History of Jewish Law, Legal Philosophy, Semiotics of Law

The Roman empire set law at the center of its very identity. A complex and robust ideology of law and justice is evident not only in the dynamics of imperial administration, but a host of cultural arenas. Citizenship named the privilege of falling under Roman jurisdiction, legal expertise was cultural capital. A faith in the emperor’s intimate concern for justice was a key component of the voluntary connection binding Romans and provincials to the state.
Even as law was a central mechanism for control and the administration of state violence, it also exerted a magnetic effect on the peoples under its control. Adopting a range of approaches, the essays explore the impact of Roman law, both in the tribunal and in the culture. Unique to this anthology is attention to legal professionals and cultural intermediaries operating at the empire’s periphery. The studies here allow one to see how law operated among a range of populations and provincials—from Gauls and Brittons to Egyptians and Jews—exploring the ways local peoples creatively navigated, and constructed, their legal realities between Roman and local mores. They draw our attention to the space between laws and legal ideas, between ethnic, especially Jewish, life and law and the structures of Roman might; cases in which shared concepts result in diverse ends; the pageantry of the legal tribunal, the imperatives and corruptions of power differentials; and the importance of reading the gaps between depiction of law and its actual workings.
This volume is unusual in bringing Jewish, and especially rabbinic, sources and perspectives together with Roman, Greek or Christian ones. This is the result of its being part of the research program “Judaism and Rome” (ERC Grant Agreement no. 614 424), dedicated to the study of the impact of the Roman empire upon ancient Judaism.

The volume "New Directions in Spiritual Kinship: Sacred Ties Across the Abrahamic Religions," edited by Todne Thomas, Asiya Malik and Rose Wellman, undertakes a comparative analysis of "spiritual kinship" (such as God-parenthood) in Christianity, Judaism and Islam. My chapter, "Kinship as Ethical Relation," starts by questioning the usefulness of spiritual kinship as a category for the understanding of Judaism and expands that critique into an alternate model that might be more useful for comparative purposes. I argue that the idea of "Spiritual Kinship" emerges precisely from an a set of Christian taxonomies that are often implicitly or explicitly anti-Jewish (kinship of the flesh vs. kinship of the spirit, the letter and the spirit of the law, etc.) which makes it unsuitable as an "Abrahamic" category. Moreover, the specific ways in which it is unsuitable for comparative purposes actually demonstrate the importance of this category for understanding of Christianity and of the anthropological kinship categories (affinal, consanguineal and fictive)  that were in large measure adapted from European Christian sources. Viewing kinship as a set of ethical relations, by contrast, does indeed allow for useful comparison across these religious divides and makes better sense of the ethnographic and textual data. Examples are brought from both modern and medieval Jewish life.

Sources of Knowledge and Time Oscillations:
R' Yehuda Ha-Chassid's will in the Modern Era.


Rabbi Yehuda Ha-Chassid's will, a short, vague and enigmatic document attributed to the thirteenth century, played an important role in the consolidation and crystallization of halakhic identities in the Modern Era.
This article traces the document’s infiltration into the canonical halakhic literature of the
sixteenth century and the multifaceted storm that was aroused in the wake of it’s critique during the closing years of the eighteenth century.
This research reveals fundamental fluctuations in the management and codification of sources of knowledge in the halakhic discourse of the Modern Era. Tracing the negation or the adoption and adaptation of R’ Yehuda Ha-Chassid's the will into new structures of thought, pertains to central and contradictory phenomena in halakhic culture such as: the influence of Lurianic Kabbalah, textual self-reflection, the birth of Hassidism on the one hand and fluxes in it's self-identity on the other, and the formation of the particularistic character of local milieu. These tensions and constraints are reflected through the fiery discourse concerning Jewish modern identity in which the Will played a part during the last two centuries.
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The central object of the essay is to describe two ways to writing the history of Halakhah. I portray two archetypical dichotomous approaches to the historical research of Halakhah defined as positivist and contextual. The halakhic positivist approach is the outcome of traditional yeshiva studies, while the contextual approach is the product of scholarship practiced in universities and other academically oriented institutes of Jewish studies. These approaches adapted from the frameworks shaped by philosophers and historians seeking to describe and discuss the history of science. The terminology which derives from the philosophy of Natural Science facilitates the secondary object of the article, i.e. comparing the work of historians of Halakhah to the work of historians of Science.

