Latest / The Podcast of Jewish Ideas / 85. Halakhic Codes & Responsa | Dr. Chaim Saiman

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85. Halakhic Codes & Responsa | Dr. Chaim Saiman · The Podcast of Jewish Ideas

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Speaker 1: Greetings friends, and welcome to the podcast of Jewish Ideas
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Speaker 1: a Torah in motion production i'm jj Kimrie. Over the
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Speaker 1: last thousand years or so, much of the intellectual creativity
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Speaker 1: of Jewish scholars has been spent writing on matters of
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Speaker 1: Halachah or Jewish law. Oceans of ink have been spilled
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Speaker 1: on the endeavors of explaining and expanding Jewish law, which
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Speaker 1: continue unabated to this day. Halaric writing comes in various forms,
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Speaker 1: and in the past centuries has been rather dominated in
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Speaker 1: certain respects by two specific forms. One is halaric codes,
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Speaker 1: in which the author lists the bottom line of the
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Speaker 1: law as he sees it, whereas the other is halarchic
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Speaker 1: responsor a lot truvat, in which the scholar seeks to
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Speaker 1: apply the law to specific cases. These two genres represent
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Speaker 1: two entirely different ways of analyzing, applying, and conceiving of
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Speaker 1: Jewish law. And there's these fruitful differences between these genres
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Speaker 1: that shall be capturing our attention today. With us to
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Speaker 1: talk about these genres of halahi writing is him Seman,
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Speaker 1: a professor of law and chair in Jewish Law at
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Speaker 1: Villanova University as well as a dian on the bed
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Speaker 1: Din of America. He has published widely on topics in
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Speaker 1: both American and Jewish law, including his acclaimed work Halacha,
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Speaker 1: the Rabbinic Idea of Law, published by Princeton University Press
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Speaker 1: in twenty eighteen. It is a pleasure to welcome Professor
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Speaker 1: Simon to the Podcast of Jewish Ideas today.
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Speaker 2: Welcome sir, Thank you, thank you, jayj. It's great being
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Speaker 2: with you. Although usually we have some scotch and charllt
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Speaker 2: when we meet after Kiddish, during Kiddish after sure, but
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Speaker 2: we'll make do today with the virtual interface.
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Speaker 1: I agree. It's usually usually conversations are greatly improved by
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Speaker 1: scotch and challenge, So today we'll have to have to
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Speaker 1: see what we could do without it. So I'm interested
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Speaker 1: in discussing these these two types of halakk writing. And
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Speaker 1: so let's start a little bit with with halaki responsor,
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Speaker 1: because I think they are slightly older, and just ask.
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Speaker 1: I mean, firstly, how would one define halaki responsor slats
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Speaker 1: of true VOTs? What exactly are they? When did they emerge?
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Speaker 1: What are their principal characteristics? Give us a little of
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Speaker 1: an overview of that.
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Speaker 2: Sure, So as the as the name that we use
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Speaker 2: shlotin shoe vote indicates they kind of can include anything
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Speaker 2: in which somebody asks a rabbi a question and the
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Speaker 2: rabbi provides an answer in truth. Already in the Gamarah
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Speaker 2: there are examples shall right so so so in some
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Speaker 2: sense the genre of shlotin shoe vote is already found
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Speaker 2: in the Gamara, where questions are asked either and shallhoo
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Speaker 2: sounds like they're sending some sort of writing, perhaps an
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Speaker 2: oral message, hard to know, and they're getting a response back.
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Speaker 2: But usually we don't think of something in the Gamara
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Speaker 2: as prior to part of shaylatan chewe vote. So therefore
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Speaker 2: the next phase or the gonme have have their own
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Speaker 2: shayload to chew vote. Some of them are incredibly short.
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Speaker 2: What does this word mean? Is one of my favorites
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Speaker 2: right this. They're living in a world before Rashi, certainly
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Speaker 2: before arts girl, so people would ask what does this
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Speaker 2: word mean? Or what is this idea? And sometimes they
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Speaker 2: are they are more complex. Over time, Shane Loan Tchubote
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Speaker 2: has come to be identified more with sort of questions
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Speaker 2: on concrete particular cases that have come up. Those could
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Speaker 2: be cases that come up in real life those can
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Speaker 2: be kind of hypotheticals that are thought about, but something
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Speaker 2: with a specific set of parameters. There are shaylotan Chu
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Speaker 2: votes from the ear of the reshow name and there
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Speaker 2: she looked to vote from the era of the early
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Speaker 2: afroyme and as you said, up to including to this day.
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Speaker 2: So it's a very you know, it's it's a very
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Speaker 2: it's a little bit of a catch off phrase because
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Speaker 2: it could be, as I said, as it's come to
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Speaker 2: mean a kind of specific and relatively kind of crete
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Speaker 2: ALACKI question. But some of the older ones certainly aren't
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Speaker 2: like that at all. They're literally things that people ask
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Speaker 2: rabbis whatever they.
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Speaker 1: Are, right, Okay, good, So now we've gone over that.
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Speaker 1: And the truth is, as you mentioned before, it's it's
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Speaker 1: one of the oldest poems I like writing we have,
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Speaker 1: but of course continues very much to this day. It
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Speaker 1: is arguably probably the most enduring vehicle of halak writing.
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Speaker 1: Every year another volume, many more volumes are produced in
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Speaker 1: this in this genre.
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Speaker 2: Sure, and and this point of volumes I think I
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Speaker 2: think is important. In other words, and maybe we could
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Speaker 2: is that it's I think today when someone says I'm
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Speaker 2: going to write Shaylo two. They know that they're going
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Speaker 2: to publish them, and they're going to be in the collections.
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Speaker 2: But certainly as we go back, it's not clear. And
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Speaker 2: this is one of the big differences between the the genres.
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Speaker 2: When someone writes alach code or alak commentary, right, they
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Speaker 2: sort of know what they're doing, right, and you know,
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Speaker 2: certainly at some point they understood that this would be
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Speaker 2: disseminated and later published in print. Right. If you think
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Speaker 2: of your own correspondence, right, you correspond by orally by text,
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Speaker 2: by email, sometimes by email where you attach a PDF, right.
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Speaker 2: And these are various layers of formality which are sort
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Speaker 2: of like your assumptions about how much is this like
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Speaker 2: an answer of the moment, like your wife says, hey,
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Speaker 2: when are you coming home? And you say, you know,
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Speaker 2: six point thirty, and then you know even if you
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Speaker 2: may email it, but the fact that you may put
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Speaker 2: it into a document in a PDF, like you're signaling
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Speaker 2: that this is something kind of more permanent, more important.
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Speaker 2: And those are a range of things, and I think
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Speaker 2: Shout and Chubaut sort of work the same way, at
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Speaker 2: least when they're produced. Right. Some of them are very
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Speaker 2: quick and dirty things. Of that moment, and some it's
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Speaker 2: very clear that the author understands that he is writing
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Speaker 2: some thing for the ages. Sometimes whether it's for the
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Speaker 2: ages or not is not understood until some ages have
6:06
Speaker 2: happened in past. I think as we move in time,
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Speaker 2: people have a better sense of what they're going to
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Speaker 2: do with them, at least the ones that are published.
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Speaker 2: But any important Rabbi is going to have lots and
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Speaker 2: lots of communications with you know, we'll call them his audience,
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Speaker 2: right to varying degrees of formality. And therefore what shows
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Speaker 2: up in a in a volume of de Vote and
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Speaker 2: how it's published sort of you know, is a little
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Speaker 2: bit sporadic, but changes our assumptions about what it is. Something
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Speaker 2: clearented in a volume called Child to Vote we read
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Speaker 2: as sort of being written for the ages, so it
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Speaker 2: may not have been intended that way.
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Speaker 1: Right, Okay, thank you for that that brief overview, and
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Speaker 1: I'm going to ask you to do the same for
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Speaker 1: al codes. Explain what you mean by that again, what
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Speaker 1: is the scope? What do they intend to do? And
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Speaker 1: I suppose again that's sort of a brief history of
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Speaker 1: when they arise and whether they're still being written.
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Speaker 2: Sure, So let's start with the word codes. And as
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Speaker 2: you mentioned, I'm a law professor and the law professor
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Speaker 2: and me uses the term but doesn't love the term
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Speaker 2: because to the modern ear, a code is something produced
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Speaker 2: by some governing institution. Right, so we think of the
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Speaker 2: you know, we're sitting here in the state of Pennsylvania
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Speaker 2: or the Commonwealth of Pennsylvania. It has a code. The
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Speaker 2: United States has codes, et cetera. And what makes those
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Speaker 2: authoritative is that the governing body is thought to be
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Speaker 2: the sovereign in one sense or another that can produce those.
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Speaker 2: In Halaha, it doesn't work that way. I don't know
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Speaker 2: if the soun hedron ever published a code, but we
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Speaker 2: don't have it. So the codes that we have, and
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Speaker 2: I think maybe a better way to think about them
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Speaker 2: as a word that lawyers use and non lawyers don't.
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Speaker 2: It's called a restatement. We'll use codes. But what a
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Speaker 2: restatement means is that somebody trying to restate what the
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Speaker 2: law is, and therefore it's authority comes from people accepting it,
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Speaker 2: as in the case of you vote. So they're not
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Speaker 2: codes in that sense of the modern usage. In as
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Speaker 2: long as the listeners understand that I'm happy to use
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Speaker 2: the word so codes start with. I would say a
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Speaker 2: certain type of problem is anyone who's learned Gamara knows
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Speaker 2: that if you now want to make this massive work
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Speaker 2: the basis of practice, gosh, that's very hard because there's
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Speaker 2: so much going on in there, some of it relevant,
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Speaker 2: some of it not relevant, some of it relevant to
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Speaker 2: other parts that it needs to be pared down. And
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Speaker 2: the earliest thing that's in the kind of code tradition
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Speaker 2: this is called the most famous one of those is
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Speaker 2: al Hote Alfassi, also known as the Riff Riff standing
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Speaker 2: for Rebusk that Alfasi e fez right in North Africa,
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Speaker 2: who basically what he does largely is he he has
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Speaker 2: all imagine, he has all the talmlet on a computer
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Speaker 2: and he largely uses his cut function. So he takes
8:56
Speaker 2: out all the kind of back and forth all of
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Speaker 2: the ad a looted to the dress shownk and focuses
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Speaker 2: more or less on the bottom line, occasionally adding in
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Speaker 2: his own voice. Although the vast bulk of the text
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Speaker 2: is simply the Gamar's text, it preserved as to what
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Speaker 2: he understood was like normative binding Hallja Bismann Haase and
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Speaker 2: this era in other words, in the post temple, post
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Speaker 2: monarchy era of what we probably call goblut. In fact,
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Speaker 2: if one takes the new editions, you know, printed in
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Speaker 2: the last ten to fifteen years, they very usefully will
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Speaker 2: highlight in when one looks in the riff the parts
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Speaker 2: that are in his voice, which is a super useful feature.
