LEGAL REASONING
E. Bashan, "Its Ways are Ways of Pleasantness" (Heb.),
De'ot (1980), 171-176. - The verse "Her ways are ways of pleasantness
(Prov. 3:17)" was used by the Rabbis of the Talmudic period
and their successors to reject any juridical interpretation which might
result in either suffering or injustice. Bashan observes that the Rabbis
used their power under this principle to override the halakhah on
the basis of ethical considerations alone. Various Rabbinic sources in which
the principle provided a basis for halakhic decision are cited mainly from
N. Africa and other Oriental countries. The areas in which the principle
was used in these sources extend to torts, public law, takanot, Family
law, and Succession. (Y.S.)
H. Ben-Menachem, "The Respective Attitude of the Babylonian and
Jerusalem Talmuds to Judicial Deviation from the Law" (Heb.), Shenaton
8 (1981), 113-134. - In this article, the author deals with various instances
of deliberate judicial deviation from the halakhah in the two Talmuds,
and attempts to show how the Babylonian and Jerusalem Talmudim reflect
conflicting approaches to the jurisprudential question of judicial discretion.
According to Ben-Menachem, the stricter approach of the Jerusalem
Talmud may be a reflection of the historical background, i.e. the
struggle against sectarian Judaism and early Christianity. As a result of
this struggle, the Rabbis of the Jerusalem Talmud tended to emphasise
the superiority and exclusiveness of the halakhah. In Babylon, however,
this threat did not exist, and consequently the Babylonian Talmud
reflects a more liberal attitude to judicial deviation from the halakhah.
(Y.S.K.)
M. Breuer, "The Decision-Making Methods of the Rabbis of Germany
in the Emancipation Period" (Heb.), Sinai 100 (1987), 166-168.
- In this discussion of the approach adopted by orthodox German poskim
in the post-Emancipation period, the author focuses on four main areas of
conflict between traditional halakhah and modernity. The first is
Jewish-Gentile relations, and the principle issues are conversion for the
sake of marriage and the circumcision of the child of a Jewish father and
a non-Jewish mother. The second is non-Jewish social norms, e.g. baring
the head as a sign of respect and appearing clean-shaven in public. Included
in this area is the problem of state laws which conflict with halakhah,
e.g. delaying burial and the ban on mezizah. The author argues that
the solution of the pipette is typical of the German approach to problems
raised by modernity in that it combines both halakhic authenticity and modern
technology. Electricity in the context of the Sabbath laws and food science
in relation to the dietary laws are the main issues in the next section,
which is devoted to technological progress. The final area discussed is
that of economic necessity, and the focus here is on the problem of running
a business on the Sabbath. The solution was the creation of a partnership
with a non-Jew, with the result that in this period, there was a large number
of business partnerships between Orthodox German Jews and gentiles. The
author concludes that German poskim did not simply seek lenient solutions
to every problem. There were issues on which they adopted a strict stand.
Their methods, however, were based upon an acceptance of modernity and a
thorough and severely rational approach to halakhah. The close relationship
between these Rabbis and their communities was also instrumental in making
German Orthodox halakhah more dynamic than its East European counterpart.
(D.B.S.)
Michael L. Chernick, Hermeneutical Studies in Talmudic and Midrashic
Literatures (Heb.), Lod: Makhon Haberman lemehkere sifrut, l984,
Pp. iv, 175; see KS 60/1-2 no. 471.
Shulamit Darans, "Formalism and Informalism in the Rabbinical
Courts of Israel", Diné Israel 10/11 (1984), 27-124 .
David Ellenson, "Jewish Legal Interpretation: Literary, Scriptural,
Social, and Ethical Perspectives", Semeia 34 (1985), 93-114;
see OTA 9/3 (1986), no.934.
I. Englard, "Mysticisme et droit. Réflexions sur les "Liqute
Halakhot" de l'école de Rabbi Nahman de Bratslav", Mélanges
à la mémoire de Marcel-Henri Prévost (Paris: Presses
Universitaires de France, 1982), 191-205. - The author notes the Jewish
view that halakhic texts may simultaneously have quite different levels
of meaning, including allegorical and mystical levels which are not in opposition
to the legal or normative level. He gives examples of mystical interpretation
of civil law texts. Nevertheless, one does find in the sources some indications
of a more intimate relationship between the levels, such that a practical
command finds its raison d'Ítre at the symbolic level, or at the
performance of the practical norm can have an influence in the mystical
universe. The only systematic attempt to put civil law rules on a mystical
basis was made in the school of Rabbi Nahman of Bratslav. The author examines
the Likute Halakhot in this context. (B.S.J.)
