Takkanot Ha-Kahal

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TAKKANOT HA-KAHAL

TAKKANOT HA-KAHAL (Heb. תַּקָּנוֹת הַקָּהָל).

Legal Aspects

the concept

The Takkanot ha-Kahal embrace that part of legislation in Jewish law which is enacted by the public or its representatives in contradistinction to the takkanot enacted by a halakhic authority, i.e., by the court and halakhic scholars (see *Takkanot). The enactment of legislation by the public is already to be found in ancient halakhah. Thus it was stated that the benei ha-ir ("townspeople") have authority to pass enactments obliging all residents of their town in matters such as the prices of commodities, weights and measures, and laborer's wages, and to impose fines on those transgressing their enactments (Tosef. bm 11: 23; bb 8b). The same sources (Tosef. bm 11:24–26) disclose that legislative authority was entrusted also to more restricted bodies, such as various artisans' and traders' associations within the town, such regulations obliging only the members of the particular association.

For as long as a single Jewish center – first Ereẓ Israel and later the Babylonian Jewish center – exercised hegemony over the entire Diaspora, there was little legislative activity of a local nature, both from the aspect of quantity and in the degree of authority carried. The great impetus to legislation by the public came at the end of the tenth century with the emerging stature of the Jewish community. The community enjoyed a substantial degree of autonomy. It had its own internal governing bodies, saw to the social and educational needs of its members, maintained a bet din possessing jurisdiction in the areas of civil, administrative, and ritual law, and to some extent also criminal jurisdiction. It also imposed and collected taxes, both to satisfy the fiscal demands of the ruling power and to finance communal services. The legal order governing the fulfillment of these manifold tasks was in large measure derived through the enactment of takkanot by the community. To ensure that the communal enactments be capable of fulfilling their envisaged objectives, the halakhic scholars saw the need to found these takkanot on principles belonging to the sphere of the public law and, from the aspect of their legal validity, to free them from the requirements and restrictions found in the private law. In consequence the scholars evolved basic principles in the area of Jewish public law constituting an impressive part of their wide legal creativity in this field, against the background of the social and economic realities of Jewish autonomy (see *Mishpat Ivri; *Public Authority; *Takkanot; *Taxation; *Hekdesh).

source of authority

The earliest manifestations of nonhalakhic legislative authority are to be found in the powers vested in the king (see Mishpat Ivri) and in the already mentioned benei ha-ir. The authority of the community to make enactments was substantiated by the scholars thus: "In respect of each and every public the position is that the individuals are subject to the majority, and according to the latter they must conduct themselves in all their affairs; and they [i.e., the majority] stand in the same relationship to the people of their town as the people of Israel to the great bet din or the king" (Resp. Rashba, vol. 3, no. 411; also vol. 1, no 729; vol. 5, no. 126, et al.). It was held that just as the court is competent to enact takkanot in the area of civil and criminal law, even though their content contradict a particular rule of the halakhah, so the community too is competent to make enactments in these areas, even though contrary to existing law (Resp. R. Gershom Me'or ha-Golah, ed. Eidelberg, no. 67; Responsum of Joseph Tov Elem quoted in Resp. Maharam of Rothenburg, ed. Lemberg, no. 423; idem, ed. Berlin, no. 220, p. 37; idem, ed. Prague, no. 368; Resp. Rashba, vol. 4, no. 311; Resp. Rosh, 101:1; Resp. Yakhin u-Vo'az, pt. 2, no. 2). Sometimes the scholars are found to have employed the expression hefker ẓibbur hefker, as an alternative parallel to the rule of hefker bet din hefker, in terms whereof legislative authority is conferred on the courts and halakhic scholars (see *Takkanot; Resp. Rashba, vol. 4, no. 142; Resp. Ribash, no. 399). This parallel between the public and the court was not, however, meant to have application to legislative authority in matters of ritual prohibitions and permissions. In this area the community has no authority to enact a takkanah contradicting the halakhah (Resp. Rashba, vol. 3, no. 411; Tashbeẓ, 2:132 and 239). Here the community was likened to the individual. Just as the individual may contract out of the law of the Torah in matters of the civil law (mamon) but not in those of ritual prohibition (see *Contract), so the community cannot make an enactment which is contrary to the law of the Torah on a matter of ritual prohibition, legislative authority on matters of the latter kind being entrusted to the halakhic scholars alone (Resp. Ribash, no. 305).

