Abstracts

LEGAL REASONING

E. Bashan, "Its Ways are Ways of Pleasantness" (Heb.), De'ot (1980), 171-176. - The verse "Her ways are ways of pleasantness (Prov. 3:17)" was used by the Rabbis of the Talmudic period and their successors to reject any juridical interpretation which might result in either suffering or injustice. Bashan observes that the Rabbis used their power under this principle to override the halakhah on the basis of ethical considerations alone. Various Rabbinic sources in which the principle provided a basis for halakhic decision are cited mainly from N. Africa and other Oriental countries. The areas in which the principle was used in these sources extend to torts, public law, takanot, Family law, and Succession. (Y.S.)

H. Ben-Menachem, "The Respective Attitude of the Babylonian and Jerusalem Talmuds to Judicial Deviation from the Law" (Heb.), Shenaton 8 (1981), 113-134. - In this article, the author deals with various instances of deliberate judicial deviation from the halakhah in the two Talmuds, and attempts to show how the Babylonian and Jerusalem Talmudim reflect conflicting approaches to the jurisprudential question of judicial discretion. According to Ben-Menachem, the stricter approach of the Jerusalem Talmud may be a reflection of the historical background, i.e. the struggle against sectarian Judaism and early Christianity. As a result of this struggle, the Rabbis of the Jerusalem Talmud tended to emphasise the superiority and exclusiveness of the halakhah. In Babylon, however, this threat did not exist, and consequently the Babylonian Talmud reflects a more liberal attitude to judicial deviation from the halakhah. (Y.S.K.)

M. Breuer, "The Decision-Making Methods of the Rabbis of Germany in the Emancipation Period" (Heb.), Sinai 100 (1987), 166-168. - In this discussion of the approach adopted by orthodox German poskim in the post-Emancipation period, the author focuses on four main areas of conflict between traditional halakhah and modernity. The first is Jewish-Gentile relations, and the principle issues are conversion for the sake of marriage and the circumcision of the child of a Jewish father and a non-Jewish mother. The second is non-Jewish social norms, e.g. baring the head as a sign of respect and appearing clean-shaven in public. Included in this area is the problem of state laws which conflict with halakhah, e.g. delaying burial and the ban on mezizah. The author argues that the solution of the pipette is typical of the German approach to problems raised by modernity in that it combines both halakhic authenticity and modern technology. Electricity in the context of the Sabbath laws and food science in relation to the dietary laws are the main issues in the next section, which is devoted to technological progress. The final area discussed is that of economic necessity, and the focus here is on the problem of running a business on the Sabbath. The solution was the creation of a partnership with a non-Jew, with the result that in this period, there was a large number of business partnerships between Orthodox German Jews and gentiles. The author concludes that German poskim did not simply seek lenient solutions to every problem. There were issues on which they adopted a strict stand. Their methods, however, were based upon an acceptance of modernity and a thorough and severely rational approach to halakhah. The close relationship between these Rabbis and their communities was also instrumental in making German Orthodox halakhah more dynamic than its East European counterpart. (D.B.S.)

Michael L. Chernick, Hermeneutical Studies in Talmudic and Midrashic Literatures (Heb.), Lod: Makhon Haberman lemehkere sifrut, l984, Pp. iv, 175; see KS 60/1-2 no. 471.

Shulamit Darans, "Formalism and Informalism in the Rabbinical Courts of Israel", Diné Israel 10/11 (1984), 27-124 .

David Ellenson, "Jewish Legal Interpretation: Literary, Scriptural, Social, and Ethical Perspectives", Semeia 34 (1985), 93-114; see OTA 9/3 (1986), no.934.

I. Englard, "Mysticisme et droit. Réflexions sur les "Liqute Halakhot" de l'école de Rabbi Nahman de Bratslav", Mélanges à la mémoire de Marcel-Henri Prévost (Paris: Presses Universitaires de France, 1982), 191-205. - The author notes the Jewish view that halakhic texts may simultaneously have quite different levels of meaning, including allegorical and mystical levels which are not in opposition to the legal or normative level. He gives examples of mystical interpretation of civil law texts. Nevertheless, one does find in the sources some indications of a more intimate relationship between the levels, such that a practical command finds its raison d'Ítre at the symbolic level, or at the performance of the practical norm can have an influence in the mystical universe. The only systematic attempt to put civil law rules on a mystical basis was made in the school of Rabbi Nahman of Bratslav. The author examines the Likute Halakhot in this context. (B.S.J.)

