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.
| Officers | Constitution
| Membership | Conferences
Publications | Abstracts
| Resources | Courses
View the framed
or non-framed version of this site