On Nitpicking, Pilpulistic Nonsense, and Hair-Splitting in the Law

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17 Responses

  1. micha says:

    I wonder, though, if his real problem was legal hairsplitting in halakhah, or the entire concept of using a legal process to structure religious norms.

    -micha

  2. Bob Miller says:

    A great article! Thanks, Rabbi Fischer!

    While many people talk about nitpickiness in Halacha, they nitpick about any matter that really concerns them, not only legal matters. Often, their objection to a finely detailed Halacha may be more basic; namely, that they don’t want lose any “personal freedom” by keeping their own thoughts and actions totally within Torah limits. Somehow, restrictions by peer groups, secular law, current fashions in everything, etc., seem less onerous to them.

  3. Micha Berger says:

    Case in point to my previous comment: Why do non-Orthodox Jews see heter iska as pointless hoop jumping? (Heter iska: A contract which sets up a partnership by which one partner puts money into the venture and in lieu of profits, takes back a fixed payment. This contract is often drawn up instead of a loan, as those payments can be large enough to cover what would have been interest on that loan — but is halachically permissable.) I have had numerous discussions where a non-Orthodox Jew tells me we “really” did away with the prohibition on usury, just as their movement modified X, Y or Z.

    The SEC has numerous similar laws, though. Contracts that in a broad sense appear identical in effect, but one is legal and the other is not. These two agreement — interest vs heter iska — are actualy far more different than many of the issues I’ve encountered (2nd-hand, I work for a “Wall Street firm”, but in technology, not law or compliance). Interest is what is provided by a corporate bond, heter iska is buying stock in a firm that guarantees dividends.

    So, why the objection?

    Because there is a basic paradigm gap. They can understand hair-splitting in the context of law. What they can’t accept is law in the context of religion. And I think this traces back directly to be products of Western Culture, which was shaped by Christianity and thus Paul’s divorcing of law from religion. (Removing the standards of religion from its anchor, thus allowing religion to preach nebulous values whose implementation reflects the practitioner more than the religion practiced.)

    -micha

  4. dr. bill says:

    Rules have boundaries; boundaries are often precisely defined.

    That said, as i understand the history of psak, great poskim are often driven by tradition and a good dose of intuition that some might ascribe to Siyata diShmayah. their decisions are rendered within the bounds of practiced halakha. major poskim, as opposed to talmudists, are rarely if ever called on issues of nitpicking. quite the contrary, their breadth is often attacked as bringing them outside the arba amot of halakha. (I am thinking of RMF and RSZA and RCOG and RDTH and RYES and the Chatam Sofer or any of the responsa from the times of the geonim and rishonim.)

    Does the halakha sometimes force a position one would like to avoid, for sure. that is where we submit to the halakha; but rarely if ever is this the result of nit-picking.

    OTOH, those who are text-bound, lacking the force of tradition and the blessing of a good intuitive sense, are often so accused. to be fair, one man’s yosher may strike the other as nitpicking. but my heart is with the guy who moved west on a verbal agreement, those reducing estate taxes and punishing speeders.

  5. Mike S. says:

    Also worth pointing out that the Talmud often discusses somewhat unlikely cases because they lie at the boundary between two areas, and so the discussion clarifies the boundary.

    But there is a fundamental difference that is, perhaps, what Micha is driving at. No one would consider detailed study of the tax code or contract law to be an essential component of being a good American; only a practitioner of those areas of law would study them in detail. We do consider studying the details of halacha central to being a good Jew, and at least as important way of understanding God as contemplating theology.

  6. Steve Brizel says:

    When one compares the many Halachos in Seder Nezikin, and especially BK, BM and BB, with what purport to be their secular counterparts, one finds that the Chachmei HaMesorah were debating and defining these issues thousands of years before the common law and the statutes enacted on a state or federal level in the US enunciated them.

  7. Raphael Kaufman says:

    Both the Federal Code and, l’havdil, Shas and S.A. are global compendiums of law that apply to their respective constituants. The purpose of “nitpicking”, both in secular law and in halacha, is to obtain clarity in the law as relates to a specific case. No one disagrees that this is a functional and necessary application.

  8. Tzurah says:

    Along the same lines as Micha and Mike:

    One of the partners I report to told me once that the key to being a good lawyer is having a level of care regarding your work that, applied to everyday life, would be considered obsessive, pathologically nitpicky and paranoid. My guess is that your name-partner had a similar distinction in mind.

