Abstracts

HISTORY OF JEWISH LAW

A. I. Baumgarten, "The Pharisaic Paradosis", Harvard Theological Review 80 (1987), 63-77. - The claim that the traditions of the Pharisees were of great antiquity was disputed in the first century by Sadducees, members of the Qumran community, and Christians. The Pharisees probably invented the idea that their traditions were ancient to encourage contemporary Jews to join their party. (G.J.W.)

Joseph Baumgarten, "The Pharisaic-Sadducean Controversies about Purity and the Qumran Texts", JJS 31.2 (1980), 157-70. - In a thoughtful analysis, Baumgarten attempts to determine the position of the sect on halakhic aspects of purity which also involved Pharisaic-Sadducean controversies. He takes up the issue of Tebul Yom, of Bones of Animals, of Nissoq, and of the immersion of the Menorah. Baumgarten suggests that in the first three cases Qumran materials suggest that the sect was rigorous in its construction of the rule, like the Sadducees and in contrast to the Pharisaic position. In the fourth case the Temple Scroll appears strict, while the Sadducees appear lenient. Baumgarten outlines the issues regarding the immersion of the Menorah but does not draw a final conclusion. He does, however, doubt that the Sadducees reflected in the preceding sources are not the historical sadducees, but some other heterodox group from the period (to whom the name Sadducees were attributed, as sometimes happens). (M.F.)

Boid, I.R.M.: Principles of Samaritan Halachah (Studies in Judaism Late Antiquity, 38). 1989 Pp. xiv, 362. (Brill, Leiden. Price: fl 155.00; ca. $77.50. ISBN 90 04 07479 1; ISSN 0169 961X.

S. Büchler (deceased), "The Ketubah among Jews of North Africa During the Geonim Period and the Relationship between the African Communities and Babylonian and Palestinian Jewry" (Heb.), Shenaton Hamishpat Ha'ivri 11-12 (1984-1986), 89-91. - This article is a Hebrew translation of S. Büchler's article in Revue des études juives 50 (1905), 145-181, together with footnotes and additional references, especially to the Otsar Hage'onim. The author begins with the claim that North African communities were influenced in their understanding that the Ketubah was of Biblical origin by the traditions of Erets Yisrael. This thesis is then developed with respect to other aspects of matrimonial laws and customs and in relation to the laws of ritual purity (niddah). Examples of the influence of the Palestinian Academies on North African communities are also cited from the areas of the dietary laws and liturgy. The existence of such an influence was already suggested by Rav Hai Gaon and the article argues that this suggestion must be taken at face value. (D.B.S.)

A. David, "A New Responsum of Maimonides to R. Ephraim, the Dayyan of Tyre" (Heb.), Shenaton Hamishpat Ha'ivri 14-15 (1988-89), 107-112 - Maimonides' correspondence contains at least two items addressed to R. Ephraim the Dayyan. One possibility is that this scholar was Egyptian. The other is that he was a Provençal rabbi, living in Tyre. The author of the present article argues that R. Ephraim was a native of Provence who had gone on aliyah and who later became the religious leader of the Tyre community. The new responsum of Maimonides to R. Ephraim was discovered in the Gaster Genizah Collection at Manchester University and deals with the question of a Nazerite drinking wine for kiddush and havdalah. (D.B.S.)

Elliot N. Dorff and Arthur Rosett, A Living Tree: The Roots and Growth of Jewish Law (Albany: SUNY Press, 1981). - The authors of this engaging and readable volume intended the work as a textbook introduction to Jewish law for law students. The format, like the title, places the reader in a historical/ideological mindset, and the authors take the student/reader through their selection of sources with ease, readability, and pedagogic skill. Pains are taken to present materials in attractive contexts in order to render archaic materials understandable and significant to American law students. Sociological and comparative materials are bountifully cited in order to impress upon the reader the fact that Jewish legal traditions represented a living legal system. The materials are well selected, albeit with a distinct editorial bias. While the student who completes this volume will have read in elegant translation many of the major documents of the Jewish legal tradition, he or she may be confused by certain ideological and methodological inconsistencies of the authors.

