Title: Letter and Spirit: Evasions, Avoidance, and Workarounds in the Halakhic System
By: Rabbi Daniel Feldman
Yeshiva University Press/Maggid
Title: Circumventing the Law
By: Dr. Elana Stein Hain
University of Pennsylvania Press
The Torah commands us to rid our homes of leaven products before Pesach, and our Sages delineated two primary mechanisms for carrying that out: physical removal and destruction of chametz, on one hand, and the disavowal and nullification of chametz, on the other. Nowadays, however, there is a third mechanism: the sale of chametz to a non-Jew. The chametz remains where it is, and in almost all cases it remains untouched for the duration of Pesach, whereupon it is bought back from the non-Jew.
The sale of chametz to avoid the prohibition of owning chametz on Pesach, and similar mechanisms, produce both internal discomfort and external critique. There are two basic types of concern. First, there is a technical concern: is such a sale really a sale? If we know in advance that the non-Jewish buyer will sell the chametz back to us as soon as Pesach ends, that he will never come to our homes to claim it, that he has no real access to it – to what extent is it really his? This aspect of the sale has generated discomfort among poskim from the time it became a pervasive practice in the early modern era, and it continues even today.
The second type of concern relates to a presumed goal or purpose of the commandments. G-d commanded us, “Rid your homes of chametz” (Shemot 12:15). Maneuvering around the formal and technical requirements of the law may satisfy the letter of the law, but what of its spirit? This concern is heightened in cases where the commandment in question has an explicitly charitable element. The heter iska, which circumvents the Torah’s prohibition on charging interest by treating part of all of the exchanged funds as an investment and not a loan, may succeed on technical grounds, but is this what the Torah wants? Is this what G-d wants? When ownership of land in Israel is transferred to a non-Jew so that Jews can continue to cultivate it during the shemittah year, notwithstanding the Torah’s commandment to leave the land fallow and free for any and all to come take its produce during that year, are we not subverting the Torah’s goals, even if we satisfy its technical requirements?
Our historical detractors, often unfairly, have accused us of being overly legalistic, of losing sight of the forest for the trees, even of trying to deceive G-d. This is a central critique of the Christian Testament, and especially of Paul’s epistles. This continues even today; just last week, certain dark corners of social media detected nefarious “Talmudic” thinking in TikTok videos that demonstrate the use of a kli sheni to prepare coffee on Shabbat or extol the virtues of Shabbos lamps.
Internet trolls notwithstanding, critique of those who obey the rules of the Torah but fail to internalize its values appears throughout Rabbinic literature, in the books of the Nevi’im, and even in the Torah itself. Is this not the sort of behavior that Ramban famously described as characterizing a “naval birshut haTorah” – “a scoundrel within the bounds of the Torah,” who fails to live up to the Torah’s overarching commandment to “be holy”? So how do we understand the sorts of halachic workarounds with which we are all familiar?
Halachic literature, beginning with the Mishna, relates to many different examples of “ha’aramah” – the term for mechanisms designed to sidestep halachic obligations or requirements – but is neither consistently pro or consistently against such practices. In some cases, ha’aramah is permitted and even promoted. In other cases, it is rejected outright. Of course, the bulk of the literature concerns cases where the practice of ha’aramah is debated and disputed, permitted in specific situations, or undergoes refinements, sometimes over the course of centuries, to eliminate all concerns.
Two recent books, which in fact appeared the same week, are devoted entirely to the phenomenon of ha’aramah: Rabbi Daniel Feldman’s Letter and Spirit: Evasions, Avoidance, and Workarounds in the Halakhic System (YU/Maggid, 2024) and Dr. Elana Stein Hain’s Circumventing the Law (University of Pennsylvania Press, 2024). Both authors are serious scholars of halacha, and both attempt to abstract certain principles that can explain why the Sages, ancient and modern alike, reject some workarounds, accept others, and fall somewhere in between in still other cases. Both books seek to develop a vocabulary to address the subtleties and nuances of different types of legal mechanisms, defining and describing evasions, avoidances, legal fictions, and straw men, and differentiating mechanisms that change the law from mechanisms that change the facts of the case. Both bring other legal systems and theories to bear on these discussions.
