The Seduction of Law:Rethinking Legal Studies in Jewish Studies
This review essay considers the category of "Jewish law" in Jewish studies while inviting scholarly and historiographic assessment of the ways that Judaism's link to law has come to appear as obvious. Considering that our present concepts of law are invariably linked to a geographically and temporally parochial "mythology of modern law," the essay sounds a preliminary set of interventions and conversations designed to open critical reflection on these links. First, it considers how halakhah is assimilated as law, which is in turn seen as quintessentially Jewish. Second, it invokes critical assessments of law as a modern European colonial construct. Third, it moves to Hindu law and Islamic law as examples of scholarly fields whose histories are implicated in European colonialism. Fourth, it discusses the construction of Jewish law in Israeli Zionist contexts and in the context of the U.S. law school. It then closes with some suggestions for future directions.
Jewish law, Halakhah, law, Hindu law, Islamic law, colonialism, law school, Jewish studies
Judaism is fundamentally a religion of law, a law that governs every facet of the human condition.—J. David Bleich and Arthur J. Jacobson1
Halakhah is not "law."—Phillip Sigal2
Our laws are based on Judeo-Christian values and ethics.—Mitt Romney3
How did the idea that Judaism is fundamentally bound up with law become so deeply embedded in scholarly and other accounts of Jewish history and culture? This idea is founded on a tendency to characterize halakhah as an essential feature of Jewish cultural formations. Yet each of these two key terms and concepts—halakhah and law (and related, overlapping terms like "Jewish law")—is mobile and polysemous. There [End Page 119] are multiple histories to be told about the conditions under which halakhah and law have been held together, at times tightly, at times tenuously, as if they were one with each other and with Judaism.4 In this essay I will proffer just a few suggestions about how these conjoinings have occurred. I wish to suggest that rather than assuming that Jewishness is inevitably bound up with law, we gain much by accounting for why and when it is that such linkages come to seem not only obvious but also transhistorical and translocal. Doing so will allow for multiple, finely grained studies of such shifting concepts and entities as "Judaism," "halakhah," "religion," and "law" as they come into relief or recede.5 Ultimately, such studies may make way for additional analytic approaches to the rich cultural output of those who have historically identified and continue to identify as Jewish.
A number of recent publications have addressed the category of law in various religious contexts.6 They have been tremendously useful to me in consolidating my thinking about the deployment of the category of law in Jewish studies, a category with which I have always worked.7 They help shed light on the potentialities and constraints of our inevitable need for analytic categories.8
This essay presents a schematic and necessarily selective account of what are multiple and dense processes. First, I will consider some of the ways in which halakhah is assimilated as law and seen as quintessentially [End Page 120] Jewish. Second, I will then reflect on some of the difficulties with law as a category of analysis before, third, moving to the instructive cases of how law has been problematized in the study of Islam and Hinduism. I will follow, fourth, by discussing the construction of Jewish law in Israeli Zionist settings and in the American law school and its impact in Jewish studies in the academic humanities and social sciences. I close with some suggestions for future directions.
judaism is halakhah is law
Scholarship on Jewish cultures from antiquity to the medieval and modern eras tends to agree on two key premises. The first posits the centrality of halakhah, or "the halakhah" to Judaism.9 The second views halakhah as coterminous with something called "law." The net effect is the strong association of law with Jewishness.10 While there is some debate about whether biblical and other ancient Near Eastern texts merit the description of "law," there is little controversy about this appellation for the overwhelming content of late ancient rabbinic texts.11 Whether or not a genealogy is drawn from the Hebrew Bible and Second Temple writings, rabbinic literature (often the Mishnah) is heavily cited and taken as one of the earliest manifestations of a Jewish preoccupation with law. The [End Page 121] justification for considering the Mishnah to be a legal text is often based on quantifying its content (as mostly law) and on assessments of its form. But these considerations could be visited on other genres of texts that are sometimes denied the appellation of law, such as Tertullian, De idolatria.12 One way to deal with the Mishnah's plural content—ritual, medical, agricultural, ethical, narrative, and more—is to stress its normativity. A flexible definition of law as normativity, however, offers "too little help in distinguishing legal orders from other normative orders."13 The halakhic/legal postulate, when backdated to a "classicized" antiquity, has a historically foundationalist weight that is easily extensible to later periods.14 It also has the distinct advantage of making early Jewish sources worthy of comparison and contrast with that ultimate classical and imperial legal "system": Roman law.15
The centrality of halakhah/law is also axiomatic in scholarly discourses of other fields including (or especially) the study of Christianity and religious studies, as well as in discourses outside the academy. The Jewish law trope in turn rests on a layered genealogy of oppositions: between a Christianity and a Judaism; between grace/love/ethics/faith and law; between religion and law; and conversely between a secularized (read, Protestant) [End Page 122] public sphere (or state) and religions (plural deliberate). Witness the veritable industry in New Testament studies (condensing massively around the Pauline corpus) trading on "the Law" as it serves to instantiate the nascent Jesus movement or putative "Christianity" vis-àvis "Judaism."16 For some time now some scholars (including those coming from Jewish studies or religious studies orientations) have sought to redraw if not blur the lines between law/faith and Judaism/the Jesus movement. Some of this important work has involved reading New Testament sources as engaging halakhah rather than simply opposing it.17 Yet, even where the deployment of law versus faith has been undone of its Lutheran (or other forms of anti-Jewish) binarity, the premise of law or halakhah as essentially Jewish remains, albeit both more nuanced and more expansive.
