In This Article Expand or collapse the "in this article" section Legal Circumventions in Rabbinic Law

  • Introduction
  • Nominalism in Rabbinic Jurisprudence
  • Legal Fictions
  • Relationship(s) between Intention, Action, and the Self
  • Roman Context for Understanding Rabbinic Circumventions

Jewish Studies Legal Circumventions in Rabbinic Law
by
Elana Stein Hain
  • LAST REVIEWED: 19 April 2024
  • LAST MODIFIED: 19 April 2024
  • DOI: 10.1093/obo/9780199840731-0247

Introduction

Rabbinic law is known for fine distinctions, what some call “hair-splitting” logic. While such logic leads to nuanced discussions about how to fulfill the Divine will, it also makes legal circumventions available. From the Latin circumvenīre, meaning to “come around,” circumventions are used to get around the implications of law. Ancient rabbinic literature, composed from the third to the seventh century CE in Roman Palestine and Sassanian Babylonia, contains many legal circumventions. Some are explicit rabbinic decrees, while others are implicit, such as exegesis that narrows or expands biblical injunctions. There is also a rabbinic term for legal circumvention: ha’aramah (literally, “subtlety” or “cunning”). Examples of ha’aramah sometimes resemble legal loopholing by changing aspects of a scenario to alter what law applies there (e.g., where a sale is forbidden, it is replaced by a gift and counter-gift); other examples involve structuring the proper intentions to render a certain activity permissible where it would otherwise be forbidden (e.g., moving livestock on a Festival day with the intention of preparing it as food is permitted, while moving livestock on a Festival day merely because it is in the wrong place is forbidden). Legal loopholing is often connected to legal fictions or presumptions: where people/courts rely on presumptions that are partially or fully known to be false. Indeed, fictions and loopholes have some jurisprudential thinking in common, but they are not interchangeable mechanisms. In Jewish law, some legal fictions are meant to circumvent law (e.g., where a lost husband who returns after his wife has remarried is told that the court does not believe his identity), while other fictions have nothing to do with circumventing law, but only creative abstract constructions of reality (e.g., viewing the wall of a sukkah as extending upward when there is a gap between the walls and the roof of the sukkah). Insofar as religious law may be presumed to require a sincere desire to perform the divine lawgiver’s commandments, loopholes and fictions seem out of place in religious law. This entry includes writings that offer legal, historical, and social logic for rabbinic circumventions generally, and also for particular circumventions. It also includes works that examine the broader jurisprudential issues that circumvention logic entails, including nominalism and the role of intention in Jewish law. While this entry reflects the logic of legal circumventions introduced in late antique rabbinic literature, it also includes material about the legal loopholes and fictions that developed after the close of the Talmud and are widely known and used in society today.

Overviews of Rabbinic Legal Circumventions: Studies of Ha’aramah

Most of the following studies take the rabbinic term ha’aramah as their point of departure. Each focuses either exclusively on what antique rabbinic literature labels ha’aramah or begins with that category and adds other rabbinic enactments that use strategies that mirror ha’aramah. Shilo 1982 and Shilo 1998 distinguish between loopholes and fictions, offer a taxonomy of rabbinic cases labeled ha’aramah, and discuss broadly the parameters of their use. Urbach 1984 discusses the use of loopholes as an aid for keeping the law in changing circumstances rather than undermining it. Silberg 1961 describes ha’aramah as the foundation for rabbinic decrees. Rozen 2002 surveys rabbinic legal dodges and likewise emphasizes the positive role played by loopholes. Stein Hain 2024 offers a thorough examination of how ha’aramah evolves in the context of the ancient world and understands it as a prism for rabbinic approaches to law generally. Feldman 2024 offers a study of the contemporary use of legal loopholes in observant Jewish life.

  • Feldman, Daniel. Letter and Spirit: Evasion, Avoidances and Workarounds in the Halakhic System. Jerusalem: Maggid Books, 2024.

    In this volume, Feldman examines legal circumventions used popularly in observant Jewish communities today. His study treats each circumvention in its own chapter, tracing its evolution and need in the Jewish community. He also offers parameters for proper and improper loopholes.

  • Rozen, Israel. “Ha’aramot hilkhatiot ke-takkanot tsibbur.” Tehumin 21 (2002): 209–222.

    This article surveys various rabbinic legal circumventions, including both cases described as ha’aramah in classical rabbinic literature as well as talmudic-era takkanot (rabbinic decrees) and post-Talmudic legal circumventions. Rozen argues that circumventions can be helpful to religious societies, and he distinguishes between various types and uses of circumvention.

  • Shilo, Shmuel. “Circumvention of the Law in Talmudic Literature.” Israel Law Review 17.2 (1982): 151–168.

    DOI: 10.1017/S0021223700007500

    In this article, Shilo distinguished between legal fictions and legal circumventions. Fictions are designed to make new scenarios fall within the ambit of an earlier law that never intended to include the new scenario. Circumventions, on the other hand, are designed to remove a scenario from falling within the ambit of a certain law. The latter is avoidance of law while the former is an extension of the application of law. Shilo repeats some of this same argument in Shilo 1998.

  • Shilo, Shmuel. “Evasion of the Law in the Talmud.” In Authority, Process and Method. Edited by Hanina Ben-Menahem and Neil S. Hecht, 171–229. Australia: Harwood Academic Publishers, 1998.

    This is a thorough examination of what rabbinic literature calls ha’aramah. Shilo offers a taxonomy of ha’aramah: one type involves loopholing and the other involves manipulation of intention. Shilo argues that the goals of each ha’aramah determine whether it is rabbinically approved. He argues that loophole-based ha’aramah is always legally valid even where forbidden, while subjective-intention ha’aramah is not. This article is foundational for understanding rabbinic loopholes.

  • Silberg, Moshe. Kakh Darko Shel Talmud (Principia Talmudica). Jerusalem: Mif’al ha-shikhpul, 1961.

    In chapter 3, former Israeli Supreme Court Justice Moshe Silberg offers jurisprudential logic for rabbinic legal dodges. Also, though the Talmud does not use the term ha’aramah about takkanot (rabbinic decrees) which employ the same strategies as ha’aramah, Silberg argues that takkanot were modeled on ha’aramah. (Solomon Zeitlin disagrees in “The Need for a New Code,” Jewish Quarterly Review, n.s., Vol. 52, no. 3, 1962, 203ff.)

  • Stein Hain, Elana. Circumventing the Law: Rabbinic Perspectives on Loopholes and Legal Integrity. Philadelphia: University of Pennsylvania Press, 2024.

    DOI: 10.2307/j.ctv37qqww1

    This work is a comprehensive study of the evolution of the rabbinic concept of ha’aramah from tannaitic through amoraic literature. It places rabbinic discussions of loopholes in the context of Greco-Roman jurisprudence and traces the ways that these discussions reflect rabbinic understanding of law and the self. It examines how and why rabbinic literature gets more conservative in its use of ha’aramah in later strata.

  • Urbach, Ephraim Elimelech. Ha-Halakhah, Mekoroteha ve-hitpathuta. Ramat Gan, Israel: Yad la-Talmud, 1984.

    In this Hebrew volume, in a section that deals with the ethics of law (pp. 166–170), Urbach discusses the phenomenon of ha’aramah. He argues that the rabbis advocate for the use of loopholes to help people continue to observe the law in a changing reality. This applies to laws such as those more fit for Temple times, as people were disincentivized from keeping them when they simply became financial burdens.

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