TALMUD AS ZEN ... ?

Halakhah: The Rabbinic Idea of Law 

By Chaim N. Saiman

Princeton University Press, 320 pages

$29.95

Do not judge this book by its bland cover; it’s one of the most exhilarating works I have read in years on Jewish law and the Talmud. Chaim Saiman, an observant Jewish law professor at Villanova University in Pennsylvania (as in Saint Thomas of Villanova), asks and answers the questions I had in the late 1960s and early 1970s at the two ultra-Orthodox Lower East Side yeshivas I attended.

Basics inquiries such as what relevance do fallen oxen, temple sacrifices, and “family relations” (whatever that meant) have to do with real life? Why does the Talmud revel in obfuscation? Why the faltering, often indecipherable Aramaic wording (*), as if connecting phrases had been purposely redacted out of the sentences. And given all this, why does Talmud study consume so much time in Orthodox life?  

The context was never offered; contextual questions were discouraged. My eyes glazed over. To escape Talmud tedium my mind went into the equivalent of Window’s “sleep mode.” The three or four Talmud teachers I most recall were Eastern Europeans who had come to America after World War II. Two were kind, well-meaning, and ineffectual; the others were not. All assumed Talmud required no prerequisites beyond sitzfleisch (after all we could read Hebrew and understand Yiddish).

No one thought it necessary to explain the lay of the land. 

It was as if somebody handed me borrowed, half-finished class notes from somebody else who once attended the school. I left yeshiva without the tools to pursue further Talmudic study or any desire to rectify this situation.

 

Bible to Mishna to Talmud to Halakhah

In Judaism, Talmud is the basis for Jewish religious law or Halakhah. It builds on the rules outlined in the Mishna. And Mishna elucidates on Jewish ritual and practice dictated by the Five Books of Moses (Hebrew Bible). 

In this way, rabbinic Judaism takes the Bible seriously but not necessarily literally. 

For instance, Exodus 21:24 calls for an “eye for an eye,” but Halakhah interprets this phrase as calling for financial compensation – not blind vengeance. Another example: The Bible instructs the people of Israel not to work on Shabbat; the Mishna sets forth which activities constitute work. The Talmud dissects, scrutinizes, and ponders the idea of labor outlined in the Mishna. 

Here’s where it gets complicated. The Talmud habitually goes off-topic and after meandering here and there returns, if at all, not necessarily with a definite conclusion. That’s why you should be wary of Jewishly-illiterate people who throw about a Talmudic-based aphorism to make their argument. 

For those not in its milieu, Talmudic discussions can seem obsessively fixated. As Chaim Saiman explains, the Talmud delves into issues that have no possible application and never did. Some Jewish laws – punishing adultery, for example – are engineered with requirements that make them virtually impossible to apply. Saiman wonders whether this state of play was the intention of the men who edited the Talmud (from multiple sources, accumulated from various places, over several generations) or whether it merely evolved in this manner. 

The journey as much as the destination

He asks us to understand Jewish law as existing along a continuum. Begin with laws that the rabbis themselves stated were never intended to be applied. Move on to laws that were meant to be followed but are no longer relevant. Next, are practical laws that observant Jews can and do follow today, such as what benediction to recite before eating an apple. Along the way are laws, regulating Temple rituals, for example, that would only apply in a messianic future.   

“Conceptually, however, the rabbis' idea of law means that movement [along the continuum] is not only possible but common. The Mishnah and Talmud do not tell us where a given body of law describes an imagined legal reality, daily practice, rabbinic aspiration, or some combination thereof.

“On the contrary, by constantly mixing, matching, and moving among halakhah's meanings, the Talmud signals that from its perspective, these distinctions are not very significant. This is one of the central insights of the rabbinic idea of law,” Saiman postulates.

What matters is the study of the Torah as an end in itself. Torah is a generic term not just for the Five Books of Moses but for the Talmud and the commentaries it generated. As Saiman characterizes it, “Torah became the Jews’ ‘portable homeland.’ Torah is a source of identity that requires neither land, army, wealth, nor institutions, but simply the commitment of the faithful.” 

At the end of the day, “The question is not what halakhah regulates, but what it teaches through the process of regulating,” writes Saiman.  Thus, the Talmud does not present a coherent theology of Judaism. Our task is to discern Judaism’s theology piece by puzzling piece on issues ranging from spirituality and mysticism to labor law and women’s rights.

