THEORY OF LAW
J. Barton, "Ethics in Isaiah of Jerusalem", JTS 32
(1981), 1-18. - B. attempts to show that Isaiah (1-39) had developed an
understanding of morality which has affinities with Western theories of
natural law. He examines the basis of Isaiah's moral demands to illustrate
what he assumed to underline the particular norms or transgressions he condemned.
Isaiah sees God as creator and preserver of all things, occupying by right
the supreme position over creation. The essence of morality is the maintenance
of the ordered structure underlying God's guidance. This meant a proper
submission to one's assigned place in the scheme of things and the avoidance
of any challenge to God's supremacy or established order. Isaiah is an early
example of a way of approaching ethics which begins with a hierarchically
ordered universe whose moral pattern ought to be apparent to all men, and
derived all moral offences from the disregard of natural law. (K.W.W.)
H. Ben-Menachem, "Individuation of Laws and Maimonides' Book
of the Commandments" (Heb.), Shenaton Hamishpat Ha'ivri 14-15
(1988-89), 95-106. - Principles of individuation are required on both the
meta-legal and the legal levels, and the present article argues that such
principles may be detected, both in the Talmud and in Maimonides' Book of
the Commandments. A prime instance of talmudic meta-legal individuation
is R. Simlai's statement regarding the 613 commandments given to Moses on
Mt. Sinai. The Talmud contains the notion of authorities throughout the
ages distilling the laws into ever smaller numbers of principles or precepts.
According to the author, this process is one of meta-legal individuation
of laws. The integrity of legal norms with respect to punishment is widely
discussed in the Talmud and provides the basis for the principle of legal
individuation. The article concludes with a section devoted to the unique
contribution of Maimonides to the individuation of laws in Jewish jurisprudence.
(D.B.S.)
E. Berkovits, Not in Heaven: The nature and Function of Halakha,
New York: Ktav Publishing House, Inc., 1083, Pp. vii, 131, ISBN 0-88125-003-1,
Price: $12.50. - The author argues that halakhah is the application
of Torah to life, and that historical circumstances have led to an exile
of halakhah from real-life situations, combined with an exile into
literature and codification. "The old principle of the acceptance of
personal responsibility for halakhic decisions, which demanded that the
Dayan ruled according to what his eyes see, has received a new meaning
that reads: according to what he sees in some authoritative text" (p.91).
It is this thesis which makes Berkovits, from within Orthodoxy, a more radical
critic of contemporary halakhah than many Conservative writers, who
often use the same sources to show the historical development of the
halakhah, and the human contributions to it. The latter use this as
an argument to revise certain aspects of the content of Jewish law; Berkovits,
by contrast, implies a quite different view of the very nature of Jewish
law, and its formal development. These are readable and stimulating essays;
specialists will wish to consult the author's more elaborate Hebrew work,
Halakah Kohah Vetafkidah, published by Mosad Harav Kook. (B.S.J.)
J. David Bleich, "Judaism and Natural Law", Proceedings
of the Eighth World Congress of Jewish Studies, Division C (Jerusalem:
World Union of Jewish Studies, 1982), 7-11.
G.J. Blidstein, Political Concepts in Maimonidean Halakhah
(Heb.), Ramat Gan: Bar-Ilan University Press, 1983, ISBN 965-226-040-1,
Pp. 283, Price: $23.00. - This is an important book, in which the author
considers various aspects of Maimonides' treatment of kingship, including
the appointment of the king, the basis of his legitimacy, succession, his
role in the legal system, his legislative power, and his relation to the
principle of dina demalkhuta dina. As such, it is of considerable
interest not only to the Maimonidean scholar. but also to the student of
the history of Jewish public law. An English translation would undoubtedly
be well received. (B.S.J.)
Antonio Bonora, "Amos difensore del diritto e della giustizia",
Testimonium Christi: Scritti in onore de Jacques Dupont (1985), Brescia:
Paideia, 69-90; see OTA 9/2 (1986), no.569.
Dan Cohn-Sherbok, "Law and Freedom in Reform Judaism", JRJ
30/1 (l983), 88-97; and Mark N. Staitman and Walter Jacob, "Response",
ibid., 98-104. - Cohn-Sherbok strongly criticizes Solomon Freehof,
the author of numerous responsa in the Reform Movement, and claims he has
an ambiguous and inconsistent attitude towards Jewish law. Staitman and
Jacob undertake a point by point refutation of this thesis. (S.M.P.)
Michel Desjardins, "Law in 2 Baruch and 4 Ezra", Sciences
Religieuses 14 (1985), 25-37; see OTA 9/2 (1986), no.618.
B. Dupuy, "Unité et tension de la Halakha et de l'Aggada",
Mélanges à la mémoire de Marcel-Henri Prévost
(Paris: Presses Universitaires de France, 1982), 123-132. - The author considers
the integral relationship between halakhah and aggadah in
the light of both ancient sources and modern writings. (B.S.J.)
I. Englard, "The Example of Medicine in Law and Equity: On a
Methodological Analogy in Classical and Jewish Thought", Oxford
Journal of Legal Studies 5 (1985), 238-47. - In both law and medicine,
general rules or procedures designed for majority situations or general
occurrences may produce undesirable results in individual cases. Medicine,
however, more readily adjusts to individual needs inasmuch as concern for
the particular patient does not yield to a "purpose beyond the patient",
whereas legal results must be predictable and shielded against unbridled
magisterial discretion even at the cost of some apparent injustice. Englard
examines the importance of the medical analogy in Greek philosophy, and
discusses how classical and Jewish authors such as Plato, Aristotle, and
Maimonides would deal with this problem, attempting to achieve equitable
results without yielding to arbitrariness or (in Jewish law) tampering with
the law of God. (D.H.P.)
