Torts and Torah

Abstract

The question of the relationship between law and religion, especially as to the influence of the norms of one on the other, is highly problematic, or so it is as to the relationship between Jewish law and the common law of the United States. Despite a great deal of research on the subject, the claimed connections and influences strike me as exaggerated, in excess of what actually has been or can be proven. There appears to be an enthusiasm for finding connections, for what Professor Menacham Elon of Hebrew University in Jerusalem has called the “adoption of an apologetic approach” in which influence is over-emphasized. After all, such influences are difficult to prove, to trace, if for no other reason than explicit attribution to antecedents is rare. Much of the work in this area, at least as it bears on Jewish common law, rests largely on claims of a remarkable similarity between the respective norms of the systems of law. One needs only observe that similar institutions and rules may have developed, not so much due to reciprocal influences, but because of similar circumstances in the respective histories of each system or similar if not identical predicate values and presumptions, be they divinely revealed or rationally derived. Counter examples exist, however, and in the area of torts and Jewish law, the most notable would be Jacob Finkelstein's essay on “The Goring Ox,” in which a direct connection is demonstrated between the biblical text pertaining to the required killing of the goring ox and deodandum decedens in English law.