COURTS
Ya'akov Bazak, Hashofet bedin ha'ivri, Jerusalem: Sifriyat
hamishpat ha'ivri, 1985, Pp.52. - Judge Bazak here usefully collects
classical Jewish sources on matters relating to the appointment, dignity
and ethics of judges. (B.S.J.)
M. Chigier, Judge and Justice in Jewish Law, Compared with
Israeli Law and the Law of Some Other Countries, Jerusalem: Ariel, distributed
by Feldheim Publishers, Pp. 194. ó The works of Rabbi Dr. Chigier
will be well known to readers of the Annual. Here, he provides a
succinct survey of the judicial system in Jewish law, with chapters inter
alia devoted to the Courts of Law, the qualifications and appointment
of judges, refusal to adjudicate, the order of hearing of cases, civil and
criminal procedure, new evidence after verdict, agreements between parties
to vary the normal rules regarding qualification of judges or witnesses,
compromise judgments, erroneous judgments, res judicata, "super
justice" (the relations between law and morality, lifnim mishurat
hadin, etc.), and the jurisdiction of the rabbinical courts. In many
of the chapters, comparison is made between the traditional Jewish law position
and practice in modern day Israel. Students will find here a clear and straightforward
presentation of many important issues. (B.S.J.)
H. Niehr, "Zur Gerichtsorganisation Israels", Biblische
Zeitschrift 31 (1987), 207-227. - Niehr evaluates attempts from 1931
to the present to write a history of Israel's legal system in the monarchy
and premonarchical period. The modern consensus is that in the premonarchical
era Israel was not an amphictyony but a segmented lineage society. This
means that there was no permanent centralized legal system with a presiding
judge. Legal decisions were made by the pater familias, or the elders
in the gate. Occasionally disputes between lineage segments involved arbitration
by representative elders. In the monarchy period the same system persisted
with occasional royal intervention. However no central court was established
until the time of Josiah. Jehoshaphat's legal reforms on these lines (2.
Chron. 19:5-11) may be dismissed as one of the Chronicler's fictions.
(G.J.W.)
H. Porat-Martin, Rabbinical and civil courts in Israel, Ann
Arbor: University Microfilms, l979, Pp. vi, 421; see KS 58/1 no.
753.
Emanuel B. Quint and Neil S. Hecht, Jewish Jurisprudence.
Its Sources and Modern Applications, Volume 2, Chur, London, Paris and
New York: Harwood Academic Publishers, 1986, ISBN 3-7186 0064-1 (hard) 0293-8
(pbk), Pp. 237. - This is the second volume in a series designed to analyze
and restate the substantive principles of Jewish law for the English speaking
legal community. The authors have successfully achieved the objective stated
in their Preface to the series: "Our objective is to present the Jewish
legal system in an authentic and systematic manner. It is not a comparative
study, not a literary criticism, nor an historical survey. We have striven
to analyze Jewish law within its own unique framework as it was developed
and formulated by the traditional halakhic authorities in the Talmud, compendiums,
codes, commentaries, super-commentaries and Rabbinic responsa. Although
writing in the English language, we have sought throughout to capture the
spirit of halacha and its conceptual and linguistic nuances." The inclusion
of the table of contents for Volume 1 is helpful in maintaining the continuity
of the series and is a useful cross-reference. It also highlights the structure
of the series which follows the order of Shulhan Arukh Hoshen
haMishpat. In so doing, the authors follow a traditional and natural
method of explicating substantive Jewish law topics by using the concise
language of a code as the organizational point of departure for placing
the normative law into a larger perspective. The authors trace the development
of each concept from Talmudic through recent sources concluding each section
with their view of the present status of Jewish law. The richness of this
material is evident by the fact that Volume 2 covers the topics enumerated
in Chapters 3-6 of Karo's Hoshen haMishpat. The Numerical Composition
of the Courts; The Manner in Which a Person May Engage in Self-Help; When
Court Sessions May Be Held; and The Minimum Monetary Jurisdiction of the
Court. The layman will experience an opportunity to taste the flavour of
Jewish law. The scholar will find important issues reformulated in a novel
way; and, on occasion, the authors develop relevant topics which have heretofore
been neglected. One such example is the author's detailed analysis of the
right of a community to engage in self-help where it is a party to litigation.
(H.B.M.)
Lawrence H. Schiffman, Sectarian Law in the Dead Sea Scrolls: Courts,
Testimony and the Penal Code, Chico Ca.: Scholars Press, 1983, ISBN
0-89130-568-8 (569-6 pbk.), Pp. xv, 278, Price: $15.95, $10.95 (pkb.) (Brown
Judaic Studies 33). - An introductory chapter describes the principal sources
of Qumran Law, their inter-relationship, and the nature of Qumran Biblical
exegesis which the author argues represents the origins of the Qumran lists
of rules (the result, he suggests, of regular study sessions which were
part of the life of the sect). Individual chapters are then devoted to detailed
study of the rules concerning judges and their qualifications of witnesses,
the law of testimony, reproof as a requisite for punishment, the restoration
of lost or stolen property, the use of the divine names, the sectarian penal
code, and the communal meal. A concluding chapter summarises various aspects
of the law for the light it throws on the sect's self-perception, and the
nature of its society. This is a stimulating and scholarly study, the interest
of which for the early history of Jewish law is enhanced by the frequent
comparisons made by the author with early rabbinic sources. (B.S.J.)
E. Shochetman, "Renewal of Semikhah According to Maimonides"
(Heb.), Shenaton Hamishpat Ha'ivri 14-15 (1988-89), 217-243
- In his Mishneh Torah, Maimonides deals with the renewal of semikhah
(ordination) and suggests that this would be possible if all the Sages
in Erets Yisra'el would agree on such a step. This provision has no basis
in the Talmud or any other classical source. At the conclusion of the passage,
however, Maimonides states, "and the matter requires to be decided".
The interpretation of this phrase has exercised halakhists throughout the
ages, and, in particular, the circle of R. Jacob Berab in sixteenth century
Safed, and rabbis and scholars during the years prior to and following the
establishment of the State of Israel. The article analyses the views of
the major protagonists in the sixteenth century debate over the renewal
of semikhah i.e. R. Jacob Berab and R. Levi b. Habib, regarding this
phrase, and proceeds to list the various solutions offered over the centuries.
The common factor in all of these interpretations is the understanding that
the phrase indicates a doubt on the part of Maimonides himself regarding
his novel proposal for the renewal of semikhah. The present author
offers a different interpretation according to which Maimonides was not
expressing any reservation with regard to his own theory. The article concludes
with a discussion of the legal basis for the reintroduction of semikhah
in contemporary times. (D.B.S.)
Y. Suzuki, "Juridical Administration of the Royal State in the
Deuteronomic Reformation", Seishogaku Ronshuu 20 (1985), 50-94;
see OTA 9/2 (1986), no.483.
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