“The Law of the State is the Law:” The Nature of Law in Jewish Jurisprudence (original) (raw)
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A Companion to Late Ancient Jews and Judaism, 3rd Century BCE – 7th Century CE, edited by Gwynn Kessler and Naomi Koltun-Fromm. Blackwell Companions to the Ancient World. Hoboken, N.J.: John Wiley & Sons., 2020
Introduction: What Is (and Is Not) Jewish Law? The simplest response to the question posed by the title of this essay is that Jewish law is the set of statutes enjoined upon Israel by God. Its authorization is divine and traces itself primarily back to a revelation in history at Mount Sinai as described in the Torah (Exodus 19-24 and passim). This is a skeletal definition, however, and a fuller exploration is warranted. During the period stretching from late Persian imperial control of Judaea (sixth century bce) through the rise of Islam in the seventh century of the Common Era, Jews 1 lived predominately under foreign control-in both the Greco-Roman west and the Parthian/ Sasanian east. If law is defined as the "aggregate of rules and principles of conduct which the governing power … recognizes as those it will enforce or sanction" (Cohen 1966, 1: 123) then in fact there is nearly no Jewish law in Antiquity. During this era Jews enjoyed self-rule and the unimpeded power of governmental enforcement only under the Hasmoneans (142-67 bce), and unfortunately we have nearly nothing of actual Hasmonean law or court records with which to work outside of allusions and mentions in historical materials. Jewish self-rule outside of Hasmonean autonomy would have been fragile, partial, and at the whim of the non-Jewish state. Law, however, in a range of conceptual and terminological garbs-Torah, covenant, halakhah, mitzvot, nomos, et al.-has long been central to Jewish theology, practice, and the entire ancient Jewish imaginary. Legal thinking is manifest in a wide range of texts, doctrines, and practices. Despite common threads and concepts, Jewish law was understood
In the thousand years before the rise of Islam, two radically diverse conceptions of what it means to say that a law is divine confronted one another with a force that reverberates to the present. "What’s Divine about Divine Law?" untangles the classical and biblical roots of the Western idea of divine law and shows how early adherents to biblical tradition—Hellenistic Jewish writers such as Philo, the community at Qumran, Paul, and the talmudic rabbis—struggled to make sense of this conflicting legacy. Christine Hayes shows that for the ancient Greeks, divine law was divine by virtue of its inherent qualities of intrinsic rationality, truth, universality, and immutability while for the biblical authors, divine law was divine because it was grounded in the will of a divine being with no presumption of rationality, conformity to truth, universality, or immutability. Hayes describes the collision of these opposing conceptions in the Hellenistic period, and details competing attempts to resolve the resulting cognitive dissonance. She shows how Second Temple and Hellenistic Jewish writers, from the author of 1 Enoch to Philo of Alexandria, were engaged in a common project of bridging the gulf between classical and biblical notions of divine law, while Paul, in his letters to the early Christian church, sought to widen it. Hayes then delves into the literature of classical rabbinic Judaism to reveal how the talmudic rabbis took a third and scandalous path, insisting on a construction of divine law intentionally at odds with the Greco-Roman and Pauline conceptions that would come to dominate the Christianized West. A stunning achievement in intellectual history, "What’s Divine about Divine Law?" sheds critical light on an ancient debate that would shape foundational Western thought and that continues to inform contemporary views about the nature and purpose of law and the nature and authority of Scripture. Endorsements: "For anyone interested in the history of Western legal thought, this lucid, lively, and meticulously argued book is an indispensable text. With verve and a scholar's mastery of the sources, Hayes brilliantly tells the story of an ancient theological quarrel whose echoes can still be heard in every law school classroom today."--Anthony Kronman, Yale Law School "This is a pathbreaking and ambitious study of a topic of crucial importance for Jewish studies in particular and legal philosophy more broadly. The scholarship is first-rate. Hayes convincingly establishes that the rabbinic discourse on divine law in late antiquity was self-consciously distinct from Greco-Roman conceptions as well as a great deal of prior Jewish literature."--Jonathan Klawans, author of Josephus and the Theologies of Ancient Judaism "This compelling and comprehensive book provides an elegant framework for differentiating between the metaphysical and philosophical givens presumed as the basis for divine law in the Bible, Greco-Roman culture, and a variety of ancient Jewish sources. Hayes articulates an extremely nuanced and periodized understanding of rabbinic law."--Barry Scott Wimpfheimer, author of Narrating the Law: A Poetics of Talmudic Legal Stories
Imperialism and the Creation of Local law - The Case of Rabbinic Law
K. Bertholet, N. Dohrmann and C, Nemo Peckelman (eds.), Legal Engagement: The Reception of Roman Law and Tribunals by Jews and Other Inhabitants of the Empire, 2021
link to full text: https://books.openedition.org/efr/9808 Following the destruction of Jerusalem in 70 CE and the imposition of a direct Roman rule over Palestine the rabbis transformed the corpus of biblical commandments, Judean legal practices and customs into a comprehensive and detailed legal system. How can we explain the surprising fact that it was specifically under Roman jurisdiction that Jewish law emerged for the first time as a cohesive and codified system of civil law? In this article I argue that rather than functioning as an ideological or utopian construct the creation of rabbinic law under Rome follows a familiar pattern well attested in the study of indigenous law under colonial rule. Scholars have recurrently described the development of local legal practices into fixed and formal legal systems, following colonial standards, thus triggering the invention of colonized “customary law”. In a similar manner, papyrological evidence attests to the crystallization of a corpus of “laws of the Egyptians” during the second century CE. Rabbinic material however offers the most detailed account of the processes by which the diversity of local customs characteristic of the pre-Roman period transformed into a fixed and general system of law at the hands of local experts. The article surveys three aspects of rabbinic legal innovation that feature elements of colonized “customary law”: the creation of new legal fields, codification of custom, and the establishment of a Roman-like court procedure. Together, these elements reflect the rabbinic effort to transform normative practices of different sources into a comprehensive legal system befitting imperial legal landscape.