Because the royal ideology of ancient Israel was largely identical to that of the broader ancient Near East, the points of divergence are the more remarkable. In particular, the legal corpus of Deuteronomy conceptualizes the king in a way that rejects all prevailing models of monarchic power, both Israelite and Near Eastern. Deuteronomy submits a utopian manifesto for a constitutional monarchy that sharply delimits the power of the king. This redefinition of royal authority takes place as part of a larger program (Deut. xvi 18-xviii 22) whereby the authors of Deuteronomy redefine the jurisdiction of each branch of public office (local and central judicial administration, kingship, priesthood, and prophecy). Each is subordinated, first, to the requirements of cultic centralization, and, second, to the textual authority of deuteronomic Torah. This utopian delimitation of royal power never passed from constitutional vision into historical implementation: it represented such a radical departure from precedent that the Deuteronomistic Historian, precisely while seeming to implement deuteronomic law, pointedly reversed the deuteronomic program and restored to the monarch all that Deuteronomy had withheld.

Keywords:
Law of King Deuteronomy 17:14-20; Deut 17:14-20; Dtn 17, 14-20; Kingship, Deuteronomy, Deuteronomistic History, Ämtergesetze; constitutional theory, democracy, Deut 16:18-18:22; Ezekiel 37; democratic kingship; Greek ideology of kingship; constitutional monarchy; Elyon, Psalm 1, royal psalms, Laws of Public Officials.

מאמר המבוא על המוות והפילוסופיה של ההלכה עם תוכן העניינים של קובץ המאמרים החדש "המוות והפילוסופיה של ההלכה" - תובנות על חרדת המוות וההלכה - ארנסט בקר, מרטין היידיגר ופרנץ רוזנצוויג וסקירת תוכן הספר
אתר הספר:  https://www.magnespress.co.il/book/%D7%94%D7%9E%D7%95%D7%95%D7%AA_%D7%95%D7%94%D7%A4%D7%99%D7%9C%D7%95%D7%A1%D7%95%D7%A4%D7%99%D7%94_%D7%A9%D7%9C_%D7%94%D7%94%D7%9C%D7%9B%D7%94-8286

The paper considers a responsum of Rabbi Moshe Feinstein in light of the classic dispute in legal theory between the "formalists," those who hold that the immanent rationality of the law determines judicial decision = and the "realists" or "instrumentalists," who believe that judidical decision is and ought to be determined much more by substantive, values-based considerations than by legal texts and concepts. Read through the prism of Aharon Barak's discussion of "purposive interpretation," Feinstein shows here that the state of things is not either-or. Rather, one can be both a formalist and an instrumentalist in one's approach to decision making.

Democracy is supposed to allow individuals the opportunity to follow their conception of the good without coercion. Generally speaking, Israel gives precedence to Judaism over liberalism. This article argues that the reverse should be the case. In Section I it is explained what the Halachic grounds for discrimination against women are. Section II concerns the Israeli legal framework and the role of the family courts. Section III considers Israeli egalitarian legislation and groundbreaking Supreme Court precedents designed to promote gender equality. Section IV analyses inegalitarian manifestations of Orthodox Judaism in Israeli society today, especially discriminatory practices in matters of personal status. It is argued that Judaism needs to adapt gender equality because of Israel's commitment to human rights. Israeli leaders should strive to close the unfortunate gap between the valuable aims and affirmations voiced in the 1948 Deceleration of Independence and the reality of unequal political and social rights for women.

Over the last several decades, scholars writing in fields as varied as law, literary theory, cultural criticism, social science, and philosophical hermeneutics have come to view “translation” as much more than the process of reproducing a written or oral speech act from one language into another. The word is now frequently understood as a synonym for “interpretation” or, indeed, for the act of reading itself. This essay explores how the model of “translation” might help us understand the nature of Jewish legal discourse and the twin phenomena of continuity and change in the halakhah. It does so by focusing upon one specific example of such change: the Jewish law concerning the custody of minor children, which seems to have developed over the centuries from a collection of discrete rules to the broadly-defined standard of “the best interests of the child.”

