Review: Halakhah: The Rabbinic Idea of Law

By Chaim Saiman
Princeton University Press
Princeton, 2018
320 pages

The questions behind Chaim Saiman’s book, Halakhah: The Rabbinic Idea of Law, are perhaps typical of yeshivah high school students. He describes his confusion as a tenth-grade yeshivah student expected to confront Talmudic passages that were completely divorced from his reality, and how his studies inspired questions which might be summarized—though he never puts it this way—as “Why do we need to know this?”

Does Halachah Qualify as “Law”?

If the general question is typical, however, the perspective from which the adult Saiman asks it may not be. As a lawyer, Saiman approaches “Jewish law” with an expectation that it parallel American and other state legal systems, designed purely to legislate and enforce real-life practices. From that premise, he questions whether halachah really qualifies as “law,” since many of its details are and perhaps have always been impracticable or unenforceable or both. For example, he points out that the Mishnah devotes a great deal of space to laws of capital punishment, describing them as if they were current practice—despite the fact that the Sanhedrin had already ceased to function long before these teachings were published, and despite clear reluctance to actually administer capital punishment (and detailed regulations making it all but impossible) even if there were a Sanhedrin available to do so.

As a non-lawyer who grew up observing and studying laws of Shabbat, kashrut, prayer and the like—and accustomed to calling them “Jewish law” though I never expected a beit din to enforce consequences for violation—I was taken aback by these expectations of human governance. However, as Saiman offered page after page of examples, I came to realize that my own conception of “Jewish law” is perhaps overly narrow.

We are all aware of areas of halachah that are not practically relevant, at least today—Temple laws, for instance, or much of civil and certainly criminal law—but do we really think about what they mean? Why, indeed, is so much rabbinic attention given to laws that our communities have for so long been unable to practice, and why do we (still) study them? Saiman’s legal focus might seem to underemphasize the prominence of applied laws such as Shabbat and kashrut, and to overemphasize the question of institutional enforceability, but it is important in reminding the rest of us not to underemphasize the prominence of nonapplied law and its implications as far as the meaning of “Jewish law” in general.

Saiman does a thorough job of articulating that prominence and those implications. Despite his obvious erudition in law and halachah as well as many other disciplines, his treatment is (mostly) highly readable and even engaging for the layperson—especially, although he says he wrote for an audience standing outside halachah, for the layperson who is personally invested in halachah.

In essence, Saiman suggests conceptualizing halachah along a spectrum. At one end are the applied laws, the rules that govern human behavior. This pole is made up of halachot of Shabbat, kashrut, prayer, and the like—those halachot that we non-lawyers might think of as “Jewish law” and that we correctly see as highly practicable. At the opposite end of the spectrum are the non-applied laws: the most extreme are those that were perhaps never intended to apply (such as ben sorer u’moreh), but moving from there towards the middle of the spectrum, we find procedures of the Beit Hamikdash and laws that perhaps were at least theoretically enforceable in the time of the Sanhedrin, but have had no real-world application for centuries.

Expressing Meaning through Halachah

Why study these non-applied laws; why, indeed, “do we need to know this?” Saiman suggests a shift from thinking about Jewish law as “law” like any other, to thinking about it in the broadest sense of “Torah.” He embraces the non-applied elements of the Talmud and shows how deeper ideas from disciplines such as literature and philosophy are often blended with “law” in these passages, suggesting that the rabbis saw “halachah” as a way to express deep meaning through its (apparent, though not always actual) function as regulating practice. Halachah might seem to be law, and it often is, but it also uses law as a means by which to express a range of other ideas.

On one level, this is a perspective any yeshivah high school teacher might offer the student who asks why we need to know this: It’s Torah; we must learn it! But I imagine many of us are not quite sure what that means and never fully articulate either the questions or the answers. Saiman reminds the reader that the entire discussion can be exciting, not threatening.

Much of the book is devoted to tracing how halachic scholars have moved between, and mixed together, elements of halachah’s two poles. These analyses are strongest when Saiman embraces and portrays complexity through carefully analyzed examples. He engages the reader in close study of several Talmudic passages that weave the poles together, such as the Mishnah’s discussion of how to ensure the lechem hapanim is present on the table at every moment (Menachot 11:7) and its extension in the Gemara to the technical obligation of Torah study and the broader question of what it means to live “in God’s presence” at all times (p. 63-64, 78-84). In this meta-example, Saiman both demonstrates how philosophy is woven into what looks like absurd preoccupation with obsolete “law” and illustrates the centrality of Torah study itself in rabbinic thought.

In the course of his description, Saiman does us the favor of articulating differences between rabbinic and Western thought processes that often present frustrations for contemporary students of Talmud, but that are perhaps too rarely addressed explicitly. His descriptions of what halachah is not—both as law and in its non-linear approach to uncovering deeper meaning—pave the way for discovering what Torah study, conceived and approached more broadly, is and can be. “Halakhah may be law, but it is also the analogue of a classical liberal-arts education, offering a set of concepts of understanding and interpreting the world and making decisions within it. The question is not what halakhah regulates, but what it teaches through the process of regulating.” As a teacher, I wonder what the results might be if we were to explicitly and unapologetically present these perspectives to our students, perhaps even teaching some of Saiman’s specific examples and inviting students to search out meaning in what might at first seem meaningless.

Rambam vs. Tosafot

As Saiman progresses from Talmudic examples to the period of the Rishonim, two elements caught my interest. One is what Saiman portrays as a split between the poles of halachah: Codifiers such as Rif and Rambam (and later, Tur and Shulchan Aruch) believed it was time to move beyond the Talmudic approach toward a more functional idea of halachah, while others, exemplified by Tosafot, maintained the Talmud’s fluidity and engaged in expansive interpretation as a devotional exercise of talmud Torah.