Ze'ev W. Falk, Law and Religion, The Jewish Experience, Jerusalem:
Mesharim Publishers, 1981, Pp. 238, Price: $10.00. - This is the text of
a course of lectures delivered by Professor Falk at New York University
in 1979/80. He writes in the preface: "Instead of engaging themselves
in the intricacies of legal technique or in philological-historical niceties,
Jewish scholars are called to study the meaning and justice of their culture
against a broad comparative background." Succinct chapters are then
devoted to Law and Religion, Values, Teleology, Democracy, Liberty, Human
Rights, Equality, Disobedience, Generalization and Individualization, Validity
and Efficacy, Authority, Legalism, Language, Logic, Human Nature, Faith
and Proof, Acts and Duties; all of them are further sub-divided. The effect
is to organise a wide variety of Jewish sources in relation to some of the
major issues in contemporary legal philosophy and ethics. The value of such
an approach for a student audience should not be underestimated. For the
scholar, Professor Falk raises many interesting questions; he would be the
last to believe that he has, within the present compass, gone very far in
answering them. More substantial work along these lines would undoubtedly
be rewarding. (B.S.J.)
Ze'ev W. Falk, Legal Values and Judaism, Towards a Philosophy of
Halakhah (Heb.), Jerusalem: The Magnes Press, 1980, ISBN 965-223-342-0,
Pp. 193, Price: $8.00. - Professor Falk uses a wide range of comparative
and philosophical sources in urging that we seek the values embedded in
the halakhah, as part of an investigation into the philosophy of
Jewish law. In so doing, he reflects an important trend which is gaining
strength in contemporary legal studies, as reflected, for example, in Stein
and Shand's Legal Values in Western Society (to which Falk refers).
In Israel, this is a particularly apposite time for such a quest, given
the incorporation into Israeli law, for some purposes at least, of what
may be termed the values of the Jewish tradition by the Foundations of Law
Act 1980. Professor Falk has sympathy for a version of natural law theory,
and is anxious to use underlying values as a medium of critique of the law.
He has interesting remarks on the law and spontaneity; procedure as reflecting
the values of peace, law and justice; law and state; interpretation; and
the role of law. Parts of the book overlap with the author's Law and
Religion, The Jewish Experience, Jerusalem: Mesharim Publishers, 1981,
listed above. (B.S.J.)
H.B. Fassel, Die mosaisch-rabbinische Tugend- und Rechtslehre,
Aalen: Scientia Verlag, l981, Pp. 254, Price: DM 69.00. - Reprint of the
1862 edition; see BL 1983, p.107f.
Jacques Goldstain, Les Valeurs de la Loi, Paris: Editions Beauchesne,
1980, Pp. 283, Price: F.165 (ThÈologie Historique, 56). - The author,
a Catholic monk with special responsibilities for relations with Judaism,
discusses Biblical law not as a set of binding rules but as a pedagogical
instrument, a statement of the fundamental values which God sought to inculcate
in his people. Drawing on a wide range of Jewish and Christian sources,
he discusses the philosophy, the psychology and theology of the law, the
Sinai narrative, the content of the law (including its terminology and classification),
and cultic law, the festivals, sacrifice, purity, family and social life,
and the administration of justice. A final section deals briefly with the
attitude to the Law as described in Biblical history, from the patriarchal
period down to Qumran. (B.S.J.)
L.E. Goodman, Monotheism, a Philosophic Inquiry into the Foundations
of Theology and Ethics, New Jersey: Allanheld, Osmun for the Oxford
Centre for Postgraduate Hebrew Studies, 1981, ISBN 0-86598-068-3, Pp. 119.
- In 1978, Professor Goodman delivered the David Baumgardt Memorial Lectures,
sponsored by the American Philosophical Association, at the Oxford Centre
for Postgraduate Hebrew Studies. The text forms one of the first volumes
in the Oxford Centre's monograph series. The three lectures are entitled
"The Logic of Monotheism", "The Existence of God", and
"Monotheism and Ethics". The last will be of particular interest
to those concerned with the theoretical basis of Jewish law and ethics.
(B.S.J.)
Sidney Greidanus, "The universal dimensions of law in the Hebrew
Scriptures", Sciences Religieuses 14 (1985), 39-51; see OTA
9/2 (1986), no.592.
J. Gwyn Griffiths, The Divine Verdict, A Study of Divine
Judgement in the Ancient Religions, Leiden: E.J. Brill, 1991, Pp. xviii,
410, ISBN 90-04-09231-5. - This is a broad-ranging comparative investigation
of the notion of divine judgement, dealing both (separately) with "Judgement
in History and in This Life" and with "Judgement After Death".
Special attention is devoted to Israel, Greece and Egypt, but there are
treatments also of Roman literature, Christian doctrine, and some Indian,
Chinese and mystery religions. Even within 400 pages, a comprehensive treatment
of the traditions within each of these religions is hardly to be expected.
Nevertheless, the author adopts a scholarly approach to the extent of the
space he allows himself. A concluding chapter draws the comparative themes
together, noting, for example, that "for the most part, the doctrine
of punishment is squarely based on the principle of retribution. If it is
spelled out most clearly in the Hebrew Lex Talionis, it is stated
or implied in all the ancient religions." (B.S.J.)
E.E. Halevy, Arkhe ha'agadah vehahalakhah le'or mekorot yevaniyim
velatiniyim, Tel-Aviv: Dvir, l979-82, 4 vols; see KS 57 no.1737,
58/1 no. 272.
A. HaCohen, "The Sages Commanded" (Heb.), Shenaton Hamishpat
Ha'ivri 14-15 (1988-89), 113-120. - The term discussed in the present
article is, "the Sages commanded" (zivu hakhamim),
which appears in various places in the Mishneh Torah. The author
demonstrates that this expression indicates a lower order of normativity,
including precepts of a purely moral nature. Amongst the illustrations cited
by the author is Maimonides' celebrated ruling regarding the prohibition
on a father teaching his daughter Torah, which is also prefaced with the
term "the Sages commanded". In the light of the analysis of this
term in the present article, it is arguable that Maimonides did not mean
to categorise this prohibition as a formal one of either a Scriptural of
Rabbinic nature, but merely as a purely moral norm. (D.B.S.)
