Laws Of Torah Research Articles

Autonomy in Jewish Law—In Theory and in Practice

Individuals and communities play critical roles, both theoretically and practically, in the preservation and development of Jewish law. Some of these roles allow for considerable autonomy, at least if that term is understood as the employment of one's intellectual creativity and ethical judgment. Jewish law does not purport to micromanage all of a person's decisions. Quite the contrary, in many instances, it provides and encourages moral choice so that, in part, a person can become a moral agent rather than merely someone who does moral acts.In Part I, we examine how the scope of autonomy is shaped by basic Jewish law axioms. For example, Jewish law assumes that the Pentateuch, also known as the “Written Torah” or “Written Law,” contains words which were communicated to humankind directly by God. Yet, unlike the approaches of some fundamentalist religions, Jewish law does not always construe these divine words literally. In fact, Jewish law authorities openly acknowledge that various Pentateuchal passages, taken by themselves, are incomplete, incomprehensible or at times ostensibly inconsistent. Jewish law assumes that God transmitted to humankind two interrelated bodies of teachings: one, the Pentateuch, was to be written down, and the other, known as the “Oral Torah” or the “Oral Law,” was to be transmitted from Teacher to Student. It is the Oral Torah that clarifies, resolves and supplements the Written Torah. Indeed, because the Oral Torah is necessary to understand the Torah, Jewish legal sources say that “the Oral Torah is the more important of the two.” Throughout this article, unless stated to the contrary, the term “Torah” refers to the Written Torah, the Oral Torah, or both, and the phrase “Torah Law” pertains to the laws that arise from the Torah.

Re-examining Progressive Halakhah (review)

Reviewed by: Re-examining Progressive Halakhah Martin Lockshin Walter Jacob and Moshe Zemer , eds. Re-examining Progressive Halakhah. New York: Berghahn Books, 2002. Pp. ix + 188. The most recent offering in the continuing series of publications of the Solomon Freehof Institute of Progressive Halakhah is not a simple book to review, since the questions of genre and of audience are not clear. The book is a collection of five basically unrelated articles by five authors. They are preceded by an unsigned introduction that is just over one page long and that does not really explain how these five essays turned into a book. It makes most sense to categorize this publication as a "journal volume." The theme of the journal seems to be "essays on halakhic issues written from a progressive (= Reform) perspective." As in many journal volumes, the quality of these five essays is uneven. The methodology and goals of the essays are also very different. Four of the essays put forward implicitly and often explicitly a similar argument: that halakhic texts can be read and studied in a liberal manner, and that such a reading is legitimate and is also what is called for in the twenty-first century. "Halakhah does not and need not conflict with the progressive values that must form the basis of our Jewish experience," we are told (p. 5). These essays make the case that the halakhists of old often interpreted legal traditions flexibly and liberally and have set an example for us today. In that sense these four essays are all forms of an apologia for liberal halakhah and contain very little analysis of or re-examining of liberal halakhah. The fifth essay, Joan S. Friedman's "A Critique of Solomon B. Freehof's Concept of Minhag and Reform Jewish Practice," is of an entirely different genre. Although Rabbi Friedman's sympathy for and admiration of Rabbi Freehof is obvious, she still gives a dispassionate, critical, academic analysis of his exposition of Reform halakhah. She shows that Freehof (presumably knowingly) expanded the concept of minhag (custom) to include sections of Jewish law that previously had never been seen as being subject to the consideration of minhag. She suggests further that Freehof's highest goal was making Judaism more progressive and more modern, and blurring a halakhic concept was a legitimate tool in reaching such an end. Friedman demonstrates further that Freehof tacitly redefined minhag "in order to equate it with what he labels Reform 'practice.' However this equation is flawed, as is his historical analysis, rendering his entire approach problematic" (p. 127). [End Page 377] In any review of essays that deal with halakhah—particularly essays in the English language—it is prudent to ask whether the authors demonstrate a mastery or even a clear understanding of the primary sources. Here too the results are mixed. Some of the essays demonstrate excellent textual skills. For example, Mark Washofsky's "Taking Precedent Seriously" walks the reader clearly through a number of complicated texts, including a not very well known responsum of Rabbi Isaac bar Sheshet Perfet. Washofsky presents the halakhic issues involved in a clear, concise, and accurate manner. Perhaps some might quibble with the conclusions that he draws but no one could challenge his skills as a reader of rabbinic texts. Regrettably that is not the case for some of the other essays in this volume. Misunderstandings or misrepresentations of rabbinic texts abound. A few examples follow. In "Jewish Law Responds to American Law" by Alan Sokobin we are told that in the second century, reacting to the Roman political authority, Rabbi Judah initiated changes in the rules about conditions that contradict Torah law. The article attributes to Rabbi Judah the following words: "This is the rule, any condition contrary to what is in the Torah is invalid if relating to the a [sic] matter of mamon [i.e., a monetary manner]; if relating to a matter other than mamon, it is void" (p. 137). This quotation is very hard to understand and is perhaps meaningless. But even more than that, it is not to be found on the page in the Talmud that is cited (bKet 5ba Ket 56a) nor, as...

