Foreword to the Symposium: Jewish Law and American Law: A Comparative Study (original) (raw)
Emerging Applications of Jewish Law in American Legal Scholarship: An Introduction
Journal of Law and Religion, 2007
In recent years, the field of Jewish law has gained increasing prominence in American law schools and legal scholarship. 1 On a curricular level, a growing number of law schools offer courses examining various aspects of the Jewish legal system, often presented in a comparative context as a means of illuminating and adding depth to American legal education. 2 Moreover, several law schools have initiated institutes dedicated to the study of Jewish law, 3 while at other schools, discussions of Jewish law serve as an important component of broader programs in law and religion. 4
Some Disparities and Parallels in Jewish and American Law
Conservative Judaism, 2009
riting in honor of Rabbi Neil Gillman is a privilege for me. From the perspective of the American rabbinate, he has, for a half-century, brought a deeply needed understanding of the nature of God and the importance of theological discourse into the training of America's Jewish religious leadership. From my personal perspective as his student and, I like to think, his friend, he has, in the more than five years that I have come to know him, strengthened my love for and appreciation of the richness of the intellectual and spiritual aspects of the Jewish heritage. Perhaps most importantly, from the perspective of the American Jewish community, Rabbi Gillman has truly in the spirit of Maimonides helped thinking American Jews bridge the gap between secular philosophy, as they confront its issues on a daily basis in their professional and personal lives, and the religious tenets of a tradition which seemed to be losing ground during the twentieth and twenty-first century battle for the minds and spirits of this country's Jewish citizens. For that, we should all be grateful. This paper focuses on one small (and indeed, highly controversial) segment of Rabbi Gillman's teaching: his urgent call for a reassessment of the Conservative movement's approach to halakhah-Jewish law. In an address delivered to the 2005 United Synagogue convention (a version of which was published in this journal), he questioned whether the movement should continue to label itself halakhic in light of its consistently applied view that Jewish law must, to be a meaningful reflection of our perception
Syllabus: Studies in Jewish Law
This course will survey Jewish Law and its influential role in shaping and reflecting Jewish life throughout the ages. Students will become familiar with major law codes, from the Hebrew Bible to the early modern period, and will consider the idiosyncrasies of Jewish law and its various aspects, covering ritual, Jewish home and daily life, as well as common social aspects including torts and contract law. A main emphasis in this course will be the evolutional nature of Jewish law, showcasing the development of the legal tradition in Judaism throughout history, and raising questions of continuity and change: is there an essentialist kernel that is sustained throughout the various manifestations of Jewish law, and how conscious are rabbis of their choices to depart from a certain tradition? Other questions will address the distinction of law as a human construct vs. the view of divine law (e.g., deorayta and derabbanan); the hierarchy of laws concerning the divine and laws concerning one's fellow; the debate over whether law reflects reality or establishes it (essentialism vs. formalism); the tension of ethics and the law; and the rivalry between faith and practice. The second half of the course examines the fractured state of Jewish law in contemporary times from a codified tradition of multiple voices to a pluralism of diverse approaches to the law and its function in Jewish life, as well as its responses to contemporary concerns and non-religious institutions. We shall consider the function of religious law in liberal democracies, and the demands for autonomy by religious communities in Israel and the United States.
Equity in American and Jewish Law
Touro Law Review vol. 36 pp. 109-48, 2020
This article examines the subject of equity in the laws of the United States and in Jewish law. The equitable principles and remedies in American law are rooted in the common law of England. Their origins and development are fully addressed and elaborated upon infra. Alternatively, the equitable principles in Jewish law, as established in the Talmud, specifically in the Mishna and Gemara, are rooted in the Torah, which is divided into two separate parts: The written Torah, referred to in Hebrew as the “Torah Shebichtav” (literally translated from the Hebrew, as the “written Torah”), and the oral Torah, or “Torah Sheba’al Peh,” (literally translated from the Hebrew, as the “Torah in the mouth”). Jewish tradition holds that Moses received both at Mt. Sinai and that over the course of the Israelites’ forty-year trek through the desert, he imparted it to the people and that these were then passed down through the generations. The equitable principles of the Jewish law discussed herein focus mostly on the Mishna – a compilation of the oral law undertaken by Rabbi Judah the Prince, the Mishnah, in about the year 200 of the common era. It is the earliest authoritative written body of the Jewish oral law – and the Gemara, is set of texts encompassing the rabbinical analysis of and commentary on the Mishnah.
