Ram Rivlin | The Hebrew University of Jerusalem (original) (raw)
Papers by Ram Rivlin
Canadian Journal of Law & Jurisprudence, 2020
We love our children. We really do. Yet we also find ourselves happy when they finally fall aslee... more We love our children. We really do. Yet we also find ourselves happy when they finally fall asleep, or when they go back to school at the end of their summer vacation. We wish we could spend more time with our children, we really do. Yet we also wish to pursue our own projects, both professionally and personally. This ambivalence hints at a basic characteristic of caring for one’s own child, which is known to every person who ever had a child: it involves both a burden and a benefit.1
Oxford Journal of Law and Religion, 2015
English Abstract: How has Jewish divorce law responded to the transformation of its working envir... more English Abstract: How has Jewish divorce law responded to the transformation of its working environment? Jewish divorce law functions today in the shadow of substantial recent changes. While according to mainstream Halakha marriage should be terminated either on concrete grounds for divorce or by mutual consent of the parties, Western legal regimes now accept unilateral divorce even in the absence of any other ground. Moreover, adopting Jewish divorce norms as the official Israeli state law requires Israeli rabbinic tribunals to apply Jewish norms to populations who reject it. Those changes distort the inner logic of Jewish divorce law and radically change the rationale of the mutual consent requirement.One rabbinic response is to accept the “death of the marriage” as an independent ground for divorce, thus bringing Jewish law into line with Western societies. However, this paper focuses on another response, which refuses to abandon the mutual consent requirement. Instead, it reinterprets this requirement as a mechanism designed to ensure the parties’ rights upon dissolution through a bargaining process. I contend that while such a view is often identified with reactionary circles, it actually represents an internalisation of modern legal thinking and marks a paradigm shift in the nature of religious law.תקציר בעברית: דיני הגירושין היהודיים פועלים כעת בצילם של שינויים עמוקים . בעוד בעבר התייחד הדין היהודי על פני שיטות המשפט המערביות בכך שאיפשר לצדדים להיפרד בהסכמה גם ללא עילת גירושין, כיום גירושין חד-צדדיים בהיעדר עילה, או נוכח "מות הנישואין", מקובלים במשפט ובתרבות המערבית. לצד זאת, בישראל הפכו דיני הגירושין ההלכתיים לדין המדינה הרשמי (עבור יהודים); מצב חדש זה הוביל ליישומן של הנורמות ההלכתיות על אוכלוסיה הדוחה את סמכותה של ההלכה כמקור מנחה להתנהגות. שינויים אלו משפיעים על מובנה ותפקודה של הדרישה לגירושין מוסכמים בדין היהודי הדתי, ומחוללים שינוי בתוכן המוקצה לה.השינויים גוררים שני סוגים של תגובות רבניות: תגובה מסוג אחד מקבלת את רעיון 'מות הנישואין' כעילת גירושין גם בדין הדתי, ובכך חותרת ליישור קו של ההלכה עם המוסכמות המודרניות תוך ויתור על התוכן העצמאי הטמון בנורמה ההלכתית. לעומתה, מתרכז המאמר בתגובה שמרנית יותר, לכאורה: זו שמסרבת להיכנע לתכתיבי המודרנה ועומדת על זכותם של הצדדים להתנגד לגירושין בהיעדרה של עילת גירושין מסורתית. באופן מפתיע, דווקא תגובת זו משקפת עמדה מודרנית מאוד, כאשר היא משנה את התוכן של הזכות המסורתית להתנגד לגירושין ויוצקת לתוכה תוכן חדש. המאמר עומד על בריאתה מחדש של הזכות להתנגד לגירושין, שאינה נתפסת עוד כזכות שנועדה לקבוע את עתיד היחסים של הצדדים אלא כמנגנון שמאפשר הגנה על האינטרסים של הצד התמים במסגרת המשא ומתן לגירושין. המאמר מראה כי חרף זיהויה של עמדה זו עם חוגים שמרניים, היא מבטאת הפנמה רדיקלית של המהפכה הנובעת מהפיכת ההלכה לדין המדינה, אימוץ של תובנות האופייניות לחשיבה משפטית מודרנית, ושינוי פרדיגמה לגבי אופיו של הדין הדתי.