The article examines two questions. First, is halakhic reasoning special, i.e., a set of of rules, procedures, tactics, and argumentative moves that are unique to the practice of Jewish law and rabbinical decision making (p'sak)? And second, does halakhic reasoning matter - that is, does it really account for rabbinical decisions on any but the most routine questions of Jewish law? Framing these questions within the context of the more general discussion among legal theorists of judicial reasoning, the artice examines them through an analysis of several t'shuvot (responsa) on the permissibility of cigarette smoking. It concludes with the suggestion that, while halakhic reasoning is not a unique form of reasoning and while it does not by itself determine or constrain the decisions of the rabbinical authorities (poskim), it still matters in ways that define halakhah as its own distinct discourse of speech, thought, and the construction of meaning.

Presented here to the public for the first time, the Pinkas of the Metz Beit Din is the official register of civil cases that came before the Metz rabbinic court in the two decades prior to the French Revolution. Brimming with details of commercial transactions, inheritance disputes, women’s roles in economic life, and the interplay between French law and Jewish law, the Metz Pinkas offers remarkable evidence of the engagement of Jews with the surrounding society and culture. The two volumes of Protocols of Justice comprise the complete text of the Metz Pinkas Beit Din, which is fully annotated by the author, and a thorough analysis of its significance for history and law at the threshold of modernity.

One of the greatest challenges for students of Talmud or Halakhah is acclimating to a system of logic that seems utterly foreign to their own.  This paper proposes that teachers can help students overcome this difficulty by approaching Talmud through the lens of legal theory.  The paper outlines a novel model of legal theory, analyzing the way legal texts generate meaning by comparing law to other sign systems, such as language.  By drawing on the central tenet of semiotics – that the relationship between text and meaning is necessarily contextual, we can better help students understand the nature of Talmudic hermeneutics and the halakhic process as a whole.
A later version of this paper was published in _Turn it and Turn it Again: Studies in the Teaching and Learning of Classical Jewish Texts_ (Academic Studies Press, 2014).

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

La sémiotique de la religion est appelée à un exercice paradoxal d’introspection.  Il faudra reconnaître les présupposés religieux de la sémiotique même ;  sans pourtant parvenir à une paralyse de la démarche sémiotique, il faudra s’interroger sur le rapport entre conceptions du sens religieux internes aux communautés et conceptions extérieures des analystes.  Est-il toujours vrai que comprendre une religion se réduit à en saisir le sens ? N’y a-t-il peut-être une dimension fondamentale dans toute expérience religieuse, consistant exactement à s’abandonner à l’ignorance du sens ? À passer de la quête de ce qui signifie à la fusion avec ce qui est ?  La sémiotique ne pourra répondre à ces questions qu’en récupérant ses liens profonds avec l’une des disciplines qui, en définitive, furent à ses origines : la philosophie.

This article offers a new account of Leo Strauss's interpretation of Maimonides' esoteric teaching in the Guide for the Perplexed, which Strauss offers in his seminal essay "The Literary Character of the Guide for the Perplexed." According to the generally-accepted view, for Strauss, Maimonides' esoteric teaching is the identity of the secrets of the Torah with Aristotelian philosophy, and— since that philosophy contradicts the foundational beliefs of the Torah—that the Torah has the merely instrumental function of bringing about political well-being. By contrast, I argue that, for Strauss, Maimonides' esoteric teaching is the necessity of breaking the laws of the Torah for the sake of restoring Israel's sovereignty. Additionally, I claim that Strauss's interpretation depends on Carl Schmitt's "decisionism."

