Jewish Law Research Paper

This research paper will provide an overview of Jewish law from the perspective of legal theory; descriptions of institutions and trends are therefore general and do not mention exceptions and unique cases.

1. Preliminary Remarks

The role of the halakha in postbiblical Jewish civilization cannot be overestimated. It is not only the force that held Jews together, both in the land of Israel and throughout the Diaspora, but its study and interpretation are also the primary focus of Jewish intellectual endeavor, by far overshadowing philosophy, homiletics, and Kabbala. Study of the law is a paramount religious duty, to be carried out daily by laymen as well as scholars. Social and personal success are measured by achievement in studying the law. Furthermore, students are encouraged to speak their mind, even if their opinions diverge from the received view, empowering individuals to participate in the evolution of the law. Though limited to those actually engaged in Torah study, this participation has a ripple effect, generating a sense in the community that the law, being an ongoing enterprise rather than dictated from above, is democratic, so to speak. Most halakhic literature is authored by individuals who hold no official position, and whose authority is accepted by the community due to their erudition and integrity. Another element that reflects the participatory dimension of Jewish law is its cardinal, all-embracing decision-making principle that the law is in accordance with the majority view.

1.1 Historical Survey

The following periods can be distinguished in the history of Jewish law: the biblical period, the talmudic period (first century BCE to fifth century CE), the Geonic period (sixth century to twelfth century), the period of the Early Authorities (Rishonim) (thirteenth century to sixteenth century); and the period of the Later Authorities (Aharonim) (seventeenth century to the present). Four main geographic centers of legal activity are similarly distinguished: the land of Israel and Babylonia, in the talmudic and Geonic periods, and later, Sfarad the Iberian peninsula (north Africa, and Ashkenaz Franco-Germany). Peripheral centers were largely under the influence of these four centers. As to the biblical era, on the internal self-understanding of Jewish law, the Torah is an expression of a unified divine revelation, a claim unacceptable to contemporary biblical research. Hence a convention has emerged among most scholars of Jewish law to the effect that biblical research is considered a field distinct from research in Jewish law.

1.2 Jewish Law As A Legal System

From the jurisprudential point of view, it is difficult to see the different periods and centers as constituting a single system of law, since the hierarchical institutional structure that is the hallmark of any legal system is absent. Jewish law developed despite the fact that it is not the positive law of any state, and its central institution, the Great Sanhedrin, the high court—the institution responsible for maintaining the system’s uniformity and coherence—has not existed for about 2,000 years. Certain parts of Jewish law, especially those corresponding to modern criminal law, have not been in force since. A tension between this anomalous reality and the ideal of a sovereign Jewish regime in its own territory with its own institutions, reflected in the frequently encountered term ‘in our day,’ which connotes the inferiority of our times, pervades Jewish law.

In the absence of a constitutive institution, Jewish law is generated by the following elements, between which there is yet more tension: (a) the rabbinical establishment, the teachers and students of the law at the rabbinical academies (yeshi ot), where they study the canonical texts of Jewish law, engaging in debate and dialogue as questions arise; (b) the Jewish communal establishment, responsible for conducting the civic affairs of Jewish communities; (c) the members of the community, who, by adopting certain customs and comportments on their own, force the establishment to acknowledge these behaviors, sometimes condoning them, sometimes attempting to repress them; and (d) the Gentile societies within which Jews live. The extent of the autonomy of Jewish communities varied from place to place and era to era, but there was always a certain trickledown effect by which Gentile mores penetrated the Jewish communities; it may explain, to some extent, the diversity of the different Jewish communities.

A more direct source of this diversity of customs and behaviors, which is tantamount to a state of de facto legal pluralism, is the fact that communities are guided by different halakhic authorities. Special status is accorded the local authority, the mara deatra. The halakhic establishment validates the community’s acceptance of the halakhic authority of its choice, recognizing his decisions as binding on residents of that locale, even if at variance with the prevailing views on the issues at hand.

At the same time, no rigid schools of thought were created in the Jewish world, and the works and rulings of every halakhic authority, regardless of the place and time of their composition, are considered relevant to the halakhic dialogue. Even if it is difficult, from a conceptual point of view, to justify the claim that the various centers, throughout the different periods, make up a single system, from the sociological point of view there is no doubt that the communities see themselves as constituting a single system.

