Abstract
This chapter deals with the tension between law and violence in Talmudic jurisprudential thought. As a test case for the law-violence ambivalence we examine a Talmudic norm according to which violence might be legitimized where civil cases are indeterminable due to lack of evidence. Our analysis shows that while ancient sources legitimized extra-legal violence, medieval thinkers neutralized the norm and reduced it to economic procedures. Our exploration also reveals cases involving the justiciability, honor and stability of legal institutions.
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Notes
- 1.
A brief analysis of this view in the writings of Austin, Bentham and Holmes can be found in Riga 1983.
- 2.
In fact, the symbiotic approach is based on a neutralized notion of violence and so differs from the antithetical approach. In other words, while the antithetical approach is compatible and coherent with the definition of violence as inappropriate aggression, and therefore views violence as a condemned act, the symbiotic approach neutralizes its normative sense and treats it in descriptive terms. Basically, neutralizing violence enables its legitimization. Hence the two approaches essentially differ in their fundamental views on the question of whether violence as a phenomenon carries normative sense at all.
- 3.
Benjamin 1996.
- 4.
Derrida 1989. Derrida’s remarkable essay highlights three fundamental features of the law—its universality (the law always tends towards universality), the essentiality of rights (the law operates to maintain, and thus is inseparable from, rights) and its concern with self-preservation (the law is bound up with the silence of its own force, and is self-preserving). For one of many good reflections on Derrida’s claims see Buonamano 1998.
- 5.
Cover 1985–1986. To this form of thought we should also add Austin Sarat’s approach, see Sarat and Kearns 1991. An interesting point of view on this relationship is expressed through the claim that ‘law is simply one of many mechanisms human beings have developed to give moral meaning to violence’; see Brooks 2002–2003.
- 6.
The original meaning of the Aramaic root a.1.m is: strong, aggressive and big. According to R. Nathan ben Jehiel of Rome there is a semantic connection between the Aramaic verb (א.ל.מ) and the Arabic root (ا.ل.م) which in its second and fourth derived stems means to cause pain, suffer, agony etc. ( Aruch Completum, s.v. ‘alim,’ 1:97). The use of this term in Talmudic literature is widespread, and alongside the physical meaning it also denotes a normative status, of the Mishnah (b Shab. 12a), court (b Git. 36b) and more. However the formula kol dea’lim gavar is manifesting the possessive right achieved by the aggression of the stronger.
- 7.
The ordeal seems to have been confined to Germanic legal practice. The ordeal is a test employed under fixed conditions to discover the will of God in matters involving the innocence or guilt of human beings. Ordeals can be divided into three types according to their aims: (1) natural, as when arrows are shot to determine which road to take (Ezek. 21:21), as when priests are chosen by lot in Rome or in Tibet, as when the choice of animals to be sacrificed in the Temple is determined (m Tam. 4:3-5:1), or as when settlers want to know who is to rule; (2) truth of property or ownership claim; (3) guilt or innocence when a charge is preferred against someone. This last type could be perceived as unilateral procedure when fire, water swallowing, lots, etc. are used on a suspected violator and multilateral procedure when battle decides the issue. For more on this, see Bloomfield 1969.
- 8.
The Romans saw the duel as a barbaric habit lacking any legal value. In contrast, there are many indications that the duel was practiced as legal procedure in antiquity. The appearance of the duel as an accepted legal procedure in Europe was due to the influence of Germanic tribes. Following them, the duel became a common legal practice all over Europe. An extensive legislation of the duel’s rules is found in the orders of Lewis the Pious, the Frankish King from 819 A.D. Using this fact and other sources, we can estimate that during the ninth century this practice was widespread throughout Europe. From the Germans this practice was transmitted to France, where it flourished mainly during the period of the customary law-the twelfth century-and the knightly culture developed there. The Frankish kings saw there a means for limiting the judicial power of the independent vassals. Therefore, it was a form of legal procedure open to every free man, and in some cases, such as under the kingship of Louis the Sixth, the right to participate in duels was bestowed also for slaves.
- 9.
Morris 1975; Brown 1984a; Baumgarten 2011.
- 10.
The idea that God is revealed through violence deeply rooted in the theology of the Bible where God is described as a warrior who reveals His power in the battlefield. This idea of course stands on the basis of Jewish and Christian apocalypses that visualize the day of the Lord as a harsh battle and therefore describe the expected revelation as ultimate violence. On the Biblical image of God as a warrior, see Miller 1965; Brettler 1993. On the biblical idea of the ‘Day of the Lord,’ see von Rad 1959. A different opinion is suggested by Weiss 1992.
- 11.
Since the ninth century the church decisively objected to the duel as a legal procedure and rejected all reference to it. Nevertheless, the duel continued to be practiced in Europe until the sixteenth century. Since then the duel shifted from being a legal procedure to being a social institution that confers honor, namely an institution used to recover honor or to refute accusations of cowardice. See Baldick 1965.; Kiernan 1988.
- 12.
Allen and Reed 2006.
- 13.
