I am not particularly interested in halakhah. I enjoy studying Talmud because the emphasis is on the questions rather than the answers; I am less interested in how Jews are supposed to practice than in the values and considerations that animate the discussions about Jewish religious observance. I think of Talmud and halakhah in terms of Schroedinger’s Cat Paradox. According to this thought experiment, by now a quantum mechanics cliché, a cat is placed in a box where there is an equal probability that a deadly poison is or is not released. Only when the box is opened is the state of the cat established with certainty. Talmud fascinates me because the cat is simultaneously both alive and dead, with all the interpretive possibilities still open, whereas halakhah collapses the dancing wave function into a static mode of practice.
But perhaps the time has come to reconsider. In his new book Halakhah: The Rabbinic Idea of Law, Chaim Saiman argues that halakhah is so much more than just prescriptive law because it plays both a regulatory role—governing Jewish religious practice, and also an educational role—serving as the object of devotional study. Jews study halakhah not just to learn how to behave, but also because halakhah serves to communicate social and religious meaning. And so while much of the content of Talmud study is similar to what is taught in American law schools, for Jews it is regarded as one of the purest forms of divine worship. Rabbinic case studies—when Reuven’s ox falls into Shimon’s pit, for instance—are not just precedent-setting, but value-laden. This is true of the Talmud, but it is also true of subsequent halakhic works such as the Tur and the Shulhan Arukh, which are not merely laws to be applied, but discourse to be studied. Thus legal ideas are pursued to further broader social and cultural aims. As Saiman puts it, “Halakhah is not only a body of regulations, but a way, a path of thinking, being, and knowing.”
In his opening chapter, Saiman responds to Jesus’ critique of halakhah as an obsessive preoccupation with legal minutiae by arguing that halakhah consists of a discussion of the central questions of religious life through the lens of legal norms. Saiman demonstrates how broader ethical and philosophical concerns inform even the most seemingly obscure or technical halakhic matters. Questions such as “what is justice” and “what is beauty” are anchored in discussions about particular commandments. As Saiman contends, Jesus failed to understand that the Talmud’s seemingly obsessive legal commands are the prism through which weightier issues are refracted and revealed. Historically this may have been an attempt to infuse deep significance into laws that often seemed, even to the rabbis, arcane and irrelevant, but however it happened, halakha became the language for probing and articulating foundational Jewish questions. Halakhah, then, is not merely a legal code; it is the language of Jewish thought.
Saiman, a law professor at Villanova, frames his book by showing how halakhah is different from American law, or German law, or any other state-based legal system. This approach enables him to discuss halakhah in the terms of Western jurisprudence—concepts such as legal formalism, Aristotle’s idea of corrective justice, and Antonin Scalia’s understanding of the “rule of law.” And yet perhaps the more apt comparison to halakhah is not state law, but other systems of religious law, such as Muslim Sharia and Buddhist Dharma. True, Americans are unlikely to gather together to study the Constitution for their personal enrichment; but do Muslims and Buddhists regard their religious legal codes as objects of study? How unique is halakhah as a system of religious law? These questions obviously fall beyond the purview of Saiman’s book, but they raise questions about the author’s point of comparison.
As Saiman sees it, the ideal of Talmud Torah, in which Jewish law is an object of religious study, is one of two ways in which halakhah differs from state-based legal regimes. The other is that halakhah, which emerged after the destruction of the Second Temple and the collapse of Jewish sovereignty, is the law of a people rather than the law of a state. For nearly all of its history—until the foundation of the State of Israel, whose implications for halakhah Saiman explores in his book’s final chapter—halakhah could not realize its full regulatory scope because Jews were living in the diaspora, governed by the laws of the countries in which they resided. As a result, halakhah often speaks the language of “as if,” detailing regulations about crime and punishment as if the Jewish court, the Sanhedrin, still functioned in Jerusalem, and detailing sacrificial law as if the Temple were still standing and operational. In this sense halakhah is timeless, hearkening back to a sovereign past and to a messianic future. Many of the laws that are part of the halakhic system have been irrelevant in terms of practice throughout the history of halakhah, and yet, as Saiman notes, “neither the remoteness nor even impossibility of applying halakhah does anything to dampen the rabbis’ ardor for legislating and debating its rules and procedures.”