University of Toronto Law Journal, 2017
Trading babies or brides for money is widely regarded as morally wrong and sometimes even legally... more Trading babies or brides for money is widely regarded as morally wrong and sometimes even legally prohibited. Yet here is a puzzle: it seems that parallel exchanges are taking place within the family unit, in the context of custody or reconciliation agreements, both of which might sometimes involve the interweaving of parental or spousal relations with financial exchange. Such cases face much less resentment and criticism, not to mention legal regulation. What can explain this gap in normative treatment? This is the ‘puzzle of intra-familial commodification.’ The article introduces the puzzle, maps it, and evaluates the ways in which it might be resolved. First, it explores the possibility that we might revise our judgment regarding either the permissibility of intra-familial commodification or the wrongfulness of the extra-familial case. Second, it examines why despite the fundamental symmetry between the cases a disparate final judgment might nevertheless be called for. Finally, i...
Canadian Journal of Law & Jurisprudence, 2015
The best way to cope with what is known as “the paradox of blackmail” – a threat to act permissib... more The best way to cope with what is known as “the paradox of blackmail” – a threat to act permissibly – is to deny its premise, namely the permissibility of the threatened act. This view holds that upon reflection all cases of wrongful blackmail actually involve a threat to act impermissibly. Therefore, blackmail is coercive, and should be criminalized as a regular case of extortion. This conclusion may rely on a subjectivist notion of permissibility, which sees intentions as relevant to permissibility, given that the blackmailer intends to harm the victim via the threatened act. Yet the view that intentions are relevant to permissibility evaluations is strongly criticized in contemporary moral theory. Nevertheless, this paper attempts to show that under a full understanding of the functions of coercion claims and the wrong in extortion, harmful intentions can be relevant to criminalization even if they are not directly relevant to permissibility.
International Journal of Constitutional Law, 2020
Threatening to withhold Jewish divorce in order to extract concessions, which I term here the “ge... more Threatening to withhold Jewish divorce in order to extract concessions, which I term here the “get-threat,” is widely regarded as extortionist. Yet this view is commonly associated with skepticism towards agreements stemming from unequal bargaining power, or with a progressive view of the proper divorce regime. Building on contemporary discussions of what is known as “the paradox of blackmail” this article argues that in many cases get-threats should be regarded as simple cases of extortion even by libertarians and conservatives. It then presents and analyzes the best possible statement of defense for the practice of get-threats, designed for the “reasonable reactionary,” showing that even from that point of view get-threats should be limited in scope and magnitude to a narrow range of cases of justified, reasonable demands. The article thus offers both a precise analysis of a longstanding debate and a normative argument for its proper resolution.
SSRN Electronic Journal, 2020
The aim of this paper is twofold. Firstly, to provide a short analysis of the role of religion in... more The aim of this paper is twofold. Firstly, to provide a short analysis of the role of religion in family law in Israel. Secondly, to briefly present a few aspects of Jewish family law. Throughout, I will examine the Israeli experience in an attempt to draw possible lessons regarding the role religion might play in family law, as well as to consider the way a legal system can perhaps handle the tensions between liberalism and religiosity.
Criminal Law and Philosophy, 2020
Neural precursors of voluntary actions appear before subjects report having decided on their beha... more Neural precursors of voluntary actions appear before subjects report having decided on their behavior, leading some to dismiss a causal role for consciousness in decision-making. But the voluntary actions studied are typically arbitrary – bearing no purpose, meaning or consequence. We used EEG to directly compare deliberate and arbitrary decisions in a donation-preference task. Two NPOs appeared on the left/right of the screen, and subjects pressed the left/right button with the corresponding hand. In the deliberate condition, subjects’ choices led to monetary donations to the NPOs. In the arbitrary condition, both NPOs received donations irrespective of the choice. Early left/right ERP differences appeared 1s before the action only for arbitrary decisions. Following our earlier work, we interpreted these ERPs as reflecting random bias activity disjoint from decision-making processes. Our findings challenge previous studies, suggesting that early predictability of voluntary action d...
I·CON - INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW 18(3) 849–869, 2020
Threatening to withhold Jewish divorce in order to extract concessions, which I term here the “ge... more Threatening to withhold Jewish divorce in order to extract concessions, which I term here the “get-threat,” is widely regarded as extortionist. Yet this view is commonly associated with skepticism towards agreements stemming from unequal bargaining power, or with a progressive view of the proper divorce regime. Building on contemporary discussions of what is known as “the paradox of blackmail” this article argues that in many cases get-threats should be regarded as simple cases of extortion even by libertarians and conservatives. It then presents and analyzes the best possible statement of defense for the practice of get-threats, designed for the “reasonable reactionary,” showing that even from that point of view get-threats should be limited in scope and magnitude to a narrow range of cases of justified, reasonable demands. The article thus offers both a precise analysis of a longstanding debate and a normative argument for its proper resolution.