Basil F. Herring, Jewish Ethics and Halakhah for our Time: Sources
and Commentary, New York: Ktav Publishing House Inc. and Yeshiva
University Press, 1984, ISBN 0-88125-044-9 (145-7 pbk.), Pp.xiii, 243, Price:
$15.00, $9.25 (pbk.) (The Library of Jewish Law and Ethics, vol. XI). -
After an introductory chapter surveying traditional views on the relationship
between law and morality, the author analyses 9 ethical problems: abortion,
disclosure of a terminal illness to a patient, euthanasia, the lawyer's
duty in respect of a client he knows to be guilty, civil disobedience, homosexuality,
value conflicts between parents and children, smoking and drugs. A selection
of the relevant traditional sources is translated at the beginning of each
chapter (and reprinted in a booklet enveloped within the back cover). The
text is addressed to the intelligent layman, with notes referring to both
traditional and modern scholarly discussions. The format of the book will
make it particularly useful for discussion groups. (B.S.J.)
R.A. Horsley, "The Law of Nature in Philo and Cicero", HTR
71 (1978), 35-59. - Koester is wrong to argue that Philo created the concept
of natural law. Philo and Cicero both discuss the law of nature in similar
terms showing that they are drawing on a common tradition. This derives
"ultimately from a Stoic tradition on universal law and right reason.
But this Stoic tradition had been reinterpreted by a revived and eclectic
Platonism upon which both Cicero and Plato drew. The key figure in the Platonic
revival upon whom Cicero and (probably) Philo depend was Antiochus of Ascalon,
the head of the Academy in the first century, who devoted much of his energy
to a reinterpretation of Stoic ethics. Through further analysis of their
statements about natural law ... we can discern more clearly how these thinkers
understood the law of nature and, more particularly, how they conceived
of its transcendent basis in the mind of God, who is the lawgiver"
(author's own summary, p.36). (G.J.W.)
Moshe Idel, Language, Torah, and Hermeneutics in
Abraham Abulafia, Albany: State University of New York Press, 1989,
Pp.xvii, 212, ISBN 0-88706-831-6 cloth, Price $44.50, ISBN 0-88706-832-4
paper, Price $14.95. - This is a translation of part of a Hebrew University
doctoral thesis, devoted to the kabbalistic thought of R. Abraham Abulafia,
who used the technique of combining letters as an exegetical method enabling
the mystic to penetrate the most recondite strata of Scripture. The author
seeks to explain the underlying conception of the nature of language, as
one "basically inclined to an allegorical perception", in the
tradition of medieval Aristotelianism. Texts and experiences are decoded
as revealing various aspects of the relationship between the inner powers
of intellect and imagination. (B.S.J.)
B. S. Jackson, "Jewish Law or Jewish Laws", The Jewish
Law Annual VIII (1989), 15-34. - Modern scholarship on Jewish Law assumes,
in line with the secular philosophy of law, the unity of the legal system.
But this unity has come increasingly into question in the secular philosophy
of law, prompted by internal discussions of the nature of judicial discretion,
and external perspectives from semiotics and the philosophy of language.
We can pose the same questions to Jewish Law, and use the sources of Jewish
Law to try to construct an answer. We should not presuppose that the answer
for Jewish Law will be the same as that for secular law. If it is different,
that is a good argument for not regarding Jewish Law as belonging to the
same category as modern systems of secular, positive law. [Author]
B.S. Jackson, "On the Tyranny of the Law", Israel Law
Review 18/3-4 (1983), 327-347. - The author sketches a continuum representing
the tension between formalist and existentialist attitudes to both law and
theology. He notes the paradox that religious systems of law are often characterised
as rigid and immutable, although in practice they admit of more flexible
interpretation. Both rabbinic and New Testament texts contribute to a possible
resolution of the conflict of values indicated by modern jurisprudence,
in that flexibility applies to the act of adjudication, quite beyond that
which applies to the interpretation of the rules in abstracto.
(B.S.J.)
B.S. Jackson, "Structuralism and the notion of Religious Law",
Investigaciones Semióticas 2/3 (1982-83), 1-43. - In the context
of a comparison between jurisprudential accounts of religious law, and anthropological/semiotic
approaches, the author considers the classification of biblical law as "moral",
"ceremonial" and "judicial" (Aquinas) and Neusner's
analysis of the various Orders of the Mishnah, which appear to reveal differences
in the semiotic processes involved in them. (B.S.J.)
A. Kirschenbaum, "Categories of Morality in Jewish Law: Some
Clarifications", Mélanges à la mémoire de Marcel-Henri
Prévost (Paris: Presses Universitaires de France, 1982), 158-170.
- The author argues that there are clear differences between the moral categories
midat hasidut, ruah hakhamim and lifnim mishurat hadin. The
first of these standards is expected only of the saintly Èlite, while
the second applies to men in general. Midat hasidut also comes to
be conflated with lifnim mishurat hadin. Midat hasidut eventually
lost its uniqueness: it ceases to be individual and spontaneous, and finds
its place in the codified literature. (B.S.J.)
M.R. Konvitz, "The Confluence of Torah and Constitution",
in Jews, Judaism and the American Constitution (Cincinnati:
American Jewish Archives, 1982), 5-19. - K. suggests an intriguing parallel
between the structure of the American and the Jewish legal systems: constitutional
interpretation by the Supreme Court stands as to the United States Constitution
as does the Oral Law to the Written Law in halakhah. The American
"oral constitution" was "in a manner of speaking, implicitly
or potentially in the minds of the framers of the written constitution".
In both systems, the interpretive process which allows the law to develop
is protected from arbitrariness by its commitment to an ordered form of
rationality, underpinned by the Biblical concept of covenant. In the United
States, "the movement was from biblical covenant to congregationalism
to constitution." (B.S.J.)
J. Kraemer, "Alfarabi's Opinions of the Virtuous City and Maimonides'
Foundations of the Law", Studia Orientalia, Memoriae D.H. Baneth,
Jerusalem: Magnes, 1979, 107-153. - Maimonides' Foundations of the Law,
Part One of his Mishneh Torah, wants to provide Jewish jurists and
laymen with a scheme similar to that of Alfarabi. Thus, Foundations,
like the Guide of the Perplexed, is a kalam work in
terms of (some) techniques and methods despite M.'s criticisms of the Mu'tazillites.