majority and minority

From 11th-century responsa it may be gathered that at that time communal enactments were passed by the majority of the community, thereupon binding also the minority opposed to their passage (Resp. Rif, ed. Leiter, no. 13; idem, ed. Biadnowitz, no. 85; Responsum of Joseph Tov Elem, quoted in Resp. Maharam of Rothenburg, ed. Lemberg, no. 423). In the 12th century Rabbenu Tam held that the majority was not empowered to impose a takkanah on the minority opposed thereto and only after the latter's acceptance of it – expressly or by implication – could the majority compel the individual by fine and punishment to compliance therewith (Mordekhai, bk no. 179 and bb no. 480; Resp. Maharam of Rothenburg, ed. Cremona, no. 230; Teshuvot Maimuniyyot, Shofetim, no. 10). This view was not accepted by the majority of the scholars (Resp. Ḥayyim Or Zaru'a, no. 222; Mordekhai, bb no. 482; Resp. Rashba, vol. 2, no. 279; vol. 5, nos. 270, 242; Resp. Re'em, no. 57). Some of the scholars distinguished between takkanot of the community enacted by majority opinion and the takkanot of professional associations, for which the consent of all members was required. This distinction was explained on the ground that the latter associations involved only a restricted public not having the responsibility of a community, and because of the serious likelihood that the professional interests of the minority might be prejudiced by the majority (Nov. Ramban, bb9a; Beit Yosef, Tur Ḥm 231:30; Sh. Ar., Ḥm 231:28; Leḥem Rav, no. 216). The doctrine that the majority prevails derives from the exegesis of the words aḥarei rabbim lehatot ("to follow a multitude") in Exodus 23:2 (see *Majority Rule). In talmudic halakhah the above passage is interpreted in relation both to a majority judgment of the court (Sanh. 2a–3b) and to a majority as a matter of legal presumption (Ḥul. 11a). From neither case can it be deduced that the majority of the public may impose its enactment on the opposing minority. The scholars did, however, conclude that "in respect of a matter concerning the public the Torah enjoined to follow a multitude and in any matter assented to by the public the majority is followed and the individuals must uphold all that is assented to by the majority" (Resp. Rosh. 6:5). This wide interpretation was held to be a matter of practical necessity "because if it were not so and the minority had the power to set aside the assent of the majority, the community would never agree on anything… for when would the community ever be in unanimous agreement?" (Resp. Rosh, 6:5, 7; see also Kol Bo, no. 142). It was similarly decided by a majority of the scholars that a takkanah enacted by majority opinion also binds the minority, even though it has not participated in the enactment of the takkanah, since those absent at the time thereof are deemed to have implicitly consented to it and because such is the accepted custom (Resp. Mabit 1:264; Mishpat Shalom, no. 231, letter Vav and references there quoted). Here again the explanation was given that "they must perforce bow to the majority and bear the burden of its enactment, for otherwise no room would be left for applying the rule, to follow a multitude, if those who dissent were to absent themselves [at the time of enactment of the takkanah ]… a possibility that reason rejects" (Resp. Abraham Alegre, Ḥm no. 5; see also Resp. Ribash, no. 249; Resp. Ḥatam Sofer, Ḥm no. 116).

the role of the communal representatives

The Jewish community was headed by its duly appointed or elected representatives, called by various names such as tovei ha-ir (lit. "good citizens"), parnasim, and so on, and sometimes also shivat tovei ha-ir (lit. "seven good citizens") – a concept already known in talmudic times (Meg. 26a; see also Jos., Ant., 4:214) – although their number varied from time to time. The tovei ha-ir were required to be "… persons chosen not on account of wisdom, wealth or honor, but simply… persons sent by the public to be in charge of public matters" (Resp. Rashba, vol. 1, no. 617; see also *Public Authority; *Taxation). Some scholars held it necessary that the enactment of takkanot by the tovei ha-ir take place in the presence of the public as the only means of ensuring their enactment with the consent of a majority of the local public (Mordekhai, bb no. 480). However, the majority of the scholars took the view that public representatives chosen to be in charge of all public matters are deemed to represent a majority of the public, "by virtue of being sent by the majority of the public which has elected them," and therefore may enact takkanot in the public absence (Rashba, loc. cit.; Resp. Mabbit, 1:84); but representatives chosen for limited purposes only cannot always be said to represent the majority and their enactments must be made in the public presence.

scope of the takkanot

A problem facing the halakhic scholars was how to invest the communal enactments with the legal efficacy to bind also the classes of persons incapacitated by the rules of the private law from being party to a legal obligation – such as minors and those yet to be born – efficacy without which the takkanot would have little practical value. The solution was found through an assimilation of the takkanot to the case of customs on various matters instituted by past generations (e.g., concerning festivals, fasts, etc.) – the observance whereof is enjoined also on sons, i.e., succeeding generations (Pes. 50b) since "the fathers are the source of their children" (Resp. Rashba, vol. 3, no. 411; Resp. Ribash, no. 399). The matter was also substantiated with the aid of other analogies from the laws of the oath, and so on (Rashba and Ribash, loc. cit.; see also Resp. Maharam Alashkar, no. 49; Tashbeẓ 2:132). At the root of these analogies lay the conviction that the orderly operation of communal enactments demanded their general applicability and continuity, "for if not so… it would become necessary to renew them daily since every day there are minors who reach their majority, and that is an unacceptable matter" (Ribash, loc. cit.). So too it was held that those taking up residence in a particular community are subject to all its existing communal enactments, since "they are deemed to have expressly taken upon themselves all the enactments of that town… when coming to live there, hence they are the same as the other townspeople and embraced by their takkanot" (Ribash, loc. cit.). The stated three factors – the rule that in enacting a takkanah the majority also binds the minority opposed thereto, investment of the communal representatives with legislative authority, and investment of the communal enactments with validity even in relation to persons lacking in legal capacity – jointly operated to confer fully on the communal enactments the standing of norms of the public law just as legislation is part of the public law in other legal systems. Consequently the validity of the communal enactments was not measured by the standards and requirements applying to a matter of the private law.

halakhah and the takkanot ha-kahal

The communal enactments share the general objective of all other takkanot – to add a directive in answer to a problem which finds no solution in the halakhah, or to sanction a departure from the halakhah when dictated by the needs of the hour (see *Takkanot). The halakhic scholars endowed communal enactments with full legal sanction, whether these added to existing halakhah or provided contrary thereto. Reference to the halakhic sources, particularly the responsa literature, will reveal a most extensive range of directives on matters of the civil as well as criminal law, laid down in communal enactment, and accepted even when contrary to the halakhah on such matters. The following are a few examples (others are mentioned above, s.v. under the heading Source of Authority).

In matters affecting communal property, or other public matters, such as taxation, charitable endowment, and so on, communal enactments made provision, contrary to talmudic halakhah, for admitting also the testimony of witnesses residing within the community concerned. This applied notwithstanding the fact of their own pecuniary interest in the matter since, for instance, the tax exemption of one member of the community served to increase the burden on his fellows, and despite the frequent fact of their kinship with the litigants, on account of communal intermarriage (Resp. Rashba, vol. 5, nos. 184 and 286; vol. 6, no. 7; Resp. Rosh, 5:4). This legal situation was accepted as halakhah in the codes (Sh. Ar., Ḥm 7:12, 37:22; see also *Taxation).