Canadian Journal of Law & Jurisprudence 33(2), 397-433, 2020
When families dissolve, familial burdens and benefits as marital property and the burden of child... more When families dissolve, familial burdens and benefits as marital property and the burden of child support should be distributed. These allocations, sometimes made by courts and sometimes through private negotiation, are better to be fair. Also requiring allocation is the right and duty to take ongoing care of one’s children. Current legal schemes of allocation either ignore the allocation of caregiving while distributing property and support duties; or alternatively take the allocation of custody into account by seeing it as an extra burden inflicted on the custodian, hence seeing the custodian as entitled to exemption from the duty of support or even to a bigger share in the marital financial resources. Yet caregiving might be regarded as a benefit rather than a burden, at least when both parents genuinely desire to provide caregiving. Shouldn’t we lean the allocation of property and support in favor of the non-residential parent, as a counterbalance?
In order to evaluate this suggestion, the paper first undertakes a long list of simplifying assumptions, attempting to provide the best possible defense for such line of argument. Through these assumptions, the discussion abstracts from other relevant considerations as the best interest of the child, gender-justice considerations, various confounding contingencies and the obstacles for legal implementation. The paper then drops these assumptions, one by one, considering their effect on both the principled requirements of fairness and the appropriate legal regulation, thus carefully evaluating the argument and its limits. It then considers its ramifications on the general appropriate legal norm, on the legal norm that applies to private ordering, and on the moral norm that applies to the contracting parties, exploring the anti-Holmesian idea of assessing the law from the perspective of the good person.
MISHPATIM (Hebrew), 2019
Divorce settlement agreements aim to resolve several independent issues: the divorce itself, the ... more Divorce settlement agreements aim to resolve several
independent issues: the divorce itself, the distribution of
marital property and the allocation of parental responsibility
for both care and finances. This enables the parties to link and
combine the separate issues in their bargaining. Yet, this characteristic
makes the agreement particularly vulnerable to special defects, as well as
making it difficult to protect it from ordinary defects. The paper claims
that, all in all, the advantages of this integrated bargaining method do not
justify its perils. Thus, it is advisable for the law to strive to separate the
bargained issues from one another, creating a distinct bargain for each of
the topics, or at least to separate the personal parts (such as separation and
custody) from the financial ones. The paper analyzes the way in which
various legal doctrines respond to the challenges of integrated bargaining,
and demonstrates that the current legal response to these challenges is
insufficient and unsatisfactory.
The paper then develops an argument for limiting the ability of the parties
to contract around the default allocation of marital property upon divorce,
i.e. to deviate from the distribution dictated by law (or prior agreements).
This is because the main reasons for such deviation are rooted in either
integrated bargaining (which it is better to avoid) or otherwise improper
considerations. Detailed attention is devoted to justifying the limits that
should be placed on the parties' freedom of contract; to the price of
renouncing deviations that might have legitimate reasons; to the concern
that such deviations are needed in order to secure religious divorce; and to
dealing with various practical obstacles to the enforcement of the
proposed arrangement.
BEITRÄGE ZUM EUROPÄISCHEN FAMILIEN- UND ERBRECHT: FAMILIENRECHT UND RELIGION - – EUROPÄISCHE PERSPEKTIVEN , 2019
Criminal Law and Philosophy, 2020
Sometimes, the availability of more evidence for a conclusion provides a reason to believe in its... more Sometimes, the availability of more evidence for a conclusion provides a reason to believe in its falsity. This counter-intuitive phenomenon is related to the idea of higher-order evidence, which has attracted broad interest in recent epistemological literature. Occasionally, providing more evidence for something weakens the case in its favor, by casting doubt on the probative value of other evidence of the same sort or on the fact-finder’s cognitive performance. We analyze this phenomenon, discuss its rationality, and outline possible application to evidence law and to the law in general. It is suggested, inter alia, that such higher-order evidence may explain how judicial experience-based expertise in fact-finding is possible despite the absence of a feedback mechanism; and that fact-finders’ self-doubt regarding their own competence in making ‘beyond-reasonable doubt’ judgments might be reasonable and should not be ignored.