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Speaker 2: And you see it's not the majority of it at all,
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Speaker 2: so that it's not the first. There were precursors to that,
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Speaker 2: but that's sort of the first thing in that tradition. However,
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Speaker 2: it is in the Gamar's language and in the Gamar's order,
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Speaker 2: and therefore lack of order. The first thing we might
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Speaker 2: call a code is of course the rambam, which is
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Speaker 2: to some degree in some sense has not been surpassed.
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Speaker 2: In some sense it has right. What the Rambam does,
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Speaker 2: he does a couple of very important things. First of all,
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Speaker 2: he creates his own structure in Taxonomy fourteen books, right,
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Speaker 2: something that maybe you could say there's some reference to
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Speaker 2: in the mission, but largely a thing of his own creation,
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Speaker 2: and takes every alatan the talmud. And here he is
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Speaker 2: following the riff, usually in the sense of which bits
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Speaker 2: in the Talmud he thinks are normative and which opinions are.
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Speaker 2: Except it's broader than the Riff because he covers everything
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Speaker 2: the Gamar talks about the riffs if it's not applicable,
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Speaker 2: Bisman hasaid, the Riff generally doesn't have it. The Rambam
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Speaker 2: has everything. He also changes the language. It's not in
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Speaker 2: the Talmudic language, but it's in something that's pretty close
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Speaker 2: to modern Hebrew or close ish based on the shne Hebrew,
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Speaker 2: and therefore it's an easy read to the modern reader.
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Speaker 2: And he creates a conceptual structure for it to some
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Speaker 2: degree to how he views a laha and to what
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Speaker 2: he views as the mitzvote rita in each topic. So
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Speaker 2: that's the Rombum. There's more to say. What he doesn't
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Speaker 2: do is he doesn't retain any of them a cloak it,
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Speaker 2: any of the various opinions that are found in the Gamara,
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Speaker 2: and he largely does not pay attention to post Talmudic developments.
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Speaker 2: I don't want to say never, but that's certainly not
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Speaker 2: a feature of the Rombum. So you could think of
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Speaker 2: it as what he says, he's trying to summarize the
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Speaker 2: rules in the Tumul now it is ingenious. And you know,
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Speaker 2: even today, if we have all the databases and all
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Speaker 2: the ais and all the computers, it's it's it's mind
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Speaker 2: boggling how we did this even with our technology, how
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Speaker 2: Vahlmer with basically very very primitive technology. So it's it's
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Speaker 2: truly a master work. And in some sense, nothing like
11:53
Speaker 2: this has really been attempted to that scale since obviously
11:57
Speaker 2: there's some asterisks to that point. That's Rombumb the next
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Speaker 2: probably most famous code. There are others, but the one
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Speaker 2: that really kind of takes up central space is known
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Speaker 2: as the Arbaturim, written by yakovman Usher or the son
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Speaker 2: of the Rush, and it is known today commonly as
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Speaker 2: the Tour. The Tour is different from the Rhmbam in
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Speaker 2: a few different ways. First of all, it doesn't have
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Speaker 2: fourteen books, but four. And importantly, it only deals in
12:28
Speaker 2: this sense. It follows the Riff more closely in only
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Speaker 2: dealing with those laws that are applicable in what we
12:33
Speaker 2: call bisman Haze right in this era or in the
12:36
Speaker 2: era that they lived in. So it does not have
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Speaker 2: laws of the temple and laws of the sacrifices and
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Speaker 2: laws of purity largely and even only a little bit
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Speaker 2: of laws that applied to the land of Israel, because
12:48
Speaker 2: they're asserving they're living without it. Drop in there, but
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Speaker 2: basically not. The Tour is also different in that he
12:56
Speaker 2: is he retains some debates, and he is much more
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Speaker 2: interested in post Talmudic applications, so he will cite frequently
13:06
Speaker 2: from the toast Slot and the other reshow Neme that
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Speaker 2: are talking not just what the law of the Talmud is,
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Speaker 2: but how it became instantiated in practice in the various
13:17
Speaker 2: communities in which people lived. So the Rambomb is much
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Speaker 2: more classical in the sense is much more driven by
13:23
Speaker 2: the Talmud, whereas the Tour begins to fill that gap,
13:27
Speaker 2: and he's writing at the end of the period of
13:29
Speaker 2: the reshiow Nme and largely collects not everything, but a
13:32
Speaker 2: lot of that material in there. The four sections I
13:36
Speaker 2: assume are fairly well known are highm right, which actually
13:40
Speaker 2: is an ingenious arrangements. It's three cycles. It's the cycle
13:44
Speaker 2: of the day starting with waking up, It's on the
13:46
Speaker 2: cycle of the week i e. Shabas and Aravin, and
13:49
Speaker 2: on the cycle of the year yaridaea, which is a
13:52
Speaker 2: little bit more of a grab bag is largely kosher,
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Speaker 2: and then other ritual laws evan As is about marriage,
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Speaker 2: family and divorce law and closi mishbud is, you know,
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Speaker 2: procedure and substance of the civil law, and the sort
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Speaker 2: of halachic court system. That is the tour. That and
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Speaker 2: then after that comes the Shokanauch, which has an interesting
14:17
Speaker 2: sort of story because the Lano basically adopts the tour's structure.
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Speaker 2: So his four main books and the chapter divisions in
14:26
Speaker 2: between them are taken from from the tour. Now the
14:30
Speaker 2: is written BYO raviosv. Cairo, who really begins by writing
14:34
Speaker 2: a Betjo Seth right, his sort of encyclopedic compendium slash
14:39
Speaker 2: commentary written as a commentary on the tour. And if
14:43
Speaker 2: we had the bay, if we had Joseph Cairo here
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Speaker 2: on the podcast, he would say, that is my work.
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Speaker 2: That is how be remembered, That is my by it right,
14:50
Speaker 2: that is my estate. I think people trys to his house,
14:53
Speaker 2: but if you look at how he writes it, I
14:54
Speaker 2: think like, sort of the estate of your states is
14:56
Speaker 2: probably the way I would say it. Then later on
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Speaker 2: he said, you know what, that's a very long and
15:01
Speaker 2: complicated work let me try to summarize the main points
15:04
Speaker 2: from it. And he did that, and he called the
15:07
Speaker 2: shikhanaruch like I'm sending the table for you. This is
15:09
Speaker 2: the kind of head notes of it. And that's the
15:11
Speaker 2: way it reads. But you know, whatever revosif Cairo intended
15:16
Speaker 2: history had it, or Hashkeetha had it, maybe those are
15:19
Speaker 2: the same thing that that became the work that we
15:23
Speaker 2: call colloquially the code of Jewish law. And therefore that
15:27
Speaker 2: then becomes, since that's published with the commentary of the Rama,
15:32
Speaker 2: which we'll come back to in a second, that becomes
15:34
Speaker 2: the main sort of framework of apply Jewish law really
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Speaker 2: to this day. We might talk about more contemporary innovations
15:42
Speaker 2: in a second. Just a word on the Rama. So
15:45
Speaker 2: Ravos if Cairo is from the Spardik tradition and was
15:48
Speaker 2: largely very influenced by the Rambam and is somewhat less
15:53
Speaker 2: influenced by the ballets vote and the Ashkenazic tradition. The
15:58
Speaker 2: Rama who's re of motion is who lives in the
16:00
Speaker 2: crackout at roughly the same time that Ragulosa Kiro was
16:04
Speaker 2: writing in Spot sees this work and then adds his
16:08
Speaker 2: own glosses to it, reflecting more of the Ashagnasok school
16:11
Speaker 2: of thought, and many scholars say that the success of
16:14
Speaker 2: this work is precisely because it combines both of these,
16:18
Speaker 2: and basically since the very first printing of the bait
16:20
Speaker 2: of the Schoharu, which was just him, from the second
16:23
Speaker 2: printing on it has always been published with the Hagota rama,
16:27
Speaker 2: the commentary or the editions of the rama, and together
16:31
Speaker 2: those are sort of known as the shukan.
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Speaker 1: Right, and so those are as you outlined it with
16:38
Speaker 1: admirable sucinctness. I think the three major ones have there
16:42
Speaker 1: been codes ever since because one could argue possibly, but
16:45
Speaker 1: since the shukar there is only commentary. Is that is
16:49
Speaker 1: that plausible?
16:50
Speaker 2: So I would say yes, and no, you know, there's
16:55
Speaker 2: one could say that. And really the tour they sort
16:58
Speaker 2: of have to be taken together because structure they basically
17:01
Speaker 2: displaced the Rambam. So, you know, I think as a
17:06
Speaker 2: artistic manner, the rambum is a superior work. It's conceptually organized,
17:11
Speaker 2: language is clear and beautiful, it's an ingenious structure. But
17:15
Speaker 2: basically the while the Rambam as his Halakic sock, becomes
17:19
Speaker 2: super important. His wave of organizing and conceptualizing Halaha. Doesn't
17:24
Speaker 2: that really belongs to to the tour? And then I
17:27
Speaker 2: would like to say the tour because I think he
17:29
Speaker 2: gets short terped He came up with the structure. Others
17:31
Speaker 2: built on it in part because the rama deals with
17:34
Speaker 2: everything and the tour really deals only with practice Tamaha. Now,
17:39
Speaker 2: since then, as you said, there's there's then in the
17:43
Speaker 2: generations after, there's waves of commentaries on it, some written
17:48
Speaker 2: directly as commentaries in terms of new codifications. The one
17:53
Speaker 2: that I think everyone would point to Isan and one
17:56
Speaker 2: will notice the wordplay there, which doesn't cover every single thing,
18:00
Speaker 2: but most of it. And it's a sort of assimilative
18:04
Speaker 2: commentary code. In other words, it's written with the same
18:07
Speaker 2: chapter headings and as the Shokhan Ruch, and it tries
18:12
Speaker 2: to kind of retell the Sugia if it starts with
18:15
Speaker 2: Pukim from Sukim, if it starts from the Gamar from
18:17
Speaker 2: the Gamara, and kind of fold in all the various
18:20
Speaker 2: kind of commentaries that have come on along the way.
