20th Century Jewish Religious Thought: Original Essays on Critical Concepts, Movements, and Beliefs

Jurisprudence

Jurisprudence Ze'ev W. Falk J urisprudence is the delineation of the governing principles and methods of positive law, that is, the law established by political authority. This discussion will undertake to identify Jewish jurisprudence not only in terms of Judaism's formal legal system but also with respect to other normative aspects of jewish tradition. Many passages in the Bible and rabbinic literature have a legal structure. Among the terms describing the divine message, there are a number of legal concepts, such as ~ukim (statutes), mishpatim (ordinances), mL~vot (commandments ), and pikudim (precepts) (cL Ps. 119). There are other terms, however, that point to the pedagogic rather than the legal character of the divine message, such as torot (teachings) and derekh (path). These terms refer to the religiOUS and moral dimensions of judaism, which must be observed together with legal norms. Rabbinical terminology distinguishes between halakhot-rules that pertain to ritual and cultic as well as formal legal practices-and aggadotstories , homilies, and commentaries that were evoked to teach religiOUS and moral values. Thus rabbinical judaism includes a legal code but is never only a legal system. 510 JURISPRUDENCE It was Spinoza who first undertook to interpret judaism as a mere collection of laws.1 He advanced this view in support of his thesis that the jewish religion was but a legal superstructure of the jewish state, and that this religion became essentially defunct with the destruction of the state it was designed to serve. The religious tradition of Israel, however, preceded the settlement of the people of Israel in the land of Canaan and the establishment of the jewish state; moreover, the religion of Israel occasionally developed in conflict with the kings of Israel and the state's institutions. The teachings of the prophets, scribes, and rabbis often reflect their opposition to the temporal powers. Indeed, talmudic law emerged as a reaction of judaism against what was regarded as arbitrary political power. judaism cannot therefore be regarded as essentially a legal system no different from those formulated by writers of jurisprudence. Indeed, should we employ a utilitarian concept of law such as that proposed by the eighteenth-century philosopher of jurisprudence jeremy Bentham , which sets among its criteria for adjudging the validity of a legal code its utility, it would be difficult to understand halakhah (rabbinic law) as a genuine legal system, because very often a halakhic decision is made on a conceptual basis without regard for its consequences. According to the rabbis , a person should fulfill his duties for their own sake and not for extraneous motives (M. Avot 2:2, 12; 6:1). God's commandments were not intended to promote happiness (BT Er. 31a), which is the object of law according to the utilitarian school of jurisprudence. A similar difficulty arises if we consider halakhah according to the imperative theory of law developed in the nineteenth century by john Austin, who regarded the rightful purview of law to be the commands of a human sovereign to his subjects, with appropriate sanctions against lawbreakers. Halakhah certainly cannot be understood in these terms. The closest system of jurisprudence admitting the legal character of halakhah is perhaps that of Eugen Ehrlich, who is associated with the so-called sociological school of jurisprudence. According to this view, law is contingent upon popular acceptance rather than upon legislation or adjudication. This legal theory regards the state as less essential for the definition of law than society. Such a theory would thus hold that halakhah could gain legal validation through its acceptance on the part of the jewish people. But jewish law also challenges the conduct of people, as in the case of the apostasy of a city or a tribe in Israel, and the prophets often reproached the people for deviating from God's will. Furthermore, rabbinic halakhah includes rules that are purely theoretical; the great majority of the people never followed, for instance, the rules of purity and tithing. According to Ehrlich's sociological conception, these aspects of the halakhah are not properly law. JURISPRUDENCE 511 At present halakhah has lost its hold on most jews and is merely a private discipline of those individuals who regard themselves as bound by it. Mordecai Kaplan therefore declared the halakhah to be defunct and concluded that the jewish people were in need of a new social contract. Meanwhile, the State of Israel has restored a binding legal status to...