Abstracts

SOURCES OF LAW

Chagi B. Artzi, "The Individual against the Establishment in Jewish Law" (Heb), Sinai 94 (1984), 79-81. - An examination of the function of minority opinions within a communal framework. The basic thesis is that divergent views are tolerated, indeed encouraged with a view to academic pluralism, only however to the extent that normative homogeneity of the community is maintained, and legal authority of the establishment not inveighed against. The author examines three Talmudic sections: the 'Rebellious Elder', the right of appeal on the basis of erroneous judicial decision, and the philosophical-legal function of rejected opinions appearing in Jewish Legal codes. (M.J.P.)

Hanina Ben-Menachem, "Judicial Deviation from the Law in the Jerusalem and Babylonian Talmud" (Heb), Shenaton Ha-Mishpat Ha-Ivri 8 (1981), 113-135. - The author demonstrates conflicting attitudes adopted by the Jerusalem and Babylonian Talmuds with respect to judicial decisions and practices at variance with accepted Jewish Law suggesting a basically conservative tendency in the Jerusalem Talmud as opposed to a more liberal tendency in its Babylonian Counterpart. Three categories of judicial deviation are examined: the intentional decision at variance with accepted Law, the scope of discretionary powers in exceptional social conditions and generally divergent judicial practices. M posits that internal disunity in a Palestine confronted with a threat to traditional Pharisaic hegemony resulted in a more conservative constricting interpretation of the role of the Judge. The Babylonian communities, internally unified, were able to give a wider interpretation of the judge's role allowing greater deviance in the above categories. (M.J.P.)

E. Berkowitz, "Rabbinical Authority" (Heb.), Sinai 87 (5740), 1-25. - In the course of this article, Berkowitz analyses the ways in which the Rabbis were able to override previous legislation. His main thesis is that the power of the Rabbis to enact legislation was limited by public acceptance. According to Berkowitz, a distinction must be drawn between gezerot and takanot: The former are measures taken in order to deal with a specific problem known to the public at large, whereas the latter are based upon reasons known only to the propounders of the enactment in question. Where the reasons for a gezerah no longer apply, a later court can annul it without special Rabbinical authority. A takanah however, cannot be revoked without such authority, even if it appears to the later court that the original reasons for its enactment no longer apply. This distinction is then employed in the discussion of the rule that a later court can only revoke the legislation of an earlier one if it "is greater in wisdom and numbers". (Y.S.K.)

Y. Brody, "Were the Geonim Legislators?" (Heb.), Shenaton Hamishpat Ha'ivri 11-12 (1984-1986), 279-315. - The author argues that the legislative activity of the Geonim was of a marginal nature only, and that in fact, there are only two takanot which may be attributed with any certainty to the Geonic period. These takanot are that of the rebellious wife (moredet) and the distraining of movable property. The major role of the Geonim was the teaching and application of Talmudic law, and their innovations were generally achieved by means of the legal tools of custom, interpretation and practice (hanhagah). The Geonim added to and improved upon Talmudic enactments; on occasion, they altered them as well. (D.B.S.)

B.Z. Eliash, "The Limited Influence of Israel Rabbinical Enactments on the Israeli Rabbinical Courts", Diné Israel 10/11 (1984), 177-215.

Menachem Elon, "The Law, Books and Libraries", National Jewish Law Review II (1987), 1-29.

I. Englard, "The Problem of Equity in Maimonides" (Heb.), Shenaton Hamishpat Ha'ivri 14-15 (1988-89), 31-59. - The question dealt with in this article is the acceptance by Maimonides of Aristotle's concept of equity. According to Aristotle, equity is necessary in order to deal with those cases in which the law provides unjust results because of its general nature. In this sense, equity is an aspect of government. There is also a private aspect of equity which consists of "not standing on one's rights but being prepared to take less than the law entitles one to demand." The author defends E.J. Rosenthal's thesis regarding the rejection by Maimonides of any notion that the Torah should be altered in certain cases to meet individual needs. Rosenthal argues, on the basis of texts in both the Guide for the Perplexed and the Mishneh Torah, that the Torah is adapted to the needs of the average person, and individuals are to find their place within that scheme. One of Rosenthal's most trenchant critics is S. Rosenberg, who argues that the principles of "emergency measure" and the powers of the bet din to enact legislation constitute the equitable dimension of the halakhah. Rosenberg also argues that Maimonides himself accepts the Aristotelean doctrine of equity as a supplement to the law in his Guide for the Perplexed, although the passage in question is hardly an unambiguous one. Support for Maimonides' acceptance of Aristotle's concept of equity is, in fact, much more conclusive in the writings of Jewish Aristoteleans such as R. Isaac Arama, and in commentaries on the Guide such as Terumat Hakesef. The dispute between Rosenthal and Rosenberg is addressed by other contemporary scholars who distinguish between different areas of the law and tend to apply Rosenthal's thesis to private law and to reserve Rosenberg's approach for public and administrative matters. The present author argues that neither Rosenberg nor the other contemporary scholars correctly understand Maimonides' position in terms of the first part of Aristotle's doctrine of equity. Maimonides rejects categorically the idea of tailoring Torah to suit individual needs. Rabbinic enactments serve the public, not the individual, and they constitute a method of furthering the generality of the Torah, not a means of defeating it. Perfection is to be achieved, therefore, by conforming to the generality of the laws, not by finding exception to it, even in the sphere of relations between people and God. The author also discusses Maimonides' famous distinction between primary and secondary causes for the commandments, and its significance in the context of Maimonidean jurisprudence. The article concludes with the second aspect of Aristotle's concept of equity, i.e. not standing on one's rights. This type of conduct is, indeed, described in the Talmud, and is dealt with at length in Rabbinic literature. Maimonides quite naturally incorporates it into both the Guide and the Mishneh Torah, although in order to do so, he did not need Aristotle! (D.B.S.)