1.3 Legislative And Judicial Institutions

The two main organs of any legal system, the judicial and the legislative, are also found in Jewish law. Whereas rulings of the Sanhedrin were universally valid, ‘in our day’ all legislation (takanot) is of local validity only. Nevertheless, it is abundant and of wide scope, covering all areas of civil and ritual law. The judiciary, too, is highly developed. The following issues pertaining to courts (batei din) are extensively discussed in the halakhic literature: alternative methods of dispute resolution, such as arbitration and compromise; appointment of judges; qualifications for judges; payment for judging; composition of the court; self-representation and representation by an agent; due process and equal treatment of all sides; the prohibition against personal or financial interest in the case on the part of the judge; fitness of witnesses and their examination; issuing rulings in writing; and the publication, finality, and implementation of rulings. The extent to which these theoretical discussions can be applied in practice, however, is a function of the degree of autonomy granted the community by the Gentile authorities. Adjudicating disputes within the Jewish court system, where possible, is zealously insisted upon, resort to Gentile courts being considered tantamount to renunciation of the halakha’s authority.

2. Talmudic Law

2.1 The Talmudic Period As The Formative Era Of Jewish Law

The formative era of Jewish law is the talmudic period, during which foundational texts of Jewish law— the Mishna and the Talmud—were composed. The Mishna is the pre-eminent compilation of the teachings of the Tannaites, sages who lived in Palestine in the first two centuries CE. Arranged thematically, it covers all aspects of Jewish law. The Mishna itself became a focus of interpretative analysis by later sages, the Amoraites, whose work was not limited to commentary on the law, but also addressed the general culture of the time. Palestinian Amoraic academies produced the Jerusalem Talmud, compiled around 400 CE; Babylonian Amoraic academies produced the Babylonian Talmud about a century later. Redaction is far more evident in the latter than in the former.

2.2 Divine Origin And Human Elaboration

Talmudic law is premised on the divine revelation of the Torah to Moses (first half of the thirteenth century BCE) at Mount Sinai (the written law), and the accompanying oral revelation (the oral law), later committed to writing. Together, they record the divine precepts (mitz ot) according to which the Jewish people must conduct themselves. Despite the Torah’s divine origin, it was subjected to human scrutiny and elaboration. A distinction emerged between deoraita and derabanan, the former term denoting that deemed of divine origin, the latter, that deemed of human origin. Rabbinic interpretation of the law is not arbitrary, but applies what are known as ‘the 13 exegetical principles by which the Torah is interpreted.’ Some of these principles of logical inference determine the meaning of the written law, others enable new rules to be extrapolated from it. There is, however, some debate as to whether these rules were actually employed by the sages of the Talmud to generate new laws, or were but a literary device used to link new laws to the biblical text (asmakhta).

Talmudic law distinguishes between precepts pertaining to interpersonal relations (mitz ot bein adam leha eiro) and precepts pertaining to the relationship between individuals and the Almighty (mitz ot bein adam lamakom). These realms are not altogether distinct, being interwoven, both conceptually and in practice. The precepts can also be divided into those falling under monetary law (mamonot) and those falling under ritual law (isur eheter). Monetary law, deemed jus dispositi um, is generally approached with greater flexibility, allowing adjustments necessitated by changing circumstances to be readily instituted. Despite this flexibility, in monetary disputes extreme caution is exercised before ruling that someone’s assets are to be taken away.

2.3 Jewish Law As An Elaboration Of The Talmud

The evolution and philosophy of Jewish law cannot be understood without a firm grasp of talmudic law. The unique position of the Babylonian Talmud vis-a-vis later works is grounded in the fact that it is the latest text universally accepted as binding by the halakhic authorities. Responsible for establishing its authority were the Geonim, heads of Babylonian talmudic academies after the Muslim conquest of Babylonia. From then on, every legal discussion takes as its starting point the Babylonian Talmud’s position on the question at hand, though it is not necessarily followed. Accordingly, the remainder of this research paper will focus on the features of Jewish law that emerge from talmudic law.