Talmudic Syntax

To the question why doesn’t the Talmud speak directly, explicitly, plainly Saiman seems to suggest that: (a) its convoluted method of exposition was not necessarily intentional (b) the style worked nicely circa 500 CE (c) the question misses the point since the Talmud’s raison d'etre is pure analytical inquiry – as in basic versus applied science (d) alternatively, Talmud is like literature, so you need to accept its premises about plot, setting, and character rather than seek to impose contemporary data or fact-driven methodologies.

Rabbi Norman Solomon, the British scholar, in the introduction to his The Talmud: A Selection (Penguin, 2009) offers another helpful perspective on syntax: “The Talmud was not designed as literature for reading nor as an oratory for inspiration, but for oral transmission with explanation by an authorized teacher… The editors did not … have the modern English reader in mind, nor were [they] thinking of the non-Jewish world or even the general Jewish public. Rather, their notes were resources for dedicated disciples within a culture dominated by biblical texts; they aimed to facilitate a discourse in progress” set in an unfamiliar landscape.

So, it seems that the Talmud is not to be “read” nor can it even provide absolute rules about what to do if your chicken falls into a tub of sour cream. 

And yet, Talmud did become the basis for applied law even as it evolved to serve a further purpose: the devotional study of Talmud became an expression of faithfulness to the creed, according to Saiman. 

Talmud remains the basis for applied Jewish law. There are workarounds but no replacements.  Maimonides (1135-1204) in his Mishnah Torah synthesized and distilled Talmudic law (doing so controversially sans citations) with the idea that for most Jews Mishnah Torah could serve as an accessible alternative to Talmud. He even retained all the rules that are unlikely ever to be applied. For studying the “law” has its intrinsic value.

Despite all that, the Mishnah Torah of Maimonides failed to displace the Talmud (even though it was written in everyday Hebrew) because, if I understand Saiman correctly, “halakhah speaks first to the student of the sugya [issue or subject matter] and secondarily to the performer of the mitzvah.” In other words, Jews do not live by rules alone; they live to engage deliberating the rules, rituals, and practices. 

Medium over Message

If Judaism is rooted in Halakhah then – on the face of the matter – its essence is all about rules. Progressives find this off-putting; the ultra-Orthodox find it comforting. At their extremes, both camps have redefined Judaism in their image. Radical “As-a-Jew” progressives have made trendy left-ish politics their Judaism. The ultra-Orthodox try to take every regulation mentioned in the Talmud (or in its authoritative commentaries) and make it a way of life, and the validation for seeking out openings for greater rigidity.

However, Saiman says that “the primary purpose of the ideal halakhah is not to govern society but to serve as the vehicle through which the divine spirits flows to the Jewish people.” 

As I read Saiman, Jewish law both establishes a relationship with the Creator and is also a set of rules about conduct and ritual. The Talmud is the channel through which the Halachic message is transmitted. And the channel may be more important than the content of the message.

In this way, one way to move closer to the Creator is by losing oneself in the sea of Talmud for its own sake. Above and beyond ritual worship, Jewish law or halacha is meant to be a focus of meditation. It has its ambiguous statements. It sometimes transcends rational thought. Think Zen albeit without the quietude. 

Midrash 

One of the things the unlearned such as myself enjoy most about The Talmud is its non-legal midrash aggadah – stories that offer insights into the origins of Jewish folklore – such as belief in daemons, the evil eye, magic, dreams, superstitions, the nature of the Messiah and the afterlife. 

It’s never just about the rules – or about throwing them out

After Maimonides other sages came along to offer their crystallizations of the Talmud. Joseph Karo’s 1563 Shulchan Aruch or Code of Jewish Law is perhaps the most influential. The Shulchan Aruch generated its commentaries and distillations: in 1864 the Kitzur Shulchan Aruch by Shlomo Ganzfried and Meir Kagan’s Mishna Berurah (starting in the 1880s). 

The problem is that once rules were published (we begin to see Jewish books printed around 1474) it became difficult to update them. Thus, in the name of venerating medieval and pre-WWII European rabbis – rabbinic rules become static and an end in themselves.

