Abstracts

THEORY OF LAW

J. Barton, "Ethics in Isaiah of Jerusalem", JTS 32 (1981), 1-18. - B. attempts to show that Isaiah (1-39) had developed an understanding of morality which has affinities with Western theories of natural law. He examines the basis of Isaiah's moral demands to illustrate what he assumed to underline the particular norms or transgressions he condemned. Isaiah sees God as creator and preserver of all things, occupying by right the supreme position over creation. The essence of morality is the maintenance of the ordered structure underlying God's guidance. This meant a proper submission to one's assigned place in the scheme of things and the avoidance of any challenge to God's supremacy or established order. Isaiah is an early example of a way of approaching ethics which begins with a hierarchically ordered universe whose moral pattern ought to be apparent to all men, and derived all moral offences from the disregard of natural law. (K.W.W.)

H. Ben-Menachem, "Individuation of Laws and Maimonides' Book of the Commandments" (Heb.), Shenaton Hamishpat Ha'ivri 14-15 (1988-89), 95-106. - Principles of individuation are required on both the meta-legal and the legal levels, and the present article argues that such principles may be detected, both in the Talmud and in Maimonides' Book of the Commandments. A prime instance of talmudic meta-legal individuation is R. Simlai's statement regarding the 613 commandments given to Moses on Mt. Sinai. The Talmud contains the notion of authorities throughout the ages distilling the laws into ever smaller numbers of principles or precepts. According to the author, this process is one of meta-legal individuation of laws. The integrity of legal norms with respect to punishment is widely discussed in the Talmud and provides the basis for the principle of legal individuation. The article concludes with a section devoted to the unique contribution of Maimonides to the individuation of laws in Jewish jurisprudence. (D.B.S.)

E. Berkovits, Not in Heaven: The nature and Function of Halakha, New York: Ktav Publishing House, Inc., 1083, Pp. vii, 131, ISBN 0-88125-003-1, Price: $12.50. - The author argues that halakhah is the application of Torah to life, and that historical circumstances have led to an exile of halakhah from real-life situations, combined with an exile into literature and codification. "The old principle of the acceptance of personal responsibility for halakhic decisions, which demanded that the Dayan ruled according to what his eyes see, has received a new meaning that reads: according to what he sees in some authoritative text" (p.91). It is this thesis which makes Berkovits, from within Orthodoxy, a more radical critic of contemporary halakhah than many Conservative writers, who often use the same sources to show the historical development of the halakhah, and the human contributions to it. The latter use this as an argument to revise certain aspects of the content of Jewish law; Berkovits, by contrast, implies a quite different view of the very nature of Jewish law, and its formal development. These are readable and stimulating essays; specialists will wish to consult the author's more elaborate Hebrew work, Halakah Kohah Vetafkidah, published by Mosad Harav Kook. (B.S.J.)

J. David Bleich, "Judaism and Natural Law", Proceedings of the Eighth World Congress of Jewish Studies, Division C (Jerusalem: World Union of Jewish Studies, 1982), 7-11.

G.J. Blidstein, Political Concepts in Maimonidean Halakhah (Heb.), Ramat Gan: Bar-Ilan University Press, 1983, ISBN 965-226-040-1, Pp. 283, Price: $23.00. - This is an important book, in which the author considers various aspects of Maimonides' treatment of kingship, including the appointment of the king, the basis of his legitimacy, succession, his role in the legal system, his legislative power, and his relation to the principle of dina demalkhuta dina. As such, it is of considerable interest not only to the Maimonidean scholar. but also to the student of the history of Jewish public law. An English translation would undoubtedly be well received. (B.S.J.)

Antonio Bonora, "Amos difensore del diritto e della giustizia", Testimonium Christi: Scritti in onore de Jacques Dupont (1985), Brescia: Paideia, 69-90; see OTA 9/2 (1986), no.569.

Dan Cohn-Sherbok, "Law and Freedom in Reform Judaism", JRJ 30/1 (l983), 88-97; and Mark N. Staitman and Walter Jacob, "Response", ibid., 98-104. - Cohn-Sherbok strongly criticizes Solomon Freehof, the author of numerous responsa in the Reform Movement, and claims he has an ambiguous and inconsistent attitude towards Jewish law. Staitman and Jacob undertake a point by point refutation of this thesis. (S.M.P.)

Michel Desjardins, "Law in 2 Baruch and 4 Ezra", Sciences Religieuses 14 (1985), 25-37; see OTA 9/2 (1986), no.618.

B. Dupuy, "Unité et tension de la Halakha et de l'Aggada", Mélanges à la mémoire de Marcel-Henri Prévost (Paris: Presses Universitaires de France, 1982), 123-132. - The author considers the integral relationship between halakhah and aggadah in the light of both ancient sources and modern writings. (B.S.J.)

I. Englard, "The Example of Medicine in Law and Equity: On a Methodological Analogy in Classical and Jewish Thought", Oxford Journal of Legal Studies 5 (1985), 238-47. - In both law and medicine, general rules or procedures designed for majority situations or general occurrences may produce undesirable results in individual cases. Medicine, however, more readily adjusts to individual needs inasmuch as concern for the particular patient does not yield to a "purpose beyond the patient", whereas legal results must be predictable and shielded against unbridled magisterial discretion even at the cost of some apparent injustice. Englard examines the importance of the medical analogy in Greek philosophy, and discusses how classical and Jewish authors such as Plato, Aristotle, and Maimonides would deal with this problem, attempting to achieve equitable results without yielding to arbitrariness or (in Jewish law) tampering with the law of God. (D.H.P.)

