History of Halakha and Jewish Law Research Papers (original) (raw)

Is there a Jewish version of the theory of “just and unjust wars” found among Christian theologians? Some say “no” and some say “yes,” and their answers seem to depend upon their notion of what counts as an authentic interpretation of the... more

Is there a Jewish version of the theory of “just and unjust wars” found among Christian theologians? Some say “no” and some say “yes,” and their answers seem to depend upon their notion of what counts as an authentic interpretation of the classical Jewish (principally halakhic) sources. So what is an “authentic” or valid interpretation of those sources? This article, written primarily for a Reform rabbinical audience, briefly surveys the theological and halakhic literature and discusses some of the major approaches to “the” hermeneutical question: how do we go about establishing validity in legal and halakhic interpretation?

From the Canadian Jewish News June 28, 2018 (p. 4).

ERRATA: "Specific" should be "Specify."

This article considers the halakhic work Orot Hamivot (1753) of Benyamin Dias Brandon, and its posthumous co-editor, Isaac Cohen Belinfante. The article situates this publication in the intellectual Portuguese-Jewish milieu of... more

This article considers the halakhic work Orot Hamivot (1753) of Benyamin Dias Brandon, and its posthumous co-editor, Isaac Cohen Belinfante. The article situates this publication in the intellectual Portuguese-Jewish milieu of eighteenth-century Amsterdam and the kinds of scholarship and ideals of erudition that were fostered in its Ets Haim yeshiva. More specifically, the article shows how Brandon’s and Belinfante’s work contributed to a wider tradition of literature, flourishing in the early eighteenth-century, that combined halakhic arguments with polemical defenses of rabbinic authority. This literature built on seventeenth-century precedents, but it also broke new ground by incorporating developments in natural science, such as theories of atomism, into halakhic thought.

The Roman empire set law at the center of its very identity. A complex and robust ideology of law and justice is evident not only in the dynamics of imperial administration, but a host of cultural arenas. Citizenship named the privilege... more

The Roman empire set law at the center of its very identity. A complex and robust ideology of law and justice is evident not only in the dynamics of imperial administration, but a host of cultural arenas. Citizenship named the privilege of falling under Roman jurisdiction, legal expertise was cultural capital. A faith in the emperor’s intimate concern for justice was a key component of the voluntary connection binding Romans and provincials to the state.
Even as law was a central mechanism for control and the administration of state violence, it also exerted a magnetic effect on the peoples under its control. Adopting a range of approaches, the essays explore the impact of Roman law, both in the tribunal and in the culture. Unique to this anthology is attention to legal professionals and cultural intermediaries operating at the empire’s periphery. The studies here allow one to see how law operated among a range of populations and provincials—from Gauls and Brittons to Egyptians and Jews—exploring the ways local peoples creatively navigated, and constructed, their legal realities between Roman and local mores. They draw our attention to the space between laws and legal ideas, between ethnic, especially Jewish, life and law and the structures of Roman might; cases in which shared concepts result in diverse ends; the pageantry of the legal tribunal, the imperatives and corruptions of power differentials; and the importance of reading the gaps between depiction of law and its actual workings.
This volume is unusual in bringing Jewish, and especially rabbinic, sources and perspectives together with Roman, Greek or Christian ones. This is the result of its being part of the research program “Judaism and Rome” (ERC Grant Agreement no. 614 424), dedicated to the study of the impact of the Roman empire upon ancient Judaism.

There are two contradicting approaches in contemporary Jewish law towards torture, and then some in between - from prohibiting and criminalizing to condoning it as part of state action. In this article, I propose reading Amery on torture... more

There are two contradicting approaches in contemporary Jewish law towards torture, and then some in between - from prohibiting and criminalizing to condoning it as part of state action. In this article, I propose reading Amery on torture as a political act, as it reveals new perspectives on torture in Biblical narrative and in Jewish legal sources, and it suggests a recalibration of the considerations in deciding between the available legal options.

This paper traces the life-cycle of the midrash-myth that the Israelites in Egypt did not change their name, language, or mode of dress. It addresses the origins of the midrash, its re-emergence in the anti-acculturationist discourse of a... more

This paper traces the life-cycle of the midrash-myth that the Israelites in Egypt did not change their name, language, or mode of dress. It addresses the origins of the midrash, its re-emergence in the anti-acculturationist discourse of a specific circle in the early nineteenth century, and its role in the emergence of “Ultra-Orthodoxy” in 1860s Hungary. It will offer a hypothesis on how and why specifically this obscure midrash caught on in that circle and attempt to explain its adoption by Ultra-Orthodox leaders in the latter part of the century. It will then consider the spread of the meme in the late nineteenth and early twentieth centuries, in Hungary and beyond. Finally, it will address how it was absorbed into halakhic culture, considering the rhetorical significance of non-legal material in halakhic writings.

