In the past few years, the traditional selling of hametz ̣ to a non-Jew before Passover has been having what I can only describe as “a moment.” As more rabbis turn the sale itself into a ritual experience to which congregants are invited, our most well-known loophole is coming into its own.
It is no surprise, then, that Dr. Elana Stein Hain’s introduction to her book Circumventing the Law contains an anecdote about her childhood concern surrounding the sale of hametz, foreshadowing the tension at the heart of the book. If the sale is not meant to be real, then we are cheating. And if it is meant to be real, then why do we not just get rid of our hametz ̣ ? As she puts it, “how legitimate is a sale that implicitly anticipates its countersale?” Stein Hain does not answer the question, except insofar as the entire book is an answer to the question of what it means for a loophole to be real and still be a loophole.
But the sale of hametz ̣ is her second opening to the book; the first comes when she invites her readers to think about what exactly a halakhic loophole is. Right at the beginning, Stein Hain introduces us to the wonderful portmanteau word avoision to describe experiences that seem to toe the line between legal and illegal attempts to get around the law. To legally get around the law is to avoid it, to illegally circumvent it is to evade it, and the fuzzy middle ground that does not seem to come down on one side or the other? Avoision, of course.
For Stein Hain, evasion, avoision, and avoidance are all captured in the Hebrew term ha’aramah, which means both wisdom and cunning. By bringing prudent avoidance and tricky evasion to bear on the same word, Stein Hain brings us back again to the animating question: Having defined ha’aramah, why does Jewish law allow it to work? Why do we accept these workarounds as real?
Stein Hain constructs a fascinating chronological narrative of the history of loopholes in rabbinic literature, tying it—along the way—to theological values, historical context, and contemporary legal theory. Some of her observations are particularly illuminating; when she explains how Roman legal theorists saw themselves more as jurists responsible for deciding what the law is, in contrast to the rabbis who saw themselves as lawyers advocating for what is and is not within the boundaries of the law, I felt as though she were saying clearly something I had only dimly sensed before. Of course a group of people who saw the law itself as reflecting the Divine will would relate differently to changing the law than a group that saw the law as an instrument of their own will.
Stein Hain does her best in this book to write for an audience that is both academic and lay and, overall, succeeds in her project of writing a book with academic structure that is still accessible in its use of language. To the lay reader unfamiliar with how academic Jewish literature is written, but familiar with rabbinic literature and Jewish practice, Circumventing the Law is approachable in terms of language without modifying the structures of academic literature.
Despite the fact that most of the examples she discusses are of situations completely foreign to contemporary Jewish life, this book deftly navigates the relationship between what rabbinic literature says and how much we can know about the mindset of those making the decisions. Stein Hain is extremely careful to speculate and wonder rather than to claim, but the book succeeds in making the question of avoiding (or possibly avoising) paying the 25 percent markup for redeeming ma’aser sheni (the second tithe) a compelling question across multiple chapters precisely because the question itself is used as a lens through which to see the macrocosm of rabbinic values and perspectives across centuries.
Stein Hain observes that the attitudes towards ha’aramah in the Yerushalmi and Bavli are shaped, albeit never exclusively, by Roman and Sassanian culture and the importance which each of those cultures assigns to an individual’s intention and internal thoughts. When reading this discussion, I found myself hoping to see a similar conversation about contemporary legal theory and modern halakhic use of loopholes. What I read instead was a fascinating entry into one of my favorite rabbinic conversations: Is halakhah a formal system or a reflection of reality? What Stein Hain offers, through the lens of ha’aramah, is a short but deeply satisfying overview of legal theories that explains why loopholes are not merely present, but integral to the halakhic system. Appropriately used, ha’aramah allows for a legal system that is morally coherent—meaning that it is consistent in its values and does not either throw away a good law because of some exceptional cases or refuse to find ways around those cases. And ha’aramah offers a flexibility that allows us to remain in relationship with Jewish law when a strict and unyielding interpretation might break a person’s commitment. What Stein Hain articulates in this book is a system for thinking about not simply ha’aramah, but the entirety of halakhah. Ha’aramah is simply the place where the rubber of halakhic values meets the road of legal application to individual situations.
As much as I enjoyed her analyses of rabbinic law in context and conversation with the times and circumstances in which it was developed, I was disappointed not to see her offer the same exploration for modern times; I wanted her to put modern legal theory in conversation with current halakhic approaches to ha’aramah, but she focuses solely on how contemporary legal theory illuminates the logic of the talmudic rabbis.
In her final paragraph, Stein Hain says that “the rabbinic establishment saw (and continues to see) loopholes as affording the possibility of holding values and authorities in tension for the good of their two most precious clients—the law itself (perhaps as a proxy for God) and Jews attempting to observe the law.” As one of the latter, I wished that she had offered space for examples of the loopholes that she sees used in contemporary halakhah.
This book is an invitation, especially to those of us whose jobs and callings require ongoing engagement with the process of halakhah, to reflect on the values that get expressed in every answer we research and every halakhic choice we make. Where Stein Hain leaves off is precisely where the interesting contemporary halakhic questions begin.