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Rabbinics-related sessions at the SBL/AAR

November 18th, 2011

The Talmud Blog rounds-up the various rabbinics-related sessions and panels of interest at this year's SBL/AAR in San Fransisco.

Call for Papers: New Perspectives in Comparative Law – Washington, DC

November 18th, 2011

The Younger Comparativists Committee of the American Society of Comparative Law is pleased to invite submissions for its inaugural conference to be held on Apr. 20, 2012, at George Washington University Law School in Washington, DC. The purpose of the conference is to highlight and develop the scholarship of new and younger comparativists, hence the title of the conference: New Perspectives in Comparative Law. Completed papers should be sent to Judy Yi at judy.yi@bc.edu by Feb. 15, 2012. Please direct all inquiries to Richard Albert, Chair of the Younger Comparativists Committee, by email at richard.albert@bc.edu or telephone at 617.552.3930.

Religious Law, Secular Courts, and the Jews of post-Reformation Poland

November 18th, 2011

Review of  Magda Teter. Sinners on Trial: Jews and Sacrilege after the Reformation (Harvard University Press, 2011) 358 pages. by Joshua Teplitsky Magda Teter’s Sinners on Trial: Jews and Sacrilege after the Reformation, inquires after the broader significance of the accusations against Jews of sacrilege by the secular courts and magistrates of post-Reformation Poland.  What was the meaning of prosecuting crimes in Poland-Lithuania in an age in which such concerns had subsided in Western Europe? To answer this question, Teter pays careful attention to the context in which these accusations were made and prosecuted— namely, secular courts.  While any pretense of German unity was torn asunder in the wake of the Reformation, the Polish sejm (parliament) sought to protect the dissenter from the Catholic faith by removing crimes of a religious nature from ecclesiastical court jurisdiction.  Ironically, this served to enhance the power of the Catholic faith, even as it unseated the power of Catholic courts and institutions, by placing Catholic enforcement under the coercive power of the state and its legal institutions. The book, then, is of particular interest to scholars of legal history as it probes the legal properties of religious identity.  Teter forcefully argues for a pivotal role for the secular courts of law, as prosecutors of crimes against the faith, in solidifying a confessional Catholic identity for the Polish state, and a more disciplinarily rigid identity at that.  Whereas sinners could once gain forgiveness through acts of repentance, criminals required a much harsher sentence, often death.  This book is crucial in demonstrating the force of state power and legal regimes in creating and enforcing confessional identity.  It forces the reader to confront the question of territorial power in the service of heavenly faith. In unearthing these moments of accusation, persecution, and even expulsions and executions, Sinners on Trial revises our image of early modern Poland-Lithuania as pluralist and tolerant.  These earlier visions are likely a corrective to the impulses, in a post-war world, to read the Polish-Jewish experience as doomed to failure from its inception.  Teter’s work complicates this picture, however, without even an inkling of teleology.  Rather than point to moments of persecution, however, Teter makes meaning out of these incidents, situating them, fittingly, within the context of political and cultural contests, in which Jews were often objects of contention, rather than agents in their own right. The book begins by elucidating the meaning of the sacred to early modern Jews and Christians in order to lay the groundwork for an investigation of the sacred’s violation and the prosecution of such violation by different authorities.  It then turns to the cases themselves, paying close attention to the language and framing of the trial records, not simply their outcome.  Teter takes special heed of the surprising incidences in which robbery of ritual goods is prosecuted not for theft, but for sacrilege, and uses these cases as access points into considering the jurisdiction of courts in enforcing religious affairs.  In subsequent chapters, the work departs from the trial scene itself to wider contests over jurisdiction, including magistrates, nobles, and the king, but consistently loops back to the question of what can we learn from the treatment of Jews during this period, and how an investigation of this treatment is invaluable to understanding statecraft and the rule of law at this time. Sinners on Trial brims with an array of sources in an impressive assortment of languages.  The study is based primarily on court records, preserved at times in Polish, at others in Latin.  While Teter acknowledges that the primary sources are at times fragmentary, sometimes merely a précis or summary of the trials rather than a literal transcription, she imaginatively fills in the details with supporting data, and guides the reader through the documentary lacunae.  This core body of sources is adorned with evidence from Yiddish pamphlets, Italian polemical treatises, and Hebrew liturgy and codes of Jewish law.  She makes use of secondary sources in English, French, German, Hebrew, Italian, and Polish. Teter’s study deftly demonstrates the importance of the Jewish experience and the treatment of Jews to our understanding of early modern European phenomena.  While this study does not deal too intimately with the “internal” culture of Polish-Lithuanian Jewry, it reveals essential information about the workings of Polish legal and political culture, posing and answering vital questions that can only be understood through the lens of the attitudes and policies towards minority populations during this time.  The work is an important contribution to study of the Jews and of early modern Europe most widely. Joshua Teplitsky, a second year fellow at the CJL, is a doctoral candidate at New York University. His dissertation is titled "Between Court Jew and Jewish Court: David Oppenheim, the Prague rabbinate, and eighteenth-century political culture."

