In Setting the Table: An Introduction to the Jurisprudence of Rabbi Yechiel Mikhel, Michael Broyde and Shlomo Pill make an important intervention into the field of Jewish legal scholarship. The authors bill their book as an introduction to Arukh Hashulhan (“The Table’s Setting”), a code of Jewish law written by Yechiel Mikhel Epstein (1829-1908), a jurist and community rabbi who lived in Russia and Lithuania. While it is a most capable presentation of the code’s section on ritual life, the monograph’s unique and lasting contribution lies in its analysis of the author’s jurisprudence.
The book is divided into three parts. In the first part, the authors describe the evolution of Halachah (Jewish law) looking not only at its major works and figures, but showing how Halachah, as a legal system, had to develop mechanisms and media to provide clarity for ambiguous factual scenarios, ordering for the sake of access and reference, and innovation in responding to novel legal issues in a principled fashion. Part 2, which will be the focus of the balance of this review, is a detailed and enriching analysis of Epstein’s approach to legal decision-making. Its final third section provides an encyclopedic review of Epstein’s rulings on the laws of prayer, the Sabbath, and holidays, and show how the principles are applied in his decisions.
A lawbook tends to consist of rules that govern behavior within the sphere of Jewish life, organized in the model of a legal code or in the more discursive form of commentary. But for law to work as a system, there must be a set of secondary rules, a kind of meta-law, that regulate how the above rules apply, how they change, if needed, and who is authorized to change them in which conditions. This is where Broyde and Pill’s most important contribution is made. Most studies of Halachah have focused on its primary rules but have failed to acknowledge that Jewish law is, and has needed to function as, a legal system. Further, failing to attend to the legal reasoning and theory immanent in Jewish law has by implication denied that Jewish juridical decisors were true legal thinkers and writers, and that their work can help us better understand and apply the law, as such.
Broyde and Pill identify ten secondary rules that govern how Epstein decided legal issues, which they group into four sets of principles. They begin by framing each principle within its historical development, culminating in Epstein’s applications and adaptations. The first two sets of principles help to determine the ideally correct legal standard and provide mechanisms to resolve ambiguity.
Unlike his contemporary Israel Meir Kagan’s code Mishnah Berurah (“Clear Restatement”), the Arukh Hashulhan was not a comprehensive account but a record of Epstein’s responsa to particular legal issues, which, taken together, present a coherent account of Jewish law. In confronting conflicting opinions and rulings, Kagan evinced a kind of legal agnosticism, in which the contemporary practitioner ought to satisfy both positions. Epstein saw conflict as an impetus to go back to the Talmudic source and reason the issue from first principles. Epstein practiced a kind of historical legal reasoning, seeing rules, legal problems, and their development in their temporal context. If returning to the Talmudic source did not clarify the issue, Epstein would review the history of halachic literature on the issue and see how precedent could provide guidance, eliciting his predessors’ immanent secondary rules to resolve ambiguity.
To a legal practitioner, Epstein’s jurisprudence resonates with the precedent-oriented approach of common law. Indeed, Broyde and Pill make a credible case that Jewish law as it evolved in Ashkenaz can and ought to be read as a mature and developed system of common law. The authors bring their impressive knowledge of Anglo-American law to serve as helpful comparisons and contrasts to Epstein’s principles and jurisprudential method. The insight regarding law’s need for primary and secondary rules is drawn directly from English legal theorist H. L. A. Hart’s classic The Concept of Law (1961, Oxford) and applied convincingly. Bringing Epstein’s decisions into conversation with the highest courts of the common law accomplishes an important corrective regarding the seriousness with which Jewish, and other traditional or religious, legal systems are taken. For a religion like Judaism, or Islam, in which law structures and informs how its practitioners relate to their practice and position within their religion, fulfilling legal obligations is not merely custom or external regulation. It is a value-laden and intentional system infused with sophisticated reasoning, and it is this material that Broyde and Pill so rightly identify and present.
However, in their attempt to bring Epstein into dialogue with jurisprudence and legal theory, the authors also find sameness when a more nuanced approach could have been satisfied with likeness. The final two sets of principles focus on mediating between legal standards and other values, as well as pragmatic concerns. In comparing Epstein with common lawyers, they also seek to make him a legal positivist like Hart. However, the formalist rubber hits the realist road when the authors address Epstein’s “pragmatism.” In his addressing issues arising from exigent or vulnerable circumstances, Broyde and Pill cast Epstein’s flexibility in applying oft-rigid principles as a formal principle in its own right! His understanding approach is described as a furthering of rabbinic anti-aspirationalism, since “the Torah was not given to the angels” but imperfect human beings.
Nevertheless, while failures of capacity can lead to failures of compliance, the main reasons listed for Epstein’s pragmatism have to do with what is outside of human control (duress, poverty, etc.). So: it is not the vicissitudes of human beings that prompt compassion, but the vicissitudes of being human. This approach accords more with legal realism than principled legal formalism, in which a judge applies moral intuition to the particular situation with which they are presented. Normativity is found not merely in rules or principles, but in reality itself.
But this is a minor quibble from a fellow legal theory enthusiast. Broyde and Pill’s book is an immensely informative and illuminating read. By taking a traditional jurist seriously as a legal writer and thinker, they have done a real service, especially to the academic communities of Jewish studies and jurisprudence. If it can help bring these, and other similarly inclined constituencies, into conversation, their work has done more than enough.
Joshua Schwartz is a rabbi and JD candidate at the University of Toronto Faculty of Law.
Joshua Schwartz
Date Of Review:
November 29, 2023