Responsa

Another stage in the evolution of Jewish law is Responsa, legal Halakhic briefs based on questions placed to rabbis. In the ultra-Orthodox world, paradoxically, even responsa may not necessarily serve a practical purpose. The Talmudic ethos (as seen through ultra-Orthodox eyes) dominates, and therefore questions may not get definitive replies. This is an outcome of the fetishization of Talmud that some trace to Europe’s Brisk and Volozhin yeshivas. 

The fetishization turned into fanaticism. “Alongside its emphasis on devotional Torah lishmah [study for its own sake], the Yeshiva raised the parallel concept of bittul Torah – the shameful abnegation of Torah – to new levels. In this understanding, any moment NOT devoted to Torah study required specific justification. Eating, sleeping, family affairs, and all other activities were to be kept to a bare minimum, as even the slightest excess might constitute bittul torah,” Saiman writes. 

For some believers, according to Saiman, Halacha is transcendent. It predated the world. It was always there to uncover. 

Mostly, though, the preponderance of ultra-Orthodox Responsa is anchored in the real world. Rabbi Ephraim Oshry (later of the Lower East Side) was deeply respected for his WWII-era responsa compiled in the Kovno Ghetto (Lithuania). For example: Could the burial society ritually prepare a body in advance of its burial, he was asked? Yes, because those responsible for arranging funerals could not be certain that if they waited, it would be possible to perform the taharah at all. The Nazis might kill them before they could bury the dead.

The Responsa of Rabbi Moshe Feinstein (Iggerot Moshe), viewed as perhaps the most influential Halakhic decisor of the 20^th century, does answer down to earth questions with the proviso that those who study his answers should feel free to check his citations and query his conclusions.

Can there be a middle road between the dominant ultra-Orthodox approach to Halakhic Judaism and non-Halakhic Judaism which asserts that everyone is at liberty to choose which rules to follow and how with Halakhic Judaism serving as a broad guideline?

Centrism is out of fashion in politics, society and in Jewish civilization – or so it seems. But it does exist. There is the contemporary scholarship by the inimitable Rabbi David Golinkin and by the previous generation of “old-school Conservative” rabbis such as Reuven Hammer (זכר צדיק לברכה). Unfortunately, it is hard to reasonably argue that centrism reflects the spirit of 21^st century Conservative Judaism. Nowadays, to me, it is nearly indistinguishable from the Reform approach.

Halachic state

One of the most critical take-aways from this book – if I read it correctly – is that no polity ever actually operated based on Halacha. Halakhah as we know it evolved in the absence of Jewish sovereignty.

You can’t “plug and play” Halacha into a contemporary state, Saiman argues. Which may explain why neither pre-state Zionists nor ultra-Orthodox Agudah rabbis focused on “the proper interaction between halakhah and the modern state." 

While few theocrats come straight out and say they want a halakhic state Israeli political parties and clerics who push the idea are on the rise. And there is a deeper and broader demographic base that is receptive to immoderation ranging from non-Zionist ultra-Orthodox to “national-religious” ultra-Orthodox.

For now, most Israelis, as Saiman points out, want to live in a culturally Jewish state but not in a halachically Jewish polity. And most would probably like to sever the official Orthodox “church” from the state and dismantle the ultra-Orthodox non-Zionist official rabbinate. 

Jewish literacy

Today, Jewish literacy requires at least a broad familiarity with halacha and Talmud. These treasures are inseparable from Jewish civilization, and their interpretation must not be ceded to any single faction. 

That’s why Chaim Saiman’s Halakhah: The Rabbinic Idea of Law – so clearly written – ought to be on your personal required reading list if like me the Talmud leaves you perplexed.

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FURTHER READING

Jewish Law as Rebellion: A Plea for Religious Authenticity and Halachic Courage by Nathan Lopes Cordozo

N.B.

(*) The great Jacob Neusner pointed out that: “In the Talmud of Babylonia what is said in Hebrew is represented as authoritative and formulated a normative thought or rule. What is said in Aramaic is analytical and commonly signals an argument and formulates a process of inquiry and criticism.”

“Hebrew is the language of the result, Aramaic of the way by which the result is achieved.  

Punchline "the decision to entwine a demanding system of regulation within a sanctified framework of religious study and creativity has allowed halakhah to survive and thrive under a vast array of disparate legal and cultural settings.”