    Nevertheless, perhaps having this obsessive level of care in our relationship with G-d, the development of our personality and the fostering of a just society is precisely what G-d had in mind for the Jews.

  9. Ori says:

    Steve Brizel: When one compares the many Halachos in Seder Nezikin, and especially BK, BM and BB, with what purport to be their secular counterparts, one finds that the Chachmei HaMesorah were debating and defining these issues thousands of years before the common law

    Ori: That’s because common law only got written up later. Any sufficiently complicated human society needs agreed-upon answers to those questions.

  10. Shmuel says:

    Don’t forget that the federal tax law requires placing a legend on certain bonds relating to the nature of the bonds. This law requires that certain bonds have the legend on them even though the legend isn’t true when printed on those bonds. Another absurd formalism.

  11. cohen y says:

    dr. bill

    RDTH RYES ?

    [YA – RDTH = R Dovid Tzvi Hoffman
    RYES = R Yitzchok Elchonon Spector ]

  12. lawrence kaplan says:

    Steve Brizel: A more relevant comparison would be Roman Law.

  13. shmuel says:

    I recently had a meeting in y study with my estate attorney, a non-observant Jew with a smattering of knowledge. He was impressed by the sfarim but couldnt read the titles. Among them were some English language titles as well. He asked me about one called “Sabbath and Electricity”. I pointed out to heim my gramma phone (I am a physician) sitting on my desk as and explained that it was a product of the research that resulted in books like the one that caught his attention. He asked how the phone works and after I explained the concepts of melacha and gramma , he asked “but isnt that just a loophole?” I explained that it is in fact a loophole no different than the tax avoidance options we had just been discussing. I explained that by staying within the letter of the law I was demonstrating my fealty o the spirit of the law as well which is what makes me a “good Jew” no different than staying within the letter of the makes me a “good tax paying law abiding citizen” . I think he got it.

  14. Barzilai says:

    The problem arises when people don’t understand the difference between a ha’arama and a kula. You can free your produce from the laws of teruma by bringing them in through the skylight; you can have your coffee maker timer set for Shabbos mornining; you can (according to many, many poskim) sell your land to a non-Jew before Shevi’is and your dog to a non-Jew for fixing just like you sell your chametz before Pesach. But if you aren’t sensitive to the spirit of the law, you’ll end up without tzitzis, without maaser, without hashbasas chametz, without shevi’is, without bechora, with your coffee maker perking away Saturday morning, with no problem with sirus of animals, and the list goes on and on. What an ugly and arid life you can organize for yourself when all you care about is what’s legally defensible.

  15. dr. bill says:

    Barzilai and Shmuel, All your examples all make the point about the spirit versus technical parameters of the law. While even the law has multiple viewpoints, using loopholes in spite of their ostensible violation of the law’s spirit is yet more debated. Often arguments about such matters are more spirited, (mean-spirited some might say.) (BTW, the rav ztl and other poskim questioned one of your suggestions, raising halakhic objections. despite a coffee addiction, we do not brew on shabbat morning!)

    As the rav said, halakha is a floor. Loopholes typically allow you to live in the basement without technically violating the halakha. A posek (who shares your weltanschauung) needs to opine if that is acceptable, advisable, or perhaps even preferred.

    if you look at the mega-halakhic issues of our time: secular education, zionism, geirut, electronics on shabbat, etc. it would not be unfair to assume that the positions taken, while often expressed in halakhic language, reflects a divergence on matters of hashkafa.

  16. Leon Zacharowicz MD says:

    I don’t conceptualize a gramma phone as a loophole. The use of gramma is sanctioned in cases of necessity such as this doctor needing to be able to communicate. The law has built-in situations wherein one can use such remedies.

  17. Steve Brizel says:

    Larry Kaplan-Roman law, except for those portions of the same which have been incorporated into some aspects of the common or civil law, is a subject of inquiry today for historians of the downfall of the Roman Republic and its attentuated sense of right and wrong and the rise and fall of the Roman Empire. I stand by my comment that one cannot compare the sophisticated level of analysis in Seder Nezikin, and especially BK, BM and BB, with the common law, which has taken thousands of years to even approach concepts that were taken as a given in Seder Nezikin.

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