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Postema on Legal Positivism

December 26th, 2011

Gerald J. Postema (University of North Carolina - Philosophy and Law) has posted Legal Positivism: Early Foundations on SSRN. Here is the abstract: Legal positivism is a vital and controversial approach to central questions of philosophical jurisprudence. Not only are its core theses contested, but claims about what its core theses are and what it stands for have been hotly disputed in recent years. This essay offers some perspective on these debates by looking to the history of legal theory from which contemporary positivist jurisprudence has emerged. It does not take any contemporary formulation of the doctrine as canonical, since most such formulations are contested. Rather than seeking out full-fledged, card-carrying positivist theories in the history of jurisprudence to interrogate, this essay explores the articulation and development of a set of themes which arguably have attracted at least some major positivist legal theorists. The stage is set for understanding Hart’s neo-positivist theory of law, and that of more recent philosophers working in its shadow, by locating their work in the context of positivist themes and arguments that have developed over the long history of philosophical reflection about the nature of law.

The Annual AJS Conference, December 18-20: Sessions of Interest

December 12th, 2011

The annual AJS conference in Washington DC is fast approaching and if you haven’t had time to look at the program guide, listed below are some sessions that may be of interest. Medieval Ashkenaz Scheduled Time: Sun, Dec 18 - 9:30am - 11:00am  Building/Room: Grand Hyatt Washington, Constitution  C Session Participants: Alexander HE-HASID? MIRABILIA MUNDI in Medieval Ashkenaz *David I. Shyovitz (Northwestern University) Constructing Credibility: Making Gender in Medieval Ashkenaz *Rachel Furst (Hebrew University of Jerusalem) Death and ritual impurity in medieval Ashkenaz: polemic and halakhic considerations *Yechiel Y. Schur (University of Pennsylvania) Chair: Robert Chazan (New York University) The Androgyne: Breaking the Gender Binary in Rabbinic Law and Literature Scheduled Time: Sun, Dec 18 - 9:30am - 11:00am  Building/Room: Grand Hyatt Washington, Renwick Session Participants: Defying the Binary?: The Androgynus in Tosefta Bikkurim *Sarra Lev (Reconstructionist Rabbinical College) Stoning the ANDROGYNUS: Subverting the Boundaries of Masculinity *Max Strassfeld (Stanford University) Seed and Sexuality: Rabbinic Concerns about Female Semination *Tirzah Meacham (University of Toronto) Chair: Judith Hauptman (The Jewish Theological Seminary New Perspectives on Judaism and Rabbinic Culture 1675-1725 Scheduled Time: Sun, Dec 18 - 11:15am - 1:00pm  Building/Room: Grand Hyatt Washington, Arlington Session Participants: Some Lacunae in Early Modern Jewish Historiography along with Suggestions for their Redress *Matt Goldish (The Ohio State University) Merchant Wealth in Eighteenth-Century Italy: How to Combine Culture and Modernization in a Jewish Key *Federica Francesconi (University of Oregon) The Persona of a Poseq: Social Conscience, Religious Sensibility, and Self-Fashioning in Late Seventeenth-Century Ashkenaz *Jay R. Berkovitz (University of Massachusetts-Amherst) Respondent: Joseph M. Davis (Gratz College) Chair: Adam B Shear (University of Pittsburgh) Literary Approaches to Biblical Texts Scheduled Time: Sun, Dec 18 - 11:15am - 1:00pm Building/Room: Grand Hyatt Washington, Constitution B Session Participants: Mind the Gap - Ambiguity in the Story of Cain and Abel *Karolien Vermeulen (Ghent University/University of Antwerp) Az Yashir (The Song at the Sea) as a liturgy *Reuven R. Kimelman (Brandeis University) Chiasm and Meaning in 1 Chronicles *Yitzhak Berger (Hunter College, CUNY) Chair: Alan T. Levenson (University of Oklahoma) The Formation of the Religious Self in Ancient Judaism Scheduled Time: Sun, Dec 18 - 11:15am - 1:00pm  Building/Room: Grand Hyatt Washington, Penn A Session Participants: Sensory Disciplining and Construction of the Self in the Book of Proverbs *Greg