In different communities takkanot were enacted whereby the signature of the town scribe on various kinds of deeds was imparted the same efficacy as the signature of two competent witnesses. Such enactments were designed to prevent a number of possible complications, among others the impossibility of verifying deeds on account of the death, or absence abroad, of the witnesses thereto. Deeds signed by the town scribe were held fully valid, since "the public is entitled to assent [i.e., enact] in any wise on a matter pertaining to the civil law [mamon], and it is accepted and valid as if it were an absolute law, for the duly given assent of the public on a matter renders it law" (Sefer Teshuvot ha-Rashba ha-Meyuḥasot le-ha-Ramban, no. 65; Resp. Rashba, vol. 3, no. 438). The possibility of illiteracy on the part of a witness was the background to communal enactments which laid down that the town scribe could sign in the name of a witness, on the latter's instructions (Resp. Rashba, vol. 2, no. 111; see also vol. 4, no. 199).

Another communal enactment made provision for the court to proclaim a specified period within which any interested party could submit his claims in respect of a particular asset put up for sale, failing which he would forfeit his rights to such property. This takkanah was required to ensure the more efficient transaction of business. Although amounting to a departure from the law – since no support is found in the halakhah for the proposition that a person should forfeit his rights on account of failure to lodge his claims thereto within a specified period (see *Limitation of Actions) – it was nevertheless held valid because "an enactment of the community sets aside the halakhah, for the townspeople are entitled to stipulate among themselves as they please" (Resp. Rashba, vol. 4, no. 260). Many examples of communal enactments of this kind are to be found in the area of tax law (see *Taxation), and the laws concerning the legal standing of a public authority and its relationships with its employees and the community in general (see Public *Authority). They are also found in the laws pertaining to the administration of consecrated and other public property (see *Hekdesh). These legal branches developed particularly from the tenth century onward in the different Jewish centers, and communal enactments provided the answer to many of the legal problems arising in connection therewith.

takkanot ha-kahal and halakhic authority

That communal enactments whose contents contradicted the halakhah could be laid down with a large measure of independence, as already described, held out the possibility that these enactments might become divorced from the living body of the halakhah. On the surface, there existed the likelihood that the legal directives originating from communal enactments might, if uncontrolled, evolve into a legal system parallel to the halakhic legal system, leading inevitably to the exclusion of the former directives from the regular framework of the halakhic system. This threat was countered through the development in Jewish law of a number of safeguards serving to link the communal enactments to halakhic authority. These safeguards were not calculated to prejudice the community's legislative independence as regards the possibility that its enactments might conflict with one or other rule of the halakhah, yet they served to subjugate such enactments to the spirit and objective of the overall halakhic system. There were three such safeguards, each of which is outlined below, one functioning prior to the enactment of a takkanah and the other two thereafter.

approval by "a distinguished person."

The first safeguard, accepted by the majority of the halakhic scholars, was the need for a takkanah to be approved – prior to its enactment – by "a distinguished person" (adam ḥashuv) residing within the community concerned. The need for such approval was designed to ensure the halakhic scholars some measure of control, even if qualified, over the communal enactments (see below). Support for the need for a distinguished person's approval was found in the talmudic law pertaining to the enactment of a takkanah by a professional association. The butchers of a certain town made a takkanah to regulate their workdays in a particular manner, enforceable by imposition of a fine in the form of tearing the hide of the animal slaughtered by the offending butcher. In a case where this punishment was carried out, the offending butcher instituted an action against his fellows to recover compensation for the damages resulting therefrom. His claim was upheld by Rava on the ground that there was present a distinguished person in that town but no approval of the regulation had been obtained from him, and it was therefore invalid (bb 9a). Some of the scholars held the need for the aforesaid approval, apparently innovated by the amoraim, to exist only with reference to a takkanah enacted by a restricted section of the public, such as a professional association, this for the reason of preventing the adoption of resolutions calculated to cause loss to the consumer public, and so on (Nov. Ramban, bb 9a; Nov. Ran, bb loc. cit., Resp. Ribash, no. 399; Resp. Maharam Alashkar, no. 49). However, the majority of the scholars took the view that the stated approval must be also obtained in respect of communal enactments, since the fact of such approval would serve to stress the link between the takkanah and halakhic authority, and the halakhah was decided accordingly (Resp. Rashba, vol. 1, no. 26; vol. 4, no. 185; Piskei ha-Rosh, bb 1:33; Sh. Ar., Ḥm 231: 28 – Rema, Sma and Siftei Kohen, ad loc.). Presumably this safeguard was actually practiced in the different Jewish communities, and sometimes a special directive on the matter is to be found in the body of a takkanot collection (see, e.g., J. Halpern (ed.), Takkanot Medinat Mehrin, nos. 176, 286, 335). There are, however, also references to the fact that certain communities (see, e.g., Resp. Maharalbaḥ, no. 99), and even a representative body such as the *Council of Four Lands (see Resp. Bah Ḥadashot, no. 63), did not consistently observe the need to obtain the approval of a distinguished person to their takkanot. The halakhic scholars were at pains to convince the communal leaders of this need (see Resp. Maharalbaḥ, no. 99 and Resp. Baḥ Ḥadashot, no. 3). Yet at the commencement of the 19th century it was still held by Moses *Sofer that the stated approval was a requirement not of the strict law but of the custom followed by the communities (Resp. Ḥatam Sofer, Ḥm 116).