Alfarabi's work, in turn, shows some similarity with (knowledge of?) John
of Damascus' De Fida Orthodoxa. (S.N.R.)
J.D. Levenson, "The Theologies of Commandment in Biblical Israel",
HTR 73 (1980), 17-33. - Attempting to rescue the theology of law
from Wellhausen's charge of legalism, modern writers especially Eichrodt
and Mendenhall have insisted that law is an aspect of covenant. Law is viewed
as part of Heilsgeschichte rather than as an end in itself. By examining
the motive clauses used to justify obedience to different commands and the
explanations of the law found in the psalms and the prophets, L shows that
although historical (covenantal) reasons are often adduced, other justifications
of the law are also found. Law is seen as an aspect of wisdom, whose value
may be perceived by human intelligence. It is also seen as inherent in nature
(e.g. Ps.19) 'Biblical Israel believed the will of God to
be known not only through history, but also through.. nature, not only through
the word proclaimed, but also through thought and cognition' (32). These
theologies of law are not contradictory but complementary. (G.J.W.)
John D. Levinson, "Covenant and Commandment", Tradition
21/1 (1983), 42-51. - The author develops the thesis that Jews live
in awareness principally of two covenants, the Sinaitic and the Davidic.
The former refers to personal obligations of the development of society
and the world that must be built. It is predicated on choice between obedience
and faithlessness, life or death. The Davidic covenant speaks of
hope undeserved, an announced promise, and an all-embracing security. (S.M.P.)
A. Lichtenstein, The Seven Laws of Noah, New York: Rabbi Jacob
Joseph School Press, l981, Pp. iii, 115; see KS 58/1 no. 282.
Aaron Lichtenstein, "Noahide Laws from Genesis to Genizah",
Dor leDor 14 (1985/86), 88-93; see OTA 10/1 (1987), no.306.
J. Liebes, Heto shel Elisha (Jerusalem: Academon, The Hebrew
University Students Printing and Publishing House, 1990). - The famous Talmudic
passage about the "four who entered Paradise" is here acutely
analysed. (L.J.)
Mogens Müller, "Ånden og Loven", Dansk Teologisk
Tidsskrift 4 (1989), 251-267. - Under the heading "Spirit and Law.
Covenant-Theology in Romans", the author tries to supply evidence for
the hypothesis that the conception of the new covenant as found especially
in Jer. 31:31-34; 32:38-40 and Ezek. 11:19-20; 36:26-27 constitutes
a substructure in Pauline theology. The main point in the conception of
the new covenant is the connection between Law and Spirit which makes it
possible for man to keep the commandments. The acceptance of this conception
of a Covenant where Law and Spirit are combined, may provide the means to
understand the obviously inconsistent notions of the Law in Romans. (K.N.)
J. Neusner, Judaism, The Evidence of the Mishnah, Chicago and
London: The University of Chicago Press, 1981, ISBN 0-226-57617-5, Pp. xix,
419, Price: $25.00. - This is the brilliant culmination of Professor Neusner's
decade of single-minded devotion to the analysis of the Mishnah. It is a
work of interpretation on the grand scale, based upon the results of detailed
literary analysis. The development of the law is laid out in three periods:
before the first Jewish revolt against Rome, between the destruction of
the temple and the Bar Cochba rebellion, and subsequently up to the closure
of the Mishnah at the end of the second century. We see the relative state
of development of each tractate, and more generally of each seder,
through these three periods. Of particular interest to legal historians
are the results concerning Nashim and Neziqin; the latter,
in particular, is shown to be non-existent in the first period, to remain
extremely sketchy in the second, and to acquire any semblance of order and
development only in the third. Neusner does not thereby seek to imply that
there existed no Jewish civil law in these periods; rather that these areas
were originally not of interest to the groups which contributed to the development
of the Mishnah. He identifies three groups whose interests are represented
in it: the Priests, the scribes, and the middle-class landowners (ba'ale
habayit); it is, however, through the style and methodology of the Scribes
that the document achieves a unity, based upon the consistent concern to
show the interaction of principles and resolve their conflicts, just as
the Priestly Code (regarded as a major influence upon the underlying thought-processes
of the mishnaic Rabbis) had sought to resolve classificatory problems involving
mixtures and opposed categories. But there are also substantive aspects
to this unification: "The principal message of the Mishnah is that
the will of man affects the material reality of the world and governs the
working of those forces, visible or not, which express and effect the sanctification
of creation and of Israel alike" (p.271). This is the world-view -
a quite remarkable affirmation of the human spirit given the historical
circumstances - which emerges from Neusner's holistic approach. In adopting
it, he is closer to some forms of structuralism than he himself is prepared
to admit. Particularly, he shares the fundamental insight that everything
found in a text is there as the result of a human choice, and that what
is excluded (or omitted), and which we see - sometimes - in the choices
made in other documents of the period (which Neusner briefly surveys, in
order to set the scene), is significant not only as contributing to the
message itself, but also as identifying the act of enunciation, the parties
to it, and their interests. In all this, Professor Neusner has set his own
objectives, and rigorously pursued them, putting aside the contributions
which more traditional approaches may make to such questions. It would be
sad if those more traditional disciplines were to return the compliment.
The legal historian, for example, may well wish to compare Neusner's account
of the arrangement of Neziqin, and its relation to Scripture, with
Daube's elaborate study, "The Civil Law in the Mishnah: The Arrangement
of the Three Gates", Tulane Law Review 18 (1943-44), pp. 351-407;
philosophers of law may wish to bring the insights of the philosophy of
action to bear upon the data which generate Neusner's conclusion regarding
the centrality of human will; and theologians may wish to review the meaning
of the doctrine of the Oral Torah in the light of the pattern of human choices
revealed by the literary analysis of the document. (B.S.J.)
