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Link Roundup, Religion, Race, Rights

January 31st, 2011

The Law and Politics Book Review has posted a review of Religion, Race, Rights: Landmarks in the History of Modern Anglo-American Law by Eve Darian-Smith. From the review:

While Darian-Smith’s thesis is that modern western law is not nor ever has been rational, objective, and secular, she offers a persuasive counter-argument largely backed up through the evidence: the proper norm to view Anglo-American law over the last five centuries is through religious exclusion on the one hand and racial discrimination on the other (the latter of which has been fueled by capitalist exploitation).

Link Roundup, Religious Liberty

January 31st, 2011

Brian Leiter (University of Chicago Law School) has posted a draft of the final chapter of his current book project, Why Tolerate Religion?, to SSRN. From the abstract:

The two main conclusions from earlier in the book that are presupposed in this draft chapter are that: (1) the moral value of liberty of conscience is not specific to claims of "religious" conscience; and (2) there are claims of conscience that are not "religious" in character (however precisely religion is understood)...The draft chapter explores the question: what should become of the law of religious liberty in light of these conclusions? Should we opt for a scheme of universal exemptions for claims of conscience, or are there reasons to think that no exemptions for claims of conscience, religious or otherwise, are justified?

Link Roundup, Martin Luther and the Law

January 28th, 2011

Martin Luther and the "political" use of the law: A new translation of Johannes Heckel’s work, Lex Charitatis aims to show "how Luther saw the various uses of the law fitting together in a systematic way."

Link Roundup, Talmud: The Back Story

January 27th, 2011

Talmud: The Back Story

Link Roundup, Lincoln and Biblical imagery

January 27th, 2011

Wilson Ray Huhn, University of Akron School of Law, has posted A Higher Law: Abraham Lincoln's Use of Biblical Imagery to SSRN. From the abstract:

This article describes Lincoln’s use of biblical imagery in seven of his works: the Peoria Address, the House Divided Speech, his Address at Chicago, his Speech at Lewistown, the Word Fitly Spoken fragment, the Gettysburg Address, and the Second Inaugural. Lincoln uses biblical imagery to express the depth of his own conviction, the stature of the founders of this country, the timeless and universal nature of the principles of the Declaration, and the magnitude of our moral obligation to defend those principles.

Link Roundup, Constitutional Design in the Ancient World

January 27th, 2011

Adrian Vermeule and Adriaan Lanni, both of Harvard Law School, have posted Constitutional Design in the Ancient World to SSRN. From the abstract:

This paper identifies two distinctive features of ancient constitutional design that have largely disappeared from the modern world: constitution-making by single individuals and constitution-making by foreigners. We consider the virtues and vices of these features, and argue that under plausible conditions single founders and outsider founders offer advantages over constitution-making by representative bodies of citizens, even in the modern world.

Link Roundup, American and Jewish Law

January 25th, 2011

Can states prevent American courts from considering and/or enforcing Jewish law?

Link Roundup, Lloyd on Originalism

January 25th, 2011

Harold Anthony Lloyd, Wake Forest School of Law, has posted an article to SSRN critiquing what he posits to be two very different forms of Originalism: Justice Thomas's and Justice Scalia's.

