Book Review: Halakhah from several angles

By: Rabbi Rachel Esserman

What exactly is halakhah? The concept is more difficult to understand than one might expect, at least according to Chaim N. Saiman’s “Halakhah: The Rabbinic Idea of Law” (Princeton University Press). Saiman, who is a professor in the Charles Widger School of Law at Villanova University, looks at halakhah from an unusual viewpoint: he’s interested in how legal disputations also came to serve as religious practice. He notes that his “book is largely an attempt to explain halakhah as experienced from within... the halakhah castle to an audience standing outside it... the goal is not to unearth the history of halakhah but to offer a constructive account of the interpretive and conception practices presented within in it.” In simpler terms, Saiman explores the way halakhah works for the Jews who study it for legal and spiritual reasons.
Saiman notes that halakhah is usually translated as Jewish law, but the literal meaning of the word – “the path” – better explains how the halakhic system works. The reason for the common translation is that most people think of halakhah as the laws that have governed Jews throughout the century. Yet, Saiman shows how it has a far wider range. In fact, he believes the halakhic system functions in four different ways, none of which are mutually exclusive: “Halakhah is concurrently a system of governing rules and practices, a forum for legal analysis, a platform of religious expression, and an object of devotional study.”
Over the course of his work, Saiman examines each of these ways of looking at halakhah. One of the most interesting chapters looks at halakhah as “non-applied” law. Halakhah developed during Greco-Roman times when Jews didn’t have sovereignty over the judicial system and could not, for example, practice capital punishment. That did not stop the ancient rabbis from discussing in great detail who would be deserving of capital punishment and how that punishment would be dispensed. A great many Jewish institutions and practices – including the Temple, sacrifices and the priesthood – were no longer relevant once the Temple had been destroyed, Yet, one of the first works of halakhah, the Mishnah, acts as if the laws it includes were still being meted out by a court system. Saiman notes that the halakhic system “adopts an as-if jurisprudence; detailing regulations as if the Temple in Jerusalem stood in all its splendor; as if the Jewish people were sovereign in the land; as if the Sanhedrin exercised its powers; and as if Jewish criminal law was routinely enforced in accord with mishnaic doctrines.”
Saiman also discusses how it’s possible to understand rabbinic theology through halakhic arguments, even if the rabbis themselves don’t specifically speak in theological terms. The study of halakhah was the way these Jews connected to God after the destruction of the Temple. While they engaged in study partly for its own sake they also believed studying Torah – written and oral Torah – helped them learn how God wanted them to behave. The Torah (in its largest sense as encompassing all biblical and rabbinic writings) was said to contain all the knowledge one needed to function in this world. Every detail in the Torah – no matter how minor or unimportant it seemed – had something to teach these rabbis and their students.
In “Halakhah,” Saiman also explains how Jewish study over the years has changed. He notes that while medieval codes, such as Maimonides’ “Mishneh Torah,” were supposed to limit the need for discussion about the correct way to follow a law, that quickly changed. Codes themselves became objects of study and commentary. Commentators varied as to whether they were looking for practical applications of halakhah or offering theoretical ideas that would never be put into practice. The study of halakhah is still considered a religious practice today, not only in yeshivot, but at synagogues and community centers. Another example of contemporary study is the Daf Yomi movement, through which people of all ages and branches of Judaism agree to study a page of Talmud a day. Some do so for religious reasons; others just enjoy the intellectual challenge.
Saiman includes a chapter on the founding of the state of Israel and its relationship to halakhah. He notes that halakhah offers no guidance on how to govern a modern state because the different texts offer too many options. There also is no structure on how to turn these theoretical laws into functioning governmental rulings. One example is the halakhic idea of the importance of saving a life: “Halakhah requires a passerby (Joseph) to drop everything and spend time and money to save Benjamin’s life. How does this individual mandate translate to state policy? What emergencies must a halakhah state plan for? What should its health policy look like?... Since the mitzvah of saving lives is paramount, must the entire Gross Domestic Product of a halakhah state be devoted to healthcare? Who pays, and by what mechanism are scarce health resources to be allocated? And who makes these decisions?” The answers to these questions can’t be found in current halakhic texts.
This review only touches on a few areas that Saiman discusses. The concepts he uses can be difficult to grasp at first since his view of halakhah is very different from other works on the subject. However, his writing will appeal to scholars and laypersons who are willing to work a little to understand his ideas. “Halakhah” offers fascinating insights into how the rabbis transformed their religion into the study of law and how that transformation still informs Judaism today.