This volume purports to be a descriptive survey of an evolving Jewish legal tradition. Unfortunately, the authors often make a bad mistake by confusing prescription and description. It is one thing to describe "objectively" the selections cited with a methodological bias: it is quite another to pass moral, aesthetic, and scholarly judgement upon elements of the Jewish tradition which the authors find to be out of context with their private existential tastes. Normative judgements have no place in legal, scientific texts. If, for example, one wishes to apply a "sociology of law" approach to Jewish law in order to justify "liberal" applications of Jewish law, one must be honest enough to admit that liberal Jewish communities have, as in the case of Conservative Judaism, de facto, and in the case of Reform Judaism, de jure, rejected Jewish law as a normative obligatory order. Whether or not one appreciates the specific applications of Jewish law in the orthodox community one must concede that, for better or worse, they are the only living community that claims to adhere to Jewish law. The anti-orthodox polemic is a legitimate ideological position; it is out of place in an "objective," academic setting. The "is" statements of the tradition have underlying "ought" prescriptions that can be uncovered, albeit in different idioms, by cultural and legal anthropologists as well as by student of the oral Torah. Since the language and value grid of the authors is American philosophical pragmaticism, it is little wonder that the world structure implied by Jewish law is viewed with distance.

A second methodological error is the misuse of historical relativism. While most academics assume this mindset as a condition of the academic enterprise, few living members of communities whose lives are guided by codes of culture muse about their cultures in a detached fashion. Living participating members of a culture take their culture (or social construction of reality, to use Peter L. Berger's term) to be an absolute. The authors of this volume take the methodological relativism of their discipline to be the absolute; an interesting exercise would have been a comparison between the classical Jewish and secular American social constructions of reality. Except for a very fine explication of the Jewish legal marital ethic, this approach was not taken.

The authors take a position similar to Professor Menahem Elon in their opposition to "codification" in general and to Maimonides' Code in particular. Recognizing the legitimate right of authors to academic pluralism, it should not be argued that others are "wrong" because they reach different conclusions, since they begin with different methodological starting points. It should be noted, however, that Maimonides' code did cite sources, but not footnotes. He always told the reader, in his technical vocabulary, whether the legal source of law was biblical, rabbinic, or customary. By giving the law to the laymen, Maimonides democratized Jewish law; by keeping Jewish law and it attending social and political power esoteric, the Gaonim of Shinar, like charismatic sages of our own day, no less than liberal Jewish thinkers, frame the law in their ideological image. Maimonides had every intention of limiting the authority of the post-Talmudic sages, as the authors clearly note; it is however, a matter of honest debate whether this limitation is "good" or "bad." In spite of the criticism noted above, A Living Tree makes for interesting, if not provocative reading, it will expose the student to the scope and concerns of Jewish law, and it should generate fruitful and fructifying classroom discussions. Hopefully, quality instruction and qualified students will be able to identify the partisan polemic of an otherwise worthy volume. (A.J.Y.)

 

David R. Dow, "Hillel's Dilemma and Wisdom", National Jewish Law Review IV (1988), 59-66.

M. Elon, "The Legal System of Jewish Law", New York University Journal of International Law and Politics 17 (1985), 221-43. - To refute the notion that the growth of post-Talmudic halakhah was the result of mere sterile scholasticism, Elon traces the development of Jewish civil law (mamona), as distinct from ceremonial religious law (isura), from Babylon to the present. He argues that post-Talmudic judicial autonomy produced insightful and creative developments in the halakhic civil law to meet everyday problems. This post-Talmudic development over 1,300 years was chiefly facilitated by the enormous growth of Jewish case law represented by the responsa literature, embodying over 300,000 opinions. This civil law growth largely ceased with Emancipation. Post-Emancipation Jewish courts dealt mostly with ceremonial matters - matters with little room for innovation. Though Elon admits that making increased use of the halakhah as a growing supplemental source of Israeli law would be controversial and difficult, he posits that it is currently the only way to restore creativity and continued development in the Jewish civil law. (D.H.P.)