S. Ettinger, "On the Place of Sevarah (Logic) in Maimonides' Mishneh Torah" (Heb.), Shenaton Hamishpat Ha'ivri 14-15, (1988-89) 1-30. - Two pervasive themes in Maimonidean legal studies are the deviations in the Mishneh Torah from the reasons for a particular law given in the Talmud, and Maimonides' classification of commandments into Scriptural and Rabbinic categories. The present author suggests that the key to both problems lies in the notion of sevarah, which he defines as a general rational quality as distinct from the formal category of legal logic - also known as sevarah - which serves as a source for the development of laws and principles within the halakhic system. In dealing with Maimonides' tendency to provide original reasons for laws, the author distinguishes between "talmudic discussions" (masa umatan) and "definitive talmud" (talmud arukh) but concludes, following R. Abraham the son of Maimonides, that the underlying reason for Maimonides' choice of rationale for particular laws is general logic rather than criteria of a formal, legal nature. Similarly, Maimonides' categorization of Scriptural and Rabbinic laws is based upon the existence of a logical connection between the law in point and the text of the Torah, rather than on formal or semantic principles. The article concludes with an appendix criticising a recent attempt to develop a more formal approach to resolving the issue of Maimonides' deviations from the Talmudic reasons for particular laws. (D.B.S.)

Michael Fishbane, Biblical Interpretation in Ancient Israel, Oxford: Clarendon Press, 1985, ISBN 0-19-826325-2, Pp.xi, 613, Price: £40.00. - This is a major work in biblical scholarship, developing a theory of "inner biblical exegesis" in which the interpretation of biblical documents by other biblical documents is traced. Of particular interest to readers of the Annual is the fact that a major section of the book (pp.91-277) is devoted to legal exegesis. In chapter 9 (231-77), the author offers his conclusions on the nature of the ancient Israelite legal tradition, as emerging from this analysis. This is an important contribution to the study of biblical law. (B.S.J.)

Benjamin J. Gelles, Peshat and Derash in the Exegesis of Rashi, Leiden: E.J. Brill, 1981, ISBN 90 04 06259 9, Pp. x, 171, Price: Gld. 64 (Etudes sur le JudaÔsme Mediéval, IX). - This is an interesting doctoral dissertation, in which the author reviews critically the places of peshat and derash in the work of Rashi. While advocating in some passages the use of peshat, Rashi in fact frequently uses both methods. Dr. Gelles concludes that peshat and derash "emerge not so much as conflicting forces but rather as the two ends of an exegetical spectrum, separated by intermediate shades of perception, including, no doubt, an area of methodological indeterminacy." The first part of chapter 4 deals specifically with halakhic texts (B.S.J.)

R.M. Grant, "Dietary Laws among Pythagoreans, Jews, and Christians", HTR 73 (1980), 299-310. - Dietary regulations were common among religious groups in antiquity. Explanations, either hygienic or allegorical, were offered by Pythagoreans, Jews and Christians. Plutarch compared Jewish food laws to Pythagorean and Egyptian ones. Aristeas, Philo and 4 Maccabees find an educational purpose in the laws: they inculcate virtue and control of the passions. The church while rejecting OT regulations introduced new food laws of its own (Acts 15), and used allegorization to explain their purpose. (G.W.J.)

Yitzhak D. Gilat, R. Eliezer ben Hyrcanus, A Scholar Outcast, Ramat-Gan, Bar-Ilan University Press, 1984, ISBN 965-226-043-6, Pp.536. - This is a welcome English translation of Gilat's 1968 book, which studies the legal methodology of R. Eliezer and his substantive halakhic teachings (mainly on ritual matters), concluding with an assessment of his place in the history of the halakhah. (B.S.J.)