Schmidt Goering (University of Virginia) Prohibition and the Production of the Rabbinic Self *Rachel Neis (University of Michigan) The Shema Rituals and the Embodied Self in Tannaitic Literature *Elizabeth Shanks Alexander (University of Virginia) Respondent: Steven P. Weitzman (Stanford University) Chair: Steven P. Weitzman (Stanford University Jewish-Christian Relations in Early Modern Europe Scheduled Time: Sun, Dec 18 - 2:00pm - 4:00pm  Building/Room: Grand Hyatt Washington, Burnham Session Participants: CONVERSO, Convert, Christian: Marranism in Early Modern England *Jeffrey Spencer Shoulson (University of Miami) Jews and Flemish in the Brazilian Sugar Trade: between rivalry and cooperation *Daniel Strum (Stanford University) The Idea of Freedom of Conscience among Seventeenth-Century Portuguese Jews *Miriam Bodian (University of Texas at Austin) Chair: Ruth Langer (Boston College) Rabbinic Theology: Radicalism and Revisionism Scheduled Time: Sun, Dec 18 - 4:15pm - 6:15pm  Building/Room: Grand Hyatt Washington, Roosevelt Session Participants: Season(s) of Judgment: Competing Notions of Divine Justice in m. Rosh Hashana 1:2 *Joshua Cahan (The Jewish Theological Seminary) Crumbling Walls & Faltering Houses: Aggadic Dialectic on Disaster, Merit, and Miracle in Bavli Taanit *Julia Watts Belser (Harvard Divinity School) Cultural Enthusiasm: The Transmission of The Sugya of 'AVERA- LISHMA' (Transgress for God's sake) *Yuval Blankovsky (Universitaet Potsdam) The Paulinian and Matthean Moments of Rabbinic QABBALAT HATORAH *Aryeh Cohen (American Jewish University) Chair: Michael Pitkowsky (Jewish Theological Seminary) Between Halachah and Philosophy Scheduled Time: Mon, Dec 19 - 8:30am - 10:30am  Building/Room: Grand Hyatt Washington, Burnham Session Participants: From Moses to Moses: A Christian Reading of Jewish Law and Hermeneutic in Moses Mendelssohn's JERUSALEM *Tania Tulcin (Bernard Revel Graduate School/Yeshiva University) “A Source of Splendor”: Sexual Desire in Mendelssohn’s Hebrew Writings *Elias Sacks (Princeton University) Rupture and Reconstruction Reversed: Franz Rosenzweig's THE BUILDERS and MINHAG ASHKENAZ *Lawrence J. Kaplan (McGill University) Halakhic Reasoning and Context: Homosexuality as a Test Case *Tamar Ross (Bar-Ilan University) Chair: Stephen Garfinkel (The Jewish Theological Seminary Theory and History of Talmudic Redaction Scheduled Time: Mon, Dec 19 - 8:30am - 10:30am  Building/Room: Grand Hyatt Washington, Renwick Session Participants: Caesarean Revisions and the History of the Talmud *Moulie Vidas (University of California, Davis) Stylistic and Mnemonic Factors as Clues to the Intellectual History and Evolution of a Talmudic Text *Jay Rovner (The Jewish Theological Seminary) “Impurity in Public is Overridden Because the Headplate Renders it Acceptable” – On Bavli Reconceptualization of Tannaitic Legal Thought *Leib Moscovitz (Bar-Ilan University) Mingling Moments: Conjunctive Time and Rabbinic Modes of Temporality in the Babylonian Talmud *Lynn Kaye (New York University) Chair: Yonatan Feintuch (Bar-Ilan University) Tragedy, Sin, and Theodicy in German-Jewish Thought Scheduled Time: Mon, Dec 19 - 11:00am - 12:45pm  Building/Room: Grand Hyatt Washington, Wilson Session Participants: Overcoming Sin: Re-assessing the Influence of Christianity on German-Jewish Thought *Randi Lynn Rashkover (George Mason University) Tragedy as Eschatology in the Thought of Jacob Taubes *Martin Kavka (Florida State University) Scholem, Benjamin, and the Origin of Jewish Tragic Drama *Bruce Rosenstock (University of Illinois at Urbana-Champaign) Respondent: Oona Eisenstadt (Pomona College) Chair: Asher D. Biemann (University of Virginia) Studies in Irano-Talmudica: The Next Generation Scheduled Time: Mon, Dec 19 - 2:00pm - 4:00pm  Building/Room: Grand Hyatt Washington, Constitution B Session Participants: Bad Seed: Rewriting the Garden of Eden in a Zoroastrian Critique of Judaism *Samuel Thrope (University of California, Berkeley) Intention and Negligence in Rabbinic and Zoroastrian Tort Law *Shana A. Strauch Schick (Bar-Ilan University) Shared Liability" in Rabbinic and Zoroastrian