RELIGIOUS LEGAL SYSTEMS IN COMPARATIVE LAW (PART 3)

A Guide to Introductory Research

By Marylin Johnson Raisch

Jewish Law

Essential facts

“Jewish law is the legal system of the Jewish people as it has developed from Biblical times to the present.” This definition by Phyllis Weisbrod in Basic books and periodicals on Jewish law: a guide for law librarians, 82 Law Libr. J. 519 (1990) summarizes a complex written, oral, and oral-as-written textual history of sources for Jewish law.  Torah is the term used for the divine source of wisdom relating to all of creation, so to work towards a definition that relates to the narrower scope of its application as law, or halakhah, begins with the Torah in a more literal sense, namely, the first five books of what the Christian western tradition calls the Pentateuch or first five books of what came to be the Bible. While the status in Biblical and form-based criticism of the ancient compilers of this narrative is beyond the scope of this guide, an oral history of commentary on the Torah arose and became written down as the Mishnah in approximately the year 200.  Talmud and Torah also contain non-legal teachings bound up with legend, myth and philosophy, referred to as aggadah.

Learned opinions based on this addition to the divine tradition were recorded as a commentary on the Mishnah and became known as the Talmud or “study.” The Jerusalem Talmud (or Gemarah in Aramaic) dates from the fifth century after Christ and approximately 100 years later there appeared the Babylonian Talmud, a more authoritative text.  Other sources of the “oral” law include the Tosefta and the Midrashe Halakhah. After the fall of the Second Temple in 70 and the ending of the assembly of elders known as the Sanhedrin, interpretation fell to the institution of a bet din or rabbinical court of three rabbis. Such a court continued through the diaspora wherever there was a Jewish population. There is no appeal or stare decisis; one can ask the court to correct an erroneous judgment or re-open a criminal case. The tradition is much closer to that of the European civil law in that regard.

Codes of restatement also appeared over time; the codes of Moses Maimonides in the 12th century and of Joseph Karo in the 16th century are considered authoritative. As those rabbis learned in the law applied it in opinions, these became written down as answers and advice known as response, and these constitute a living law.

Archaeological research and scroll discoveries have also added to the wealth of study and potential sources for Jewish law. See Baumgarten, J. “The Laws of the Damascus Document in Current Research,” The Damascus Document Reconsidered (ed. M. Brosh). Jerusalem, 1992. In 1896, noted Talmud scholar and educator Solomon Schechter discovered evidence of sectarian Jewish documents which later were found to be medieval versions of the Damascus Document fifty years before the Qumran discoveries.

On the difficulties of separating legal and non-legal treatments of Jewish daily ritual life as well as commercial and family law areas to which it also applies, and the impact on law cataloging, see Kuperman, Aaron, Technical Services Law Librarian, Volume 25, No. 1 (September 1999)

Jewish law is now applied in personal law (such as marriage and family) in Israel and Morocco and others which recognize such applications to religious communities; see below in this guide under Implementation of religious law in several jurisdictions.