S. Ettinger, "On the Place of Sevarah (Logic) in Maimonides'
Mishneh Torah" (Heb.), Shenaton Hamishpat Ha'ivri 14-15,
(1988-89) 1-30. - Two pervasive themes in Maimonidean legal studies are
the deviations in the Mishneh Torah from the reasons for a particular
law given in the Talmud, and Maimonides' classification of commandments
into Scriptural and Rabbinic categories. The present author suggests that
the key to both problems lies in the notion of sevarah, which he
defines as a general rational quality as distinct from the formal category
of legal logic - also known as sevarah - which serves as a source
for the development of laws and principles within the halakhic system. In
dealing with Maimonides' tendency to provide original reasons for laws,
the author distinguishes between "talmudic discussions" (masa
umatan) and "definitive talmud" (talmud arukh) but
concludes, following R. Abraham the son of Maimonides, that the underlying
reason for Maimonides' choice of rationale for particular laws is general
logic rather than criteria of a formal, legal nature. Similarly, Maimonides'
categorization of Scriptural and Rabbinic laws is based upon the existence
of a logical connection between the law in point and the text of the Torah,
rather than on formal or semantic principles. The article concludes with
an appendix criticising a recent attempt to develop a more formal approach
to resolving the issue of Maimonides' deviations from the Talmudic reasons
for particular laws. (D.B.S.)
Michael Fishbane, Biblical Interpretation in Ancient Israel,
Oxford: Clarendon Press, 1985, ISBN 0-19-826325-2, Pp.xi, 613, Price: £40.00.
- This is a major work in biblical scholarship, developing a theory of "inner
biblical exegesis" in which the interpretation of biblical documents
by other biblical documents is traced. Of particular interest to readers
of the Annual is the fact that a major section of the book (pp.91-277) is
devoted to legal exegesis. In chapter 9 (231-77), the author offers his
conclusions on the nature of the ancient Israelite legal tradition, as emerging
from this analysis. This is an important contribution to the study of biblical
law. (B.S.J.)
Benjamin J. Gelles, Peshat and Derash in the Exegesis of Rashi,
Leiden: E.J. Brill, 1981, ISBN 90 04 06259 9, Pp. x, 171, Price: Gld. 64
(Etudes sur le JudaÔsme Mediéval, IX). - This is an interesting
doctoral dissertation, in which the author reviews critically the places
of peshat and derash in the work of Rashi. While advocating
in some passages the use of peshat, Rashi in fact frequently uses
both methods. Dr. Gelles concludes that peshat and derash
"emerge not so much as conflicting forces but rather as the two ends
of an exegetical spectrum, separated by intermediate shades of perception,
including, no doubt, an area of methodological indeterminacy." The
first part of chapter 4 deals specifically with halakhic texts (B.S.J.)
R.M. Grant, "Dietary Laws among Pythagoreans, Jews, and Christians",
HTR 73 (1980), 299-310. - Dietary regulations were common among religious
groups in antiquity. Explanations, either hygienic or allegorical, were
offered by Pythagoreans, Jews and Christians. Plutarch compared Jewish food
laws to Pythagorean and Egyptian ones. Aristeas, Philo and 4 Maccabees find
an educational purpose in the laws: they inculcate virtue and control of
the passions. The church while rejecting OT regulations introduced new food
laws of its own (Acts 15), and used allegorization to explain their
purpose. (G.W.J.)
Yitzhak D. Gilat, R. Eliezer ben Hyrcanus, A Scholar Outcast,
Ramat-Gan, Bar-Ilan University Press, 1984, ISBN 965-226-043-6, Pp.536.
- This is a welcome English translation of Gilat's 1968 book, which studies
the legal methodology of R. Eliezer and his substantive halakhic teachings
(mainly on ritual matters), concluding with an assessment of his place in
the history of the halakhah. (B.S.J.)
Tsvi Groner, The Legal Methodology of Hai Gaon, Chico Ca.:
Scholars Press, 1985, ISBN 0-89130-748-6, Pp.xvii, 209, Price $24.95 (cloth),
$19.95 (pbk.) (Brown Judaic Studies 66). - Developed from a Hebrew University
doctoral thesis, this is a study of the responsa of Hai Gaon, 11th century
Gaon of Pumbeditha. As the author points out, legal methodology, especially
for the process of adjudication, was not well-defined in this early period,
and much depended upon the personal bent of the respondent. Nevertheless,
Hai Gaon is much concerned with principles of adjudication derived from
the Talmud - both formal (e.g. 'follow the majority') and substantive principles.
The book is well documented, and includes a useful descriptive bibliography
of gaonic responsa and their manuscript sources. (B.S.J.)
