Title: Letter and Spirit: Evasion, Avoidance and Workarounds in the Halakhic System
By: Rabbi Daniel Z. Feldman
Maggid/YU Press
Loopholes, creative ways to get around religious restrictions, often breed cynicism. It is due to the existence of such loopholes that there emerged the cynical statement, “Where there is a rabbinic will, there is a halachic way.” However, this attitude fails to account for the rabbinic debates over the many so-called loopholes that reflect great concern for following the spirit of the law and offer guideposts for when such mechanisms are appropriate. Even the term “loophole” is loaded with judgment and negative connotations. Rather than cynically saying that the rabbis are clever at avoiding the law, we should ask what possible justification these holy people who dedicate their lives to religious law find for sidestepping the divine law.
In a sweeping study titled Letter and Spirit: Evasion, Avoidance and Workarounds in the Halakhic System, my good friend Rabbi Daniel Z. Feldman – rosh yeshiva and sgan rosh kollel at Yeshiva University and rabbi of Congregation Ohr Saadya in Teaneck – examines the concept of halachic loopholes in general as well as specific examples. We are all familiar with the difference between tax evasion and tax avoidance. Evasion involves illegal non-payment of an obligation while avoidance uses legal means to avoid the obligation. Rabbi Feldman suggests that this model fits fairly well with determining the viability of halachic loopholes. When thinking about a loophole, we can ask whether the actions taken are legitimate or artificial. Additionally, we must determine whether the actions account for the “spirit” of the law. Believing Jews strive to fulfill both the technical requirements and the general intent of the Torah. If a loophole passes both of these tests, it might be considered halachic avoidance rather than evasion.
Rabbi Feldman attempts to reduce the evaluation of a proposed loophole to four questions: 1) Does the action fulfill the letter of the law? 2) Does it fit into the spirit of the law? 3) Is the action sincere? 4) Is there a sufficient need for this action? If a proposal successfully navigates these four questions, it might be accepted. Of course, these questions rarely result in straightforward answers. However, they offer a framework for evaluating the viability of a proposed loophole.
Consider the “heter iska” which restructures loans into partnerships and investments to avoid the prohibition against paying interest. 1) On a technical level, this arrangement works because it is not a loan. 2) The spirit of the law is to allow for free, charitable loans, which are not the subject of typical modern loans. 3) The paperwork guarantees that this sincerely is a partnership rather than a loan. 4) There is a great need for this arrangement because in a modern economy, it is almost impossible to function without some form of interest-bearing loans. The Torah wants to ensure that poor people have access to funds. The average person who borrows money to buy a house or car is not in need of charity. Rather, the normal way today to make such purchases is through a loan, which the lender provides as an investment. Since the lender treats this like an investment, we can structure it accordingly rather than as a loan. Therefore, this “loophole” easily passes the test of a viable halachic solution and even helps us better understand the spirit of the law – which is ensuring that charitable loans are available for those who need them.
Rabbi Feldman applies this same approach to evaluating the sale of chametz for Pesach, the sale of Israeli land for Shemittah, the use of a Prozbol arrangement to retain loans during Shemittah, and the “half-male document” and halachic will which give daughters a portion of inheritance along with the sons.
In all these studies, Rabbi Feldman methodically surveys the halachic literature with encyclopedic breadth. As an experienced maggid shiur (Talmud instructor), Rabbi Feldman focuses on the conceptual elements of the discussion and emphasizes the more prominent authorities. As a researcher, he finds incredible sources with important views, such as a 1924 Polish rabbinical journal with a proposal for a general “heter iska” by a great-grandson of R. Akiva Eiger, which generated discussion among rabbinic leaders in the next issue. The combination of detailed sources and conceptual explanations makes this book a goldmine for anyone looking for material for their own shiurim.
In a fascinating appendix, the author engages in a deep dive into the concept of the “Pintele Yid,” by which justification Rambam says a court sometimes may force a husband to divorce his wife. Even though a coerced divorce is invalid, deep down the husband wants to do the right thing and therefore is not considered truly coerced. What is the Rambam’s source? How far can this be taken? Rabbi Feldman surveys and summarizes the Acharonim on this fascinating subject.
In a particularly enlightening chapter, Rabbi Feldman addresses the most common halachic prenuptial agreement in use today, which was drafted by Rav Zalman Nechemiah Goldberg and Rav Mordechai Willig. Already in Medieval times, rabbinic authorities used strong methods of persuasion to convince a husband to divorce his wife, if a religious court ruled it appropriate. Depending on the circumstances, these methods can include shunning and even physical beating. With the effective demise of Jewish communal power, there is a need to find new ways to convince a recalcitrant husband to follow the religious court’s order to divorce his wife. Rabbi Feldman discusses a number of proposals that have been offered by prominent rabbis and explains how this halachic prenuptial agreement satisfies the letter of the law. Given that the marriage is beyond the hope of reconciliation, the spirit of the law also demands a divorce. And since the agreement is legally enforceable, it is a sincere solution.
Cynicism is corrosive. It affects your faith in leaders, in friends, in family and even in G-d. A more sober look at the so-called halachic loopholes shows that rabbis are deeply concerned with following the divine will. When societal circumstances complicate matters, we find halachic solutions that serve to advance the Torah’s goals. Rabbi Feldman’s Letter and Spirit helps open up hearts to the genuine effort to maintain Torah values in a complex world. It offers a formula for evaluating so-called loopholes and provides a window into the vibrant rabbinic discussion and debate about specific proposals, demonstrating the sincere rabbinic desire to do the right thing.
