Steven H. Resnicoff, Understanding Jewish Law, LexisNexis (Matthew Bender), New Providence NJ and San Francisco CA, 2012.
Reviewed by Bernard Jackson
Our colleague Steven Resnicoff’s new book, Understanding Jewish Law, appears as part of “The Understanding Series” published by the leading digital law publisher, LexisNexis, under the aegis of its Law School Publishing Advisory Board. Some 50 titles have already appeared in this series (as listed on the inside front cover). The vast majority deal with topics of substantive positive law, as taught in US law schools, thus providing textbook material to supplement the traditional US case book method. The principal other exceptions are a volume on Islamic law and, arguably, the volumes on Lawyers’ Ethics, White Collar Crime (interpret my collocation of these two as you will) and International Law. Thus, while Professor Resnicoff’s aims, as a law professor in a US law school teaching secular legal subjects (Bankruptcy, Contracts, Legal Profession, Negotiable Instruments) as well as Jewish law, fit the institutional objectives of the series, there is clearly some disjunction between Understanding Jewish Law and the vast majority of titles in the series. Such a disjunction, if addressed directly, can itself be of considerable educational value, in highlighting to US law students the particular philosophical and epistemological assumptions of their own legal system, by contrast to something (here Jewish law) very different. But the converse is also true.
It is worth quoting the author’s own full description of the aims of the book (p.6): “This book is designed to enable students who know nothing about Jewish law to succeed in an American law school class on Jewish law using a number of different approaches. First, this book explains Jewish law’s basic assumptions, institutions, and hierarchies of authorities, as well as the processes by which halakhah unfolds or develops. This book supplements these explanations by providing a number of concrete examples. Second, the book attempts to alert students to the typical pitfalls that newcomers to Jewish law usually encounter and to give guidance as to how best to avoid them. Third, this book leads students to a wealth of available resources in English that can facilitate their understanding of Jewish law and their ability to pursue meaningful Jewish law research.” As for coverage of substantive issues (which cannot be considered further in the present context), the book focuses on “those for which there are secular law parallels, such as questions of legal ethics, bioethics, and debtor-creditor law”: Importance of Life (ch.13), Jewish and Secular Debtor-Creditor and Bankruptcy Law (ch.14), Professional Ethics and Jewish Law: Lawyering (ch.15), and Alternative Dispute Resolution and Jewish Law (ch.16).
In the opening chapter, Professor Resnicoff indicates the kind of student audience for which he is writing. It comprises “at least four types of American law students”: students who are personally committed to Jewish law; students who, although not personally committed to Jewish law, seek to prepare themselves to represent Jewish clients for whom Jewish law may be important; students curious from comparative and historical perspectives; and students with a concern for religious freedom and interested in the policy secular law should adopt in order to respect it. This description of the student audience maps quite closely on to a common four-fold methodological classification of approaches to legal study: dogmatic (in the legal sense), historical, comparative and philosophical. But the primary emphasis throughout the book is on the dogmatic, and even where attention is paid to historical, comparative and philosophical issues, this is largely through the eyes of traditional sources.
Professor Resnicoff then proceeds to describe what Jewish law is and what it is not, commencing with the proposition that “Jewish Law Is a Full-Fledged Legal System”. Unfortunately, there is no definition of “full-fledged”, and the opportunity to discuss this issue in terms of contemporary legal philosophy is missed (for a different view, see my “Constructing a Theory of Halakhah” on this site). Professor Resnicoff certainly does not seek to reduce the halakhah to the terms of a secular legal system. He describes Jewish law as a “religiously based” system which is “predicated upon a number of significant [religious] assumptions, many of which are examined in later chapters” (the book’s detailed Table of Contents is reproduced with permission below, in the attached Appendix to this review). Of course, secular law is also based on significant assumptions, and the comparison of the two can prove fruitful.
Chapter Two is devoted to Fundamental Jewish Law Assumptions, including (rightly) those of a theological nature: “that there is an omnipotent intrinsically good God, who communicated a detailed body of law to the Jewish nation, that everyone is morally obligated to obey the rules applicable to him or her, that in addition to a system of punishment by human authorities, there is a divine system of reward and punishment, that there is a life after death, and that much of the system of divine reward and punishment is administered in the afterlife” (pp.7-8). Each of these is considered in more detail (see Appendix). In the course of this discussion Professor Resnicoff introduces the concept of Torah min hashamayim, with quotations from both Immanuel Jakobovits and Eliezer Berkovits which indicate that (despite Rambam’s formulation) the manner of revelation (in Jakobovits’ words: “whether by “dictation,” “verbal inspiration,” or some other mystic communion peculiar to prophecy”) is “immaterial” to the belief that the words set forth in the Pentateuch were unquestionably the words of God. (For a very full discussion of the history of this issue, we now have the splendid monograph of Rabbi Dr. Norman Solomon, Torah from Heaven. The Reconstruction of Faith, Oxford and Portland OR, The Littman Library of Jewish Civilization, 2012.) Though the book is written almost exclusively from an Orthodox perspective, using only Orthodox sources (primary and secondary, though non-Orthodox sources are included in the Bibliography at Appendix 6), a short account is provided here of the positions of the Reform and Conservative movements (p.11). Interestingly, Resnicoff himself argues (while acknowledging that this does not reflect the traditional Jewish law perspective) that “even if true, the Documentary Hypothesis would not disprove divine authorship of the Pentateuch. The Pentateuch could still represent a verbal communication directly from God. The supposed additional writers may merely have written down an oral tradition originally communicated to, and subsequently transmitted by, Moses” (p.14).