Different opinions were expressed as regards the attributes of "a distinguished person" from whom approval of a takkanah must be obtained. One opinion held that he may be either a talmid ḥakham ("scholar") or a parnas appointed by the community, and the presence of either in the town serves to withhold validity from a takkanah until his approval thereof can be obtained (Resp. Rashba, vol. 4, no. 185, et al.). According to another opinion, "a distinguished person" is "a talmid ḥakham who is also in charge of the public" (opinion of Ibn Migash, quoted in Shitah Mekubbeẓet, bb 9a and in Resp. Rashba, vol. 5, no. 125) – i.e., a person who combined in himself the qualities both of being a learned scholar and of having been accepted as a leader of the public. This opinion was accepted by a majority of the halakhic scholars who interpreted "a distinguished person" thus: "a distinguished scholar able to order the affairs of the community concerned and help its inhabitants to prosper in their ways" (Yad, Mekhirah 14:11); "a learned scholar and leader" responsible for public affairs (Piskei ha-Rosh, bb 1:33; Tur Ḥm 231:30; Sh. Ar., Ḥm 231:28). Thus if locally there be present no person blessed with both these qualities, then the communal enactment should be fully valid even without the approval of a distinguished person (Yad Ramah, bb 9b, no. 103; Maggid Mishneh, Mekhirah 14:11).

principles of justice and equity

The decisive factor in the integration of communal enactments within the overall framework of Jewish law has been the supervisory authority exercised by the halakhic scholars so as to ensure that the enactments, even when contradicting the contents of a specific halakhic directive, should not depart from the general principles of justice and equity underlying the entire Jewish legal system. These substantive principles served as the common basis of the halakhah and of the communal enactments, the zealous preservation of these principles ensuring that the latter become an integral part of the overall Jewish legal system.

These principles find expression in various ways. Thus, for instance, Solomon b. Abraham *Adret stated with reference to a particular communal enactment, "if it is a matter which makes no fence to the law and brings no real good, then even if it was instituted by the representatives and leaders of the public – the public will not need to act in accordance with their wishes" (Resp. vol. 7, no. 108; also vol. 5, no. 287 and vol. 7, no. 340). In another case the communal leaders enacted a takkanah serving to enjoin a member of the community from obtaining the ruling power's permission to continue his duties or supervising against the commission of various offenses; a sector of the public objected to the takkanah as opening the door to moral laxity on the part of the public. In his responsum on the matter, Adret held that the takkanah would have been valid if it had made provision for the position itself to remain but prescribed its entrustment to someone else; however, since the takkanah purported to abolish entirely a position of such vital nature, it had to be regarded as of no effect; "and even if the takkanah was enacted by the people responsible for most of the needs of the public, yet the fact is that they have to make enactments which enable the community to uphold and not breach the law, and they may not breach the fences of the Torah" (Resp., vol. 2, no. 279). Just as it is forbidden that a takkanah should contain anything tending to encourage moral laxity on the part of the public, so it is forbidden that a takkanah should be unduly onerous – even though it serves a laudable purpose and remedies a particular situation; hence, according to Adret, in the same way as there had been laid down the principle that a takkanah of the halakhic scholars must not be imposed on the public unless the majority is able to abide thereby (Av. Zar. 36a; see *Takkanot), so too the community may not enact a takkanah by which the majority of its members is unable to abide (loc. cit.; also vol. 7, no. 108).

A material principle guarded by the halakhic scholars with the utmost care was that ensuring the right of the minority in general, and of the individual in particular, not to be prejudiced by the majority in arbitrary manner and without justifiable cause. In several centers it happened that the community sought to enact a takkanah purporting to impose tax on a local resident in respect of his property situated elsewhere, thereby rendering him liable for double taxation since he was also liable for tax at the place of situation of his property. In this regard it was held by Adret that it was not within the power of the minority to make an enactment – notwithstanding the consent thereto of the majority – imposing an obligation that involved a "robbing" (gezel) of the individual, which would be the inevitable but unacceptable result of the individual having to pay tax twice on the same property (Resp., vol. 1, no. 78; vol. 5, no. 178; Resp. Maharam of Rothenburg, ed. Prague, no. 106; see in detail under *Taxation). A like conclusion was stated by Isserles in unambiguous manner: "It is an accepted matter that the tovei ha-ir are not authorized to deal high-handedly with the individuals, nor may the majority forcefully dispossess [lit. "rob"] the individual… since the townspeople have no power to make enactments except as conferred on them by law; but to do as they please, that is something that never was nor ever will be!" (Resp. Rema, no. 73). There was also applied to communal enactments the principle that they must apply equally to all and not single out particular persons (Sha'arei Ẓedek, no. 16, p. 57a). The rule was formulated that a takkanah is valid when two conditions are fulfilled: it must be "a takkanah [i.e., to mend matters] for the public, and it must apply equally to all" (Nov. Ritba, Av. Zar. 36b; cf. the principle of equality before the law in relation to the doctrine of *dina de-malkhuta dina; see *Mishpat Ivri).

