Reviewed by Rabbi Reuven Chaim
Klein (Rachack Review)
This book offers a scholarly exploration
of legal circumventions and loopholes within rabbinic literature, providing
readers with an interesting perspective and detailed analysis. At the heart of
the book is the concept of avoision, a neologism that blends the English
words evasion and avoidance to denote a grey area of law which is
neither clearly illegal like evasion, nor clearly legal like avoidance.
In rabbinic texts, this manner of circumventing the law often appears under the
Hebrew term ha’aramah. While that Hebrew word is a neutral term denoting
“cleverness,” the author draws a dichotomy between two distinct archetypes of ha’aramah,
what she terms "Solomonic" (positive) and "Serpentine"
(negative).
The Solomonic type, typified by King
Solomon's pragmatic wisdom as reflected in Proverbs, represents a form of ha’aramah
that the rabbis generally approve of, characterized by prudence and pragmatism.
In contrast, the Serpentine ha’aramah evokes the Biblical verbiage that
denotes the “cunning” nature of the snake in the Garden of Eden (Genesis 3:1).
It represents the illegitimate use of loopholes and technicalities to
circumvent laws in ways that the rabbis disapproved.
In delving into specific examples,
the author presents several obscure, yet fascinating, cases of ha’aramah
as it appears in rabbinic literature. For instance, she examines how ha’aramah
might be used to avoid the Torah's added one-fifth surcharge imposed on someone
redeeming maaser sheini (“second tithe”). Another case she discusses is
using ha’aramah to justify retrieving two animals from a pit on Yom Tov
on the grounds that one intends to slaughter each animal for Yom Tov, even when
it would otherwise be technically forbidden to slaughter both (such as a mother
and child, which are one may not slaughter on the same day).
This last case leads to a
fascinating discussion about how ha’aramah based on one’s intentions
work, and whether the rabbis viewed the concept of kavvanah
(“intention”) as subjective depending on the individual case, or as an
objective way of defining an action.
The author concludes that the
rabbis approved of ha’aramah when it upheld certain legal values that
the rabbis saw as important elsewhere within the Halachic corpus. Examples of
this include using ha’aramah to prevent undue financial burdens (as long
as it is not at another Jew’s expense) or to avoid sin. On the other hand, the
rabbis tended to disapprove of ha’aramah when they felt it could be easily
misused or exploited (for example to allow work on Chol HaMoed that
could have easily been done before the holiday). In some cases, the rabbis merely
lamented or decried the use of loopholes, but did not outright forbid using them.
It goes without say, that the rabbis also took into account how severe of a
prohibition one might be circumventing when deciding whether to endorse a given
modality of circumvention (the author calls this “procedural concerns”).
Another theme that comes up this
book is the complex interplay between legal formalism (the notion that laws ought
to be determined by internal rules) and legal realism (the notion that law
should focus on judicial outcomes). In those discussions, the author examines
how Halachic perspectives fit into contemporary legal theory, situating the
rabbis between legal formalism and legal realism. This hybrid approach arises in
part because, in Halacha, rabbis serve as both the legislative and judicial
branches, necessitating the use of the law itself to reach their original conclusions.
The book also delves into the use of legal fictions and the introduction of
straw people, showing how the law is still recognized even when breached in
certain ways, highlighting the tension between procedural and substantive
justice.
In exploring these themes, this book
surveys rabbinic sources including the Mishnah, Tosefta, Jerusalemic Talmud,
and Babylonian Talmud to identify general principles guiding the rabbis'
approval or disapproval of ha’aramah. The author looks for trends within
individual corpuses of rabbinic literature and tries to identify patterns when
relevant (like a tendency to disapprove of using loopholes when it comes to the
laws of ritual purity/impurity).
The author also contrasts the
rabbinic view of loopholes with near contemporaneous discussion by Roman
jurists of the same topic. Roman jurists were very opposed to utilizing legal
loopholes, which they referred to as fraus legis (a Latin term that
means "fraud on the law"). By contrast, in the author’s estimation, the
rabbis — especially in the earlier strata of rabbinic literature typified by
the Mishnah, Tosefta, and Jerusalemic Talmud — had a more positive view of
loopholing.
To that end, the author sees the
Babylonian Talmud as more wary of ha’aramah than earlier rabbinic works,
especially regarding what she calls “performative intention” (that is, a sort
of ritualized way of characterizing one’s actions to bring them within the
realm of the permitted). In some instances, the Babylonian Talmud even uses the
term ha’aramah as a synonym for “lying,” which shows a more negative
attitude towards loopholes. In other cases, the Babylonian Talmud only allows
Torah Scholars (who can be assured to otherwise follow the law) to utilize ha’aramah,
but not the rest of the masses. These cases point to a greater hesitation on
the part of the rabbis in the Babylonian Talmud to accept ha’aramah.
This is especially seen in cases of ha’aramah that take advantage of
“performative intention,” because the rabbis sought to minimize the gap between
one’s inner intentions and one’s external actions (perhaps as a way of bridging
the gulf between law and reality). When it comes to concrete action-oriented ha'aramot,
the Babylonian Talmud has a mix of views, as can be expected.
After making this point, the
author speculates on whether this development stems from internal developments
in later Amoraic Halachic thought or from external cultural influences (e.g.,
the Zoroastrian milieu from which the Babylonian Talmud emerged).
Interestingly, some support is proffered for this second perspective from the
Babylonian Talmud’s use of the Pahlavi Persian term tatzdeke, where one
might have otherwise expected the earlier Hebrew term ha’aramah to
appear, as the use of a Persian word in this context might suggest the
importing of Persian perspectives on the topic.
Readers might already be familiar
with some legal mechanisms used in Halacha like mechiras chametz
(selling leavened products before Passover), prosbul (a procedure to
avoid the cancellation of debts in the Sabbatical year), heter iska (a
halachic way to structure business loans that avoids the ban on charging
interest), and heter mechirah (a dubious legal mechanism to allow
agricultural work during the Sabbatical year). The last chapter of this book
treats these specific legal instruments and discusses whether they ought to be
considered examples of ha’aramah or of a different concept, namely takkanah
(“rabbinic enactments”) — as these institutions are not merely Halachic loopholes,
but are deliberate legal innovations purposely introduced by the rabbis in
order to address specific communal needs.
This book stands out for its
presentation of various Halachic cases, by which the author generally offers a
verbatim diplomaticized reproduction of the relevant Hebrew/Aramaic text with a
literal English translation, which is then often followed by a more
reader-friendly synopsis. Providing the original text plus a more accessible
explanation helps introduce readers to the arcane legal discussions which make
up the backbone of this book.
The book’s copious endnotes and
bibliography show that the author is quite at home with the bourgeoning world
of academic scholarship in Talmudic studies, and this reviewer is certain that
she also made good use of the traditional Talmud commentators, even without
necessarily citing them. Throughout this work, the author also shows her
mastery over the ins and outs of legal discourse.
In a nutshell, this book is an interesting and worthy contribution to the understanding of the use and acceptance of legal circumventions in rabbinic literature. It judiciously navigates historical and contemporary legal theory, while offering valuable insights for both scholars and general readers interested in the dynamics of legal loopholes within Jewish Law.
