Understanding Jewish Law

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understandingUnderstanding Jewish Law
By Steven Resnicoff
Lexis-Nexis, 2012
211 pages

Reviewed by Yitzchak A. Breitowitz

As a law professor for almost three decades, I am familiar with the fine Understanding series of books (Understanding Contracts, Understanding Torts, et cetera). The books, published by Lexis-Nexis, are designed to give confused law students (as well as their harried professors) relatively quick overviews of the main doctrines and principles of a given area of law so that they could perceive the overall contours of a subject before proceeding to the finer, more subtle details. (This approach is extremely useful in the study of Talmud and halachah as well, despite the fact that yeshivot do not commonly employ it.) There is considerable value in seeing the overall forest and not getting lost in the trees. Unlike many other summaries which proliferate in the world of legal education, the Understanding books have a well-deserved reputation for solid-reasoned analysis that manages to be concise, clear and comprehensive without degenerating into superficiality. Although I have regularly recommended them to my law students, I never had a reason to suggest a title for general readership—until now. Professor Steven Resnicoff’s book on Jewish law, while certainly helpful to law students, deserves wider circulation.

In recent years, Jewish law has become a moderately popular elective in many law schools, including prestigious schools such as Harvard, Yale, Columbia and New York University. While it is safe to assume that the bulk of students taking these courses are Jewish, a significant minority are not, but are nonetheless interested in the comparative insights Jewish law might offer on the legal issues society faces. In this academic sense, Jewish law does not include the ritualistic or bein adam l’Makom laws such as the laws of Shabbat and kashrut, but those aspects of halachah that have at least rough analogues to issues secular legal systems deal with—contracts, torts, property, family law, medical ethics as well as process-oriented issues such as role of precedent, court procedure and the like. Even excluding Orach Chaim, the field of Jewish law is vast and any survey course or book must be selective in the extreme with the concomitant risks of omission, oversimplification and distortion. Professor Resnicoff, a musmach of Rav Moshe Feinstein, a graduate of Yale Law School and a distinguished professor at DePaul University College of Law in Chicago, has undertaken the daunting task of offering an introductory overview of Jewish law suitable for both students with limited or no exposure to the subject and those with somewhat more background. And he attempts to do so in under 300 pages—quite a challenge!

Despite some of the criticisms I have pertaining to the book’s organization as well as to the author’s choice of topics, this is an outstanding work of enormous benefit to every student of Jewish law. Indeed, it is precisely the most advanced students (and I include bnei yeshivot and kollel fellows) who may get the most out of it as they will appreciate its many subtleties.

The first section of the book (out of four sections) introduces students to the very basic facts that Jewish law is not limited to the ceremonial or ritualistic but is a full-fledged legal system, and that it is not at all identical to the laws of the State of Israel which is technically a secular democratic state. Professor Resnicoff discusses the apparent anomaly of a binding law lacking both a state and an enforcement mechanism and segues into the fact that ultimately the binding force of Jewish law in even its “nonreligious” components is religion. He then proceeds to articulate the theological foundations of Jewish law: belief in God, Divine Revelation, belief in reward and punishment—including the Afterlife—and the concept of the Divine origin of the Oral Law. I must admit that encountering theological discussions about God, Revelation and Olam Haba in a textbook intended for law students studying in secular schools was a bit jarring, but on balance the need for such coverage is inevitable. Without it, it would literally be impossible to understand, in any meaningful sense, how Jewish law could even be described as law in this day and age.

Professor Resnicoff goes on to discuss the fundamental distinction between D’Oraita (Biblical law) and D’Rabbanan (rabbinic legislation including takkanot and gezeirot). While the discussion is helpful, it is extremely abbreviated. Moreover, somewhat inexplicably, Professor Resnicoff includes in this introductory section a chapter on duties owed to third parties such as rescue and not facilitating sin. While valuable and insightful in its own right, it has no apparent thematic connection to the rest of the material and should be moved to the end of the book as a monograph chapter. Similarly, why is “Responsibility for Others” (chap. 3) more fundamental or basic than “Importance of Life” (chap. 13) which is relegated to the “Specific Topics” section?

In the second section of the book, where the author deals with the sources of Jewish law, there is a clear exposition of the literary sources of Jewish law: the two Talmuds, the Codes and the responsa literature. He elaborates on this literature in the very helpful appendices. Professor Resnicoff also examines supplementary aspects of Jewish law such as personal choice, communal custom and the incorporation of secular law via dina d’malchuta dina as well as the extraordinary emergency powers of beit din and melech. One very important example of personal choice that the author does not include is the fundamental rule that in most areas of monetary law the parties are free to change the applicable rules by contract. This is a considerably more significant and relevant instance of “personal choice” than the cases of vows and oaths which arise only infrequently and which Professor Resnicoff cites.

