You Can Say That Again, Part II: Plagiarism in Halacha

Adapted from the writings of Dayan Yitzhak Grossman

January 18, 2024

Our previous article introduced some basic Torah perspectives on plagiarism; here, we cite additional discussions of plagiarism and consider some questions about the necessity of citation in particular scenarios.

The Gemara says:

And R’ Elazar said in the name of R’ Chanina: Whoever says something in the name of the one who said it brings redemption to the world, as it is said: And Esther said to the king in the name of Mordechai.[1]

The Midrash Tanchuma says:

R’ Chizkiah and R’ Yirmiyah bar Aba said in the name of R’ Yochanan: Anyone who does not say something in the name of the one who said it, of him the text says (Mishlei 22:22): Do not rob the destitute, because he is destitute…[2]

R’ Yeshayah Horowitz (author of Shnei Luchos Habris, the Shelah) and R’ Avraham Gombiner (author of Magein Avraham) cite the Gemara as declaring that anyone who does not say something in the name of the one who said it violates a (deRabanan) prohibition, per the above pasuk in Mishlei,[3] although such an assertion is not found in our text of the Gemara.[4] The Shelah declares that such theft of Torah is even worse than the theft of money, “for he takes a life,[5] i.e., the soul, for the souls of Yisrael and the Torah are one.”[6]

Citing intermediary sources

R’ Chaim Sofer (author of Shu”t Machanei Chaim) raises the question of whether one who learns of the existence of a primary source via a secondary source is obligated, when mentioning the primary source, to cite the work through which he discovered it. He inclines toward the view that one is indeed so obligated, and he concludes:

And this is why we find in the Gemara and in the Midrashim that they cite many Tana’im and Amora’im that this one heard from that one, and this one from that one, for one must attribute things to those who said them, even when he subsequently saw the svara and the din in the original sefer. But the matter requires clarification, because it is a novel din in which I know of myself that I have not been meticulous, and I request of any ben Torah to clarify the matter for me.[7]

R’ Yehudah Gershon Pikholz (author of Shu”t Machanei Yehudah) cites this discussion of Rav Sofer, and he comments:

Since it seems to me that no gadol or tzadik is meticulous about this—if he himself saw the svara or din in a sefer, to later mention the one who revealed to him that the din or svara is found there. And who do we have greater than the testimony (sic) of the author of the Machanei Chaim himself, who was a gaon and tzadik, a talmid of the true gaon the Chasam Sofer zt”l, who testifies about himself that he has not been meticulous regarding this, and certainly there will not befall a tzadik any iniquity,[8] therefore I said that I will discuss this matter a little and write my opinion.[9]

After a lengthy analysis of the question, he concludes:

Even if one did not hear the matter from the one who conceived the Torah idea himself, or he did not see the idea in the sefer itself, he nevertheless has permission to directly cite the name of the one who conceived it or the name of the sefer. There is nothing prohibited about not acknowledging that a certain person revealed this matter to him, and the only concern that may possibly apply is for bringing redemption to the world.

Now one certainly should examine the matter in the sefer itself, because it is inherently deficient not to examine the source of the din, but once he saw it in the sefer itself, he is certainly not obligated to say that someone revealed to him this item in this sefer, and even the concern for bringing redemption to the world does not apply here.[10]

R’ Shmuel Wosner addresses this question briefly in the course of a teshuvah addressed to the mohel R’ Moshe Bunim Pirutinsky—author of Sefer Habris, a modern classic anthology on the topic of bris milah—who had complained to him about someone who had plagiarized his magnum opus:

Even if the issue is related only to knowledge of the positions of Rishonim that are not well known, and one author discovered them, it is appropriate for a second author to at least acknowledge that he acquired this knowledge via his predecessor.[11]

(This author’s father relates that Rav Pirutinsky performed the author’s bris, on which occasion he purchased from Rav Pirutinsky a copy of his sefer.)

Attribution of ideas developed independently

R’ Zev Wolf Turbowitz (rav of Krozh, Lithuania) raises a question in the introduction to his work Shu”t Tiferes Ziv:

A talmid chacham innovated a Torah idea independently but subsequently discovered that a great man had preceded him in a sefer. Is he obligated to say it in the name of his predecessor, or may he say it in his own name because he innovated it independently prior to seeing it in the sefer?

He analyzes the issue in detail, and he ultimately distinguishes between Torah and other disciplines:

There is a strong argument that precedence is inapplicable to Torah, because the Torah was given to everyone, and every single Jew, small and great alike, has a portion in the Torah and can bring it to light by his toil in it…But in secular contexts, where the consideration of bringing redemption to the world applies, certainly, even if the idea was known to him independently, he is obligated to relay it in the name of the one who said it…[12]

Later in his work he records that R’ Eliyahu Dovid Rabinowitz-Te’omim (the Aderess) challenged some of his analysis regarding Torah chidushim, although it is unclear whether the Aderess actually disagreed with his conclusion. In any event, Rav Turbowitz stands by his position in his response to the Aderess.[13]

R’ Chaim Chizkiyahu Medini (author of Sdei Chemed) cites these two discussions of Rav Turbowitz (whom he characterizes as “a gaon of our generation”), and he comments:

Today the general practice in all these sorts of situations is to preface Torah novellae that one has innovated independently with the phrase “it appears to me” or the like. And if he subsequently sees the idea in a sefer that preceded him, he goes back and writes “I subsequently found in such-and-such a work” or the equivalent. By doing so, he fulfills the requirement of repeating something in the name of the one who said it, and he will also be saved from the fire of judgment of Gehinnom [which is the punishment] of one who steals Torah novellae of others and wraps himself in a tallis that is not his, regarding which the scholars of mussar have discoursed at length; may Hashem save us from this…[14]

We close with the poignant and provocative perspective of R’ Chaim Shmuel Birnbaum (a son-in-law of R’ Akiva Eiger, who described him at just 25 years old as “an outstanding talmid chacham, a rav great in acuity and erudition”[15]):

That which you wrote to bring me joy, that you found an authority that supports me in [a point that he had made], the rav and gaon, the author of the Sha’agas Aryeh z”l —I say to you regarding this, neither from your sting nor from your honey.[16] Although it is the way of authors to recite a bracha for enjoyment when it becomes known to them that they conceived the same idea as a gadol, I do not share that perspective; on the contrary, I am distressed over this as upon the loss of great spoils.[17] For what shall be left for a man like me of all his Torah, of the excellent teachings[18] that he caught in his net,[19] if they will not be said in his name in the bais medrash, because others have preceded him, and the lips of strangers mouth the words in the grave.[20] And such things befell me[21] innumerable times. And that which I have not robbed I shall return,[22] in despair,[23] to him who first attained the result of my hard labor, and I did not know.[24]^,[25]