David Novak, Halakhah in a Theological Dimension, Chico, Ca.:
Scholars Press, 1985, ISBN 0-89130-757-5, Pp. xi, 174, Price $19.75, $16.25
pbk. (Brown Judaic Studies 68). - All but the last two of the essays here
collected have been published before, although in some cases they are now
revised. The contents are: "Can Halakhah Be Both Authoritative and
Changing?", "The Conflict between Halakhah and Ethics: The Case
of Mamzerut", "Annulment in Lieu of Divorce in Jewish Law",
"Divorce and Conversion: Is a Traditional-Liberal Modus Vivendi
Possible?", "Women in the Rabbinate?", "Alcohol and
drug Abuse in the Perspective of Jewish Tradition", "Judaism and
Contemporary Bioethics", "The Threat of Nuclear War: Jewish Perspectives",
and "The Logic of the Covenant: An Essay in Systematic Jewish Theology".
The essays reflect the author's "assumption of the interpenetration
of Halakhah qua law and Aggadah qua theology throughout the history of Judaism";
they display his customary combination of traditional learning and sensitivity
to theoretical issues. (B.S.J.)
David Novak, The Image of the Non-Jew in Judaism, An Historical
and Constructive Study of the Noahide Laws, New York and Toronto:
The Edwin Mellen Press, 1983, ISBN 0-88946-975-X, Pp. xxi, 481, Price: $68.95
(Toronto Studies in Theology, vol.14). - The concept of Noahide Laws has
played a number of different roles in Jewish thought: it corresponds to
both the "speculative" and "practical" senses of the
Roman ius gentium, the former representing the view of that law which
is common to all mankind, the latter being the law practiced in relations
between Roman citizens and non-citizens; it also indicates those norms binding
on the Jewish people before the Sinaitic revelation. Rabbi Dr. Novak
takes full account of these functions, but adds an important fourth: the
Noahide Laws stand to revealed law as the Kantian a priori categories
stand as presuppositions (but not sufficient grounds) of our experience.
In this sense, Noahide Law represents the natural law contribution to Jewish
positive law. In expounding these themes, the author deals in detail first
with the institution of Noahide laws, with chapters on their origins (which
he assigns to the circumstances of the Hadrianic persecution), and then
severally on each of the seven laws, and their interpretations. In the second
part, he deals systematically with the theory of Noahide Law, as it appears
in the Jewish sources, with chapters on Aggadic Speculation, Maimonides,
Albo, Late Medieval Developments, Moses Mendelssohn and his School, and
Hermann Cohen and the Jewish Neo-Kantians. This is a book of major
importance, both for what it does and for the future possibilities which
it indicates. It deserved far better than to be published by photo-reproduction
of a typescript (hardly a cost-reducing measure, judging by the price charged
for the book). It is to be hoped, nevertheless, that this work will achieve
a wide distribution. (B.S.J.)
Benedikt Otzen, Den antike jodedom, Politisk udvikling og religiose
stromninger fra Aleksander den Store til Kejser Hadrian. Copenhagen:
G.E.C. Gad, 1984, ISBN 87-12-67872-4, Pp. 202, Price: Dkr. 140,00. - The
book is a general treatment of Judaism in the period between 300 B.C. and
130 A.D. The introductory chapter gives a survey of the historical development,
and the final section concentrates upon Apocalyptic as a new movement in
Judaism. In between the fundamental religious ideas of Judaism in antiquity
are treated. A chapter is dedicated to the idea of the Law which is defined
as "the Revelation" in a broad sense, and which is seen in the
light of ideas of creation, election, and world-order. In another chapter
the ethical ideas of Judaism are described, with references, mostly, to
Sirach, The Testaments of the Twelve Patriarchs, and Pirqe Abot. In still
another chapter the pharisaic movement is analysed, and the development
of Law interpretation in early rabbinism is touched upon. (K.N.)
Ch. Perelman, "Legal Ontology and Legal Reasoning", Israel
Law Review 16/3 (1981), 356-367. - In this article, the author
relates the "legal ontology" (meaning "the religious or
philosophical view which is the basis of the system of law") of Jewish
law, Continental European law and Common law with their different allocation
of powers as between judge and legislator. Reviewing the sources of Jewish
law, and the manner of its development, he regards it as "the extreme
example of a system of law without a legislator other than Moses",
and contrasts continental law since the French Revolution, as representing
the other extreme, where the whole of the law is regarded as the expression
of the will of the legislator. English common law, by contrast to both,
is not the expression of will (either of god or the nation), but rather
"assumes the existence of an objective, rational and just law which
is evident in judicial decisions." In all three systems, the scholars
and judges succeeded in liberating themselves from the baleful results of
legal ontology, when "the felt necessities" of the legal situation
demanded. (B.S.J.)
Ch. Perelman, "Ontologie juridique et sources du droit",
Archives de Philosophie du Droit 27 (1982), 23-31. - In comparing
the legal ontology reflected in the views on "sources of law"
to be found in Jewish law, Anglo-American law and continental European law,
the late distinguished Belgian legal philosopher takes note of the way in
which the flexibility of the oral law was reconciled with the view that
God's revelation to Moses was the sole source of law. (B.S.J.)
Daniela Piattelli, Concezioni giuridiche e Metodi costruttivi dei
giuristi orientali, Milan: Giuffrè, 1981, Pp. 194, Price:
IL. 10,000 (Università di Roma, Pubblicazioni dell'Istituto di Diritto
Romano e dei Diritti dell'Oriente Mediterraneo, LVIII). - The common theme
of this wide-ranging series of studies is the tension revealed in Jewish
sources between human political authority (indigenous or foreign) and the
ideology of divine revelation. The traditional conception of the legal autonomy
granted to the local population by Oriental monarchs is studied in the light
of the evidence of the books of Ezra and Nehemia, Esther, Judith, and Daniel;
knowledge of indigenous law is studied by reference to the Letter of Aristeas,
the Books of Maccabees, the evidence of Josephus regarding Alexander the
Great, the edict of Antiochus III, and Roman senatus consulta regarding
the status of the Jewish community (ethnos tÛn IoudaiÚn).
The rule of Dina Demalkhuta is studied, together with the claims
of its inapplicability to Israelite kings, on the grounds that they are
not true sovereigns. This leads to consideration of the divine legitimation
actually claimed by Israelite kings. The influence of theological conceptions
is pursued further in relation to the development of the substantive law,
and the process of Rabbinic interpretation, with particular reference to
the Ketubah and the document of indebtedness (shtar hov).