B.S. Jackson, "Jésus et Moïse: le statut du prophète à l'égard de la loi", Revue historique de droit français et étranger 59/3 (1981), 341-360. - The use of the "prophet like Moses" model (Deut. 18:15ff.) is examined in early rabbinics, Qumran and the New Testament. The powers of such a prophet in relation to the law, in terms of both legislation and adjudication, differed according to whether an eschatological or a non-eschatological view was taken of the prophet. The eschatological view is found at Qumran, the non-eschatological in early rabbinics, and traces of both are apparent in the New Testament. Jesus appears as a non-eschatological prophet like Moses, according to the rabbinic conception, when he seeks merely to suspend the law for all his followers, rather than abrogate it in general. A shortened version of this paper appears in Italian in Atti del secondo convegno a Idice, Bologna, nei giorni 4 e 5 novembre 1981, ed. F. Parente and D. Piattelli (Rome: Carucci, 1983), 95-100. (B.S.J.)

Aaron Levine, Zikhron Meir al Aveylut, Toronto: Zikhron Meir Publications 1985, Vol. I, pp. xxxiv, 765. - This work is described on the English backpaper as : "A New Encyclopedic Compilation of the Laws, Customs, Prayers and Supplications Pertaining to Sickness, Death, and Mourning". The Volume takes any reader as far as he is likely to wish to go through to the burial. The actual laws of mourning will be treated in the second volume still to appear. The author, aware of how many of these laws are based on custom, first embarks on a very learned examination of the role of custom in the Halakhah but fails to note the distinction between legal and folk custom. (L.J.)

B. Lifshitz, "Custom Overrides Law" (Heb.), Sinai 86 (5740), 8-13. - It is generally accepted that in matters of civil law, where custom is an independent normative category, custom overrides the law. In ritual matters, however, this is not the case. Consequently, any reference to this rule in the context of ritual law is problematic. Lifshitz analyses two passages in the Jerusalem Talmud which deal with this rule, and concludes that in neither instance was the halakhah actually overridden. In both cases a new situation arose in which the halakhah was simply no longer applicable. In this light, it is necessary to re-examine the concept of custom overriding halakhah in Jewish law. (Y.S.K.)

S. Rosenberg, "For the Most Part" (Al Derekh Harov) (Heb.), Shenaton Hamishpat Ha'ivri 14-15 (1988-89), 189-216. - In this article on the question of legal formalism in Maimonides' jurisprudence, the author argues against the formalist position - the "majority path" outlined in the Guide 3:34 - and suggests that Maimonides was, in fact, a situationalist who believed that the law could be remedied in order to accommodate individual inequities. The major points relied upon by the author are the Maimonidean notion of "emergency measure" (hora'at sha'ah), the analogy between the sage and the physician (which has an interesting parallel in the writings of al-Farabi) and Maimonides' teleological approach to morality. The article also contains sections on hora'at sha'ah in Medieval Jewish sources and in the writings of R. Moses Almosnino, R. Menashe of Ilya and R. Abraham Kook. There is also an appendix consisting of Almosnino's Del Regimiento De La Vida together with a Hebrew translation. (D.B.S.)

S. Safrai, "Pluralism in the Yavneh Period" (Heb.), De'ot (1980), 166-170. - In the years between the rebellion which led to the destruction of the Temple and the Bar Kohba Revolt, the Jewish nation underwent a process of rehabilitation and succeeded in reconstructing its political structure. This article deals with the special problems encountered by the Rabbis of Yavneh and, in particular, with their decision that although both the opinions of Bet Shammai and Bet Hillel are "The words of the living God", nevertheless, the halakhah is in accordance with the lenient opinions of Bet Hillel. (Y.S.K.)

A. Steinfeld, "'Tsibur' (the public) and 'Rov tsibur' (the majority of the public) in the Legislation of the Jewish Court" (Heb.), Sinai 85 (5739), 154-171 - Steinfeld discusses the following three principles which guide the court in imposing gezerot, i.e. directives of a negative nature aimed at prohibiting a specific act. The first one is consideration of the whole public and not only the majority, the second is whether or not a particular gezerah is beyond public endurance, and the third is the question of acceptance by the majority of the public after the gezerah has been promulgated. It is pointed out that in relation to the first two principles all the public must be taken into consideration and not only the majority. There is also a fundamental distinction between a gezerah accepted by all the public and one accepted by the majority. (Y.S.K.)

 

 

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