks would never know that Becoming the People of the Talmud discusses two debates over historical interpretation in which Professor Soloveitchik is heavily invested.  Nor would they know that I argue against his views in the book. My chapter-long study of Rhineland Pietism (Hasidut Ashkenaz) directly challenges Professor Soloveitchik’s claim that this short-lived cultural phenomenon was of little importance in the history and culture of Ashkenaz.[15] By casting a broad net, Becoming the People of the Talmud suggests how and why a group that lasted only three generations had a cultural impact so disproportionate to its lifespan. Only those who actually read the book will be in a position to evaluate the cogency of a thesis that situates Pietism within the context of textualization. Becoming the People of the Talmud makes sense of Pietism’s sudden emergence into literary visibility by portraying Haside Ashkenaz as the consolidators and scribes of long-held regional attitudes and practices that had never before been consigned to writing. It also explains Pietism’s equally sudden disappearance from the historical scene by reconstructing its “domestication.” Once Rhineland Pietists consigned their previously oral traditions to writing (even incorporating their perspectives into conventional literary genres), they wrote themselves out of existence.

Becoming the People of the Talmud also treats a fraught academic debate in which Professor Soloveitchik has locked horns with several historians of medieval Jewry. Scholars are divided over how to interpret the behavior of  Rhenish Jews, who, in 1096, violated the halakhic prohibitions of suicide, and even of murder, while facing crusading attackers. Was their legally transgressive behavior the response of  Jews who, as a rule, observed the law meticulously ,but who, under such extreme circumstances, simply could not, and did not, seek to act in accord with the demands of halakha? Professor Soloveitchik has advanced this perspective with lengthy arguments on several occasions. An alternative perspective, set forth  by Avraham Grossman and augmented by others, suggests that the Rhineland Jews of 1096 committed these deeds with forethought, conceiving them not as transgressive acts, but as ones that fulfilled the Divine Will. They were able to perceive their acts in this way, argues Grossman, because talmudic halakha was not the lone, or preeminent, source of cultural authority that shaped their worldview and religious ideals. At the time, contends Grossman, Jews of Ashkenaz ascribed comparable importance to traditions that they received through non-legal channels, like aggada and piyyut. Along with Sefer Yosippon, (whose author was – wrongly– understood to have lived at the time of the Temple’s destruction) these corpora relayed accounts of Jewish martyrdom in antiquity. And because the Jews of the Rhineland ascribed some measure of cultural authority to non-halakhic sources from the past, argued Grossman, they adopted martyrdom as a model for their own behavior, thereby infusing their own deaths and those of their children with sacral meaning. In presenting these conflicting scholarly interpretations, Becoming the People of the Talmud asserts that the matter is destined to remain one of speculation and opinion, unless new manuscripts are discovered. But my book also suggests that Professor Soloveitchik’s perspective involves a retrojective reading from the twelfth century, while that of Professor Grossman (and others) seems to emerge from pre-twelfth century sources.


My aim in writing Becoming the People of the Talmud: Oral Torah as Written Tradition in Medieval Jewish Cultures was to contribute towards bridging the largely separate domains of rabbinic scholarship and cultural history, that each might enrich the other. Given the book’s ambitious scope, I knew that errors would be inevitable, and Professor Soloveitchik has identified a few. I thank him for pointing out those that I acknowledge. In the academic environment that I inhabit and cultivate, scholars turn to others with greater knowledge in their own specialized arenas in order to improve their own work, and they do so without shame. Conscious of  my limitations, I will take Professor Soloveitchik’s corrections to heart, as I have in the past, and I will make changes, as warranted, in a future edition of the book. These corrections in no way undermine either the book’s thesis or the wealth of supporting evidence it presents.


On Errors, Perceived and Real: The Author and the Critic


[1] On this, see Uziel Fuchs, “Darkhe ha-hakhra’a, samkhut shel teqstim u-muda’ut ’aẓmit: Hirhurim ’al darkhe ha-pesiqa be-shalhe tequfat ha-geonim,’’ in Sugyot be-Meḥqar ha-Talmud: Yom ’Iyyun le-Ẓiyyun Ḥamesh Shanim le-Fetirato shel Ephraim E. Urbach (Jerusalem, 2001) 100–124; David Sklare, Samuel ben Hofni Gaon and His Cultural World, (Leiden: Brill, 1996)94n88.

[2]  The paradigm itself was heavily shaped by Sefer HaQabbalah, a tendentious twelfth century chronicle, whose author, Abraham ibn Daud, portrayed the Jews of Spain as having triumphantly declared independence from the hegemony of the Babylonian Geonim. Professor Gerson Cohen’s analysis of this chronicle (and of the ‘‘Tale of the Four Captives’’ in particular), questioned its portrait of animosity between the Andalusian Jewish community and the Babylonian geonim, and demonstrated ways in which Ibn Daud had engaged in historical distortion. G.D. Cohen, Sefer Ha-Qabbalah: The Book of Tradition by Abraham Ibn Daud (Philadelphia, 1967).  On Genizah research corroborating Ibn Daud’s tendentiousness, see Robert Brody, The Geonim of Babylonia and the Shaping of Medieval Jewish Culture, (New Haven, 1998), pp. 12–13.