Chapter Three, “Responsibility for Others”, nicely illustrates the differences in values between secular (US) and religious (Jewish) law which follow, in part, from taking proper account of the theological elements in Jewish jurisprudence. A summary of the theoretical differences is followed by discussion of two pertinent areas of law: Jewish Law Duties to Assist or Rescue (though the Common Law position outlined at pp.21-22 is not the universal position of secular legal systems), and Responsibility for the Conduct of Others. One may add that there is also a relevant systemic difference between secular and religious systems: secular systems largely restrict their “modalities” to what is prohibited, permitted or required; religious systems (Islamic law even more systematically than Jewish law) add the modalities of recommended and discouraged conduct, thereby integrating into the law what secular systems distinguish as matters of morality (see §3.4 of my article “Constructing a Theory of Halakhah”, on this site).
The dogmatics of Jewish law are most directly addressed in chapters 4-8. Chapter 4 discusses different categories of Jewish Law rules, addressing first the distinction between laws of biblical (de’orayta) and non-biblical (derabbanan) status, which provides the occasion to introduce the rules relating to doubt, safeq (p.37), but without mention of sfeq sfeqa (double doubt). The chapter continues with the distinctions between positive and negative obligations, and between (Noahide) laws applicable to non-Jews and (Sinaitic) laws applicable to Jews.
Chapter 5, on Human and Institutional Authorities, provides a traditional history, from mosaic ordination (semikhah) to contemporary institutions (discussing in particular the concept and difficulties of a Gadol and observing that “Identifying who is a true Gadol has not always been a successful endeavor”). Most of these institutions are no longer extant, and the dating of their demise may sometimes be questioned. Thus, that of the “Sanhedrin Hagadol” is dated to the fourth century (p.45), on the authority of an article by a mathematician in Tradition; on prophecy, “ … the Talmud declares that prophecy ended in the fourth century of the Common Era” (p.47), on the authority of Rabbi Aryeh Kaplan, The Handbook of Jewish Thought (New York/Jerusalem: Maznaim Publishing Corp., 1979), pp.111-112 (a useful index to traditional sources on many topics, but entirely innocent of scholarly literature). What Kaplan actually says is that prophecy lasted “until 40 years after building the Second Temple (3448; 313 b.c.e.)”, thus in the fourth century before the Common Era. Here and elsewhere, citation of the primary sources on which the claims are based would have assisted the serious student. Kaplan himself cites (without discussion) Sanh. 11a, Yoma 9b, Sotah 48b. Of these, Yoma 9b is particularly interesting: “After the later prophets Haggai, Zechariah, and Malachi had died, the Holy Spirit departed from Israel, but they still availed themselves of the Bath Kol”. As for scholarly literature, Louis Rabinowitz’s article on prophecy in the Encyclopedia Judaica might have been cited, as might the more recent article of Benjamin D. Sommer, “Did Prophecy Cease? Evaluating a Reevaluation”, Journal of Biblical Literature 115:1 (1996), 31-47, which reviews the scholarly literature, and concludes broadly in favour of the traditional account, despite Ephraim Urbach’s classic article in Tarbiz 17 (1946) 1-11 and later contributions, which argue that prophecy was thought to persist even into the rabbinic period. Many readers of this review will know that more detailed accounts of the historical development of the halakhah are provided by period specialists in the textbook published in 1996 by the Jewish Law Association: An Introduction to the History and Sources of Jewish Law, ed. N. Hecht, B.S. Jackson, D. Piattelli, S.M. Passamaneck and A.M. Rabello (Oxford: The Clarendon Press, 1996).
Professor Resnicoff does not avoid contentious issues in his account of the dogmatics of Jewish law. He notes that where, in Israel and elsewhere, the secular government appoints Chief Rabbis and others exercising authority in Jewish law, the religious communities do not generally accept that this confers any additional halakhic authority (p.51). Thus, “The Israeli government’s appointment of Chief Rabbis invests the appointees with no greater Jewish law authority than the United Kingdom’s designation of a Chief Rabbi for the United Kingdom” (p.5). In fact, the UK government plays no role in the appointment of the Chief Rabbi of the United Hebrew Congregations of the Commonwealth; that appointment is made by the synagogal body known as the “United Synagogue”.
Chapter 6, on Jewish Law Literature, opens with descriptions of “the principal, and relatively modern, Jewish law texts to which one would typically refer to resolve a reasonably simple issue that might arise on a daily basis”: Mishnah Berurah, Arukh HaShulhan, Kaf HaHayyim (of Yaakov Haim Sofer) and the Kitzur Shulhan Arukh (of which the first and last are available in English). He then reviews earlier Jewish Law Literature, needed to resolve more difficult cases, starting with sinaitic revelation (written and oral), then proceeding to tannaitic, amoraic and (very briefly) post-talmudic literature (the period of the Aharonim describing only the Shulhan Arukh and Mappah).