18:24
Speaker 2: It's very influential because it's very well written. The other
18:27
Speaker 2: famous one is only on Orsiam is the Mission of Brewer,
18:31
Speaker 2: which you know, takes a large space, particularly on issues
18:34
Speaker 2: that it relates to. But it, as you noted, is
18:36
Speaker 2: really written as a commentary on the Shokran Ruhe, although
18:41
Speaker 2: you know, it's a little bit of its own thing,
18:43
Speaker 2: but at least that's the way it's graphically written, and
18:45
Speaker 2: that's the way it's meant to be read. It is
18:47
Speaker 2: it is on the Chican roof. You know. In more
18:49
Speaker 2: recent times, certainly certain areas of Alaha, particularly areas that
18:55
Speaker 2: are not well covered in the Chokan, have seen various
18:59
Speaker 2: kind of codes and treatments to them, but none have
19:03
Speaker 2: reached the sort of level of the ubiquitous uh both
19:07
Speaker 2: popularity and authority as the as the But for example,
19:11
Speaker 2: I have on on matters of hoshin Mishbat, there's a
19:16
Speaker 2: ten volume treatise called Pitre Fochen or Peture Fosian, written
19:19
Speaker 2: by a rabbi who lived in New Shilaim in the
19:22
Speaker 2: latter half of the twentieth century, which for anyone involved
19:24
Speaker 2: in that world is very influential. One's doing Arevin or Micava,
19:29
Speaker 2: door Trumant de Mastro. You know, there's there's there's various
19:32
Speaker 2: sort of areas, specific things that have become very important.
19:36
Speaker 2: But in terms of this sort of monumental thing that
19:39
Speaker 2: everyone understands the code, I think it remains with the Chikan.
19:43
Speaker 2: I would say one fairly interesting and new development is
19:47
Speaker 2: Rabbail Lazar Malhammad in Israel has been writing a series
19:50
Speaker 2: of books called nine Hawaja, which is a kind of
19:54
Speaker 2: modern recasting and has become very very popular in sort
19:57
Speaker 2: of the datilu me community in in Israel, and of
20:00
Speaker 2: course hasn't replaces, but I think it might be replacing
20:03
Speaker 2: the mission of Brewer. It's more modern Hebrew, it's it
20:07
Speaker 2: has also theological framework to it, finishing work that's worth
20:11
Speaker 2: study itself. So that's sort of the way I see
20:14
Speaker 2: the lay of the land at the moment.
20:16
Speaker 1: Okay, fair enough, Now let's uh, I do to ask
20:19
Speaker 1: a little bit more about codes. But before I do,
20:22
Speaker 1: I mean the sort of I think crux the central
20:25
Speaker 1: question I really want to ask here is, you know,
20:28
Speaker 1: what are the advantages or disadvantags of writing in these
20:30
Speaker 1: two genres, because in some senses, of course, they are opposite.
20:33
Speaker 1: And I'll let you elaborate on that, but sort of
20:35
Speaker 1: what can one do in a code that one can't
20:38
Speaker 1: do in response and vice?
20:39
Speaker 2: Vice?
20:40
Speaker 1: And what would push one to write or read or
20:43
Speaker 1: adopt a code like a way of writing halaa? What
20:47
Speaker 1: would push one towards a responsor manner of writing and
20:50
Speaker 1: reading an application of halaca?
20:52
Speaker 2: Sure, so let me start not in the Halaki tradition,
20:55
Speaker 2: but in the Western tradition. So the common law, which
20:59
Speaker 2: is the system that is from England and this sort
21:01
Speaker 2: of the basis of American, Canadian, Australian and all the
21:05
Speaker 2: English speaking law, has a very different view on this
21:08
Speaker 2: from from the systems emerging in continental Europe, which typically
21:11
Speaker 2: called the Romanist systems. The common law believes that that
21:15
Speaker 2: that really it's the reality of a case with its
21:19
Speaker 2: specific facts and the pressures of coming to a determination
21:25
Speaker 2: that sort of produces the ideal law right, and it's
21:28
Speaker 2: only and that law must be forged within the context
21:31
Speaker 2: of a decision that will be actuated, that has that
21:36
Speaker 2: is sort of coming from a particular case. And sometimes
21:39
Speaker 2: it's called law in action, or at least it tells
21:42
Speaker 2: that way, and it is a little bit suspicious of
21:45
Speaker 2: more academic projects what it calls law in the books
21:48
Speaker 2: that are sort of dealing with sort of abstract principles
21:51
Speaker 2: but not forged within the sort of reality or the
21:56
Speaker 2: you know, the potentiality of being effectuated the Roman in
22:00
Speaker 2: this systems. Think the opposite is that the only way
22:03
Speaker 2: to do this right is to step back and have
22:05
Speaker 2: a plan and have your concepts, and have that kind
22:08
Speaker 2: of carry through each and every bit of the law
22:12
Speaker 2: creating or law writing enterprise, and that every specific case
22:16
Speaker 2: is too tied to the quirks of its facts or
22:19
Speaker 2: any kind of particular things that come up there, or
22:21
Speaker 2: any pressures of the moment or any exigencies to trust it.
22:26
Speaker 2: And also so that is again that we have not
22:28
Speaker 2: talked about Jewish law yet. But this is kind of
22:30
Speaker 2: like there are two broadly speaking, and I'm a little
22:33
Speaker 2: over dramatizing, but there are kind of two schools of
22:36
Speaker 2: thought about this, and I think you see these reflected
22:39
Speaker 2: in the Halachic literature as well. If we start with
22:42
Speaker 2: the round bomb, right, if you want to kind of
22:44
Speaker 2: give you a map of what is Halatha, the only
22:47
Speaker 2: way to do that is to write a book where
22:50
Speaker 2: you know what you're doing at the outset and you
22:52
Speaker 2: understand the plan, and the round bomb is the master planner. Right.
22:56
Speaker 2: You have your divisions, you have your conceptual categories, you
22:59
Speaker 2: start each book and then each chapter and then each
23:02
Speaker 2: halaca with an idea of where it's going and how
23:04
Speaker 2: it goes right, and that gives you that overview. In addition,
23:09
Speaker 2: as we said, when you're writing a book, you know
23:12
Speaker 2: you're going to publish it, you know what you're doing
23:14
Speaker 2: with it. Right by contrast, right, if we're going to
23:17
Speaker 2: take that perspective, as we all know, sometimes you know,
23:21
Speaker 2: rabbis have to answer questions really quickly. They kind of
23:24
Speaker 2: give an answer, am I saying that this is an
23:26
Speaker 2: answer that like for generations is quote the halacha or
23:30
Speaker 2: am I like just answering a question here and now
23:33
Speaker 2: if one reads the true of literature, you'll see last
23:35
Speaker 2: of ways, I'm in a hurry, I don't have time,
23:37
Speaker 2: I don't have access to all my books. You know,
23:39
Speaker 2: these sort of catchphrases repeat throughout, So that would be
23:43
Speaker 2: sort of you know, the sort of why the codes
23:45
Speaker 2: are the actual halaka and an idea of that like look,
23:49
Speaker 2: you know and I get it too. This in my
23:50
Speaker 2: book a little bit like the true halacha is these
23:53
Speaker 2: like more abstract principles and ideals that are stated generally.
23:57
Speaker 2: And we shouldn't confuse that with like specific applays that
24:00
Speaker 2: are always attentive to the moment. Revlustenstein has this effer
24:05
Speaker 2: sing what he calls stock and Sika. Right. So, SOACA
24:09
Speaker 2: is the sort of the enduring halak An efficiency is
24:12
Speaker 2: a localized application. And you could take the opposite view
24:15
Speaker 2: that no, exactly, it's that when all those pressures of
24:19
Speaker 2: both what the sources say, and there's a critique would
24:22
Speaker 2: be that it's too classical, it's too source driven, it's
24:26
Speaker 2: too driven by the kind of abstractions and not about
24:29
Speaker 2: real life. And that really when you want to see
24:32
Speaker 2: when all the pressures come together and precisely within those contingencies,
24:36
Speaker 2: within those places, because that's where life happens. That how
24:40
Speaker 2: that emerges from there is the sort of the more
24:43
Speaker 2: authentic products or the sort of better way to understand
24:46
Speaker 2: how the system works. Again, this debate exists outside of
24:49
Speaker 2: Alosa and exists within Alaha. Right.
24:52
Speaker 1: And and do you think that the mapping of this
24:58
Speaker 1: difference between common law or case law and let's say
25:02
Speaker 1: Roman or constitutional law havings that you want to put it?
25:04
Speaker 1: Does this how accurately does this map on to the
25:07
Speaker 1: code's response issue within Jewish law?
25:11
Speaker 2: I think it maps on to some degree. The codes
25:16
Speaker 2: also tend to be what I would call they're quite
25:20
Speaker 2: classical in the sense of their their they're responding to
25:24
Speaker 2: the tamuk sugia and the way that that is organized. Right,
25:28
Speaker 2: this is certainly true of the rambamb. It's true in
25:31
Speaker 2: the tours, slightly less true, but they're too so in
25:33
Speaker 2: other words, what cases they're talking about, right, what are
25:37
Speaker 2: their examples, what are their paradigms? Are a function of
25:40
Speaker 2: the mission and the talmud to some degree, and then
25:42
Speaker 2: some of the commentary of the reshowing that becomes standard.
25:46
Speaker 2: You'll see in the tour, for instance, it's very clear
25:48
Speaker 2: he'll always start with like the mission and then the gamar,
25:51
Speaker 2: and then occasionally he'll say certain things came up in
25:54
Speaker 2: a certain to vote right. This is another point that
25:57
Speaker 2: they also intermix. So the rush, his father is one
26:00
Speaker 2: of the well known uh meshivin of his era and
26:04
Speaker 2: especially in holocient Mish. But he'll Evanezer, he'll bring a
26:08
Speaker 2: lot of stuff from the rush and the rush, but
26:10
Speaker 2: in various things, right, But those will be at the
26:13
Speaker 2: end and they'll be sort of like there, and then
26:15
Speaker 2: that'll kind of feed into itself, which will often kind
26:18
Speaker 2: of retain this structure. So therefore, you know, what they're
26:24
Speaker 2: less responsive to is like what's happening in the world. Okay,
26:27
Speaker 2: but you know, to take the example anyone who's studied
26:30
Speaker 2: babakama with a kid, but we don't have oxen, but
26:33
Speaker 2: all the examples there have oxen, right, and then like
26:35
Speaker 2: that's or boor or ash. In other words, the codes
26:39
Speaker 2: tend because they are they're assimilating talmudic information in the
26:44
Speaker 2: way they're mapping the sudiya based on how they see
26:46
Speaker 2: the tama. They tend to be very classical, where a
26:49
Speaker 2: chuva is going to start with the facts that happen
26:52
Speaker 2: in the world, in our world or the world of
26:54
Speaker 2: the writer, and then say, okay, now let me go
26:57
Speaker 2: and see which are the relevant sudio that to bring
27:00
Speaker 2: in here. So you have that process of translating both
27:04
Speaker 2: the language and the conceptual architecture of the classical sources
27:09
Speaker 2: into the real world in which the the may sheave
27:13
Speaker 2: is operating in.
27:16
Speaker 1: Right, And it seems, at least from an immediate look,
27:21
Speaker 1: that one can one can apply quite a bit more
27:24
Speaker 1: creativity or wiggle room within a response that than one
27:28
Speaker 1: can in a code. I mean, is that the case?
