Off the Shelf: Legal fictions and loopholes

By Rabbi Rachel Esserman

Whether to impose strict interpretations of biblical laws or create loopholes to ease Jewish life so the population would not discard those laws as too onerous: that summarizes one of the difficulties the ancient rabbis faced when discussing rabbinic law. The many legal fictions the rabbis created – from the eruv to selling chametz before Passover – serve as part of the discussion offered in “Circumventing the Law: Rabbinic Perspectives on Loopholes and Legal Integrity” by Elana Stein Hain (University of Pennsylvania Press). Hain, rosh beit midrash and senior fellow at the Shalom Hartman Institute of North America, offers a close looks at rabbinic rulings found in the Mishnah and the Palestinian and Babylonian Talmuds to discuss possible reasons behind the acceptance or rejection of specific loopholes. 

One studies more than reads “Circumventing the Law” because of the author’s inclusion and discussion of mishnaic and talmudic passages. That makes the work difficult to write about because the specifics are complex, even though Hain does an excellent job explaining them. However, she notes that there seem to be some general principles when it comes to the modification of biblical laws: to prevent people from sinning, to circumvent the severity of transgressions and to prevent financial loss. Hain notes that not everything is open to debate: “Some laws are too weighty to evade, such as those written explicitly in the Bible; sometimes a circumvention hollows out the action too much.” 

One example is the discussion of the quantity of food that can be cooked on a holiday. The underlying rule is that one can only cook on a holiday for food that is to be consumed that day. However, if more food is prepared than can be eaten, then one is allowed to eat that on the following day, as long as the food was not deliberately cooked for that purpose. This becomes a problem when the day after the holiday is Shabbat, when one may not cook at all. However, even when the next day is not Shabbat, there is a debate about whether one can claim they are cooking for guests who might come and share a meal (even though there is no guarantee they will) or if that is just an excuse to cook for the following day. There is also a discussion if one can salt meat that one is not planning to eat on a holiday. One opinion says that a person should just salt the meat used for the holiday. The other says all the meat can be salted for two reasons: “First, there is the value of not losing money while trying to celebrate the holiday. And second, perhaps requiring the meat to spoil will prevent people from fulfilling their obligation to eat festive meals in the future to celebrate the holiday. If one must leave the extra meat to spoil, one might choose not to eat meat on the festival at all, which would result in a lackluster celebration.” 

A discussion of rabbinical courts offers a fascinating view of rabbinic ideas of justice. What occurs is very different from the trials in the civil, Roman law to which the author compares it. Hain notes that the rabbis acted more like lawyers arguing before God than they did like judges. Instead, it was God who was considered the ultimate judge. Rather than strict, Divine justice, the rabbis sought to have God take mercy on the Jewish people: “Rabbis were not just jurists or legislators; they were lawyers as well, with the Jewish people as their clients before God as the judge. This accords... with later portrayals of advocates in the heavenly court who twisted laws for their clients.” However, there were limits to the changes they argued for: they did not want to disrespect the law (which would encourage people not to practice). Instead, they were trying to uphold the integrity of the law. The difficulty was in trying to decide which loopholes would uphold the law and which would undermine it. 

There were two basic positions taken about whether the use of a loophole was appropriate: the intent of a person or the performance of a particular action. Hain notes that the Palestinian Talmud seems more concerned about specific actions, while the Babylonian Talmud focuses on one’s inner intention. She sees this as a difference between a person’s kavanah (their intention and mental process) vs. their machshuvah (their plan/action), although she notes that the rabbis themselves are not always clear about the specifics of each case. An additional concern is that of mar’it ayin, which Hain defines as “the appearance of sin.” Loopholes were more accepted if the action took place in private so it didn’t look as if a person were deliberately flaunting the law (having the appearance of mar’it ayin). If done in public, others might feel the behavior was acceptable in all cases and accidentally sin. 

Hain believes the ancient rabbis were trying to balance “the conflicts between God’s laws and human concerns... to hold both reverence of God’s word and appreciation for human concerns as part and parcel of a healthy legal system. And yet the rabbis show deep reverence for the authority of Jewish law, setting boundaries where they thought that reverence might be undermined by” loopholes. This was a difficult balance to maintain. It also meant there is not one right answer as to whether there should be exceptions to a particular law. This is the reason some rabbinic debates on these topics are still being argued.

This review barely touches the material offered in “Circumventing the Law.” Those who love halachic (legal), midrashic and talmudic discussions will enjoy reading and analyzing the texts featured. Those unfamiliar with the study of rabbinic text will have to depend on Hain’s explanations, although those sections are fairly easy to read and understand. Lawyers and legal scholars will have an easier time with the chapters that compare Jewish law to ancient Roman law and contemporary legal theory. “Circumventing the Law” demands its readers’ attention, but anyone interested in the workings and development of Jewish law will find much of interest.