Jewish Law and Legal Theory 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?

In this article, I examine jurisprudence textbooks and related works written in the British Empire in the late-19th and early-20th centuries, focusing mostly on British India, but also discussing Mandatory Palestine and British-ruled... more

The category of thought called “Reform halachah” is a difficult thing to theorize. It isn’t easy to explain (let alone to justify) the existence of a genre of legal writing within a Jewish movement that famously champions personal... more

The category of thought called “Reform halachah” is a difficult thing to theorize. It isn’t easy to explain (let alone to justify) the existence of a genre of legal writing within a Jewish movement that famously champions personal religious autonomy. Lacking a satisfactory theological theory, Reform halachic writing perhaps should not exist. But then, it does exist, in impressive quantity. This paper argues that a “bottom-up” approach - the study of the practice of Reform halachah, in the form of a close reading of a Reform responsum - can lead us to the conclusion that Reform halachah does have a theory, a theological justification for its existence.

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... 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.

The rabbinic idiom “for I say” (שאני אומר) has been construed philologically as a specific type of presumption, buttressed with first-person rhetoric. From the perspective of legal analysis, I contend that “for I say” and presumption are... more

The rabbinic idiom “for I say” (שאני אומר) has been construed philologically as a specific type of presumption, buttressed with first-person rhetoric. From the perspective of legal analysis, I contend that “for I say” and presumption are diametrically opposed decision-rules, employed consistently in tannaitic and amoraic literature. While presumptions are exclusionary rules, circumscribing doubt, “for I say” is an inclusionary rule, validating doubt. The versatility of the “for I say” rule testifies to its preliminary nature – while the outcome is determined by a robust set of primary decision rules. “For I say” should be read as: for I can say, legitimizing doubt and calling on primary rabbinic rules for treating cases of factual uncertainty, in contestable instances.

In the 13 th century, Maimonides revolutionized Jewish jurisprudence by arguing that in contrast with traditional rabbinic views of the Torah's commandments (i.e. the written divine law) as ends in themselves, Scripture's commands were... more

In the 13 th century, Maimonides revolutionized Jewish jurisprudence by arguing that in contrast with traditional rabbinic views of the Torah's commandments (i.e. the written divine law) as ends in themselves, Scripture's commands were better viewed as means to the end of a truthful, rational understanding of the world. The material content of the law was always to be understood as accompanied by an additional layer of fundamental formulations of beliefs and opinions regarding God and nature. Maimonides' theory of law began with the idea that human nature was perfected to the extent that it achieved a rational understanding of things. By holding that the ultimate end of law was to function as a means for the realization of human perfection, Maimonides placed a tool for social stability at the heart of the individual striving for ethical flourishing. In this article, I argue that Maimonides' understanding of law's ultimate end may help us deal with the question of how to approach the phenomenon of an ever-increasing reliance on AI in modern life from the perspective of law. My argument suggests that AI can be understood as a threat to law's natural and (according to Maimonides) necessary participation in the ethical process towards intellectual perfection.

Jews have resided in the American South for much of its history. Wherever Jewish communities reached a critical size, institutions for supporting the practice of Judaism and life cycle events were established. Most commonly first came a... more

Jews have resided in the American South for much of its history. Wherever Jewish communities reached a critical size, institutions for supporting the practice of Judaism and life cycle events were established. Most commonly first came a cemetery, possibly with a Hebrew benevolent society, then a minyan, followed by a synagogue and school. Another was a Board of Trustees, often called the adjunta in the colonial congregations, all of which followed Sephardic tradition. The board occasionally functioned as an informal Jewish court of arbitration managed by lay leaders to resolve internal problems and disputes, in contrast to a beth din, a formal court conducted by ordained rabbis. In antebellum southern Jewish communities, board tribunals were usually temporary and formed as needed. The members were often the community’s most knowledgeable individuals in matters pertaining to Judaism, who rendered decisions in disputes—not a jury of peers, but a panel of experts.

In this essay I analyze three lengthy passages of Tosafot on the Bavli through a "law and literature" lens. I identify rhetorical and literary features common to all three, after which I model a close reading of one passage: Tosafot to B.... more

In this essay I analyze three lengthy passages of Tosafot on the Bavli through a "law and literature" lens. I identify rhetorical and literary features common to all three, after which I model a close reading of one passage: Tosafot to B. AZ 2a, s.v. "asur." That reading demonstrates that the Tosafist passage is actually a carefully structured sustained argument designed to persuade the reader of the rightness of Rabbenu Tam's view of the issue at hand.