The Jewish Law Annual Volume 19 by Berachyahu Lifshitz Hanina Ben-Menahem

Author:Berachyahu Lifshitz, Hanina Ben-Menahem [Berachyahu Lifshitz, Hanina Ben-Menahem]
Language: eng
Format: epub
ISBN: 9780367602093
Google: vaWTzQEACAAJ
Publisher: Taylor & Francis Group
Published: 2020-06-30T03:44:40+00:00

3 The legal and political theory model

Partly as a response to the problems discussed above and partly because different scholars are attracted to different questions, a third group of scholars, inspired by the late Robert Cover, have mined the Jewish tradition for insights into central questions of American and general jurisprudence.34 Classes taught in this mode operate as seminars in comparative legal theory, drawing on biblical, rabbinical, and scholarly sources to illuminate conversations taking place in the wider legal academy.

On the whole, this direction is the most promising, for several reasons. First, as this is an exercise in comparing how scholarly elites conceptualize their legal systems (often in somewhat idealized form), theory v. practice issues are of less concern. Second, since these scholars are more interested in exploring the phenomenon of law than in championing specific legal positions, the difficulties of inter-systemic transplants are moot. Third, by casting the inquiry as a search for theoretical frameworks rather than decision rules, this approach sidesteps the fact that Jewish law is understood to apply exclusively to Jews. Finally, it recognizes that the halakha is far more than a system of discrete rules; rather, as a central institution of Judaism, it tackles more abstract questions of social and religious life.

Moreover, if one of the main questions facing our constitutional democracy is how to read static texts across time, there are good reasons for American scholars to be interested in one of the oldest legal systems still in existence. In this sense, American law is a 200 year old version of what Jewish law has been doing for two millennia: R. Akiva and R. Ishmael, Rava and Abbaye, Rashi and the Rambam, R. Joseph Caro and R. Moses Isserles, all grappled with the questions of text, time, and context. The Jewish experience of reading both the Bible and the Talmud has potential to enrich contemporary discourse on legal theory and interpretation considerably.

Nevertheless, this approach, too, has its own difficulties, principally related to the status of any sort of “theory” within the halakha. Although virtually every legal question in Jewish law raises problems of textual interpretation, these questions are generally addressed without explicit theorizing. The rabbinical authorities rarely consciously reflect on their methodology, and are far more interested in the technical dimensions of the legal dispute than the broader questions of interpretive theory and practice.

The tension, however, runs deeper than the general lack of methodological awareness or theoretical terminology. The halakhic corpus does contain terms for a wide array of abstract legal categories — concepts such as kim lei bederaba minei, hatikha naaset neveila, tuma lemafreia, breira, and bikhdei sheyaasu. Yet these terms are so enmeshed within the technical rules of halakhic decision-making that they are scarcely translatable beyond their native context. On the other hand, the tradition has few terms corresponding to those that figure in theoretical discussions of law and politics. Notions such as: politics, polity, democracy, autonomy, individualism, universalism, particularism, culture, constitutionalism, rule of law, equality, equity, and pluralism — the key

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