Basic sources and their descriptions: internet, books, articles

Internet

  • The Soncino Talmud [CD ROM electronic resource]. Chicago : Institute for Computers in Jewish Life; Davka Corp.; Judaica Press, 1991-1995.
  • Jewish Law from Aleph Institute, Project Genesis, and the Orthodox Institute – Electronic Jewish law case summaries, statutes and journals, with bibliographic citations to print formats. Briefs in US cases involving First Amendment issues, education, dietary laws, etc. and some regarding US regulatory conflicts with aspects of Jewish law. Halachic forms for living wills, permissible interest charges in sales, and prenuptial agreements.
  • Jewish Virtual Library – Contains some texts, bibliography and an article on euthanasia from a Halachic perspective, (Neeman, Yaakov, and Eliot Sacks, Euthanasia: The Approach of the Courts in Israel and the Application of Jewish Law Principles, 2005).
  • Jewish Encyclopedia entry
  • Medieval sourcebook and Project Genesis via Fordham University, Jewish law
  • Dafyomi site, the Talmud: Easily accessible English summary of the Talmud, for basic orientation through daily study, from The Ministry of Religion and Culture of the State of Israel, Estate Distribution Fund of the State of Israel, Dr. Lindsay and Rivki Rosenwald, Memorial Foundation for Jewish Culture: http://dafyomi.co.il/today.htm
  • Jewish Law at Megalaw.com, http://www.megalaw.com/top/jewishlaw.php
  • University of Miami Law Library, Jewish Law Research Guide. Excellent practical guide with research strategies for understanding the terms used in the Talmud and the Responsa and with regard to specific translations and sets.
  • Professor E. Segal’s Web Site.  Professor Segal’s “Image Maps and Interactive pages” is the best feature of this set of links to articles and commentary. Credit to David Hollander in his article cited below in Law Library Journal for pointing out this valuable site.
  • Hebrew Books, enables one to download in PDF acrobat format 11,000 Hebrew books on Jewish law.
  • Seforim Online, enables one to download approximately 239 Hebrew seforim, many of which are rare or out-of-print.
  • Tshuvos, enables one to download more than 100 Hebrew seforim.
  • Cleveland State University Law School Judaic Law Research Guide .
  • Bar Ilan Faculty of Law library.
  • Jewish Encyclopedia entry.
  • Judaica Electronic Texts: This site at University of Pennsylvania contains texts in several languages, notably Hebrew-English parallel Bible from the Masoretic text, and  “Internet Resources for the Study of Judaism and Christianity,” at  http://ccat.sas.upenn.edu/~jtreat/rs/resources.html.
  • Torah.org.
  • Central Conference of American Rabbis, development of digital Responsa.

Books (includes some primary texts)

  • Talmud Bavli = [Talmud Bavli]: the Schottenstein edition: the Gemara: the classic Vilna edition, with an annotated, interpretive elucidation, as an aid to Talmud study. Hersh Goldwurm;  Nosson Scherman, eds. Brooklyn, N.Y.: Mesorah Publications, 1990- .
  • The Babylonian Talmud, translated into English with notes, glossary, and indices under the editorship of Rabbi Dr I. Epstein. 18 vols. in 7 parts. London : Soncino Press, 1935-1952.
  • Soncino Talmud. NY : Soncino Press, 2001.
  • Abrams, Judith Z. The Babylonian Talmud : a topical guide. Lanham, Md.: University Press of America, 2002.
  • Appel, Gersion. The Concise code of Jewish law : compiled from Kitzur Shulhan aruch  and traditional sources : a new translation with introduction and halachic annotations based on contemporary response. 2 vols. New York : Ktav Pub. House, c1977- .
  • Elon, Menachem. Jewish law (Mishpat Ivri) : cases and materials. New York : Matthew Bender, 1999.
  • ____________. Jewish law: history, sources, principles = Ha-mishpat ha-Ivri / Menachem Elon ; translated from the Hebrew by Bernard Auerbach and Melvin J. Sykes.

A.Philip and Muriel Berman, eds. Philadelphia: Jewish Publication Society, 1994.

  • Cohen, Arnold J. An introduction to Jewish civil law. Jerusalem ; New York : Feldheim Publishers, 1990.
  • Ganzfried, Solomon ben Joseph, 1804-1886. Code of Jewish law = Kitzur shulhan aruh : a compilation of Jewish laws and customs / by Solomon Ganzfried ; translated by Hyman E. Goldin. Rev. ed. New York : Hebrew Pub. Co., 1961.
  • Hecht, Neil S. An introduction to the history and sources of Jewish law. Oxford: Clarendon Press; New York: Oxford University Press, 1996.
  • Hempel, Charlotte. The laws of the Damascus document : sources, tradition, and redaction. Leiden ; Boston : Brill, 1998.
  • Steinsaltz, Adin. The Talmud: the Steinsaltz edition,translated and edited by Adin Steinsaltz. New York : Random House, [1989-    ] multi-volume set.
  • ————. The essential Talmud, translated from the Hebrew by Chaya Galai. London : Weidenfeld and Nicolson, 1976.
  • Wassen, Cecilia. Women in the Damascus document. (Academia Biblica., no.21) Brill Academic Pubs., 2005.