The requirement that legislation accord with the principles of justice and equity led to the observance of the further rule that the provisions of communal enactments should only be made to take effect from the time of their enactment onward, and not retroactively to any earlier period. There was frequent application of this rule in relation to tax laws (see, e.g., Resp. Ribash, no. 477; see also *Taxation), and also in other legal fields (see, e.g., Zikhron Yehudah, no. 78).

interpretation of takkanot ha-kahal

The third factor which safeguarded the integration of communal enactments into the overall Jewish legal system was the fact that the authoritative interpretation of these enactments was usually entrusted to the same body or persons who interpreted the rules of the halakhah in general, namely the competent halakhic scholars. In their interpretative activities the latter relied on the different Jewish law rules of interpretation, and examined the content and formulation of a takkanah before them by analogy to the talmudic halakhah and codificatory literature. In consequence the integration of the communal enactments into Jewish law was affected not only as regards subject matter but also from the literary aspect, as expressed in the responsa literature. For particulars, see *Interpretation.

takkanot ha-kahal and the jewish legal system

The phenomenon of a community enacting a takkanah which remained subject to halakhic scrutiny and became integrated with the halakhah, even though it did not always accord with one or another rule of the halakhah itself, is understandable and in keeping with the image of Jewish society until the coming of the Emancipation at the end of the 18th century. Both the community and the bearers of the halakhah acknowledged the existence of a single ultimate and guiding value – the authority of the Torah and the halakhah. The communal leaders never regarded their enactments as a means of undermining or evading in any way the sanctity of the halakhah. On the contrary, they saw their enactment as a special means – adapted to the needs of their time and place – toward modeling public and private life in their community on the principles, objectives, and spirit of Jewish law. These enactments not only constituted a means of ordering – within the wider framework of the halakhah – special legal problems arising from particular social and economic trends in the different periods and centers of the Jewish dispersion. They also served toward the evolution of basic principles pertaining to the modes of legislation by a Jewish public in accordance with Jewish law, and toward the development and crystallization of principles of justice and equity, of safeguarding minority rights, and equality before the law, as well as other principles to which the communal enactments were required to conform. For further general details see *Takkanot.

[Menachem Elon]

Historical Aspects

In the Middle Ages and early modern times the term takkanah denoted both a constitution or a statute proposed or adopted by a competent authority in the Jewish community as a general framework of behavior, and also a resolution relating to a single issue adopted by such an authority. In Sephardi communities the terms haskamah or *ascama were used for such enactments. Takkanot were issued by synods and councils of scholars or laymen or both: the local community, *ḥevrah, a synagogue congregation, and a *bet din. They were also issued on the authority of a leading scholarly personality and obeyed by reason of this authority. All aspects of social, economic, political, and religious life of the Jews were embraced by takkanot.

geonic period

During the geonic period the *exilarchs and *geonim enacted numerous takkanot in such areas as civil, family, and liturgical law, which were not only verification of evolving customs but in fact were very often departures from talmudic law. Many customs were made law as a means of counteracting the schismatic teaching of the *Karaites: for example, although the Talmud never mentions a benediction over the Sabbath candles, the geonim made this obligatory to demonstrate that the *Rabbanites not only considered the use of candles lit before the Sabbath permissible but also festive and sacral. The use of the ring as a specific symbol of betrothal, instead of cash or "money's worth," as prescribed in the Talmud, was also a geonic innovation. A clear-cut example of a geonic ordinance takkanah reflecting a socioeconomic change relates to debts inherited by an orphan not yet of age.

spain

Judah b. Barzillai al-Bargeloni's Sefer ha-Shetarot contains a formula expressing the accumulated experience of enactment of takkanot in 11th-century Spain. This is a takkanah writ to be used when a group (edah), community (kahal), yeshivah, or the fellows of a bet midrash (benei midrash) or a synagogue (keneset) have agreed to enact a takkanah in their yeshivah, synagogue, or bet midrash, or the heads of the yeshivah have agreed to enact a takkanah "for [all] Israel." In these cases all the abovementioned write a takkanah writ in unambiguous terms and sign it, and, if they are so agreed, write that anyone who transgresses this takkanah will be excommunicated (ed. S. Halberstam, 1858, 132). In the same collection there is a takkanah by a craft guild containing detailed agreements on preventing competition and including financial sanctions against any transgressor (p. 190). Takkanot continued to be made mainly by local communities. Statutes adopted at Tudela in 1305 invested power in the community in eight prominent families; no enactment was valid unless eight men representing these families concurred. They decreed that "all judicial decisions rendered in this city shall be based upon the code of R. Moses (Maimonides), of blessed memory." Various 14th-century takkanot from *Barcelona reflect the bitter social and political struggle in the community between the rich and the poor, mainly over the composition of the community councils and commissions. Similar problems and takkanot are found from *Saragossa. In *Majorca, which was a major maritime center, the aljama (kahal) adopted takkanot in 1356 concerning marriage, inheritance, and commerce which were a compromise between talmudic law and the laws and customs of the country. In 1354 representatives of the province of Valencia and of all the Jewish communities of Catalonia met in Barcelona and proposed many organizational takkanot. These proposals reveal the motivations and arguments for centralized leadership as well as those of the diplomatic activity of the communities (see *Shtadlan). A conference in Valladolid in 1432 proposed a group of takkanot for the communities of Castile. Its five sections, regulating education, communal officialdom, punishment of informers, taxation, and sumptuary behavior, were drawn up with the aid of Don Abraham *Benveniste, rab de la corte of the kingdom of Castile. Takkanot were often copies of rules of a neighboring aljama. Some followed the fueros, or constitutional charters, of municipalities, and the Spanish rulers played a part in drafting or approving Jewish statutes. *Isaac b. Sheshet Perfet defined the relation between the communities' takkanot legislation and royal assent: "no doubt, without the approval of our lord, the king… according to the law of our Torah the community may enact the takkanot on its own authority, and also excommunicate and punish the transgressor" (Resp., no. 228). Royal assent was requested only to avoid an accusation of infringing on the sovereignty of the king and also to provide an additional sanction. These takkanot were validated through their being inscribed in a minute book (see *pinkas), by the signatures of scholars and communal leaders, and by proclamation. Rabbinic authorities usually gave unhesitating support to the communal takkanot. R. Solomon b. Abraham *Adret (13th century) stated that "no man is entitled to withdraw and disregard a communal ordinance by saying 'I shall not take part in the promulgation of the statutes,' and the like, because the individual is subject to the majority will." The language of the takkanot is generally Hebrew. In the Muslim period Arabic, with an admixture of Hebrew, was used. In Toledo Arabic was used as late as the 14th century. Most of the 1432 Valladolid constitution is written in Castilian. When the adopted resolutions were proclaimed before the entire congregation in the synagogue, they usually responded with "Amen." When the takkanot were inscribed in the pinkas they were generally organized into sections and articles. Takkanot were designed to be permanent or temporary: a Saragossa regulation concerning tax exemption was to remain in effect for 50 years; Toledo adopted an ordinance to be effective for 20 years; the Valladolid statutes of 1432 were to be valid for ten years. If no definite period of time was stated, a takkanah was to be permanently binding. Interpretation of takkanot was the province of either the legislating body or an accepted rabbinical authority. The proclamation of a ḥerem as an integral sanction clause of the takkanot was a customary procedure, and in early texts ḥerem is synonymous with takkanah. The conception of the ḥerem as divine expulsion from God's grace sufficed to make most Jews obey such takkanot, even when, in practice, the offender against communal enactments was often not treated as an excommunicate. Solomon b. Abraham Adret reported: "When I observed the practice of the communities to include the clause of the ḥerem in their various takkanot, and yet, in all my observations, they never treated the transgressor as an excommunicate, I put the question to my teachers whether such a person was really under the ban or not, and they made no reply." In serious matters the community did not hesitate to make the violator liable to various penalties.

