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Link Roundup, Critical Legal Studies and Law and Literature

September 27th, 2011

Guyora Binder (University of Buffalo School of Law) has posted Critical Legal Studies and Law and Literature to SSRN. From the two abstracts:
  • This encyclopedia entry reviews the contributions of the Critical Legal Studies movement to the philosophy of law. Critical Legal Studies is most often associated with a controversial claim that all legal doctrine is necessarily indeterminate. This paper reveals that critical scholars have actually propounded two distinct and narrower claims.
  • This encyclopedia entry provides an historical overview of the law and literature movement. It discusses the involvement of lawyers in American literature in the antebellum period, interest in judicial rhetoric and philosophy of language among progressive era legal theorists, and the turn to literary theory among American constitutional theorists and critical legal scholars during the late twentieth century.

Link Roundup, Halbertal on Forgiveness, Law, and Narrative

September 27th, 2011

Moshe Halbertal (NYU Law School and Hebrew University) has published At the Threshold of Forgiveness: A Study of Law and Narrative in the Talmud in the Fall 2011 issue of the Jewish Review of Books.

Link Roundup, Farewell to the Rule of Recognition?

September 27th, 2011

Giorgio Pino (University of Palermo) has posted Farewell to the Rule of Recognition on SSRN.  From the abstract:
  • I will argue that the rule of recognition, as it has been conceived by Hart, is either a redundant, and hence mostly useless, concept, or a concept with limited explanatory potential – in either case, at best a concept whose scope is, in contemporary legal systems, much narrower than Hart envisaged. I will also argue that the rule of recognition, in one of its possible (and plausible) reformulations, can nevertheless play a significant, non-redundant role, but only if employed in a rather different way than the one proposed by Hart, as well as by much of post-Hartian positivist literature.

Link Roundup, Reviews of ‘Legality’ by Scott Shapiro

September 20th, 2011

Mark Greenberg (UCLA School of Law) and Ekow Yankah (Cardozo Law School) have posted reviews of 'Legality' by Scott Shapiro on JOTWELL (Journal of Things We Like Lots).

Link Roundup, CFP: Continental Philosophy and the Law

September 19th, 2011

The Kentucky Law Journal is seeking submissions that draw on continental philosophy to analyze cases, the legal system, or legal scholarship. Submissions are due by January 10, 2012. Articles can be submitted electronically to editors@kentuckylawjournal.org or by hard copy to Online Content Manager Kentucky Law Journal University of Kentucky College of Law Lexington, KY 40506-0048

Link Roundup, Citizenship and Obligation

September 19th, 2011

Pavlos Eleftheriadis (Universtiy of Oxford, Faculty of Law) has posted 'Citizenship and Obligation' on SSRN. From the abstract:
  • Many political philosophers believe that we owe moral obligations to our political communities simply because we are asked. We are, for example to pay taxes, or serve in the army whenever we are demanded to do so by the competent authorities or agencies. Can such moral obligations be created by European Union institutions? This essay discusses the natural duty of justice to support just or nearly just political institutions as defended by John Rawls and Jeremy Waldron.

Link Roundup, Legal Pluralism

September 19th, 2011

Oren Perez (Bar-Ilan University) has posted on SSRN a concise overview of the concept of 'Legal Pluralism' and its elaboration in the legal literature for 'The Oxford Encyclopedia of American Political and Legal History (2012).'

Link Roundup, Toward Critical Halakhic Studies

September 16th, 2011

Adiel Schremer (Bar- Ilan University) has posted Toward Critical Halakhic Studies to the website of The Tikvah Center for Law & Jewish Civilization. From the abstract:
  • Current scholarly study of Jewish law concentrates either on a description and analysis of halakhic doctrines, or on the jurisprudential theories underlying the thought of halakhic thinkers. Questions such as: “how halakhic decisions are actually produced?”, and “what are the various constraints operating in halakhic decision-making?”, usually receive very limited attention in the study of Halakha. This paper calls for a shift of focus, from the “theoretical” (whether doctrinal or philosophical) to the “practical”, so that the halakhic process will occupy a central role in the study of Jewish law.

