Originally published in Journal of Jewish Studies 45:1.
Basil F. Herring, Jewish Ethics and Halakhah for Our Time: Sources and Commentary, volume 2 (The Library of Jewish Law and Ethics, vol. XVII). Yeshiva University Press, New York, 1989. xxvi, 279 pp. $19.95.
Aaron Kirschenbaum, Equity in Jewish Law: Beyond Equity: Halakhic Aspirations in Jewish Civil Law (The Library of Jewish Law and Ethics, vol. XVIII). Yeshiva University Press, New York, 1991. btiii, 238 pp. $35.00.
Hanina Ben-Menahem, Judicial Deviation in Talmudical Law: Governed by Men, not by Rules (Jewish Law in Context, vol. I; Boston University School of Law, Publication no. 11). Harwood Academic Publishers, Chur, London, Paris, New York and Melbourne. 1991. xi, 220 pp. $52.00
Simcha Fishbane, The Method and Meaning of the Mishnah Berurah. Ktav, Hoboken, New Jersey, 1991. 183 pp. $ 19.95.
The first three books, as their titles imply, discuss attitudes adopted by traditional Halakhists in areas where the Halakhah, if allowed to stand on its own, so to speak, would result in an injustice being done. All three demonstrate that in order to cope with such situations the Halakhah provides the remedy by invoking extra-legal procedures which, then, become paradoxically part of the Halakhic process itself. The basic problem here is that, as in all legal systems, the Halakhah proceeds by the use of precedent and such use occasionally makes for hard law in individual cases. Neil S. Hecht observes in his Foreword to Ben-Menahem’s book: ‘Jewish law was extremely flexible and liberal in interpreting legal precedents and applying them to factual situations. As this seminal study conclusively demonstrates, when circumstances required it, judges were even willing to ignore precedents in order to do justice in particular cases.’ Important questions are raised, of course, once this aspect of the Halakhah is recognised, and they still await their solution. As Hecht concludes: ‘This type of research raises the necessity for additional analysis concerning the nature of acceptance of legal authority in Jewish law. We are hopeful that this volume will stimulate further research in this rich and important area of Jewish law.’
Herring’s book examines a number of present-day problems bordering on the relationship between the Halakhah and ethical standards. The title-headings of the chapters convey the issues: ‘Medical Practice, Research, and Self-Endangerment’; The Definition and Determination of Death’; ‘Organ Transplantation’; ‘Violence in Self-Defense and the Defense of Others’; ‘Child Custody’; ‘Truth and Deception in the Marketplace’. Herring’s method is to quote the rabbinic sources and their interpretation by the Halakhists in depth, demonstrating that the interpretation has often resulted—and was so intended—in decisions congenial not only to the bare law but also to ethics and common sense.
Kirschenbaum surveys the rabbinic principle of lifnim mi-shurat ha-din, ‘beyond the line of the (strict) law’, a principle which, as he shows, becomes on occasion part of the law itself so that, again paradoxically, it is the law that demands going beyond its letter where circumstances require it. One illustration can be given among the many quoted in Kirschenbaum’s very erudite study. Through the fault of neither the employer nor the employee, a community was obliged to dispense with the services of its Shohet. Rabbi Rapoport of Ostrog, Russia, stating explicitly that there was no law compelling the community to pay the salary the Shohet would have received, nevertheless ruled that he should be paid lifnim mi-shurat ha-din, ‘for he is a poor man with dependents’.
Ben-Menahem’s book shows that there are instances in the Talmud where extra-legal remedies are adopted in particular circumstances such as in the oft-quoted case of the porters (Bava Metzia 83a). ‘Some porters broke a barrel of wine belonging to Rabba bar bar Hanan. Thereupon he seized their garments; so they went and complained to Rav. “Return them their garments”, he ordered. “Is that the law?” he asked. “Yes”, he replied, “Thou shall walk in the way of the good.” Their garments having been returned, they said: “We are poor men, having worked all day, and are in need, are we to get nothing?” “Go and pay them”, he ordered. “Is that the law?” he asked. “Yes”, was the reply, “And the paths of the just shouldst thou keep.”’ Naturally the matter is more complicated than such a bare statement would suggest, and Ben-Menahem has no difficulty in quoting other rabbinic sources like the one in which it is stated that a judge, when rendering his decision, must never allow himself to take into consideration such things as a contestant’s poverty. This learned study examines the topic historically, showing among other things that the Babylonian Talmud often allows the judge a greater measure of flexibility than the Jerusalem Talmud.
The other three works quoted deal mainly with civil law. Fishbane shows how supra-legal material is introduced into a famous work on religious law, the Mishnah Berurah of Rabbi Israel Meir Kagan, famed moralist known as the Hafetz Hayyim (1838-1933). The Mishnah Berurah is a commentary to the standard code of Jewish law, the Shulhan ‘Arukh. Fishbane concentrates on a few sections of the Shulhan ‘Arukh on which the Mishnah Berurah comments. These sections deal mainly with the question of work done for a Jew by a non-Jew on the Sabbath. It is here that Fishbane is able to show that some of the Hafetz Hayyim’s observations are not legal formulations but of a more general kind owing much to his lofty religious stance and his social background. One would have thought that this is perfectly obvious to anyone who studies the Mishnah Berurah and it certainly seems odd to study such a late work, as Fishbane does, by means of the ‘new methodology for studying the Mishnah’. Even if this new methodology works when applied to the Mishnah, dubious in itself, it seems absurd to apply it to a work of commentary produced in the late nineteenth century even if it is called the Mishnah Berurah. And if the interest is in the social background, surely the passage in the Mishnah Berurah ought to have been studied in which the author castigates Jewish doctors for travelling on the Sabbath to heal non-Jewish patients (330 note 8)—a remark to which the editors apologetically add, with an eye on the censor, ‘This refers to India where the majority of the inhabitants still worship idols’!