Chapter 7 addresses “Supplemental Sources of Jewish Law”, comprising “Personal Choice” (mainly vows and oaths), communal choice (a full discussion of minhag, including the principle that haminhag mevatel et hahalakhah — with which the secular institution of desuetude might have been compared), and dina demalkhuta dina.
Chapter 8 discusses “Extraordinary Sources of Law: The Example of Capital Punishment”, contrasting the biblical rules and their rabbinic interpretation (the “Ordinary Rules”) with the rabbinic court’s extraordinary powers, and the powers of a Jewish king. To the English-language material cited on this topic in the chapter and bibliography may be added a number of responsa translated in J. Bazak and S.M. Pasasamaneck, Jewish Law and Jewish Life. Selected Rabbinical Responsa (New York: Union of American Hebrew Congregations, 1977), in Books 6 and 7; and three articles in The Jewish Law Annual 9 (1991), by Kirschenbaum, Segal and, most extensively, Stephen Pasasamaneck’s “Aspects of Physical Violence against Persons in Karo’s Shulhan Arukh”, at 5-106, including extensive translations from the Shulhan Arukh.
Chapters 9-12 are devoted to various aspects of change within the halakhah. Professor Resnicoff writes in the introductory chapter: “The Jewish law system is not static. As already mentioned, various historical events have deprived it, at least temporarily, of some of its most vibrant legal institutions. Similarly, many of its rules are importantly influenced by disparate factual variables, and, as economic, political, or sociological circumstances evolve, these circumstances affect the relevant legal conclusions.” In fact, most of the discussion in these chapters is on the dogmatics of change: where it is allowed (in rabbinic rather than “biblical” matters, while maintaining that “most Jewish laws are non-biblical”) and on what authority.
An interesting, and surprising, chapter in this context is that on “Personal Autonomy & Da’at Torah” (ch.11), which raises the question whether personal autonomy in making halakhic decisions where the halakhah grants a discretion is being changed by the practice of going to rabbis for guidance on personal (and political) matters, and treating their advice as, in effect, binding torah law. Resnicoff takes account of the discussion of da’at Torah by Lawrence Kaplan, and argues that the “absolutist” view of da’at Torah, namely that the advice of Torah scholars must necessarily be correct, is problematic, on historical, theoretical and practical grounds.
Only in chapter 12 is attention turned to actual examples of halakhic change (including, within the Talmudic period, marketplace regulations, kefiyah against a husband refusing his wife a get where the halakhah said she was entitled to one; annulment of marriage where the husband retroactively retracted his agent’s authority to deliver a get to his wife, Gitt. 33a); and in post-talmudic times, the family law reforms of Rabbenu Gershom and the hetter iska to avoid the ban on interest-bearing loans (here gracefully acknowledging, and systematically citing, the 2008 monograph on the subject by the non-Orthodox Rabbi Hillel Gamoran).
As the attached Table of Contents indicates, Resnicoff provides 9 appendices which will greatly assist the student with no background in Jewish law. Notable amongst these is a 9-page descriptive list of Internet Resources on Jewish Law (including meta-sites), by far the most extensive I have seen, prefaced by a number of legal, halakhic and other caveats. It distinguishes free access from commercial sites, and usefully classifies the material, including a section on sites on selected topics (Agunah Problems, Bioethics, Business and Professional Ethics and Jewish Feminism (the JOFA site: http://www.jofa.org/), and also four sites for Jewish History). I was not aware, for example, that Professor Nahum Rakover’s Multi-Language Bibliography of Articles on Jewish law is now available at http://www.mishpativri.org.il/english/multbibtochen.htm, or of http://www.shulchanarach.com/, as is an English translation of the Shulhan Arukh (although, as Resnicoff notes, it is a work in progress: as of 20th Sept 2012, only 92 Chapters – 13% of the whole – have been completed). Here, the author adopts a more inclusive approach to sources, including non-Orthodox perspectives with which he does not personally agree and does not endorse. The list also encompasses sources not designed primarily for Jewish law studies, but containing relevant information (including Academic Centers, Departments and Programs which may include Jewish or Israeli Law in their programmes) for those who wish to give greater weight to historical and other non-dogmatic approaches, such as the Online Treasure of Hebrew Manuscripts, http://jnul.huji.ac.il/dl/talmud/intro_eng.htm, which provides images of major Talmudic manuscripts from libraries throughout the world. While the list focuses primarily on material in English, there is a useful list of sites for Jewish Law Scholarship primarily or exclusively in Hebrew, including http://www.hebrewbooks.org/home.aspx, http://www.seforimonline.org/about.html, and http://www.tshuvos.com/tshuvos.asp.
Professor Resnicoff has devoted great energy to the production of a book which his students, and those in classes with a similar orientation, will undoubtedly enjoy and appreciate, and from which they will gain a great deal. A hearty sh’koah.