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