Competing Perspectives on Legal Decision Making in Early Modern Ashkenaz

Abstract

The respective roles of jurists and judges in the decision-making process offers a valuable perspective on judicial practice and the delivery of justice in early modern Ashkenazic communities. This essay is concerned with differences in the approaches of poseqim (jurists) and dayanim (judges); it suggests that these distinctions were reflections of the institutional settings in which they worked, the size of their communities, and regional factors. Data unearthed from communal records and rabbinic responsa offer important evidence of disparities between the offices of early modern dayanim and poseqim, their distinct personae, and their respective views of how judicial rulings are decided. Moreover, these differences were related to the slow transition to fixed rabbinic-communal courts in western and central Europe that was a product of forces peculiar to the resettlement of Jews in the west, the deliberate development of communal traditions, and the role of the enlightened absolutist state. The impact of the growing recourse to non-Jewish courts, especially as it evinced differences between eastern and western/central European history and culture, was also a factor. Clearly, regional forces influenced the distinct legal efforts and perspectives of judges and jurists, as did the discrete functions they were assigned, their particular training, and the institutional standing of rabbinic courts. These differences became more glaring in the two centuries prior to the collapse of the ancien regime, as structural changes in western Ashkenazic communities contributed to a new Jewish legal culture.