This idea is quite early and it appears already in Tannaic sayings, ‘R. Joshua said: There are four acts for which the offender is exempt from human judgment but liable to the heavenly judgment. They are these-(I) To break down a fence in front of a neighbor’s animal (so that it gets out and does damage); (2) To bend over a neighbor’s standing corn in front of a fire; (3) To hire false witnesses to give evidence; and (4) To know of evidence in favor of another and not to testify on his behalf’ (b BK 55b). Later in the Talmud, we find additional examples such as ‘… a case of a man who does work with Water of Purification or with the (Red) Heifer of Purification… the case of one who placed deadly poison before the animal of a neighbor… the case of one who entrusts fire to a deaf-mute, an idiot or minor (and damage results)… the case of the man who gives his fellow a fright… the case of the man who, when his pitcher has broken on public ground, does not remove the potsherds, who, when his camel falls does not raise it… the Sages hold that he is exempt from human judgment but liable to the heavenly judgment’ (b BK 56a).
- 14.
Halbertal 1999, pp. 30–33.
- 15.
It should be noted the medieval halakhic sources oriented in Germany mention duel and ordeal as widespread practices in the local legal systems differing form Jewish legal practices. For example, Gershom ben Yehuda (Me’or HaGolah, 960?–1028) in one of his halakhic writings presents his solution to suspicious stolen property as against the solutions suggested in the local legal systems: ‘… and every non-Jewish is suspicious in that lost property which didn’t returned (that object, should) put his hand in the fire according to the local rules of the gentiles. And on Reuben’s property they made time for dueling …’ ( Réponses Rabins Français et Lorrains, 97, 54–55).
- 16.
On the use of ordeal in the medieval rabbinic tradition see Eidelberg 1980.
- 17.
Some readings of this expression tend to blur the meaning of violence conveyed in the term a’lim. Therefore they prefer the following translations: ‘the stronger one prevails’ or ‘the stronger shall prevail.’ However, the reasonable semantic connection to the Arabic meaning (see supra note 6) supports our translation that also conveys the meaning of violence.
- 18.
Maimonides describes this norm in terms of being privileged; see Mishneh Torah, ‘Laws of Neighbors’, 3:10.
- 19.
b BB 34b.
- 20.
ibid.
- 21.
Textually this ruling follows a series of rulings dealing with various regulations regarding the prosperity of society or fixing public norms such as ‘for the order of the world’ העולם) ;תיקון lit. repairing or healing the world).
- 22.
b Git. 60b.
- 23.
Apparently the position attributed to R. Huna b. Tahalifa reflects late editorial rationale which prefers to bestow the Sages’ disputations a canonical status, and therefore has the interest of preserving the disputation and not deciding on one side or the other (see p. 30 above). Yet we should also note that R. Huna b. Tahalifa’s pattern generally is not followed apart from very few exceptions. One unique example can be seen in the writings of Rabbi Meir b. Barukh of Rottenberg (1215–1293), in which he avoids determining the dispute between his rabbinical authorities and therefore he ruled KDG—‘… since it is unclear for us whether the right ruling is according to Rashi’ (Solomon b. Isaac; 1040–1105) or Rabbenu Tam (Jacob b. Meir; 1100–1171) … we say KDG and if partners are stronger in holding the eastern (side) they obtain possession’ ( Mordekhai on b BB, 507, 86a).
- 24.
m BM 1:1. Medieval halakhic authorities frequently quote R. Hananel’s saying. The above quotations are taken from commentary on the Talmud attributed to R. Moshe b. Nachman (1194–1270), see Nahmanides Novellae, on BM, 1.
- 25.
שווה שניהם שיד ;במקום lit. wherein their physical possession is initially equal.
- 26.
See Piskei Ha-Ryid to Bava Metsia, p. 3.
- 27.
His response of reinterpreting this Talmudic norm in a manner that weakens the moral problem is indeed typical of post-Talmudic scholars who are trying to resolve problematic aspects of the Talmudic regulations.
- 28.
Piskei ha-Rosh, Bava Batra, 3:22, 368. His position appears elsewhere in his writing and is widely quoted in medieval rabbinic literature.
- 29.
On the normative status of takkanah see Elon, Jewish Law, II. p. 477.
- 30.
A parallel stance is founded in a contemporary halakhic authority, Menachem b. Shlomo HaMeiri (1249–1315): ‘And you have learned in your own way that whenever two are arguing about one matter-one says: ’It is mine’ and the other says: ’It is mine’; one says: ’It belonged to my fathers’ and the other says: ’It belonged to my fathers’-and it cannot be resolved, it is not in the possession of either party, and the thing is not handled by court, or by any person; It is not under the jurisdiction (of the court), and the one who is more violent prevails. After one of them has overcome the other, (the court) will consider the claims for expropriating it from him.’ ( Beit HaBechirah , on b. BB 34b).
- 31.
Luntschitz, Kli Yakar, on Gen. 1:1
- 32.
Paraphrase based on Ps. 58:11.
- 33.
Paraphrase based on Prov. 28:24.
- 34.