Tsvi Groner, The Legal Methodology of Hai Gaon, Chico Ca.: Scholars Press, 1985, ISBN 0-89130-748-6, Pp.xvii, 209, Price $24.95 (cloth), $19.95 (pbk.) (Brown Judaic Studies 66). - Developed from a Hebrew University doctoral thesis, this is a study of the responsa of Hai Gaon, 11th century Gaon of Pumbeditha. As the author points out, legal methodology, especially for the process of adjudication, was not well-defined in this early period, and much depended upon the personal bent of the respondent. Nevertheless, Hai Gaon is much concerned with principles of adjudication derived from the Talmud - both formal (e.g. 'follow the majority') and substantive principles. The book is well documented, and includes a useful descriptive bibliography of gaonic responsa and their manuscript sources. (B.S.J.)

M. Halbertal, "Maimonides' Sefer Hamizvot and the Structure of the Halakhah" (Heb.), Tarbiz 59 (1990), 457-480. - The main theses advanced in this article relate to the centrality of the mitsvah in Maimonidean jurisprudence and the nature of Rabbinic hermeneutics. According to the author, Maimonides wrote his Sefer Hamitsvot in order to provide the basic building blocks of the halakhic system he was eventually to codify in the Mishneh Torah. The mitsvot stem directly from Moses on Sinai and provide the conceptual core for each and every halakhah dealt within Maimonides' great code. Maimonides also defines mitsvot of a Scriptural status in terms of their traditional pedigree and their non-controversial nature. As a result of this definition, all laws derived from the application of legal hermeneutical principles, such as a fortiori and analogy, are relegated to Rabbinic status, not that of Scripture. This definition is a direct result of Maimonides' theory of mitsvot, according to which direct linkage with Sinaitic Revelation is incompatible - at least at the level of Scripture - with controversial laws. This definition brought Maimonides into conflict with Nahmanides, who strongly criticized the Maimonidean position on this issue. Nahmanides' critique is based upon both the corpus of Talmudic law and considerations of an ideological nature. The author uses modern theories of hermeneutics to illustrate the competing positions of Maimonides and Nahmanides, and makes a distinction between legal deduction and literary interpretation in order to explain the respective positions of these two authorities. (D.B.S.)

David Weiss Halivni, Peshat and Derash: Plain and Applied Meaning in Rabbinic Exegesis, New York and Oxford: Oxford University Press, 1991, pp.xii, 249, ISBN 0-19-506065-2, Price: £28.00 - The celebrated author of Mekorot umesorot here takes an historical view of the elements of Jewish exegesis, with particular reference to the tension between "plain sense" (peshat) and "creative interpretation" (derash). He asks whether rabbinic exegesis, "when it deviates from peshat, (is) simply capricious and contrived, or is it in fact more responsible and countable than first appears, once its exegetical commitments have been identified and labelled?" To this question, he attempts two types of answer: "scholarly" and "theological". He claims, in the first, that the Rabbis didn't share our allegiance to peshat (conceived as "plain meaning"). In this part, he argues for a concept of "timebound exegesis": that rabbinic exegesis is historically conditioned, and thus must be historically contextualised. He suggests that rabbinic exegesis developed through time an increasing preference for peshat, and indeed that "peshat" did not mean "plain meaning" in talmudic literature, but rather referred to the "context" of a phrase or verse. It was this context, rather than the plain meaning of a phrase or verse, which was hallowed. The modern notion of peshat as "plain meaning" is attributable to the medieval exegetes. In the second part, he grapples with the theological implications of "timebound exegesis", and resolves them largely by attributing mutability only to exegesis, and not to legal norms, thus asserting the possibility of cleavage between the realms of intellect and praxis. Finally, however, he offers a theological resolution of the occasional collision of peshat and derash, through a reading of the periods of the First Temple and of Ezra which lead to a conception of rabbinic midrashic tradition as restoring and preserving rather than transgressing the integrity of the scriptural text. For the scriptural text itself was, he argues, neglected during the First Temple period. This last part of the book, as the author indicates in his preface, was prompted by his need to resolve perceived contradictions in his own position, as viewed within the American Conservative Movement. Notwithstanding the "timebound" nature of its genesis, there is much tantalising argument within this important book. (B.S.J.)

