The Truth about Jewish Law: How Halachah is not the exploitation of loopholes and exercises in absurity

This post is a response to the following article. I recommend that one reads it first to understand the proper context.

https://substack.com/home/post/p-199563442

There is a slander that I have seen not only amongst non-Jewish circles but also amongst actual Jews. However, this displays a complete ignorance of how Jewish law works. The attack usually goes as follows. Jews out-lawyer their G-d! They have Shabbos ovens and put a little string up and think that tricks Him! Then the well-meaning person of the land comes and says that Jews hold that loopholes were placed there by the Almighty. Both are totally ignorant. I was recently confronted by Mr. Drifting's essay on the Jew problem of Israel. I shall not address the various poor arguments, from thinking that Chabad Messianism is anything other than a heresy, to the horrible leaps of logic concerning crypto. Instead I shall focus upon his abuse of Halachah to demonstrate that he has no idea what he is talking about.

Mr. Drifting utilizes an effective rhetorical ladder argument where he advances, as he views it, the abuses of Halachah. He starts with the absurd and ends with the shocking before gloriously declaring that this is why Jews love crypto and flash loans. I do not have the space in this essay to address the claim that Halachah serves primarily a sociological function of signaling and in-group cohesion, as anyone can see given the length. Instead my goal is to demolish the idea that Jewish law and the Rabbis are a bunch of loophole searchers attempting to trick the Almighty and ignoring the spirit of the law.

The first case that he raises is from the first daf of Beitzah. This is a dispute over whether you may eat an egg that was laid on the first day of the festival. Mr. Drifting fails entirely to ask the question, why are the Rabbis bothering to argue about this? Instead he declares it a triviality. Likewise the second case, which I shall address at the same time, is the same illustration, which Mr. Drifting is accusing the Rabbis of engaging in trivialities. That is the dispute on whether an elephant can serve as the wall of a sukkah and where a sukkah can be built.

Let us first do what he did not and ask, hold on, how does the Talmud like to reason? Mr. Drifting is unfamiliar with the Talmudic method and I do not blame him for this. The Talmudic method, which does bear similarities to common law, is not one that is taught in any schools, and because Jews tend to be not evangelical we likewise aren't holding Talmud classes and begging everyone to come. This is not to say it is hidden. Any non-Jew may take up Daf Yomi and avail himself of literally hundreds of thousands, if not millions, of hours of lectures upon every page of the Talmud. These lectures stretch the spectrum of being for novices to experts of the text. In addition, Artscroll Talmuds are such high quality that no one need learn Aramaic to understand the basics. The wall exists but it is not absolute. It more exists to keep the disinterested out than to keep non-Jews as a whole outside of the garden of Torah. The Talmud requires commitment.

To answer the question we only need look at the first case. In the text it states the principle that it is discussing, nolad. Rather than stating the principle of nolad within Jewish law, it states the case of the egg, and elsewhere, the case of the ripened fruit. This is contrasted with the principle of designation, that is, an item must be designated for the permissible Shabbos or holiday use before sundown. The example of this is not chopping wood from beams that broke on the Festival. This is because they were not designated for the purposes of firewood before the Holiday, rather, for building. This is why the Talmud opens with asking what the chicken was designated as. Because designation is of vital importance. This principle is assumed rather than demonstrated, because this is how the Talmud operates. It is meant to be learned all at once, so to speak, such that one will require a teacher to explain the significance of designation and nolad to him. It also illustrates the inductive method of the Talmud. The Talmud will utilize a case to declare a principle then begin hurling cases and teachings at it until it breaks.

An excellent illustration of this is the elephant. The Rabbis want a definition of the word wall. So one Rabbi goes, okay, an elephant. It then gets argued about. Not because anyone thinks that someone will use an elephant as the wall, but rather because they are interrogating the definition of wall how the Talmud always does. They throw cases at it until it breaks. The break here is if a barrier is likely to up and wander away then it isn't a wall. If it is stable, three cubits wide, and ten handbreadths high, then it is legally a wall.