The Two Faces of Cuneiform Legal Writing

January 25th, 2011

by Shalom E. Holtz Review of Writing, Law, and Kingship in Old Babylonian Mesopotamia by Dominique Charpin, translated by Jane Marie Todd (Chicago: The University of Chicago Press, 2010) 182 pages In ancient Mesopotamia, law went hand-in-hand with writing. Almost since the very invention of writing in this region five millennia ago, scribes recorded legal transactions, such as sales, marriages, adoptions and wills, in cuneiform script on clay tablets.  Royal ideology led kings, most famously Hammurabi of Babylon (ruled 1792-1750 BCE), to promulgate written law “codes” that proved that they were just rulers. However deep the connection between law and writing may have become, it probably began for practical reasons.  In order to provide social stability, law required enduring records, and writing met that need. In this book, Dominique Charpin studies cuneiform texts from the first four centuries of the second millennium BCE, known to Assyriologists as the Old Babylonian period. At this early stage, the practical origins of legal writing are most apparent. For example, Charpin devotes a chapter to the custom of transferring to the purchaser, at the time of sale, any old deeds pertaining to a property, so that the purchaser would have proof of the transaction's legality and could thereby avoid conflicts with any previous owners (53-69). In one remarkable Old Babylonian case, a bill of sale describes a plot of land not only according to the plot's current situation, but also based on tablets dating back more than 180 years (66-67)! Only a written record could have provided the required information; oral collective memory would have failed. Similarly, when Hammurabi produced his monumental “code,” he declared his hopes in the text's literary epilogue: “May my justice prevail in the land . . . may my name always be remembered favorably in the Esagil temple which I love.”  If his goals were widespread distribution and permanence, then only writing-- to be sure, not on a small clay tablet like most cuneiform legal records, but, more impressively, on a black diorite stele seven feet tall-- could have achieved them. And even Hammurabi himself could not have imagined just how successful his venture would be: ancient scribes were still copying his “code” almost one thousand years after he first wrote it (81), and, after being unknown for a longer time, the Code of Hammurabi has resumed a rightful place in contemporary intellectual discourse. Given law's very practical uses of writing, one might imagine that cuneiform legal documents would be clear records that remain accessible to a large degree. Charpin, however, reminds modern students that they face difficulties even beyond the obvious problems like broken texts, at least two languages (Akkadian and Sumerian) and a multivalent, non-alphabetic writing system.  In order to become competent readers of cuneiform legal texts, they must “learn the conventions that governed the composition of the various sorts of writings and thereby learn to decode them correctly” (2).  To this end, Charpin presents an “outline for a diplomatics of Mesopotamian documents,” which surveys these texts' formal characteristics and how they were produced and kept in ancient archives (25-42). With this study, he begins to bridge the cultural chasms between the ancient texts and their readers today. Charpin's acknowledged Assyriological expertise brings him about as close as a modern scholar can come to the level of an ancient reader's competence.  Yet even (perhaps especially) Charpin recognizes the limits of the written word in any particular cuneiform legal text, limits that even the ancient scribes themselves might have faced. According to Charpin, Old Babylonian Mesopotamia was “a civilization with two faces,” a culture of “paradoxical character” (127). Writing, especially pertaining to law, is just one expression of this. Legal texts could serve as written proofs of transactions that were solemnified not by writing, but by non-written symbolic gestures and ritualized practices (43-52). Similarly, Old Babylonian kings frequently issued written “restoration edicts” (comparable to the biblical Jubilee), but the available edicts demonstrably draw on older ones, so that the specifics of the “restoration” could not have applied at the time of promulgation (95). And, despite Hammurabi's express desire to make his justice “prevail in the land,” and Charpin's new evidence that the “code” may have actually been applied, local customs remained, especially in areas that these laws did not address (79-82; 129). In short, for all their explicitness, cuneiform legal texts tell only part of the story of Mesopotamian law. Given the sheer number of Old Babylonian texts, the limits of the written legal evidence seem especially frustrating. After all, this was, in Charpin's own expert estimation, a time of wider literacy than Assyriologists usually imagine (7-24), “the era of Mesopotamian history when [cuneiform --S.E.H.] writing covered the broadest range of reality” (128).  However, the large quantities of Old Babylonian texts, together with their broad range of subject matter, alleviate this very frustration.  Even as the non-legal material proves that the legal texts are limited, these same non-legal texts, especially personal correspondence, allow scholarship to see beyond the limits.  Letters show the survival of customary law (129); using letters from the time of Hammurabi, Charpin deftly reconstructs international law, which Hammurabi's code does not mention at all (97-125). Conversely, letters serve as a “reality check” for explicit, written law, and may even demonstrate how Hammurabi's laws were applied (79-80). Charpin's argument for the “two faces” of the Old Babylonian legal texts can probably be generalized to similar cuneiform texts from other periods. Regarding Jewish legal writing, which began under the direct influence of cuneiform law, this book's ideas provoke similar inquiries.  What are the relationships between codified law, from the Pentateuch on, and documents of practice?  How do “supplementary materials,” such as literary narratives or merchants' correspondence, affect one's understanding of Jewish legal history?  These questions are not new ones, and do not require an answer based on cuneiform evidence.  Nevertheless, students of Jewish law will benefit from considering the impact of Charpin's insights into this antecedent legal culture. Shalom E. Holtz is assistant professor of Bible at Yeshiva University.  He is the author of Neo-Babylonian Court Procedure (Brill, 2009) and several studies comparing Mesopotamian law with biblical and post-biblical Jewish law.

Link Roundup, Legal Theory

January 24th, 2011

The Legal Theory Blog tackles textualism in a helpful and systematic manner.