A Moving Target- Guest Post by Chaim Saiman

The View from There

As part of the Talmud Blog’s efforts to foster dialogue between and beyond the various academic fields in which rabbinic literature is studied, we present to you “The View from There” a series by scholars from beyond classic academic talmud study.  The following explanation of the legal-theoretical approach to halakha (and the legal nature of rabbinic literature) grew out of a recent conversation between Shai and Chaim Saiman.

The old saw is that in the academy they tell you what Abayye wore while in yeshiva they tell you what he said. There is no doubt that what he wore and what he said are related and influence each other—they must. Indeed, to a large extent you can’t really understand what he said without understanding the world in which he said it, especially if what Abayye “wore” includes the entire social and intellectual world that he lived in.

Here is the issue: Most people are not interested in what Abayye the man said. The more sophisticated you are about the composition of the Bavli, the harder it is to sustain that notion anyway. My academic Talmudist friends tell me that we know very little about the chain of events from Abayye the man and his words to the text that made its way into the Bavli. As a lawyer and legal scholar interested in halakha and the cultural/intellectual world it reflects and produces, I tend to study what he said (if there was a “he”) as filtered through a tradition of interpretation, mediated through the stam/savoraim/rishonim/aharonim, as well as academic Talmudists. Each of these abstractions in turn simply masks thousands of other personalities with specific localized histories, influences and agendas. Thus to make any sense of halakha and its protracted development we would have to understand not only what Abayye wore, but what Rashi, Tosafot etc., “wore” as well. Such a project is not only nearly impossible, I am not even sure it is desirable. Besides, at some point don’t all these influences and counter-influences, histories, and counter-histories, agendas and counter agendas regress towards some kind of mean?

In the end, most of us study something like “the moving average” of the interpretation of particular statements. Now it is true that some scholars (generally historians) are more interested in examining the inflection points of that trend, and others (traditional conceptual readers, i.e. lamdanim, and legal theorists) are more interested in analyzing the broad sweep, each with their own set of conceptual categories. Further, while legal theorists acknowledge that taking note of and recovering past inflection points can be influential in shaping present ones—this is true precisely because we assign normative weight to materials of the past. But it is a long step from here to the claim that one can recover the true social meaning of any of these texts in their “native” context—especially since this is invariably done with an eye to the present.

The process of law involves making normative arguments about the present by appeal to sources of authority from the past. While we allow rules of the past to make normative claims on the present, the price they pay for this honor is that they are filtered though the present interpretive assumptions. True, present assumptions can and often do contain contain a healthy dose of historicism, but since law incurs normative demands, the history will always be infused by the normative needs of the now. Hence a standard legal argument for position “X” would be that X is superior to Y because (i) its normatively superior; (ii) is produces better results; (iii) it represents a more coherent understanding of the governing legal materials; and (iv) X was classically understood to be the correct answer in the period A before the Z’s (influenced by B) shifted the understanding to Y. A lawyer has no qualms making the historicist argument of number (iv), but in conjunction with other forms of argument, and always with an eye to the present normative question. “History” is simply another form of normative legal argument, and its salience is in part determined by how well it fits into the tradition of interpretation.

Perhaps another way to think about this is to bracket the “history” part of this question entirely. Take the very clear and important shift in interpretive assumptions that has taken place in US law before our very eyes: from the liberal purposivist method of statutory interpretation of the 60’s and 70’s, to the conservative textualism that now reigns supreme.

Even living in this culture, and being well-positioned to understand its legal and political dynamics, we can tell at least 10 different stories about why this took place, from the reductively materialist, to the wildly idealist; from returning to the Founder’s view of separation of powers, to the takeover of the judiciary by conservative ideologues determined to entrench the interests of the propertied elite. And each of these narratives will be shaped in part by whether we think the shift from purposivism to textualism is a good or bad thing, and as part of an overall argument of whether we should continue or abandon the current interpretive modality. The question of what motivates legal and political decision-making is hotly contested even when all the “facts” are known: why then, do we think that we can find a few lines from the Bavli, a few from the Digest, and tell a story about what is “really” happening underneath?

I am writing this in stronger terms than I actually believe, but I think it’s worth putting front and center when we consider the interrelationship between legal theory, traditional conceptual and source critical approaches to the Talmud. Thoughts?

Chaim Saiman teaches contracts, statutory interpretation and Jewish law at Villanova  Law School.  He is currently at work on a book tentatively titled Halakhah: The Rabbinic Idea of Law.

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10 responses to “A Moving Target- Guest Post by Chaim Saiman

  1. Perhaps your strident befuddlement begins by thinking that a Talmudist is interested in Talmud qua “halakhah,” that is, a text that has a historical connection to a set of norms still followed today in some fashion or another. If that was the case then the Talmudist might want to know “what is “really” happening underneath” to determine whether a given norm has lexical priority over another.