[3] Menaḥem Ben Sasson, Ẓemihat ha-Qehilah ha-Yehudit be-Arẓot ha-Islam: Qayrawan, 800–1057 (Jerusalem, 1996).

[4] The phrase ‘‘Ve-khen halakhah, ve-khen minhag’’ or ‘‘ve-kakh halakhah, ve-kakh minhag’’ appears, for example, in B.M. Levin, Oẓar ha-Geonim, Ket., responsa 474; Git., responsa 162; Seder Rav ‘Amram, Sukkot, ‘‘ve-hakhi de-amar.’’ See G. Libson, ‘‘Halakha and Reality in the Geonic Period: Taqqanah, Minhag, Tradition and Consensus,’’ in The Jews of Medieval Islam: Community, Society and Identity (Leiden, 1995),  p. 91.

[5] Italics are mine. In B.M. Levin, Oẓar HaGeonim, RH, Responsum 117 (Haifa and Jerusalem, 1928-1943), pp. 61-62.

[6] English works that illuminate the relationship between (even prescriptive) talmudic teachings and practices of medieval rabbinic Jews, include Joseph Shatzmiller, Jews, Medicine, and Medieval Society;  Ivan Marcus, Rituals of Childhood: Jewish Acculturation in Medieval Europe; Ephraim Kanarfogel, Peering Between the Lattices: Mystical, Magical, and Pietistic Dimensions in the Tosafist Period; Avraham Grossman, Pious and Rebellious: Jewish Women in Medieval Europe;  Elisheva Baumgarten, Mothers and Children: Jewish Family Life in Medieval Europe;  Israel Yuval, Two Nations in Your Womb: Perceptions of Jews and Christians in Late Antiquity and the Middle Ages.

[7] In English, see  Israel M. Ta Shma, “The Open Book in Medieval Hebrew Literature”, Creativity and Tradition: Studies in Medieval Rabbinic Scholarship, Literature, and Thought, (Cambridge, MA: Harvard University Press, 2006) chapter 13.

[8] Rabbenu Meshullam based his jurisprudential conclusions not only on Talmud, but on Torah and Mishnah as well; indeed, he ascribed a similar cultural status to all three of these corpora. Other works of Jewish tradition, on the other hand—such as midrashic compositions, Massekhet Soferim, and writings by earlier scholars from Babylonia, Qayrawan, al-Andalus, and Ashkenaz— were, in his opinion, irrelevant to the adjudicatory process.  Rabbenu Tam, on the other hand, regarded extra-talmudic writings such as midrashim, works of the geonic period, texts written earlier in Ashkenaz, Sefer Yosippon, and even the apocryphal book of Judith as necessary complements to Talmud.

[9] My assertion in the book’s Introduction (Becoming the People of the Talmud, p. 4), that “I am neither a scholar of halakhah nor a historian of halakhah”, is interestingly modified by Professor Soloveitchik: “Fishman states modestly in the introduction that she is neither a medievalist nor a Talmud scholar.”

[10] H. Soloveitchik, ‘‘Rupture and Reconstruction: The Transformation of Contemporary Orthodoxy,’’ Tradition 28 (1994): 64–130.

 [11] Yaakov Sussman, ‘‘‘Torah she-be-’al peh’—peshutah ke-mashma’ah: Koḥo shel qoẓo shel yod’’, Meḥqere Talmud 3 (2005): 209–384; Nahman Danzig,‘‘Mi-talmud ‘al peh le-talmud be-khtav’’, Sefer ha-Shana Bar Ilan 30–31 (2006): 49–112.

[12] Yeraḥmiel Brody, ‘‘Sifrut ha-geonim ve-ha-teqst ha-talmudi”, Meḥqere Talmud 1 (1990), 279n172, 238–40.  Cf. Sussman, ibid, 278, 304, 319, 342n57, 344n61.

 [13] Italics are mine. Rashi on BT,  BM 33a, ‘‘ve-eyna midah.’’ Though the standard Romm edition of the Gemara says ‘‘be-dorot aḥaronim,’’  (i.e., “recent/later generations [began to write it]”), the formulation cited above, ‘‘be-doroteinu,’’ (i.e.,” in our generations”)  is found in Bodleian ms. 429; British Library ms. 412; JTS ms. (Porges collection). This is pronounced the definitive formulation in Yonah Frankel, Darko shel Rashi be-Ferusho la-Talmud ha-Bavli, (Jerusalem,1980) 32n56. Cf. N. Danzig, op cit.,  61n46.

[14] That this is the case even in the academic study of rabbinics may be seen, for example, in Professor Martin Jaffee’s Torah in the Mouth, in a range of Hebrew studies by Professor Shlomo Naeh, and in Professor Sussman’s conjecture that Jews living between the fifth and eighth centuries may well have raised objections to the consignment of oral matters (devarim she-be’al peh) to writing, though such reactions cannot be retrieved. Sussman framed the problem in cross-cultural terms, noting that the inscription of oral traditions triggered powerful protest  within other cultures that had once vigilantly guarded the orality of specific corpora.

[15] See H. Soloveitchik, ‘‘Piety, Pietism and German Pietism: Sefer Ḥasidim I and the Influence of Ḥaside Ashkenaz,’’ JQR 92.3–4 (2002): 455–93.