Ben Rothke

Book review – Letter and Spirit: Evasion, Avoidance, and Workarounds in the Halakhic System

Noted information security guru Bruce Schneier writes in A Hacker’s Mind: How the Powerful Bend Society’s Rules, and How to Bend them Back that all systems will have ambiguities, inconsistencies, and oversights, and they will always be exploitable. Systems of rules, in particular, have to tread the fine line between being complete and being comprehensive within the many limits of human language and understanding. Combine that with the natural human need to push against constraints and test limits, and with the inevitability of vulnerabilities, and you get everything being hacked all the time.

Schneier also writes that “Orthodox Jews are masters at hacking their religious rules.” But that observation is from an outsider to the halachic system. To understand how that hacking of religious rules occurs must be written by someone from deep within the halachic system. There is no one better than Rabbi Daniel Feldman to do that.

In his brilliant new book, Letter and Spirit: Evasion, Avoidance, and Workarounds in the Halakhic System (Maggid), Feldman details the notion of hacking religious rules. While Feldman never uses the term hacking, a theme of the book is around the halachic concept of ha’aramah; a term that can be defined within the framework of deception and is often called legal fiction. As a rosh yeshiva at Yeshiva University, he brings depth and breadth to the topic in this extraordinarily well-researched and referenced book.

Feldman begins with an overview of ha’aramah and an analysis of its use. He quotes Rav Asher Weiss, who notes that a ha’aramah to avoid a positive obligation is not subject to an actual prohibition. While one may not be violating anything according to the letter of the law, Rav Weiss says doing that is a general shirking of one’s religious commitment and against the will of the Torah.

The acceptability of a ha’aramah can be measured by the degree to which it aligns with the intent of the Torah. When the rabbis of the Talmud did their halachic hacking, it was not to circumvent the law but rather to preserve it. This notion is a complex and subjective question, and Feldman lays out a framework where he delineates where ha’aramah is used in an intellectually honest manner, as opposed to those who use it to circumvent the law. And the lines between the two are often extraordinarily thin. 

ha’aramah can be used in many areas of the halachic system. Some areas the book focuses on include selling the land during Shmittah, interest, inheritance, aguna and pre-nuptial agreements, and more.

In the chapter on interest, Feldman quotes stunning insight from Rav Weiss that puts the concept of ha’aramah into context. Many business arrangements use the mechanism of a heter iska to deal with interest. A heter iska is a financing structure designed to closely mimic a classic interest-bearing loan while complying with Halacha. It accomplishes this by re-characterizing the transaction as a partnership investment.

Rav Weiss characterizes the heter iska as essentially a device to permit what is actually interest, tolerated only by recognizing that without it, loans would simply be unavailable to those who need them due to the lack of willingness amongst potential lenders.

Regarding ha’aramah and legal fiction, the classic case is the sale of chometz before Pesach. Feldman deals extensively with the topic and provides many aspects and approaches. These range from the opinions that it should not be done, to it actually being a halachic stringency.

Rabbi Yaakov Dovid Wilovsky maintains that selling chametz is a stringent part of the Rabbi’s mandate to enhance its nullification. Rabbi Yosef Shaul Nathanson accepts this premise and adds that selling chametz is only necessary on a rabbinic level because of its nullification and is effective despite being a ha’aramah.

Many people erroneously conflate ha’aramah with the prozbul, which Hillel the Elder established during the Second Temple. A prozbul is written at the end of a shemittah year and transfers one’s personal debts to the court, allowing the individual to collect them after the Shemittah year. Without it, the debts would be canceled. At a macro level, it allowed the poor to receive interest-free loans before the Sabbatical year while protecting the lenders’ investments.

Those who malign the notion of a prozbul often claim it is a rabbinic enactment meant to preserve the wealth of the upper class. Feldman writes that prozbul is quite oversimplified and misunderstood.

He writes that a borrower, when taking out a loan, does not know whether or not the lender will eventually write a prozbul. Accordingly, he must make every effort to preserve his capacity to repay what he has borrowed in the event it comes due and is required to pay, even after Shemittah.

The prozbul can create a balance between the needs of the poor to receive loans, and to be given amnesty when genuinely called for, together to provide the lender confidence to lend when he can and repaid when appropriate.

When it comes to ha’aramah, there is often a tension between the law’s letter and spirit. As such, the prozbul may be the best example of a halachic alternative that justifies itself in letter and spirit and serves an urgent need.

Feldman deals with topics that lend themselves to misunderstanding due to their halachic complexities. A scholar of rare brilliance, he eloquently shows how the system, while hackable, when followed correctly, allows a person to follow both the letter and spirit of Halacha, and carry out the will of the Torah.

About the Author
I’m a senior information security and risk management professional, based in New York City. I speak at industry conferences, and write on information security, social media, privacy and technology. My book reviews are on information security, privacy, technology, and risk management. My reviews for the Times of Israel focus on Judaism, Talmud, religion and philosophy.
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