This is a work which deserves far wider attention amongst historians of
Jewish law than it is likely to attract, if published only in Italian. (B.S.J.)
W.H.Ph. Römer, "Einige Bemerkungen zum altmesopotamischen
Recht, sonderlich nach Quellen in Sumerischer Sprache", ZAW
95 (1983), 319-336. - There is no parallel term in Mesopotamian literature
to our term "law". The nearest is a Sumerian term meaning "rightness,
that which is "fitting". Legal practices, therefore, have to be
determined from context and the author examines examples from, among other
sources, private contracts, judicial reports, commercial texts and legal
codices. (R.A.M.)
Joel Roth, The Halakhic Process: A Systemic Analysis (New York:
Jewish Theological Seminary, 1986). - Professor Joel Roth offers this volume
as a phenomenological study of Jewish law; he intends to study how the halakhah
actually works. He begins with a description of what he takes to be the
operational principles of halakhah, after which he offers a jurisprudential
description of halakhah borrowed largely from the text and footnotes
of Professor Elon's Hamishpat ha'ivri. In his subsequent discussions,
Roth does not apply these general jurisprudential principles consistently.
The major thrust of Roth's "phenomenology" of halakhah
lies in his comments on how the law may be amended, abolished, suspended,
or abrogated. While this is a most intriguing subject, it does not follow
the author's stated mission, which is a focus upon "the halakhic
process, and not upon the actual norms" of the halakhic system. To
his credit, Roth has mastered the relevant textual materials, but he studies
Jewish law as philology and apologetics, but not as jurisprudence. While
he cites the materials that appear in Elon's volume, it is not clear that
he has internalized their significance. Although Roth invokes the rhetoric
of dogmatic positivism - an approach to which this reviewer is partial -
one does not find a consistent approach to positivist analysis or even to
the theoretical literature of legal positivism. While Kelsen's name appears,
there is little attempt to address halakhah as a coercive normative
order or to apply Kelsen's conditions for legal validity (i.e. consistency,
enforceability, and the existence of a community that accepts the legal
order. H.L.A. Hart's distinction between rules of obligation and rules of
recognition would be very useful to Roth's study; the failure to
apply the conceptual program of the introduction diminishes the monograph's
effectiveness. Roth devotes much of his effort to an examination of the
means whereby halakhic norms may be systemically suspended or ignored.
Inasmuch as their concern is an intellectual issue for the academic population
that Roth teaches at the academic center for Conservative Judaism, his work
will find an interested readership. But most scholars of Jewish law will
be disappointed with an implicit apologia which fails to address either
the title or the introductory mission statement.
Professor Roth would do well to reissue this volume after having given
major theoreticians of legal thought a careful reading. A true systemic,
phenomenological study of the halakhah in English, properly executed,
would be a welcome addition to the literature. (A.J.Y.)
N. M. Samuelson, ed., Reason and Revelation as Authority in Judaism,
Melrose Park, PA: The Academy for Jewish Philosophy, l982, Pp. iv, 113,
(Studies in Jewish Philosophy, 2); see KS 58/2 no. 1929.
E. Scheid, "The Authority Principle in Biblical Morality",
Journal of Religious Ethics 8 (1980), 180-203. - "This
article suggests a philosophical explication of the biblical demand that
man should obey an outward authoritative commandment of God. As a starting
point we claim that in Jewish traditional sources there is no "ethics"
as a separate philosophical branch. The Hebrew 'musar'' means authority
in its action, or the act of authoritative deliverance of behavioral norms,
and authority means in this context: a decided will directed so as to move
the wills of others in its own direction ... We have shown that there are
two complementary motivations to obey God's authority: (1) being moved by
a superior, creative Will; and (2) The drive towards self-fulfillment. The
first motivation is the source of the biblical morality of awe - or fear.
In every situation which calls for a moral response, man should judge himself
before God, as God is supposed to judge him. the principle of morality of
awe is justice. The second motivation is the source of the biblical morality
of love. One should relate to his fellows as extensions of his own being.
The principle of morality of love is charity. But these two categories of
biblical morality are complementary, love being the. hidden source of awe,
and awe the hidden source of love" (from the author's abstract). (J.D.)
J.J. Shepherd, "Man's Morals and Israel's Religion", Expository
Times 92 (1981), 171-174. - L. Kohlberg has identified six main stages
of moral development: the lowest being an 'obedience and punishment orientation'
and the highest the 'universal ethical principle orientation.' S. finds
within the Bible examples of moral thinking at various different levels,
and implies that only those scriptural imperatives which conform to Kohlberg's
highest categories need concern the modern believer. (G.J.W.)
Shmuel Shilo, "The Contrast Between Mishpat Ivri and Halakhah",
Tradition 20/2 (l982), 91-100. - The author advances the thesis that
a scholar who wishes to work in the field of Mishpat Ivri must have
a secular, legal education; learning in halakhah is not sufficient. He further
calls attention to the secular orientation of Mishpat Ivri, which,
he contends, does not negate nor contradict the religious dimension of Jewish
law. The author also discusses the first three elements of the four-fold
classification of method in legal studies (dogmatic/analytical; historical;
comparative; ethical/philosophical) in regard to Mishpat Ivri and
shows how the halakhist and the scholar of Mishpat Ivri differ in
approach on the basis of those methods. (S.M.P.)
Eckhard J. Schnabel, "Law and Wisdom from Ben Sira to Paul",
Tübingen: Mohr/Siebeck, (1985), Pp. xvi, 428, DM 84 (paper), ISBN 3-16-144896-0,
ISSN 0340-9570 (WUNT, 2, 16).
S. Schneebalg, "The Philosophy of Jewish Law: A Reply to Professor
Faur", New York University Journal of International Law and Politics
13 (1980), 381-92. - In 1979, Professor Jose Faur of the Jewish Theological
Seminary published in this journal an article on Jewish jurisprudence. Schneebalg
responds to clarify three major points. First, although the law is God's
will and could command obedience on that basis alone, each law also has
an independent purpose. Rabbis have power to act to effectuate that purpose.