The Essence of Western-Christian Influence in Talmudic Legal Tradition
Pharos Journal of Theology, 2022
This paper examines the interdisciplinary approach of religion and law in the contexts of legal traditions of the world wherein the Talmudic legal tradition has been studied with the core aspects of Western-Christian influence over it. It starts with a brief introduction of the origins of Christian influences as propounded within western approaches going back to the era of the Roman Period being Christianised. We have attempted to study and interrogate the theoretical assertions of ‘Traditions’ provided by Patrick H. Glenn in the context of Western-Christian dominance originating within revolutionary historical phases. It was also an endeavour of this study to better understand the exchange of traditions within western dominance by judging one’s juxtaposition of internal rationality within their orbit. The process continues with the analysis of the ‘identity persuasion’ and the ‘proselytizing character’ of traditions. The various aspects of the Talmudic legal tradition have been dea...
Law and Order in Pre Maimonidean Jewish Philosophy
An old Broadway musical taught us that love and marriage go together like a horse and carriage, you can't have one without the other. Similarly, it seems that law and order always go together. In the natural world, law describes the orderly behavior of the various components of the universe; in society, law imposes the order that those in power wish to see in place. This paper addresses only the natural world. I suggest that some pre-Maimonidean philosophers were not very concerned with the order in the natural world. They were, however, dependent to some extent upon the vocabulary of Jewish law for designing their theological and scientific arguments. Moses Maimonides, however, saw order—and some streaks of apparent disorder—as the key concept in his tightrope act of accepting Aristotelian natural philosophy while at the same time rejecting eternalism. On the other hand, he felt very comfortable with Greek logic and does not apply legal terms in his scientific arguments.
I Will Give Unto You My Law': Section 42 as a Legal Text and the Paradoxes of Divine Law
2011
Divine law occupies an uneasy place in the modern world, thanks to a long history. For thinkers in antiquity, divine law was hypothetical. 1 They did not identify it with the actual rules that operated within a particular society. One might sanctify one's traditions, but neither Solon nor Lycurgus was a Moses delivering a legal code claiming divine authorship. In the Middle Ages, however, Muslims, Jews, and Christians sought to turn divine law into a juridical reality. Indeed, what we today call a "religion" was then referred to as a "law. " Hence, medievals spoke of the law of Christ, the law of the Jews, or the law of the Saracens rather than of Christianity, Judaism, or Islam. The concrete effort to realize divine law created con icting jurisdictional claims that resulted in clashes between secular and religious authority such as the murder of Thomas Becket, Archbishop of Canterbury, by knights of Henry II of England in 1170. These clashes had their origin in the disintegration of the primal legal unity represented by the idea of divine law. 2 Early canonists at the outset of the medieval era cast the church as an integrated legal system. Later, royal chanceries set up their own legal systems in imitation of the church, which made possible con icts such as that between Henry II and his "troublesome priest. " Still later, as power consolidated in national governments, the relationship between divine and secular law gradually reversed. Law ceased to be primarily a matter of scriptural exegesis and increasingly became something like the common law of England: a set of rules promulgated by a secular political authority. In the contemporary world, we arrive at the Weberian ideal of law as the rationalization of the state's monopoly on legitimate violence. And in such a context, divine law has few places it can take rootother than in the realm of the private, the moral, or the religious.
The Sages and the World: Categorizing Culture in Early Rabbinic Law
This study treats two closely related interests in the early rabbinic legal canon: the practice of ethnography and the theory of culture. It argues that both were central to the early rabbis' own project as they defined and questioned the limits of their legal self-consciousness. It shows how they used legal categories to engage in ethnographic inquiry and to generate theories of culture by integrating descriptions with traditional norms, and, in the process, debating the relationship between law and culture as such. Further, this study identifies specific parallels and broad congruences between rabbis' uses of these categories and those of contemporary Greek and Latin sources; arguing not for influence but for similar kinds of curiosity, reflected in diverse genres of ancient knowledge-production, including exegesis, philosophy, and jurisprudence. Finally, this study analyzes how cultural inquiry shaped what it was like to be an early rabbi and a subject for whom this law was a formative worldview.
Common Law and Jewish Law. The Diasporic Principle of dina de-malkhuta dina
Behemoth, 2008
Medieval rabbis conceived of a legal framework for the relations between Jews and non-Jews according to a principle: dina de-malkhuta dina, 'the Law of the Kingdom is Law.' This framework depended on the fact that Jews were living in Galut, Diaspora. Thus, the notion of Diaspora, which in the last century came to be used to refer to the fate of migrants in general, bears a dual legal connotation in Judaism. This article tries first, by tracing back the origin of the word "galut" or "golah" (translated as "exile") in Antiquity, to demonstrate how it is related to the core of Jewish definitions of the "present" as construed by Rabbinic Judaism. It then ventures across the boundaries of time and place to question the purely theological and particularly Jewish evolution of this concept. It is an attempt to apprehend the ways in which the evolution of the notion of Diaspora bears witness to the transformation of the history of the Jews.