Literature: A Comparative Analysis *Yishai Kiel (Hebrew University of Jerusalem) Scriptural and Unscriptural Prohibitions: Zoroastrian and Rabbinic Sin-Counting and the Severity of Atonement *Yaakov Elman (Yeshiva University), *Mahnaz Moazami (Columbia University) Chair: Steven Fine (Yeshiva University) Medieval Judaism in East and West Scheduled Time: Mon, Dec 19 - 2:00pm - 4:00pm  Building/Room: Grand Hyatt Washington, Lafayette Park Session Participants: “The obligations that God has imposed on her”: Child marriage and sexual ethics in medieval Near Eastern Jewish society *Eve Krakowski (University of Chicago) Pope Innocent III, Christian Wet-Nurses, and Jews: A Misunderstanding and Its Impact *Jeremy Cohen (Tel Aviv University) Jewish Converts in Jewish-Christian Intellectual Polemics in the Middle Ages *Piero Capelli (Ca' Foscari University of Venice) Chair: Phillip Isaac Ackerman-Lieberman (Vanderbilt University) Maimonides and Duran Scheduled Time: Mon, Dec 19 - 2:00pm - 4:00pm  Building/Room: Grand Hyatt Washington, Penn B Session Participants: Maimonides on Providence - A "Possible Worlds" Interpretation *Jacob Joshua Ross (Tel Aviv University) Maimonides’ Reservations About Naturalism in the Post-GUIDE Writings *Charles Manekin (University of Maryland) "The first purpose of this Treatise": Commentaries on the "equivocal terms" of the GUIDE OF THE PERPLEXED *Igor Holanda DeSouza (University of Chicago / Brown University) Magic and Memory in Profiat Duran *Maud Kozodoy (Brown University) Chair: Brian Ogren (Columbia University) Reassessing the Religious-Secular Divide in Twentieth Century Zionism Scheduled Time: Mon, Dec 19 - 2:00pm - 4:00pm Building/Room: Grand Hyatt Washington, Roosevelt Session Participants: Religious Zionist Options at the Fin-de-Siecle *Joshua Shanes (College of Charleston) Prophets of the Nation: Religious Zionist Activism in the Second Polish Republic *Daniel Mahla (Columbia University) Zionists and Conservative Revolutionaries in Weimar Germany *Stefan Vogt (Ben-Gurion University of the Negev) German Law in Jerusalem: European Jurisprudence in Religious Zionist Legal Philosophy *Alexander Kaye (Columbia University) Chair: Motti Inbari (University of North Carolina, Pembroke) Rabbinic Rhetoric Scheduled Time: Mon, Dec 19 - 4:30pm - 6:30pm Building/Room: Grand Hyatt Washington, Roosevelt Session Participants: Gorgias and the Rabbis: Rhetoric, Law, and Truth in the Talmud *Richard Hidary (Yeshiva University) The Rules of Redundancy: How Changes in Rabbinic Rules of Exegesis Contributed to the Growing Complexity of Sugyot *David Brodsky (New York University) Rhetorical Ends of the Talmud: From Local Conclusiveness to Metatextual Openness *Zvi Septimus (Harvard University) PERITROPE (Self-Refutation) in Sextus Empiricus and the Rabbinic discourse *Sergey Dolgopolski (University at Buffalo, SUNY) Chair: Barry Scott Wimpfheimer (Northwestern University) The Making of Rabbinic Law, Power, and Authority Scheduled Time: Tue, Dec 20 - 8:30am - 10:30am  Building/Room: Grand Hyatt Washington, Renwick Session Participants: Rabbinic Specialization *Tzvi Michael Novick (University of Notre Dame) The Study of Tannaitic Law in its Ancient Legal Context *Jonathan Milgram (The Jewish Theological Seminary) Narrating the Trial of Herod/Jannaeus: Late Antique Jewish Conceptions of Law and Power *David C. Flatto (Pennsylvania State University) The Image of Moses in SIFRE ZUTA and the Construction of Rabbinic Authority *Nehemia Polen (Hebrew College) Chair: Christine Hayes (Yale University) Comparative Contextualizations of Jewish Legal History Scheduled Time: Tue, Dec 20 - 10:45am - 12:45pm  Building/Room: Grand Hyatt Washington, Independence I Session Participants: Animals as Legal Subjects in Roman and Rabbinic Law *Beth A. Berkowitz (The Jewish Theological Seminary) The Disobedient Wife in Sasanian and Rabbinic Law *Shai Secunda (The Hebrew University of Jerusalem) The Recalcitrant Wife in Jewish Law and Islamic Context *Lena Salaymeh (University of California, Berkeley) Respondent: Charlotte Elisheva Fonrobert (Stanford University) Chair: Jeffrey L. Rubenstein (New York University)