Elgar Encyclopedia of Comparative Law (2023), 2023
Jewish law has been the legal tradition of the Jewish people over the course of its thousands of years of existence. In important respects, its influence has reached beyond the life of the Jewish people, to the whole of Western law. Over its long history, Jewish law evolved a legal approach with unique features. After reviewing key points about the history and the classic works of Jewish law, this entry addresses several of its most general characteristics, namely, revelation and wisdom, sovereignty and exile, and rights and duties. It closes with a discussion of the role of Jewish law in modern Israeli law. This is a draft entry. The final version will be available in Elgar Encyclopedia of Comparative Law, edited by Katherine Valcke, forthcoming 2022, Edward Elgar Publishing Ltd. The material cannot be used for any other purpose without further permission of the publisher, and is for private use only.
This paper suggests a comprehensive approach to research on interactions of Jewish and other legal systems. It proposes methods to answer old questions and open new frontiers of research. specifically, the article ulitizes system theory, analysis of dynamics in systems and insights from complexity theory in analysing psika - jewish legal decision processes and the Jewish law as a body of knowledge and system. Each methodological argument can be read separately and each should be critically assessed. However, the arguments can also be read as fully intertwined, creating a whole that is greater than its parts. A concluding section discusses the organizational and conceptual challenges that are inherent to this paradigm shift.
Encircling the Law: The Legal Boundaries of Rabbinic Judaism
Jewish Studies Quarterly, 2009
There are a great many things which cannot withstand the implacable, bright light of the constant presence of others on the public scene; there, only what is considered to be relevant... can be tolcrated, so that the irrelevant becomes automatically a private matter. This, to be sure, does not mean that private concerns are generally irrelevant; on the contrary... there are very relevant matters which can survive only in the realm of the private."1 Jewish law has been an unmistakable presence in American legal scholarship. In her comprehensive and incisive article, "In Pursuit of the Counter-Text: The Turn to the Jewish Legal Model in Contemporary American Legal Theory,"2 Suzanne Last Stone traces and accounts for this phenomenon, attributing it to, among many other factors, the reception of Robert Cover's "tour de force,"3 which represents a "significant turning point in the growth of this new literature in American law and Judaism" and which "made it respectable to draw on the Jewish tradition in public discourse."4 Cover's work may be seen as a cornerstone of the "law and literature" movement with its emphasis on the central role of narrative in the construction of the nomos-and it has not only drawn
Jewish Law: New Perspectives, 2025
New Perspectives on Jewish Law combines the detailed work characteristic of scholarship on Jewish law with an orientation towards its broader academic and cultural significance. It shifts the study of Jewish law from its focus on legal doctrine and history to legal theory, achieving in the process a more sophisticated understanding of law that will benefit both the legal academy and Jewish studies. By employing the framework of legal theory, it similarly corrects an over-emphasis on the metaphysical presuppositions and philosophical implications of Jewish law, which has tended to cast it as exceptional relative to other legal systems. Moreover, it answers to old-new anxieties about law, often symbolized by Judaism, raised by contemporary feminists and by philosophers who are animated by recent interpretations of Paul through actual engagement with the Jewish legal tradition. The volume consists of three parts. The first focuses on the critique of positivism, its implications, and the new directions that it opens up for the analysis of Jewish law. The second part takes stock of recent methodological developments in the study of Jewish legal texts and investigates the relation between Jewish law and the disciplines, including history, literary theory, ritual studies, the digital humanities, as well as traditional approaches to Jewish learning. It concludes with a reflection on these interdisciplinary contributions from the perspective of legal theory. The third part explores the connections among Jewish law, philosophy, and culture critique. It assesses the relation or lack thereof between Jewish law and modern Jewish thought, and examines specific issues of philosophical interest, including truth and normativity. It also investigates the image of Jewish law in the contemporary critique of law as well as how Jewish law could productively contribute to that debate. It concludes with a reflection on these studies from the perspective of philosophy of law.