The most challenging part of the book is the third section, which addresses a variety of interrelated themes. Unfortunately, the organizational structure of this section is not intuitively obvious (at least to me). Early on in the book, the author makes a fundamental theological assumption that the rules of the Oral Law emanate from God through the process of Revelation. This immediately presents serious questions: How does Jewish law respond to new situations not in existence at the time of Revelation? How does one explain the existence of multiple opinions in the halachic process, each of which on some level is considered legitimate? If every rule is predetermined by God, what role—if any—is there for human creativity, independence and autonomy in the determination of Jewish law? And if there is such a role, who are the people or institutions entitled to assert it? Can Jewish law “change”? If so, to what degree? These are significant questions that every conscientious student of halachah (i.e., Jew) must ponder. Admittedly, the author attempts to answer these questions in several chapters, but the answers are not well integrated. In one chapter, for example, he articulates a number of views concerning the Divine nature of the Oral Law, ranging from what he terms “the Literalist View” in which the totality of Torah law was directly transmitted to Moshe Rabbeinu to various forms of “Agency” where Chazal are empowered to draw conclusions and even “create” new laws by employing authorized techniques of interpretation which are then accorded the legitimacy of their Divine source. These views of Revelation will obviously have a direct impact on the role of human autonomy, creativity and innovation in the halachic process, but somewhat confusingly, the author defers the discussion to a later chapter where he discusses autonomy in terms of interpretation, application and law making without connecting the analysis to the earlier coverage of theories of Revelation. It is as if one is reading two parallel accounts addressing the same problem with overlapping concepts but not fully brought together. Still another chapter addresses innovation and change in Jewish law. The author correctly notes that these types of changes occur only in rabbinic laws and are not impacted by one’s understanding of Revelation. I believe this point is so critical, it should be added to the chapter’s title so that the reader understands that it is disconnected from the preceding discussions.

Professor Resnicoff rounds off his discussion of autonomy and creativity in the third section with an analysis of “da’at Torah,” the premise that gedolim’s pronouncements are binding in matters of general communal policy and in individual life decisions. This is an absolutely fascinating discussion of a sharply-debated topic and is surely worthy of a book of its own. On the one hand, I truly welcome an objective, scholarly discussion—albeit brief—of an important phenomenon in contemporary halachic Judaism. On the other hand, I have some doubts as to whether its inclusion is appropriate or helpful in an introductory book intended for a general audience. Da’at Torah is rarely applied to concrete halachic issues; it tends to be invoked as a default rule precisely in situations where there is “no law.” In fact, da’at Torah does not always correlate with technical halachic expertise and involves many and diverse intangible factors such as religious charisma, devoted disciples, et cetera. It is especially here that the uninitiated student may be confused with ideas and discussions that are much more in the realm of theology, religion and the sociology and politics of religion, which in turn are inextricably bound up with the history of various religious communities and subgroups.

Moreover, the slightly-distasteful and gossipy discussions of who is a gadol or an insider who can decide who is a gadol, whether gedolim are manipulated or whether their intermediaries or “palace guards” accurately convey or intentionally distort crucial data is important, but in the kind of negative way that it may be important to know if judges receive bribes or cheat on their taxes—issues that one would not see in a basic discussion of American law. Frankly, some of these phenomena represent human flaws in the system and dwelling on them may create disrespect—or even contempt—for the “perfect Torah of God.” Some issues do indeed need to be kept “within the family.”

Professor Resnicoff is valiantly trying to “legalize” or codify a concept that is inherently fluid, amorphous, indefinite and largely nonhalachic. While the effort is admirable, a short treatment confuses more than it can possibly illuminate and may have negative consequences.

My various criticisms notwithstanding, this is a very valuable treatment of a vast subject by a gifted talmid chacham and accomplished legal scholar. Professor Resnicoff has shown a willingness to tackle, or at least address, the most difficult and controversial aspects of Jewish law. While it is not the easiest of reads, the careful reader will be amply rewarded with much food for thought.

Rabbi Yitzchak A. Breitowitz is a senior lecturer at Ohr Somayach, Jerusalem. He is the former rabbi of the Woodside Synagogue in Silver Spring, Maryland and associate professor of law at University of Maryland. He received rabbinical ordination from Ner Israel Rabbinical College and his law degree from Harvard Law School.         

 

This article was featured in Jewish Action Summer 2013.

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