Due to its interpretative nature, halakhic creativity emerges in successive layers, in tree-ring fashion. As earlier contributions are always retained, the evolution of the law can be traced relatively easily. Most of the halakhic literature is essentially elaboration of and commentary on the Talmud—the pre-eminent commentator being Rashi, R. Solomon Yitzhaki (France, 1040–1105)—and its application to changing circumstances. The Tosafists, students of Rashi, were preeminent in this enterprise. At various times, so-called ‘legal codes,’ expositions of the law up to that point, were complied, particularly in the Sfardic tradition. Notable examples are the code of Maimonides (SpainEgypt, 1135–1204), the Mishne Torah, the sole completely comprehensive treatment of Jewish law; the Arbaa Turim, by R. Jacob b. Asher (Franco-Germany, Spain, c. 1269–1343); and the Shulhan Arukh, by R. Joseph Caro (Israel, 1488–1575). These codes themselves became the focus of interpretive activity, generating a new genre of commentaries that came to be known as ‘armor bearers,’ the codes being the ‘knights.’

3. Characteristic Features Of Jewish Law That Emerge From Talmudic Law

3.1 Exposition And Implementation

A potentially misleading duality between the exposition of the law and its implementation in practice has always existed in Jewish law. The use of exact measurements and precise formulations (midot eshiurim), the meticulous phrasing of laws, the avoidance of such abstract formulations as ‘reasonable behavior’ and ‘bona fide conduct,’ could create the impression that talmudic law is a dry legalistic system within which rights and obligations are decided pedantically. But this impression is fundamentally incorrect. The nature of talmudic law as implemented in practice (halakha lemaase) cannot be inferred from its theoretical exposition (halakha). This distinction is not imposed upon the sources, but found in the sources themselves. Thus, for example, the Talmud explains a misunderstanding as follows: ‘He was talking in terms of theoretical law, and they understood him as if he was talking about the implementation of the law’ (jBeitza 2a); and states: ‘One who inquires about practical law must state that he is inquiring for practical purposes … [given] a practical inquiry and a theoretical inquiry, the practical takes precedence’ (tSanhedrin 7:7).

Any attempt to describe Jewish law must therefore carefully distinguish between law intended for implementation and theoretical law. An account of the former for the talmudic period must be based on episodes, precedents, and rulings related in the Talmud; for the post-talmudic period, the responsa literature is a far more reliable source for ascertaining the law intended for implementation than the other genres of halakhic writing. The responsa literature, which originated in the Geonic period, and has flourished ever since, consists mainly of legal opinions issued in response to queries submitted by courts regarding cases before them. Over the years, a corpus of some 250 000 responsa has accumulated; part has been electronically indexed by the Bar llan Responsa Project. Another source of information about actual application of the law is extant records of the legal activity, judicial and legislative, of various communities (pinkasei hakehilot) from centuries past, as well as extant collections of legal instruments.

3.2 Judicial Deviation From The Law

An accepted truism in western legal thinking is that a judge’s ruling must accord with the law. It must be presented as grounded in a well-defined body of norms supplied by the system, known in advance, and applied to the case at hand. The jurisprudential approach that emerges from the Babylonian Talmud does not fit this model. Rather, the judge has the power to deviate from the law and base his ruling on extralegal considerations. A tradition reported in the name of R. Eliezer b. Jacob encapsulates this aspect of the judicial process: ‘I heard that the beit din punishes … not according to the Torah’ (bSanhedrin 46a).

Obviously, in most cases there will be no discrepancy between the theoretical law and concrete rulings. What is significant is not the frequency of deviation, but the fact that it is an option. The judge does not see himself as constrained by the legal rules, and if, in his eyes, the circumstances of the case justify deviating from them, he need not hesitate to act accordingly. Of course, this does not sanction arbitrary, unreasoned deviation. When a judge deviates from the law, he does so in order to impose the spirit of the Torah, which is traditionally perceived as not given to reduction to a set of rules. Over time, this became the norm in the application of the law throughout the halakhic world, and while judges did not always feel comfortable deviating from the law, their authority to do so was never questioned.

Thus, three levels of law, the first two of which, will, more often than not, overlap, can be discerned: theoretical law (halakha), law intended for implementation (halakha lemaase), and concrete rulings, which will occasionally diverge from the law intended for implementation.

3.3 Governed By Men, Not By Rules

There is, therefore, a salient difference between the approach of Jewish law and that of western law with respect to the judicial process. The dictum, ‘governed by rules, not by men,’ which reflects the western ideal, does not reflect the halakhic outlook (see BenMenahem 1991). The western approach is based on the idea that a litigant is one who claims his due, not one who seeks succor. The litigant’s claim is premised on the court’s submission to a well-defined, publicly known body of norms, and on a legal rule that, in the eyes of the litigant, entitles him to a favorable ruling. In contrast, a litigant appearing before a rabbinical court claims no entitlement to a favorable ruling, even if there is a legal rule that, in his eyes, entitles him to such a ruling. Because the judge is permitted to deviate from the rule and decide the case as he sees fit, the litigant’s status is that of one who seeks the court’s aid. The converse adage, ‘governed by men, not by rules,’ thus more accurately expresses the worldview of Jewish law.