Ze'ev W. Falk, Law and Religion, The Jewish Experience, Jerusalem: Mesharim Publishers, 1981, Pp. 238, Price: $10.00. - This is the text of a course of lectures delivered by Professor Falk at New York University in 1979/80. He writes in the preface: "Instead of engaging themselves in the intricacies of legal technique or in philological-historical niceties, Jewish scholars are called to study the meaning and justice of their culture against a broad comparative background." Succinct chapters are then devoted to Law and Religion, Values, Teleology, Democracy, Liberty, Human Rights, Equality, Disobedience, Generalization and Individualization, Validity and Efficacy, Authority, Legalism, Language, Logic, Human Nature, Faith and Proof, Acts and Duties; all of them are further sub-divided. The effect is to organise a wide variety of Jewish sources in relation to some of the major issues in contemporary legal philosophy and ethics. The value of such an approach for a student audience should not be underestimated. For the scholar, Professor Falk raises many interesting questions; he would be the last to believe that he has, within the present compass, gone very far in answering them. More substantial work along these lines would undoubtedly be rewarding. (B.S.J.)

Ze'ev W. Falk, Legal Values and Judaism, Towards a Philosophy of Halakhah (Heb.), Jerusalem: The Magnes Press, 1980, ISBN 965-223-342-0, Pp. 193, Price: $8.00. - Professor Falk uses a wide range of comparative and philosophical sources in urging that we seek the values embedded in the halakhah, as part of an investigation into the philosophy of Jewish law. In so doing, he reflects an important trend which is gaining strength in contemporary legal studies, as reflected, for example, in Stein and Shand's Legal Values in Western Society (to which Falk refers). In Israel, this is a particularly apposite time for such a quest, given the incorporation into Israeli law, for some purposes at least, of what may be termed the values of the Jewish tradition by the Foundations of Law Act 1980. Professor Falk has sympathy for a version of natural law theory, and is anxious to use underlying values as a medium of critique of the law. He has interesting remarks on the law and spontaneity; procedure as reflecting the values of peace, law and justice; law and state; interpretation; and the role of law. Parts of the book overlap with the author's Law and Religion, The Jewish Experience, Jerusalem: Mesharim Publishers, 1981, listed above. (B.S.J.)

H.B. Fassel, Die mosaisch-rabbinische Tugend- und Rechtslehre, Aalen: Scientia Verlag, l981, Pp. 254, Price: DM 69.00. - Reprint of the 1862 edition; see BL 1983, p.107f.

Jacques Goldstain, Les Valeurs de la Loi, Paris: Editions Beauchesne, 1980, Pp. 283, Price: F.165 (ThÈologie Historique, 56). - The author, a Catholic monk with special responsibilities for relations with Judaism, discusses Biblical law not as a set of binding rules but as a pedagogical instrument, a statement of the fundamental values which God sought to inculcate in his people. Drawing on a wide range of Jewish and Christian sources, he discusses the philosophy, the psychology and theology of the law, the Sinai narrative, the content of the law (including its terminology and classification), and cultic law, the festivals, sacrifice, purity, family and social life, and the administration of justice. A final section deals briefly with the attitude to the Law as described in Biblical history, from the patriarchal period down to Qumran. (B.S.J.)

L.E. Goodman, Monotheism, a Philosophic Inquiry into the Foundations of Theology and Ethics, New Jersey: Allanheld, Osmun for the Oxford Centre for Postgraduate Hebrew Studies, 1981, ISBN 0-86598-068-3, Pp. 119. - In 1978, Professor Goodman delivered the David Baumgardt Memorial Lectures, sponsored by the American Philosophical Association, at the Oxford Centre for Postgraduate Hebrew Studies. The text forms one of the first volumes in the Oxford Centre's monograph series. The three lectures are entitled "The Logic of Monotheism", "The Existence of God", and "Monotheism and Ethics". The last will be of particular interest to those concerned with the theoretical basis of Jewish law and ethics. (B.S.J.)

Sidney Greidanus, "The universal dimensions of law in the Hebrew Scriptures", Sciences Religieuses 14 (1985), 39-51; see OTA 9/2 (1986), no.592.

J. Gwyn Griffiths, The Divine Verdict, A Study of Divine Judgement in the Ancient Religions, Leiden: E.J. Brill, 1991, Pp. xviii, 410, ISBN 90-04-09231-5. - This is a broad-ranging comparative investigation of the notion of divine judgement, dealing both (separately) with "Judgement in History and in This Life" and with "Judgement After Death". Special attention is devoted to Israel, Greece and Egypt, but there are treatments also of Roman literature, Christian doctrine, and some Indian, Chinese and mystery religions. Even within 400 pages, a comprehensive treatment of the traditions within each of these religions is hardly to be expected. Nevertheless, the author adopts a scholarly approach to the extent of the space he allows himself. A concluding chapter draws the comparative themes together, noting, for example, that "for the most part, the doctrine of punishment is squarely based on the principle of retribution. If it is spelled out most clearly in the Hebrew Lex Talionis, it is stated or implied in all the ancient religions." (B.S.J.)

E.E. Halevy, Arkhe ha'agadah vehahalakhah le'or mekorot yevaniyim velatiniyim, Tel-Aviv: Dvir, l979-82, 4 vols; see KS 57 no.1737, 58/1 no. 272.

A. HaCohen, "The Sages Commanded" (Heb.), Shenaton Hamishpat Ha'ivri 14-15 (1988-89), 113-120. - The term discussed in the present article is, "the Sages commanded" (zivu hakhamim), which appears in various places in the Mishneh Torah. The author demonstrates that this expression indicates a lower order of normativity, including precepts of a purely moral nature. Amongst the illustrations cited by the author is Maimonides' celebrated ruling regarding the prohibition on a father teaching his daughter Torah, which is also prefaced with the term "the Sages commanded". In the light of the analysis of this term in the present article, it is arguable that Maimonides did not mean to categorise this prohibition as a formal one of either a Scriptural of Rabbinic nature, but merely as a purely moral norm. (D.B.S.)