McGinnis & Rappaport on Balkin, Dworkin, Originalism, and the Abstract Meaning Fallacy

December 7th, 2011

John O. McGinnis (Northwestern University - School of Law) & Michael B. Rappaport (University of San Diego School of Law) have posted The Abstract Meaning Fallacy (University of Illinois Law Review, Forthcoming) on SSRN. From the abstract:
  • This Article, which was written for a symposium on Jack Balkin's book, Living Constitutionalism, criticizes the principal method that is used to argue that originalism allows modern interpreters significant discretion. The key move in this argument occurs when an interpreter claims that possibly abstract constitutional language has an abstract meaning. Clauses with abstract meanings allow interpreters to exercise significant discretion over their content. Consequently, interpreters can claim to find modern values in these clauses and still argue that that they are respecting the original meaning.

CFP: The Twelfth Annual Harvard Graduate Student Conference on International History

December 7th, 2011

Twelfth Annual Harvard Graduate Student Conference on International History "Religion and Civilization in International History" March 8-9, 2012 The ConIH Committee invites graduate students to submit proposals for the Twelfth Annual Graduate Student Conference on International History to take place at Harvard University in Cambridge, Massachusetts on March 8-9, 2012. See conference website for more details.

Jack Balkin and Balkinization

December 1st, 2011

Over at Balkinization, an interesting discussion over Jack Balkin's views on Originalism and Constitutional Theory.