In medieval Europe, the much larger Christian population regarded Jews as their inferiors, but how did both Christians and Jews feel about those who were marginalized within the Ashkenazi Jewish community? In On the Margins of a Minority: Leprosy, Madness, and Disability among the Jews of Medieval Europe, author Ephraim Shoham-Steiner explores the life and plight of three of these groups. Shoham-Steiner draws on a wide variety of late-tenth- to fifteenth-century material from both internal (Jewish) as well as external (non-Jewish) sources to reconstruct social attitudes toward these "others," including lepers, madmen, and the physically impaired. Shoham-Steiner considers how the outsiders were treated by their respective communities, while also maintaining a delicate balance with the surrounding non-Jewish community.
On the Margins of a Minority is structured in three pairs of chapters addressing each of these three marginal groups. The first pair deals with the moral attitude toward leprosy and its sufferers; the second with the manifestations of madness and its causes as seen by medieval men and women, and the effect these signs had on the treatment of the insane; the third with impaired and disabled individuals, including those with limited mobility, manual dysfunction, deafness, and blindness. Shoham-Steiner also addresses questions of the religious meaning of impairment in light of religious conceptions of the ideal body. He concludes with a bibliography of sources and studies that informed the research, including useful midrashic, exegetical, homiletic, ethical, and guidance literature, and texts from responsa and halakhic rulings.
Understanding and exploring attitudes toward groups and individuals considered "other" by mainstream society provides us with information about marginalized groups, as well as the inner social mechanisms at work in a larger society. On the Margins of a Minority will appeal to scholars of Jewish medieval history as well as readers interested in the growing field of disability studies.

The First Crusade presented Western European Jews with fundamental challenges, both ontological and religious. Where was God, many asked. What is the role of God in History? How can God sanction destructive violence against His chosen people? How is Jewish life to change in practical terms, in an ambient environment of toxic and often deadly anti-semitism?

In the early decades of the twentieth century, a group of Jewish legal scholars working in Eastern Europe, and later in Mandatory Palestine, sought to « revive » (i.e., modernize) Jewish law and turn it into the legal system of the Jewish community in Palestine—and later the legal system of the State of Israel. Inspired by the nationalist legal ideas of the German historical school, as well as the successful revival of the Hebrew language, the Jewish legal revival project created a body of scholarship on Jewish law, established the first Jewish law school in Mandatory Palestine, and even influenced the work of a unique communal court system that functioned in the Jewish community in Palestine until the end of British rule in that territory.
The Jewish legal revival project had an ambivalent attitude to Roman law (both ancient and modern). Modern scholarship on Roman law, especially nineteenth-century German legal scholarship, was seen as a model to be emulated by the Jewish legal revivers. Indeed, the Jewish legal revival project was often simply understood as a process of reorganization of the materials of Jewish law based on legal categories, models, and methodologies taken from modern Roman law scholarship. On the other hand, the legal revivers saw Roman law as the « other » of Jewish law, often arguing that the principles underlying the latter were utterly different from those of the former. Roman law was thus imagined and used by the early-twentieth-century Jewish law scholars discussed in this article in contradictory ways: sometimes as a legal system that should be emulated, and sometimes as a legal system whose norms and institutions should be shunned. Thus, as this article shows, Roman law, as it was described in the legal thought of the group of legal scholars I study, was used as a foil against which modern Jewish legal identity could be created.

Some symbols so skillfully traverse epochs and cultures that they are depicted as almost ‘natural’ embodiments of abstract values. The balance is one of these symbols, adopted to represent justice from ancient Egypt until the present time. Power appropriates this ‘natural meaning’ in order to construct a rhetoric of fairness. Yet, semiotics unveils that the balance, like every symbol, is not natural at all, but underpinned by a specific ideology. From the semiotic point of view, the balance is a device that produces indexes, i.e., causal signs that visually signal an invisible property, weight. Although this translation is not automatic, but based on specific indexical circumstances (such as the type of balance, the weighing techniques, and the measuring standards that are used), the balance is paradoxically turned into a symbol of justice precisely because it is depicted as a non-semiotic device, as an instrument that cannot lie, as a machine.

In earlier chapters of my book, I argued that the rabbinic conception of sinaitic law is profoundly positivist and that that conception of law is related to the rabbinic construction of criminal punishment as well as to a radical view of human freedom. In the penultimate chapter, I contrast this view with the view of law and of the human person in the Pauline letters. In Chapter Six, the final chapter of the book, I show how a contrasting natural law conception characterizes a variety of circles, both Jewish and non-Jewish, throughout the cultural world in which rabbinic Judaism takes shape. I argue that the rabbis are well aware of this alternative conception and that passages in rabbinic literature in which rabbis argue with pagans about mitzvot demonstrate that the rabbis saw their own view of law, and the ideational correlaries of this view, as central to their self-definition.