Halakha, Legal Process, and Social Change

September 14th, 2011

Review of Innovation in Jewish Law: A Case Study of Chiddush in Havineinu by Michael J. Broyde (Jerusalem: Urim Publications, 2010) 166 pages. by Marc Herman How does Jewish law change?   How does a system that claims divine sanction adapt to new circumstances and justify such adaptations?  This is the subject of Michael J. Broyde’s latest contribution, Innovation in Jewish Law: A Case Study of Chiddush in Havineinu.  Broyde, Professor of Law at Emory University School of Law and member of the Rabbinical Council of America’s beth din, brings his considerable halakhic knowledge and legal prowess to bear on a rather obscure area of Jewish law, the mishnaic abridgment of the Amidah, known as Havineinu.  Any casual observer of contemporary Jewish practice will notice that Havineinu has fallen into disuse; accounting for the abandonment of this shortened-prayer is the task of this monograph. The bulk of this book, four of the five chapters, reads like an extended synagogue lecture series, which makes it difficult to read as an academically oriented tome. Admirably, sources are cited, translated thoroughly, and organized in clear, accessible charts.  The audience of this book is clearly not the academic reader: just as in contemporary Modern- Orthodox discourse, primary texts are referred to not by author, but by title, and the organizing principles are not historical, chronological, or geographic, but interpretative and thematic. The intended audience seems to be an educated Orthodox laity interested in understanding the reasons why contemporary Jewish practice does not accord with Talmudic law.  Those looking for a historically critical analysis should look elsewhere. Only in his fifth chapter does Broyde defend his central thesis, namely that “halakha largely changes through chiddush–the innovative interpretation of sources” (133).  Broyde’s main argument is that the ongoing intensive study of Jewish law applied to “ambiguous and inconclusive primary texts” (133) creates a dynamic legal system.  He argues that “internal ambiguities and inconclusive rulings are a direct result of the unique presentation of Jewish law [i.e. the Talmud],” which he categorizes as a “presentation of multiple opinions on a given subject or a multiplicity of cases exemplifying the application of the law” (139).  Yet just as Broyde admits that the “driving force behind chiddushim that come as a result of changes in reality are based on extra-halachic sources,” he insists that “the means of change are faithful to the halakhic process of study, thorough understanding, and correct application of texts” (148). In order to be properly contextualized, this book must be placed in conversation with Broyde’s earlier writings about the ways Jewish law changes.  In the Spring 1990 volume of Judaism, Marc Shapiro argued that Jewish “law” develops in consonance with popular practice – changes are adopted by the community and post facto codified by rabbinic authorities.  Viable minhag develops despite opposition from halakhic authorities, and is only later granted validity by those same authorities.  Broyde, in the Winter 1991 volume of that same journal, vehemently disagreed, arguing that “minhag as a legal tool is limited to deciding which of halakhically tenable positions is the one that should be followed; it cannot be used to justify what is undeniably impermissible (Judaism 40:1, 81, emphasis in original). As Shapiro correctly points out, much of the disagreement revolves around the extent one accepts Jacob Katz’s notion of “ritual instinct” (see The“Shabbes Goy”, 230-32) as a motivating factor behind change in the halakhic system.  To use Katz here, contrary to Broyde, one could suggest that the Jewish ritual instinct towards authentic and complete prayer avoided Havineinu; Havineinu felt too abbreviated, too incomplete, too inauthentic.  How can one approach the Creator by means of a shortcut? At the same time, Broyde’s integration of extra-legal concerns with intensive halakhic analysis does in fact seem to account for the lived experience of generations of posekim.  Shapiro explains, on the other hand, that precisely those customs adopted by “the Torah community” (Judaism 40:1, 91, emphasis in original) would be granted rabbinic approval and integrated within the codes.  While Katz’s notions of the “ritual instinct” in Jewish life are best developed in the pre-modern world, where most Jews were members of their community by default, applying Katz’s theories to the contemporary experience may require some reevaluation.  In a world of voluntary communities largely defined by halakhic commitment rather than by the non-Jewish world, Katz’s loop of halakhic malfeasance turning into halakhic observance becomes considerably more difficult to distill.  In text-obsessed contemporary Orthodoxy, Broyde’s model of halakhic change should perhaps be more relevant than in the medieval period.  Yet, completely ignoring sociology in exploring halakhic change is done at the peril of all who study it. Marc Herman is a graduate student in Religious Studies at the University of Pennsylvania focusing on medieval Jewish intellectual and cultural history.  He is a Wexner Graduate Fellow and a second year Graduate Fellow at the CJL.

Conference Announcement, Lost Texts: A Graduate Student Conference

September 13th, 2011

Menachem Mendel and H-Judaic post a call for papers for an upcoming graduate student conference at the Jewish Theological Seminary of America. Abstracts are due by October 31st. From the conference announcement:
  • Much of Jewish history can be viewed as a struggle between competing textual traditions, often motivated by the reintroduction and reappropriation of lost texts. The redacted texts of the biblical and rabbinic canons; the revelations of the Genizah and the Dead Sea Scrolls; the invention and revision of Jewish literary traditions by the scholars, writers, artists and thinkers of Jewish modernity – each of these discoveries of lost texts has served to complicate and expand the borders of Jewish life in the past and in the present.We invite papers from graduate students that explore lost texts –broadly defined – as central objects of inquiry in Jewish studies as well as submissions that reflect on how Jewish Studies itself is a site where forgotten or marginalized traditions become present through the mediation of academic discourse. Papers from a wide variety of methodological approaches and time periods will be considered.