Basil F. Herring, Jewish Ethics and Halakhah for our Time: Sources and Commentary, New York: Ktav Publishing House Inc. and Yeshiva University Press, 1984, ISBN 0-88125-044-9 (145-7 pbk.), Pp.xiii, 243, Price: $15.00, $9.25 (pbk.) (The Library of Jewish Law and Ethics, vol. XI). - After an introductory chapter surveying traditional views on the relationship between law and morality, the author analyses 9 ethical problems: abortion, disclosure of a terminal illness to a patient, euthanasia, the lawyer's duty in respect of a client he knows to be guilty, civil disobedience, homosexuality, value conflicts between parents and children, smoking and drugs. A selection of the relevant traditional sources is translated at the beginning of each chapter (and reprinted in a booklet enveloped within the back cover). The text is addressed to the intelligent layman, with notes referring to both traditional and modern scholarly discussions. The format of the book will make it particularly useful for discussion groups. (B.S.J.)

R.A. Horsley, "The Law of Nature in Philo and Cicero", HTR 71 (1978), 35-59. - Koester is wrong to argue that Philo created the concept of natural law. Philo and Cicero both discuss the law of nature in similar terms showing that they are drawing on a common tradition. This derives "ultimately from a Stoic tradition on universal law and right reason. But this Stoic tradition had been reinterpreted by a revived and eclectic Platonism upon which both Cicero and Plato drew. The key figure in the Platonic revival upon whom Cicero and (probably) Philo depend was Antiochus of Ascalon, the head of the Academy in the first century, who devoted much of his energy to a reinterpretation of Stoic ethics. Through further analysis of their statements about natural law ... we can discern more clearly how these thinkers understood the law of nature and, more particularly, how they conceived of its transcendent basis in the mind of God, who is the lawgiver" (author's own summary, p.36). (G.J.W.)

Moshe Idel, Language, Torah, and Hermeneutics in Abraham Abulafia, Albany: State University of New York Press, 1989, Pp.xvii, 212, ISBN 0-88706-831-6 cloth, Price $44.50, ISBN 0-88706-832-4 paper, Price $14.95. - This is a translation of part of a Hebrew University doctoral thesis, devoted to the kabbalistic thought of R. Abraham Abulafia, who used the technique of combining letters as an exegetical method enabling the mystic to penetrate the most recondite strata of Scripture. The author seeks to explain the underlying conception of the nature of language, as one "basically inclined to an allegorical perception", in the tradition of medieval Aristotelianism. Texts and experiences are decoded as revealing various aspects of the relationship between the inner powers of intellect and imagination. (B.S.J.)

B. S. Jackson, "Jewish Law or Jewish Laws", The Jewish Law Annual VIII (1989), 15-34. - Modern scholarship on Jewish Law assumes, in line with the secular philosophy of law, the unity of the legal system. But this unity has come increasingly into question in the secular philosophy of law, prompted by internal discussions of the nature of judicial discretion, and external perspectives from semiotics and the philosophy of language. We can pose the same questions to Jewish Law, and use the sources of Jewish Law to try to construct an answer. We should not presuppose that the answer for Jewish Law will be the same as that for secular law. If it is different, that is a good argument for not regarding Jewish Law as belonging to the same category as modern systems of secular, positive law. [Author]

B.S. Jackson, "On the Tyranny of the Law", Israel Law Review 18/3-4 (1983), 327-347. - The author sketches a continuum representing the tension between formalist and existentialist attitudes to both law and theology. He notes the paradox that religious systems of law are often characterised as rigid and immutable, although in practice they admit of more flexible interpretation. Both rabbinic and New Testament texts contribute to a possible resolution of the conflict of values indicated by modern jurisprudence, in that flexibility applies to the act of adjudication, quite beyond that which applies to the interpretation of the rules in abstracto. (B.S.J.)

B.S. Jackson, "Structuralism and the notion of Religious Law", Investigaciones Semióticas 2/3 (1982-83), 1-43. - In the context of a comparison between jurisprudential accounts of religious law, and anthropological/semiotic approaches, the author considers the classification of biblical law as "moral", "ceremonial" and "judicial" (Aquinas) and Neusner's analysis of the various Orders of the Mishnah, which appear to reveal differences in the semiotic processes involved in them. (B.S.J.)

A. Kirschenbaum, "Categories of Morality in Jewish Law: Some Clarifications", Mélanges à la mémoire de Marcel-Henri Prévost (Paris: Presses Universitaires de France, 1982), 158-170. - The author argues that there are clear differences between the moral categories midat hasidut, ruah hakhamim and lifnim mishurat hadin. The first of these standards is expected only of the saintly Èlite, while the second applies to men in general. Midat hasidut also comes to be conflated with lifnim mishurat hadin. Midat hasidut eventually lost its uniqueness: it ceases to be individual and spontaneous, and finds its place in the codified literature. (B.S.J.)

M.R. Konvitz, "The Confluence of Torah and Constitution", in Jews, Judaism and the American Constitution (Cincinnati: American Jewish Archives, 1982), 5-19. - K. suggests an intriguing parallel between the structure of the American and the Jewish legal systems: constitutional interpretation by the Supreme Court stands as to the United States Constitution as does the Oral Law to the Written Law in halakhah. The American "oral constitution" was "in a manner of speaking, implicitly or potentially in the minds of the framers of the written constitution". In both systems, the interpretive process which allows the law to develop is protected from arbitrariness by its commitment to an ordered form of rationality, underpinned by the Biblical concept of covenant. In the United States, "the movement was from biblical covenant to congregationalism to constitution." (B.S.J.)

J. Kraemer, "Alfarabi's Opinions of the Virtuous City and Maimonides' Foundations of the Law", Studia Orientalia, Memoriae D.H. Baneth, Jerusalem: Magnes, 1979, 107-153. - Maimonides' Foundations of the Law, Part One of his Mishneh Torah, wants to provide Jewish jurists and laymen with a scheme similar to that of Alfarabi. Thus, Foundations, like the Guide of the Perplexed, is a kalam work in terms of (some) techniques and methods despite M.'s criticisms of the Mu'tazillites. Alfarabi's work, in turn, shows some similarity with (knowledge of?) John of Damascus' De Fida Orthodoxa. (S.N.R.)

