Legal Circumventions in Rabbinic Law

Abstract

Rabbinic law is known for fine distinctions, what some call “hair-splitting” logic. While such logic leads to nuanced discussions about how to fulfill the Divine will, it also makes legal circumventions available. From the Latin circumvenīre, meaning to “come around,” circumventions are used to get around the implications of law. Ancient rabbinic literature, composed from the third to the seventh century ce in Roman Palestine and Sassanian Babylonia, contains many legal circumventions. Some are explicit rabbinic decrees, while others are implicit, such as exegesis that narrows or expands biblical injunctions. There is also a rabbinic term for legal circumvention: ha’aramah (literally, “subtlety” or “cunning”). Examples of ha’aramah sometimes resemble legal loopholing by changing aspects of a scenario to alter what law applies there (e.g., where a sale is forbidden, it is replaced by a gift and counter-gift); other examples involve structuring the proper intentions to render a certain activity permissible where it would otherwise be forbidden (e.g., moving livestock on a Festival day with the intention of preparing it as food is permitted, while moving livestock on a Festival day merely because it is in the wrong place is forbidden). Legal loopholing is often connected to legal fictions or presumptions: where people/courts rely on presumptions that are partially or fully known to be false. Indeed, fictions and loopholes have some jurisprudential thinking in common, but they are not interchangeable mechanisms. In Jewish law, some legal fictions are meant to circumvent law (e.g., where a lost husband who returns after his wife has remarried is told that the court does not believe his identity), while other fictions have nothing to do with circumventing law, but only creative abstract constructions of reality (e.g., viewing the wall of a sukkah as extending upward when there is a gap between the walls and the roof of the sukkah). Insofar as religious law may be presumed to require a sincere desire to perform the divine lawgiver’s commandments, loopholes and fictions seem out of place in religious law. This entry includes writings that offer legal, historical, and social logic for rabbinic circumventions generally, and also for particular circumventions. It also includes works that examine the broader jurisprudential issues that circumvention logic entails, including nominalism and the role of intention in Jewish law. While this entry reflects the logic of legal circumventions introduced in late antique rabbinic literature, it also includes material about the legal loopholes and fictions that developed after the close of the Talmud and are widely known and used in society today.