Halakhah: The Rab­binic Idea of Law

Chaim N. Saiman

  • Review
By – February 4, 2019

In this com­pre­hen­sive sur­vey of the dif­fer­ent for­mats that halacha has assumed over the years, Chaim N. Saiman, a law pro­fes­sor at Vil­lano­va Uni­ver­si­ty, com­pares and con­trasts halacha with sec­u­lar legal codes.

A pri­ma­ry dis­tinc­tion that Saiman makes is between law as lit­er­a­ture and law as reg­u­la­to­ry statutes. He writes that, where­as reg­u­la­to­ry law strives to reach defin­i­tive con­clu­sions and to for­mu­late its con­tents as unam­bigu­ous­ly as pos­si­ble in the inter­ests of uni­ver­sal appli­ca­tion, halachic sources also have lit­er­ary inten­tions. While Saiman notes that not every sug­yah con­tains philo­soph­i­cal mean­ings,” and that big ideas are rarely the direct sub­ject of the Talmud’s dis­cus­sions,” through­out the book he offers numer­ous exam­ples of the under­ly­ing psy­cho­log­i­cal, soci­o­log­i­cal, and the­o­log­i­cal assump­tions that are reflect­ed in par­tic­u­lar Tal­mu­dic discussions.

A sec­ond major dis­tinc­tion Saiman makes between sec­u­lar and Jew­ish law is that the lat­ter often appears uncon­cerned as to whether the laws being dis­cussed are applic­a­ble to the world in which we live. While such laws can include cat­e­gories such as nev­er to be enact­ed,” moral­ly cor­rect but not to be applied by a this-world­ly court,” and hope­ful­ly, the law will become per­ti­nent again when the Mes­si­ah arrives,” the fact that such dis­cus­sions are nev­er­the­less con­tained with­in Jew­ish pri­ma­ry sources proves that Torah study serves as a more pow­er­ful ratio­nale for the exis­tence of this con­tent than the for­mu­la­tion of spe­cif­ic cur­rent prac­tices. Of par­tic­u­lar inter­est to Saiman is the idea, first pro­mul­gat­ed by Rav Nis­sim of Gerona, that the king, or any oth­er sec­u­lar, tit­u­lar leader of a soci­ety, can tem­porar­i­ly cre­ate his own legal sys­tem, there­by abro­gat­ing clear halachic prin­ci­ples that are found to be inad­e­quate, if pub­lic safe­ty and the impo­si­tion of gen­er­al order requires such mea­sures. He refers to such sys­tems as sub-Halakhah.”

Final­ly, Saiman dis­cuss­es whether halacha could serve as the basis for state law now that the Jew­ish peo­ple have an actu­al state. While the State of Israel was found­ed by sec­u­lar­ists who wished to have noth­ing to do with tra­di­tion­al Judaism, views have changed to the point where the halachic tra­di­tion is no longer con­sid­ered anath­e­ma to many of its cit­i­zens. Fur­ther­more, mar­riage, divorce, and the def­i­n­i­tion of who is a Jew have all been legal­ly and exclu­sive­ly deter­mined by the Chief Rab­binate, estab­lish­ing a fur­ther prece­dent for Jew­ish law play­ing a role in the every­day lives of even sec­u­lar Israelis. Whether the State of Israel can retain its iden­ti­ty as a democ­ra­cy while at the same time fur­ther incor­po­rat­ing at least parts of Jew­ish law into its legal frame­work has become an increas­ing­ly burn­ing issue.

Saiman’s book, a log­i­cal pre­sen­ta­tion of a com­plex top­ic, should be of inter­est to lay read­er and spe­cial­ist alike.

Yaakov (Jack) Biel­er was the found­ing Rab­bi of the Kemp Mill Syn­a­gogue in Sil­ver Spring, MD until his retire­ment in 2015. He has been asso­ci­at­ed with Jew­ish day school edu­ca­tion for over thir­ty years. R. Biel­er served as a men­tor for the Bar Ilan Uni­ver­si­ty Look­stein Cen­ter Prin­ci­pals’ Sem­i­nar and he has pub­lished and lec­tured exten­sive­ly on the phi­los­o­phy of Mod­ern Ortho­dox education.

Discussion Questions