ashkenaz and Ẓarefat (france)

Takkanot appear in the Rhineland and in districts to the west of it early in the history of Jewish settlement in the area. In Ashkenaz in the 11th and 12th centuries takkanot sometimes stem from a community to include both itself and its environs (e.g., *Troyes in the time of Rashi), sometimes from a central community attempting to assert its authority over minor communities (a practice sharply rejected by Joseph b. Samuel *Bonfils in the 11th century). They were sometimes adopted by *synods (in France in the 12th century, in Germany in the 13th, and on several occasions in Germany right down to the 17th century). French takkanot of the 12th century are sometimes called after Jacob b. Meir (Tam). The topics dealt with in these takkanot are as variegated as the problems of Jewish life and autonomy current in those centuries.

mediterranean lands

*Maimonides enacted a series of takkanot directed against *Karaite practices. The community of the island of Crete (Candia) had sets of detailed takkanot from the 13th century onward. Takkanot were also enacted in Italy. A conference of north Italian communities meeting in Forli in 1418 adopted a set of far-reaching regulations relating to *sumptuary laws. Other conferences of the 15th and 16th centuries confirmed this activity. After the expulsion from Spain (1492) the communities of the Sephardi Diaspora shaped many takkanot (ascamot) to solve problems specific to their new settlements.

eastern europe

In the communities of Eastern Europe and the Councils of the Lands, takkanot continued creatively on a greater scale. The takkanot of *Moravia embody a codification of a series of enactments, touching on most aspects of social and communal life. This is true to an even larger degree of the resolutions of the Councils of Lithuania and of Poland. The communal authorities (kesherim) of *Poznan consistently noted down over the years their proposals for takkanot as well as their criticisms of the mode of their implementation. In 1595 the Cracow community codified takkanot covering a wide range of problems. Although, as in all cases, they based their takkanot on the halakhah, they introduced sweeping changes. The court system and method of payment of judges established in Cracow and Poznan reflect a great deal of the social and financial practices of the leading circles of large Jewish communities but little of halakhic principles. The right of *arenda, in particular, and many other comprehensive economic arrangements, were established by takkanot. In 1607 a means of permitting a Jew to take interest from a Jew – hetter iska – was introduced in Poland and empowered in many communities by takkanot. In Moravia it was arranged that their takkanot "shall be in force so long as they are not abrogated by the unanimous decision of the heads of the council (rashei medinah) and the fifteen elected officers or by the nine guardians of the takkanot then in office, provided it is done with the consent of the chief rabbi [*Landesrabbiner] or a scholarly leader, in the event that there is no chief rabbi." The Councils of Four Lands resolved in 1671 that "in any controversy arising between an individual and his kahal it shall be resolved in accordance with the provisions of their own takkanot and pinkasim without interference by the council." In 17th-century Poland-Lithuania Samuel Eliezer b. Judah ha-Levi *Edels voiced opposition to the use of the ḥerem as an integral part of a takkanah. Some of the first leaders of Ḥasidism – e.g., Aaron of *Karlin – tried to use takkanot to effect social amelioration but this trend was not continued. The *Sanhedrin convened by Napoleon enacted radical takkanot. In the main, the spread of the *Haskalah and the break-up of traditional autonomy structures combined with a weakening of the authority of the halakhah to bring about a gradual cessation of the enactment of takkanot in modern times, beginning in Western and Central Europe and spreading to Eastern Europe. It was only in scattered communities in Eastern Europe or the Near East that takkanot appeared in the 20th century. The association or ḥevrah, however, continued to make use of the takkanah to regulate its actions and the life style of the group.

See also *Autonomy; *Community.

[Isaac Levitats]

Research into Takkanot ha-Kahal

Since the very beginning of (modern) research in Jewish studies and Jewish law, various scholars have engaged in the study of takkanot ha-kahal, communal enactments. Initially, attention was paid primarily to the historical material found in this literature. In recent times, great attention has been given as well to the vast quantity of legal material found in this literature. The publication of entire collections of public enactments from various centers and different periods – such as the communal ledgers (pinkasim) from Italy (see Boxenbaum; Hartom-Cassuto; Carpi; Simonson; Hacohen, Livorno, in the Bibliography below); the Balkan countries, Greece and Turkey (among them see Bornstein); Poland, Germany, Bohemia and Lithuania (see Evron, Heilprin, Roth), and North America (see Amar) – most of them in manuscript, created a fitting infrastructure for study in greater depth. The various legal researchers (Elon, Naḥlon, Hacohen, Kaplan) focused on the study of legal institutions and arrangements as reflected in the communal enactments. In this context, the issue of the authority to make enactments, the mode of their enactment, the scope of their applicability, and the means of their interpretation were all considered. The appearance of detailed legal indexes to the responsa literature, in which a special place is given to the communal enactments, made a special contribution in this field (see Bibliography: Elon-Lifschitz, Lifschitz-Shochetman).

