Halakhah: The Rabbinic Idea of Law by Chaim N. Saiman, Princeton University Press, Princeton, NJ, © 2018, ISBN 978-0-691-15211-0, p. 248 plus appendices and index, $29.95.
By Fred Reiss, Ed.D.
WINCHESTER, California – Halakhah is derived from the Hebrew root letters meaning to walk or to go when used as a verb, and path or way as a noun. In contemporary usage, halakhah refers to Judaism’s rabbinic legal traditions recorded in such works as the Talmud, Joseph Karo’s Shulchan Aurukh, and Maimonides Mishna Torah. Chaim Saiman a professor at Villanova University’s Widger School of Law, conveys in his newest work Halakhah, Judaism fascination with all thing legal.
First, as a lawyer, Saiman recognizes the law serves as an arrangement of rules employed to govern human behavior and exact punishment for offenders. Yet, at the time of the Mishna and Talmud and into modern times, Jews had no country to rule and no means to carry out penalties. In fact, there are numerous laws interpreted by the rabbis so as to never apply. If halakhah is not governance than what is it? This conundrum leads Saiman to his second, and perhaps more important point, describing halakhah as an intrinsic object of study.
In numerous examples, he calls on mishnaic and talmudic passages to characterize how the rabbis and sages used Jewish laws to highlight universal questions of human nature. For instance, in Part I, he describes a discussion in Mishna Sanhedrin 6:3, which states if a person is sentenced to death by stoning, the offender is stoned in the nude. The sages argue the male is stoned in the nude, but not the female. However, Rabbi Yehuda asserts they are both nude, except, a male is covered one part in the front, and a female one part in front and one in back.
The rabbis never applied the law and the price of a guilty verdict never enacted, so why did they consume time and energy on this issue? Saiman suggests this dispute over a technicality of a consequence in an imaginary system of justice “turns into a discussion about the relative weights of physical and psychological pain.”
In Part II, Saiman concentrates on halakhah as a fundamental object of study expressed in a number of ways: equating halakhah to studying Torah, perceiving it as a form of theology and education, as well as legend and law. Saiman carefully analyzes mishnaic sugyot, exchanges and debates among the rabbis, making the point that legal questions, like much of the law itself, rests on morals, ethics, and difficult to answer philosophical questions.
For instance, if a person dies in the open between two cities, according to the Talmud, the closest city to the deceased buries the body. How is the closest city measured, from the person’s nose or navel? This superficial and trifling legal question is a rabbinic quest to determine “is man a primarily physical being—created from the naval and out? Or fundamentally a spiritual being—measured from the breathing passages?”
In another sugya, found in Mishna Berachot 9:3, the rabbis examine the efficacy of prayer. We read that if a man prays after learning that his wife is pregnant, “May it be Your will that my wife bears a male child,” the prayer is in vain. The rabbis, recognizing people pray for future events, such as healing and safe travel, also understood that prayer has its boundaries: God “does not retroactively intervene in the laws of nature.”
In Part III, Saiman considers the rabbinic idea of law in the post-talmudic period, distinguishing between the Sephardic tradition of rabbis Jacob ben Asher, known as Tur, and Joseph Caro, author of the Shulchan Aurukh, who perceived Jewish law in the vein of the talmudic rabbis, casting a wide net to capture morals, ethics, and philosophy, and the Ashkenazic view of the Tosafot and such notables as Moses Isserles, called by the acronym Rema, whose writings employ multiple opinions and legal analysis, what we might call black-letter law. In doing so, Saiman raises the question of how these and other authors, such as the illustrious Moses Maimonides, and their books, unapproved by any ecclesiastical court of rabbis, evolved into “Codes” with the power of law.
Part III also follows a historical trail: from the Middle Ages and their great codification schemes, to responsa, rabbinic answers to specific legal and ritual questions, and into modern times and the rise of and institutionalization of yeshivot, schools of Jewish learning with the singular purpose of devotional study of Torah for its own sake, beginning in the early eighteenth century with the founding of Yeshivat Etz Ḥayyim in Volozhin, located in present-day Belarus.
Saiman offers a couple of examples of the Brisker method, developed and used by Rabbi Hayim of Brisk (1853-1918) in the Volozhin yeshiva, which changed the training method of rabbis; a technique in which Jewish law is met through an immersive study of the talmudic sugya. “The classic Brisker exposition says little about which view is correct… the paradigmatic encounter with halakhah was as a medium of Torah study.”
In the past, “world Jewry was largely a believing community generally bereft of political power, today it is largely a secular community that, in the State of Israel, expresses full political autonomy.” Halakhah: The Rabbinic Idea of Law concludes with a discussion of this present-day Jewish challenge, which plays out in Israel for power and control of ritual and law, by focusing on differences between halakhah and governance and to the degree to which the two can merge and unite.
Halakhah: The Rabbinic Idea of Law is a stimulating intellectual and historical journey into rabbinic thinking about Jewish law, vacillating between extracting answers to life’s most meaningful and perplexing questions, which manifest through the nitty-gritty of resolving everyday conflicts, and Judaism’s ideal and unalterable God-given laws and their formal application by lay authorities.
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Dr. Fred Reiss is a retired public and Hebrew school teacher and administrator. His newest works are The Comprehensive Jewish and Civil Calendars: 2001 to 2240; The Jewish Calendar: History and Inner Workings, Second Edition; and Sepher Yetzirah: The Book That Started Kabbalah, Revised Edition. The author may be contacted via fred.reiss@sdjewishworld.com.