Z.W. Falk, Mavo ledine yisra'el biyeme habayit hasheni, 2nd ed., Jerusalem: Mesharim, l983, Pp. 388; see KS 58/4 no. 5297.

Z.W. Falk, Religious Law between Eternity and Change (Heb.), Jerusalem: Mesharim, l986, ISBN 965-313-000-5, Pp. 146. - Sub-titled "On the Dynamism of Jewish Law in Jewish Thought and on Jewish, Christian and Muslim Attitudes towards Legal Change", this book first presents a series of rapid cameos of the views of Jewish thinkers from the Bible to Eliezer Berkovits, then looks at aspects of the phenomenon of legal change from a wide variety of interdisciplinary and comparative viewpoints: e.g. custom, public and opinion and royal edict in Jewish, Christian and Islamic sources. (B.S.J.)

Shean Freyne, Galilee from Alexander the Great to Hadrian 323 BCE to 135 CE, Wilmington, Delaware: Michael Glazier, Inc. and University of Notre Dame Press, 1980, ISBN: 0-98453-099-2 and 0-268-01002-1, Pp. xviii, 491, Price: $27.50. - This is an important and ambitious exercise in the integration of social, religious and economic history, focused upon Galilee because of its importance for Christian history, but recognising the importance of much wider historical perspectives. Professor Freyne, inspired by the example of and encouragement from Professor Hengel, uses a well-balanced array of sources, especially Josephus, New Testament, and early Rabbinic texts. For the general legal history of the period, his chapters on the cities, and on economic realities (land ownership, commerce, wealth distribution, taxation) are of great interest. For the student of Jewish law, chapter 8, "Galilee and the Halakhah" is particularly important. Before the destruction of the Temple, the halakhah had little attraction for the country people; the author explains this as understandable, on the grounds that Pharisaism as a way of life was more suited to the middle class townspeople. The country people appear to have found the figure of the holy man (the hasid) more attractive. After 70, Pharisaism had a limited success in Galilee, but its penetration was gradual, and there was no radical and immediate break with the traditions of the earlier period. Freyne's review of the evidence includes consideration of the problem of the am ha'arets, on which he broadly endorses the views of Oppenheimer (Survey no. 190, JLA II). (B.S.J.)

I. Gafni, Yehude Bavel bitekufat hatalmud, Jerusalem: Merkaz Zalman Shazar, 1990, ISBN 965-227-065-2. - An historical account of Babylonian Jewry in the Talmudic period. (L.J.)

Robert Gordis, The Dynamics of Judaism, A Study in Jewish Law, Bloomington and Indianapolis, Indiana University Press, 1990, ISBN 0-253-32602-8, Pp. 244. - Professor Gordis here presents and often passionate account of his philosophy of Jewish law, stressing its dynamic character and the need to address the concerns of the present age. Under the heading "Principles", he deals with the abiding importance of the experience of liberation from slavery, the primacy of ethics, the relationship between revelation and authority, and the role of the scholars and the popular will in the Halakhic process. The second section of the book is devoted to "Practices", and contains a selection of illustrations of development within Jewish law, with special emphasis upon the role of women - an area where, he argues there is both scope and need for substantial further advances. (B.S.J.)

P. Grelot, "Elephantine. Araméens et Juifs en Egypte", Le Monde de la Bible 45 (1986), 32-35; see OTA 10/1 (1987), no.154.

M. Heltzer, "The Story of Susanna and the Self-Government of the Jewish Community in Achaemenid Babylonia", Annali dell'Istituto Orientale di Napoli 41 (1981), 35-39. - The author concludes: "According to the realia of the story, "Susanna" received its present literary form in Achaemenid Babylonia in the V-IV cent. B.C.E. The evidence for this is (a) the personal name Susanna itself, given after the town of Susa, and (b) the institutions of ethnic self-government which, according to the scarce data we possess, did not differ from the self-government of other ethnic groups at this time." (J.D.)

