Abstract
This chapter lays the theoretical ground for our comparative perspective by describing the history and jurisprudence of the Jewish Law. It addresses the problem of comparability in legal history in light of modern comparative theories and methodologies. The test-case in this theoretical prolegomenon is the tendency of legal historiographers and religious scholars to study Jewish halakhah and Islamic Shari’a comparatively.
… to the historian of religion, chasing origins is of doubtful value because locating a ‘source’ tells us next to nothing… Rather than asking: Where did it come from? It is more fruitful to ask: What is it about this question that fascinated? And one might also ask: What aspects … made this an interesting question?
Kevin Reinhart (1995, p. 10)
This is a preview of subscription content, log in via an institution.
Buying options
Tax calculation will be finalised at checkout
Purchases are for personal use only
Learn about institutional subscriptionsNotes
- 1.
We distinguish between ‘comparability’ and ‘commensurability.’ While commensurability, as used by legal economists and choice theorists, denotes the proposition that all options or choices can be compared by reference to an external ranking scale, comparability is gained due to an isomorphous relation between the two systems with no reference to an external scaling procedure. See Schroeder (2002).
- 2.
Contrary to the popular adage, apples and oranges are in fact comparable. While apples and spaceships, for example, or apples and liberal values, are much more distinct and thus much less comparable, there is a lot of sense in comparing the two fruits in terms of their price, sweetness, color, weight, nutritional value and so on. On the necessity to presume the existence of ‘universals’ for a comparative project, see Jensen (2001).
- 3.
Sa’id (1978), Kramer (1999, pp. 1–48).
- 4.
Crone and Cook (1977).
- 5.
Hughes (2005), Heschel (2001), Pregill (2007).
- 6.
Idinopulos (2006).
- 7.
Goitein (1980), Kraemer, 1996 Libson observes opposite directions of influence in the formative period of Islam from the tenth century on, see Libson (1989).
- 8.
The philological method illustrates ‘external epistemology’ according to which the validity of textual content is determined with reference to the history of the text’s transmission and the reconstruction of its originality.
- 9.
Hughes (2007), Cohen (2008).
- 10.
Wasserstrom (1995) contrasts the notion of ‘cultural borrowing’ with that of ‘creative symbiosis’ and advocates the latter. Lazarus-Yafeh (1992) takes on a similar comparative project though rejects the aversion of the language of borrowing. Other attractive and meaningful metaphors are of ‘confluence of rivers’—Stetkevych (1973); ‘crosspollination’—Goodman (1999), or ‘whirlpool effect’—Stroumsa (2009).
- 11.
Luther (1996), Paden (1996), Hewitt (1996), Lawson (1996), Segal (2005).
- 12.
This approach is manifested in Ewald’s ‘comparative law as comparative jurisprudence’ thesis. Accordingly, a comparative study of legal systems should not focus merely on contextual data, nor on textual similarities and dissimilarities, but rather on the conceptual self-understanding of the participants in legal theory and praxis. This thesis suggests viewing jurisprudence as the pivotal mean by which an accurate understanding of foreign legal system is to be achieved. The object of legal comparative studies therefore is neither the ‘law in books’ nor the ‘law in action’, but rather the ‘law in the minds’—the consciousness of the jurists’ in particular legal reality, see Ewald (1995a, b).
- 13.
‘For a legal system to be comparable it must fulfill a dialectic relation—it must be simultaneously unified and plural.’ (Valcke 2004, p. 721).
- 14.
A description of Jewish attendance in Muslim intellectual assemblies—majlis—is reported by one of the visitors: ‘At the first meeting there were present not only people of various (Islamic) sects, but also unbelievers, Magians, materialists, atheists, Jews and Christians, in short, unbelievers of all kinds. Each group had its own leader, whose task it was to defend its views, and every time one of the leaders entered the room, his followers rose to their feet and remained standing until he took his seat. In the meanwhile, the hall had become overcrowded with people. One of the unbelievers rose and said to the assembly: we are meeting here for a discussion. Its conditions are known to all. You, Muslims, are not allowed to argue from your books and prophetic traditions since we deny both. Everybody, therefore, has to limit himself to rational arguments. The whole assembly applauded these words. So you can imagine… that after these words I decided to withdraw. They proposed to me that I should attend another meeting in a different hall, but I found the same calamity there.’ (The book of the beliefs and convictions 1970).
- 15.
Obviously, it is associated with common identification of the Law with the ‘Word of God’, the image of God as legislator and the metaphor of the law as the ‘right path.’ The metaphor of the law as the ‘right path’ is well illustrated in the Hebrew term halakhah (הלכה) derives from the root of motion (ha.la.kh, lit. went). Halakhah thus captures the idea of a path and walking after the king or leader implies loyalty and the walking by statutes or laws seems to be a particularly Hebrew appropriation of the metaphor. See Abush (1987), Helfmeyer, 1979 391–2. Likewise the Arabic term Shari’a which means ‘path’ or ‘way’ to go within. However, for various trends in the Jewish Law tradition Halakah is not necessarily associated with social order, but rather with morality or spiritual achievements. In fact, treating Halakhah and Shari’a as legal systems is already a reductionist projection of alien notions. See Kozlowsky (1989).
- 16.
Although Islamic scholasticism used to distinguish between the two reflective disciplines—usul al-dín (i.e. theoretical theology, lit. the roots of the faith/religion) and usul al-fiqh (i.e. legal theory, lit. the roots of the law)—theological presumptions are indispensably considered within the jurisprudential discussions. On its parallels in the western legal traditions, see Evans (2002, pp. 1–5, 27–46).
- 17.
The etic/emic distinction suggests two perspectives in the study of a society’s cultural systems, parallel to the two perspectives used in linguistics studies. Accordingly, the emic perspective focuses on the intrinsic cultural distinctions that are meaningful to the members of a given society. Thus, the native members of a culture are the sole judges of the validity of an emic description, just as the native speakers of a language are the sole judges of the accuracy of a phonemic identification. The etic perspective relies upon the extrinsic concepts and categories that have meaning for scientific observers.
- 18.
‘The national betrayal launched not with the weakening of religion and the decline of faith, but rather with the neglect of language: and the (sages) of Alexandria, which left no remnant in the nation, will prove. Thousands of Jews, which apostatized during the middle-ages, they were all, firstly neglectors of the language, and by that they become nationally annihilated … The endeavors of medieval authors to write in vernaculars should not be counted. These were only practical attempts by which the sages only meant to elucidate the people their opinions in a spoken language. Their main teachings were written in Hebrew, and (indeed) Arabic as literary expression was an exception. From the time of Ben Menachem (i.e. Moses Mendelssohn) and onwards, the adaptation has been formed as a method, because of the immense thirst for emancipation. The writers wanted to show the world their (human) worth—and so the vast danger had begun’ (Bialik 1917).
- 19.
Ps. 106:35.
- 20.
Ezra. 9:2.
- 21.
On the scholarly biases of Jewish historians towards assimilation and essentialism, see Funkenstein (1995).
- 22.
Andrew Jacobs provides a fascinating revisionary perspective on the early Christian hostility to the legal commitment, especially to the Jewish law, see Jacobs (2006).
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
Copyright information
© 2014 Springer International Publishing Switzerland
About this chapter
Cite this chapter
David, J. (2014). Halakhic Comparative Jurisprudence. In: Jurisprudence and Theology. Studies in the History of Law and Justice, vol 2. Springer, Cham. https://doi.org/10.1007/978-3-319-06584-7_1
Download citation
DOI: https://doi.org/10.1007/978-3-319-06584-7_1
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-06583-0
Online ISBN: 978-3-319-06584-7
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)