    Anyway, once you get away from this frame then the question is less “what is really happening underneath” than, what approach gets you closer to what happened in plain view. In some cases text criticism will get you closer, in others comparative law, in others cultural history, in others legal theory etc. These are all tools The Talmudist, (the best, like Shai, are no doubt eclectic) can apply to varying degrees and in varying combinations with an eye toward interpretive reasonableness instead of aspirations of recovering the true social meaning.

  2. But in Chaim’s defense (and I should add that I disagree with the approach as an exclusive one), what fascinates me here is the way a certain strain of nihilism that emerges from contemporary Talmudic criticism can lead to a re-invigoration of Mishpat Ivri style scholarship. In other words, if anyway every hermeneutical moment is so fraught, why not simply shoot for the “moving average” and in fact work towards some kind of pure, legal abstraction that emerges from the text…Makes one think.

  3. Why not dispense with hermeneutics, forget the text, and aim for the purest legal abstraction that emerges from the volksgeist?

  4. Kudos on this very interesting post.

    Professor Chaim Saiman is clearly approaching the issue from the standpoint of a modern legal decider, i.e. a posek halakhah. Professor Saiman writes:

    Hence a standard legal argument for position “X” would be that X is superior to Y because (i) its normatively superior; (ii) is produces better results; (iii) it represents a more coherent understanding of the governing legal materials; and (iv) X was classically understood to be the correct answer in the period A before the Z’s (influenced by B) shifted the understanding to Y. A lawyer has no qualms making the historicist argument of number (iv), but in conjunction with other forms of argument, and always with an eye to the present normative question. “History” is simply another form of normative legal argument, and its salience is in part determined by how well it fits into the tradition of interpretation.

    I would argue that the prevalent approach to halakhic decision making today (and going back quite some time) tends to completely ignore (i) and (ii) on the purely conscious level (of course on the subconscious level of the posek these may play an important if not vital role). By far the most common arguments of the posek would fall under the above category (iii). Category (iv) is used much more sparingly in Orthodox pesak, and more commonly in Conservative (with a capital C!) pesak.

    All of this seems relevant for the Beit Midrash, much less so for the Academy. Most academic study of Talmud focuses on the past, and this focus may be on quite a broad spectrum of that past. As such, most of those studying Talmud in the academy are involved in the field of history (in its broadest sense) for the sake of recovering past “realities” more than (if at all) for the sake of current legal decision making.

    In summary, one might say that academic scholarship of Talmud tends to be interested in both what Abaye “wore” and in what he “said” (as this “saying” was passed down through the generations). The yeshiva student and the posek, on the other hand, tend to be interested exclusively in what the Vilna edition of the Talmud says that Abaye said.

    - Yonatan Adler

  5. Thank you for what has so far been a very illuminating discussion.

    AS- We agree on at least agree on one point—Shai does some very good work in the field of academic Talmud, and I have learned much from his writing as well as from many others
    In response, two points

    First, both AS and Yonatan note that academic Talmudists have no particular interest in the normative project of halakha. If we speak of the normative project the narrow sense: when do we apply the principle of kofin al middat sdom or which transactions fail on account of davar shelo ba la’olam, I readily agree. (But many legal scholars are not interested in that question either. They want to know what image of justice and autonomy is assumed and reflected by these legal categories. Normatively can be expressed at a variety of degrees of generality, not all of then concordant with the Kitzur Shulkhan Arukh . . .veakma”l ). But there is a broader normative project embedded in the study of Talmud (academic, yeshiva or otherwise) integrally related to our collective image of “What is a Jew?” historically, presently and the connection between them. Academic Talmudists (correctly) assume that an important element of this question hinges on locating and interpreting that most influential and enigmatic document of the tradition, the Talmud. (How many historians of 6th century Icelandic legal documents do you know?) But this inquiry takes place against the backdrop of the cultural politics of present-day Jewry where there is intense disagreement as to whether the Talmudic project should viewed as (i) displaced by emancipation and liberalism, (ii) mandating strict adherence under increasingly formalistic and positivistic assumptions—or any point between. For the present, I stand by my claim that the present day study of Talmud (philological /yeshiva/ literary, etc.) in engaged—albeit at various degrees of remove—from this fraught normative question.

    The second point goes to AS’s distinction between what’s going on underneath and what happens “in plain view.” Let me try out the following. Soon enough the Supreme Court will decide on the constitutionality of “Obamacare.” This will be one of the most significant in the past 30 years. I think we would all agree that this will happen in “plain view”—we have a degree of verisimilitude with our own culture that even the greatest of scholars of the 6th century could hardly reproduce. But there is/will be rather intense disagreement as to what is happening in plain view. In a court where Justice Kennedy is the swing vote does it all turn on what he ate for breakfast? Or which lobbyist he ate dinner with the night before? Scholars claim that they can empirically demonstrate that the Court follows public opinion: thus will the rise of the Tea Party allow the Court’s conservative wing to flex its muscles? Is the opinion motivated by the Republican’s desire to cast Obama as unconstitutional, using his signature legislative victory as a credible proxy? Or will Scalia’s inclination towards broad executive powers push him away from Tea Part orthodoxy? Yet others will analyze the decision from the perspective of the amicus briefs before the Court— how do the various political actors line up on this question? Others will talk about the distinctions between taxes and fines, action and inaction, the Founders view of federalism, the relevance of states in a transnational economy. Finally others about the arc of the commerce clause and various doctrinal niceties of constitutional law.