27:32
Speaker 1: And secondly, you know, is that simply a function of
27:36
Speaker 1: the way that genre is exists.
27:40
Speaker 2: Yeah, so let's let's let's talk about I think the
27:42
Speaker 2: I think the CEO in different ways. The one let's
27:46
Speaker 2: remember that what we call the essay, right, is not
27:52
Speaker 2: a known genre of as you said, I think you
27:56
Speaker 2: said this in the outside. There's basically three genres of
27:59
Speaker 2: classical There is commentary rashi post quote right, usually following
28:05
Speaker 2: the order of the Talmudic trac date. There are these codes,
28:09
Speaker 2: and then commentaries on the codes, and then there's a
28:13
Speaker 2: chew vote the response. The response is the most open
28:16
Speaker 2: ended of those. So, in other words, if one wants
28:18
Speaker 2: to publish a Halakic essay right, so today already you
28:21
Speaker 2: can write an article and publish it in a Halakic journal.
28:24
Speaker 2: But that's a fairly new sort of thing. It's really
28:28
Speaker 2: the chuva is the vehicle for that. So in that sense,
28:31
Speaker 2: it's the most flexible form. You don't have to pretend
28:35
Speaker 2: that it's a commentary on something. You could just say,
28:38
Speaker 2: here's what I want to say. Now, there's a history
28:41
Speaker 2: to this too. If you think of the names, and
28:43
Speaker 2: you know, if we think let's say that you vote
28:45
Speaker 2: of the rishi name, right, they're called the Chuvashirashba, the
28:49
Speaker 2: Chuvashi rush, et cetera. In other words, these people are
28:53
Speaker 2: known as typically tumudic commentators or codifiers or quasi codifiers.
28:58
Speaker 2: And then we also have their tew vote. They're on uh.
29:02
Speaker 2: I think a little bit later, the very famous ones,
29:07
Speaker 2: the Hahamsi, the no Huda, that's tm Sofer, the Massa
29:13
Speaker 2: bin Yemen. Those are the names of the Chubas farm,
29:15
Speaker 2: the Sagotari, right, and we know them by by dint
29:19
Speaker 2: of their Tubas farm. And then oh, they also wrote
29:21
Speaker 2: these these other things. And part of what's happening there,
29:24
Speaker 2: I think is that I think this has to probably
29:26
Speaker 2: do with printing and with other developments, is that the
29:28
Speaker 2: tuba can now become the primary vehicle through which a
29:33
Speaker 2: rabbinic author is no and they're right, they become to
29:38
Speaker 2: some degree essays on halahik topics, whether the questions were
29:42
Speaker 2: asked to them or whether they ask themselves the questions
29:45
Speaker 2: and things like that. So I do think that in
29:47
Speaker 2: that sense it's a more flexible form which allows for
29:51
Speaker 2: greater creativity, greater literary flair, right, there's often they start
29:55
Speaker 2: with kind of poems and things like that, things that
29:57
Speaker 2: in a code and in so much more mode of discourse.
30:01
Speaker 2: In other words, yes, there are shacks that run for
30:04
Speaker 2: three pages, but basically they're very tight and focused on
30:07
Speaker 2: what the specific thing. So think of this as as
30:10
Speaker 2: your way to do an essay. If you're a binic writer,
30:13
Speaker 2: you're going to use the tube of form. The other
30:15
Speaker 2: thing is, and this is you know, something that in
30:17
Speaker 2: legal philosophy we talk about about is that the very
30:20
Speaker 2: active ap application two concrete facts is what generates kind
30:25
Speaker 2: of creativity. Right, So I always say, if one looks
30:29
Speaker 2: at the laws of bore and ash hit and fire
30:34
Speaker 2: liability in the rob bumb and then a couple hundred
30:37
Speaker 2: years later in the Chanch, they're basically the same. And
30:40
Speaker 2: what that tells you is those were not applied, those
30:45
Speaker 2: are not applied them. Therefore they it's just basically copy paste.
30:48
Speaker 2: By contrast, if one looks at he'll hoach star rote
30:51
Speaker 2: or he'll hotel vote debts, negotiated instruments, of which in
30:55
Speaker 2: the ear of reshowing them, there's tremendous creativity. The world
30:59
Speaker 2: of the tour look completely different than the realbum. So
31:04
Speaker 2: the act of applying law two concrete situations changes it
31:08
Speaker 2: and molds it and modifies it. And in that sense,
31:11
Speaker 2: I think that is at least the first cut is
31:14
Speaker 2: done in chew vote. Later chew vote may become part
31:18
Speaker 2: of the kind of canonized law. Right. Like we said,
31:21
Speaker 2: the tour contains a number of chew vote of the rush,
31:24
Speaker 2: the shah schite site, chew vote, et cetera. And there's
31:28
Speaker 2: this interesting interplay of how these different genres commentary code
31:33
Speaker 2: and Cuba influence and impact each other. I see.
31:39
Speaker 1: I mean focusing back on the codes for a moment.
31:42
Speaker 1: You claim something quite interesting in your work, which is
31:44
Speaker 1: that that the code, the Halai code, at least can
31:48
Speaker 1: never fully achieve its purpose. And that struck me as
31:51
Speaker 1: a very interesting and thought provoking claim. Could you elaborate
31:56
Speaker 1: on that for us? What is it about the laha
31:58
Speaker 1: that frustra rates the composition or the ultimate aim of
32:04
Speaker 1: a composition of a low code?
32:06
Speaker 2: Sure, so let's start with that. Lasting if you think,
32:09
Speaker 2: and there's an if here, that the point here is
32:11
Speaker 2: to tell you clear and unequivocal rules, right, So, I
32:16
Speaker 2: think there's a few things going on, some relevant to
32:19
Speaker 2: Halaha specifically, and some possibly found in various forms in
32:24
Speaker 2: all legal systems. So one of the themes of my
32:26
Speaker 2: book is the idea of Tamutah right, that the study
32:31
Speaker 2: of Torah is its own goal, right, it's its own
32:36
Speaker 2: self standing, self justifying practice, and that anyone who is
32:41
Speaker 2: sort of known as a alahk authority sort of subscribes
32:46
Speaker 2: to some version of this idea. Okay, there were different
32:50
Speaker 2: in different times, in different eras Ashkin aspired, etc. But
32:54
Speaker 2: something like that, and therefore very different than any other
32:57
Speaker 2: legal system in which the production of law its goal
33:03
Speaker 2: is ultimately to regulate the social and political sphere. In Halaha,
33:09
Speaker 2: because of this idea of tomatoa that is so central
33:12
Speaker 2: to the rabbis of the Tumutin exerts a tremendous influence
33:15
Speaker 2: on everyone after. Is that no, there are what we'll
33:18
Speaker 2: call spiritual purposes in the study of law. Now again,
33:22
Speaker 2: these change over time and in different places, they're not consistent,
33:25
Speaker 2: but that idea is there, and therefore I think that
33:30
Speaker 2: you even I would say not it's not that these
33:32
Speaker 2: what the codes are, but they even in the codes
33:34
Speaker 2: which in sum sets are trying to just get to
33:37
Speaker 2: the bottom line. But the authors also have another investment,
33:41
Speaker 2: the investment in Thura study in explicating the Tamudik studia.
33:45
Speaker 2: In other words, that instinct of Tubdi commentary is there too.
33:50
Speaker 2: And therefore I think one of the reasons that it fails,
33:53
Speaker 2: so to speak, is because there are While there are
33:57
Speaker 2: some works that really do try to just tell you
33:59
Speaker 2: the rules, inevitably the commentaries are going to say, oh,
34:02
Speaker 2: but what about this talmudic ciay, what about this tostboon,
34:05
Speaker 2: and what about this other thing? And they'll they'll they'll
34:08
Speaker 2: just kind of re enter it into that toal munic dialogue.
34:11
Speaker 2: Perhaps the most dramatic example of this is not in
34:14
Speaker 2: the In the Rambam, the ram Bumb says that he's
34:17
Speaker 2: trying to end the kind of need to consult the talmad,
34:20
Speaker 2: and therefore presents its very clean. It's long, but it's
34:25
Speaker 2: sort of given where it's coming from, it's ultimately short
34:28
Speaker 2: compared to the tamud tight text. The he says, now
34:31
Speaker 2: you could just look at this and know the rules,
34:33
Speaker 2: and you don't need to do that. You don't need
34:36
Speaker 2: to work your way through the tamad. And as you know,
34:39
Speaker 2: almost immediately when that starts happening. People then write commentaries
34:42
Speaker 2: and they basically start reintegrating the rambamb into the Tummunk discussion,
34:48
Speaker 2: so much so that in the nineteenth century and the
34:50
Speaker 2: Brisker school, the ram bumb was, you know, the kind
34:54
Speaker 2: of source material from which they did the exact opposite
34:57
Speaker 2: of what he intended. They they made it the basis
35:01
Speaker 2: of their very analytical and very creative but very not
35:04
Speaker 2: bottom line discussions, right, And I think like the fact
35:08
Speaker 2: that they're at checking the ram bomb are there are
35:10
Speaker 2: reasons for that, but it's one cannot but laugh that
35:13
Speaker 2: it basically turned what the rama was trying to do
35:15
Speaker 2: inside out. I think with it's less dramatic. But if
35:18
Speaker 2: we think it's some of the main commentaries again learned
35:21
Speaker 2: in Yeshivai, So so it's a hot the the Cebos,
35:25
Speaker 2: to some degree, the Shah, they are all involved in
35:28
Speaker 2: this process of sort of expanding the Talmudic dialogue outwards.
35:32
Speaker 2: Now there's also commentaries that go the other way, but
35:35
Speaker 2: but there's that push and pull between those and therefore
35:38
Speaker 2: to some degree, the codes themselves. And if you look
35:43
Speaker 2: at just the page of the standard Skan's it's it's
35:46
Speaker 2: literally dizzy. So's so that you know, about twenty years ago,
35:49
Speaker 2: thirty years ago they started reprinting it to make it
35:51
Speaker 2: a little more and it just became another focus of
35:55
Speaker 2: tourist study with a slightly different entry point at the
35:59
Speaker 2: same time having this other goal of the bottom line rules. Now,
36:02
Speaker 2: I think that that's true of the Mishtah, that's true
36:04
Speaker 2: of the tumud that started through all the way down
36:06
Speaker 2: this right right book. That's one of the central tensions
36:08
Speaker 2: within the Holarism as a whole is that we use
36:11
Speaker 2: the same body of materials to do different things with it.
