Chaim N. Saiman

Chaim Saiman, a Professor of Law Villanova University, works in the areas of comparative private law and Jewish law. Chaim currently serves as the Jewish Law Editor for the Journal of Law and Religion, and is the Gruss Visiting Professor of Jewish Law at the University of Pennsylvania Law School, and the William E. Simon Fellow in Religion and Public Life at Princeton University. At present, Chaim is working on a book titled Halakha: the Rabbinic Idea of Law, under contract with Princeton University Press.  Prior to teaching at Villanova, Chaim learned at Yeshivat Har Etzion, Yeshivat Kerem B’Yavneh, clerked on the Tenth Circuit Court of Appeals and studied at the law schools of Columbia, Harvard and NYU.  

Talmud Torah As a Way of Knowing

Whether by circumstance or design, the Talmud, has often displaced Western philosophical thought within Jewish intellectual life. In the 800 year period beginning with the Mishna until well after the close of the Talmud, there are no Jewish contributions of note to philosophy, political and social theory, science, music, visual or dramatic arts. Even in later periods, Jewish creativity in these fields remained modest until Jews stepped out from behind the Talmud’s veil in the 19th century. Much of Jewish history is marked by tension, if not outright hostility, between the study of Torah and philosophical leaning.

At one level, the conflict between is epistemological: Is knowledge based on human reason accessed through reasoned inquiry, or is it revealed in God’s Torah and accessed through its study? But the tension between Torah and philosophy is not only about the source of knowledge, but about how its processed and transmitted. The Western tradition values structured systematic thinking. Hence its model for communicating ideas is (i) a work of a single individual, (ii) positing a thesis, (iii) supported by arguments, (iv) that logically follow from premise to claim to conclusion. Amazingly, none of these characteristics are true of the Talmud— or any foundational text of Jewish law or thought. The Talmud (along with the Mishnah, midrash-halakhah, midrash-aggadah, Toseftah and Jerusalem Talmud) was not written by an individual, but compiled by redactors from statements made by scores of individuals who lived centuries apart. These texts are not organized systematically, but are structured like a network—with no real beginning, no obvious conclusion, and where every point assumes familiarity with the whole.

Paralleling these structural differences, the Talmud does not maintain the intellectual technology to engage in philosophical reasoning. For all the focus on questions of justice, holiness or faith, nowhere in the massive corpus of Talmud is there a sustained discussion over core philosophical issues such as “What is Justice?” “What is Holiness” or “What is Faith?” The Talmud is preternaturally suspicious of these abstractions. Likewise, the Talmud maintains few corollaries to the central ideas of legal, political or scientific theory. Concepts such as logic, rhetoric, politics, ethics, philosophy, theory, universalism, particularism and even theology— are wholly foreign to the Talmudic mind.

The Talmud offers a profoundly different way of thinking. Its starting point is not philosophical abstraction, but mitzvah— God’s call to action. Its core intellectual tool is interpretation—of the Bible, the Mishna and prior Rabbinic material. The Talmud’s ideas emerge as its guiding voice shifts between the legal and the literary, and as it pushes legal analysis outwards to related concepts, and upwards to greater levels of halakhic abstraction. The Talmud thus learns not only from the law’s content, but from its form--- its analogies, allusions and arrangement.

This chapter argues that its futile to approach the Talmud looking for systematic answers to classically “Greek” questions: What is beauty? What is truth? Or what is the Talmud’s “theory” of law or politics. The rabbis saw these as philosophy in the worst sense. Nothing more than human adumbrations that place man at the center yet fail to address life’s central question: How does God instruct us to live? Instead, the chapter shows how these “big questions” are anchored in the context of a specific mitzvah and the technical parameters of its obligations.

For example, the Talmud’s legal discussion about how many judges should sit on an arbitration panel, leads to a larger consideration of whether the role of a court is to secure social peace or to determine legal truth (b.Sanhedrin 6-7). The central issue of legal theory—whether a court makes law or simply declares pre-existing law—is hashed out through the details of an obscure sacrificial procedure. (Horayot). Which books are deemed part of the Biblical canon, is a discussion of which books are rescued from a building burning on Shabbat, or which scrolls transmit ritual impurity. (b.Shabbat 115 & m. Yadayim ch. 3-4). Whether truth is, as Kant argued, an absolute value, or whether it is subject to utilitarian calculus is a question of how one should greets a bride at her wedding ceremony (Ketubot 17a). What the Greeks pursued through speculative thought, the Rabbis read into and out of halakhah. But while these sugyot touch on philosophical questions, they remain fundamentally halakhah--- an implication the chapter explores in greater detail.