Of course, if this is silly then is the American court system silly? Legally, tomatoes are vegetables. Now, the question of whether a tomato is a vegetable or a fruit sounds very silly; however, in Nix v. Hedden this question, utilized as trivia, went to the Supreme Court. The argument was that because tomatoes are fruits the tariff need not be paid. The Supreme Court, far from the sages arguing in the theoretical, is the practical highest court in the land, and dedicated the same machinery to Nix v. Hedden that they did to Roe v. Wade. Yet I have never seen anyone call them silly for doing so. Legal systems require clear definitions with the edges tested. And the ruling was that in ordinary commercial usage a tomato is treated as a vegetable, therefore it is a vegetable. They ruled against the science to classify a tomato as a fruit. Any rule-based system requires these sorts of cases, and to declare that the Talmud using the case of the egg and the beam to define nolad and designation, and the case of the elephant to define a law, is ridiculous, is to misunderstand both the Talmudic method and the legal system as a whole.

There is another example of the Talmud being observed to state a ridiculous case, that is, if a priest is sealed in a box, and the box flies over a grave, is he rendered ritually impure? This is obviously never going to happen. Can anyone imagine being locked in a metal tube that is sealed such that even at high altitudes above Mount Everest we can breathe normally and comfortably? Obviously the Rabbis were speaking crazy. Now I am not saying that all of the 'ridiculous' cases will eventually become practical; rather, this is an illustration that the case-pushing epistemology of the Talmud sometimes results in practical rulings.

The next case is that of the Eruv, which in my view is the most misunderstood law in Halachah by the ignorant. First we must explain that Jewish law actually has two different categories of law. The first is called d'oraisa and refers to laws which come from the Torah or were passed orally from Sinai. On the other hand, d'rabbanan are laws which were passed by the Rabbis either as a barrier to protect the d'oraisa or as their own standalone laws. For example, it is forbidden for a Jew to handle a match on Shabbos. This isn't in the Torah, rather it is from the Rabbis that said if you cannot touch a match then you will never come to kindle a fire! Thus placing a fence around the law and rendering it easier to hold by. But how does this make it easier?

It can be illustrated by the following parable. There is a boy who loves good food. His parents are very concerned when a Michelin star unkosher restaurant opens in their town. His father comes and says, "If I find you eating at that restaurant I will severely punish you." On the other hand the mother comes and says, "If I find you on that street I will severely punish you." Which is easier to keep? The mother is, for if the boy is on the street and smells the good food then his desires shall overcome him and he will eat and thus sin. This is not to discount the father, for the mother's fence is guarding the ruling of the father, rather that the Rabbis went and made the Torah easier to follow. Far from the Rabbis attempting to build a system that is as hard as possible, they sought to make it easier and more accessible.

But which category is the Eruv in? The Talmud utilizes the case of the camp in the wilderness as its definition of public. They then utilize the tent itself as the definition of private. This means that public is an area which is inhabited by 600k folks. Included in this would be highways. A private domain is a domain that is surrounded on all sides by walls. (Back to that pesky what is a wall argument and what is enclosed.) The Rabbis declared that doorways count as being closed. Why? Are we going to say that when one opens the door to head to work, suddenly any man may rush into his house, watch his television, shower in his bathroom, and place his dirty feet upon the coffee table? This is an absurdity! Of course a man's house remains private. Even if he left the door open all day, if someone entered and made a sandwich, they would be a trespasser. As such, the Rabbis permitted even open gates. And because houses in the time of the Talmud often included courtyards, and these courtyards were considered private, they are included in the definition of private. This leads to the d'oraisa version of the Eruv.

Let us suppose that there are two houses on one courtyard. They share the courtyard; however, other men may not randomly enter and decide to start reading a newspaper. It is a private courtyard. The question is in which category it is: public or private? It is clear that if both families may enter the courtyard, but not each other's house, then it isn't private. But it doesn't contain 600k people, so by the Biblical definition the Talmud uses, it isn't public. Rather, it is a third category called a karmelis. The d'oraisa eruv, as I am calling it, serves to take a shared courtyard, which would be private except that two or more families share it, and transforms it into a fully private courtyard. How so, and how is this not trickery?