Second, although the law applies by covenant only to Jews, several fundamental
laws (the Noachide laws) are applicable even to non-Jews, wherever they
may live, and not just to non-Jews residing in Israel as Faur's article
asserted. Third, he seeks to clarify a class of laws (neither strictly Mosaic
nor strictly rabbinic in origin) called Dinim Mufla'im, which the
author asserts are derived from the Torah through rules of interpretation.
(D.H.P.)
David Shayne, "The Jurisprudential Writings of Maimonides",
National Jewish Law Review IV (1988), 93-124.
Yohanan Silman, "Halakhic Determinations of a Nominalistic and
Realistic Nature: Legal and Philosophical Considerations", Diné
Israel 12 (1985), 249-267.
P. Sigal, "Reflections on Ethical Elements of Judaic Halakhah",
Duquesne Law Review 23 (1985), 863-903. - Sigal's thesis is
that Halakhah developed over time in response to ethical concerns, even
in contravention of precedent in the Torah. He gives numerous illustrations
including examples from the law of abortion, self-incrimination, and the
punishment of the rebellious son. Sigal also argues that Jesus' teachings
demonstrate this same process - reasoning from a basis in Jewish law and
tradition to reach a just result. A lengthy introduction that precedes the
development of the thesis examines the nature of halakhah as distinct from
law, and stresses the variegated, diversified, non-monolithic, non-codified,
multiple-option nature of halakhah. The introduction also identifies and
examines the hermeneutic principles and the motivations and criteria by
which the halakhah developed to serve the ends of social justice and human
dignity in contrast to the politically oriented means by which the legislated
laws of independent kingdoms and states are enacted. (D.H.P.)
Dixon Slingerland, "The Nature of Nomos (Law) Within the
Testaments of the Twelve Patriarchs", JBL 105 (1986),
39-48; see OTA 9/3 (1986), no.946.
R. Smend and U. Lux, Gesetz, Stuttgart etc: Kohlhammer, 1981,
Pp. 156, ISBN 3-17-002015-3, Price: DM 6.50 (Kohlhammer Taschenbücher,
Biblische Konfrontationen 1015). - The authors describe different approaches
to law to be found in various sections of biblical and intertestamental
literature: the Decalogue, Deuteronomy, the Priestly Law, the Psalms, Wisdom,
and the notion of a "new covenant" in Jeremiah 31; the approach
of Jesus, Matthew, Paul, Luke. (B.S.J.)
J.B. Soloveitchik, Halakhic Man, translated by L. Kaplan, Philadelphia:
The Jewish Publication Society of America, 1983, ISBN 0-8276-0222-7, Pp.
xi, 164, Price: $12.95. - This is the first English translation of Soloveitchik's
classic Hebrew essay of 1944, in which he proposes "Halakhic man"
as a combination of two personalities - "cognitive man", who seeks
to uncover the secrets of the world by the imposition of intellectual order
and the removal of mystery, and "religious man", who rather emphasises
the mysteries of existence, including the very idea of lawfulness. Through
Torah and Talmudic tradition, man is able both to rationalise and to experience
the mysteries of divine creation. The book dips into religious psychology
and phenomenology, and sketches a philosophy of Halakhah. S. is most sympathetic
to a form of neo-Kantianism, but with significant qualifications; his legal
philosophy is necessarily part of his theology, in that halakhah
is a means of bringing transcendence down to earth. In the final paragraph,
Rabbi Soloveitchik states his sole intention as having been to "defend
the honour of the Halakhah and halakhic men, for both it and they have oftentimes
been attacked by those who have not penetrated into the essence of Halakhah
and have failed to understand the halakhic personality"; he describes
the essay as "But a patchwork of scattered reflections, a haphazard
collection of fragmentary observations...". It is, indeed, a tantalising
but yet frustrating work, one which calls for that very creative capacity
which the author attributes to halakhic. The translator is to be congratulated
on a superb piece of work, through which not only the author's work but
also many of the sources to which he refers will become known to a wider
public. (B.S.J.)
S. Spero, Morality, Halakha and the Jewish Tradition, New York:
Ktav Publishing House, Inc. with Yeshiva University Press, 1983, Pp. xv,
381, ISBN 0-87068-727-1, Price: $20.00 (Library of Jewish Law and Ethics
IX). - The author states his aim as "to examine the moral teachings
of Judaism so as to uncover their implicit structures in order to develop
what might be called an ethical theory of Jewish morality". Ethical
theory is understood as "a theory about morals and about
moral systems .... It attempts to analyse the basic concepts and methods
of a morality, to describe the types of phenomena involved such as a special
feeling of "obligation" or perhaps certain ideal character traits,
and to explain the relationship of the morality under study to other aspects
of life, such as God and human nature and other moralities." S. is
acquainted with a wide range of modern Jewish and philosophical writings,
but expresses his arguments in the text of the book quite simply. He covers
a wide range of topics: the nature of morality, its place in Judaism, the
grounds of morality, its relationship to Halakhah and to the will of god,
the law of love, freedom and responsibility, and the logic which binds the
Jewish moral system. He finds a hierarchy of values which offer guidance
in cases of conflict. Apart from kiddush ha-shem, human life and
dignity set aside ritual obligations, love of God stands higher than fear
of god, mercy higher than justice, and peace higher than truth. The book
may serve as a useful introduction for students who lack a philosophical
background. (B.S.J.)
Peter Steeensgaard, "Jødisk ortodoxi og fundamentalisme",
Mission. Nordisk Missionstidsskrift 100/3 (1989), 15-24. -
In "Jewish orthodoxy and fundamentalism" the author discusses
the terms orthodox and fundamentalism in relation to Jewish Law and the
understanding of Scripture and Tradition. The author shows how modern orthodox
Judaism sees Halakah as Law applied in a meaningful way in a given
situation and compares this with the view of Samson Raphael Hirsch and others,
showing three different strategies for Judaism: (1) reapplication of the
Law, (2) division of life into secular and religious sections, (3) ignoring
the conditions of modernity by isolation. (K.N.)
