Jewish Law Annual (Vol 6)

Bertrand Jackson

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9783718604661
• eBook ISBN: 9781134331895
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

First Published in 1987. This is Volume six of the annual published under the auspices of the Institute of Jewish Law of the Boston University School of Law. The symposium on the Philosophy of Jewish Law, which forms the main content of both this and the next issue, represents a major contribution to an area of investigation which has attracted increasing interest in recent years.

Part One
The Philosophy of Jewish Law (I)

Secular Jurisprudence and the Philosophy of Jewish Law: A Commentary on Some Recent Literature*

by
BERNARD S. JACKSON**

1.0 Much modern writing on the theory of Jewish law is informed, sometimes but not always explicitly, by the views of modern schools of jurisprudence. A wide range of such views is represented (1.1-1.5), and there is considerable variation in the thoroughness and sensitivity of the applications. After a survey of the principal stances we encounter, this article seeks to elucidate the underlying philosophical issues necessarily involved in any attempt to match the secular and religious corpora of theory, with a view to clarifying the nature and significance of the substantive issues themselves.

1.1 Jurisprudential positivism has recently attracted influential support amongst writers on Jewish Law. Menahem Elon bases the whole structure of his magnum opus, Hamishpat Ha'ivri, on a classification of sources into historical, legal and literary, and identifies the legal sources as the sole test of validity. Following Salmond, he defines the "legal sources" as "the sources of law and means of creating law recognised by the legal system itself as conferring binding force on the norms of that system",¹ and his language implies an equation of "binding force" with "validity". But whence do these sources of law which confer such validity on the substantive norms themselves derive their validity? Elon again follows Salmond (but in reality and importantly Kelsen) in asserting the existence of a "basic norm" which gives authority to the sources of law. This "basic norm", referred to in both Kelsenian and Hartian terms as a "Grundnorm" or "basic rule of recognition", is identified by Elon with "the rule that everything stated in the Written Law is of binding authority for the Jewish legal system". We may note that if Kelsenian analysis is to be applied, this rule is not to be identified with the Grundnorm, but rather with the "historically first constitution",² since something further, taken from outside the system itself, is required to give authority to it. The need for such a step is accepted by Elon: "The source of authority of this basic norm itself is the basic tenet of Judaism that the source of authority of die Torah is divine command."³ This, for Elon, is the real Grundnorm.⁴ This view of Jewish law, in terms of a hierarchy of authority deriving ultimately from God, may appear natural and unsurprising. There is, however, one aspect of positivism increasingly stressed by legal theorists - particularly by Kelsen and Hart, though in different ways - that has proved particularly attractive to modern Jewish law scholars. It is the degree of discretion, exercised quite legitimately under a power conferred by this very hierarchy of authority of the system, which positivism claims is (and in some versions is necessarily) exercised by the legitimate institutions of the system for the purposes of legal clarification and development. Elon has stressed this factor in terms of the "legislative" sources of Jewish law;⁵ Lamm and Kirschenbaum have more recently done the same in respect of judicial discretion.⁶ The attractiveness of this model for modern Jewish Orthodoxy lies in its explanation of the legitimacy of legal development. The argument can be presented that Jewish law, just because it is a system of law, may be expected to possess such institutions; and it is not difficult to proceed from that point to illustrate their existence from the treasure-house of data of the history of Jewish law.⁷ Legal development is itself regarded as a positive value, in the context of debates with ultra-conservatives who deny the moral authority of the current generation to initiate change. The debate then becomes centrally relevant to the issue of incorporation of Jewish law into the law of the State of Israel, since few would deny that a necessary precondition of such incorporation is a degree of clarification, restatement and development.

There are, however, at least two important flaws in the attempt to apply these positivist models to the Jewish legal system. The first lies in the temporal status of the historically first constitution (Kelsen) or ultimate rule of recognition (Hart). Both theories accept that such a basic norm, identified for Jewish law by Elon as the rule that everything stated in the Written Law is of binding authority, may indeed be changed by unilateral, revolutionary action of the subjects of the law. Secular jurisprudence thus accords the current constitution a merely contingent validity, until and unless a revolution occurs and succeeds; but such a possibility can hardly be accepted for Jewish law, wherein the basic law is eternal, or at least (even if we think of notions of berit hadashah or concepts of Torah in the messianic age) is not susceptible to change by unilateral action by its subjects. The covenant may be broken, but it cannot be unilaterally revoked. This theoretical dissonance raises an important methodological question: how legitimate is it, or what ends are served, by importing part of a theory while neglecting some other part that according to that theory may represent a central or crucial aspect?

