Recent Trends in the Study of the Intellectual History of Law and Jewish Law (original) (raw)
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A basic and ever present theme of modern legal theory, in both its analytic (American and British) and continental (European) variations, is the attempt to carve out a space for the autonomy of law that is immune to the reduction of law to politics, on the one hand, or to morality, on the other. In analytic jurisprudence, H. L. A. Hart remains, after more than half a century, the seminal figure seeking this foothold just as Hans Kelsen, also after more than half a century, remains the signal figure in the continental context. Hart sought to give an account of ‘‘the concept of law’’ while Kelsen attempted to develop what he called ‘‘the pure theory of law.’’ Both of these phrases indicate their shared endeavor to claim autonomy for the intellectual subject and practical sphere of law, a task that is of course replicated in the development of modern law schools and modern legal practice. In this paper I consider a parallel development in modern Jewish thought to claim autonomy for law...
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
“The Law of the State is the Law:” The Nature of Law in Jewish Jurisprudence
Review of Rabbinic Judaism, 2016
This essay presents medieval Rabbinic attitudes concerning the nature of law as it is expressed in the dictum "dina demalkhuta dina"-the law of the state is regarded as the Jewish law. The essay confirms that Rabbinic attitudes concerning the nature of law are harmonious with diverse philosophical approaches in classical jurisprudence, reflected in both "natural" and "positive" law theory. Here we focus on the rational and legal justifications for accepting non-Jewish rule, asking why a religious law, claiming its origins to a divine mandate, would submit to a seemingly inferior, non-Jewish law. The answer to this question sheds light on the Rabbinic attitudes to the nature of law in general.
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This chapter outlines the major themes and attitudes towards the sources of Jewish law and their nature against the backdrop of the theocentric–anthropocentric predicament. As in Late Antiquity, Jewish attitudes during the Middle Ages were polarized between those who repudiated human involvement in the law and others who celebrated human prudence. Nevertheless, the nature of the sources of Jewish law and the manner in which they function and construct the body of that law and its operation appears to be integral to any depiction of Jewish law. Historical discourses about the sources of Jewish law are typified by a struggle with a biblical paradigm in which epiphany is the ultimate source of law. Clearly, the biblical model raises questions about the role and the weight of human agency in the law and its operation, and thus the various understandings of the sources of Jewish law can be examined through the margin between epiphany and human prudence.
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This chapter shows that the history of Jewish law is more a matter of historiosophy, that is, of interpretation and meaning, rather than descriptive historiography, than are the histories of other religio-legal traditions. The historical narration of Jewish law is itself a disputed matter across the generations and one indispensable to ideologies and views concerning the Jewish religion. Depicting the history of Jewish law, of which there is no unitary or trans-historical conception, because each of its components – ‘history’, ‘Jewish’ and ‘law’ – is highly contested and subject to intensely held ideological perspectives. In various discourses, the subjugation of Jewish law to external meanings and conceptions was a choice intentionally made by Jewish thinkers and jurists, so that in different contexts it became the authentic and authoritative manifestation of Jewish law. Because Jewish law was seen as a means of achieving personal perfection, transcending ethnic belonging and history, its particularity to the Jews and its very Jewishness were questioned.