36:14
Speaker 2: And I think the literature reflects that that is something
36:16
Speaker 2: you don't really have in other systems. Now, I think
36:20
Speaker 2: in other since you do have this that you know,
36:22
Speaker 2: as soon as something becomes codified, there's always wrinkles to it,
36:26
Speaker 2: there's always new developments that that sort of complicated and
36:29
Speaker 2: that you have everywhere. The Marshall in the sixteenth century
36:35
Speaker 2: gave a kabbalistic sort of reason for this is drawing
36:38
Speaker 2: on earlier sources, but he's criticizing the then Code of
36:42
Speaker 2: Fying movement, and he says he says it's sort of
36:45
Speaker 2: about the nature of ala has the encounter between the
36:48
Speaker 2: infinite God and the finite man, and it is not
36:51
Speaker 2: something reducible to a finite code, is one of his claims, right,
36:55
Speaker 2: So he says, it cuts to the very nature of
36:58
Speaker 2: what Halifa is as a meeting between an infinite mind
37:01
Speaker 2: and a finite mind, and the finite mind is going
37:04
Speaker 2: to try to kind of limit it to some code,
37:06
Speaker 2: and it's never going to work because there's always more there.
37:10
Speaker 1: And the little bit ask a slight procketive question about that,
37:12
Speaker 1: which is that is that necessarily the case? In other words,
37:16
Speaker 1: could you imagine, even in theory, the construction of such
37:21
Speaker 1: a detailed or such a such a flawless code that
37:25
Speaker 1: no further commentary would be possible or necessary or meaning.
37:29
Speaker 1: And thords the enormous amount of commentary that has been
37:33
Speaker 1: precipitated by the rama by others, one could say that's
37:37
Speaker 1: because either there were you know, in some area's lack
37:41
Speaker 1: of clarity, or questions that arose, perhaps internal inconsistencies, or
37:45
Speaker 1: you know, any of the things that would spur on
37:47
Speaker 1: commentary if somehow a supercomputer were to create a perfect code.
37:53
Speaker 1: I mean, it's such a thing possible at all? Or
37:56
Speaker 1: are you saying no. The very nature of the system
38:00
Speaker 1: demands extra writing for me. I know this is a
38:03
Speaker 1: rather upset question, but one that's fun to think about it.
38:06
Speaker 2: Well, it's not so so I think there's a few
38:08
Speaker 2: things going on here. So first of all, I think
38:10
Speaker 2: I think the Marshall in his way is asking your
38:13
Speaker 2: question saying no, it's about the essence amount. I do
38:17
Speaker 2: think another point has to do with finality, in other words,
38:24
Speaker 2: and how you view sort of what is the ultimate
38:26
Speaker 2: Alachic authority, because we tend to say that the Talmud
38:31
Speaker 2: retains precedence even after the rambamb and even after the
38:36
Speaker 2: and even after the mission of Burua, right, ultimately, if
38:39
Speaker 2: you can resort back to the talmudik sugia right, which
38:43
Speaker 2: is written in anything but a linear, clear sense. So
38:46
Speaker 2: therefore that's always out there. And while it's true that
38:50
Speaker 2: we say we possibly like X, but why but not why?
38:53
Speaker 2: But then a new case comes up and they say, yes,
38:55
Speaker 2: we possibly like X, but limited to cases one, two
38:58
Speaker 2: and three, not the four or five and six we do.
39:01
Speaker 2: Now we've got to go back to the TOMUDXU. Yeah,
39:03
Speaker 2: I just describe basically howevery you know, this isn't super common. Right,
39:08
Speaker 2: so that even when we accept the authority of the shukanaru,
39:13
Speaker 2: much of the interpretive process saying I, yes, but that
39:16
Speaker 2: was here, not here, and my proof is this, Tommy Dixu. Yeah,
39:20
Speaker 2: and then we're back off to the races. So I
39:23
Speaker 2: think it would be more possible in let's say, a
39:26
Speaker 2: modern system which once the court, the High court says
39:30
Speaker 2: this is what it is. I don't want to say
39:32
Speaker 2: that solves all questions, but that then cuts off at
39:35
Speaker 2: least certain avenues. One of the things that is typical
39:38
Speaker 2: of halakha is that we never, at least in certain traditions, right,
39:43
Speaker 2: certainly in the sort of traditions that comes from the
39:46
Speaker 2: you know, Lithuanian yeshibas, we never cut ourselves off from
39:49
Speaker 2: the tamudxu. Yeah. This goes back to discussions and astized
39:53
Speaker 2: and because that's always available, and because the tumatif any
39:56
Speaker 2: is anything but univocal, I think you cannot escape it.
40:00
Speaker 2: And again I said before also, I think that people
40:02
Speaker 2: who write these things are living in a world where
40:06
Speaker 2: Taurus study has this sort of mayan haabet or the
40:09
Speaker 2: overflowing stream nature to it, and to under we are
40:13
Speaker 2: attracted to that now, I think there are schools of thoughts,
40:17
Speaker 2: typically to be more spartic, that tend to be more
40:19
Speaker 2: bottom line rules. Here's what they are. We can reduce
40:21
Speaker 2: them to this. But then stuff comes up, and then
40:25
Speaker 2: but that's not exactly consistent here, it's not consistent here.
40:28
Speaker 2: Wait a minute, there's this new idea or that maybe
40:30
Speaker 2: only covers this case, and then we're back to this
40:33
Speaker 2: sort of diological Talmudic process with maybe our starting point
40:38
Speaker 2: not the Talmud but different code provisions or different sections
40:42
Speaker 2: in the commentaries. But analytically it's that process. So I
40:46
Speaker 2: think the answer is no. One can give a metaphysical account.
40:50
Speaker 2: One could say it's no for all legal systems, but
40:54
Speaker 2: it's certainly in Alaha because of the lack of definitive finale.
41:00
Speaker 2: There's no governing body. It's just a kind of consensus
41:03
Speaker 2: that emerges over time, so there's always going to be
41:06
Speaker 2: gaps and being able to resort backward, and then you're
41:08
Speaker 2: back into the the analytic discussions, right. I see.
41:14
Speaker 1: And I want to drill a little bit on one
41:16
Speaker 1: element that we've been touching on, which is the role
41:18
Speaker 1: of the commentaries on the codes, because this is interesting
41:21
Speaker 1: because of course these individuals are not themselves involved in
41:24
Speaker 1: writing codes, but they are, and but they do have
41:29
Speaker 1: to certainly play a role in the development and dissemination
41:32
Speaker 1: of the code itself. So you know, certainly one possible
41:35
Speaker 1: functions you mentioned the kind of brisk approach approach to
41:38
Speaker 1: reading the Ramba on others, is to almost reverse engineer
41:42
Speaker 1: the thinking process that goes into the writing the code,
41:45
Speaker 1: because of course the code almost by definition is quite sparse,
41:47
Speaker 1: you know, sparing in its in as these and elaborasm
41:50
Speaker 1: show it's working as it were, and therefore it's an
41:52
Speaker 1: exercise for the code to kind of crack that open.
41:55
Speaker 1: What else are the nose aklim the great commentaries on
41:59
Speaker 1: the major codes, What else are they doing and in
42:04
Speaker 1: what in what way do they I don't know, do
42:06
Speaker 1: they bring the code closer to other genres such as
42:10
Speaker 1: responso or commentary or other other forms for lack of writing.
42:13
Speaker 2: Yeah, absolutely so. So first let's just start with this word.
42:17
Speaker 2: So this is really and I recently had to write
42:19
Speaker 2: something in English and you realize that there's no equivalent
42:23
Speaker 2: in in the in the Anglo American system to this
42:26
Speaker 2: idea of no say kleen right, So literally, they if
42:30
Speaker 2: we translate the word they are arms bearers right now.
42:33
Speaker 2: It's interesting to think about this phrase because I think
42:37
Speaker 2: it even changes over time. What is an arms bearer?
42:40
Speaker 1: Well, I mean the biblical sense, it's quite literal. It
42:43
Speaker 1: is someone who you know, goes into battle with someone
42:46
Speaker 1: as their second or as the person who holds their
42:51
Speaker 1: their weaponry. And probably you know. I imagine the closest
42:55
Speaker 1: modern analogy I can think of as a golf caddy,
42:57
Speaker 1: And that's.
42:58
Speaker 2: Exactly what I say, I caddy, right, the caddy. Now,
43:02
Speaker 2: so that way, the caddy is like on your team,
43:05
Speaker 2: he's helping you, right, But over time that turns to
43:09
Speaker 2: be no say kalim. They're doing battle with you, right.
43:12
Speaker 2: In other words, And I think that this idea of
43:15
Speaker 2: the no say kilem starts as they're going to help
43:19
Speaker 2: you make your arguments, right, but immediately then they also
43:24
Speaker 2: are battling you. So it's interesting that there's no such
43:27
Speaker 2: when when I have to describe this to people don't
43:29
Speaker 2: know Jewish law, I cannot rest on anything that is known,
43:33
Speaker 2: even to a lawyer, because such a literature doesn't really exist.
43:37
Speaker 2: You can write your own book, you can attack that, right,
43:39
Speaker 2: but you but this idea that you're you're both a
43:42
Speaker 2: commentary that's supportive but also undermining the sort of finality
43:47
Speaker 2: of the text of the code is sort of unique,
43:51
Speaker 2: at least within the legal world I'm aware of. So
43:54
Speaker 2: this no say kilem, and it's most dramatic on the
43:57
Speaker 2: Shukan uh because it's printed they have you in the
44:00
Speaker 2: in the in the nineteenth century when they were the
44:02
Speaker 2: various publishing houses sort of each try to outdo each
44:05
Speaker 2: other by how many commentaries they have, which which makes
44:08
Speaker 2: the page very very difficult to the uninitiated to summat
44:11
Speaker 2: for voting. But we can sort of categorize them into
44:15
Speaker 2: different functions. So some we can maybe start at the extreme.
44:19
Speaker 2: Some really bring it back to the Talmudic dialogue and
44:22
Speaker 2: are not super interested in what the bottom line rule is,
44:25
Speaker 2: but are using the shukanas. Okay, he said, this is
44:27
Speaker 2: a principle. Let's test it here. Let's see right, So
44:30
Speaker 2: that would be the soat this under the shah uh,
44:33
Speaker 2: are are are on that extreme. At the other extreme,
44:37
Speaker 2: you have people who will then bring the Chuva literature
44:42
Speaker 2: and maybe we should talk about organ maybe we'll make
44:44
Speaker 2: sure we talk about organization, uh. And they say okay.
44:49
Speaker 2: These are the cheu vote that speak on the topic
44:52
Speaker 2: that is the subject matter of the code. Section of
44:55
Speaker 2: the Piskechuva and the dark Chuva are famous for this,
45:00
Speaker 2: and in other words, that is how you'll connect the
45:04
Speaker 2: Charlotte tan Chubat literature to what's going on in the
45:07
Speaker 2: Shahan roof. And then you could think of most other
45:09
Speaker 2: ones being somewhere in between of explicating qualifying, right, the
45:15
Speaker 2: sma the shot. They're constantly qualifying the hukan roos, oh,
45:18
Speaker 2: yes he said this, but here, and typically point to
45:22
Speaker 2: another place where, well, you see, there's some tension between them.