Within Jewish studies, scholars dispute the derivation of the word "halakhah," a term that first appears in early rabbinic sources.18 Nonetheless there has been consensus about its basic translatability as law and as such it becomes the go-to term in anchoring Judaism's "legal" character. It is the nature of this halakhah/law that is much discussed in studies of the multiple contents, scopes, conceptual frames, and varied ramifications (temporal and geographic) of rabbinic literature.19 Scholars working within the postulate of halakhah/law as central to Jewish culture consider the shifting valences of the term from a narrower semantic specificity of [End Page 123] "ruling," to halakhah meaning a genre or form, to the Halakhah: a "system."20 While the idea of a halakhic "system" as a totalizing and rationalized entity is characteristic of later understandings, the term is also invoked in scholarship on earlier periods.21 As it becomes more abstracted, halakhah/law becomes an adjective (halakhic/legal) and ultimately a total way of life or sensibility that permeates, even constitutes, a Judaism writ large.22
Another way that law is shored up as a category is through the conceptual dichotomy of halakhah versus aggadah. While these terms are used in late ancient sources (among other genres and contents), the split was first sharply riven by the geonim, and then successively in different ways through to the present.23 Halakhah is understood as law, and aggadah is taken as narrative, or more broadly, as the nonhalakhic.24 This definition of one part of a binary by negation of the other is telling of an underlying weighting toward halakhah and, thus, of a singularity. Recent scholarship has pushed back against the reification of this dichotomy, making for richly textured understandings of law as braided with narrative. These insightful studies tend to operate from a legal theory–inflected framework, joining scholarship in law and literature that critically assesses the [End Page 124] limitations of exclusively positivist, doctrinal, or formalist scholarship on law. The results end up reinscribing law as a significant category, albeit a richer, inclusive, and even unsettled variation thereof.25 While recent moves to trouble the halakhah versus aggadah dichotomy preserve law as a pertinent category,26 they also point to the promise of a thoroughgoing reflection on how the concept of law operates and why it seems to "pop" so brightly in both scholarly and also contemporary theological-rabbinic eyes. The invocation of "Jewish law" in modern and contemporary denominational rabbinic discourse demands particular scrutiny in the very poignant contexts of contemporary political, national, statist understandings of law; the same goes for our scholarship.27
the mythology of law
We might tell a story (or several) of how the category of law came into relief as an object of study alongside the invention of Judaism as a "religion."28 We might ask whether there is a "before the law" much in the way that Brent Nongbri and Tomoko Masuzawa have argued for "religion," Kim Philips has argued for "sexuality," and Khaled El-Rouayheb has argued for "homosexuality."29 For modern Jewish cultural formations we might fruitfully interrogate the ways in which law (specifically) has been marshalled discursively (whether successfully or not) in scholarship and also by Jews and those who do not identify as Jewish.30
Even as we acknowledge the histories that have led to hegemonic deployments of "religion" as a concept, there is further work to do on the [End Page 125] ways "law" has been similarly constructed as a sphere in Jewish studies.31 The construct of "Jewish law" has particular salience for the ways it rests upon and combines the categories "law" and "religion."32 Its potential for upsetting the fragile distinctions between law's supposed foreswearing of religion in the contexts of state-based law has not escaped scholarly notice. But the unexamined non-necessity of bringing Jewish sources under the banner of law in the first place has contributed to law's reification, and the invocatory force lent by "law" cannot but redound to the reification of Jewish law.
A few relatively recent genealogies can help us understand the apparent pertinence of law for Jewish studies. These include colonial European productions of local law, Zionist productions of Jewish law, and the emergence of Jewish law in American law schools.33 As I will outline, these (post-)colonial contexts and the institutional setting of the U.S. law school ramify into the academic humanities settings of Jewish studies. In thinking through these frames I am not of course excluding other historical moments in which the elision of halakhah and law and the invocation of law as something particularly Jewish became poignant. My hope is that this initial foray invites further work that investigates the shifting and iterated processes by which the scholarly object of "Judaism" becomes especially shot through with legal claims to meaning.34 I also [End Page 126] hope that these preliminary excurses will serve as invitations and provocations to critically reflect on the historical and historiographic relationships among Judaism, halakhah, and law.
The idea of a discrete category of analysis dubbed "law" that treats a distinct and autonomous field has been traced by Peter Fitzpatrick to European Enlightenment thought.35 Crucial to this conception in writings from Montesquieu to Maine is the notion of law as a peculiarly rationalist form not to be found (or else to be found in "primitive" or "prelegal" form) in non-European cultures. This, claims Fitzpatrick, is still conserved in the ongoing myth of law's transcendence (or its disembedding from other fields). Others have shown how such ideas shaped early anthropological studies of non-European/American societies, whether in evolutionary theories about "primitive law," or in the reification of "custom" versus "law." Kaius Tuori argues that Eurocentric constructs of "ancient law" coupled with evolutionary ideas about "primitive law" continue to influence current scholarship, even if they have been repudiated.36 To critically assess Euro-American conceptions of law, Fitzpatrick and others urge us, is to study its foundations and manifestations in European imperialism and colonialism, including how a concept of law was thought of as part of the "civilizing mission" of European colonial rule. If law itself is no neutral construct and owes itself in part to parochial modern European forms of material and conceptual colonialism, what work might be necessary to understand how it operates in Jewish studies? In the next section, I suggest that we might have something to learn from the complex histories of Hindu law and Islamic law in their modern iterations.
cases of hindu law and islamic law
Bernard Cohn and others trace the entry of ancient brahminical dharma-writings into the category of law as prompted by British efforts to render [End Page 127] Hindu law alongside Islamic law into tools of imperial governance in India.37 Officials, jurists, and "Oriental studies" scholars (Warren Hastings, William Jones, Henry Thomas Colebrook, and others) in often ambivalent collaboration with Indian scholars (dubbed "law professors" by the British) sought to codify and also translate this law.38 These projects actively "rectified" perceived messiness, diversity, and variety in practices and sources, by establishing an authentic, uncorrupted, ancient, sacred Ur-code: philology was a part of this non-neutral enterprise, being a tool to compress difference into unity.39 The very focus on brahminical culture, and the attention to its antiquity, was itself a selective project that had to do with particular constructions of "Hinduism" that in turn sought "priests" and "scriptures" and that related to social classes in specific ways.40 Conversely, the legal translation project of codification, as Robert Yelle and Cohn have shown, meant the excision of those contents deemed "religious" in favor of those legible to Anglican/Protestant–lensed British eyes as "civil" or "private law."41 [End Page 128]
The dharmaśāstra writings in question were authored and redacted by Vedic scholars and ritual officiants (Brahmins) sometime between the fourth century b.c.e. and the third century c.e.42 Some of these sources, which are difficult to locate and date, imagine a brahminical role in royal and juridical spaces; yet historians do not take these representations at face value.43 The meaning of the term dharma itself ranges across order, duty, nature, reality, and of course law.44 Ludo Rocher argues that dharma is not synonymous with "law" or "religion" and that the dharmaśāstra ought not be translated as "law books" (so dubbed by the British).45 We might note some interesting parallels with rabbinic literature here.