Shnayer Z. Leiman, "Hazon Ish on Textual Criticism and Halakhah - A Rejoinder", Tradition 19/4 (1981), 301-310. - The author responds to Zvi A. Yehudah's article on Hazon Ish published in Tradition 18/2 (1980). He contends that Hazon Ish was not necessarily as antagonistic to textual emendation as Yehudah would have it appear. Hazon Ish was very cautious toward textual criticism, but Yehudah according to Leiman appears not to have done justice to the full scope of Hazon Ish's views. (S.M.P.)

Chaim Milikowski, "Law at Qumran. A Critical Reaction to Lawrence H. Schiffman, 'Sectarian Law in the Dead Sea Scroll: Courts, Testimony, and the Penal Code'", RQ 12 (1986), 237-249; see OTA 10/1 (1987), no.309.

Leo Prijs, Jüdische Tradition in der Septuaginta, Hildesheim: Georg Holms Verlag, 1987, ISBN 3-487-279186-6. - Suffice it here to note the reprinting of the well-known study by Leo Prijs, originally published by Brill of Leiden in 1948, the first chapter of which is devoted to halakhic texts (most of them from the "Covenant Code", but including also Lev. 18:21, 21:9, Deut. 22:18, I Sam. 10:4, 16:5, I Kings 18:36, Jer. 16:7, Mal. 2:16, Ps. 33:5, Ruth 4:5). In the same volume, the author's 1950 study of Die Grammatikalische Terminologie des Abraham Ibn Esra is also reprinted. (B.S.J.)

D. Rosenthal, "Rav Paltoi Gaon and His Place in the Halakhic Tradition" (Heb.) Shenaton Hamishpat Ha'ivri 11-12 (1984-1986) 359-653. - Rav Paltoi's gaonate of the Pumpedita Academy began in 842 and lasted sixteen years. It was a rare island of stability in an unsettled and schismatic period, made possible by Rav Paltoi's strong personality and the respect of his colleagues. Amongst his contributions to Jewish law are important procedural matters such as a standard form of herem and the permission to bring a recalcitrant litigant in a financial suit to a gentile court. He also allowed a criminal to be imprisoned on the Sabbath in order to prevent his escape, although the lashing of offenders was not permitted on the Sabbath. Rav Paltoi also opposed the reduction of Talmudic law to short complications, and most of his responsa consist of interpretations of difficult Talmudic passages. The article surveys Rav Paltoi's career and his place in the halakhic tradition. It concludes with two appendices listing references to Rav Paltoi's responsa. (D.B.S.)

Anthony J. Saldarini, Pharisees, Scribes and Sadducees in Palestinian Society, Edinburgh: T. & T. Clark, 1989, ISBN 0-567-09530-4, Pp. x, 326. - The author seeks to use sociological method and concepts, in conjunction with literary and historical analysis, in order to review the much-discussed problem of the nature and identity of the groups described in Josephus, the New Testament and Rabbinic literature as "Pharisees", "Sadducees" and "Scribes". He asks such questions as: What social classes did they come from? What social statuses did they enjoy? What political involvement did they have? What kind and degree of authority or influence did they exert? What was their goal for themselves and for Jewish society? He suggests that it is wrong to view the Pharisees, Sadducees and Essenes as the only or as the dominant groups in first century Judaism, and seeks to locate them "within the whole of society and show their roles and contributions to it". This involves, inter alia, the use of sociological studies of agrarian empires, and a consideration of the types of social relations and groups which make up the fabric of society. The literary sources are then subjected, in turn, to this approach. Part III draws together the results of the sociological and literary analyses, reviewing the evidence in the historical sequence of the literary sources, and concluding, partly on the basis of comparative evidence, that scribes do not seem to have formed a unified class or organisation, and dividing them into three types: the village scribes, middle level officials, and high official/governmental counsellors. The rather fragmentary nature of the presentation of the conclusions, especially in the final chapters devoted to the Pharisees and the Sadducees, no doubt reflects the nature of both the evidence and the problem). (B.S.J.)