Let us investigate the spirit of the law. The spirit is that a domain which is occupied by the congregation, which is 600k as seen in Numbers, cannot be carried in. Now, if we go by the spirit of the law, surely one could carry there? But yet the spirit of the private domain is that only the owners can enter and the ownership is identical. By the spirit of both laws, a karmelis is neither. So the Rabbis looked at the spirit and said, "This domain that we the Rabbis have forbidden, you may transform it into a private domain." How so? By joining the domains. The way this is achieved, because Jewish law loves actualization for reasons that I do not have time to get into, is through a meal being placed in a certain spot, contributed to by every household of the courtyard, joining the domains. This means that both of the families may legally wander around the other's house. Functionally, this rarely happens, but legally, one cannot expel them for trespassing. Instead it would be more like a breach of privacy, which is a separate principle. More similar to a father breaking into his daughter's room. If the daughter shrieked that this was her room, and thus he should knock, who is right? The father points out that he pays the mortgage. This is true; legally, the room is his. However, there is the other principle, that of privacy. The daughter is right, and the father should knock. Thus, even though families don't functionally wander around each other's house, they legally can, and indeed the food is accessible to the entire courtyard. This leads to the law that the food cannot be placed in the same place as a corpse; otherwise, a Cohen couldn't access it, which means that the domains have not been legally joined.

But this is not the example which Mr. Drifting is bringing up. Here I must be honest and grant that he is correct. The Manhattan eruv is an absurdity, and I'd rather slice my own hand off than utilize it. It is completely unkosher, and I think it must be torn down. The astute reader will have already realized why. Manhattan hosts over 600k people; therefore it is a d'oraisa. And the eruv can only work upon a karmelis, a shared but non-public domain, and not against a public domain. This means that any Jew that carries in Manhattan, for every four cubits, needs to be dragged on top of the Empire State building after Shabbos and hurled off. But I am a Chazzon Isher. I am aware this is a matter of dispute, but personally, I think those poskim that permit it are justifying the common practice. I don't recall the Talmud qualifying the 600k folks to be Jews. But I would point out that the Rabbis that do hold by it argue that Manhattan is a karmelis. None of them argue that the Eruv suddenly works in a public domain. However, Chazzon Ishers such as myself, and most Chassidim that I know, all agree that this is no eruv, not because the Eruv suddenly doesn't work in a karmelis, but because it is a public domain.

So, far from going against the spirit, the Rabbis instead asked what the spirit is and discovered a third position, which was in the spirit of neither. They then banned carrying in this third place as a barrier against sinning. But because they forbade it, they can permit it in any way that they desire. Given that they said no, they may say unless one wears a purple hat, and it would not be against the spirit of the law at all. The purple hat does not work at all in a public domain! The spirit of the law is completely intact. This is the exact opposite of a loophole! Thus, the Eruv is both completely reasonable and not a good example for his crypto ramblings. If one would argue that the laws of the Eruv are difficult, this is true, but this is ignorant of the question: what does the common Orthodox Jew have to know to observe it? That they may only carry in the Eruv and that they have to know the exact boundaries of the Eruv before they use it. These two facts are immensely easy to comprehend and apply. The construction of the Eruv requires specialist knowledge, certainly, but this is like saying that the complexity of building codes means that the US has created a loyalty filter. Of course not; one actually needs to know more legalities to purchase a house than a Jew does to avail himself of an Eruv.

Next, the argument is concerning the use of the destruction of the milk of a cow to license milking on Shabbos. Like always, we must ask, what does the law say? The scripture says that one may not do melachah on Shabbos. But what is melachah? The word is utilized in two other contexts. The first is that of creation, where it says that the Almighty rested from all the melachah He had done. The second is in connection to the Tabernacle, where building the Tabernacle is called melachah. So now we know that we must rest from building the Tabernacle. But the scripture also bans two activities, kindling a fire and picking up sticks. So we may then utilize these cases and ask: what is being done? What activities involved in the creation of the Tabernacle are forbidden? The answer is creative intentional labor. This means that, for example, destroying a wall for the sake of destruction isn't in this category. It is not creative, rather destructive. Now, if one wished to demolish the wall to build another wall, this is creative destruction, which is forbidden according to the Torah.

The astute reader will notice already that I made a d'rabbanan and d'oraisa distinction. Destruction for the sake of destruction is forbidden according to the Rabbis, and destruction for the sake of creation is forbidden according to the Torah. So why is milking forbidden? One of the 39 activities which are forbidden is threshing, which is defined as removing the good part from the bad through an indirect action, as distinct from selecting. The example is, of course, threshing, but see also squeezing the juice of an orange. You are removing the stuff you want, the juice, from the stuff you don't want, the pulp. Milking is the same case: through the action of squeezing the teat, one removes the milk that he wants from the udder that he doesn't want.