Contribution of the Takkanot ha-Kahal to the Formulation of Israeli Law

The multiplicity and variety of communal enactments and the fact that they were living law and actual practice, and not merely just theory, make them a source of primary importance for the integration of Jewish law into that of the State of Israel. This is particularly prominent in the sphere of public law. In the absence of extensive legislation in the matter, the field of public law in the State of Israel – both legislative law and administrative law – remains based to a great extent not on legislation but on court rulings, a sort of Israeli version of "common/conventional law." This situation provides abundant room for anchoring many rules in the field of public law on the principles of "justice, freedom, integrity and peace of the Jewish heritage" (in the words of the Foundations of Justice Law, 5740 – 1980, cf. *Mishpat Ivri) and on "the values of a Jewish state" (in the words of the Basic Law: Human Dignity and Freedom), as expressed in Jewish law in general and in the public enactments in particular.

Reflecting as they do autonomous Jewish community life, with its plethora of styles, there exist in the communal enactments many varied arrangements for the conduct of community life and the modes of decision-making therein, vis-à-vis, for example, issues of majority and minority, manners of elections, appointments to public office, and ousting of a public official from his position, as well as the various basic rights, such as freedom of expression, freedom of movement, and the like (see *Rights, Human: Public Authority).

Furthermore, there are some who wish to view the laws of the Knesset as a kind of takkanat ha-kahal and are consequently prepared to grant them halakhic validity (Shochetman, Hakarat ha-Halakhah). In one case, the Supreme Court (as expressed by Justice Elon) pointed to the tenant protection laws as valid in Jewish law by virtue of their being viewed as "communal enactments" (hc 323/81 Vilozhny v. Rabbinical Court of Appeals, pd 36 (2) 740–743) (see at length under *Takkanot).

In the Courts in Israel

On more than one occasion, the courts in the State of Israel have made use of communal enactments as a source for interpretation of Israeli law and for the creation of legal arrangements in various spheres. Thus, for example, the Supreme Court (as expressed by Justice Silberg) pointed to various arrangements made in the takkanot ha-kahal and intended to share the damage caused as the result of the depreciation of the currency between lender and borrower (ca 248/53 Rozenbaum v. Zeger, pd 9, 533). In another case, the Supreme Court (per Justice Kister) used the takkanot ha-kahal as a possible source for allowing a judge in a religious court to deal with a certain matter, even though it was liable to concern his own interests (e.g., determination of the tax rate for which members of the community, he among them, would be liable; see hc 21/66 Katabi v. Chairman of the Kiryat Ekron Local Council. pd 20 (2) 108). In another case, the Supreme Court (Justice Elon) noted the great power of communal enactments in formulating the material relationships of a couple in view of the changing economic and social reality (ca 2/77 Ezogi v. Ezogi, pd 33 (3) 16–17), as well as in creating arrangements allowing daughters to receive a portion in their father's inheritance (Motion 427/78 Sobol v. Goldman, pd 33 (1) 800–803). In yet another case, the Supreme Court (Justice Elon) based its interpretation of tax legislation on the principles of interpretation of takkanot ha-kahal in Jewish law. The court concluded that the law should be construed according to its actual language rather than from the intention of the legislator, which is not clear from the explicit language of the law (hc 333/78 Trust Company of Bank Leumi v. Director of Estate Duty, pd 32 (3) 212–13; see at length *Interpretation). On yet another matter, the Supreme Court (Justice Elon) upheld the conviction of a person on a criminal charge on the basis of a confession given outside the courtroom, inter alia, on the basis of communal enactments from Spain that recognized the need to deviate from the usual laws of evidence under certain circumstances in order to punish the offender (according to 543/79 Najar et al. v. State of Israel, pd 35 (1) 163–170; see at length *Capital Punishment). Finally, in another case, the Supreme Court (Justice Elon) made use of an interpretation given by the Ribash to a public enactment from Catalonia in Spain concerning the delegation of powers (see *Public Authority), to construe the limits of the mayor's right to delegate his authority in a matter requiring use of judgment (hc 702/79 Goldberg v. Head of the Ramat Hasharon Council, pd 34 (4) 85).

[Aviad Hacohen (2nd ed.)]

bibliography:

legal aspects: Baron, Community; L.I. Rabbinowitz, The Ḥerem Hayyishub (1945); A. Karlin, in: Ha-Torah ve-ha-Medinah, 1 (1949), 58–66; B. Lipkin, ibid., 2 (1950), 41–54; idem, in: Sinai 25 (1949), 233–53; J. Baer, in: Zion, 15 (1949/50), 1–41; et, 3 (1951), 180, 376–8; J.A. Agus, in: jqr, 43 (1952/53), 153–76; S. Albeck, in: Zion, 19 (1953/54), 128–36; 25 (1959/60), 85–121; A.H. Freimann, in: Yavneh, 2 (1947/48), 1–6; M. Elon, in: Meḥkarei Mishpat le-Zekher Avraham Rosenthal (1964), 1–54; Elon, Mafte'ah, 251–67, 413–24. See also bibliography of *Takkanot. historical aspects: Weiss, Dor, 4–5 (1891); I. Abrahams, Jewish Life in the Middle Ages (1920); Finkelstein, Middle Ages; Ch. Tykocinski, Gaonaeische Verordnungen (1929); S. Dubnow, Pinkas Medinat Lita (1925); M. Frank, Kehillot Ashkenaz (1937); Baron, Community, 3 (1942), index; Neuman, Spain, 2 (1942); I. Levitats, Jewish Community in Russia (1943); Halpern, Pinkas; idem, Takkanot Medinat Mehrin (1952); J. Katz, Tradition und Crisis (1961); A. Rechtman, Yidishe Etnografye un Folklor (1958); Baer, Spain, 2 (1966), index; H.H. Ben-Sasson, Perakim be-Toledot ha-Yehudim bi-Ymei ha-Beinayim (1962); idem (ed.), Toledot Am Israel, 3 (1969), index; idem, Hagut ve-Hanhagah (1959), index; idem, in: Zion, 21 (1956), 183–206; I. Agus, Urban Civilization in Pre-Crusade Europe, 2 (1965); M. Zuker, in: Sefer ha-Yovel le-Rabbi Ḥanokh Albeck (1963), 378–401; Ashtor, Korot, 2 (1966); A.S. Artom and M.D. Cassuto, Takkanot Kandia ve-Zikhronotehah (1943); A.H. Freimann, Seder Kiddushin ve-Nissu'in (1945); D. Avron, Pinkas ha-Kesherim shel Kehillat Posna (1967). add. bibliography: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:391–557, index; idem, Jewish Law (1994), 2:477–879, index; idem, Jewish Law (Cases and Materials) (1999), 77–85; M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (1986), 2:544–61, 581–91; B. Lifshitz and E. Shochetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (legal digest) (1997), 235, 367–72, 386–92; M. Elon, Kevod ha-Adam ve-Ḥeruto be-Darkei ha-Hoẓa'ah le-Fo'al (2000); idem, Ma'amad ha-Ishah; idem, "Le-Mahutan shel Takkanot ha-Kahal be-Mishpat ha-Ivri," in: Meḥkarei Mishpat le-Zekher Avraham Rosenthal (1984), 1–54; idem, "Le-Mahutan shel Takkanot ha-Kahal u-Mashma'utan la-Ḥevrah ha-Kibbutzit," in: AmudimḤok u-Mishpat ve-ha-Ḥevrah ha-Kibbutzit (1984), 26–61; idem, "Ekronot Yesod be-Darkhei ha-Ḥakikah ba-Mishpat ha-Ivri," in: Reuven Bareket Volume (1977), 130–38; idem, "Darkhei ha-Yeẓirah ha-Hilkhatit be-Fitronan shel Be'ayot Ḥevrah u-Mishpat ba-Kehillah," in: Y. Baer Memorial Volume (= Zion, 44 (1979)), 241–64; idem, "Demokratyah, Zekhuyot Yesod u-Minhal Takin bi-Fesikatam shel Ḥakhmei ha-Mizraḥ be-Moẓa'ei Gerush Sefarad," in: Jewish Law Annual, 18–19 (1992–94), 9–63; M. Amar, "Le-Takkanot Makhnes ba-Me'ot ha-1819," in: A. Chaim (ed.), Ḥevrah u-Kehillah (1991), 35–45; E. Bashan, "Takkanot le-Hagbalat Motarot: Ha-Reka ha-Ḥevrati ve-ha-Hilkhati," in: Hagut, 3 (1980), 41–68; M. Benayahu, "Takkanot Ḥezkat ha-Ḥaẓerot, ha-Batim ve-ha-Ḥanuyyot be-Saloniki u-Fiskeihem shel Rabbi Yosef Tiataẓak ve-Ḥakhmei Doro," in: Mikhael 9 (1985), 55–146; L. Bornstein-Makovetski, "Seridim mi-Pinkas Beit Din Bialata be-Kushta, Shenat 5699 (1839)," in: Sefunot, 68:4 [19] (1989), 53–121; Y. Boxenbaum (ed.): Pinkas Kahal Verona (1989); D. Carpi, Pinkas Kehillah-Kedoshah Padova (1974–80); Sh. Eidelberg, "Pinkas Shnadua," in: Galed, 3 (1976), 295–313; D. Evron, Pinkas Hekhsherim shel Kehillat Pozna (1967); idem, "Ha-Berirah bi-Kehillat Pozna ba-Meot ha-1718," in: Galed, 1 (1973), 51–62; S. Goldin, "Tafkidei ha-Ḥerem ve-ha-Takkanot ba-Kahal," in: Proceedings of the Eleventh World Congress for Jewish Studies, vol. 12 b1 (1994), 105–112; A. Hacohen, Parshanut Takkanot ha-Kahal be-Mishpat ha-Ivri (2003); D. Hacohen, "Hakehillah be-Livorno u-Mosdoteha (ba-Meah ha-17)," in: R. Bonfil et al. (eds.), Memorial Volume for Sh.A. Nakhon (1978), 107–28; A.S. Hartom and M.D. Cassuto, Takkanot Kandyah ve-Zikhronoteha (1943); I. Heilprin, Takkanot Medinat Mehrin (1952); M. Hildesheimer, Pinkas Kehillat Sheintakh (1992); A. Nahlon, Kahal ve-Takkanot Kahal ve-Toratam shel ha-Geonim (2001); A.N.Z. Roth, Sefer Takkanot Nikelsburg (1963); I. Shatzipanski, Ha-Takkanot be-Israel (1993); E. Shochetman, "Rubbo Mitokh Kullo" – Tokpam shel Ḥukim ha-Mitkabbelim bi-Mele'at ha-Knesset she-eina Mele'ah," in: Teḥumin 9 (1988), 82–102; Sh. Simonson, Toledot ha-Yehudim be-Dukkasut Mantovah, 2 vols. (1963–65).