Jewish Legal Theory and American Constitutional Theory: Some Comparisons and Contrasts
Hastings Const. LQ, 1996
15. This Article as a whole (Part I in particular) is prompted in part by Professor Lawrence Lessig's comment on the inclusion in a book on constitutional amendment of Noam Zohar's essay on changes within Jewish law. See supra note 7. In acknowledging the value of Zohar's essay in relation to American legal theory, Lessig laments that "there is no way that lawyers can properly enter the world of Judaic interpretation through a single essay." Lawrence Lessig, What Drives Derivability: Responses to Responding to Imperfection, 74 TEx. L. REv. 839, 842 (1996). It is my hope that this Article will at least contribute to the ability of legal scholars to understand Jewish legal theory better. 16. MENACHEM ELON, JEWISH LAW: HISTORY, SOURCES, PRINCIPLES 233 (Bernard Anerbach & Melvin J. Sykes trans., Jewish Publication Soc'y 1994); see also AARON KIRSCHENBAUM, Eourry IN JEWISH LAW: HALAKHIC PERSPECTIVES IN LAw 10 (1991) ("The ultimate legal principle (Grundnorm) is the rule that the Torah, the Five Books of 1961). 17. The Oral Torah was transmitted orally, from generation to generation, through a carefully administered educational system. See MisHNA, Avoth 1:1; MAIMONIDES, Introduction to Mis-nE TORAH [hereinafter MAIMONIDES, CODE OF LAw]. As a result of persecution and exile, the Oral Torah was ultimately recorded in writing. See TALMUD BAVLI, Gittin 60a, especially the Tosafoth Rid commentary. The Talmud is the written, authoritative compilation of the oral traditions and interpretations. See MAIMONIDES, Introduction to the Mishna, in INTRODUCTIONS TO COMMENTARY ON THE MIsHNA, supra note 16, at 1, 85 [hereinafter, MAIMONIDES, Introduction to the Mishna]. It is comprised of the Mishna, which was compiled in the Land of Israel around the year 188 C.E., and the Gemara, which was compiled in Babylonia around the year 589 C.E. See ARYEH KAPLAN, Tim HANDBOOK OF JEWISH THOUGHT 187,237 (1974). A version of the Gemara was compiled in the Land of Israel as well (Talmud Yerushalmi), but the Babylonian Talmud, or Talmud Bavli, is more complete and more authoritative. See MAIMONIDES, Introduction to the Mishna, supra, at 84. 18. See MAIMONDES, Introduction to the Mishna, supra note 17, at 37. 19. See id. at 37-38; ELON, supra note 16, at 318-70. 20. See NACHMANIDES, Commentary to Maimonides, Book of Commandments, especially commentary to Chapter 2. This Part explores a number of themes in the interpretation of Jewish law, including sources and methods of interpretation, expansion and limitation through interpretation, authority in interpretation, and precedent. Many of the issues addressed in this Article find parallels, to varying degrees, in American legal interpretation, some of which will be discussed. This Part also demonstrates, if only implicitly, some of the difficulties involved in trying to compare a religious legal system with a secular one. A. Sources and Methods of Interpretation There are three basic sources and methods of legal interpretation in Jewish law. 7 1. Interpretations Revealed to Moses at Sinai 27. See generally MAIMONIDES, Introduction to the Mishna, supra note 17, at 30-40; RABBI Zvi HIRSCH CHAIES, Introduction to the Talmud, in COLLECrED WRINGS oF RABBI Zvi HIRSCH CHAms 281, 284-91 (1985). 28. MAIMONIDES, Introduction to the Mishna, supra note 17, at 34-36. 29. See id. at 33. 30. See id. 31. See id at 31-32. 32. See id at 32-33. 33. See id at 31.