Certainly, there is much in their different writing styles to support this claim—though Saiman’s descriptions in this section are surprisingly (in comparison to the rest of the book) lacking in quotations to illustrate his points. However, I wonder about the ideologies he assigns each side and, relatedly, the measure of success he attributes to each. Regarding ideologies, Saiman quotes the famous line from Rambam’s introduction that describes what he is doing—providing a clear summary of the halachah that will obviate the need for studying any other work between the Torah and the Mishneh Torah—but not Rambam’s explanation of why—namely, that circumstances have made it difficult for most Jews to engage in study of the Talmud. Is it possible that Rambam’s approach in this work does not reflect his views on the nature or “idea” of halachah, so much as a particular need he felt had to be filled? If an individual embarks on a course of study, or any enterprise, with a specific goal, does that goal necessarily represent the sum total of his views on the more general field?

Why, indeed, is so much rabbinic attention given to laws that our communities have for so long been unable to practice?

And in terms of success: Saiman readily admits that the reality of the Tosafot/Rambam dichotomy is not really so absolute. Tosafot’s Talmud-style analyses are often aimed at determining the correct practical ruling, and Rambam incorporates many elements that are not strictly functional—as evident most obviously in the fact that he offers “practical” rulings on the full spectrum of halachah, all the way to ben sorer u’moreh. Saiman presents these works as if they reflect fundamentally opposing views of halachah, and then suggests the more complex elements of each work stem from the (unfortunate?) lingering influence of the broader Talmudic conception of halachah; in fact, he labels the Mishneh Torah and later codes as functionalist failures. However, the Talmud is not presented as having one view of halachah which somehow became twisted into more, but as reflecting a fundamentally multifaceted idea of halachah; perhaps its ideological heirs should similarly be celebrated for successfully maintaining that complexity even as they focus primarily on one or the other goal in a particular work.

I’m reminded of Rashbam’s comment on Bereishit 37:2, where he states his view that midrashic interpretation is “ikar,” and also his practical intention to focus on peshat, which he felt had so far been neglected. If one were to read only half of that programmatic statement, one might conclude that Rashbam is ideologically dismissive of derash—and that when he does incorporate midrashic interpretations, he has failed. But having read it all, we can appreciate that his choice of focus may not be so much ideological as practical, to bring the world of Tanach study back into balance—and we can allow him the complexity of the occasional midrash.

The second noteworthy element in Saiman’s discussions of Rishonim is his analysis of strategies used to apply, limit or even sometimes circumvent elements of Talmudic law in favor of more practical means of “halachic” administration. Saiman’s portrayal of how some scholars differentiated between “ideal” halachah as presented in earlier sources, versus what would actually work in their communities, is enlightening and at times even shocking, though I wonder whether some of what he describes might actually have roots in the Talmud. After all, the Talmud is aware of and sympathetic to distinctions between ideal (lechatchila) and non-ideal (bedieved); it also knows well how to interpret an earlier halachic statement as limited to a particular case. The expansion of those principles into entire theories of halachic governance, however, could likely only be fully appreciated and conveyed by a scholar like Saiman. I learned a great deal from his examples and analysis; among other things, they inspired a renewed determination to learn Derashot HaRan one of these days.

The Centrality of Talmud Torah

Though much of what I enjoyed about this book was the complexity of the interwoven relationship between the two poles of halachah, perhaps two of the most important chapters focus more on separating perspectives than on blending them. In one, Saiman describes the Lithuanian model of “the yeshivah,” especially as developed in the Brisker approach, at the extreme of one pole. In the other, he questions whether the entirety of halachah—which he spent many pages differentiating from state law—could ever be turned into state law, specifically that of the State of Israel, or whether they are simply too different. Like halachah’s applied and non-applied poles, the practical relevance of this chapter represents the polar opposite of the rest of Saiman’s highly conceptual book—and as in halachah’s spectrum, the combination only makes each more gripping.

Throughout the book, I wondered why halachah developed the way it did; to put it in high school terms (and this one actually is worded this way in the book), “Why not just say [whichever deep idea] directly?” Saiman says he’s not addressing the why—only describing the what and its results—but the occasional tidbit can be glimpsed. Among others, there is the suggestion that framing so many issues through the lens of law reminds us that exploration of any issue begins with God and our submission to His law.

On a related note, a core theme of the book is the centrality of the obligation of immersive, devotional talmud Torah to the entire corpus and tradition of halachah, and the effect of that central obligation on halachah’s ability to survive and thrive through so many years of galut. While this idea appeals to me on many levels, it also raises questions about where women fit in. True, many women do engage in devotional Torah study—increasingly so, in our times. I am privileged to be one of them, to a degree. But in terms of applied halachah, we are not obligated to do so. This element, at least, of Saiman’s conception of halachah seems to be fundamentally about men—which makes sense, as the halachic writings he analyzes tended to be written with the expectation that men would read them—and I am left wondering how we might then conceive of women’s relationship to halachah, whether we do or don’t engage in immersive study. Overall, The Rabbinic Idea of Law is an enjoyable and enlightening read, and offers important perspectives to inform our studies, our practice and the relationship between the two.

 

Sarah Rudolph is a freelance Jewish educator, writer and editor. She has been sharing her passion for Jewish texts of all kinds for over fifteen years, with students of all ages. Sarah’s essays have been published in a variety of Internet and print media, including Times of Israel, Kveller, Jewish Action, OU Life, Lehrhaus and more. 

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This article was featured in the Fall 2019 issue of Jewish Action.
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