International Journal of the Jurisprudence of the Family
Following the last decades' no-fault divorce revolution, it is now common in western legal regime... more Following the last decades' no-fault divorce revolution, it is now common in western legal regimes that a spouse unilaterally may obtain divorce upon demand. Moreover, various courts, as well as legal commentators, claim that people have a right to divorce; that is, that limitation on one's right to unilaterally divorce infringes a basic or even a constitutional right. Nevertheless, the nature of this alleged right has yet to be characterized. This article aims to clarify the nature of the right to divorce, using the analytic tools of the general theory of rights. Rights come to the normative world with a direction: One's right imposes a duty (or other normative relation) on someone else. There is a need to inquire, then, whose duty correlates with the right to divorce, or—in other terms—what the direction of this right is. The answer is more complicated than it seems at first glance. Drawing on careful examination of the reasons behind the move to a unilateral no-fault divorce regime, I argue that this right should be construed as being directed toward the state, or the legal order, rather than toward the spouse to whom the right-holder is married. I demonstrate that while one may have a valid claim to a no-fault divorce regime, such a claim should not impose any direct duty on one's spouse. I then show the implications of this analysis on pressing doctrinal questions that relate to the possibility of a civil remedy in cases of violations of the right to divorce (including cases that involve religious law). The right to divorce, I contend, is a consequence of state-regulated marriage and divorce. This, in turn, opens the door to a better understanding of the role and normative ramifications of regulating family relations.
Trading babies or brides for money is widely regarded as morally wrong, and sometimes even legall... more Trading babies or brides for money is widely regarded as morally wrong, and sometimes even legally prohibited. Yet here is a puzzle: it seems that parallel exchanges are taking place within the family unit, in the context of custody or reconciliation agreements, both of which might sometimes involve the interweaving of parental or spousal relations with financial exchange. Such cases face much less resentment and criticism, not to mention legal regulation. What can explain this gap in normative treatment? This is the " Puzzle of Intra-Familial Commodification ". The paper introduces the puzzle, maps it and evaluates the ways in which it might be resolved. First, it explores the possibility to revise our judgment regarding either the permissibility of intra-familial commodification or the wrongfulness of the extra-familial case. Second, it examines why despite the fundamental symmetry between the cases a disparate final judgment might nevertheless be called for. Finally, it explores the option of vindicating the normative fundamental asymmetry. Thinking through the puzzle, the paper offers new insights on both the centrality of the market pricing mechanism for the general problem of commodification; and the way familial ties might save intimacy from the corruption of monetary exchange.
Philosophy, Psychology, Neuroscience, 2014
How has Jewish divorce law responded to the transformation of its working environment? Jewish div... more How has Jewish divorce law responded to the transformation of its working environment? Jewish divorce law functions today in the shadow of substantial recent changes. While according to mainstream Halakha marriage should be terminated either on concrete grounds for divorce or by mutual consent of the parties, Western legal regimes now accept unilateral divorce even in the absence of any other ground. Moreover, adopting Jewish divorce norms as the official Israeli state law requires Israeli rabbinic tribunals to apply Jewish norms to populations who reject it. Those changes distort the inner logic of Jewish divorce law and radically change the rationale of the mutual consent requirement.
One rabbinic response is to accept the “death of the marriage” as an independent ground for divorce, thus bringing Jewish law into line with Western societies. However, this paper focuses on another response, which refuses to abandon the mutual consent requirement. Instead, it reinterprets this requirement as a mechanism designed to ensure the parties’ rights upon dissolution through a bargaining process. I contend that while such a view is often identified with reactionary circles, it actually represents an internalisation of modern legal thinking and marks a paradigm shift in the nature of religious law.
The best way to cope with what is known as “the paradox of blackmail” – a threat to act permissib... more The best way to cope with what is known as “the paradox of blackmail” – a threat to act permissibly – is to deny its premise, namely the permissibility of the threatened act. This view holds that upon reflection all cases of wrongful blackmail actually involve a threat to act impermissibly. Therefore, blackmail is coercive, and should be criminalized as a regular case of extortion. This conclusion may rely on a subjectivist notion of permissibility, which sees intentions as relevant to permissibility, given that the blackmailer intends to harm the victim via the threatened act. Yet the view that intentions are relevant to permissibility evaluations is strongly criticized in contemporary moral theory. Nevertheless, this paper attempts to show that under a full understanding of the functions of coercion claims and the wrong in extortion, harmful intentions can be relevant to criminalization even if they are not directly relevant to permissibility.