M. Halbertal, "Maimonides' Sefer Hamizvot and the Structure of
the Halakhah" (Heb.), Tarbiz 59 (1990), 457-480. - The main
theses advanced in this article relate to the centrality of the mitsvah
in Maimonidean jurisprudence and the nature of Rabbinic hermeneutics. According
to the author, Maimonides wrote his Sefer Hamitsvot in order to provide
the basic building blocks of the halakhic system he was eventually to codify
in the Mishneh Torah. The mitsvot stem directly from Moses
on Sinai and provide the conceptual core for each and every halakhah
dealt within Maimonides' great code. Maimonides also defines mitsvot
of a Scriptural status in terms of their traditional pedigree and their
non-controversial nature. As a result of this definition, all laws derived
from the application of legal hermeneutical principles, such as a fortiori
and analogy, are relegated to Rabbinic status, not that of Scripture. This
definition is a direct result of Maimonides' theory of mitsvot, according
to which direct linkage with Sinaitic Revelation is incompatible - at least
at the level of Scripture - with controversial laws. This definition brought
Maimonides into conflict with Nahmanides, who strongly criticized the Maimonidean
position on this issue. Nahmanides' critique is based upon both the corpus
of Talmudic law and considerations of an ideological nature. The author
uses modern theories of hermeneutics to illustrate the competing positions
of Maimonides and Nahmanides, and makes a distinction between legal deduction
and literary interpretation in order to explain the respective positions
of these two authorities. (D.B.S.)
David Weiss Halivni, Peshat and Derash: Plain and Applied Meaning
in Rabbinic Exegesis, New York and Oxford: Oxford University
Press, 1991, pp.xii, 249, ISBN 0-19-506065-2, Price: £28.00 - The
celebrated author of Mekorot umesorot here takes an historical view
of the elements of Jewish exegesis, with particular reference to the tension
between "plain sense" (peshat) and "creative interpretation"
(derash). He asks whether rabbinic exegesis, "when it deviates
from peshat, (is) simply capricious and contrived, or is it in fact
more responsible and countable than first appears, once its exegetical commitments
have been identified and labelled?" To this question, he attempts two
types of answer: "scholarly" and "theological". He claims,
in the first, that the Rabbis didn't share our allegiance to peshat
(conceived as "plain meaning"). In this part, he argues for a
concept of "timebound exegesis": that rabbinic exegesis is historically
conditioned, and thus must be historically contextualised. He suggests that
rabbinic exegesis developed through time an increasing preference for peshat,
and indeed that "peshat" did not mean "plain meaning"
in talmudic literature, but rather referred to the "context" of
a phrase or verse. It was this context, rather than the plain meaning of
a phrase or verse, which was hallowed. The modern notion of peshat
as "plain meaning" is attributable to the medieval exegetes. In
the second part, he grapples with the theological implications of "timebound
exegesis", and resolves them largely by attributing mutability only
to exegesis, and not to legal norms, thus asserting the possibility of cleavage
between the realms of intellect and praxis. Finally, however, he offers
a theological resolution of the occasional collision of peshat and
derash, through a reading of the periods of the First Temple and
of Ezra which lead to a conception of rabbinic midrashic tradition as restoring
and preserving rather than transgressing the integrity of the scriptural
text. For the scriptural text itself was, he argues, neglected during the
First Temple period. This last part of the book, as the author indicates
in his preface, was prompted by his need to resolve perceived contradictions
in his own position, as viewed within the American Conservative Movement.
Notwithstanding the "timebound" nature of its genesis, there is
much tantalising argument within this important book. (B.S.J.)
Efraim Itzchaky, The Halacha in Targum Jerushalmi I (Pseudo-Jonathan
Ben-Uziel) and its exegetic methods (Heb.), Ramat-Gan, l982, Pp. 301
(Bar-Ilan University Dissertation); see KS 58/4 no. 5294.
Louis Jacobs, The Talmudic Argument, Cambridge: Cambridge University
Press, 1984, ISBN 0 521 26370 0, Pp. xvi, 220, Price: £25.00 - After
introductory chapters on the nature of talmudic argument and the literary
form of the Babylonian Talmud, the author analyses 19 sugyot expounding
the flow of the argument, and showing its relation to the literary structure
of the sugya as a whole. He concludes that the article is such that
the Talmud must be regarded as essentially the creation of its final editors,
the Saboraim. Many of the sugyot analysed deal with problems of civil
law, such as lost property, conveyance of a thing not yet in existence,
the mental state of contracting parties, the basis of kinyan hatzer,
and problems of wrongs punishable only in the divine forum (B.K.
55b-56a, dine shamayim). This is a most rewarding book for anyone
prepared to grapple with the details of the interaction of legal and literary
concerns, which together represent the character of the Talmud. (B.S.J.)