Talal Asad, Brinkley Messick, and others have accounted for the processes by which European colonization and local contestation resulted in the production of Islamic law in multiple Asian, African, and Middle Eastern contexts.46 Jonathan Berkey describes how British colonialists and scholars classified a field of "Anglo-Muhammadan law" for the purposes of a sphere of "personal law."47 Martin Chanock in his study of [End Page 129] colonialism in Malawi and Zambia analyzes the colonial codification of "custom" or "traditional" law. Anver M. Emon points to how selective textualizations of Islamic law reductively overlooked "the significance of context and contingency."48 He charts the ambivalent relationship to Islamic law on the part of French colonialists in Algeria, in which efforts to stymy certain kinds of land-holding trust arrangements went hand in hand with the creation of a textualized Islamic law that undermined the former.49
These scholars have argued that colonial interventions, the introduction of capital, and postcolonial mediations made for "the identification of a precise (and, at least from an anthropological perspective, arbitrary) set of beliefs, values, and practices which are assumed to constitute a normative and timeless 'Islam.'"50 While Emon describes how early scholarship enabled colonial rationalizations of Islamic law, Marinos Diamantides enjoins scholars not to take "for granted that a coherent body of laws called shari'a exists and deserves to be referred to as the primary expression of the religion of Islam," and Iza R. Hussin shows how "'Islamic law' emerged as a central arena for politics out of the struggle between local elites and colonialism, first as a way to maintain a domain of local authority, and later as a basis upon which to build a challenge to colonial institutions and authority."51
Talal Asad's arguments about religion as a modern European construct echo Peter Fitzpatrick's observations about the colonial legacy and conceptual load of law: both of these arguments come together in Asad's remarks on shari'ah. He notes that "in its premodern form the shari'a is not a primitive confusion of morality and law but something quite different from both as they are understood in modern society."52 Extending [End Page 130] this point to the present, Asad turns to the failure of Euro-modern drives to siphon religion off from other clearly demarcated sphere of "politics, law, and science."53 Asad's suggestion that the diversity of local Islamic expressions can be conceptualized as a "discursive tradition" has significant potential for the study of Jewish expressions.54
colonial and zionist constructions of jewish law
The nineteenth-century invention of non-European "religions" coupled with colonial projects that sought to secularize and systematize "religious law" (or to invent it, as many argue in specific forms of "Hindu law" or "Islamic law") have their parallels with modern constructions of "Judaism" and "Jewish law," as has been shown by Leora Batnitzky and Shai Lavi.55 And indeed, these projects were linked: Robert Yelle has drawn together the Christian Protestant secularization and colonial projects in a brilliant account in which he shows how the British invention of a secularized "Hindu law" drew heavily on a tradition of Christian repudiation of Jewish observances of the "Law."56 We might also consider how Islam and Judaism became comparable as religions for their essentialized legalism.57
There are also significant parallels and even some direct links among [End Page 131] European colonial forms of government, inventions of "indigenous" law, and the varied inventions of Jewish law in the context of Mandate Palestine and eventually the State of Israel.58 Ronen Shamir documents the ultimately failed battle for a Zionist, secularized, communal, avowedly anticolonial, and non-statist version of Jewish law in Palestine/Israel: the "Hebrew Law of Peace."59 The Orthodox rabbinate fought back for their vision of Jewish law, accusing the Hebrew Law of Peace tribunals of false claims to a Jewish past. They also fought for British-backed authorization of their own courts for laws of "personal status." Shamir points to how the rabbinic courts claimed Jewish tradition but were also in fact a colonial invention.60 Significantly, something akin to the colonial, European division of religion and law into spheres occurred in the Mandate (and was continued into the state of Israel), which meant that those running the rabbinical courts saw colonial law as neutral, "precisely, in fact, as colonialists always wanted it to look."61
"Brainchildren of the colonial British state," the institutions of the rabbinate "still determine the state-religion binding structure of present-day Israel," as has been shown by Lisa Fishbayn's study of their monopoly on family law.62 The role of the secular or studiedly neutral law of the colonial state could then be transferred to the Israeli state, safeguarding an apparent division of labor between the secular and the religious (even the ostensibly religiously plural).63 All the while, key to this version of the secular state were (are) specifically state-enforced legal ethno-exclusive notions of entitlement to citizenship, land, domestic arrangements, and more, as tightly linked to Jewishness.64 The ongoing state-authorization [End Page 132] of "religious" institutions exists in a variety of arrangements in other countries, whereby certain groups are able to engage in "faith-based arbitration" or to work within state-recognized religious forums for matters of "personal status." Thus, the ability of certain religious officials and officiants to cite "law" and to have their personal status authorizations and arbitration spaces legible as forms of "law" threatens, as Winnifred Sullivan, Robert Yelle, and Austin Sarat among others have noted, the modernist barrier between "religion" and "state" or "law."65 The citation of "Jewish law" by clergy (in a variety of countries) weighs heavily in these contexts.
mishpat ivri and the american law school
Additional attempts to infuse the state of Israel with Jewish law include those also claiming title as Mishpat Ivri (Hebrew Law). The Mishpat Ivri of the second half of the twentieth century, exemplified by the work and writings of Moshe Silberg, Menachem Elon, and Nahum Rakover, was both explicitly revivalist and inventive in its project of extracting usable, civil, portions of Jewish law principles from across what was construed as a global, long-lived Jewish legal corpus.66 This was not the secularized, communal variation of the Hebrew Law of Peace, as it drew instead on rabbinic sources. Aiming to simultaneously organize and rationalize a rabbinic canon, while extracting its secular, civil principles, Mishpat Ivri was in many ways also a "brainchild" of European ideology.67 In its classic formulation by rabbi-lawyer-professor-supreme court justice Menachem Elon, it uncannily mirrors the kinds of rationalization, codification, essentialization, and secularization of "religious law" espoused by that ideology. While its political and legal successes were (arguably) ultimately limited, its intellectual impact has been quite significant, particularly in Israeli and American law schools.