Canadian Journal of Law & Jurisprudence, 2020
We love our children. We really do. Yet we also find ourselves happy when they finally fall aslee... more We love our children. We really do. Yet we also find ourselves happy when they finally fall asleep, or when they go back to school at the end of their summer vacation. We wish we could spend more time with our children, we really do. Yet we also wish to pursue our own projects, both professionally and personally. This ambivalence hints at a basic characteristic of caring for one’s own child, which is known to every person who ever had a child: it involves both a burden and a benefit.1
Oxford Journal of Law and Religion, 2015
English Abstract: How has Jewish divorce law responded to the transformation of its working envir... more English Abstract: How has Jewish divorce law responded to the transformation of its working environment? Jewish divorce law functions today in the shadow of substantial recent changes. While according to mainstream Halakha marriage should be terminated either on concrete grounds for divorce or by mutual consent of the parties, Western legal regimes now accept unilateral divorce even in the absence of any other ground. Moreover, adopting Jewish divorce norms as the official Israeli state law requires Israeli rabbinic tribunals to apply Jewish norms to populations who reject it. Those changes distort the inner logic of Jewish divorce law and radically change the rationale of the mutual consent requirement.One rabbinic response is to accept the “death of the marriage” as an independent ground for divorce, thus bringing Jewish law into line with Western societies. However, this paper focuses on another response, which refuses to abandon the mutual consent requirement. Instead, it reinterprets this requirement as a mechanism designed to ensure the parties’ rights upon dissolution through a bargaining process. I contend that while such a view is often identified with reactionary circles, it actually represents an internalisation of modern legal thinking and marks a paradigm shift in the nature of religious law.תקציר בעברית: דיני הגירושין היהודיים פועלים כעת בצילם של שינויים עמוקים . בעוד בעבר התייחד הדין היהודי על פני שיטות המשפט המערביות בכך שאיפשר לצדדים להיפרד בהסכמה גם ללא עילת גירושין, כיום גירושין חד-צדדיים בהיעדר עילה, או נוכח "מות הנישואין", מקובלים במשפט ובתרבות המערבית. לצד זאת, בישראל הפכו דיני הגירושין ההלכתיים לדין המדינה הרשמי (עבור יהודים); מצב חדש זה הוביל ליישומן של הנורמות ההלכתיות על אוכלוסיה הדוחה את סמכותה של ההלכה כמקור מנחה להתנהגות. שינויים אלו משפיעים על מובנה ותפקודה של הדרישה לגירושין מוסכמים בדין היהודי הדתי, ומחוללים שינוי בתוכן המוקצה לה.השינויים גוררים שני סוגים של תגובות רבניות: תגובה מסוג אחד מקבלת את רעיון 'מות הנישואין' כעילת גירושין גם בדין הדתי, ובכך חותרת ליישור קו של ההלכה עם המוסכמות המודרניות תוך ויתור על התוכן העצמאי הטמון בנורמה ההלכתית. לעומתה, מתרכז המאמר בתגובה שמרנית יותר, לכאורה: זו שמסרבת להיכנע לתכתיבי המודרנה ועומדת על זכותם של הצדדים להתנגד לגירושין בהיעדרה של עילת גירושין מסורתית. באופן מפתיע, דווקא תגובת זו משקפת עמדה מודרנית מאוד, כאשר היא משנה את התוכן של הזכות המסורתית להתנגד לגירושין ויוצקת לתוכה תוכן חדש. המאמר עומד על בריאתה מחדש של הזכות להתנגד לגירושין, שאינה נתפסת עוד כזכות שנועדה לקבוע את עתיד היחסים של הצדדים אלא כמנגנון שמאפשר הגנה על האינטרסים של הצד התמים במסגרת המשא ומתן לגירושין. המאמר מראה כי חרף זיהויה של עמדה זו עם חוגים שמרניים, היא מבטאת הפנמה רדיקלית של המהפכה הנובעת מהפיכת ההלכה לדין המדינה, אימוץ של תובנות האופייניות לחשיבה משפטית מודרנית, ושינוי פרדיגמה לגבי אופיו של הדין הדתי.