45:25
Speaker 2: So there's a lot of lawmaking that goes on in
45:28
Speaker 2: these codes as they refine and define what's going on,
45:32
Speaker 2: whether it's between the ramada chi or contradictions or just
45:35
Speaker 2: new stuff that comes up. So it's interesting because in
45:39
Speaker 2: some ways they would never say. Very the early early
45:43
Speaker 2: layer is willing to outright disagree with the shoch ama.
45:48
Speaker 2: Later on they become much less so, but they disagree
45:50
Speaker 2: by qualifying and saying oh only here, but not here,
45:54
Speaker 2: or introducing a new series of distinctions, very much the
45:56
Speaker 2: way that the talma does to the mischilon or you
45:58
Speaker 2: showed them due to the talma, and that's why I
46:00
Speaker 2: see this as very much a part of the same process.
46:04
Speaker 2: So right, when we refer today, when someone says chokin,
46:08
Speaker 2: they typically don't mean the language of Joseph Caro. They
46:13
Speaker 2: mean yang the jose kiro plus rama plus at least
46:16
Speaker 2: some of the canonical commentaries, and you can argue which
46:19
Speaker 2: ones are. So we really say, you'll see sometimes abbreviated
46:23
Speaker 2: venose kalem shan meaning the whole kind of web of
46:27
Speaker 2: literature which you know to a story, and is somewhat
46:29
Speaker 2: maddening because we're referred to this book, but we really
46:32
Speaker 2: mean the book is printed and received, not the words
46:35
Speaker 2: of any any specific person. I do want to say
46:39
Speaker 2: a word about organization, because I think this matters a lot.
46:43
Speaker 2: Perhaps the greatest success of the shokranuch is that it
46:46
Speaker 2: became the way we conceptualize alaka certainly practice alaka. And
46:51
Speaker 2: this way, though the Rambam system is more can comprehensive
46:55
Speaker 2: and more elegant. I think that the chikan wins the day.
46:59
Speaker 2: And then what starts having is that you will see
47:02
Speaker 2: works of cheu vote are organized according to the section
47:07
Speaker 2: of shokhan. Right because One of the main problems with
47:09
Speaker 2: you vote is they have no natural order, right. I
47:12
Speaker 2: mean you could have like the order that they were
47:14
Speaker 2: written in, but that's not super helpful, right, So part
47:17
Speaker 2: the big the big downside of chew vote. We talked
47:20
Speaker 2: before about their analytic character, but just as practice, how
47:23
Speaker 2: do you find them? How do you know if something
47:25
Speaker 2: is relevant to what you're working on? So every once
47:26
Speaker 2: in a while you'll have a gono vilna or vaduo
47:29
Speaker 2: sense it just like knows everything, okay, But if you're
47:32
Speaker 2: not that, how do you find them? So today we
47:34
Speaker 2: have computers and things like that, but in the inter
47:37
Speaker 2: interstitial period, what we see is that the code chapters
47:41
Speaker 2: then become like the sort of headings of halaka, so
47:44
Speaker 2: we know, oh, this is Simon Sanivov okay, and therefore
47:49
Speaker 2: the true vote will be written or published I should
47:52
Speaker 2: say not written published in in a way of like
47:56
Speaker 2: the rough order of the Shokanara. Now, of course, chew
48:00
Speaker 2: bote can draw from many different places, so sometimes they
48:02
Speaker 2: have to be split in parsed, and therefore indexes in
48:05
Speaker 2: the back of chew vote, and sometimes even the way
48:08
Speaker 2: they're organized are in accordance with the orders. So if
48:12
Speaker 2: you to me, one of the most enduring influences of
48:16
Speaker 2: this is beyond what the Schardrok paskins, is that it's
48:19
Speaker 2: the way we now frame and think of Halakha. So
48:22
Speaker 2: and therefore you see this as I said both earlier,
48:26
Speaker 2: people like the Shakh will already start quoting chew Vote,
48:29
Speaker 2: but then like the dark tube of the Pistley Cuba
48:31
Speaker 2: on the page citing chew Vote, and then Chewbote themselves
48:35
Speaker 2: become published. I think the most interesting example is the
48:37
Speaker 2: bach who's one of the commentaries on the tour. The
48:40
Speaker 2: first edition is published in a fairly random way, and
48:43
Speaker 2: then they republish it scramble the order, so now it
48:46
Speaker 2: matches the order of Schuchhan. What's super interesting is that
48:49
Speaker 2: in modern times rofessal Weis's Chubas have this, but he's
48:53
Speaker 2: not the only one. They will publish them in the
48:56
Speaker 2: order of the four volumes of Chukhrana Ruche and then
48:58
Speaker 2: a fifth one Lakah who are medicine. So they're saying that,
49:03
Speaker 2: I say, like, what you see is like this like
49:05
Speaker 2: fifth value should earth sort of happening before our eyes
49:08
Speaker 2: because people realize there's no great place to put this
49:13
Speaker 2: kind of its own thing and not really reflected. So
49:15
Speaker 2: I think it's very interesting. It'd be a great practice.
49:18
Speaker 2: Who's the first to publish it this way? But so
49:20
Speaker 2: to me, it's interesting even when you're deviating Falk, you're
49:23
Speaker 2: still using that as as the structure.
49:26
Speaker 1: Okay, there's much to say that I want to drive
49:30
Speaker 1: us a little bit in love direction because time is
49:33
Speaker 1: running a little bit short, which is similar to what
49:36
Speaker 1: you're seeing before. There is of course yet another genre
49:40
Speaker 1: of I like writing, which we haven't really mentioned thus
49:42
Speaker 1: far so much, which is we continued attempt at talbuted commentary,
49:47
Speaker 1: and in fact, even some of the great writers of
49:49
Speaker 1: codes or of response and many of them are also
49:52
Speaker 1: at the same time providing commentaries on the talmud itself,
49:55
Speaker 1: which seeks to explain, perhaps apply, perhap perhaps you know,
50:02
Speaker 1: make update or make relevant, sudden secure certain discussions of
50:05
Speaker 1: the talbut and that exists side by side with these
50:09
Speaker 1: other genres like writing, And I guess my question is,
50:11
Speaker 1: you know, to what extent do they interrelate? And are
50:15
Speaker 1: these talmulive commentaries, so to speak, better friends of the
50:19
Speaker 1: writing of responsor or better friends of writing of codes?
50:24
Speaker 1: And how does it fit into this, this rather this
50:28
Speaker 1: constructed kind of opposition between the response and the code.
50:32
Speaker 2: Yeah, so I would say, I'm not sure everyone would
50:36
Speaker 2: agree with this, but you know a lot of people.
50:38
Speaker 1: Why else would we have you on? Please, If you're
50:40
Speaker 1: going to say something I would agree on, then I would.
50:43
Speaker 2: Say that that kind of page by page chamudic commentary
50:49
Speaker 2: is something very very dominant in the Reshow name and
50:52
Speaker 2: maybe the earlier name, and has largely leveled off. In
50:55
Speaker 2: other words, it's hard to think they exist, but it's
50:58
Speaker 2: hard to think of an influentyal page by page commentary
51:03
Speaker 2: on the Talmud of the last one hundred or two
51:06
Speaker 2: hundred years. Now someone's going to say, what about this,
51:08
Speaker 2: And I'm sure there's one there, right, But like if
51:10
Speaker 2: we think of them, obviously Rashi Tosos, you know, the Rashon,
51:15
Speaker 2: sard rambamb Rashba Ron, etc. Son others, they exist and
51:20
Speaker 2: they're still I'm sure you could go to a sparm
51:22
Speaker 2: shop and find a fairly new thing on Bubba atsierb
51:26
Speaker 2: of a Comma or something like that. But largely the
51:30
Speaker 2: in the modern era, I think it's been codes and
51:32
Speaker 2: response that have been and then like sort of various
51:36
Speaker 2: rabbinic essays that have been more more influential than kind
51:42
Speaker 2: of daff bay daf commentary. Now, what has happened is,
51:45
Speaker 2: as they said, I mentioned this word a few times.
51:47
Speaker 2: I think what has emerged, let's say, is the idea
51:49
Speaker 2: of the essay or article on a topic, right, something
51:53
Speaker 2: that you don't really have in the earlier writings. In
51:56
Speaker 2: other words, the ram Band's Cuntristadina de Garmi is exceptional
52:00
Speaker 2: because it's one of the only examples of in the
52:02
Speaker 2: year of the reshown in of someone saying I'm going
52:05
Speaker 2: to write on this topic and try to cover it
52:07
Speaker 2: in some sort of introduction, thesis, conclusion. Right. In general,
52:11
Speaker 2: I would say rabbinic writing doesn't have that structure. It's
52:15
Speaker 2: really hard to think. And I'll say something that is
52:18
Speaker 2: a little provocative. What is the that there's not many
52:22
Speaker 2: Hoboutic books and you're gonna say, what are you talking
52:24
Speaker 2: about it? Walking Indy based mentors. There's a gagillion of them,
52:27
Speaker 2: And by book I mean a thing on a single
52:30
Speaker 2: topic that has a thesis that is pursued from beginning
52:34
Speaker 2: to end. This is a monograph exactly. There aren't many
52:40
Speaker 2: more recently sure in the last to say, hundred years,
52:43
Speaker 2: you see more of these, but but there really aren't many.
52:46
Speaker 2: So the monograph we've been talking about genres and also
52:48
Speaker 2: worth thinking what genres don't exist, And I think therefore
52:53
Speaker 2: the word commentary does a lot more work there in
52:55
Speaker 2: the same way the gomar is quote commentary on the MISSIONA.
52:58
Speaker 2: I mean yes and no right, and the same is
53:01
Speaker 2: true right, so and therefore the and we're talking and
53:04
Speaker 2: the chew vote wind up doing this. But I saying
53:05
Speaker 2: more recent thing is the sort of article and or
53:09
Speaker 2: the book where you can take a topic and kind
53:11
Speaker 2: of pursue it consistently. I think one of the first
53:14
Speaker 2: maybe the on m you could count them, but I
53:16
Speaker 2: think the shim and schup Shario share. There's some predecessors
53:20
Speaker 2: to ship Schmid, but in others it's pretty thin in
53:23
Speaker 2: that sense. So I think today the type of person
53:26
Speaker 2: who would have written a page by page to munic
53:28
Speaker 2: commentary is more likely to write sort of essays or
53:32
Speaker 2: maybe a book on a given topic. It's more fitting
53:34
Speaker 2: with the way that we write today and that we
53:37
Speaker 2: think today. And therefore I think that that genre is
53:41
Speaker 2: while I agree it's been continuing, but it's not. It's
53:44
Speaker 2: hard to think of very influential page by page commentaries
53:48
Speaker 2: since the kind of midachronin. Maybe the ark Lanaire is.