Louis Jacobs, Teyku, The Unsolved Problem in the Babylonian Talmud,
London and New York: Cornwall Books, 1981, ISBN, 0-8453-4501-X, Pp. 312,
Price: $20.00. - This is a literary investigation of the 319 passages in
the Babylonian Talmud where a debate on a disputed point of law is ended
with the term teyku (sometimes: tibbai) - a phenomenon missing
from the Palestinian Talmud. Rabbi Dr. Jacobs argues that teyku ("Let
it (the problem) stand" - there is no solution) is in logic the proper
conclusion for every baya, the latter being constructed as a definitional
problem so evenly balanced that there is no correct answer. Where the Talmud
does provide such an answer, it is on the basis of authority only, not logic.
While the practice of setting such problems may have been common amongst
the talmudic rabbis (though particularly associated with some of them -
the author provides statistics), the precise literary form of the baya,
together with the attribution of the conclusion teyku, is argued
to form part of the literary framework constructed by the editors of the
talmud. The problem of teyku thus forms part of the more general
problem of the redaction of the Babylonian Talmud. Rabbi Dr. Jacobs has
compressed an enormous work of scholarship into concise but readable form,
and has here made a major contribution to talmudic studies. For good measure,
he adds Appendices on the interpretation of teyku by post-talmudic
halakhists, and in the mystical literature. (B.S.J.)
A. Nahalon, "On Rabbenu Hananel: The Geonim in Rabbenu Hananel's
Opus and Rabbenu Hananel in Alfasi's Opus" (Heb.), Shenaton Hamishpat
Ha'ivri 11-12 (1984-1986), 407-433. - Both Rabbenu Hananel
and Alfasi adopt independent attitudes towards their predecessors. The former
is prepared to ignore the decisions of the Geonim, and on occasion, even
those of his teachers. The latter decides independently of the Geonim and
of Rabbenu Hananel, whose commentary on the Talmud preceded his own
Sefer Halakhot. The author cites many examples in order to illustrate
his thesis regarding the independence of any judicial discretion manifested
by R. Hananel and Alfasi in their approach to halakhic-making. It is also
observed that both authorities rely heavily upon the Geonim. Their independence,
however, is the most striking feature of their respective approaches. (D.B.S.)
C. Perelman, "Juridical Ontology and Sources of Law", Northern
Kentucky Law Review 10 (1983), 387-97. - Perelman examines how
the perception of the source of a nation's law influences its claim to authority
and the proper way to work legal reform. Under our original system of common
law, "law" already existed and judges merely discovered it. Change
through legislation was then viewed with distrust as a departure from the
normal manner in which laws were to be formulated. Therefore, common law
judges construed statutes in a restrictive manner. In France, law flows
from the people and only the people (through the legislature) can change
it; judges are to apply without compunction whatever laws are provided.
But Jewish law is postulated to come from God; man has not power to work
any change. Faced with inequities in applying the biblical laws, the rabbis
found a solution: the interpretation of law was left by God to man.
Through free "interpretation", extraction of general rules of
equity from the laws, and the use of fictions, flexibility is preserved.
(D.H.P.)
D.B. Sinclair, "Legal Reasoning in Maimonidean Jurisprudence",
L'Eylah 29 (5750), 32-35. - According to Maimonides, the status
of Scriptural law (de'oraita) is conferred by tradition alone
upon laws which are free of controversy. Any controversial law is ipso
facto Rabbinical in nature, including a law which is derived from the
Scriptural text by means of hermeneutic principles such as a fortiori
and analogy. On the basis of Maimonides' own remarks and the Islamic jurisprudence
of the period, it is argued that Maimonides was opposed to the use of rhetorical
reasoning in the legal process, especially the notion of hekesh or
qiyas. As a result of this position, Maimonides emphasises institutional
authority throughout his halakhic works, often at the expense of the authority
of legal texts, and their interpretations. Nahmanides took issue with Maimonides,
both on Talmudic and ideological grounds. The author uses modern approaches
to legal reasoning in order to illuminate the theories of Maimonides and
Nahmanides in the area of legal reasoning in Jewish law. (D.B.S.)
Kenneth J. Weiss, "Freehof's Methodology as A Reform Jewish Halachist",
JRJ 32/3 (l985), 58-69. - The author analyzes the methods of responsa
preparation used by Solomon B. Freehof, the pre-eminent responsa author
in the Reform movement. The author concludes that Freehof's criteria are
consistent, combining both traditional and Reform elements, and that he
emphasizes the principle of looking beneath the letter of the law to its
ethical basis. The criteria are in general harmony with tradition, yet go
beyond what contemporary traditional correspondents use in framing replies
to halakhic inquiries. (S.M.P.)
D. Zafrany, The Asheri's Methodology in Deciding the Law (Heb.),
l980, Pp. xi, 275 (Tel-Aviv University thesis); see KS 57/3-4 no.
3358.
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