So let us return to the case of the destruction of milk. As we established above, only creative labor is forbidden from the Torah. On the other hand, destructive labor is forbidden from the Rabbis. Now we have a difficulty. If we apply the Rabbis universally, cows, when they are not milked, are in pain. We would be causing the suffering of the animal merely as an exercise in piety. This is Mr. Drifting's very assault, that we utilize our piety as a shield! We are using our complicated law purely to create group cohesion and make it difficult to leave! Instead, the Rabbis decreed that one may milk a cow in a manner that destroys the milk, meaning it isn't forbidden from the Torah, rather the Rabbis. Like we discussed above, when the Rabbis ban something, they may permit it in any way they like. It's hardly a loophole if the Rabbis put it there and screamed it from the rooftops. Likewise, this alleged loophole is explicitly existing because of the pain of the cow. I wonder, would Mr. Drifting prefer that we cloak ourselves in piety and permit the suffering of the cow because of our own fences? This is an obvious absurdity.

It's a bad idea to ask a Chazzon Isher like myself about the next case, which is the Heter Mechirah. It was created by Rav Kook as a concession to the situation in the land of Israel, where letting it lie fallow would result in seizure of the land by Arab and British landlords. Likewise, importation of food was much limited. Now, Israel is a developed nation. There is no risk of seizure of the lands of farmers. Indeed, I received from my Rabbi that over half the land of Israel lies fallow. This is the fight between the Modern Orthodox and the Heredim. We Heredim despise the Heter Mechirah while the Modern Orthodox avail themselves of it. In this, you haven't argued against Halachah. You've argued that the Heredim are correct on this. I thank you for your support, but it quite frankly doesn't prove what you think it does.

The next case is that of the Heter Iskah. Like before, let us ask, what is the spirit of the law? The ban against ribbis is against the accrual of benefit due to the loaning of money. This goes beyond Catholic usury. For example, the Italian banking families would attach a late fee to the money, and it was generally accepted that you would pay the loan late and thus be liable for the late fee. If anything, this is the loophole, for Jewish law bans this entirely. In addition, it bans non-monetary benefit to the lender, such as use of one's property. The Rabbis further heaped upon this that, even if they were previously such close friends that they would loan the item before the loan, if it is a visible item, such as a vacation house or car, then the use of the property is still banned, as it looks bad. This is the legal system of loopholes; this is one attempting to slam them shut.

Well, except for the Heter Iskah. I shall preface that what I state is based upon my own reading of the Shulchan Aruch, along with halachic books, and that I do not have formal education in the area of commercial Halachah, like I do have formal education in the basic principles of the Eruv and tractates Beitzah and Sukkos. I do, however, have a degree in finance. The financial instrument of the Heter Iskah is as follows. Reuben gives Simon one hundred dollars for his business. (Business is a key word here. Heter Iskah for non-business purposes is discouraged or banned depending upon the authority.) Simon agrees that he will repay ten percent of the principal per year maximum. At the end of the year he shall repay the principal. This ten percent is the cap, but if there is no profit, or Simon takes a loss, then even the principal is at risk. This is clearly much closer to an equity instrument rather than a debt instrument. Legally, it is classed as a debt instrument in American courts, purely because it does not confer a portion of ownership; however, I would argue that the important part of the instrument is its being linked with the profits. If Simon does not make a profit, he doesn't have the sword of interest hanging above his head. He instead shows his books to two kosher witnesses (I'm not wading into that dispute…) and he need not pay anything of the portion which is converted into 'equity'. In addition, he could take a Rabbinical oath. On the other hand, if he makes an enormous amount of profit, the dividends are capped at 10% of the investment. The risk is slanted directly towards the lender. His profit is capped, but not his loss. This is fully consistent with the spirit of the law, and permits the use of bonds, so to speak, while continuing to ban lines of credit and commercial paper, metaphorically. In addition, the dividends apply only to the half that is 'equity' (or a third class of instrument), meaning that profits upon the half that is a loan are completely free of any charge. Under Halachah, the rate of return is capped at approximately half the rate of return for that money invested in a company through a normal equity arrangement. This means that, functionally, the Heter Iskah is one fourth of the rate of return, as this percentage is only upon half the principal.

