The Rabbinic Ideas of Law
Series: Library of Jewish Ideas
- ISBN: 9780691152110
- Published By: Princeton University Press
- Published: September 2018
Chaim N. Saiman’s Halakhah: The Rabbinic Idea of Law covers a very large range of sources and concepts, from the Mishnah of 200 CE, to law in the 20th century modern State of Israel. This highly recommended book can be read with no background in Jewish Studies or research in Talmud, and can function as an introduction to Jewish law, but the author also takes distinct positions, stances, and priorities. Saiman’s core stance is that halakhah is set “within a social and theological framework that inescapably blurs the lines between legal decision-making and theoretical analysis of legal concepts; between rabbinic legislation and biblical interpretation, between operative rules and the stories, folklore, social criticism, and other material found in the Talmud’s pages” (28; also 8). Saiman highlights that Jewish law “is best understood as a central component of Torah—that is, as God’s instruction or teaching” (57), so “the phenomenon of halakhah cannot be explained outside the devotional, educational, and even artistic motivations of Torah study” (72). Given this, Saimon shows that Jewish law takes up many roles in Jewish culture, “from tasks classically associated with legal regulation all the way to the diverse devotional, spiritual, cultural, and expressive functions performed by its study and practice” (242).
One core question in the study of Jewish law is the status of the Mishnah. Does the Mishnah remain a foundational starting point for the adaptation and application of the laws presented through the figure of the prophet Moses in the Pentateuch, even if the Mishnah does not generally cite the precise biblical verses for the derivation? Or has it been the case that later debates explicitly or implicitly subvert or override the Mishnah? Saiman states that “the general rules of halakhic decision-making” are that “the halakhah should follow the view expressed in the Mishnah,” but he is often interested in cases that are, in his characterization, “more complex” (110). A crucial and well-known division, well-characterized by Saiman, is in the period of the Rishonim of the 11ththrough 13th centuries CE. He highlights “two contrasting views” in the study and practice of Torah: the first follows the talmudic commentary to the Mishnah and “reads the Talmud as proto-law focusing on its legal rules,” so the study of Torah “is a functional project whose goal was to tame the talmudic wild into digestible black-letter rules … of halakhic practice,” while the second is “anchored in a different set of talmudic features and sees Torah study in devotional terms” (144-45). The key contrast is that the Rif [R. Isaac Alfasi of Fez who lived 1013-1103] “reduced the Talmud to legal rules,” while the Tosafot of northern France and Germany “performed ‘Talmud’ to Talmud” and “saw Torah study as continuing the process of Talmud itself” (150).
Saiman’s account does not simply place these two positions in opposition; he finds a more complex historical unfolding of the relations between the two, along with responses to social forces. One insightful example is a consideration of Jewish law of debt collection, starting with the Tur of Jacob b. Asher, written in early 14th century CE Spain. Tur in Section 97 of Hoshen Mishpat“ records several talmudic rules that, from a modern legal perspective, are unusually protective of impoverished debtors. For example, if a debtor cannot repay a loan, the creditor is forbidden from pressuring him.” Other protections are named, and finally, “under no circumstances may any party seize millstones or other items used by the debtor to ‘maintain sustenance’” (174). In other words, the creditor cannot claim from the debtor key possessions needed for food preparation. From this point, Saiman traces “unevenness” in the history of Jewish law on this point: “Though the actual halakhah becomes increasingly favorable to the creditor, Tur’s commitment to talmudic precedent means that the debtor-friendly laws remain on the books even as the scope of their application shrink.” Later, these laws become particularly relevant among Polish Jews in the 17th and 18th centuries, who “frequently engaged in commerce and moneylending,” and this led to enactments and practices “that significantly expand the rights and remedies available to aid creditors in collecting their debts” (176). In this case, historical reality impacts the law.
Another example of Saiman’s presentation of complexity in Jewish law is his account of the Brisker method of talmudic analysis, developed in the late 19th and then 20th centuries CE, with the name based on the town where the method was developed—Brest-Litovsk in Belarus. The Brisker method, according to Saiman, generates “an inquiry about the nature of a legal formality” from the difference in about six inches between two stances among medieval commentators regarding acquisition of legal title to a moveable object by lifting the object into the air—some require nine inches, while others require three inches. The Brisker “interprets this debate by probing the nature of the act of lifting itself: what is the legal impact of lifting the object into the air? Does it: (i) effectuate the transfer of legal rights; or (ii), does it merely offer evidence that the transfer has taken place?” (199). For the Brisker, the requirement of nine inches holds that lifting is evidence of ownership, while the minimal requirement of three inches “is sufficient if the lifting is simply a mechanism for transferring ownership” (199). In this example, the study of Torah and the delineation of Jewish law interrelate in a distinctly rich manner, yet: “For all their talmudic prowess, the Briskers were notoriously reticent about deciding questions of practical halakhah” (207).
I recommend Halakhah: The Rabbinic Idea of Law both for readers interested in its introductory features, and its particular stances. The project might have been stronger if the research had been presented as two books, one a more distinctly scholarly justification of Saiman’s specific views, and one addressed fully to a broad audience new to Jewish law. Recognizing this dual-character of the book will enable the reader to learn from Saiman and debate his positions.
Jonathan Schofer is Associate Professor of Classical and Medieval Rabbinic Judaism in the Department of Religious Studies at the University of Texas, Austin.Jonathan SchoferDate Of Review:October 30, 2018