    So Issue #1, is that with all of these things are in play, the story you tell, whether you are a lawyer operating within the system or a journalist or political scientist analyzing the system from some degree of remove is invariably connected to your substantive views on the underlying question.
    But point #2, is that though all these issues are in play, “on its face” the lawyer’s briefs and the Court’s decision will engage with very few of these issues, focusing (almost) exclusively on the doctrinal categories of the commerce clause, supplemented here and there with some quasi historical reconstruction of the Founder’s intent and a too- neat- to be true- recitation of the Court’s doctrinal history. A peculiar feature of a legal system (and a society’s commitment to deciding contested questions pursuant to the “rule of law”) is that we allow this process to proceed via the language of “commerce clause doctrine” even as, at the very same moment, few of us believe that this is what is “actually” driving the decision. And one does not need to be an adherent of the system to note that this is one of its common features.

    My point is that explaining why THAT happens it itself a varied and deeply contested normative question, and deeply related to the study of Talmud—in each of its manifestations.

  6. Shai:
    F.W Maitland was the first scholar appointed to a chair in the history of the common law in Cambridge in the 1870’s. His inaugural lecture, titled “Why the history on English law has not been Written” basically asks why Oxbridge had been teaching the history of the Roman law for centuries, but never the history of the common law. His answer discusses the issue of writing the legal history of an operative legal system, which has relevance to the discussion here. Might I propose that you post the article and then ask several scholars to analyze and critique Maitland’s argument?

  7. You should more carefully distinguish between the two issues. The first (the broad normative project you speak about) has been a part for Jewish Studies since its inception, and is in no way particular to academic Talmud. But at least since Scholem there has been a conscious rejection of the idea that Jewish studies should aim to answer the essentialist “what is a Jew” and instead attempt a more open ended descriptive project whose limitations are explicitly recognized.

    Whether or not Scholem succeeded, the normative question you raise has been a perennial concern for Jewish studies, but inasmuch as academics put their cards on the table, whether its Yerushalmi’s reclamation of historical memory or Biale’s reclamation of secularism and on, no one is pretending that it’s pure philology and your claim is therefore somewhat unremarkable.

    The second issue is a perennial one in legal theory but as far as Talmud goes, there is still so much descriptive work to be done on the surface that we can worry about what was happening below the surface later. And enough of the descriptive project disrupts existing paradigms about what the Talmud is and what it purports to be that its significance as a clarifying presence is already manifest. The analogy I would use is that we are still at the point of creating Newtonian descriptive physics and the why questions need to be bracketed somewhat until Einstein comes along.

  8. Wonderful post, Chaim, and thanks to all the respondents too.
    I would just add two brief comments; 1) I think the distinctions Chaim is getting at are well-captured by the distinction between scholasticism and humanism (a particularly good articulation is this in the context of Talmud and halakha was by an article some years ago in the David Daube Festschrift, I forget by whom), between reading the past an an authoritative source for the present and truing to understand it inasmuch as possible on its own terms. 2) Writing history is, beyond its obvious scholarly thrust, a major form of modern Jewish history (as beautifully demonstrated not only in Yerushalmi’s Zakhor but more recently in Michael Brenner’s ‘Prophets of the Past’) and academic Talmud is thus a part of that enterprise viz. a particular (and in the case of the more exquisite philological realms, at times peculiar) expression of Jewish identity – and reworking of the ideal of Torah li-Shma – irrespective of its legal uses (perhaps as detached from law as it most yeshivish lomdus, which doesn’t necessarily make it less beautiful or compelling when done well – and I know that lomodus is not as irrelevant as that, but that is for another time.)
    And yet, where the scholastic-humanist distinction falls short in reconfiguring this particular dilemma is the inevitably critical (even small ‘c’ critical) nature of historical research, and the undermining of traditional notions of revelation and tradition of which scholarship is both cause and effect.
    We have, I think, yet to articulate some compelling hermeneutic that enables us to maintain what I guess one could call the ontological and normative presence of the texts in the face of our knowledge (partial though it is though not entirely wrong) of how those texts came to be (and I do not presume to offer one here). Jewish cultural nationalism was one such possibility but has not proven itself. What happens next? God only knows.

  9. Pingback: Thinking Legally vs. Thinking Historically: A Penn Conference- Guest Post by Chaim Saiman | The Talmud Blog·

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