In Israel, Mishpat Ivri and variations continue to be taught and studied in law schools,68 even as Jewish law (whether as the study of halakhah [End Page 133] or the study of rabbinic literature more broadly) is engaged in multiple forums: in academic Jewish studies, in numerous yeshivot, in rabbinical courts, and to some extent in the secular court system. "Jewish law" (beyond the relatively small Mishpat Ivri movement) in Israel, then, becomes this unresolved category that straddles the realms of clerical, the private, the public, the academic, and the juridical. Perhaps it is no surprise that Mishpat Ivri was a particularly exportable intellectual product to the U.S. law academy. In its Elonian version, Mishpat Ivri's desires for juridical-statist weight, coupled with its neutralization of religious content and repackaging in Western liberal values, could sit well in the American law school, especially in light of increased interest in Jewish law. It is no coincidence that some of its proponents and students were involved in the intellectual traffic between Israeli scholarship and scholars and the U.S. law school since the eighties.69
In his inaugural lecture for the Gruss chair in talmudic civil law established at New York University, Menachem Elon declared the importance of the study of Jewish law given its "promotion and development of principles of equity and justice, human dignity, and individual freedom."70 He further argued that Jewish law had influenced the legal systems in which Jews had lived, making it vital to investigate the sources "from which this great democracy of the United States of America derived a not inconsiderable part of its principles."71 Here we see Mishpat Ivri's project come full circle. Earlier, it entailed excising and extracting those parts of Jewish "civil" law from "the halakhah" that were compatible with Western liberal values in order to Jewishly legalize the Jewish state. Now, in the [End Page 134] stated rationale for establishing a chair in talmudic civil law, was a project to remind the West whence its law, democracy, dignity, and individual freedom hailed. The religiosecular-Zionist entailments of Elon's brand of Jewish law qua Mishpat Ivri were not necessarily shared by subsequent scholars involved in shoring up Jewish law studies in the law schools. Yet even those who would stress Jewish distinctiveness did so with a sense of a coherent entity called "Jewish law" (that could then be contrasted or compared to American law) and often focused teaching and scholarship on a classicizing talmudic law, the idea of a Jewish legal system, or a longue durée history of halakhah.72
Subsequent visiting Gruss chairs did not necessarily follow Elon's liberal idealism, but certainly the project of instantiating a version of halakhah as an intellectual field legible in terms of law and as teachable in the U.S. law school eerily coincides with it. The inauguration of the Gruss chair at NYU in 1984 was followed by the establishment of two more such chairs at elite law schools (at the University of Pennsylvania in 1987 and at Harvard in 1990, the latter first held by Elon). These chairs, often held by visiting Israeli scholars, coincided with the local American emergence of Jewish-identifying law professors and rabbis (some but not all of the latter, with law degrees) with an interest in teaching "Jewish law," and the establishment of a Jewish law section at the AASL in 1991, as well as of several Jewish law programs and institutes (through to the recently established program at Harvard Law School).73
The emergence of "Jewish law" in the American law school context is not only related to its place in Zionist-Israeli-Jewish state-building projects or to the affiliation of rabbis with law schools. It can also be understood in terms of the postwar entry of Jewish studies and Jewish scholars of Jewish studies into the academic humanities. The entry not only into the humanities but also into law schools—professionalized, costly training [End Page 135] grounds for affiliations intertwined with government, legislature, the judiciary, and the corporate world—makes for a certain degree of cultural and political capital.74 In these contexts, reading the Talmud and other Jewish texts as law, teaching these sources in law schools, and becoming part of law school curricula is no small matter.75 The forms of scholarship and scholarly association produced by the emergence of this small subfield of Jewish law have not been static. Any history of this subfield would have to attend to the historical and changing norms of expertise and cultures of scholarly discourse in law schools, as well as the shifting but significant pressures of law school journals as a key mode of publication.76 And such a history would be enriched by comparison and attention to other subfields within the law school such as Islamic law, Roman law, Roma law, and canon law.
What has increased in recent years is the interchange between academic-humanities Jewish studies and the law school. On the one hand, in concert with general trends in the legal academy toward the hiring of people with J.D.-Ph.D.s rather than the previous tendency to hire those only with J.D.s, there is a greater inclusion of scholars of academic Jewish studies (sometimes only with Ph.D.s and no law degree), including those who have not gone the Israeli LL.B.-law doctorate route, which tended to overlap with specific demographics (often also rabbinically ordained). On the other hand, there is an increasing recourse in academic Jewish studies, particularly on the part of scholars of antiquity, though not solely, to law and legal theory as topics and analytic lenses. While these phenomena have not led to the "invention" of Jewish law whole-cloth, they have cumulatively contributed to and consolidated the sense of obviousness that law is something to be found in Jewish cultural sources.
conclusion: going forward
It is hard to imagine that the field of Jewish law uniquely or completely escapes the fusings and denials of religion/law and the combined parochialisms and imperialisms that beset the "mythology of modern law." Jewish law's genealogies are complex and multiple: its role in directly and [End Page 136] indirectly underpinning (even if by a kind of negation) imperial and state-building projects,77 its purchase as the superseded partner of Christianity in the exclusionary "Judeo-Christian tradition," its cultivation and elaboration in various exclusive structures of expertise (inside and outside the academy), all these factors make it more than a neutral object of study. Figuring the contingently nameable Jewish law as an exemplary nonstate legal order, or as an innocent corrective or comparandum to state-based legal orderings, makes the attribution of law to Jewish sources no less neutral. The production of Jewish law is enabled by a mingling of highly differentiated histories into some kind of rationalized entity. To produce Jewish law is to freeze into a certain configuration the messy mix of moving parts: "halakhah," "Jewish law," "religious law," and "civil law," not to mention "law." Even operating within the constraints of consensus about the existence of a Jewish law entails shuttling between differing models of law and making hard decisions about what to treat as sources (in a historical sense, but sometimes also in a legally doctrinal or theohalakhic dogmatic sense); figuring what models of governance and politics to rely upon or argue for; and navigating the discrepancies and shifting relations between social orderings and the patterning of lifeworlds, including those that include nonhuman beings (such as the divine, spirits, or demons). To study Jewish law means acknowledging the weighted claims of Jewish legality that refract across academic, rabbinic, communal, public, and other social formations.
Part of what makes the entry of Jewish law into the law school possible are the many, cumulatively reinforcing, often circular definitions and glosses of diverse sources including the New Testament, Mishnah, the Talmud, responsa literature, "codes," collections, narratives, and documents among various other kinds of literary forms, as "law" or "legal."78 The recurring usage of such terminology as applied to a stunning variety of sources, many of which themselves invoke language such as halakhah or din, explains the impulse to unify them under the banner of law, especially a finely grained, nuanced, conception thereof. Yet, thinking with Simon Roberts's plea to refrain from dubbing nonwestern ordering systems as "law," we are reminded that the term is unavoidably freighted [End Page 137] with historically parochial perspectives.79 These perspectives see social orderings as linked to particular political, institutional, or literary forms, as a discrete subsystem, and as somehow overriding other normative or ordering forms. Maybe we can correct for these predispositions, but perhaps more exciting is the invitation to suspend the category "law" (whatever it means) as an a priori frame for rabbinic and other Jewish sources. What kinds of questions or forms would then jump out at us?
In the case of rabbinic sources, scholars have made all kinds of suggestions, depending on how the sources are being cut and clustered: spiritual discipline, paideia, gynecology, ritual, classification, dispute resolution, ethics, scholasticism. None of these is without its own problems, but this does not mean that their heterogeneity should be so easily flattened under the totalizing banner of law. This raises the question of what it is about our own moment that makes the concept of law seem so pertinent and poignant. More interestingly perhaps, by subsuming so much under the legal, what other possible analytic opportunities are being foreclosed? Following Brent Nongbri's suggestion to abandon "religion" and to instead find ways to talk about "how gods and humans interacted," I wonder if we can similarly ask questions about "how humans thought about dispute resolution" or "conceived of relationships between material artifacts and themselves"—in following a less overdetermined yet specific notion of what we're trying to get at with "law." Alternatively, foregoing law but taking heed of those who enjoin us to opt out of the constraints of its narrower meanings when deploying it for Jewish studies, we might follow Brinkley Messick, who prefers to characterize shari'ah as a "societal discourse" in which the religious, legal, moral, economic, and political find "simultaneous expression."80 We might then consider how humans thought about ordering lifeways. And on a reflective level we can also pursue multiple genealogies in which various notions of law, state-sponsored or otherwise, have been folded in with Jewishness, and ask: how do these intertwinings operate? [End Page 138]
RACHEL RAFAEL NEIS is the Jean and Samuel Frankel Chair in Rabbinic Literature at the Frankel Center for Judaic Studies and in the Department of History at the University of Michigan.