J.D. Levenson, "The Theologies of Commandment in Biblical Israel", HTR 73 (1980), 17-33. - Attempting to rescue the theology of law from Wellhausen's charge of legalism, modern writers especially Eichrodt and Mendenhall have insisted that law is an aspect of covenant. Law is viewed as part of Heilsgeschichte rather than as an end in itself. By examining the motive clauses used to justify obedience to different commands and the explanations of the law found in the psalms and the prophets, L shows that although historical (covenantal) reasons are often adduced, other justifications of the law are also found. Law is seen as an aspect of wisdom, whose value may be perceived by human intelligence. It is also seen as inherent in nature (e.g. Ps.19) 'Biblical Israel believed the will of God to be known not only through history, but also through.. nature, not only through the word proclaimed, but also through thought and cognition' (32). These theologies of law are not contradictory but complementary. (G.J.W.)

John D. Levinson, "Covenant and Commandment", Tradition 21/1 (1983), 42-51. - The author develops the thesis that Jews live in awareness principally of two covenants, the Sinaitic and the Davidic. The former refers to personal obligations of the development of society and the world that must be built. It is predicated on choice between obedience and faithlessness, life or death. The Davidic covenant speaks of hope undeserved, an announced promise, and an all-embracing security. (S.M.P.)

A. Lichtenstein, The Seven Laws of Noah, New York: Rabbi Jacob Joseph School Press, l981, Pp. iii, 115; see KS 58/1 no. 282.

Aaron Lichtenstein, "Noahide Laws from Genesis to Genizah", Dor leDor 14 (1985/86), 88-93; see OTA 10/1 (1987), no.306.

J. Liebes, Heto shel Elisha (Jerusalem: Academon, The Hebrew University Students Printing and Publishing House, 1990). - The famous Talmudic passage about the "four who entered Paradise" is here acutely analysed. (L.J.)

Mogens Müller, "Ånden og Loven", Dansk Teologisk Tidsskrift 4 (1989), 251-267. - Under the heading "Spirit and Law. Covenant-Theology in Romans", the author tries to supply evidence for the hypothesis that the conception of the new covenant as found especially in Jer. 31:31-34; 32:38-40 and Ezek. 11:19-20; 36:26-27 constitutes a substructure in Pauline theology. The main point in the conception of the new covenant is the connection between Law and Spirit which makes it possible for man to keep the commandments. The acceptance of this conception of a Covenant where Law and Spirit are combined, may provide the means to understand the obviously inconsistent notions of the Law in Romans. (K.N.)

J. Neusner, Judaism, The Evidence of the Mishnah, Chicago and London: The University of Chicago Press, 1981, ISBN 0-226-57617-5, Pp. xix, 419, Price: $25.00. - This is the brilliant culmination of Professor Neusner's decade of single-minded devotion to the analysis of the Mishnah. It is a work of interpretation on the grand scale, based upon the results of detailed literary analysis. The development of the law is laid out in three periods: before the first Jewish revolt against Rome, between the destruction of the temple and the Bar Cochba rebellion, and subsequently up to the closure of the Mishnah at the end of the second century. We see the relative state of development of each tractate, and more generally of each seder, through these three periods. Of particular interest to legal historians are the results concerning Nashim and Neziqin; the latter, in particular, is shown to be non-existent in the first period, to remain extremely sketchy in the second, and to acquire any semblance of order and development only in the third. Neusner does not thereby seek to imply that there existed no Jewish civil law in these periods; rather that these areas were originally not of interest to the groups which contributed to the development of the Mishnah. He identifies three groups whose interests are represented in it: the Priests, the scribes, and the middle-class landowners (ba'ale habayit); it is, however, through the style and methodology of the Scribes that the document achieves a unity, based upon the consistent concern to show the interaction of principles and resolve their conflicts, just as the Priestly Code (regarded as a major influence upon the underlying thought-processes of the mishnaic Rabbis) had sought to resolve classificatory problems involving mixtures and opposed categories. But there are also substantive aspects to this unification: "The principal message of the Mishnah is that the will of man affects the material reality of the world and governs the working of those forces, visible or not, which express and effect the sanctification of creation and of Israel alike" (p.271). This is the world-view - a quite remarkable affirmation of the human spirit given the historical circumstances - which emerges from Neusner's holistic approach. In adopting it, he is closer to some forms of structuralism than he himself is prepared to admit. Particularly, he shares the fundamental insight that everything found in a text is there as the result of a human choice, and that what is excluded (or omitted), and which we see - sometimes - in the choices made in other documents of the period (which Neusner briefly surveys, in order to set the scene), is significant not only as contributing to the message itself, but also as identifying the act of enunciation, the parties to it, and their interests. In all this, Professor Neusner has set his own objectives, and rigorously pursued them, putting aside the contributions which more traditional approaches may make to such questions. It would be sad if those more traditional disciplines were to return the compliment. The legal historian, for example, may well wish to compare Neusner's account of the arrangement of Neziqin, and its relation to Scripture, with Daube's elaborate study, "The Civil Law in the Mishnah: The Arrangement of the Three Gates", Tulane Law Review 18 (1943-44), pp. 351-407; philosophers of law may wish to bring the insights of the philosophy of action to bear upon the data which generate Neusner's conclusion regarding the centrality of human will; and theologians may wish to review the meaning of the doctrine of the Oral Torah in the light of the pattern of human choices revealed by the literary analysis of the document. (B.S.J.)