Imperial Eschatology in Byzantine Christian and Jewish Literature

December 1st, 2011

Review of  Alexei M. Sivertsev, Judaism and Imperial Ideology in Late Antiquity (Cambridge University Press, 2011) 247 pages. By Alexandria Frisch In Judaism and Imperial Ideology in Late Antiquity, Alexei M. Sivertsev examines eschatological Jewish texts, such as piyyutim and midrashic collections, dating from the fifth through eighth centuries CE in their larger Byzantine imperial context. In doing so, Sivertsev situates himself within a group of scholars (e.g. Biale, Boustan, Schäfer, and Himmelfarb) who have endeavored to understand Byzantine Jewish literature as constructed in large part in reaction to the dominant imperial discourse, variously imitating, appropriating, rejecting, or subverting that discourse. Throwing his analytical hat into the ring, Sivertsev argues that the Jewish discourse about the future messianic age integrated imperial eschatology much more than it sought to overturn it, even going so far as to claim ownership of the imperial schema. What made the imperial ideology so adaptable to Jewish interests is that by the fifth century CE the empire was officially a Christian empire, one that had combined “Roman imperial universalism with the messianic universalism of the Hebrew Bible as well as early Christian millenarian expectations” (10). The resulting eschatology, therefore, envisioned no end to imperial rule.  Instead, the Roman Empire’s adoption of Christianity assured it would continue until the advent of the messianic era and indeed be the foundation upon which the kingdom of heaven would be built, making the two practically synonymous. For example, the Christian theologian Theodore Syncellus considered Byzantium to be the true Israel and Constantinople the New Jerusalem. The profound importance of Israel and Jerusalem in this messianic order, in turn, meant that Byzantine Jews could develop “their own supersessionist narrative that both internalized and inverted a traditional Christian Roman supersessionism” (13). Thus, in Byzantine Jewish literature the Roman Empire remained intrinsic to the eschatological scheme, but, instead of being part of the last universal kingdom, Rome paved the way for the restored Davidic kingdom of Israel.  For Sivertsev, this is best exemplified in the interpretations of the biblical story of Esau and Jacob (hence, the title of his first chapter, “Esau, Jacob’s Brother”). According to Genesis Rabbah, Esau, symbolizing Christian Rome, necessarily has a special brotherly connection to Jacob, or Israel. Esau/Rome exits his mother’s womb first and readies the world with his own sovereignty for the ultimate rule of Jacob/Israel. In other words, for the Jews of the Byzantine world, the existence of the Roman Empire was not an impediment, but a necessary precursor to the renewal of Israel. The relationship of Esau and Jacob is a motif commonly deployed within both Jewish and Christian literature to understand the correlation between the two faiths (although in Christian texts Esau is Judaism). Sivertsev joins a multitude of scholars who have studied this brotherly theme, many of whom have used it to delineate the development of Judaism and Christianity. Both rabbinic texts and the New Testament evince an understanding of Christianity as emerging from Judaism, but then becoming a distinct religious movement early in the Common Era.  With the discovery of such texts as the Dead Sea Scrolls and the Nag Hammadi library, however, scholars have dismissed this paradigm as too simplistic and have instead opted for an understanding of the two religions as separating much more gradually, termed “the parting of the ways.” In more recent years, scholars have questioned even this gradual notion of “parting” (see Boyarin 2004; Becker and Reed 2007) and have emphasized the fluidity of religious identity and the continued interaction between Jews and Christians throughout Late Antiquity and even into the early Medieval period, an interaction that mutually shaped each religion. It is surprising, therefore, that Sivertsev does not explicitly position his own argument within this discussion. What I would offer as Sivertsev’s inherent and important contribution to the “parting” discussion comes across most significantly in his understanding of the relationship of the messianic expectations of Byzantine Judaism to earlier Jewish traditions. While his assessment that “eschatological themes were without precedent in pre-Destruction literature” (44) seems rather extreme, Sivertsev highlights such strong parallels between imperial and Jewish eschatology that pre-Destruction and early post-Destruction Jewish apocalypticism hardly enters into the picture. When it does come into focus, however, it is clearly not the most fitting precursor. For example, in reviewing the image of the Messiah in Byzantine Jewish texts in chapter five, “King Messiah,” Sivertsev identifies the common conception that the messianic royal seat will be in the Temple. While biblical and Second Temple texts do assign the Messiah a kingly status and even a throne, they place his throne elsewhere in the palace and in heaven, respectively. The Temple throne, instead, was coopted from the Byzantine imperial court, which, although located in a palace, was architecturally modeled on ecclesiastical ceremonial chambers. Thus, Sivertsev’s general comparative discussion allows him to conclude that “Byzantine Jewish texts were deeply steeped in uniquely Byzantine imperial symbolism, borrowed not directly from the Hebrew Bible or later rabbinic tradition but from the Byzantine narrative of their own day” (214). As such, Judaism and Imperial Ideology implicitly gives greater contextualization to the parting of Christianity and Judaism. While the former was the religion of the empire and the latter that of one of many minority groups living within the empire’s borders, their understanding of the divine empire to come was remarkably similar. Their eschatological ways, as Sivertsev has demonstrated, had clearly not parted. Alexandria Frisch, a former CJL fellow, is a PhD candidate in the Hebrew and Judaic Studies Department of New York University.  Previously she received a Masters in Religion from Yale Divinity School (2006) and a Masters in Jewish Education from Baltimore Hebrew University (2004).  Her dissertation focuses on the conceptualization of the time, space, and power of foreign empires as seen in Second Temple literature.