Warmest thanks are due to Mira Balberg, Mara Benjamin, Ra'anan Boustan, Donald Davis, Natalie Dohrmann, Alyssa Gray, Chaya Halberstam, Dana Kornberg, Lena Salaymeh, Sara Forsdyke, Max Strassfeld, Guy Stroumsa, Sarah Stroumsa, Steven Weitzman, and Shai Zamir for their generous feedback on this essay (or its earlier iterations). I am grateful to Shai Zamir for his research assistance. The essay is written as a preliminary foray and schematic prolegomenon to a larger project, and as an invitation for collaborative rethinking.
1. J. David Bleich and Arthur J. Jacobson, "The Jewish Legal Tradition," in The Cambridge Companion to Comparative Law, ed. M. Bussani and U. Mattei (New York, 2012), 278.
2. Phillip Sigal, "Halakhah Is Not Law," Jewish Spectator 36.2 (1971): 15–18.
3. Mitt Romney, Republican Party primary debate on January 26, 2012.
4. Like "law" or "halakhah" or "religion," the term and category "Judaism" is not a stable entity. Rather, as scholars have shown, it is a loaded, labile term with a variegated history. See Annette Yoshiko Reed, Jewish-Christianity and the History of Judaism (Tubingen, 2018); warm thanks to the author for sharing the manuscript before its publication. Similarly, for the term "Jew," see Cynthia Baker, Jew (New Brunswick, N.J., 2017).
5. Until the seventeenth century all religions were called "Law" (lex) in the Christian world; Nicolas Standaert, "Early Sino-European Contacts and the Birth of the Modern Concept of Religion," in Rooted in Hope: China—Religion—Christianity, ed. B. Hoster (Abingdon, 2017), 3–27, esp. 11–13.
6. These include Christine Hayes, ed., The Cambridge Companion to Judaism and Law (Cambridge, 2017); Timothy Lubin, Donald R. Davis Jr., and Jayanth K. Krishnan, eds., Hinduism and Law: An Introduction (Cambridge, 2010); Samuel J. Levine, Jewish Law and American Law: A Comparative Study, 2 vols. (New York, 2018); and Iza R. Hussin, The Politics of Islamic Law: Local Elites, Colonial Authority, and the Making of the Muslim State (Chicago, 2016).
7. I began thinking about these questions while doing a law degree (L.L.B.) at the London School of Economics. At LSE the teaching of black letter law was shot through with anthropology, jurisprudence, and legal theory, and critical conversations about "law" went hand in hand with reading statutes and case law.
8. See Reed, Jewish-Christianity, xii–xxvii.
9. For a finely grained description of halakhah, see Alyssa Gray, "Rabbinic Judaism," in "Halakhah," in Encyclopedia of the Bible and its Reception 11, ed. D. Allison et al. (Berlin, 2015), 8–12, esp. 8; cf. Peter Tomson, "Halakhah in the New Testament," in The New Testament in Rabbinic Literature, ed. R. Bieringer et al. (Leiden, 2010), 135–206. I acknowledge that the supposed centrality of halakhah to Judaism is a subject of contention in and of itself and not pervasive through all forms of Judaism.
10. Recent examples of scholarship that highlight Jewish law include Yair Fursternberg, Purity and Community in Antiquity: Traditions of the Law from Second Temple Judaism to the Mishnah (Hebrew; Jerusalem, 2016); and Hayes, ed., The Cambridge Companion to Judaism and Law.
11. E.g., Barbara Levick, "Women and Law," A Companion to Women in the Ancient World (Hoboken, N.J., 2015), 96–97, on the difficulties with translating nomos and lex as law; Aldo Schiavone, The Invention of Law in the West (Cambridge, 2012) on difficulties describing Egyptian, Greek, or Mesopotamian rules as "law"; Anne Fitzpatrick-McKinley, The Transformation of Torah from Scribal Advice to Law (Sheffield, 1999), distinguishing wisdom traditions in various cultures from law. Against halakhah as law, see Phillip Sigal, "Reflections on Ethical Elements of Judaic Halakhah," 23; Duquesne Law Review 863 (1984–85): 863–904; Yosef H. Yerushalmi, Zakhor: Jewish History and Jewish Memory (Seattle, 2011), 113. On Torah as nomos: Samuel Sandmel, The Genius of Paul (New York, 1958), 46–47; Solomon Schechter, Aspects of Rabbinic Theology (New York, 1961), 117–30.
12. This text tends not to be seen as "legal," whereas m.'AZ is. Cf. Augustine, Letters, 46 and 47 (ed. A. Goldbacher, Corpus Scriptorum Ecclestiasticorum Latinorum, vol. 34 [Vienna, 1904], 123–29).
13. Simon Roberts, "After Government? On Representing Law without the State," Modern Law Review 68.1 (2005): 8. Studies that point to some of the genre diversity that could challenge a monolithic law-centered perspective on the Mishnah include Mira Balberg, "Rabbinic Authority, Medical Rhetoric, and Body Hermeneutics in Mishnah Nega'im," AJS Review 35.2 (2011): 323–46; Stephanie E. Binder, Tertullian, On Idolatry and Mishnah Avodah Zarah (Leiden, 2012).
14. There is some debate about dubbing sources among the Dead Sea Scrolls "halakhah" despite no usage of the term. See Seth Schwartz, "Law in the Second Temple Period," in The Cambridge Companion to Judaism and Law, 49–51, on their lack of legal tone. For an example of the backdating of "the origins of Jewish law" to "ancient Israel" through to the Mishnah and onward, see Lawrence Fine, Judaism in Practice: From the Middle Ages through the Early Modern Period (Princeton, N.J., 2001), 3–4.
15. On the revision of this understanding of Roman law, see Ari Z. Bryen, "Law in Many Pieces," Classical Philology 109 (2014): 346–65. On "the system of rabbinic law" as part of the "Western legal corpora," see Moshe Simon-Shoshan, "'People Talking without Speaking': The Semiotics of the Rabbinic Legal Exemplum as Reflected in Bavli Berakhot 11a," Law & Literature 25.3 (2013): 446; cf. David Daube, "Civil Law of the Mishnah: The Arrangement of the Three Gates." Tulane Law Review 18 (1943): 351. For a survey of the comparative scholarship of rabbinic and Roman law, see Catherine Hezser, "Introduction," Rabbinic Law in Its Roman and Near Eastern Context, ed. C. Hezser (Tübingen, 2003), 1–16.
16. On some of this scholarship, see Emmanuel Nathan, "Two Pauls, Three Opinions: The Jewish Paul between Law and Love," in Is There a Judeo-Christian Tradition? A European Perspective, ed. E. Nathan and A. Topolski (Berlin, 2016): 103–21; Reed, Jewish-Christianity, esp. 57–84 (and bibliography).