David Novak, Halakhah in a Theological Dimension, Chico, Ca.: Scholars Press, 1985, ISBN 0-89130-757-5, Pp. xi, 174, Price $19.75, $16.25 pbk. (Brown Judaic Studies 68). - All but the last two of the essays here collected have been published before, although in some cases they are now revised. The contents are: "Can Halakhah Be Both Authoritative and Changing?", "The Conflict between Halakhah and Ethics: The Case of Mamzerut", "Annulment in Lieu of Divorce in Jewish Law", "Divorce and Conversion: Is a Traditional-Liberal Modus Vivendi Possible?", "Women in the Rabbinate?", "Alcohol and drug Abuse in the Perspective of Jewish Tradition", "Judaism and Contemporary Bioethics", "The Threat of Nuclear War: Jewish Perspectives", and "The Logic of the Covenant: An Essay in Systematic Jewish Theology". The essays reflect the author's "assumption of the interpenetration of Halakhah qua law and Aggadah qua theology throughout the history of Judaism"; they display his customary combination of traditional learning and sensitivity to theoretical issues. (B.S.J.)

David Novak, The Image of the Non-Jew in Judaism, An Historical and Constructive Study of the Noahide Laws, New York and Toronto: The Edwin Mellen Press, 1983, ISBN 0-88946-975-X, Pp. xxi, 481, Price: $68.95 (Toronto Studies in Theology, vol.14). - The concept of Noahide Laws has played a number of different roles in Jewish thought: it corresponds to both the "speculative" and "practical" senses of the Roman ius gentium, the former representing the view of that law which is common to all mankind, the latter being the law practiced in relations between Roman citizens and non-citizens; it also indicates those norms binding on the Jewish people before the Sinaitic revelation. Rabbi Dr. Novak takes full account of these functions, but adds an important fourth: the Noahide Laws stand to revealed law as the Kantian a priori categories stand as presuppositions (but not sufficient grounds) of our experience. In this sense, Noahide Law represents the natural law contribution to Jewish positive law. In expounding these themes, the author deals in detail first with the institution of Noahide laws, with chapters on their origins (which he assigns to the circumstances of the Hadrianic persecution), and then severally on each of the seven laws, and their interpretations. In the second part, he deals systematically with the theory of Noahide Law, as it appears in the Jewish sources, with chapters on Aggadic Speculation, Maimonides, Albo, Late Medieval Developments, Moses Mendelssohn and his School, and Hermann Cohen and the Jewish Neo-Kantians. This is a book of major importance, both for what it does and for the future possibilities which it indicates. It deserved far better than to be published by photo-reproduction of a typescript (hardly a cost-reducing measure, judging by the price charged for the book). It is to be hoped, nevertheless, that this work will achieve a wide distribution. (B.S.J.)

Benedikt Otzen, Den antike jodedom, Politisk udvikling og religiose stromninger fra Aleksander den Store til Kejser Hadrian. Copenhagen: G.E.C. Gad, 1984, ISBN 87-12-67872-4, Pp. 202, Price: Dkr. 140,00. - The book is a general treatment of Judaism in the period between 300 B.C. and 130 A.D. The introductory chapter gives a survey of the historical development, and the final section concentrates upon Apocalyptic as a new movement in Judaism. In between the fundamental religious ideas of Judaism in antiquity are treated. A chapter is dedicated to the idea of the Law which is defined as "the Revelation" in a broad sense, and which is seen in the light of ideas of creation, election, and world-order. In another chapter the ethical ideas of Judaism are described, with references, mostly, to Sirach, The Testaments of the Twelve Patriarchs, and Pirqe Abot. In still another chapter the pharisaic movement is analysed, and the development of Law interpretation in early rabbinism is touched upon. (K.N.)

Ch. Perelman, "Legal Ontology and Legal Reasoning", Israel Law Review 16/3 (1981), 356-367. - In this article, the author relates the "legal ontology" (meaning "the religious or philosophical view which is the basis of the system of law") of Jewish law, Continental European law and Common law with their different allocation of powers as between judge and legislator. Reviewing the sources of Jewish law, and the manner of its development, he regards it as "the extreme example of a system of law without a legislator other than Moses", and contrasts continental law since the French Revolution, as representing the other extreme, where the whole of the law is regarded as the expression of the will of the legislator. English common law, by contrast to both, is not the expression of will (either of god or the nation), but rather "assumes the existence of an objective, rational and just law which is evident in judicial decisions." In all three systems, the scholars and judges succeeded in liberating themselves from the baleful results of legal ontology, when "the felt necessities" of the legal situation demanded. (B.S.J.)

Ch. Perelman, "Ontologie juridique et sources du droit", Archives de Philosophie du Droit 27 (1982), 23-31. - In comparing the legal ontology reflected in the views on "sources of law" to be found in Jewish law, Anglo-American law and continental European law, the late distinguished Belgian legal philosopher takes note of the way in which the flexibility of the oral law was reconciled with the view that God's revelation to Moses was the sole source of law. (B.S.J.)

Daniela Piattelli, Concezioni giuridiche e Metodi costruttivi dei giuristi orientali, Milan: Giuffrè, 1981, Pp. 194, Price: IL. 10,000 (Università di Roma, Pubblicazioni dell'Istituto di Diritto Romano e dei Diritti dell'Oriente Mediterraneo, LVIII). - The common theme of this wide-ranging series of studies is the tension revealed in Jewish sources between human political authority (indigenous or foreign) and the ideology of divine revelation. The traditional conception of the legal autonomy granted to the local population by Oriental monarchs is studied in the light of the evidence of the books of Ezra and Nehemia, Esther, Judith, and Daniel; knowledge of indigenous law is studied by reference to the Letter of Aristeas, the Books of Maccabees, the evidence of Josephus regarding Alexander the Great, the edict of Antiochus III, and Roman senatus consulta regarding the status of the Jewish community (ethnos tÛn IoudaiÚn). The rule of Dina Demalkhuta is studied, together with the claims of its inapplicability to Israelite kings, on the grounds that they are not true sovereigns. This leads to consideration of the divine legitimation actually claimed by Israelite kings. The influence of theological conceptions is pursued further in relation to the development of the substantive law, and the process of Rabbinic interpretation, with particular reference to the Ketubah and the document of indebtedness (shtar hov). This is a work which deserves far wider attention amongst historians of Jewish law than it is likely to attract, if published only in Italian. (B.S.J.)