The example of the house is the exception to the business ruling that I applied earlier. I personally find this questionable, but let us return to the spirit of the law. Since Mr. Drifting continues to harp upon code rather than spirit, I am permitted to do this. The spirit is such that the poor will be able to borrow money to support himself through business or purchasing food and clothing. It is basically a ban on payday loans. One does not lend his brother a payday loan with enormous interest. We have created societies dedicated to these loans, called gemachs, which I noticed were conspicuously missing from Mr. Drifting's article. The purchasing of a house, on the other hand, is outside of this spirit, that is, to prevent the exploitation of the poor. As such, by Mr. Drifting's spirit complaint, the Heter Iskah, certainly, and even upon houses, is permissible. I do wonder when Mr. Drifting suggests we ought to hold by the spirit against his view of the code.

If one would argue that this is exactly Mr. Drifting's specialist knowledge, would he also levy this charge at the American legal system? I had an entire class concerning financial instruments alone in university, and yet I am still unqualified to draw one up, and would need to consult an expert. Is Jewish law expected to make financial instruments the weapon of the laity more so than the Uniform Commercial Code? Jewish contracts, one ought to consult a Rabbi, and American contracts, one ought to consult a lawyer. This and that require specialist knowledge for secure participation within the commercial realm. So, if the American law is not a sociological mechanism for control, then how is Jewish law?

Finally, we have one of the most famous Talmudic stories both within Judaism and without, that is the oven of Akhnai. The story goes that the Rabbis are engaged in an argument, whereupon G-d Himself intervenes, and the Rabbis declare that they know better than G-d, whereupon G-d accepts this and laughs. Therefore, the Rabbis think they know better than G-d, and this is an absurdity.

And now, a case, as I am a Talmudic scholar. Let us suppose that a man is charged with a crime. Unfortunately, there is no evidence of the crime except for one phone call, which is absolute proof he executed the crime. In the midst of listening to the evidence, his defense lawyer stands and says, "Your honor, objection! Was this obtained with a warrant?" The judge considers this a good question and demands that the police answer. After much squirming and sweating, the prosecution must confess that it was obtained illegally. The Judge strikes the recording from the record, and the man walks.

In this story there are few people that would disagree with the following facts. First of all, the man was absolutely guilty, and everyone knows this. Second, the man should not have been convicted. These two facts live in our brains without any contradiction. How is this possible? Because there is an absolute epistemological authority with regard to innocence or guilt. When determining innocence or guilt, only certain evidence may be considered. Evidence obtained illegally may not be considered at all. No one would say that the Judge is denying his ears; rather, no warrant, no admissibility.

Likewise, it is the view of the Rabbis that the Holy One Himself denied His testimony as evidence. In scripture it is written, "The Torah is not in heaven." Meaning that the Almighty has given the Torah fully over to the sages of Israel. If the Almighty desired to inform us of a fact, He would have put it in the Torah. Given that He is infinite, are you going to say that He did not foresee the case? Rather, He gave the Torah, and wrote down that which He desired, and left the rest up to us. But what does that mean, up to? In Deuteronomy 17 it is written, "When you have a matter that troubles you whether judgement from judgement, blow from blow, or blood from blood…go to the priest, the Levite, and the Judge who is in your time…you shall follow the word that they give you and you shall not deviate."

We shall examine this verse section by section. The first portion of the verse is clear: if you have a matter that troubles you, do not sit and pray to the Holy Spirit or figure it out yourself; go to the elders of Israel. Next it lists three cases. Judgement from judgement is monetary or civil law. Blow from blow is criminal law. And blood from blood is ritual law. If one would say that blood from blood is capital punishment, is not capital punishment inflicted via blows? The scripture has already covered them in that statement, and a primary principle that we Jews say was granted to us at Sinai is that every word of the Torah is absolutely necessary. Therefore, as blows already covers capital punishment, blood must mean something else, which is the blood of sacrifices, or alternatively, the blood of periods. Alternatively one may apply blows to be leprosy—because of the similarity between the word used here nega and the word used for leprosy—whereupon blood is criminal law and capital punishment. Either way, civil law, criminal law, and ritual law are under the jurisdiction of the Elders of Israel.