E.P. Sanders with A. I. Baumgarten and A. Mendelson, Jewish and Christian Self-Definition, Volume Two, Aspects of Judaism in the Graeco-Roman Period, London: SCM Press Ltd., 1981, Pp. xvi, 485, Price: £15.00 .- Part of an ambitious research project sponsored by the Canada Council, this volume considers the evidence from Jewish sources on the development towards a Jewish orthodoxy by the third century C.E., and the process by which this form of Judaism came to view itself as normative. Necessarily, considerable attention is paid to halakhic sources. Of particular interest to the historian of Jewish Law are the contributions by L.H. Schiffman, "At the Crossroads: Tannaitic Perspectives on the Jewish-Christian Schism", B.S. Jackson, "On the problem of Roman Influence on the Halakah and Normative Self-Definition in Judaism", D.W. Halivni, "The Reception Accorded to Rabbi Judah's Mishnah", and E.E. Urbach, "Self-Isolation or Self-Affirmation in Judaism in the First Three Centuries: Theory and Practice". The notes to all the articles are collected at the back and there is a single composite Bibliography, Index of Names and Index of Passages for the whole volume. (B.S.J.)

I. Ta-Shma, "She'elot Uteshuvot Min Hashamayim" (Heb.), Tarbiz 57 (1987-88), 51-66. - This work - the "Heavenly Responsa" - is attributed to R. Jacob of Marvege in twelfth century Provence. The present article examines the authorship of the responsa and focuses on various aspects of Provençal history and halakhic tradition which manifest themselves in the responsa. Two major issues dealt with in the article are the attitude of the author of the responsa to the debate concerning the status of Rif as a halakhic authority, and the method and technique adopted by R. Jacob of Marvege for communicating with his Heavenly mentors, after whom the collection is named. The article also claims that part of the collection was forged by Moses de Leon, who used the great prestige of the She'elot Uteshuvot Min Hashamayim to advance some of his own religious ideas. (D.B.S.)

The Lithuanian School: For over a century now the Lithuanian Talmudists and their followers in the Yeshivot, employing analytical method, have been far more interested in legal theory than in practical application. The following collections in the vein have recently appeared: Zekher Yitzhak ha-Shalem, the works of I.J. Rabbinowitz of Ponievezh, ed. A.E. Kahana Shapira (the Ashkenazi Chief Rabbi of Israel) (Jerusalem: Mosad le-Torat Hakhmey Lita, l990); Emet le-Yaakov, Commentaries to the Babylonian Talmud, Nezikin and Nashim, by J.Kaminetzky (New York: Makhon Emet le-Yaakov, 1987); Hiddushey ha-Grnt (ha-Gaon Rabbi Naftali Trop) (Jerusalem: Makhon Oraita, 1989); Afikey Yam ha-Shalem, the works of Y.M. Rabbinovitz (Jerusalem: Makhon Tiferet haTorah, 1989); 0lat Shlomo, Memorial Volume for S.D. Stavski (Jerusalem: Yeshivat Or Yisrael, l990). Among the topics in these volumes are the definition of ownership; whether an agent acts on behalf of the principal or is treated as the principal; the distinction between assent and intention; the community as a legal person; whether the circumcision required for a proselyte is an initiatory rite or is intended solely in order to prevent him from being uncircumcised once he has become a Jew through his immersion. This kind of question is found by implication in the earlier sources but, surprisingly, was rarely made explicit until the arrival on the scene of the Lithuanian school, which, incidentally, was accused by the more traditional Talmudists of importing foreign ideas into the Talmudic discussions. (L.J.)

E.E. Urbach, Hahalakhah mekoroteyha vehitpathutah, Jerusalem: Yad LeTalmud and Givatayim: Masada, l984, Pp. iv, 405; see KS 59/2-3 no. 2854.

 

 

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