University of Toronto Law Journal, 2017
Trading babies or brides for money is widely regarded as morally wrong and sometimes even legally... more Trading babies or brides for money is widely regarded as morally wrong and sometimes even legally prohibited. Yet here is a puzzle: it seems that parallel exchanges are taking place within the family unit, in the context of custody or reconciliation agreements, both of which might sometimes involve the interweaving of parental or spousal relations with financial exchange. Such cases face much less resentment and criticism, not to mention legal regulation. What can explain this gap in normative treatment? This is the ‘puzzle of intra-familial commodification.’ The article introduces the puzzle, maps it, and evaluates the ways in which it might be resolved. First, it explores the possibility that we might revise our judgment regarding either the permissibility of intra-familial commodification or the wrongfulness of the extra-familial case. Second, it examines why despite the fundamental symmetry between the cases a disparate final judgment might nevertheless be called for. Finally, i...
Canadian Journal of Law & Jurisprudence, 2015
The best way to cope with what is known as “the paradox of blackmail” – a threat to act permissib... more The best way to cope with what is known as “the paradox of blackmail” – a threat to act permissibly – is to deny its premise, namely the permissibility of the threatened act. This view holds that upon reflection all cases of wrongful blackmail actually involve a threat to act impermissibly. Therefore, blackmail is coercive, and should be criminalized as a regular case of extortion. This conclusion may rely on a subjectivist notion of permissibility, which sees intentions as relevant to permissibility, given that the blackmailer intends to harm the victim via the threatened act. Yet the view that intentions are relevant to permissibility evaluations is strongly criticized in contemporary moral theory. Nevertheless, this paper attempts to show that under a full understanding of the functions of coercion claims and the wrong in extortion, harmful intentions can be relevant to criminalization even if they are not directly relevant to permissibility.
International Journal of Constitutional Law, 2020
Threatening to withhold Jewish divorce in order to extract concessions, which I term here the “ge... more Threatening to withhold Jewish divorce in order to extract concessions, which I term here the “get-threat,” is widely regarded as extortionist. Yet this view is commonly associated with skepticism towards agreements stemming from unequal bargaining power, or with a progressive view of the proper divorce regime. Building on contemporary discussions of what is known as “the paradox of blackmail” this article argues that in many cases get-threats should be regarded as simple cases of extortion even by libertarians and conservatives. It then presents and analyzes the best possible statement of defense for the practice of get-threats, designed for the “reasonable reactionary,” showing that even from that point of view get-threats should be limited in scope and magnitude to a narrow range of cases of justified, reasonable demands. The article thus offers both a precise analysis of a longstanding debate and a normative argument for its proper resolution.
SSRN Electronic Journal, 2020
The aim of this paper is twofold. Firstly, to provide a short analysis of the role of religion in... more The aim of this paper is twofold. Firstly, to provide a short analysis of the role of religion in family law in Israel. Secondly, to briefly present a few aspects of Jewish family law. Throughout, I will examine the Israeli experience in an attempt to draw possible lessons regarding the role religion might play in family law, as well as to consider the way a legal system can perhaps handle the tensions between liberalism and religiosity.
Criminal Law and Philosophy, 2020
Neural precursors of voluntary actions appear before subjects report having decided on their beha... more Neural precursors of voluntary actions appear before subjects report having decided on their behavior, leading some to dismiss a causal role for consciousness in decision-making. But the voluntary actions studied are typically arbitrary – bearing no purpose, meaning or consequence. We used EEG to directly compare deliberate and arbitrary decisions in a donation-preference task. Two NPOs appeared on the left/right of the screen, and subjects pressed the left/right button with the corresponding hand. In the deliberate condition, subjects’ choices led to monetary donations to the NPOs. In the arbitrary condition, both NPOs received donations irrespective of the choice. Early left/right ERP differences appeared 1s before the action only for arbitrary decisions. Following our earlier work, we interpreted these ERPs as reflecting random bias activity disjoint from decision-making processes. Our findings challenge previous studies, suggesting that early predictability of voluntary action d...
I·CON - INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW 18(3) 849–869, 2020
Threatening to withhold Jewish divorce in order to extract concessions, which I term here the “ge... more Threatening to withhold Jewish divorce in order to extract concessions, which I term here the “get-threat,” is widely regarded as extortionist. Yet this view is commonly associated with skepticism towards agreements stemming from unequal bargaining power, or with a progressive view of the proper divorce regime. Building on contemporary discussions of what is known as “the paradox of blackmail” this article argues that in many cases get-threats should be regarded as simple cases of extortion even by libertarians and conservatives. It then presents and analyzes the best possible statement of defense for the practice of get-threats, designed for the “reasonable reactionary,” showing that even from that point of view get-threats should be limited in scope and magnitude to a narrow range of cases of justified, reasonable demands. The article thus offers both a precise analysis of a longstanding debate and a normative argument for its proper resolution.