Kahan on Motivated Cognition & Constitutional Law

November 18th, 2011

Dan M. Kahan's Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law is available on the Harvard Law Review website. From the abstract:
  • Why is the “neutrality” of Supreme Court decisionmaking a matter of persistent political disagreement? What should be done to mitigate such conflict? Once the predominant focus of constitutional law scholarship, efforts to answer these questions are now widely viewed as evincing misunderstandings of what can be coherently demanded of theory and realistically expected of judges. This Foreword attributes the Court’s “neutrality crisis” to a very different form of misunderstanding. The study of motivated reasoning (in particular, cultural cognition) shows that individuals are predisposed to fit their perceptions of policy-relevant facts to their group commitments. In the course of public deliberations, these facts become suffused with antagonistic meanings that transform utilitarian policymaking into occasions for symbolic status competition.

Aroney on Explanatory Power & Theories of Legal Interpretation

November 11th, 2011

Nicholas Aroney (University of Queensland - TC Beirne School of Law) has posted Explanatory Power, Theory Formation and Legal Interpretation: Some Preliminaries on SSRN. From the abstract:
  • This paper explores what it means to formulate and assess theories about law and the interpretation of authoritative sources of law. In particular, the paper looks closely at the idea of ‘explanatory power’ as a way of understanding the kinds of criteria by which legal theories are formulated and assessed. The intuition here is that when we formulate and assess theories within the discipline of law we routinely, though often only tacitly, appeal to standards of explanatory power which philosophers say are central to the norms of theory formation in all disciplines which seek to describe and explain phenomena.

Canale on Shapiro on the Nature of Law

November 11th, 2011

Damiano Canale (Bocconi University - Department of Legal Studies) has posted Looking for the Nature of Law: On Shapiro's Challenge on SSRN. From the abstract:
  • This essay critically focuses on the methodological aspects of Scott Shapiro's book "Legality." Indeed Shapiro's book sets out several original theses about not only the nature of law and the main problems of jurisprudence, but also about how the nature of law can be discovered by jurisprudence. In this sense, the method of inquiry adopted by Shapiro can be considered as one of the most challenging outcomes of his research.

The Bible in Translation: Saadia Gaon’s Tafsir

November 11th, 2011

Review of Richard C. Steiner: A Biblical Translation in the Making: The Evolution and Impact of Saadia Gaon’s Tafsīr (Harvard University Press, 2010) 188 pages. by Shalom Carmy Within the discipline of Semitics, my colleague Richard Steiner has written on an astonishing range of subjects. Several of his areas of expertise—syntax, semantics, history of exegesis-- are on display in this volume. Few readers will be equally interested in all of them; for anyone interested in any of them, what Steiner has to say is essential. Saadia’s 10th century Arabic translation and commentary is a pioneering effort in the history of translation and in the history of exegesis. Much of the book deals with the nuts and bolts of textual history. These include different versions of Saadia’s text, the question of direct and indirect utilization of Moslem, Christian and Karaite sources, the target audiences of his work and its reception in these circles. This spadework is directly and indirectly pertinent to the questions of Biblical philology and syntax, and the history of Jewish philology and Biblical exegesis that Steiner has explored in many of his articles. It is also pertinent to the study of the Jewish and Moslem polemical literature in the period covered and to the medieval philosophical project of interpreting anthropomorphic language about God in Saadia and in his successors, including Maimonides. The first four chapters are devoted primarily to freedom versus literalism in translation and the related questions of repetition in Biblical style and abbreviation in translation. Steiner categorizes in detail various types of repetition and how they are justified exegetically in Saadia and contemporary exegetes. He also pays attention to Saadia’s tendency to abbreviate such repetition. This appears to be a merely technical feature of the translation. Steiner demonstrates that was controversial in its time. In the closing chapter he explains why Saadia would have adopted this strategy. Both Saadia and the Maimonidean tradition rejected anthropomorphic readings of Biblical language about God. Saadia’s typical strategies are different from those of his successors. The later approach is largely accommodationist: the Bible employs human language because of human limitations. Saadia adopts a more strenuous approach, insisting, for example, that secondary non-anthropomorphic meanings of Biblical verbs, which he seeks to identify, should be applied in theological contexts, or that particular nouns that seem to refer to God, refer to something else (e.g. that when God speaks to His “heart” this means that He informs His prophet) or that anthropomorphic verbs referring to God are transitive, and indicate effects caused by God rather than affecting Him. Theologians, students of the history of Jewish philosophy and Biblical semantics will be interested not only in Steiner’s general observations on these and other phenomena, but also in his detailed examination of crucial examples. Since many of the chapters move back and forth between the textual and intellectual history addressed to specialists in these areas and the often fascinating examples, the index is likely to be especially useful. Shalom Carmy is the co-chair of the Jewish Studies Department at Yeshiva College, where he teaches Jewish Studies and Philosophy.  He is also the editor of Tradition, as well as an affiliated scholar at the Cardozo School of Law.