The biblical signs to distinguish between kosher and non-kosher fish seem exceedingly straightforward: the presence of fins and scales defines a fish as kosher. Despite this seeming simplicity, there have often been difficulties in... more

The biblical signs to distinguish between kosher and non-kosher fish seem exceedingly straightforward: the presence of fins and scales defines a fish as kosher. Despite this seeming simplicity, there have often been difficulties in classifying certain fish. The swordfish (Xiphias gladius) is an example of a fish with an interesting halakhic history. Possibly mentioned as early as the Tosefta, a " fish with a sword " was permitted in the 17th century and repeatedly thereafter. In the 20th century, the kosher status of the swordfish became the subject of an acrimonious debate between the Orthodox and Conservative rabbinate in the United States, and between American Orthodox rabbis and the Israeli rabbinate. This paper traces that history, presents the arguments of the various players, and endeavors to explain why those who prohibited the swordfish seem to have won.

This article analyses electronic she’elot u-teshuvot – responsa in Jewish law exchanged via the internet or SMS – and the vast online databases created by these network systems. From the perspective of twenty years of activity, it... more

This article analyses electronic she’elot u-teshuvot – responsa in Jewish law exchanged via the internet or SMS – and the vast online databases created by these network systems. From the perspective of twenty years of activity, it highlights how the systems and the databases make possible and even promote phenomena that strive to undermine traditional Halakha and its institutions. Three phenomena are examined: satire, trolling, and women as authors of electronic responsa in Jewish law.
While there are historical precedents and contemporary parallels for each phenomenon, the internet is propelling them to new horizons. Despite the increase in satire and trolling, these efforts have been unsuccessful at shifting traditional Jewish legal institutions or changing specific norms. Satire echoes age-old critique of Jewish law that can be traced back to the Haskalah, the Jewish Enlightenment. As such, the satire is not an agent of halakhic change in our times. Trolling also does not impact the halakhic system, though for a different reason: due to filters at different stages of the electronic responsa process, trolling is nothing more than background noise to the smooth operation of electronic responsa systems.
In contrast, it is possible that the entry of women into the responsa field heralds a change in Jewish law. The online medium makes entry into the field of Halakhic decision-making an easier prospect. Indeed, some fifty women have begun to be active in responding to halakhic questions via the internet. The legal answers of these female respondents are then stored in online databases of responsa, which remain widely accessible.
The internet also amplifies the ability of the public to influence the halakhic agenda. It remains to be seen to what extent the public will accept these online female respondents.

Many rabbis today state that Halakha permits intimate relations only within the framework of marriage. In this article I show that there are many solid halakhic sources that hold otherwise. I suggest that in light of social and cultural... more

Many rabbis today state that Halakha permits intimate relations only within the framework of marriage. In this article I show that there are many solid halakhic sources that hold otherwise. I suggest that in light of social and cultural changes in our times, there are good reasons for making the permissive sources available to halakhically committed couples contemplating their options.

In Israel, there are many "private" rabbinical courts (i.e. courts operating outside the official system of rabbinic jurisdiction) but most of them focus exclusively on civil law. The article is the first attempt to describe the... more

In Israel, there are many "private" rabbinical courts (i.e. courts operating outside the official system of rabbinic jurisdiction) but most of them focus exclusively on civil law. The article is the first attempt to describe the activities of the private ultra-Orthodox rabbinical courts in the field of divorce. In particular, it deals with the two main private courts in this field: the 'Badatz Eda Charedit' in Jerusalem and the court of Rabbi Karelitz in Bnei Brak.
This activity naturally raises serious legal questions. The article deals with the history of these courts and with the way that Israeli law and the official rabbinical courts treat them. It tries to explain why Israeli citizens (ultra-Orthodox and others) to turn to these unofficial institutions, and what is their judges self-justification for dealing divorce cases outside the official system. It also deals with the way they deal with Gittin (the Jewish divorce writs) and with other issues related to divorce cases (for example, the division of marital property).
The article also discusses the complex relationship between these courts and the official rabbinical courts. In some cases, there is cooperation between them, but in other cases, there is a sharp tension. The most problematic situations are cases in which "private" judges claim that there is a halakhic problem in a get that was arranged in the official system.