W.H.Ph. Römer, "Einige Bemerkungen zum altmesopotamischen Recht, sonderlich nach Quellen in Sumerischer Sprache", ZAW 95 (1983), 319-336. - There is no parallel term in Mesopotamian literature to our term "law". The nearest is a Sumerian term meaning "rightness, that which is "fitting". Legal practices, therefore, have to be determined from context and the author examines examples from, among other sources, private contracts, judicial reports, commercial texts and legal codices. (R.A.M.)

Joel Roth, The Halakhic Process: A Systemic Analysis (New York: Jewish Theological Seminary, 1986). - Professor Joel Roth offers this volume as a phenomenological study of Jewish law; he intends to study how the halakhah actually works. He begins with a description of what he takes to be the operational principles of halakhah, after which he offers a jurisprudential description of halakhah borrowed largely from the text and footnotes of Professor Elon's Hamishpat ha'ivri. In his subsequent discussions, Roth does not apply these general jurisprudential principles consistently.

The major thrust of Roth's "phenomenology" of halakhah lies in his comments on how the law may be amended, abolished, suspended, or abrogated. While this is a most intriguing subject, it does not follow the author's stated mission, which is a focus upon "the halakhic process, and not upon the actual norms" of the halakhic system. To his credit, Roth has mastered the relevant textual materials, but he studies Jewish law as philology and apologetics, but not as jurisprudence. While he cites the materials that appear in Elon's volume, it is not clear that he has internalized their significance. Although Roth invokes the rhetoric of dogmatic positivism - an approach to which this reviewer is partial - one does not find a consistent approach to positivist analysis or even to the theoretical literature of legal positivism. While Kelsen's name appears, there is little attempt to address halakhah as a coercive normative order or to apply Kelsen's conditions for legal validity (i.e. consistency, enforceability, and the existence of a community that accepts the legal order. H.L.A. Hart's distinction between rules of obligation and rules of recognition would be very useful to Roth's study; the failure to apply the conceptual program of the introduction diminishes the monograph's effectiveness. Roth devotes much of his effort to an examination of the means whereby halakhic norms may be systemically suspended or ignored. Inasmuch as their concern is an intellectual issue for the academic population that Roth teaches at the academic center for Conservative Judaism, his work will find an interested readership. But most scholars of Jewish law will be disappointed with an implicit apologia which fails to address either the title or the introductory mission statement.

Professor Roth would do well to reissue this volume after having given major theoreticians of legal thought a careful reading. A true systemic, phenomenological study of the halakhah in English, properly executed, would be a welcome addition to the literature. (A.J.Y.)

 

N. M. Samuelson, ed., Reason and Revelation as Authority in Judaism, Melrose Park, PA: The Academy for Jewish Philosophy, l982, Pp. iv, 113, (Studies in Jewish Philosophy, 2); see KS 58/2 no. 1929.

E. Scheid, "The Authority Principle in Biblical Morality", Journal of Religious Ethics 8 (1980), 180-203. - "This article suggests a philosophical explication of the biblical demand that man should obey an outward authoritative commandment of God. As a starting point we claim that in Jewish traditional sources there is no "ethics" as a separate philosophical branch. The Hebrew 'musar'' means authority in its action, or the act of authoritative deliverance of behavioral norms, and authority means in this context: a decided will directed so as to move the wills of others in its own direction ... We have shown that there are two complementary motivations to obey God's authority: (1) being moved by a superior, creative Will; and (2) The drive towards self-fulfillment. The first motivation is the source of the biblical morality of awe - or fear. In every situation which calls for a moral response, man should judge himself before God, as God is supposed to judge him. the principle of morality of awe is justice. The second motivation is the source of the biblical morality of love. One should relate to his fellows as extensions of his own being. The principle of morality of love is charity. But these two categories of biblical morality are complementary, love being the. hidden source of awe, and awe the hidden source of love" (from the author's abstract). (J.D.)

J.J. Shepherd, "Man's Morals and Israel's Religion", Expository Times 92 (1981), 171-174. - L. Kohlberg has identified six main stages of moral development: the lowest being an 'obedience and punishment orientation' and the highest the 'universal ethical principle orientation.' S. finds within the Bible examples of moral thinking at various different levels, and implies that only those scriptural imperatives which conform to Kohlberg's highest categories need concern the modern believer. (G.J.W.)

Shmuel Shilo, "The Contrast Between Mishpat Ivri and Halakhah", Tradition 20/2 (l982), 91-100. - The author advances the thesis that a scholar who wishes to work in the field of Mishpat Ivri must have a secular, legal education; learning in halakhah is not sufficient. He further calls attention to the secular orientation of Mishpat Ivri, which, he contends, does not negate nor contradict the religious dimension of Jewish law. The author also discusses the first three elements of the four-fold classification of method in legal studies (dogmatic/analytical; historical; comparative; ethical/philosophical) in regard to Mishpat Ivri and shows how the halakhist and the scholar of Mishpat Ivri differ in approach on the basis of those methods. (S.M.P.)

Eckhard J. Schnabel, "Law and Wisdom from Ben Sira to Paul", Tübingen: Mohr/Siebeck, (1985), Pp. xvi, 428, DM 84 (paper), ISBN 3-16-144896-0, ISSN 0340-9570 (WUNT, 2, 16).

S. Schneebalg, "The Philosophy of Jewish Law: A Reply to Professor Faur", New York University Journal of International Law and Politics 13 (1980), 381-92. - In 1979, Professor Jose Faur of the Jewish Theological Seminary published in this journal an article on Jewish jurisprudence. Schneebalg responds to clarify three major points. First, although the law is God's will and could command obedience on that basis alone, each law also has an independent purpose. Rabbis have power to act to effectuate that purpose. Second, although the law applies by covenant only to Jews, several fundamental laws (the Noachide laws) are applicable even to non-Jews, wherever they may live, and not just to non-Jews residing in Israel as Faur's article asserted. Third, he seeks to clarify a class of laws (neither strictly Mosaic nor strictly rabbinic in origin) called Dinim Mufla'im, which the author asserts are derived from the Torah through rules of interpretation. (D.H.P.)

