Jewish Law

Abstract

‘Jewish law,’ the modern English epithet for halakha, covers legal arrangements in different geographic areas and historical eras, from biblical times to the present. Jewish law, the foundational texts of which are the Torah (the Pentateuch) and the Talmud, is a normative system regulating all aspects of daily life, private and public. Five periods can be distinguished: the biblical period, the talmudic period (first century BCE to fifth century CE), the Geonic period (sixth century to twelfth century), the period of the Early Authorities (Rishonim) (thirteenth century to sixteenth century); and the period of the Later Authorities (Aharonim) (seventeenth century to the present). Four main geographic centers of legal activity can also be distinguished: the land of Israel and Babylonia, in the talmudic and Geonic periods, and later, Sfarad (the Iberian peninsula and north Africa), and Ashkenaz (Franco-Germany). From the jurisprudential perspective, it is difficult to see the different periods and centers as constituting a single system of law, since they lack a hierarchical institutional structure. Jewish law developed despite the fact that it was not the positive law of any state, and its central institution, the Great Sanhedrin, has not existed for about 2,000 years. Jewish law is generated by the following elements: the rabbinical establishment, the teachers and students of the law at the rabbinical academies (yeshivot); the Jewish communal establishment, responsible for conducting the civic affairs of Jewish communities; the members of the community, who, by adopting certain customs on their own, force the establishment to acknowledge these behaviors, sometimes condoning them; and the Gentile societies within which Jews live. A diversity of customs and behaviors tantamount to de facto legal pluralism emerged, partly due to the fact that communities are guided by different halakhic authorities. Special status is accorded the local authority, the mara deatra. The various centers, throughout the different periods nonetheless undoubtedly see themselves as constituting a single system. The formative era of Jewish law is the talmudic period, during which foundational texts of Jewish law — the Mishna and the Talmud — were composed. Talmudic law is premised on the divine revelation of the Torah to Moses at Mount Sinai (the written law), and the accompanying oral revelation (the oral law), later committed to writing. Together, they record the divine precepts (mitzvot) according to which Jews must conduct themselves. Despite the Torah's divine origin, it was subjected to human scrutiny and elaboration. A distinction emerged between deoraita, that deemed of divine origin, and derabanan, that deemed of human origin. Talmudic law also distinguishes between precepts pertaining to interpersonal relations (mitzvot bein adam lehaveiro) and precepts pertaining to the relationship between individuals and the Almighty (mitzvot bein adam lamakom). The evolution and philosophy of Jewish law cannot be understood without a firm grasp of talmudic law. Most of the halakhic literature is essentially elaboration of and commentary on the Talmud. Two characteristic features of Jewish law emerge from talmudic law: the dichotomy between the law's theoretical exposition and its implementation in practice (halakha and halakha lemaase), and the judge's power to deviate from the law and base his ruling on extralegal considerations. Thus, Jewish law is best captured by the adage ‘governed by men, not by rules,’ as opposed to the western ideal of ‘governed by rules, not by men.’

Keywords: Jewish Law, Philosophy of Jewish Law, Jurisprudence