Although miqwa’ot and chalkstone vessels have been found throughout Israel, the unparalleled number of such finds at Jerusalem has conventionally been explained in terms of the special demands of the Temple cult and of the city’s priestly... more

Although miqwa’ot and chalkstone vessels have been found throughout Israel, the unparalleled number of such finds at Jerusalem has conventionally been explained in terms of the special demands of the Temple cult and of the city’s priestly residents. In light of a growing number of archaeological discoveries from the past number of years, however, the conception that Jerusalem and its Temple served as focal points of ritual purity observance deserves to be significantly reevaluated. The new data indicate that regular, widespread use of ritual baths and chalkstone vessels was not at all unique to Jerusalem or the priesthood, but rather was commonplace to a comparable degree in Jewish society throughout early Roman Judea. Jews everywhere throughout the country strove on a regular basis to maintain the purity of their bodies, clothing, utensils, food, and drink, and there is no reason to suppose that in doing so they somehow had the Temple in mind. Most Jews living at this time would probably have understood the pentateuchal purity regulations as prescribing that ritual purity be maintained on a regular basis in ordinary, everyday life – without specific regard to the Temple or its cult. This new understanding encourages us to reinterpret the archaeological finds from Jerusalem as reflecting an important facet of prevailing common culture rather than as stemming from the unique sanctity of Jerusalem, the Temple, or its priests.

!AVISO! Este documento ha sido preparado exclusivamente para propósitos académicos. Cualquier pregunta halájica debe dirigirse a los rabinos de Obadyah Alliance a info@obadyah.com Desde hace unas décadas en el mundo occidental, las... more

!AVISO! Este documento ha sido preparado exclusivamente para propósitos académicos. Cualquier pregunta halájica debe dirigirse a los rabinos de Obadyah Alliance a info@obadyah.com Desde hace unas décadas en el mundo occidental, las personas de preferencia homosexual han logrado obtener ciertos derechos en la esfera pública. Por lo general, los judíos ortodoxos han mantenido una posición obstinada en frente a esta novedad social. Ha sido la experiencia del género humano, que ciertas personas practiquen la homosexualidad, ya sea por razones culturales, por sentimiento, durante una guerra o simplemente por placer. Cuando el imperio romano adoptó el cristianismo y luego el mundo oriental el islam, la homosexualidad quedó como anatema. Después de la revolución francesa y luego las dos guerras mundiales, el mundo occidental tomó una posición anti-religiosa. A pesar de dicha actitud, ciertos sectores de la sociedad no han podido asimilar a la homosexualidad. Últimamente, la comunidades judías tradicionales han tenido que responder a este fenómeno. El 27 de mayo de este año, fue ordenando el primer rabino [Daniel Landes] abiertamente homosexual, en Jerusalén. ¿Cómo enfrentará la comunidad judía a lo que viene? ¿Qué dice la halajá en cuanto a estos cambios? La Toráh contiene dos prohibiciones en cuanto al coito anal entre dos hombres: ‫ִוא‬ ‫ה‬ ,‫ָה‬ ‫ֵב‬ ‫ּתֹוע‬ :‫ָה‬ ּ ‫ִׁש‬ ‫א‬ ‫ֵי‬ ‫ְב‬ ‫ְּכ‬ ‫ִׁש‬ ‫מ‬ ,‫ַב‬ ‫ְּכ‬ ‫ִׁש‬ ‫ת‬ ‫ָר-ֹלא‬ ‫ָכ‬ ‫ֶת-ז‬ ‫ְא‬ ‫.ו‬ No te acostarás con un hombre como quien se acuesta con una mujer. Eso es una abominación.

Prevalent in contemporary societies, the custom of ransoming prisoners of war has a long history which goes back to Antiquity. In our modern perspective it is perceived as a political act, a matter of the public and part of international... more

Prevalent in contemporary societies, the custom of ransoming prisoners of war has a long history which goes back to Antiquity. In our modern perspective it is perceived as a political act, a matter of the public and part of international affairs of states. In what follows I will show that this was not always the case, and that the perception of ransoming captives as a public act was a product of the changes in the religious and political sphere of the Roman Empire during the first centuries A.D. My purpose is twofold. On the one hand, I will show a parallel development in the custom of ransoming captives as a public act in both Christianity and Judaism. On the other hand, I would like to explain this development against the political background of the Later Roman Empire. Such a twofold objective will furthermore allow to draw some general conclusions in regards to the dynamic relation between the private and the public in Late Antiquity. In the Babylonian Talmud, Bava Batra 3b, we find the following discussion between Ravinah and Rav Ashi concerning the rules of dismantling a synagogue-building. Commenting on Rav Hisda who said: " a person may not demolish a synagogue until he has built another building, " Ravinah asks: " What if the money for a new synagogue building has been collected and it is depos-ited? " May one at that point tear down the old building before the new one is erected? Rav Ashi replies: " They may be called upon for money to be used to pay the ransom to redeem captives and thus will need to use the money for this purpose. " Ravinah insists: " What if the bricks for the new synagogue are stacked and rafters are planed and beams are deposited? " To that replies again Rav Ashi: " Sometimes an opportunity for redeeming captives will arise and they will need to sell the materials for that purpose, " and will thus be left with no synagogue if they dismantled the old one. And Ravinah continues: " If so, even after they have built the new synagogue they should not demolished the old one, since they may need to sell the new one to raise money to redeem captives? " To that replies Rav Ashi: " people do not sell their dwellings. " 1 1 Translation by Schottenstein (Tractate Bava Basra I, Brooklyn NY, 2001) with my corrections .

