Chaim Saiman on Halakhah

Chaim Saiman Halakhah book coverThough typically translated as “Jewish law,” the term halakhah is not an easy match for what is usually thought of as law. In his panoramic book Halakhah: The Rabbinic Idea of Law, Chaim Saiman traces how generations of rabbis have used concepts forged in talmudic disputation to do the work that other societies assign not only to philosophy, political theory, theology, and ethics but also to art, drama, and literature. Guiding readers across two millennia of richly illuminating perspectives, this book shows how halakhah is not just “law,” but an entire way of thinking, being, and knowing.

What is halakhah and why did you decide to write a book about it?

Literally, halakhah means “the way” or “the path,” though it is typically translated as Jewish law.

I grew up in a home and community where I was expected not only to obey the law, but to study and master complex legal texts in Hebrew and Aramaic.

I was about eight years old when my father proceeded to pull out two massive tomes from the shelf and inform me that I had to learn with him before I could escape to the Nintendo console located in my friend’s basement. We began to study the section of Mishnah (the earliest code of Jewish law, from around the year 200 CE) detailing the responsibilities of different bailees—those who watch over the property belonging to someone else. This book is a grown-up attempt to answer why an eight-year-old should care about bailees and the ancient laws of lost cows.

Did you really start a book on Jewish law with Jesus?

Yes. I take Jesus and the Apostle Paul as some of the earliest in a long line of halakhah’s critics. Both lived before the tradition crystallized in the form of the Mishnah. Yet even at this early stage, Jesus pokes fun at the Mishnah’s forebears for obsessing over legal rules and formalities at the expense of true spiritual growth. Jesus would have most likely considered it a bad idea to initiate young children into religious life by analyzing the laws of bailments.  But whereas Jesus saw the law as a set of regulations and restrictions, the Talmudic rabbis understood it as a domain of exploration and study, a process they called Talmud Torah.

 What is Talmud Torah?

It is hard to translate, mainly because the idea does not exist in Western or American culture. Word-for-word it means the “study of Torah,” but its impact extends beyond what is usually thought of as “study.” Talmud Torah means that Torah is not studied merely for pre-professional reasons, and not (only) to know the rules relevant to living a Jewish life, but because it is a primary religious activity, an intimate spiritual act that brings the learner into God’s embrace.

The closest analogy in general culture is the idea once practiced at elite universities when the curriculum was focused on Greek, Latin, philosophy, ancient civilization, and classical literature. Unlike today, the goal was not to make students more attractive to employers, but to educate them into ennobled citizens who would fully realize their humanity. The rabbis had a similar idea, but rather than literature or philosophy, study was grounded in the divine word of the Torah, and especially the legal regulations set forth in the Mishnah and Talmud.

What does Talmud Torah have to do with law?

Though Talmud Torah arguably applies to any area of Jewish law and thought, longstanding tradition places special emphasis on the areas that correspond to contract, tort, property and business law—the very topics covered by secular legal systems.  According to the Talmudic rabbis, the subjects taught in law schools across the country become a spiritual practice when learned in the halakhic setting. Lawyers get many adjectives thrown their way, but godly is rarely one of them. The book aims to understand what it means to hold that legal study is a path to the divine, and what are the implications of this idea for a legal system.

Is halakhah the law of any country?

Not really. One of the unusual aspects of halakhah is that it first becomes visible in the Mishnah several generations after the independent Jewish state was dismantled by the Romans. Further, the most fertile periods of halakhic development took place when Jews did not govern any territory but lived as a minority under non-Jewish rule. This is the opposite from how legal systems typically develop.

From at least the Middle Ages through the nineteenth century, Jews tended to live in tight communities whose internal legal affairs were heavily influenced by rabbis and halakhah. But even here, close investigation shows that the civil laws that applied often deviated from Talmudic rules studied under the rubric of Talmud Torah. In the case of civil law there were effectively two systems of Jewish law. One used by tribunals when disputes arose in practice, and the other that lived mainly on the pages of the Talmud and realized though Torah study.  The relationship between these two forms of halakhah is a central theme of the book.

What about the state of Israel?

One of the ironies of modern Jewish life is that while Judaism historically defined itself through devotion to law, when the state of Israel was established there was little consensus about the role of halakhah in the state. Israel’s Socialist Zionist founders saw halakhah as a relic of the outmoded European Judaism that had to be overcome before a modern, Zionist, and self-determined Judaism could take hold. Most observant Jews by contrast, viewed secular Zionism as religiously invalid, if not dangerous. Since their primary concern was maintaining halakhah’s integrity in a secularizing world, they had little interest in adapting it for use in the modern state. Hence with the exception of marriage and divorce law, halakhah was not reflected in early Israeli law.

But the ground has shifted in the intervening years. Though Israeli law remains distinct from halakhah, there is a much wider constituency today that looks to define Israel as a Jewish state where concepts and norms inspired by halakhah find expression in state law. The book’s final chapter discusses the possibilities and pitfalls of infusing state law with halakhah.

Chaim N. Saiman is professor in the Charles Widger School of Law at Villanova University. He lives with his wife and three daughters in Bala Cynwyd, Pennsylvania.