Canadian Journal of Law & Jurisprudence 33(2), 397-433, 2020
When families dissolve, familial burdens and benefits as marital property and the burden of child... more When families dissolve, familial burdens and benefits as marital property and the burden of child support should be distributed. These allocations, sometimes made by courts and sometimes through private negotiation, are better to be fair. Also requiring allocation is the right and duty to take ongoing care of one’s children. Current legal schemes of allocation either ignore the allocation of caregiving while distributing property and support duties; or alternatively take the allocation of custody into account by seeing it as an extra burden inflicted on the custodian, hence seeing the custodian as entitled to exemption from the duty of support or even to a bigger share in the marital financial resources. Yet caregiving might be regarded as a benefit rather than a burden, at least when both parents genuinely desire to provide caregiving. Shouldn’t we lean the allocation of property and support in favor of the non-residential parent, as a counterbalance?
In order to evaluate this suggestion, the paper first undertakes a long list of simplifying assumptions, attempting to provide the best possible defense for such line of argument. Through these assumptions, the discussion abstracts from other relevant considerations as the best interest of the child, gender-justice considerations, various confounding contingencies and the obstacles for legal implementation. The paper then drops these assumptions, one by one, considering their effect on both the principled requirements of fairness and the appropriate legal regulation, thus carefully evaluating the argument and its limits. It then considers its ramifications on the general appropriate legal norm, on the legal norm that applies to private ordering, and on the moral norm that applies to the contracting parties, exploring the anti-Holmesian idea of assessing the law from the perspective of the good person.
MISHPATIM (Hebrew), 2019
Divorce settlement agreements aim to resolve several independent issues: the divorce itself, the ... more Divorce settlement agreements aim to resolve several
independent issues: the divorce itself, the distribution of
marital property and the allocation of parental responsibility
for both care and finances. This enables the parties to link and
combine the separate issues in their bargaining. Yet, this characteristic
makes the agreement particularly vulnerable to special defects, as well as
making it difficult to protect it from ordinary defects. The paper claims
that, all in all, the advantages of this integrated bargaining method do not
justify its perils. Thus, it is advisable for the law to strive to separate the
bargained issues from one another, creating a distinct bargain for each of
the topics, or at least to separate the personal parts (such as separation and
custody) from the financial ones. The paper analyzes the way in which
various legal doctrines respond to the challenges of integrated bargaining,
and demonstrates that the current legal response to these challenges is
insufficient and unsatisfactory.
The paper then develops an argument for limiting the ability of the parties
to contract around the default allocation of marital property upon divorce,
i.e. to deviate from the distribution dictated by law (or prior agreements).
This is because the main reasons for such deviation are rooted in either
integrated bargaining (which it is better to avoid) or otherwise improper
considerations. Detailed attention is devoted to justifying the limits that
should be placed on the parties' freedom of contract; to the price of
renouncing deviations that might have legitimate reasons; to the concern
that such deviations are needed in order to secure religious divorce; and to
dealing with various practical obstacles to the enforcement of the
proposed arrangement.
BEITRÄGE ZUM EUROPÄISCHEN FAMILIEN- UND ERBRECHT: FAMILIENRECHT UND RELIGION - – EUROPÄISCHE PERSPEKTIVEN , 2019
Criminal Law and Philosophy, 2020
Sometimes, the availability of more evidence for a conclusion provides a reason to believe in its... more Sometimes, the availability of more evidence for a conclusion provides a reason to believe in its falsity. This counter-intuitive phenomenon is related to the idea of higher-order evidence, which has attracted broad interest in recent epistemological literature. Occasionally, providing more evidence for something weakens the case in its favor, by casting doubt on the probative value of other evidence of the same sort or on the fact-finder’s cognitive performance. We analyze this phenomenon, discuss its rationality, and outline possible application to evidence law and to the law in general. It is suggested, inter alia, that such higher-order evidence may explain how judicial experience-based expertise in fact-finding is possible despite the absence of a feedback mechanism; and that fact-finders’ self-doubt regarding their own competence in making ‘beyond-reasonable doubt’ judgments might be reasonable and should not be ignored.