The central object of the essay is to describe two ways to writing the history of Halakhah. I portray two archetypical dichotomous approaches to the historical research of Halakhah defined as positivist and contextual. The halakhic... more

The central object of the essay is to describe two ways to writing the history of Halakhah. I portray two archetypical dichotomous approaches to the historical research of Halakhah defined as positivist and contextual. The halakhic positivist approach is the outcome of traditional yeshiva studies, while the contextual approach is the product of scholarship practiced in universities and other academically oriented institutes of Jewish studies. These approaches adapted from the frameworks shaped by philosophers and historians seeking to describe and discuss the history of science. The terminology which derives from the philosophy of Natural Science facilitates the secondary object of the article, i.e. comparing the work of historians of Halakhah to the work of historians of Science.

במאמר זה אני מציג בפני הקורא את הכלל התלמודי 'דברה תורה כלשון בני אדם'. הכלל הזה מופיע בדברי התנאים בתלמוד הירושלמי והבבלי. חכמים אלו רצו להסביר עם הכלל הזה מדוע הם דוחים נסיון של חכמים אחרים לדרוש מלים כפולות. אני מראה את ההיקרויות... more

במאמר זה אני מציג בפני הקורא את הכלל התלמודי 'דברה תורה כלשון בני אדם'. הכלל הזה מופיע בדברי התנאים בתלמוד הירושלמי והבבלי. חכמים אלו רצו להסביר עם הכלל הזה מדוע הם דוחים נסיון של חכמים אחרים לדרוש מלים כפולות. אני מראה את ההיקרויות והמחלוקות השוונות בשני התלמודים, את החכמים שהשתמשו בכלל הזה ואת אלה שעליהם הם חלקו. בהמשך המאמר אני מראה את התפתחות השימוש בכלל הזה מתקופת הגאונים ועד ימינו ומנסה להסביר את הסיבות לשינויים שהתרחשו.

To date, early Christian sources have drawn the scholarly attention of theologians, scholars of biblical commentary, and historians, but not of legal historians, presumably because such sources do not offer sufficiently substantial... more

To date, early Christian sources have drawn the scholarly attention of theologians, scholars of biblical commentary, and historians, but not of legal historians, presumably because such sources do not offer sufficiently substantial material for legal historical research. Nevertheless, a few studies have blended legal history and late antique Christianity, and an analysis of these studies shows they are based on a " centralist, " or " formalist–positivist, " conceptualization of law. In this paper I review the scholarship of legal traditions in the eastern Roman Empire— namely, Roman law and Greek legal traditions, the halakha in rabbinic literature , and the halakhic traditions in Qumranic literature and in the New Testament—and con-textualize it within developments in legal theory and legal sociology and anthropology (that is, the rise of legal pluralism). This review shows that developments in legal theory, in legal sociology and anthropology, and in legal history of the late antique world are producing new paradigms and models in the study of late antique legal history. These new models, together with new methods in reading early Christian non-legal texts of the eastern Roman Empire, can be utilized in the study of early Christianity, thereby opening gateways to the study of its legal traditions and revealing independent legal traditions that have remained hidden to date.

This paper proposes that R. Solomon Luria’s description of R. Meir of Rothenburg’s noble refusal to be redeemed from prison, is a later and erroneous version of a discussion concerning an anonymous 12th-century sage whose contemporaries... more

This paper proposes that R. Solomon Luria’s description of R. Meir of Rothenburg’s noble refusal to be redeemed from prison, is a later and erroneous version of a discussion concerning an anonymous 12th-century sage whose contemporaries were prohibited from redeeming his body for an exorbitant sum, due to the talmudic rule, “captives may not be redeemed for greater than their value because of tikkun olam” (mGit 4:6). The suggestion that this story was later introduced into the story of Maharam resolves a puzzle posed by Luria himself: how could Maharam have failed to realize that his refusal to be redeemed would be detrimental to Torah learning in Europe? The author believes that, while his idea cannot be proved, it is as convincing as the other resolutions of the contradiction between Luria’s report and that of Judah ben Asher concerning the attempts to redeem Meir of Rothenburg from prison.