David Shayne, "The Jurisprudential Writings of Maimonides", National Jewish Law Review IV (1988), 93-124.

Yohanan Silman, "Halakhic Determinations of a Nominalistic and Realistic Nature: Legal and Philosophical Considerations", Diné Israel 12 (1985), 249-267.

P. Sigal, "Reflections on Ethical Elements of Judaic Halakhah", Duquesne Law Review 23 (1985), 863-903. - Sigal's thesis is that Halakhah developed over time in response to ethical concerns, even in contravention of precedent in the Torah. He gives numerous illustrations including examples from the law of abortion, self-incrimination, and the punishment of the rebellious son. Sigal also argues that Jesus' teachings demonstrate this same process - reasoning from a basis in Jewish law and tradition to reach a just result. A lengthy introduction that precedes the development of the thesis examines the nature of halakhah as distinct from law, and stresses the variegated, diversified, non-monolithic, non-codified, multiple-option nature of halakhah. The introduction also identifies and examines the hermeneutic principles and the motivations and criteria by which the halakhah developed to serve the ends of social justice and human dignity in contrast to the politically oriented means by which the legislated laws of independent kingdoms and states are enacted. (D.H.P.)

Dixon Slingerland, "The Nature of Nomos (Law) Within the Testaments of the Twelve Patriarchs", JBL 105 (1986), 39-48; see OTA 9/3 (1986), no.946.

R. Smend and U. Lux, Gesetz, Stuttgart etc: Kohlhammer, 1981, Pp. 156, ISBN 3-17-002015-3, Price: DM 6.50 (Kohlhammer Taschenbücher, Biblische Konfrontationen 1015). - The authors describe different approaches to law to be found in various sections of biblical and intertestamental literature: the Decalogue, Deuteronomy, the Priestly Law, the Psalms, Wisdom, and the notion of a "new covenant" in Jeremiah 31; the approach of Jesus, Matthew, Paul, Luke. (B.S.J.)

J.B. Soloveitchik, Halakhic Man, translated by L. Kaplan, Philadelphia: The Jewish Publication Society of America, 1983, ISBN 0-8276-0222-7, Pp. xi, 164, Price: $12.95. - This is the first English translation of Soloveitchik's classic Hebrew essay of 1944, in which he proposes "Halakhic man" as a combination of two personalities - "cognitive man", who seeks to uncover the secrets of the world by the imposition of intellectual order and the removal of mystery, and "religious man", who rather emphasises the mysteries of existence, including the very idea of lawfulness. Through Torah and Talmudic tradition, man is able both to rationalise and to experience the mysteries of divine creation. The book dips into religious psychology and phenomenology, and sketches a philosophy of Halakhah. S. is most sympathetic to a form of neo-Kantianism, but with significant qualifications; his legal philosophy is necessarily part of his theology, in that halakhah is a means of bringing transcendence down to earth. In the final paragraph, Rabbi Soloveitchik states his sole intention as having been to "defend the honour of the Halakhah and halakhic men, for both it and they have oftentimes been attacked by those who have not penetrated into the essence of Halakhah and have failed to understand the halakhic personality"; he describes the essay as "But a patchwork of scattered reflections, a haphazard collection of fragmentary observations...". It is, indeed, a tantalising but yet frustrating work, one which calls for that very creative capacity which the author attributes to halakhic. The translator is to be congratulated on a superb piece of work, through which not only the author's work but also many of the sources to which he refers will become known to a wider public. (B.S.J.)

S. Spero, Morality, Halakha and the Jewish Tradition, New York: Ktav Publishing House, Inc. with Yeshiva University Press, 1983, Pp. xv, 381, ISBN 0-87068-727-1, Price: $20.00 (Library of Jewish Law and Ethics IX). - The author states his aim as "to examine the moral teachings of Judaism so as to uncover their implicit structures in order to develop what might be called an ethical theory of Jewish morality". Ethical theory is understood as "a theory about morals and about moral systems .... It attempts to analyse the basic concepts and methods of a morality, to describe the types of phenomena involved such as a special feeling of "obligation" or perhaps certain ideal character traits, and to explain the relationship of the morality under study to other aspects of life, such as God and human nature and other moralities." S. is acquainted with a wide range of modern Jewish and philosophical writings, but expresses his arguments in the text of the book quite simply. He covers a wide range of topics: the nature of morality, its place in Judaism, the grounds of morality, its relationship to Halakhah and to the will of god, the law of love, freedom and responsibility, and the logic which binds the Jewish moral system. He finds a hierarchy of values which offer guidance in cases of conflict. Apart from kiddush ha-shem, human life and dignity set aside ritual obligations, love of God stands higher than fear of god, mercy higher than justice, and peace higher than truth. The book may serve as a useful introduction for students who lack a philosophical background. (B.S.J.)

Peter Steeensgaard, "Jødisk ortodoxi og fundamentalisme", Mission. Nordisk Missionstidsskrift 100/3 (1989), 15-24. - In "Jewish orthodoxy and fundamentalism" the author discusses the terms orthodox and fundamentalism in relation to Jewish Law and the understanding of Scripture and Tradition. The author shows how modern orthodox Judaism sees Halakah as Law applied in a meaningful way in a given situation and compares this with the view of Samson Raphael Hirsch and others, showing three different strategies for Judaism: (1) reapplication of the Law, (2) division of life into secular and religious sections, (3) ignoring the conditions of modernity by isolation. (K.N.)