International Journal of the Jurisprudence of the Family
Following the last decades' no-fault divorce revolution, it is now common in western legal regime... more Following the last decades' no-fault divorce revolution, it is now common in western legal regimes that a spouse unilaterally may obtain divorce upon demand. Moreover, various courts, as well as legal commentators, claim that people have a right to divorce; that is, that limitation on one's right to unilaterally divorce infringes a basic or even a constitutional right. Nevertheless, the nature of this alleged right has yet to be characterized. This article aims to clarify the nature of the right to divorce, using the analytic tools of the general theory of rights. Rights come to the normative world with a direction: One's right imposes a duty (or other normative relation) on someone else. There is a need to inquire, then, whose duty correlates with the right to divorce, or—in other terms—what the direction of this right is. The answer is more complicated than it seems at first glance. Drawing on careful examination of the reasons behind the move to a unilateral no-fault divorce regime, I argue that this right should be construed as being directed toward the state, or the legal order, rather than toward the spouse to whom the right-holder is married. I demonstrate that while one may have a valid claim to a no-fault divorce regime, such a claim should not impose any direct duty on one's spouse. I then show the implications of this analysis on pressing doctrinal questions that relate to the possibility of a civil remedy in cases of violations of the right to divorce (including cases that involve religious law). The right to divorce, I contend, is a consequence of state-regulated marriage and divorce. This, in turn, opens the door to a better understanding of the role and normative ramifications of regulating family relations.
Trading babies or brides for money is widely regarded as morally wrong, and sometimes even legall... more Trading babies or brides for money is widely regarded as morally wrong, and sometimes even legally prohibited. Yet here is a puzzle: it seems that parallel exchanges are taking place within the family unit, in the context of custody or reconciliation agreements, both of which might sometimes involve the interweaving of parental or spousal relations with financial exchange. Such cases face much less resentment and criticism, not to mention legal regulation. What can explain this gap in normative treatment? This is the " Puzzle of Intra-Familial Commodification ". The paper introduces the puzzle, maps it and evaluates the ways in which it might be resolved. First, it explores the possibility to revise our judgment regarding either the permissibility of intra-familial commodification or the wrongfulness of the extra-familial case. Second, it examines why despite the fundamental symmetry between the cases a disparate final judgment might nevertheless be called for. Finally, it explores the option of vindicating the normative fundamental asymmetry. Thinking through the puzzle, the paper offers new insights on both the centrality of the market pricing mechanism for the general problem of commodification; and the way familial ties might save intimacy from the corruption of monetary exchange.
Philosophy, Psychology, Neuroscience, 2014
How has Jewish divorce law responded to the transformation of its working environment? Jewish div... more How has Jewish divorce law responded to the transformation of its working environment? Jewish divorce law functions today in the shadow of substantial recent changes. While according to mainstream Halakha marriage should be terminated either on concrete grounds for divorce or by mutual consent of the parties, Western legal regimes now accept unilateral divorce even in the absence of any other ground. Moreover, adopting Jewish divorce norms as the official Israeli state law requires Israeli rabbinic tribunals to apply Jewish norms to populations who reject it. Those changes distort the inner logic of Jewish divorce law and radically change the rationale of the mutual consent requirement.
One rabbinic response is to accept the “death of the marriage” as an independent ground for divorce, thus bringing Jewish law into line with Western societies. However, this paper focuses on another response, which refuses to abandon the mutual consent requirement. Instead, it reinterprets this requirement as a mechanism designed to ensure the parties’ rights upon dissolution through a bargaining process. I contend that while such a view is often identified with reactionary circles, it actually represents an internalisation of modern legal thinking and marks a paradigm shift in the nature of religious law.
The best way to cope with what is known as “the paradox of blackmail” – a threat to act permissib... more The best way to cope with what is known as “the paradox of blackmail” – a threat to act permissibly – is to deny its premise, namely the permissibility of the threatened act. This view holds that upon reflection all cases of wrongful blackmail actually involve a threat to act impermissibly. Therefore, blackmail is coercive, and should be criminalized as a regular case of extortion. This conclusion may rely on a subjectivist notion of permissibility, which sees intentions as relevant to permissibility, given that the blackmailer intends to harm the victim via the threatened act. Yet the view that intentions are relevant to permissibility evaluations is strongly criticized in contemporary moral theory. Nevertheless, this paper attempts to show that under a full understanding of the functions of coercion claims and the wrong in extortion, harmful intentions can be relevant to criminalization even if they are not directly relevant to permissibility.