Halakhah: The Rabbinic Idea of Law by Chaim N. Saiman (review)

Abstract

Reviewed by: Halakhah: The Rabbinic Idea of Law by Chaim N. Saiman Jonathan S. Milgram Chaim N. Saiman. Halakhah: The Rabbinic Idea of Law. Library of Jewish Ideas 13. Princeton, NJ: Princeton University Press, 2018. xiv + 296 pp. doi:10.1017/S0364009420000173 Chaim Saiman's book explores Jewish law from the time of the Mishnah to contemporary Israel. The author demonstrates extensive knowledge of Jewish legal literature. The treatment of two millennia (!) of sources enables the observation of historically recurring tropes and trends. Hence, the work's focus: identifying the pervasive presence of two poles on Halakhah's spectrum: the "regulatory" and the "idealized." These poles, argues Saiman, are inherent to the ideological system fashioned by the rabbis in antiquity and continued to complement one another through the ages. The work has received public praise. A book published by Princeton University Press, however, should be reviewed for its methodological rigor and contributions to the academic study of Jewish law. From the viewpoint of this reviewer (an academic who researches Talmud and medieval Jewish law) methodological concerns abound. There is little engagement with tannaitic law's scriptural interpretive underpinnings (41); the author leaves the impression that the historical Jesus responded to tannaitic laws (28); he is inexact regarding whether the Mishnah and Talmud were already committed to writing in antiquity (51); the author asserts that the Babylonian Talmud "feels undedited [sic] and unfinished" (70), without citing research on its literary forms; there is no serious treatment of Rashi's Talmud commentary; and the author uses gender-exclusive language ("man," "mankind," "layman") when texts and contexts do not require it. The author admits that he did not write a typical academic work. The method is, generally, ahistorical and reminiscent of doctrinal works (despite the demurral on p. 9). He writes, "Lawyers always read the past as continuous with the precedents and principles of the present" (11). The approach would be justifiable, perhaps, if we got regular reminders that the book describes what earlier texts came to mean. Saiman creates the impression, however, that later interpretations uncover an earlier text's intended meaning. Flying in the face of entire academic fields without offering substantive critiques, Saiman studies "the basic parameters of the concept of halakhah" (9) in a vacuum, as if the concept were not subject to its cultural contexts. When reading rabbinic literature—from the Mishnah to Maimonides and beyond—he gives priority to the late nineteenth- / early twentieth-century "Brisker" (conceptual) method, as if that admittedly ahistorical approach offers what "halakhah" really meant through the ages (212). Saiman explains that, when compared to movie making, the historical study of Halakhah is a "still-shot" approach (12–13). Each phrase in the Talmud and Rishonim is understood against its historical contexts. His approach, however, looks at the movie as a whole, aiming to uncover what Halakhah and its later interpretive practices mean. The problem with the analogy is that most movies are produced by a team with an intended goal. This is not the case with Halakhah. The Mishnah is one genre of law produced in Roman Palestine; the Babylonian Talmud another authored in Sasanian Babylonia; and medieval codes, [End Page 420] commentaries, and responsa (all separate genres) were penned in lands as far flung as northern France and Egypt over the course of a millennium. One is hard-pressed to identify continuity across these varied lines. Certainly, the author is to be commended for identifying occasional continuity. (However, he overreads the evidence; see below.) A more productive route would be to define, in each time, place, and genre, what "Halakhah" meant. How expansive was the concept among the Tannaim versus the Amoraim, the Geonim versus the Rishonim, French Tosafists versus German? How did Brisk break with the past and innovate? Saiman tries to refute academic Talmud methods, but seems to lack the necessary familiarity to accomplish this feat (52–54). For Saiman, T. Sanhedrin 14:1 provides the perfect ancient locus for the coexistence of the two poles. The text's first paragraph approaches the case of the "rebellious city" (destroyed due to idol worship) as "idealized": it "never was and never will be; why then was it legislated? To say...