17. See Susannah Heschel, Abraham Geiger and the Jewish Jesus (Chicago, 1998) for earlier scholarship, and Bernard Jackson, Essays on Halakhah in the New Testament (Leiden, 2008). On later sources, see Charlotte E. Fonrobert, "The Didascalia Apostolorum: A Mishnah for the Disciples of Jesus," Journal of Early Christian Studies 9.4 (2001): 483–509.
18. See Tzvi Abusch, "Alaktu and Halakhah: Oracular Decision, Divine Revelation," Harvard Theological Review 80.1 (1987): 15–42; and Tikva Frymer-Kensky, "Toward a Liberal Theory of Halakha," Tikkun 10.4 (1995): 42–48 (thanks to Alyssa Gray for the latter reference). Other "legal" terms like mishpat and ḥok appear in sources prior to the rabbis, but halakhah's first appearance in Hebrew is in rabbinic literature.
19. For a discussion of the turn to law in rabbinics scholarship, see Beth Berkowitz, "Reclaiming Halakhah: On the Recent Works of Aharon Shemesh," AJS Review 35.1 (2011): 125–35. See also Joseph E. David, "Divinity, Law, and the Legal Turn in the Study of Religions," Journal of Law and Religions 32.1 (2017): 172–84.
20. Alyssa Gray models a minimalist, incremental account of the term "halakhah" in rabbinic literature (Gray, "Rabbinic Judaism").
21. E.g., Simon-Shoshan, "People Talking."
22. E.g., Batnitzky, How Judaism Became a Religion, 1: "Judaism has historically been a religion of law and hence practice." See also Christine Hayes, "Introduction," to The Cambridge Companion to Judaism and Law, 3, on Judaism as law with the important caveat that this is "in a vastly expanded sense that is not fully captured by western definitions and theories of law"; with respect to "Judaism" and "Christianity," see Annette Yoshiko Reed, Jewish-Christianity, esp. 396–98. Chaya Halberstam points to "limits of the law" over and against a depiction of a rabbinic-Jewish "totality of law" in "Encircling the Law: The Legal Boundaries of Rabbinic Judaism," Jewish Studies Quarterly 16.4 (2009): 396–424.
23. See Avinoam Rosenak, "Between Aggadah and Halakhah: Reflections on Trends in Thought and Study of the Philosophy of the Halakha," in The Quest for Halakha: Interdisciplinary Perspectives on Jewish Law, ed. A. Berholz (Tel Aviv, 2003), 285–312, who states that the task of defining halakhah is simple: "one can simply point in a specific fashion to a clear field and to known texts" (286).
24. For critical, historical assessments of the dichotomy, see, e.g., Moshe Simon-Shoshan, Stories of the Law: Narrative Discourse and the Construction of Authority in the Mishnah (Oxford, 2012), 2–9 and 234–37. Yair Lorberbaum ("Reflections on the Halakhic Status of Aggadah," Dine Israel 24 : 29–64) presents a critical, layered genealogy of Jewish "law" (often in quotes); arguing against "a uniform jurisprudence of the halakhah," he ends up with law as an aggadically inflected "system" (51–52), albeit a contradictory one.
25. Exemplary scholarship in rabbinics that work with such complex (even critical) conceptions of law include Chaya Halberstam, Law and Truth in Biblical and Rabbinic Literature (Bloomington, Ind., 2010), and Christine Hayes, What Is Divine about Divine Law? Early Perspectives (Princeton, N.J., 2016).
26. See Steven D. Fraade, "Nomos and Narrative before Nomos and Narrative," Yale Journal of Law & the Humanities 17 (2005): 81–96, who reframes the Mishnah as paideia.
27. On the fragility of disavowals of religion in law, see Winnifred Sullivan, Robert Yelle, Mateo Taussig-Rubbo, After Secular Law (Palo Alto, Calif., 2011).
28. See Leora Batnitkzy, "Modern Jewish Thought and the Invention of Jewish Law," Dine Israel 26 (2010): 7–44.
29. Brent Nongbri, Before Religion (New Haven, Conn., 2013); Tomoko Masuzawa, The Invention of World Religions: Or, How European Universalism was Preserved in the Language of Pluralism (Chicago, 2005); Kim Phillips and Barry Reay, Sex before Sexuality: A Premodern History (Cambridge, 2011); Khaled El-Rouayheb, Before Homosexuality in the Arab-Islamic World, 1500–1800 (Chicago, 2009); and Afsaneh Najmabadi, "Beyond the Americas: Are Gender and Sexuality Useful Categories of Analysis?," Journal of Women's History 18.1 (2006): 11–21.
30. Batnitkzy, "Modern Jewish Thought."
31. Studies that purport to study "Jewish law" in considerations of law and religion might point to the fusings of these two in "Jewish law" or halakhah but have yet to fully reflect on the appellation of law to swathes of Jewish sources in the first place.
32. For a brilliant reading of Mendelsohnn's interwoven understandings of Judaism, religion, power, and politics that relates to his nonenforcement-based notions of Jewish law, see Larisa Reznik, "This Power Which Is Not One: Queer Temporality, Jewish Difference, and the Concept of Religion in Mendelssohn's Jerusalem," Journal of Jewish Identities 11.1 (2018): 143–77.
33. Other important ancient genealogies include the early Christian construct of Judaism and Jews as "under the Law" and the Roman imperial context explored by in works such as Christine Hayes, Divine Law; Natalie B. Dohrmann, "Can 'Law' Be Private? The Mixed Message of Rabbinic Oral Law," in Public and Private in Ancient Mediterranean Law and Religion, ed. C. Ando and J. Rüpke (Berlin, 2015), 187–216; Beth Berkowitz, "Approaches to Foreign Law in Biblical Israel and Classical Judaism through the Medieval Period," in The Cambridge Companion to Judaism and Law, 128–56; Hezser ed., Rabbinic Law.
34. Batnitzky ("Modern Jewish Thought," 8) claims a peculiarly modern concept of Jewish law was invented but does not discount the existence of historical (or premodern) Jewish law. That premodern history, however, cannot be assumed as a background against which modernity invents. It, too, is in need of the kind of careful and granulated analysis that Batnitzky extends toward the modern. In fact, I would extrapolate other parts of Batnizky's argument to say (reductively put): modern inventions of a disembedded law enabled the study of law in premodern cultures. Creations are not always ex nihilo and can be successive: in other words, we can study multiple examples of how Jews invoked state-based social orderings and institutions to illuminate their own discursive practices. As will be noted, Islam is also often characterized as a "legal" religion (where shari'ah parallels halakhah) in opposition to Christianity as a religion of "faith." See Shahab Ahmed, What Is Islam? The Importance of Being Islamic (Princeton, N.J., 2016), 216, on the "shari'ah = Islam" idea as "legal-supremacist."
