Fordham Law

Jewish Law: Sources, Principles and Jurisprudence

Modern scholarship has identified five legal sources of Jewish law, namely, interpretation, codification, custom, precedent and reason. These sources provide the framework for the course. Each source will be analyzed from both a doctrinal and a jurisprudential perspective, and attention will also be paid to the historical development of the institutions of Jewish law in a comparative context. Throughout the course, reference will be made to the role played by Jewish law in the legal system of the State of Israel. The course comprises a strong comparative element in both the doctrinal and the jurisprudential areas. This 5 week class will begin on January 15, 2008 and end on February 14. Course Outline Introduction: A distinction is made between the traditional methodology of the study of Halakhah and the scientific approach adopted in the modern study of Jewish law. The major aspect of the scientific approach is the analysis of Jewish law according to its legal sources i.e. interpretation, codification, custom, precedent and reason. Interpretation: In addition to discussing the historical development and the logic of the hermeneutical principles used in the juristic interpretation of Jewish law, this unit also explores the general problem of the tension between the lexical meaning of a normative text, and its legal significance. Some of the greatest authorities of Jewish law e.g. Rabbi Yishmael, Rabbi Akiva, Maimonides and Nahmanides have debated this matter, and the disputes between the formalists on the one hand, and the champions of a much freer style on the other, continue to occupy a pivotal position in the jurisprudence of Jewish law. An important aspect of this unit is the definition and significance of the categories of Biblical Law (Deorayta) and Rabbinic Law (Miderabbanan). Legislation: This unit deals with the nature of the authority of the Rabbis to legislate in accordance with the needs of the time, and the rules and principles governing such legislation. Particular attention is paid to those situations in which it appears that Rabbinic legislation runs counter to Biblical law, or usurps the status and authority of such law. In addition to these principled issues, the unit also discusses some of the most important developments in Jewish family over the ages, most of which are the result of Rabbinic legislation. Custom: The nature and authority of custom provides the focus of this unit. Particular attention is paid to defining the nature and scope of norms based upon lay practice in the context of a legal system based primarily upon the activity of authorized interpreters and legislators. An important element in this unit is the distinction between monetary matters and other areas of Jewish law, and the major contribution made by custom to commercial law. Precedent: This unit deals with the theory of judicial practice in Jewish law, and focuses on the issues of binding precedent, finality, judicial discretion and appeals. The role of lawyers in Jewish law is also discussed and analyzed in this unit. Reason: The use of reason as a justificatory principle is a pervasive feature of Jewish law, and its nature and scope are analyzed in this unit. The topic of legal assumptions in civil and family law will be discussed. A major portion of the unit is devoted to an examination of the relationship between morality and law, and in particular, the nature and scope of the principle of the lesser of the two evils in the context of the law of homicide. The influence of Jewish law upon other legal systems in this context will also be discussed. The unit concludes with a discussion of the influence, if any, of conventional morality upon Jewish law.
Credits: 2

Type: SEM

Does this course satisfy the writing requirement? Yes