Efraim Itzchaky, The Halacha in Targum Jerushalmi I (Pseudo-Jonathan Ben-Uziel) and its exegetic methods (Heb.), Ramat-Gan, l982, Pp. 301 (Bar-Ilan University Dissertation); see KS 58/4 no. 5294.

Louis Jacobs, The Talmudic Argument, Cambridge: Cambridge University Press, 1984, ISBN 0 521 26370 0, Pp. xvi, 220, Price: £25.00 - After introductory chapters on the nature of talmudic argument and the literary form of the Babylonian Talmud, the author analyses 19 sugyot expounding the flow of the argument, and showing its relation to the literary structure of the sugya as a whole. He concludes that the article is such that the Talmud must be regarded as essentially the creation of its final editors, the Saboraim. Many of the sugyot analysed deal with problems of civil law, such as lost property, conveyance of a thing not yet in existence, the mental state of contracting parties, the basis of kinyan hatzer, and problems of wrongs punishable only in the divine forum (B.K. 55b-56a, dine shamayim). This is a most rewarding book for anyone prepared to grapple with the details of the interaction of legal and literary concerns, which together represent the character of the Talmud. (B.S.J.)

Louis Jacobs, Teyku, The Unsolved Problem in the Babylonian Talmud, London and New York: Cornwall Books, 1981, ISBN, 0-8453-4501-X, Pp. 312, Price: $20.00. - This is a literary investigation of the 319 passages in the Babylonian Talmud where a debate on a disputed point of law is ended with the term teyku (sometimes: tibbai) - a phenomenon missing from the Palestinian Talmud. Rabbi Dr. Jacobs argues that teyku ("Let it (the problem) stand" - there is no solution) is in logic the proper conclusion for every baya, the latter being constructed as a definitional problem so evenly balanced that there is no correct answer. Where the Talmud does provide such an answer, it is on the basis of authority only, not logic. While the practice of setting such problems may have been common amongst the talmudic rabbis (though particularly associated with some of them - the author provides statistics), the precise literary form of the baya, together with the attribution of the conclusion teyku, is argued to form part of the literary framework constructed by the editors of the talmud. The problem of teyku thus forms part of the more general problem of the redaction of the Babylonian Talmud. Rabbi Dr. Jacobs has compressed an enormous work of scholarship into concise but readable form, and has here made a major contribution to talmudic studies. For good measure, he adds Appendices on the interpretation of teyku by post-talmudic halakhists, and in the mystical literature. (B.S.J.)

A. Nahalon, "On Rabbenu Hananel: The Geonim in Rabbenu Hananel's Opus and Rabbenu Hananel in Alfasi's Opus" (Heb.), Shenaton Hamishpat Ha'ivri 11-12 (1984-1986), 407-433. - Both Rabbenu Hananel and Alfasi adopt independent attitudes towards their predecessors. The former is prepared to ignore the decisions of the Geonim, and on occasion, even those of his teachers. The latter decides independently of the Geonim and of Rabbenu Hananel, whose commentary on the Talmud preceded his own Sefer Halakhot. The author cites many examples in order to illustrate his thesis regarding the independence of any judicial discretion manifested by R. Hananel and Alfasi in their approach to halakhic-making. It is also observed that both authorities rely heavily upon the Geonim. Their independence, however, is the most striking feature of their respective approaches. (D.B.S.)

C. Perelman, "Juridical Ontology and Sources of Law", Northern Kentucky Law Review 10 (1983), 387-97. - Perelman examines how the perception of the source of a nation's law influences its claim to authority and the proper way to work legal reform. Under our original system of common law, "law" already existed and judges merely discovered it. Change through legislation was then viewed with distrust as a departure from the normal manner in which laws were to be formulated. Therefore, common law judges construed statutes in a restrictive manner. In France, law flows from the people and only the people (through the legislature) can change it; judges are to apply without compunction whatever laws are provided. But Jewish law is postulated to come from God; man has not power to work any change. Faced with inequities in applying the biblical laws, the rabbis found a solution: the interpretation of law was left by God to man. Through free "interpretation", extraction of general rules of equity from the laws, and the use of fictions, flexibility is preserved. (D.H.P.)

D.B. Si