35. Peter Fitzpatrick, The Mythology of Modern Law (London, 1992).
36. Kaius Tuori, Lawyers and Savages: Ancient History and Legal Realism in the Making of Legal Anthropology (Abingdon-on-Thames, 2015). See also Tuori, Ancient Roman Lawyers and Modern Legal Ideals: Studies on the Impact of Contemporary Concerns in the Interpretation of Ancient Roman Legal History (Frankfurt, 2007).
37. Bernard Cohn, Colonialism and Its Forms of Knowledge: The British in India (Princeton, N.J., 1996), 57–76. As Cohn notes, by finding law Hasting rejected the prevalent theory of an Indian despotic state. On Orientalist denials that certain non-European cultures have law, see Teemu Ruskola, Legal Orientalism, China, the United States, and Modern Law (Cambridge, 2013). In discussing scholarship on colonial, local, and postcolonial constructions of Hindu and Islamic law, I do not mean to imply that all Jewish situations in the nineteenth and twentieth centuries mirror those of people in Asia, Africa, and the Middle East (which included Jews). The scholarship below illustrates modern instantiations and deployments of Hindu law and Islamic law, alongside scholarship that debates these categories (e.g. shari'ah and Islamic law in Wael Hallaq, Sharī'a: Theory, Practice, Transformation [Cambridge, 2009], 1–17). I think that we can learn from looking at these other examples about the ways that reexamining ideas and genealogies of law in Judaism and Judaism as legal can be fruitful.
38. Rosane Rocher, "The Creation of Anglo-Hindu Law," Hinduism and Law, 78–88.
39. Cohn, Colonialism. See also Sharada Sugirtharajah, Imagining Hinduism: A Postcolonial Perspective (Abingdon-on-Thames, 2004), 1–37.
40. Geetanjali Srikantan, "Toward New Conceptual Approaches in Legal History: Rethinking 'Hindu Law' through Weber's Sociology of Religion," in Entanglements in Legal History: Conceptual Approaches to Legal History, Global Perspectives on Legal History 1, ed. T. Duve (Berlin, 2014), 101–28; Nandini Bhattacharyya-Panda, Appropriation and Invention of Tradition: The East India Company and Hindu Law in Early Colonial Bengal (Oxford, 2007).
41. Robert A. Yelle, "The Hindu Moses: Christian Polemics against Jewish Ritual and the Secularization of Hindu Law under Colonialism." History of Religions 49.2 (2009): 141–71; Rachel Sturman, "Marriage and the Family in Colonial Hindu Law," Hinduism and Law, 89–104.
42. See Donald R. Davis, "A Historical Overview of Hindu Law," in Hinduism and Law, 17–27.
43. As with the authors of late antique rabbinic literature, it is very hard to pinpoint the precise social, geographic, and political positioning of Brahmins during the period of the composition of these texts. See Patrick Olivelle, "Dharmaśāstra: A Textual History," in Hinduism and Law, 28–57.
44. It can also mean teaching, "merit," "quality," "cause," "rules," and "ordering of cosmos and human life." See Alf Hiltebeitel, Dharma: Its Early History in Law, Religion, and Narrative (New York, 2011).
45. Ludo Rocher, "Hindu Conceptions of Law," Hastings Law Journal 29 (1977): 1283–1305; see Purushottama Bilimoria, "The Idea of Hindu Law," Journal of Oriental Society of Australia 43 (2011): 103–30, who questions the existence of Hindu law as understood in the (post)modern era, suggesting instead the need (103) "to introduce a broader nuance, marked by difference, and a strongly sustainable variant to the currently privileged concept of 'law': thus Hindu law."
46. Martin Chanock, Law, Custom and Social Order: The Colonial Experience in Malawi and Zambia (Cambridge, 1985); Fitzpatrick, Mythology, on European colonial inventions of modern law; Brinkley Messick, The Calligraphic State: Textual Domination and History in a Muslim Society (Los Angeles, 1996); June Starr, Law as Metaphor: From Islamic Courts to the Palace of Justice (Albany, 1992); Talal Asad, "Thinking about Tradition, Religion, and Politics in Egypt Today," Critical Inquiry 42.1 (2015): 166–214, and Formations of the Secular: Christianity, Islam, Modernity (Palo Alto, Calif., 2003), 205–56; Hussin, The Politics of Islamic Law. For a critical intervention in Islamic legal historiography and an innovative study of Islamic law and also Jewish law, see Lena Salaymeh, The Beginnings of Islamic Law: Late Antique Islamicate Legal Traditions (Cambridge, 2016).
47. Jonathan P. Berkey, "Madrasas Medieval and Modern: Politics, Education, and the Problem of Muslim Identity," in Schooling Islam: The Culture and Politics of Modern Muslim Education, ed. R. W. Heffner and M. Q. Zaman (Princeton, N.J., 2007), 40–60.
48. Anver M. Emon, "Islamic Law and the Canadian Mosaic: Politics, Jurisprudence, and Multicultural Accommodation," Singapore Journal of Legal Studies (2006): 331–55.
49. Emnon, "Islamic Law," 411–12; on the European colonial essentialism of Islam as law, see Ahmed, What Is Islam?, 122–24.
50. Berkey, "Madrasas," 51.
51. Marinos Diamantides, "Shari'a, Faith, and Critical Legal Theory," in Islam, Law and Identity, ed. M. Diamantides and A. Gearey (Abingdon, 2011), 50; and Hussin, Politics of Islamic Law, 5, also 6–14.
52. Talal Asad, "Thinking about Tradition, Religion, and Politics in Egypt Today," Critical Inquiry 42.1 (2015): 180; Asad, Formations of the Secular: Christianity, Islam, Modernity (Palo Alto, Calif., 2003), 205–56. For differing approaches to the question of the agency of those colonized, see Nathan J. Brown, The Rule of Law in the Arab World: Courts in Egypt and the Gulf (2007), 6–7; cf. Talal Asad, "Thinking about Secularism and Law in Egypt," Institute for the Study of Islam in the Modern World Occasional Paper (Leiden, 2001):1–15, esp. 4 and 14.
53. Talal Asad, Genealogies of Religion: Discipline and Reasons of Power in Christianity and Islam (Baltimore, Md., 1993), 28.
54. Talal Asad, The Idea of an Anthropology of Islam (Washington D.C., 1986), 14; cf. Salaymeh, Beginnings, 4–11 on nonessentialist approaches to Islam and Islamic law.
55. Shai Lavi, "Our Food Is Our Bond: A History of Jewish and Muslim Animal Slaughter and Post-Christian Social Science," History of the Present (2018): 29–56.
56. Yelle, "The Hindu Moses." See also Vishwa Adluri and Joydeep Bagchee, The Nay-Science: A History of German Indology (Oxford, 2014).