Peter Steensgaard, "Merkavah-Mystikken: Den ældste jødiske
Mystik", in Mystik - den indre vej? (Aarhus: Aarhus Universitetsforlag,
1990), 71-92. - The article contains an investigation of Merkavah-mysticism
in rabbinical literature, of its relation to liturgy as well as to apocalyptics
and - finally - of esoterical teachings and magical practices. Here the
esoterism of Merkavah-mystics is analysed against the background of esoteric-mystical
traditions in the rabbinical literature. Problems concerning the use of
magical means by the mystics to arrive at a total insight in the Torah,
including the decision of questions of Halakhah by such means, are
discussed. The conclusion of Peter Schäfer, that the importance of
these attitudes in the Hekhalot-literature must result in dating this literature
to the Gaonic period, is questioned. The attitude of Merkavah-mystics in
this respect is seen as representing an extreme version of a trend found
in certain parts of the Talmud itself. (P.P.S.)
Leo Strauss, Philosophy and Law, Essays Toward the Understanding
of Maimonides and His Predecessors, trans. Fred Baumann, Philadelphia,
New York, Jerusalem: The Jewish Publication Society, 1987, ISBN 0-8276-027-1,
Pp. xvi, 138. - Strauss is best known to students of political and legal
philosophy for his Natural Right and History; to students of Jewish
law for his Introduction to the Pines Translation of Maimonides' Guide.
Here, in this translation of his Philosophie und Gesetz, published
in 1935, he wrestles with the relationship between philosophy and halakhah.
The argument is best summarised by quoting from the jacket: "If the
law empowers the pursuit of philosophy, and the product of philosophical
speculations conflicts with that of law, can the law then be reinterpreted
in the context of these philosophical findings? To resolve this question,
Strauss examines Maimonides' theory of prophecy and identifies in it a parallel
of Plato's definition of the philosopher as one who is above - and yet bound
by - the law. For Strauss, this Platonic distinction provides a possible
reconciliation of the immutability of revelation with the rigor of philosophical
inquiry." It can hardly be said that these issues have been laid to
rest since Strauss's time; this book should be taken very seriously in the
debates of contemporary theorists. (B.S.J.)
S. Talmon, "Torah as a Concept and Vital Principle in the Hebrew
Bible", Greek Orthodox Theological Review 24 (1979), 271-289.
- Jews do not sharply distinguish biblical views of the Torah and
later attitudes. There is essential continuity between them despite Christian
attempts to denigrate post-exilic Jewish religion as legalistic or ceremonial.
Torah is not simply law, formal regulations, but a comprehensive
approach to life involving a world view, practical regulations and advice.
In the Bible laws are set within the history of Israel. Even ritual laws
which are apparently arbitrary are related to historical events and are
concerned to mould a whole way of life. It is through obedience to the torah
that man abides in relationship with God and society is preserved from disintegration.
(G.J.W.)
A. Tambasco, "Jeremiah and the Law of the Heart", Bible
Today 19 (1980), 100-104. - Jeremiah's call to reform is compared to
the Second Vatican Council especially in matters pertaining to social justice.
The article is intended for pastors - Jesus is the "answer" to
Jer. 31:31 - and a catechesis of the prophet is promised in the future.
(S.N.R.)
E. Testa, La Morale dell'Antico Testamento, Brescia: Morcelliana,
l981, Pp. 378, Price: IL 18,000; see BL 1983, p.96f..
I. Twersky, "Halakhah and Science: Perspectives on the Epistemology
of Maimonides" (Heb.), Shenaton Hamishpat Ha'ivri 14-15 (1988-89),
121-151. - Maimonides follows scientific principles in his Mishneh Torah
when dealing with substantive issues such as the calculation of the New
Moon and the value of p. He also places much values upon scientific thinking
and the need for logic and precision. A good illustration of Maimonides'
incorporation of scientific method into his halakhic writings is his approach
to medical practice. According to Maimonides, the practice of medicine must
be based upon purely scientific foundations. Maimonides is strongly opposed
to any form of healing, the basis of which lies in magic or spirituality.
In this respect, he deviates from the Rabbinic tradition which de-emphasises
the human role in the healing process and leaves room for non-scientific
forms of therapy. Maimonides' scientific bent is, however, held in check
by his role as halakhist and commentator. In cases in which the Talmudic
law is clear and uncompromising, then Maimonides has no compunction about
ignoring science in his halakhic rulings. A prime example is his definition
of terefah (an animal suffering from a fatal organic defect) in the
context of the dietary laws. Maimonides remains faithful to the halakhic
tradition which refuses to recognize any deviation from the list of animal
terefot, even though scientific evidence indicates that it ought
to be changed. Maimonides does not even attempt to rationalise this glaring
departure from scientific methodology, and in this respect, there is an
interesting contrast between his approach and that of Rashba. In
addition to this central argument regarding science and halakhah
in Maimonides' legal decisions, the article contains sections on the nature
of the Mishneh Torah, Maimonides' epistemology, the concept of nature
in Maimonidean thought, miracles, and providence and halakhic truth. (D.B.S.)
Yitzhak Twersky, "On Law and Ethics in the Meshneh Torah:
A case study of Megillah II:17", Tradition 24/2 (1989), 138-149.
- The author examines one text in order the demonstrate that a legal statement
or prescription can be seen to reflect ethical doctrines, moral sensitivity,
and thus moral doctrine even when one might initially perceive such statement
or prescription as free of moral motifs. This moral sensitivity is characteristic
of Maimonides; ritual acts, in his formulation, also become areas of ethics.
(S.M.P.)
Walter S. Wurzburger, "Law as the Basis of a Moral Society",
Tradition 19/1 (l981), 42-54. - The essay is a revised version of
a paper presented at the Jewish-Anglican Consultation on "Law and Religion
in Contemporary Society", held in Britain, Nov. 26-28, 1980. The author
develops the thesis that in contrast to prevailing conceptions which divorce
law from morality, Judaism links the two closely. The Jewish pattern
is to ground morality in law rather than law in morality. Morality ultimately
depends for its normative significance upon the transcendent authority of
the law which in turn serves as the matrix for the development of moral
conceptions. (S.M.P.)
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