English, Guest Posts, Ruminations

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.

English, Ruminations

Talmud and the Absurd: The Elephant in the Sukkah

Since the 1990’s (and Daniel Boyarin’s Carnal Israel), there has been a fair amount of discussion about the Talmud, the carnivalesque, and the absurd.  Put simply, the Talmud contains a fair number of passages, even halakhic ones, that we might say operate on a plain other than the normal sphere of human existence.  Amazingly, these passages interact in strange and unexpected ways with the more regular talmudic fare.  Much of this research has been driven by criticism developed in the study of literature that probes the meaning of “bizarre” texts and their relationship to the normative work. This is, for example, one of Socrates and the Fat Rabbis primary concerns, and it also powers a fascinating discussion about courtroom etiquette in Barry Wimpfheimer‘s  Narrating the Law.

This morning, reader Yair Rosenberg sent me Pshita‘s most recent creation – a children’s story that reworks the following talmudic discussion.

If he used an animal as a wall of the Sukkah, R. Meir declares it invalid and R. Judah valid, for R. Meir was wont to say, Whatever contains the breath of life can be made neither a wall for a Sukkah, nor a side-post for an alley nor boards around wells,  nor a covering stone for a grave.  In the name of R. Jose the Galilean they said, Nor may a bill of divorcement be written upon it. What is the reason of R. Meir? — Abaye replied, Lest it die.   R. Zera replied, Lest it escape.  Concerning an elephant securely bound, all  agree [that the Sukkah is valid], since even though it die,  there is still ten [handbreadths height] in its carcase.

 Regarding what then do they dispute? Regarding an elephant which is not bound. According to him who says, Lest it die, we do not fear;  according to him who says, We fear lest it escape, we do fear.  But according to him who says, Lest it die, let us fear also lest it escape? — Rather say, Regarding an elephant which is not bound, all agree [that the Sukkah is invalid]; regarding what do they dispute? Regarding an[ordinary] animal which is bound: According to  him who says, Lest it die, we fear [for that[ according to him who says, Lest it escape, we have no fear.  But according to him who says, Lest itescape, let us fear lest it die? — Death is not a frequent occurrence.  But is there not an open space between [the animal’s legs? [It refers to] where he filled  it in with branches of palms and bay-trees. But might it not lie down? — [It refers to] where it was tied with cords from above. And according to him who says, Lest it die, is it not tied with cords from above?  — It may occur that it is made to stand within three [handbreadths] of the covering but when it dies, it shrinks, and this might not enter his mind… (Bavli Sukkah 23a-b; translation follows Soncino).

Here’s Pshitta’s video, with apologies to those who do not read / understand Modern Hebrew:

What interests me here is both the pedagogic angle and the cultural meaning of a video like this.  As in its “who threw R. Yirmiyah out of the beit midrash video, Pshita is using strange talmudic texts to try to make Talmud study (and the organization) playful, counter-cultural, anti-bourgeoisie, and most importantly, relevant to Israelis who do not identify with normative expressions of Judaism, Jewish text study, or even Israeli national culture.  In the R. Yirmiyah video, this “New Yeshiva Bochur” who studies in a secular yeshiva, engages in social justice in South Tel Aviv, and presumably believes in the right of Palestinian self-determination (you can argue that I am over-reading here. But better a strong over-reader than a weak under-reader), jostles for space in the beit midrash, alongside “real” yeshiva bochurim.  Just like R. Yirmiyah, he reserves the right to ask his klutz kashas. Now we have a video in which an absurdist talmudic debate about an elephant serving as a sukkah wall is told using the form of a children’s story.  It might also relate to the now entrenched cultural phenomenon of holiday videos on youtube. But what does this video want?

Criticism always takes place someWHERE. Bakhtin’s criticism had clear political motives, and so does this Pshita video. But what are they?