Abstracts

LEGAL FICTIONS

S. Shilo. "Circumvention of the Law in Talmudic Literature" (Heb.), Shenaton 8 (1981), 309-355. - There is a basic distinction between the legal circumvention i.e. the ha'armah of Jewish law, and the legal fiction of secular law. The former uses existing categories in order to achieve a different result to that which would normally be achieved. The latter creates artificial categories in a fictitious manner. The author distinguishes between two types of circumvention. The first is aimed at preventing the operation of a particular law, and the second aims at changing the subjective element, i.e. the intention, attached to it. In general, it would appear that where the purpose of the circumvention is of a positive nature then the Rabbis are prepared to support it. On the other hand, where the purpose is viewed in a negative light, then the Rabbis would disapprove of such a circumvention. Shilo suggests that the main characteristic of the circumvention is that it appears to be within the law, and to the "officious bystander" at any rate, nothing of an illegal nature is taking place. (Y.S.K.)

 

 

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