57. On the shared commitments of Islam and Judaism to law and ritual as viewed by Jewish and Christian German scholars, see Susannah Heschel, "German Jewish Scholarship on Islam as a Tool for De-Orientalizing Judaism," New German Critique 3.39 (2012): 91–107; and James Pasto, "Islam's 'Strange Secret Sharer': Orientalism, Judaism, and the Jewish Question," Comparative Studies in Society and History 40.3 (1998): 437–74. See Frederick Denny, An Introduction to Islam (Abingdon, 2011), 12, on law and orthopraxy in Islam and Judaism, similarly Ze'ev Maghen, After Hardship Cometh Ease: The Jews as Backdrop for Muslim Moderation (Berlin, 2012), 6. For a critical assessment of "origins" scholarship in comparative Jewish and Islamic law, see Salaymeh, Beginnings, esp. 1–20 and 105–35.
58. Assaf Likhovski, Law and Identity in Mandate Palestine (Chapel Hill, N.C., 2006), 56, points to the stationing of British legal personnel in South Asia prior to their time in Mandate Palestine.
59. See Shamir, Colonies of Law (Cambridge, 2000), and Amihai Radzyner, "Judaism and Jewish Law in Pre-State Palestine," Judaism and Law, 325–30.
60. Shamir, Colonies of Law, 53–70. Shamir further argues that emergent Jewish legal professionals also opposed the Hebrew Law of Peace and identified with positivist state-based law concepts (Colonies, 108–47).
61. Shamir, Colonies, 66.
62. Shamir, Colonies, 66. See Lisa Fishbayn, "Gender, Colonialism and Rabbinical Courts in Mandate Palestine," Religion and Gender 2.1 (2011): 101–27; Radzyner, "Judaism," 325, 330–34. Cf. Hussin, Politics of Islamic Law, 140–208.
63. Cf. Rina Verma Williams, "Hindu Law as Personal Law," Hinduism and Law, 105–20, and Hussin, Politics of Islamic Law, 209–35, esp. 265.
64. See Arye Edrei, "Judaism, Jewish Law, and the Jewish State in Israel," Judaism and Law, 337–63; cf. Smita Narula, "Law and Hindu Nationalist Movements," Hinduism and Law, 234–51, and Iza Hussin, Politics of Islamic Law, 236–66.
65. After Secular Law, ed. Sullivan, Yelle, et al.; also Austin Sarat, Martha Merill Umphrey, and Lawrence Douglas, Law and the Sacred (Palo Alto, Calif., 2007), 20: "Law, thought to be one of the exemplary domains of secularism, instead emerges as a signal location in which the sacred has resided and continues to reside alongside and as a fundamental part of the secular."
66. See Hussin, Politics of Islamic Law, 236–66.
67. On Mishpat Ivri, see Bernard Jackson et al., "Halacha and Law," in The Oxford Handbook of Jewish Studies, ed. M. Goodman et al. (Oxford, 2002), 662–65, and Edrei, "Judaism," in The Cambridge Companion to Judaism and Law, 349–56.
68. A first-year course at many Israeli universities (thanks to this clarification from Lena Salaymeh, via electronic communication).
69. On the Israel-Harvard legal collaboration program established in the 1950s, see Assaf Likhovski, "Argonauts of the Eastern Mediterranean: Legal Transplants and Signaling," Theoretical Inquires in Law 10.2 (2009): 619–51; on the traffic between Israeli and American scholars (going back to 1967), see Pnina Lahav, "American Moment[s]: When, How, and Why Did Israeli Law Faculties Come to Resemble Elite U.S. Law Schools?," Theoretical Inquiries in Law 10.2 (2009): 653–97. Yoram Dinstein, "Teaching Jewish Law in Law Schools (in Association with an International Collegium)," in Teaching Jewish Civilization: A Global Approach to Higher Education, ed. M. Davis (New York, 1995), 190–94, describes a collaborative project in 1986 to "develop a curriculum in Jewish law that could be offered … in law schools, first throughout the English-speaking world, and later in other countries as well." The project was initiated with three meetings, the first at NYU, and the second in 1987 and 1988 at the AALS (ibid.). A casebook was proposed that would show how "Jewish law is not an abstruse anachronism, but a pulsating legal system" (191).
70. Menachem Elon, "The Legal System of Jewish Law," New York University Journal of International Law and Politics 17.2 (1985): 243. Note the recursive use of "law" in the paper's title.
71. Elon, "The Legal System of Jewish Law," 243.
72. In a now-classic essay on the study of Jewish law in legal scholarship, Suzanne Last Stone emphasizes Jewish legal difference, especially in light of the divine. Stone also presents a traditionalist synthetic account of "halakhah," "Jewish law," and "Jewish legal theory" which she characterizes as "the internal perspective of the Jewish legal system" (Suzanne Last Stone, "In Pursuit of the Counter-Text: The Turn to the Jewish Legal Model in Contemporary American Legal Theory," Harvard Law Review 106.4 (1993): 813–94, esp. 816, n. 13). Levine, Jewish Law and American Law, 1:6–26, 64, 98, is optimistically cautious about comparison. His "broad historical and analytical overview of interpretation in Jewish law" (1:27–62, at 29) is a highly rationalized, synthetic, and ultimately dogmatic Orthodox account of the "Jewish legal system on its own terms."
73. Levine, Jewish Law, 1:x, 2–7; Dinstein, "Teaching." These include centers and programs at NYU (reconfigured), Berkeley, Harvard, Touro, Cardozo, and Loyola schools of law.
74. For powerful analyses of the varying forces that gave rise to the teaching of Islamic law in the legal academy, see Lena Salaymeh, "Commodifying Islamic Law in the US Legal Academy," Journal of Legal Education 63.4 (2013): 640–46, and Lama Abu-Odeh, "The Politics of (Mis)recognition: Islamic Law Pedagogy in American Academia," American Journal of Comparative Law 52 (2004): 789–824.
75. For a critique analysis of law school pedagogical and professionalizing approaches, see Elizabeth Mertz, The Language of Law School: Learning to "Think Like a Lawyer" (Oxford, 2007).
76. Lynn M. LoPucki, "Dawn of the Discipline-Based Law Faculty," Journal of Legal Education 65 (2016): 506–42.
77. See, for example, the Israeli version of Ottoman millet system which was "historically employed by imperial powers to segregate and categorize their colonial subjects into racial, ethno-religious and tribal groupings, exclude the subaltern groups from the spoils of power, and deny them the terms of equal membership in the political community." Yuksel Sezgin, "The Israeli Millet System: Examining Legal Pluralism through Lenses of Nation-Building and Human Rights," Israeli Law Review 43 (2010): 631.
78. See, e.g., Elon, "Legal System of Jewish Law."
79. Roberts, "After Government."
80. Messick, Calligraphic State, 3.