53:53
Speaker 2: But again you can't compare that to the earlier ones.
53:55
Speaker 2: For example, him his chewbot Binanci and is the alcavette
53:59
Speaker 2: linger I think are more influential than his tem me
54:02
Speaker 2: to commentary routhlynaire now where if it's in certainly of
54:07
Speaker 2: the reshown him, it's just considered primary loss. So in
54:10
Speaker 2: other words, that fits you know, what the past leots say,
54:12
Speaker 2: fits into codes all over the place, and fits into
54:15
Speaker 2: response all over the place as we move on somewhat less.
54:19
Speaker 1: Right, Okay, fair enough? It is interesting to note the
54:24
Speaker 1: influx of of the the optic, let's say, of the
54:28
Speaker 1: phenomen of the Halak monograph and Hala essay and really
54:30
Speaker 1: honestly the Hallakic footnotes. There's also something that did not
54:34
Speaker 1: exist much in previous centuries. But I suppose you know,
54:37
Speaker 1: has you know, writing has taken on the track.
54:39
Speaker 2: I think I think the missioner Brewer, I don't want
54:42
Speaker 2: to say the first, but the mission brewer writes footnotes
54:45
Speaker 2: on the missioner burah right. In other words, he might
54:47
Speaker 2: be his missioner. Burgh is itself some sort of footnote
54:50
Speaker 2: slash commentary, right, But then the shared Sea, and he
54:52
Speaker 2: has like footnotes on his text. But yes, this idea,
54:56
Speaker 2: this modern way of writing of text and footnotes and things,
54:58
Speaker 2: which is now you know, you could find certainly in
55:00
Speaker 2: the Monera sex world. I think when we were in
55:02
Speaker 2: the Hibi world. This is a fairly new phenomenon. But
55:06
Speaker 2: by the way I think this is I wrote in
55:08
Speaker 2: my book, I think this goes all the way back.
55:10
Speaker 2: In other words, if we go to before the world
55:14
Speaker 2: of Hazal, it take us to the first century. So
55:17
Speaker 2: we know of Joe Ciphis, and we know of Filo,
55:20
Speaker 2: who write what we would call monographs. Right they write
55:23
Speaker 2: one person writing in their own voice about a topic
55:27
Speaker 2: that is definable. And then once you get to Razal,
55:31
Speaker 2: they don't do that. First of all, they don't write,
55:34
Speaker 2: by which I mean like a written product. It's all tbalpe.
55:37
Speaker 2: We should remember that though we engage to pe as books,
55:41
Speaker 2: that's not the way haza did. It's all about Peh
55:44
Speaker 2: and all the collections. Mishna Medrisha, Medrisha, Gada Damarabavla Murisli
55:51
Speaker 2: are collections of inter multi generational works that don't have
55:57
Speaker 2: a very clear structure and conceptual structure. And that goes
56:00
Speaker 2: all the way from the earliest hazal until you get
56:03
Speaker 2: to the own meme that begin to kind of write
56:05
Speaker 2: a single people in their own voice. You know, there
56:08
Speaker 2: writes some essays pias is mecha memcar and commercial ar
56:11
Speaker 2: shar go, and you know, then you begin to have it.
56:13
Speaker 2: But I think it's I think part of what's driving
56:15
Speaker 2: this is, you know, not only Talmud Tara in the
56:18
Speaker 2: idea that to study, but also the form that tore
56:21
Speaker 2: study has taken for Hazau, I think bears a huge
56:24
Speaker 2: influence on everything after.
56:26
Speaker 1: Right, okay, and and let me let me move a
56:30
Speaker 1: little bit into sort of an analysis of these of
56:34
Speaker 1: these different codes, sorry, the genres, codes and response as
56:38
Speaker 1: it pertains to the education of rabbis or you know,
56:42
Speaker 1: the syllabi in Yeshivat and other and lot of those places.
56:45
Speaker 1: And you know, it is very interesting to think about that.
56:48
Speaker 1: You know, there is quite a clear prioritization where you
56:50
Speaker 1: have the talm wood and its commentaries as the major aspect,
56:53
Speaker 1: and then a kind of distant second is the learning
56:56
Speaker 1: of the codes and their commentaries and then are really
56:59
Speaker 1: really distant. Third is the study of responsor, which comes
57:03
Speaker 1: which is very infrequent, let's say, in your average tumbletic
57:06
Speaker 1: training and general training, which most rabbi still to this
57:09
Speaker 1: day undergo. And the question that becomes, firstly, why is
57:13
Speaker 1: this the case? And secondly, I mean is this wise?
57:16
Speaker 1: I mean do we ought there be a reconsideration, recalibration
57:22
Speaker 1: of the educational focus of some of these places.
57:24
Speaker 2: Sure, so what you're saying is certainly true of the
57:30
Speaker 2: tradition that emerges from Valajen, which has a huge influence
57:33
Speaker 2: on yeshivas of all stripes today, and that, like you said,
57:38
Speaker 2: the subject matter is still a famitic masecta and it's
57:41
Speaker 2: main reshowname and you might look at the schuch to
57:45
Speaker 2: see what he does with it, or particularly if there's
57:48
Speaker 2: a well known shock or exos and you kind of
57:50
Speaker 2: gotta find your way in there. But that's not what
57:52
Speaker 2: you're focused on. And that is certainly true for the
57:55
Speaker 2: way we you know, when you're young, we learn the
57:58
Speaker 2: gamura itself. As you go on, you learned the gamara
58:01
Speaker 2: shown him, and that's what it means to understand the
58:03
Speaker 2: sud yeah, so I think that's very much driven by
58:05
Speaker 2: how the talmat itself works and by this idea that
58:08
Speaker 2: talmut toa again to me this kind of say, because
58:11
Speaker 2: that is sort of its ideal form. Now. Of course,
58:14
Speaker 2: when you go to study Smicha, which is typically after
58:18
Speaker 2: several years of this, you will change your focus to
58:21
Speaker 2: the shukan uh and the things around it. And depending
58:25
Speaker 2: on where and how you studied it, how much are
58:27
Speaker 2: you really going back to the talmud and working down
58:29
Speaker 2: or how much are you starting from these kind of
58:31
Speaker 2: codes and working forward. But you're certainly right that in
58:35
Speaker 2: the classical is Shiva chuvote are almost non existent. I
58:39
Speaker 2: can speculate that this is part of the ideology that,
58:42
Speaker 2: in other words, that very much comes from a legions.
58:44
Speaker 2: There's the pure Tora and the pure Toa is in
58:46
Speaker 2: the Gemara and the chu vote are kind of already
58:49
Speaker 2: sullied by the complexities of human interaction in the world,
58:53
Speaker 2: and I think the g Sevagic says things in this direction.
58:56
Speaker 2: I'm not sure you would say it quite in the
58:58
Speaker 2: way I'm saying now, but I think he's reflecting this
59:00
Speaker 2: sort of idea as one moves to Smicha in more
59:04
Speaker 2: practical things. There is definitely more emphasis on these later
59:08
Speaker 2: works on more modern questions, and of course don't come
59:10
Speaker 2: up in the kamara. You know, certainly, if you're studying castus,
59:13
Speaker 2: you got to know how factories work and all these
59:15
Speaker 2: sorts of things. And you know that stuff is obviously
59:18
Speaker 2: in the in the much more contemporary literature. And you know,
59:22
Speaker 2: in my in my job or part of my job
59:24
Speaker 2: of interviewing various day anin you know, rabbinical court judges,
59:30
Speaker 2: and they will all say that at some point they
59:31
Speaker 2: had to start learning again. In other words, they learned
59:34
Speaker 2: in yeshiva in this classic way, and then when they
59:36
Speaker 2: decided to try to, you know, go to the day
59:39
Speaker 2: a new track to be a sort of practicing a
59:43
Speaker 2: diane they basically sort of they'll have this story where
59:46
Speaker 2: they like start over and now I got to learn
59:48
Speaker 2: to learn again and learn differently, which is always interesting.
59:51
Speaker 2: But of course you don't get selected into a dianute
59:55
Speaker 2: program unless you're really good at doing the other thing.
59:58
Speaker 2: And I would say, sitting on these cases in my
1:00:00
Speaker 2: other job, you can see the influence of this that
1:00:02
Speaker 2: some of them are very classical and and you know,
1:00:06
Speaker 2: are very wedded to how this is kind of constructed
1:00:08
Speaker 2: in Yeshiva and less so into sort of okay, what
1:00:10
Speaker 2: are we actually going to do here? And now? So
1:00:13
Speaker 2: I think that that is going And now I think
1:00:15
Speaker 2: there are changes too. You know, there's what you described
1:00:18
Speaker 2: is certainly true of the Balasian tradition. But you know,
1:00:21
Speaker 2: even in my lifetime, you see a change towards different
1:00:25
Speaker 2: ways of studying. Certainly once you enter kind of mifha
1:00:28
Speaker 2: tracts where there's going to be more emphasis on you vote,
1:00:32
Speaker 2: and certainly you know the true boative emotion find seeing
1:00:35
Speaker 2: that everyone quote has to know right and things like that.
1:00:38
Speaker 2: So I do think there is a change. But I
1:00:41
Speaker 2: also think that the centrality of the gamara to the
1:00:45
Speaker 2: process of talmatara and therefore everything that flows from it,
1:00:48
Speaker 2: even if you're trying to do something quote practical, still
1:00:51
Speaker 2: exerts a tremendous influence and under That's one of things
1:00:53
Speaker 2: I tried to talk about my book, that this goes
1:00:55
Speaker 2: back to well, what are we doing here? Is this
1:00:57
Speaker 2: a legal system? Yeah, it's that this has this other dimension,
1:01:01
Speaker 2: and it's understood that that is captured kind of most
1:01:04
Speaker 2: essentially in the Gamura and the commentary around it, and
1:01:08
Speaker 2: less so in its practical orientation. Now, I will say,
1:01:10
Speaker 2: sitting here in a law school, some aspects of this
1:01:13
Speaker 2: exist in the American legal academy, and I suspect in
1:01:16
Speaker 2: graduate education throughout. We don't teach in law school much
1:01:21
Speaker 2: about which forms to file in the trial court in Pennsylvania, right.
1:01:26
Speaker 2: We tend to think about more theoretical discussions. There are
1:01:29
Speaker 2: far more classes on constitutional law and constitutional theory than
1:01:33
Speaker 2: there are on Pennsylvania civil practice, even though in reality
1:01:38
Speaker 2: most of the lawyers are not going to be arguing
1:01:40
Speaker 2: questions of first impression of constitutional interpretation. They're going to
1:01:44
Speaker 2: be doing the daily work of lawyers. My wife went
1:01:46
Speaker 2: to architecture school, and similarly, the sort of model project
1:01:51
Speaker 2: was you know the museum commission, which is some sort
1:01:54
Speaker 2: of conceptual statement made through a building, rather than you know,
1:01:57
Speaker 2: how to do you know a supermarket in the strip mall.