A second flaw relates to the manner in which Elon derives the "exclusive authority (of the halakhic scholars of each and every succeeding generation) to interpret the Written Law and ensure its continuing evolution". It was, he says, "derived from a number of Pentateuchal passages". But this is a circular argument. There could be no legitimate derivation of authority from the Pentateuchal passages on the part of the scholars unless they already possessed authority to interpret.⁸ I have suggested elsewhere that the (uncontested) invocation of a bat kol in the context of the establishment of rabbinic authority in Erub. 13b may be viewed as a response to this logical difficulty.⁹ Yet even so, the extent of power conferred on rabbinic authorities according to the positivist understanding of the legal system may appear rather different, and very much restricted, if we do seek to avoid the circular argument by basing such authority on such sources only as do not themselves rely upon rabbinic interpretation. The only alternative, if this model of the Jewish legal system is to be maintained, is to adopt a version of it which ignores this internal viewpoint: one which claims that rabbinic authority is in fact conferred by the written law independently of the rabbinic view as to how this is done. Any rabbinic derivation of rabbinic authority from scriptural verses would then stand as a kind of expostfacto rationalisation or asmakhta. It is not every jurisprudential theory, however, which would accept such a bypassing of the internal viewpoint, and we may wonder, in particular, whether Jewish law would countenance it.

A similar problem of partial correspondence between the data of Jewish law and positivist legal theory is encountered by Otto Bondy, who views Jewish law in predominantly Kelsenian terms.¹⁰ The sticking point, for Bondy, is the problem of sanctions. Kelsen maintained that sanctions were essential to law, indeed that a sanction was built into the structure of every individual legal norm. Bondy appears to regard Jewish law as affording a falsification of this particular aspect of Kelsenian theory.¹¹ But this explanation of the mismatch is only one possible alternative. The other, which cannot be discounted simply by ignoring it, is that Kelsen is right and therefore "Jewish law" is not, in part or in whole, "law". In order to decide which alternative explanation of the mismatch is preferable, we have to arrive at a view of the nature of the Kelsenian theory - what, in particular, it claims to be. This is but one example of an essential methodological problem which has been virtually ignored thus far in the literature. As in so many types of comparative research, the material with which the researcher attempts to compare his primary subject area is taken to be unproblematic.

1.2 Natural law theory is an area where the student of Jewish law must be especially careful before making comparisons.¹² The long history and variety of natural law theory is such as to tempt us to use the term in almost any context where the source of a rule or obligation appears to be other than a recognised authority in a particular legal system. A famous talmudic passage, Yoma 67b, interprets Lev. 18:4 et mishpatay ta'asu as referring to commandments which "if they were not written, they should by right have been written" (referring to the prohibitions of idolatry, immorality, bloodshed, robbery and blasphemy). Lamm and Kirschenbaum refer to this as "the major talmudic passage which may serve as a source for a theory of natural law".¹³ But it does not follow that the talmudic passage had in mind, as a source of obligation other than the written law, any "laws ... issue(ing) from a primordial and eternal order...(which entail the existence of) certain moral notions (as) indigenous to man and nature and discoverable by unaided reason".¹⁴ The talmudic passage, without more, simply does not tell us (a) whether the alternative source (to the written law) issued from a primordial order or represented an order contemporary with Sinai; (b) whether that source was indigenous to man (i.e. universal) or communicated to Jews alone; and (c) whether its discovery other than through the Written Law could be accomplished by "unaided reason". It is tempting to us to read such passages in the light of debates which possess contemporary heat. But even though the classical naturalist assertions were in the philosophical air in the time of the talmudic Rabbis, one might suspect that (especially in the light of Jewish-Christian debate) the problem of the range of recognised forms of revelation was (for them, if not for us) by far the hotter potato.

Julius Stone captured a number of important facets of the natural law comparison in the following remarks: "Jewish theory of law has some of the marks of natural law, in so far as man, his position, rights and duties are held within a transcending order revealed by the divine word as interpreted by man's reason. But it did not proceed from this to admit that mark of natural law which ... consists of the juxtaposition of positive and natural legal orders".¹⁵ The latter assertion would command, perhaps, more general assent than the former. Yet even the latter may admit of qualification. Lichtenstein has argued that Jewish law recognises the existence of a universal, intuitive human morality, which may serve as a minimum standard in the interpretation of Jewish law itself.¹⁶ In all such debates over the Jewish attitude to natural law, the status of Noahide law and the views of Maimonides have predictably played a major role. Here modern writers have displayed commendable caution. Neither universalism not rationalism necessarily entail naturalism. And while Lamm and Kirschenbaum¹⁷ may be correct in accusing Fox¹⁸ and Faur¹⁹ of going too far in suggesting that Yoma 67b implies only a capac...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• PART ONE THE PHILOSOPHY OF JEWISH LAW (I)
• PART TWO CHRONICLE
• PART THREE