This analysis may explain the absence of three almost universal legal institutions from Jewish law: equity courts, courts of appeal, and the doctrine of binding precedent. Given the potentially ad hoc nature of a halakhic legal decision, as outlined above, the doctrine of binding precedent is beside the point. Courts of appeal are intended to ensure the uniformity of the law and the supremacy of legal rules, objectives that are not a priority for the halakha. Equity courts are a corrective device to redress possible inflexibility on the part of the law. Given the freedom accorded the judge in the Jewish legal system, no need for them was perceived.

From the judge’s perspective, the freedom to deviate from the law if necessary is anchored in the notion that judging is a religious precept, the fulfillment of a divine calling. While the weightiness of this charge may induce a paralyzing fear that the law will be distorted and justice miscarried should he misrule (bSanhedrin 6b), it may liberate the judge from the sense that he is bound by legal rules, which, formulated in human language, are subject to human limitations. The judge’s mission transcends the simple application of a rule to a given case. He becomes, as it were, God’s partner in administering the law: ‘Judges should know whom it is that they are judging, before whom they are judging, and who will call them to account [if they pervert justice], as it is written. ‘Consider what ye do, for ye judge not for men, but for the Lord’ (II Chron. 19:6)’ (bSanhedrin 6b). The religious—transcendental dimension of the halakha is most apparent here.

A judicial system of this type can thrive only in a community that accepts the judge as a spiritual leader and role model, and not just an expert technocrat hired to administer the law. At the same time, this concept of the judge is to be distinguished from that of the cadi under the palm tree, as the outlook of the judge in a halakhic proceeding is thoroughly informed by the halakhic discourse.

4. Jewish Law In The State Of Israel

With the renewal of the idea of the return to Zion, the idea of constituting Jewish life in the land of Israel on the basis of Jewish law was put forward out of ideological motives by nonreligious thinkers. At the beginning of the twentieth century, the now-popular phrase mishpat ivri, Hebrew law, was coined, to denote that part of Jewish law corresponding to civil and criminal law, excluding the halakha’s ritual aspects. The foundational work in Hebrew law, which sought to provide a comprehensive picture of Jewish law from a legal perspective, was Rav-Tzair’s (Tchernowitz’s) History of Jewish Law (1945–53, Hebrew); Menachem Elon’s Jewish Law: History, Sources, Principles (1994) is essentially an updated and much-expanded version of this work. Overall, however, this agenda never gained acceptance. When the founding of the state of Israel began to appear imminent, the idea was reintroduced, this time by national religious circles. Again, it failed to catch on. Today the positive law in Israel recognizes Jewish law as the law of the state only in the realm of family law, which is adjudicated in state-run rabbinical courts, and in a few isolated laws pertaining to religious observance. Otherwise, the influence of Jewish law on Israeli law is minuscule. However, rabbinical courts unconnected to the state thrive in Israel, as they have throughout history in the Diaspora.

Nevertheless, Jewish law is the focus of much scholarly interest at Israeli universities and colleges, as well as, of course, in Israel’s numerous yeshivot. Contemporary work in Jewish law treats, among other subjects, bioethics and halakha, feminism and halakha, and economic analysis of the halakha.

5. Non-Orthodox Understanding Of Jewish Law

Beginning in the nineteenth century, the hegemony of the halakha as understood by the rabbinical establishment was challenged. The most radical critique came from the Reform movement, which altogether rejected the halakha. The Conservative movement sought to accelerate the pace of halakhic change, in view of the rapid technological and social changes of the twentieth century, and to articulate more explicitly the role of conscience in the halakha. Given the preceding analysis of the halakha as pluralistic, it appears to be unnecessary to dwell on the Conservative understanding of Jewish law. While the divide between Conservative and Orthodox Jews may be highly significant from a sociological perspective, there is no divide with respect to acceptance of the halakha’s authority. The divergences between the Orthodox and Conservative communities are essentially no different than those between other communities on the halakhic landscape. As for the Reform movement, to the extent that it has rejected the halakha, it is outside the purview of this research paper.

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