Routledge Handbook of Religious Laws

Silvio Ferrari, Rossella Bottoni, Silvio Ferrari, Rossella Bottoni

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781315518954
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Much has been written on specific religious legal systems, yet substantial comparative studies that strive to compare systems, identifying their analogies and differences, have been relatively few. This absence undermines the capacity to understand religions and becomes particularly serious when the faithful of these religions live together in the same geographical space, as happens today with increasing frequency. Both interreligious dialogue and dialogue between States and religions presuppose a set of data and information that only comparative research can provide.

This book seeks to address this gap in the literature by presenting a comparative analysis of Christian, Jewish, Islamic and Hindu laws and traditions. Divided into five parts, the first part of the book offers the historical background for the legal analysis that is developed in the subsequent parts. Part II deals with the sources of law in the four religions under discussion. Part III addresses the dynamics of belonging and status, and Part IV looks at issues relating to the conclusion of marriage and its dissolution. The fifth and final part discusses how each religion views the legal other. Each part concludes with exploring what we can learn from a comparative examination of the topic that is dealt with in that part.

Written by leading experts in the field, this book presents a clear and comprehensive picture of key religious legal systems along with a substantial bibliography. It provides a state of the art overview of scholarship in this area accompanied by a critical evaluation. As such, it will be an invaluable resource for all those concerned with religious legal systems, multiculturalism and comparative law.

Part I

History

1

The Jewish tradition

A history

Joseph E. David

Giving an account of a legal tradition that goes back some millennia is by its nature a pretentious task. Depicting the history of Jewish law, of which there is no unitary or trans-historical conception, is even riskier, because each of its components – ‘history’, ‘Jewish’ and ‘law’ – is highly contested and subject to intensely held ideological perspectives. The manifold comprehensions of and attitudes towards Jewish law and its nature, content and meanings raise severe doubts about the possibility of providing a neutral or at least consensual account of its history. Our point of departure, however, is that sketching the history of Jewish law is possible given adherence to the ‘own terms’ of the traditional discourses and an acute awareness of their ideological, theological and academic predispositions. As a starting point, it will be worthwhile to outline the a priori difficulties posed by our task.

History

I suspect that the history of Jewish law is more a matter of historiosophy, i.e., of interpretation and meaning, rather than descriptive historiography, than are the histories of other religio-legal traditions. The historical narration of Jewish law is itself a disputed matter across the generations and one indispensable to ideologies and views concerning the Jewish religion. Tales and theories about the origins of Jewish law, its evolution and its mutability have been, and still are, at the heart of theological and ideological rifts among Jews and non-Jews alike. As a result, we face a variety of contesting histories of Jewish law, each of which is deeply reliant upon a different conception of the essence of Jewish law and Judaism writ large.

Jewish

The juxtaposition ‘Jewish law’ seemingly alludes to an intrinsic link between a law and the attribute – Jewishness¹ – that designates its character, orientation or addressees. Yet this link is evidently a nontrivial statement and definitely not an exclusive one.² Alternate expressions, it must be noted, avoid this connotation and either suggest an independent vocabulary (e.g., mitzvah, din, torah, halakhah) or designate different semantic referents: the origins of the law and its value (‘divine law’³), its constitutive figures (‘Mosaic Law’⁴), territory (‘the law of the God of the land’)⁵ or events (‘Sinaitic law’), its bygone status (‘Old Law’) or its literary sources (‘biblical law’, ‘Hebrew law’, ‘talmudic law’), etc. The meaning of the ‘Jewishness’ of Jewish law, its weight and its content is therefore a crucial question that hovers over any account of the history of Jewish law.

In what sense is Jewish law in fact Jewish? This question is profoundly dependent on even more complex, and in fact open-ended, questions. Who is a Jew? What is the essence of Judaism as a religion? The variety of answers to these questions certainly reflects diverse ideological perspectives, but even among the differing views it might be agreed that the semantic of adjective ‘Jewish’ is diffusive, fluid, interchangeable and to be perceived differently in different contexts.

Law

Even this seemingly straightforward term is quite debatable. There is no consensual term or designation that stands for the ‘law’ of Jewish law (Davies, 2001). A range of rich terminological variations are in use; some of these preserve an original vernacular (e.g., din, mishpat, ḥoq), while others express an equation with, or rather translation to, analogous nomenclature (e.g., nomos, shariah, Gesetz). Understanding the history of Jewish law in its own terms requires attention to the conceptual vocabulary that is used to denote the ‘law’ of Jewish law in each particular context.

In point of fact, the very phrase ‘Jewish law’ is somewhat misleading and might fail to represent our topic in its own terms. The very use of ‘law’ is burdened by a reductive fallacy on two counts. First, using the word ‘law’ simplifies its complexity and narrows the conceptual abundance of the category. Second, so long as the question of what law is remains an open question in Western legal theory, using this term with regard to Jewish law charges that concept with the theoretical baggage of Western understandings and debates about law. In our case, the problem of translation is even more complex, and the affiliation between original vocabulary and external translation is subject to not a little instability. In various discourses, the subjugation of Jewish law to external meanings and conceptions was a choice intentionally made by Jewish thinkers and jurists, so that in such contexts it became the authentic and authoritative manifestation of Jewish law. Further, the entire body of Jewish law never fully reflected a praxis and thus generally was not fully applied, and even those parts that were practiced were not enforced in the common sense, as a materialization of political will and power.

There is no simple and coherent response to these challenges. One might wonder whether these comments could but lead to relativist answers or immense skepticism about the prospect of delineating any historical framework of Jewish law. One might ask whether the history of Jewish law is fundamentally limited to the ‘law on the books’, its doctrines and rules, as well as to whether a linear, systematic and coherent history of Jewish law would be superficial for a history of a ‘law on the books’.

