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.