1:02:01
Speaker 2: So I do think that there's something about educational systems generally,
1:02:06
Speaker 2: or power professional education systems generally, where the kind of
1:02:10
Speaker 2: there's a sort of ideal type of study that is
1:02:12
Speaker 2: prized by the kind of educational establishment, which is that
1:02:17
Speaker 2: some gap between what the graduates actually do in practice
1:02:21
Speaker 2: is certainly true inneshiva, certainly true in law school, you know,
1:02:24
Speaker 2: and I know by analogy in architecture school. Although in
1:02:29
Speaker 2: law school I know that there's a yin and yang,
1:02:31
Speaker 2: and these things change do We're now in a more
1:02:33
Speaker 2: clinical route, and so these things go back and forth,
1:02:36
Speaker 2: you know, the fads kind of go back and forth.
1:02:38
Speaker 2: And I suspect the same is true in rabbinic education
1:02:42
Speaker 2: and also as instead we've been talking a lot about
1:02:45
Speaker 2: the volution tradition. If one comes from a kind of
1:02:47
Speaker 2: Spardic tradition, I think the world does look somewhat different, right.
1:02:51
Speaker 1: And the final point that I wanted to raise is
1:02:56
Speaker 1: sort of the threads of thought that is woven throughout
1:02:59
Speaker 1: your work on which this question of these two different
1:03:01
Speaker 1: genres of Halaic writing bear, which I think is is interesting,
1:03:06
Speaker 1: which is on what is halaha? Which seems to be
1:03:09
Speaker 1: a strikingly a question that is deceptively or appears simple,
1:03:15
Speaker 1: but is deceptive in that particular appearance, and in fact,
1:03:18
Speaker 1: as you have articulated over now, regain is actually a mutal,
1:03:21
Speaker 1: complex question. And of course you have these opposing or
1:03:25
Speaker 1: I'm not sure opposing these strikingly different ways of writing
1:03:29
Speaker 1: halaa and trying to develop it and expand it, and
1:03:32
Speaker 1: and and further it, advance it. And the question becomes,
1:03:35
Speaker 1: how does a consideration of these different forms of Alaric
1:03:39
Speaker 1: writing bear on the major question, which is how does
1:03:42
Speaker 1: one define alaa? The term?
1:03:45
Speaker 2: Okay, so we were ending with the with the question
1:03:47
Speaker 2: maybe with correct but.
1:03:50
Speaker 1: I think now that we have a better appreciation of
1:03:53
Speaker 1: what what is involved in this question, now we can
1:03:55
Speaker 1: sort of set the table if yeah.
1:03:57
Speaker 2: So so as your as youre as you say. So.
1:04:01
Speaker 2: That is something I've been thinking a lot about over
1:04:03
Speaker 2: the years, and my book, which is called the Rabbinica,
1:04:07
Speaker 2: the Rabbinic Idea Law, is trying to kind of articulate.
1:04:10
Speaker 2: So let me just kind of pose where we went into.
1:04:13
Speaker 2: I would say, both codes and response that would broadly
1:04:18
Speaker 2: be considered under the rubric of halahalam se right applied halakha,
1:04:24
Speaker 2: and therefore, you know, kind of not not already a subset.
1:04:27
Speaker 2: Now I tend to say that there are actually three terms.
1:04:31
Speaker 2: There's halakah, there's hala halamas, and there's halaka lamas lemis
1:04:37
Speaker 2: meaning there is halaha in the sense of this kind
1:04:40
Speaker 2: of broad system of ideas, we could say, largely captured
1:04:44
Speaker 2: in the talmudiness related literature in which minority opinions. You know,
1:04:49
Speaker 2: be Shami is part of alaha, even though we know
1:04:52
Speaker 2: we don't poscu in that. Robbie Mayer is halaja, even
1:04:55
Speaker 2: though we of course don't post in that, and halaha
1:04:58
Speaker 2: about all sorts of things that no bearing you know,
1:05:02
Speaker 2: the various discussions in the talma that sort of end
1:05:04
Speaker 2: inconclusively or end or are all picking up on ashita
1:05:07
Speaker 2: that the tama knows from the beginning it's not going
1:05:10
Speaker 2: to right, So that's haw aha sort of in its
1:05:12
Speaker 2: broadest sense. Right, then we have what we would call halakalama,
1:05:17
Speaker 2: which I say is the stuff that if we go
1:05:20
Speaker 2: back to our discussion of the riff, the sort of
1:05:22
Speaker 2: stuff that is within the riffs bar another legal term
1:05:25
Speaker 2: rule of recognition, in other words, within his rule of
1:05:27
Speaker 2: what we kind of is the applied normative alaka. But
1:05:31
Speaker 2: even there, if one studies shikhana uf, there's vast tracts
1:05:35
Speaker 2: of it that is not what we actually do in
1:05:38
Speaker 2: observant communities today. So for example, we mentioned this already
1:05:42
Speaker 2: tambdic torte law right, so bor and ash and sure
1:05:46
Speaker 2: and regel. All these things are in shohan uch and
1:05:50
Speaker 2: are not at all reflective in the practice of observant
1:05:53
Speaker 2: communities today. By contrast, something like the laws of Krishma
1:05:58
Speaker 2: do so I would say, we typically say ala Kalama,
1:06:01
Speaker 2: say is that which is kind of codified by the
1:06:03
Speaker 2: riff you know, rush tour Chilgrenarre. But even there I
1:06:08
Speaker 2: think there's a further distinction between what our actual practices
1:06:12
Speaker 2: are and what's stated in these books. So therefore I
1:06:15
Speaker 2: tend to think of it that it's probably best to
1:06:16
Speaker 2: think of it in three ways. The sort of rawest
1:06:19
Speaker 2: is roughly that which is in the tale. Then we
1:06:22
Speaker 2: could say that which is understood to be normative in
1:06:25
Speaker 2: some sense in some place. By the way, there's another category.
1:06:28
Speaker 2: Or what do we do with the Rombam's codifications of
1:06:31
Speaker 2: the of the laws of the Beta mkdash right, which
1:06:34
Speaker 2: are like they are halaja in the sense of these
1:06:36
Speaker 2: are the correct rules occurring around them, but they're in
1:06:39
Speaker 2: no way sort of part of our functional lives, and
1:06:42
Speaker 2: sort of a layer below that is the sort of
1:06:44
Speaker 2: everything is chicano, which includes things that are extremely relevant
1:06:48
Speaker 2: and things that are not and things that we do
1:06:50
Speaker 2: somewhat differently, et cetera. And then there's like the actual
1:06:53
Speaker 2: practices of Jewish communities which are found in she voked,
1:06:56
Speaker 2: which are found today, and like you know, the letters
1:06:58
Speaker 2: rabbis send their congregants before pass you know, this year
1:07:01
Speaker 2: was so that which the rabbi wrote to the shows,
1:07:05
Speaker 2: and sometimes that's the actual thing that we do. Here's
1:07:09
Speaker 2: how we're selling the comments. Here is how we're doing this.
1:07:11
Speaker 2: So I think that we have to think of it
1:07:12
Speaker 2: as in a variety of levels. I would say my
1:07:15
Speaker 2: own finish, if you will, or my own point of
1:07:18
Speaker 2: emphasis into the discussions. Actually not at the bottom end,
1:07:22
Speaker 2: but at the top is the range of things that
1:07:25
Speaker 2: halaja can cover. And this is a lot of what
1:07:28
Speaker 2: I talk about my book is that what what rabbinic
1:07:31
Speaker 2: discourse does is it uses legal language to talk about
1:07:34
Speaker 2: all sorts of questions and issues that may not be
1:07:38
Speaker 2: thought of as legal in other contexts. So I always say,
1:07:42
Speaker 2: you know, in our culture, we have poetry, we have film,
1:07:46
Speaker 2: we have literature, we have art. We have high brow
1:07:49
Speaker 2: versions of the things, we have low brow versions of
1:07:51
Speaker 2: these things. We have Facebook, we have podcasts, right, and
1:07:55
Speaker 2: lots of lots of ways to communicate and lots of
1:07:57
Speaker 2: lots of ways to frame ideas, and we tend to
1:08:00
Speaker 2: think about law as fairly narrow, bound to the state
1:08:06
Speaker 2: right and bound to prescriptive behaviors. So halaka has that.
1:08:11
Speaker 2: But what Rabinic literature doesn't have is all these other
1:08:14
Speaker 2: modes of discourse, or if it hasn't, they're all smushed together.
1:08:18
Speaker 2: You know, it has agada, it has drush out, but
1:08:20
Speaker 2: they all kind of tend to sort of revolve often
1:08:23
Speaker 2: around legal concepts. And therefore the idea is that the
1:08:27
Speaker 2: legal takes up so much space and therefore does a
1:08:30
Speaker 2: lot of work. And the challenge is, you know, now,
1:08:34
Speaker 2: maybe going back to the bottom line, is that we
1:08:36
Speaker 2: use the same body of texts in the same sort
1:08:39
Speaker 2: of set of concepts both to do our kind of
1:08:41
Speaker 2: big thinking about the world and to do our regulating
1:08:44
Speaker 2: and that could be hard because those are designed different things.
1:08:47
Speaker 2: I think the process of creating halahala myset from Hallaha
1:08:51
Speaker 2: is complicated precisely because it has to traverse this distance
1:08:56
Speaker 2: and the lines are not always clear and open for debate.
1:08:59
Speaker 1: Fair Enough, that was the kind of answer that has
1:09:01
Speaker 1: was both detailed and complex enough but also irreducible enough.
1:09:06
Speaker 1: I think we have to expect that you cannot reduced
1:09:10
Speaker 1: to a thing or another thing. It is somewhat like
1:09:14
Speaker 1: like law, and somewhat not, and inclusive of some aspects
1:09:17
Speaker 1: of it, but also ranges vastly beyond it. And I'm
1:09:20
Speaker 1: afraid that time has forced us to draw this conversation
1:09:24
Speaker 1: to a close. And I thank you very much for
1:09:27
Speaker 1: as a high samon, for joining us today on the
1:09:28
Speaker 1: Podcast of Jewish Ideas. This has been a lot of
1:09:31
Speaker 1: fun and we look forward to your future publications, whatever
1:09:34
Speaker 1: and whenever they may they may be.
1:09:37
Speaker 2: Thank you.
1:09:39
Speaker 1: This has been the Podcast of Jewish Ideas by Tora
1:09:42
Speaker 1: in Motion, produced by Alisha Kellman and myself Jjkimbri, edited
1:09:46
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1:09:49
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