I nevertheless am optimistic about the possibility of providing a plausible account of the history of Jewish law. Still, in light of the above concerns and reasons, I prefer to circumvent the narration of Jewish law and instead focus on the history of the conceptions of it. Avoiding the question of the structural meaning of the history of Jewish law, I will offer a conceptual sequence, rather than portray an evolutionary scheme. Preferring polythetic to monothetic organization,⁶ I will outline a conceptual genealogy of Jewish law based on observable discursive frameworks, suggesting six genealogical layers each of which has at its core a conceptual framework encapsulating a network of ideas and concepts: (a) the biblical framework, (b) the Second Temple Era, (c) Late Antiquity, (d) the Middle Ages, (e) modernity and (f) the twentieth century. Evidence of the coherency of each framework will be offered in correspondence with commonly accepted periodization.

The Bible: a covenantal law

The biblical conception of Jewish law must be understood against the backdrop of ancient Mesopotamian law, which greatly differed from the legal notions of the ancient Greeks. The Western notion of law has roots in both conceptual worlds, which over the ages converged and merged to varying extents.⁷ Even taken as divine law, these two sources are set apart by crucial differences, particularly the meaning of the law’s divinity⁸ (divine inspiration vs. divine origins and authorship) and its aim (application of order and stability vs. fulfilling a divine will). The Greek idea of law focused on relations within a political realm, and although law was considered to be inspired by gods, it was essentially a human-made social device that aimed to cure social deficiencies, impose order and improve communal efficiency.⁹ The validity of Greek law, as a social and communicative vehicle, was dependent on its promulgation, applicability and persuasive capacity. Mesopotamian law meanwhile was understood in terms of divine authorship and heavenly origins. Thus in principle Mesopotamian law was not legislated, but revealed and given – not promulgated, but commanded.¹⁰

Fashioned upon Mesopotamian patterns of engagement with vassals and suzerains,¹¹ the biblical conception presents a given and commanded law that governs relations with the divine superpower. In addition to imposing order and stability, biblical law situates the Israelites in a politico-divine universe, orienting them in relation to YHWH on the one hand, and other nations on the other. Within the biblical covenantal framework, the law gives rise to the belonging of its adherents and designates their singularity, as a chosen people, against the alienness of different peoples, who are taken as consummate ‘others’ to the covenantal community. It is this logic that draws the contour of biblical law. Covenantal commitments precede the law and shape its style and content: the obligatory power of biblical law stems from, and is dependent on, the covenantal relationship between YHWH and the Israelites (Vroom, 2017). Moreover, the main function of the biblical law accordingly is to preserve an existing alliance that otherwise would break apart. To remain valid, therefore, biblical law requires occasional ratifications and timely reaffirmations.

Set within the dynamic of a covenant, divine actions and reactions are indispensable to the law and to its prescriptive power. Obedience to the law and fulfillment of its demands consequentially promise protection, redemption and salvation, while violation of the law is taken as a personal outrage, nothing less than a betrayal, against YHWH Himself. Breaching the law therefore earns expulsion from the communal body (karet)¹² or from the Promised Land, as well as abandonment and loss of power.

The biblical conception of Jewish law thus is that of a divine commandment (mitzvah)¹³ that illustrates the relationship between the Israelite, as protégé, and YHWH, as omnipotent mentor and patron. This conception is pivotal to later articulations and conceptualizations of Jewish law. At some points it merged with additional concepts, and in certain other contexts it was eroded and became peripheral to accompanying conceptions.

The Second Temple Period: an ethnic law

In contrast to classical biblical discourse, throughout the Second Temple Period (530 BCE–CE 70) there is a well-defined ethnic identification of Jews and the Jewish people. In the absence of political independence for most of this period – a time when Jews nevertheless were generally permitted to retain, observe and practice their tradition – Jewish law was chiefly the law designated for the Jews or else deemed an imperial law incumbent upon them. Jewish law through this period was therefore an aspect of the existence of the Jews as ostensive race (genos) or nation (ethnos), and so it was acknowledged as the Jews’ law to the extent the Jews were tolerated and accommodated as a civic body.

The terminology accompanying this conception took several forms in Aramaic and Greek vernacular. Ezra’s royal commission to reconstitute the Jewish community and religious presence in Achaemenid Judea privileged the Jews with a personal choice between the laws of Ezra’s God and the royal laws, given as two exclusionary options, and ‘whoever does not obey the law of your god (דָּתָא דִי-אֱלָהָךְ) and the law of the king (דָתָא דִּי מַלְכָּא), let judgment be strictly executed on him.’¹⁴ Three centuries later, the charter of the Seleucid king Antiochus III authorized the Jews in Jerusalem to live in accordance with their ‘ancestral laws’ (πατρίους νόμους),¹⁵ and papyrological evidence from the second century BCE reflects a reality in which Alexandrian Jews followed the ‘civic law of the Jews’ (νόμον πολιτικὸν των Ιουδαίων) (Modrzejewski, 2004).

At its core, the conception of Jewish law as the law of the Jews did not vary from the biblical conception. At its heart is the idea of the law as the will of God, expressed as divine commandment and commanded to His chosen people. In thi...

Table of contents

• Cover Page
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Contributors
• Introduction: Religious Laws and Their Comparison – Theoretical and Methodological Issues
• Part I History
• Part II Sources of Law
• Part III Dynamics of Belonging and Status
• Part IV Marriage
• Part V The Legal Other
• Index