Restorative Justice and the Jewish Question

While the particular languages of our differing religious traditions do not seem to me to be good bases for a public criminal law, they are useful for considering familiar issues in an unfamiliar light. I therefore offer a reading of a set of unfamiliar texts from the Talmud, one of the foundational texts of the Jewish tradition, to make two basic points about criminal law with some applicability to the restorative justice debate. At the same time, their language and structure should illustrate how disparate our traditions are. First, criminal law should have a limited, nontranscendental goal. Torah law, like some of the more religious manifestations of restorative justice, claims divine authority and aims at ultimate justice - but the Jewish texts demonstrate that consistent working out of that view leads to the conclusion that ideal criminal law is impossible for humans to administer. In our democratic state, our goals should be less lofty; but the Jewish law experience suggests, I argue, that we nonetheless ought to be wary of the hubris inherent in any criminal law. Second, the Jewish law debate provides an alternative justification for the restorative justice emphasis on mediation and mutual agreement. Criminal law, in the end, must be defended on empirical grounds: primarily that it works to reduce crime and secondarily that it mitigates the pain caused by crime it fails to prevent. The historical experience of Jewish law's attempts to substitute mediation for coercion offer qualified support for the community-based mediation techniques of some versions of restorative justice. Mediation and compromise can be based in the spirit of humility that is appropriate when humans try to judge things that, in an ideal world, would not be judged by those of only human abilities. In short, this Article attempts to demonstrate the futility of particularist, religious-law based criminal law, using itself the language and traditions of a particular religious law system. If it succeeds, it will simultaneously illustrate the universality of the underlying concerns and the particularity of the language in which we debate them.

Legitimation in the Letter to the Hebrews: The Construction and Maintenance of a Symbolic Universe

Going Outside the Camp: The Sociological Function of the Levitical Critique in the Epistle to the Hebrews, by Richard W. Johnson. JSNTSup 209. Sheffield: Sheffield Academic Press, 2001. Pp. 177. $95.00. Legitimation in the Letter to the Hebrews: The Construction and Maintenance of a Symbolic Universe, by Iutisone Salevao. JSNTSup 219. Sheffield: Sheffield Academic Press, 2002. Pp. viii + 448. $145.00. A relatively small number of book-length studies have taken an avowedly sociological approach to Hebrews in the few decades since critical scholars began adopting social-scientific methods and models for studying the NT. Two new monographs attempt to fill this gap. One employs Mary Douglas's group-grid model to analyze the author's critique of the Levitical system, while the other draws on the insights of Peter Berger and Thomas Luckmann in the field of sociology of knowledge. Both works throw into relief the promise as well as the pitfalls attending the appropriation of the social sciences to shed light on the NT and the world that produced it. Richard W. Johnson seeks to elucidate the sociological function of the Levitical critique in Heb 7:1-10:18, to flesh out the type of implied or projected by the critique, and to note the differences between this ideal and the first-century Hellenistic Judaism from which the author and audience emerged. He aligns himself with the mode of inquiry exemplified by Douglas, whose paradigm relating the character of a given to the cosmology of that focuses special attention on the function of ritual and attempts to understand why some societies deemphasize or reject ritualism. This feature of the group-grid model laid out in chapter one makes it particularly well suited for studying the cultic section and eliciting indirect information on the larger purpose and cultural background of the letter. Notwithstanding the limitations of any study relying on literary sources and the degree to which Johnson compounds the problem by looking almost exclusively at Philo and Josephus (with brief glances at Paul, Luke-Acts, and rabbinic literature), the description in ch. 2 of Hellenistic Judaism in the first century as a strong-group, strong-grid within the larger Greco-Roman world should meet with few objections. The clear boundaries marking out Jews as a distinct subculture over against Gentiles (strong group) can be seen in the writings of pagans familiar with Judaism such as Tacitus, Plutarch, and Diodorus Siculus. Defining characteristics include aniconic monotheism, devotion to the temple, and above all adherence to the laws of Torah, such as observance of the Sabbath, feasts, dietary laws, circumcision, and endogamy. Temple and Torah likewise function as grid markers by means of which interactions between Jew and Jew are regulated. Johnson's thumbnail sketch of a stratified Jewish in this period will strike few observers as overdrawn. By contrast, the implicitly described ideal society found in Hebrews and analyzed in ch. 3 is weaker in terms of both group and grid than first-century Judaism. Johnson classifies Hebrews as a weak group because the author's use of boundary imagery, while pervasive, is almost always in reference to boundaries that are transgressed. Such emphatic boundary-crossing (e.g., 4:11; 6:19-20; 9:12, 24; 13:11-14) implies that the community is open to interaction with outsiders (p. 75). It is undeniable that the author makes extensive use of boundary crossing language, and it is highly probably that the implied is open to outsiders. The latter, however, does not follow inexorably from the former because the boundary markers in Hebrews identified by Johnson are not really of the sort that separate outsider from insider as do those separating Jew from Gentile detailed by Johnson in ch. 2. Simply, from the prevalence of such generic boundary language it does not follow that the implied by Hebrews lacks a strong sense of group identity. …