Despite these similarities, the two works complement one another more than anything else. Dr. Stein Hain’s book is a work of Talmud scholarship, whereas Rabbi Feldman’s is a study of contemporary halachic practice. Dr. Stein Hain’s book is organized chronologically and by source material, beginning with the Mishna and Tosefta, proceeding to the Yerushalmi and Bavli, and concluding with an attempt to theorize a broader perspective on the Sages’ attitude toward ha’aramah and a brief survey of how this theory plays out in later halachic developments. Rabbi Feldman’s book begins by offering a rubric for the study of ha’aramah, and then each chapter contains a detailed discussion of a familiar mechanism – such as the aforementioned sale of chametz, sale of land during shemittah, and heter iska.
Dr. Stein Hain’s book must be “learned”: it consists primarily of the presentation of passages from rabbinic works and the interpretation and discussion of those works. Many of these passages come from areas of halacha that most readers would find unfamiliar, especially those from the Order of Zera’im, which concerns agricultural mitzvot. Her analysis is guided both by the traditional commentators and by modern Talmud scholarship. She includes an important chapter on how Roman law relates to instances of disparity between the letter and the “will” of the law, demonstrates how our Sages differ from the Romans, and theorizes the attitudinal differences.
Those who have read Rabbi Feldman’s earlier books (or with the works of his father, Rabbi David Feldman, zichrono livracha) would not be surprised to learn that this one is jam-packed with rabbinic sources, with a clear penchant for modern and contemporary works, works of responsa, and relatively obscure works. He does not present original formulations, aside from the occasional quotation in translation; rather, he summarizes an enormous quantity of material and presents it in a cogent and readable format. He deftly uses examples from American legal discourse to explain certain key differences.
As mentioned, an early chapter in Rabbi Feldman’s book develops a rubric for analyzing ha’aramah, and it is worth delving a bit further into this. Rabbi Feldman posits that every suggested ha’aramah must be evaluated in four ways. First, does the proposal conform to the letter of halacha? Second, does it deviate from the spirit of halacha? These two elements are fairly straightforward.
The third element is a bit trickier: does the proposed mechanism accomplish what it sets out to accomplish? Meaning, does a mechanism that purports to regard an exchange of money as an investment rather than a loan in fact do so, or do the parties involved still think of the exchange as an interest-bearing loan?
The fourth and final question addresses need: How necessary is it to find a halachic workaround in a particular instance? What are the stakes? Arguably – and both authors note this in different forms, though Dr. Stein Hain makes this argument more explicitly – the question of “need” and the question of the “spirit of the law” can be viewed on a continuum. That is, a ha’aramah might subvert the spirit of the particular mitzvah in question but uphold the broader goals of the Torah. For instance, a prozbul, with circumvents the remission of loans at the end of the shemittah year, may undermine the immediate goals of the laws of shemittah and yet support the Torah’s overall goals of ensuring that those with means are willing to share their wealth with the poor and needy.
For her part, Dr. Stein Hain theorizes how ha’aramah became an important element of the rabbinic toolbox due to constraints on the halachic legislative process and the need to address emergent circumstances. The G-d-given Torah, unlike Roman or American law, cannot be re-legislated. So what happens when the spirit of Torah law can no longer be fulfilled? For instance, while the Mikdash stood, selling a share or limb of a firstborn animal to a non-Jew to prevent the animal from being sanctified would be a clear subversion of the mitzvah to offer firstborn animals. But what about when the Mikdash no longer stands? In this case, the ha’aramah may be considered. The letter and spirit have already diverged, so while the letter itself will not be abolished, the desire to change the facts of the case so that the letter does not apply becomes more understandable. In this sense, Dr. Stein Hain contends, the Sages acted more like lawyers – advocating for the Jewish people – and less like judges.
It is worth mentioning another recently-published work on the theme of ha’aramah – the second chapter of Rabbi Aharon Lichtenstein’s Values in Halakha (Maggid, 2023) – is devoted to “Circumventions and Adaptations.” Characteristically, a major concern of his is the potential hubris of claiming to understand the true purpose or spirit of any G-d-given commandment, even while acknowledging the necessity of doing just that to maintain the coordination of the letter and values of halacha.
I greatly enjoyed studying all of these works, and I especially enjoyed reading them together. Each offers something important that the others do not, and each is an outstanding example of a different subgenre within contemporary halachic/Talmudic literature. As you prepare to sell your chametz before Pesach, consider buying at least one of these books, which will undoubtedly enhance your appreciation of how mechanisms like the sale are important elements of a dynamic halachic system.