Indeed, this is a fascinating example of theological and literary critique of the law that uses the narrative to undermine the legal approach altogether. The violent possibilities offered by the law and which are expressed by KDG are seen as enormously dangerous. The implicit recognition that there are cases that may not be susceptible to judicial resolution is tantamount to admitting that there are times when the divine judge is absent. (There is no law and no Judge and therefore the one who is more violent prevails.)
- 35.
Summa Theologica, II. 91. 1–5. On the Scholastic and Christian background of Albo, see Guttmann 1955; Husik 1925.
- 36.
On Albo’s use of the term ‘religion’ to mean a legal system see Lerner 1964; Melamed 1989; Ehrlich 2006.
- 37.
‘There are three kinds of law, natural, positive and divine. Natural law is the same among all peoples, at all times, and in all places. Positive is a law ordered by a wise man or men to suit the place and the time and the nature of the persons who are to be controlled by it, like the laws and statutes enacted in certain countries among the ancient idolaters, or those who worship God as human reason dictates without any divine revelation. Divine law is one that is ordered by God through a prophet, like Adam or Noah, or like the custom or law which Abraham taught men, instructing them to worship God and circumcising them by the command of God, or one that is ordered by God through a messenger whom He sends and through whom He gives a law, like the Law of Moses.’ (Albo, Book of Principles, I:7, pp. 38–39).
- 38.
‘The purpose of natural law is to repress wrong, to promote right, in order that men may keep away from theft, robbery and murder, that society may be able to exist among men and everyone be safe from wrongdoers and oppressor.’ (ibid.).
- 39.
‘The purpose of the positive law is to suppress what is unbecoming and to promote what is becoming, that men may keep away from indecent deeds according to human opinion. Herein lies its advantage over natural law, for positive law also controls human conduct and arranges their affairs with a view to the improvement of human society, even as natural law.’ (ibid.).
- 40.
‘The purpose of divine law is to guide men to obtain true happiness, which is spiritual happiness and immortality. It shows them the way they must follow to obtain it, teaches them the true good that they may take pains to secure it, shows them also real evil that may guard against it, and trains them to abandon imaginary happiness so that they may not desire it and not feel its loss. And in addition it also lays down the rules of right that the political community may be ordered in a proper manner, so that the bad order of their social life may not prevent them from attaining true happiness, which is the ultimate end of the human race to which they are destined by God. Divine law is therefore superior to positive law.’ (ibid.).
- 41.
Albo, Book of Principles, III: 15, pp. 232–234.
- 42.
It is not really clear whether he sees an essential linkage between violence as a norm and the agrarian society. Nevertheless, it is plausible that such a linkage is reflected in his view of the feudal structure which he is willing to locate in the tri-functional typology he develops. On the other hand, perhaps this linkage is a consequence of his hermeneutical move that connects this structure to Adams’ three sons and mainly to the tension between Cain and Abel.
- 43.
Albo’s distinction between violence and political power definitely recalls the distinction made by H. Arendt in her concluding analysis of both notions: ‘Power and violence are opposites; where the one rules absolutely, the other is absent. Violence appears where power is in jeopardy, but left to its own course, it ends in power’s disappearance’ (Arendt 1970, 65).
- 44.
The identification of the fundamental justification of KDG in reference to Natural Law was made by Atlas 1978. Atlas’s analysis of Talmudic discussions and post- Talmudic commentaries lead him to associate the halakhic category hefker (ownerless property and renunciation of ownership) with the idea of Natural Law. Regarding that, it should be noted that in classic Roman Law there exists a conceptual connection between legal categories of ownerlessness ( derelictio, res nullius) and Natural Law. An example of such connections can be seen in the following: quod enim nullius est, id ratione naturali occupandi conceditur (Dig. 41.1.1).
- 45.
Quoted in Sefer Terumat Ha-Deshen, p. 352, 313.
- 46.
There are two medieval versions of Samuel ben Meir’s position. Alongside the one quoted above there exists a similar one which makes the same claim in different terms: ‘Maybe the witnesses will show up and refute the verdict ruled by the court, therefore the court is not troubled for them to judge a case likely to be a distortion, rather leave the parties and KDG until witnesses come and clarify the case’. (Samuel b. Meir, Commentary on b. BB 35a).
- 47.
This source is found in a sixteenth century collection of mid-medieval commentaries on the Talmud and rabbinic responsa collected by Bezalel b. Abraham Ashkenazi (1520-91/4), see Shitah Mekubetset, on b BB 34b, p. 148.
- 48.
In that sense the tactical advantage here is certainly related to the question of justiciability, where the court is provided with techniques for refraining from deciding cases on the merits when doing so would be imprudent. Though the doctrine of justiciability generally addresses the interface of political and legal issues, our exposition here offers an understanding that stretches the court’s non-justiciabilities to the border of law and violence.
- 49.
Justiciability is usually explained through three approaches: (1) The classical approach, which inquires whether there exist affirmative grants to the limits of jurisdictions; (2) The functional approach, which takes pragmatic, efficiency-oriented inquiries to the ability of the judiciary to resolve the controversy; (3) The prudential approach, which includes sensitivity to the necessity of judicial respect for other branches of government, and the potential for embarrassment of incoherency or inconsistency; see Smith 1992.
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David, J. (2014). Law and Violence. 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_5
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