"You shall follow the word that they give you" means that one must follow the decrees of the Elders of Israel. Finally, "do not deviate" establishes absolute epistemological authority. The reading of these principles out from the verse is based upon the black and white content of the verse without any complicated reasoning chains based upon excess word he or this like some other laws do. Any man can read this and see it says, "Do not deviate." The Holy One Himself handed absolute authority to the Elders. The story of the oven of Akhnai is an illustration of this principle. Not that the Rabbis know better than the Almighty, heaven forbid, but rather that the Almighty Himself informed us that His testimony is inadmissible, as it is written, "the Torah is not in heaven."

The astute reader, however, will argue that this is the very point of Mr. Drifting's crypto analogy. The 'code' can overrule the truth for procedural reasons. Rule-following diverges from substance by the nature of the tradition. This is incorrect. In the case above with the warrant, would Mr. Drifting utilize this same analogy to demand the end of warrants? Certainly not! The proofs marshalled by Rabbi Eliezer were not proper proofs. If someone walked into a math lecture and declared that he had tested the Goldbach Conjecture up to a googolplex, therefore it is proven, everyone would look at him with dead eyes before physically tossing the man out. He has misunderstood what counts as evidence in math. Every practice has an epistemological standard, and for Mr. Drifting to require that Halachah not have a standard of evidence is to place an impossible standard. Shall we say that if Rabbi Eliezer said, "The oven is tamei because cactus plus my butt," Mr. Drifting would be rambling about how the Rabbis are horrible for saying no proof can be drawn from this? Of course not, so it must be that Mr. Drifting and the Rabbis have a dispute about what the standard of evidence is. As such, I would request that Mr. Drifting submit his reasoning why the Rabbis should care about miracles at all.

Finally, there is the objection that the Almighty seems pleased by the objection, rather than shrugging. The answer is in the word "my children." Let us suppose that a parent wishes to see if his child has been paying attention. He therefore orders his child to cross the road immediately. The child then says, "But father, you said one must always check both ways before crossing the street." The child is quite right, and the father would then say, laughing in pleasure, "My child has overcome me." The father knew the answer, but he wished to test the child, to engrain within the child's heart this principle. Likewise, the Almighty can and will utilize miracles to test, as it is written in Deuteronomy 13, "Do not fear [the false prophet], for I am only testing you." Why should we fear him? Because it says earlier that he did signs. So, even if the false prophet demonstrates miracles, we should not fear him. Why? Because the Almighty is testing us. Therefore, the Almighty, from the very text of the Bible, says that He will test us to ensure that we love Him. The Rabbis passed His test, and that is why the Almighty was delighted and laughed.

This essay has gone on for long enough, and as such, I must call it here without addressing the rest of his points. My goal has been from the start to demonstrate that halachic reasoning is not an exercise in absurdities and loophole findings. Our so-called absurd cases are a result of our inductive reasoning method, and our love of finding a principle and testing it against cases until it breaks. One may disagree with our method of reasoning, but then do so honestly, rather than mumbling about how stupid the Talmud is, and strange comparisons to crypto. He demonstrates a total ignorance of Halachah in his conflation of commandments from the Almighty and commandments from the Rabbis. I suppose that when the child tax credit was established, this was a loophole, by his meaning. Likewise, he inserts himself into active debates on whether or not something counts as a loophole, such as Heter Mechirah, sides with the Heredim, and then proceeds to use his agreement with the Heredim as a weapon against them. This is highly dishonest, both in that all his argument demonstrates is that he and some of the Rabbis agree. Yet he frames it as an outsider attacking the law, and ignores that these disputes are live arguments with different positions. Finally, Mr. Drifting takes the story of the oven of Akhnai and, rather than asking how do Jews understand this story, applies his own non-Jewish interpretation of the story. Given that the Jewish interpretation, as I demonstrated above, both tracks actual legal systems and the text of Scripture, I think it is clear that he must argue with superior arguments than he presented in the article. This holds even ignoring the point that, when making a sociological argument, how the society understands the 'myth' is more important than the content. We must, therefore, conclude that his arguments from halachah, at least, are faulty and collapse before the actual text of the Halachah.

I may perhaps follow this up with the actual philosophy of Halachah as a standalone article if the reception is good. Until then, I have to finish my Supergirl review and Justice IV. Justice IV has around 400 words left until completion. Oh ADHD, how I despise you.