Through a series of close readings of Talmudic passages, Saiman shows how the two defining characteristics of halakhah – halakhah as regulatory and educational, and halakhah as the law of a people rather than a state – account for many of its unique and distinguishing features. Discussing the first Mishnah in the Talmud, about the time for the recitation of the evening Shema prayer, he questions the conventional dichotomy between halakhah and aggadah, i.e. the legal and literary parts of the Talmudic text. He show that by framing the laws of the evening Shema in terms of a discussion about cosmology, the Talmud subordinates regulatory clarity to religious phenomenology. Halakhah regulates by educating, thereby functioning as aggadah rather than merely standing in opposition to it. Elsewhere Saiman cites this same Talmudic passage to explore another feature of halakhah—what the Kabbalist Gershom Scholem referred to as halakhah’s “eternal present.” The Talmud teaches that the time for the evening Shema is specified in terms of Temple ritual, thereby conflating past and present and applied and non-applied law.
In offering close readings of Talmudic passages to explore the rabbinic idea of law, Saiman’s Halakhah joins other books that seek to explain the workings of Jewish law to a broader Western audience, including several published in the past few months: Barry Wimpfheimer’s The Talmud: A Biography, Ayelet Hoffmann Libson’s Law and Self-Knowledge in the Talmud, and Leon Wiener-Dow’s The Going: A Meditation on Jewish Law. All of these books share, to an extent, Saiman’s avowed goal of “explain[ing] halakhah as experienced from within (or at least the view from within one room of the halakhic castle) to an audience standing outside it.” But although Saiman writes that his book is for outsiders, his perspective on halakhah—as someone who knows it intimately, but reads it as a legal scholar through the lens of legal theory— may well stimulate many students of the halakhic corpus to view it in a new light. He calls our attention to the oddity of much of what traditional students of Jewish law take for granted – that imagined legal realities are interspersed with daily practices, that discussions that appear merely technical are pregnant with philosophical and existential meaning, that the Talmud “reverse engineers” broad halakhic ideas from specific regulations. Saiman masterfully succeeds at once in clarifying the unique discourse of halakhah for those who have never encountered it, while clarifying to those most familiar with halakhah just how unique it is.
Following his exploration of the nature of halakhah and his close Talmudic readings, Saiman shifts in the third and final part of his book to post-Talmudic discourse, examining the literature of halakhic responsa and the medieval codes of law that distilled the Talmud’s freewheeling discourse into standardized legal rulings. In the medieval period, areas of Torah formerly explored through the aggadic sections of the Talmud—liturgy, philosophy, mysticism, ethics—evolved into separate disciplines, and the Talmud became associated with the more regulatory aspects of halakhah. This section of the book serves as an accessible introduction to medieval halakhic literature for the uninitiated, though it is less intellectually engaging for knowledgeable Jewish readers than the section on Talmudic readings (or perhaps I’m just revealing my dead cat biases here).
Saiman then concludes, as does Wimpfheimer in his “biography” of the Talmud, by considering the resurgence of interest in Talmud among contemporary Jews of diverse backgrounds, for whom Talmud study is becoming an increasingly popular path toward building a positive Jewish identity. He observes that “these developments have not only reinforced the imprint of halakhah in its traditional strongholds, but have pressed the Talmud into conversation with Western philosophy and literature, academic scholarship, and the arts—sources previously excluded from the beit midrash.” In this sense, as Saiman might have noted, halakhah has come full circle—from the embedded nature of halakhah and aggadah in the Talmud, to the emphasis on rule-based formalisms in the medieval codes, to the explosion of creative and artistic responses to the Talmud in the twenty-first century.
As someone who engages creatively with the Talmud, I have moved beyond the analogy of Schroedinger’s cat to another scientific metaphor: Halakhah as DNA. DNA is the language of life. Parts of the sequence of nucleotides in DNA code for proteins, and other parts—known in molecular biology as “junk DNA”—serve no coding function. Likewise, part of halakhah codes for aspects of Jewish religious observance, and other parts consist of ethical and theological discourse, non-applied halakhah, minority opinions which are not followed, and laws which are interpreted out of existence. Just as “junk DNA” is not really junk, but serves to increase the possibilities for recombination, so too the non-coding aspects of halakhah serve to allow for increasingly creative readings and re-interpretations of halakhic discourse. I am still drawn to the non-coding aspects, certainly when it comes to the Talmud. But I’ve come to appreciate that halacha is the two-thousand year old language of Jewish life, and, like Hebrew, one’s Jewish education will always be limited until one becomes conversant in it.