The Impact of Jewish Values on Marketing and Business Practices

Judaism, which relies on the Torah for its written law, has had a great impact on marketing and business. The Torah is replete with precepts dealing with business, and the Talmud, the source of Jewish oral law, elaborates and expands Torah law. The process is ongoing, and rabbinical authorities today build on the decisions of their predecessors to apply Jewish law to modern problems. Some of the issues examined in this article include honesty in the marketplace, fair pricing, employer-employee relations, and environmental issues. Jewish law is not only concerned with practical legal advice but in encouraging individuals to go beyond the requirements of the law and practice the “way of the pious.” Judaism does not have a negative attitude toward business and wealth—indeed, most of the Talmudic sages had occupations, and some were quite wealthy—but riches must be acquired honestly and used to help the poor, the needy, and the stranger.

Rereading the Rabbis: A Woman's Voice (review)

136 SHOFAR Winter 1999 Vol. 17, No.2 Rereading the Rabbis: A Woman's Voice, by Judith Hauptman. Boulder, CO: Westview Press, 1997. 285 pp. $26.00. Judith Hauptman's Rereading the Rabbis: A Woman's Voice is a different kind of feminist book on the Talmud from any that has been written until today. It is written from the perspective of a female scholar who is completely devoted, herself, to the continuation of the practice of traditional Judaism (what might even be called "Orthodox" Judaism, were that not such a misnomer in general). Accordingly, the book will not look feminist to many western bourgeois feminists, just as the feminism of women activists in many parts of the world does not appear feminist from that perspective. But it is. What is so exciting about this book is that it shows what can be learned when loving feminist attention is turned to these texts precisely from a position ofcritical identification with them. In searching for a contemporary re-vision ofJewish traditional life that will answer the feminist demand (i.e., the demand of the feminist within) for gender justice, Hauptman develops a unique methodology. Rather than judging or defending (polemic or apologetic) the Rabbis and their "attitudes" or practices with respect to gender, Hauptman seeks a dynamic method of description. What was the direction of rabbinic thought on gender? Was it leading in what we would call a progressive direction vis-avis its authoritative text and past, the Torah, or was it tending in a direction of greater and greater oppression and exclusion of women? In the past, many have argued for the latter option. The great innovation of Hauptman's book is that it arduously argues for the former, and largely convinces. Let us be absolutely clear. Hauptman is not arguing that the Rabbis were feminists. Indeed, she is quite clear that the opposite is the case. She does characterize them, however, as anti-misogynists by and large, and as seeking to ameliorate the legal situation of women, as "helpful to women"-benevolent patriarchs and patrons of women. The greatest virtue ofHauptman's work is that it is the work ofa talmudic scholar. Nearly none of the feminist work on rabbinic culture, society, or even law has been done by fully trained talmudists. This enables her, in both the detailed care ofher view and its broad scope and intake, to much more accurately assess what was actually going on in the texts with respect to particular issues having to do with the welfare of women and girls. Thus, to take one of her own most striking examples, the Rabbis seriously reduced the number of cases in which the biblical fme for rape was to be paid. Typical scholarship would pay attention to this fact and conclude that the Rabbis were making light ofrape or protecting male privilege, while Hauptman discovers that in fact what was going on was that the fixed fme for rape was being eliminated in all of those cases, Book Reviews 137 infavor ofa more stringentpunishment. In fact, the Rabbis were maintaining the letter ofthe Torah's law ofrape by reducing its applicability to a minimUm, while at the same time producing their own, much more stringent rape law. This is consistent, of course, with a rabbinic culture which, as has been shown, was one ofthe fIrst, if not the fIrst to be sensitive to and condemnatory of rape within marriage as well. In her commitment and love for rabbinic Judaism and its tradition, Hauptman takes on its most diffIcult moments for feminists and exposes them to the light of day. This is apologetic in the best sense of the word, that is, an honest defense against calumny. Perhaps better would be to adopt the usage of St. Clair Drake, who uses the term "vindicationist." She pursues this project of frank vindication, I think, in the spirit of Franz Rosenzweig, who wrote: Why has the word apologetics acquired such a bad reputation? The same seems to be true of the apologetic profession par excellence, that of the lawyer. A general bias against him sees his legitimate task, as it were, as lying. Perhaps a certain professional routine...