Foreword: Benjamin N. Cardozo: Judge, Justice, Scholar
Touro law review, 2018
Conference Organizer. I thank former Dean Patricia Salkin and Dean Harry Ballan for their support and encouragement, and I thank Dean Ballan and the faculty, staff, and students at Touro Law Center for their participation. 1 The Jewish Law Institute aims to explore the relevance of the Jewish legal experience to American law, legal practice, and legal scholarship. Toward these goals, the Institute offers a variety of programs, including courses in Jewish law, conferences, public lectures, and scholarly publications. See The Jewish Law Institute, TOURO COLLEGE JACOB D. FUCHSBERG LAW CENTER, http://www.tourolaw.edu/JewishLawInstitute/jewish-law-institute.
The Oxford Handbook of Jewish Law
The genre of Responsa refers to rabbinic legal opinions and occupies an important station in the realm of halakhic literature. Beginning with the Geonim, Jewish legal scholars have authored responsa. There is no clear formulation as to the legal authority of these writings. The following chapter examines the modes for creating, di using, and consulting responsa as means of examining their legal authority and signi cance. This chapter traces trajectories of responsa texts, examining this genre as a source of law from three angles: communication, transmission, and organization. "Communication" discusses the role of responsa as epistolary writing, "Transmission" examines the subsequent publication of responsa, and "organization" studies how responsa collections were organized and its relation to legal authority. Finally, the chapter suggests that responsa permit thinking in cases, a mode of thinking as crucial to law as it is distinctive of responsa.
This paper examines the Talmudic framework of par he’elem davar shel tzibur—a communal offering brought when a judicial error by the Sanhedrin leads the public to sin—and its implications for judicial accountability in Jewish law. By comparing this ancient legal mechanism with the American doctrine of judicial immunity, particularly as developed through cases such as Stump v. Sparkman and Pierson v. Ray, the paper explores the philosophical and structural differences between the two systems. Whereas American law prioritizes judicial independence by shielding judges from personal liability for decisions made within their jurisdiction, Jewish law, at least according to one opinion in the Mishnah, assigns both ritual and financial responsibility to the judges themselves for the harm caused by their erroneous rulings. Through this comparative analysis, the paper highlights how Jewish legal principles centered on collective spiritual responsibility and public acknowledgment of error might offer valuable insights into enhancing accountability and restoring trust in modern legal systems. The study ultimately proposes that adopting mechanisms for transparent acknowledgment of judicial error—without necessarily undermining judicial independence—could enrich the ethical landscape of contemporary American jurisprudence.
Can Rabbinic Jurisprudence Help Elevate American Political and Legal Discourse
The Aspen Center for Social Values is more than a think tank. It is a network of socially-minded individuals seeking practical ideas to solve pressing social challenges. Its mission is to promote serious thought about -and to bring a fresh and unique voice to -social and societal challenges that confront the world today.
Jewish Law and Matters of State: Theory, Policy, and Practice
Journal of Law, Religion and State, 2012
In recent years Jewish religious leaders have often expressed religious opinions in matters concerning the foreign and security policy of the State of Israel. The present article focuses on the internal religious legitimacy of halakhic rulings in these matters and reveals the prerequisites that decisors must satisfy before voicing a binding halakhic opinion on issues concerning the Israeli Arab conflict, peace agreements, Jewish settlements in Judah and Samaria, etc. The article is divided into three parts that answer the following questions: (a) are matters of State policy subject to halakhic norms or are they situated outside the realm of Halakha? (b) does Halakha have a judicial policy seeking to rule on these issues? (c) what are the practical difficulties that decisors face if they wish to rule on them? The article points out the diversity of internal halakhic opinions on the questions under investigation, and outlines an analytical method for a halakhic discussion aimed at ans...