Articles

In general:

For abstracts, articles or chapters-JLA’s web site, at http://www.mucjs.org/JLAS/   . Some journals are online for free from the publisher. The JLA Newsletter cites, The Journal of Torah and Scholarship.

RAMBI – the Index of Articles on Jewish Studies, is a multi-lingual bibliography of selected articles on Jewish studies.

The Library of the Faculty of Law at Bar Ilan University maintains its own Index to Articles, written in Hebrew or English, that address matters of Jewish law.  This index can be found by going tohttp://www.law.biu.ac.il/library  choosing the hyperlink at the top left for English and then Index to Articles

  • Baruch, Chad and Karsten Lokken. Research of Jewish Law Issues: A Basic Guide And Bibliography For Students And Practitioners, 77 U. Det. Mercy L. Rev. 303 (2000).
  • Broyde, Michael J. The Foundations Of Law: A Jewish Law View Of World Law, 54 Emory L.J. 79 (2005).
  • Darrow-Kleinhaus, Suzanne.  The Talmudic Rule against Self-Incrimination and the American Exclusionary Rule: A Societal Prohibition Versus an Affirmative Individual Right, 21 N.Y.L. Sch. J. Int’l & Comp. L. 205 (2002).
  • Friedell, Steven F. Nobody’s Perfect: Proximate Cause in American and Jewish Law, Int’l 25 Hastings & Comp. L. Rev. 111 (2002).
  • ————–.The “Different Voice” In Jewish Law: Some Parallels To A Feminist Jurisprudence, 67 Ind. L.J. 915 (1992).
  • Galanter, Marc and  Jayanth Krishnan. Personal Law and Human Rights in India and Israel, 34 Isr. L. Rev. 101 (2000).
  • Hollander, David. Jewish Law for the Law Librarian, 98 Law Libr. J. 219 (2006).
  • Kirschenbaum, Aaron. Modern Times, Ancient Laws – Can The Torah Be Amended? Equity As A Source Of Legal Development. 139 St. Louis L.J. 1219 (1995).
  • Kuperman, Aaron Wolfe. “Problems in cataloguing Mishpat Ivri”, in Proceedings of the 33rd annual convention of the Association of Jewish Libraries. Association of Jewish Libs., 1999, p. 72-8. [Book Chapter].
  • ————–. “Subject cataloging of Jewish legal materials”, in Proceedings of the 35th annual convention of the Association of Jewish Libraries. Association of Jewish Libs., 2001, p. 39-43. [Book Chapter].
  • Levine, Samuel J.  An Introduction to Legislation in Jewish Law, with References to the American Legal System, 29 Seton Hall L. Rev. 916 (1999).
  • Levine, Samuel J. Essay: capital punishment in Jewish law and its application to the American legal system: a conceptual overview, 29 St. Mary’s L. J. 1037 (1998).
  • Likhovski, Assaf. The Invention of “Hebrew Law” in Mandatory Palestine, 46 Am. J. Comp. L. 339 (1998).
  • Novak, David. Theology, law, and the self-governance of religious communities: Jewish Marriage and Civil Law: A Two-Way Street? 68 Geo. Wash. L. Rev. 1059 (2000).
  • Rabin, Edward H. Symposium: The Evolution & Impact Of Jewish Law: Foreword, 1 U.C. Davis J. Int’l L. & Pol’y 49 (1995).
  • Radford, Mary F. The Inheritance Rights of Women Under Jewish and Islamic Law, 23 B.C. Int’l & Comp. L. Rev. 135 (2000).
  • Resnikoff, Steven H., “Jewish Legal Scholarship and the Internet, Jewish Law Association (JLA) Newsletter, January, 2007, p. 5 (wealth of links to important sources).
  • Stone, Suzanne Last.  The Intervention of American Law in Jewish Divorce: A Pluralist Analysis, 34 Isr. L. Rev. 170 (2000).
  • ————–. Symposium: Rethinking Robert Cover’s Nomos and Narrative: Rabbinic Legal Magic: A New Look at Honi’s Circle as the Construction of Law’s Space,
  • 17 Yale J.L. & Human. 97 (2005).
  • Weisbard, Phyllis Holman. Basic books and periodicals on Jewish law: a guide for law librarians. 82 Law Libr. J. 519 (1990).

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