Miller on Hart on the Practice Theory of Rules

November 4th, 2011

Eric J. Miller (Saint Louis University - School of Law) has posted Incommensurability, Practices and Points of View: Revitalizing H.La. Hart’s Practice Theory of Rules on SSRN. From the abstract:
  • The standard reading of H.L.A. Hart’s practice theory of rules is that it failed to provide a sufficient normative basis for a theory of law. That standard reading rests upon a significant misunderstanding: that Hart has an exclusionary reason approach to law. Instead, Hart understands law to be a social practice, one capable of generating valid norms that not only block the operation of moral norms, but which are incommensurable with them in a wholesale manner I label deontic incommensurability.
  • Wholesale or deontic incommensurability entails that law, as a form of social practice, constitutes a discrete normative system in which the truth-conditions of legal propositions are distinct from the truth-conditions of moral propositions: put differently, normative (or deontic) terms such as right, duty, obligation, permission, and so on, have a different meaning in law as in morality, because made true by different facts.
  • The upshot is that Hart takes a distinctively strong view of judicial power: judges can expressly reject morality in the course of their decision-making. The power possessed judicial authority rests on no more, but no less, than a set of social conventions, and judges get the power to decide cases based on those conventions alone. The practice of law enables the judge to change and determine the scope of these conventions, as well as to impose them on others. And the judge may use the practice of law to pursue her own agendas: her underlying moral, political, or personal motivations are irrelevant to the validity of law or of her individual decisions from the legal point of view.