Peter Steensgaard, "Merkavah-Mystikken: Den ældste jødiske Mystik", in Mystik - den indre vej? (Aarhus: Aarhus Universitetsforlag, 1990), 71-92. - The article contains an investigation of Merkavah-mysticism in rabbinical literature, of its relation to liturgy as well as to apocalyptics and - finally - of esoterical teachings and magical practices. Here the esoterism of Merkavah-mystics is analysed against the background of esoteric-mystical traditions in the rabbinical literature. Problems concerning the use of magical means by the mystics to arrive at a total insight in the Torah, including the decision of questions of Halakhah by such means, are discussed. The conclusion of Peter Schäfer, that the importance of these attitudes in the Hekhalot-literature must result in dating this literature to the Gaonic period, is questioned. The attitude of Merkavah-mystics in this respect is seen as representing an extreme version of a trend found in certain parts of the Talmud itself. (P.P.S.)

Leo Strauss, Philosophy and Law, Essays Toward the Understanding of Maimonides and His Predecessors, trans. Fred Baumann, Philadelphia, New York, Jerusalem: The Jewish Publication Society, 1987, ISBN 0-8276-027-1, Pp. xvi, 138. - Strauss is best known to students of political and legal philosophy for his Natural Right and History; to students of Jewish law for his Introduction to the Pines Translation of Maimonides' Guide. Here, in this translation of his Philosophie und Gesetz, published in 1935, he wrestles with the relationship between philosophy and halakhah. The argument is best summarised by quoting from the jacket: "If the law empowers the pursuit of philosophy, and the product of philosophical speculations conflicts with that of law, can the law then be reinterpreted in the context of these philosophical findings? To resolve this question, Strauss examines Maimonides' theory of prophecy and identifies in it a parallel of Plato's definition of the philosopher as one who is above - and yet bound by - the law. For Strauss, this Platonic distinction provides a possible reconciliation of the immutability of revelation with the rigor of philosophical inquiry." It can hardly be said that these issues have been laid to rest since Strauss's time; this book should be taken very seriously in the debates of contemporary theorists. (B.S.J.)

S. Talmon, "Torah as a Concept and Vital Principle in the Hebrew Bible", Greek Orthodox Theological Review 24 (1979), 271-289. - Jews do not sharply distinguish biblical views of the Torah and later attitudes. There is essential continuity between them despite Christian attempts to denigrate post-exilic Jewish religion as legalistic or ceremonial. Torah is not simply law, formal regulations, but a comprehensive approach to life involving a world view, practical regulations and advice. In the Bible laws are set within the history of Israel. Even ritual laws which are apparently arbitrary are related to historical events and are concerned to mould a whole way of life. It is through obedience to the torah that man abides in relationship with God and society is preserved from disintegration. (G.J.W.)

A. Tambasco, "Jeremiah and the Law of the Heart", Bible Today 19 (1980), 100-104. - Jeremiah's call to reform is compared to the Second Vatican Council especially in matters pertaining to social justice. The article is intended for pastors - Jesus is the "answer" to Jer. 31:31 - and a catechesis of the prophet is promised in the future. (S.N.R.)

E. Testa, La Morale dell'Antico Testamento, Brescia: Morcelliana, l981, Pp. 378, Price: IL 18,000; see BL 1983, p.96f..

I. Twersky, "Halakhah and Science: Perspectives on the Epistemology of Maimonides" (Heb.), Shenaton Hamishpat Ha'ivri 14-15 (1988-89), 121-151. - Maimonides follows scientific principles in his Mishneh Torah when dealing with substantive issues such as the calculation of the New Moon and the value of p. He also places much values upon scientific thinking and the need for logic and precision. A good illustration of Maimonides' incorporation of scientific method into his halakhic writings is his approach to medical practice. According to Maimonides, the practice of medicine must be based upon purely scientific foundations. Maimonides is strongly opposed to any form of healing, the basis of which lies in magic or spirituality. In this respect, he deviates from the Rabbinic tradition which de-emphasises the human role in the healing process and leaves room for non-scientific forms of therapy. Maimonides' scientific bent is, however, held in check by his role as halakhist and commentator. In cases in which the Talmudic law is clear and uncompromising, then Maimonides has no compunction about ignoring science in his halakhic rulings. A prime example is his definition of terefah (an animal suffering from a fatal organic defect) in the context of the dietary laws. Maimonides remains faithful to the halakhic tradition which refuses to recognize any deviation from the list of animal terefot, even though scientific evidence indicates that it ought to be changed. Maimonides does not even attempt to rationalise this glaring departure from scientific methodology, and in this respect, there is an interesting contrast between his approach and that of Rashba. In addition to this central argument regarding science and halakhah in Maimonides' legal decisions, the article contains sections on the nature of the Mishneh Torah, Maimonides' epistemology, the concept of nature in Maimonidean thought, miracles, and providence and halakhic truth. (D.B.S.)

Yitzhak Twersky, "On Law and Ethics in the Meshneh Torah: A case study of Megillah II:17", Tradition 24/2 (1989), 138-149. - The author examines one text in order the demonstrate that a legal statement or prescription can be seen to reflect ethical doctrines, moral sensitivity, and thus moral doctrine even when one might initially perceive such statement or prescription as free of moral motifs. This moral sensitivity is characteristic of Maimonides; ritual acts, in his formulation, also become areas of ethics. (S.M.P.)

Walter S. Wurzburger, "Law as the Basis of a Moral Society", Tradition 19/1 (l981), 42-54. - The essay is a revised version of a paper presented at the Jewish-Anglican Consultation on "Law and Religion in Contemporary Society", held in Britain, Nov. 26-28, 1980. The author develops the thesis that in contrast to prevailing conceptions which divorce law from morality, Judaism links the two closely. The Jewish pattern is to ground morality in law rather than law in morality. Morality ultimately depends for its normative significance upon the transcendent authority of the law which in turn serves as the matrix for the development of moral conceptions. (S.M.P.)

 

 

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