Judaism As Economics

November 1st, 2011

Review of The Oxford Handbook of Judaism and Economics ed. Aaron Levine (Oxford University Press, 2010) 662 pages. by Jason Rubenstein Is it trade unionists all the way down? Reading the Oxford Handbook of Judaism and Economics, edited by the late Aaron Levine, one finds a variety of quantitative, historical and ethical essays which explore both economics from a Jewish perspective and Judaism from an economic perspective. But despite this methodological diversity, the pieces are clustered together on the strip of land between the oceans of Hayek-inflected libertarianism on the one hand and collectivism which conceives of property itself as an ideological smokescreen on the other. The tension between 'property rights' on the one hand, and 'ethics' - never defined, explored, critiqued, or justified - characterizes these essays, which seek to accommodate what they take as twin, orienting, given categories. They are land-locked essays: not only do they not bring up pearls from the depths of fundamental analyses of the assumptions within which they operate, they mostly don't even dip their toes in the waters. Given that through the twentieth century, Judaism was alternately (and sometimes simultaneously) blamed and praised for its affinity to both capitalism and socialism, certain fundamental questions are in order before plunging into the union of Judaism and modern economic life and theory. Do Biblical and rabbinic anthropologies endorse Adam Smith’s of homo economicus, and if not what can we learn from their divergence? What would a synthesis between economic thinking, which axiomatically sees consumption as a good, and the Talmudic statement “God inspected every gift He could give to Israel, and found none better than poverty” (Hagiga 9b) look like? These questions are not formulated, much less creatively considered, in the Oxford Handbook of Judaism and Economics. When using economics to derive new insights into Judaism (sections VI and I), this volume is at its best. Laurence Rabinovich mines historical data on the relative values of metals and weights of coins to determine the (surprisingly small) historical values of payments for divorce settlements. Also in the area of coinage, Lawrence Schiffman offers three theories of the value of coin-based currency - metal standards, coins as commodities, and fixed values of commodities (with fluctuating currency values!) - to deftly clarify the notoriously knotty Talmudic discussions of inflation and deflation in the context of the prohibition on collecting interest.  Similarly, Yaakov Ellman deploys his encyclopedic knowledge of economic realities in the Sassanian Empire to breathe new significance into the Babylonian Talmud, for example noting that Iran’s high summer temperatures adversely affect citron production, a fact that explains the royal significance of King Shapur’s serving his guests citron in the story recorded in Bavli Avoda Zara 76a-b. In a quantitative analogue to this type of inquiry, Katz and Rosenberg model the conditions under which the Rabbinic principle waiving penalties equal to the value of a stolen object for a thief who turns himself in would be beneficial to owners, who stand to gain more from (more common) returned property than they do from the (rarer) caught thief who pays double: a low likelihood of catching thieves. When we turn to appraising Judaism’s approach to economic activity, things get a bit rougher. Problems arise as early as Levine’s introductory essay, which, after briefly reprising the history of halakhic genres, immediately launches into a tendentious account of the treatment of gentiles and their interests in the eyes of Jewish law. Levine glowingly recounts R. Zevi Hirsch Ashkenazi’s “powerful argument” and “diatribe against those claiming that the Torah’s prohibitions of dishonest behavior govern only transactions among Jews” and dwells on their reception history. But the arguments of those who made, and make, the opposite claim, that Jewish law discriminates economically, are not given the same treatment. If Levine is right, one wonders how a learned saintly figure like R. Yehiel Yaakov Weinberg could have so misunderstood Jewish law as to be embarrassed at its discrimination against gentiles. If Levine is wrong, as he almost certainly is, then a dominant stream of Jewish thinking legislates individual economic interactions largely for the benefit of a particular community, rather than on the basis of maximum efficiency for all individuals. This would mean that central concerns of Jewish law are both in tension with and privileged over the tenets of impartiality and universality, which are fundamental axioms of utilitarianism and which in turn justify the descriptive and prescriptive platforms of micro-economics. All of this raises the possibility - or specter, if you share what seem to be Levine’s convictions - that some aspects of Judaism challenge the thinking and assumptions that undergird neo-liberal economics. This possibility was held to be the truth - and a most important truth - by figures like R. Yehuda Leib Ashlag, who understood the Lurianic unfolding of the cosmos as culminating in a humanistic socialist regime. According to R. Ashlag’s thinking, which he maintained even after the horrors of Stalinism had become known in the West, only in building an economy driven by the principle of “from each according to his ability, to each according to his need” will human beings have properly constituted themselves in the Divine likeness as givers who manifest their deep desire for the good of the Other. Despite being a committed universalist, R. Ashlag appears nowhere in this volume. It is not only economics, but in fact Judaism as a whole, which is not treated critically in this volume. Outside of section VI, which I discussed above, the genre of writing is not the “critical examinations of the progress and direction of debates [for] scholars and graduate students,” promised on the book jacket, but something closer to homiletical: no Biblical scholars are cited, neither are historians of classical or medieval Judaism. In short, few of these essays - in fact, none other than the ones mentioned above - are in dialogue with scholarly Jewish studies. For example, Asher Meir, without qualification or evidence, asserts on behalf of Catholic Israel “As a people, we look back towards four thousand years of history and precedent, but ultimately we are an optimistic and forward-looking people”. A similarly unscholarly identification between author, reader, and text pervades much of this volume. Yoel Domb assumes that his readers share his anxiety at the thought of Jewish authorities from different eras disagreeing with one another. Without feeling the need for justification, he asserting a narrow hermeneutic, and on its basis rejects the very fairly coherent analysis with which he opens his piece:
  • The above analysis reflects an apparent dissipation of the original Biblical concern for borrowers’ personal rights. Over a turbulent period of some five hundred years, prominent Jewish authorities seemingly eroded the prohibitions that had been observed over the previous two millenia. It is insufficient to suggest that these changes were merely the result of social upheaval and borrower misbehavior. We need a rationale that can justify these transformations as a continuation of the Biblical spirit and its approach to debt retrieval. (emphasis added)
I am not convinced that the ostensible audience of this volume, “scholars and graduate students”, at least in Jewish studies, will share Domb’s need for such justifications, particularly not if the only way to achieve it is Domb’s, where merely citing the Mekhilta de-Rashbi is sufficient for having “established the deeper meaning of the Biblical command”. The bad news is that because of its narrow, uncritical approach to both Judaism and economics, the Oxford Handbook of Judaism and Economics will not take its readers beyond materials and ideas with which they are already likely to be familiar. The good news is that this shortcoming is due to this volume, not the breadth and richness of the topic - the last word on Judaism and economics has not been said, because in the history of Jewish thought, the trade unionists have had powerful, colorful, and creative companions and critics. Jason Rubenstein is a member of the Talmud faculty and Dean of Students at Mechon Hadar.