September 28th, 2012
Jonathan Crowe (The University of Queensland - T.C. Beirne School of Law) has posted Natural Law Beyond Finnis (Jurisprudence, 2 2: 293-308) on SSRN. Here is the abstract:
- The natural law tradition in ethics and jurisprudence has undergone a revival in recent years, sparked by the work of John Finnis and the 'new natural law theorists' in the early 1980s. The ensuing decades have seen the emergence of an increasingly rich body of natural law scholarship, but this diversification has gone unnoticed by many outside the field. This article seeks to clarify the relationship between the core claims of the new natural law outlook and the more specific views of individual authors. It begins by discussing the place of the new natural law theory within contemporary natural law scholarship. It then offers an account of the core elements of the new natural law framework that emphasises their compatibility with a range of ethical and philosophical viewpoints.
September 27th, 2012
From Princeton University:
Princeton University’s Program in Law and Public Affairs (LAPA) invites outstanding faculty members, independent scholars, lawyers, and judges to apply for appointments as resident Fellows for the academic year 2013-2014. We anticipate naming up to six fellows who are engaged in substantial research on topics broadly related to law and public affairs or law and normative inquiry, including one LAPA/Humanities Fellow for an early career scholar working at the intersection of law and humanistic inquiry. Successful candidates will devote an academic year in residence at Princeton to research, discussion, and scholarly collaboration.
Applicants must have a doctorate, J.D. or an equivalent professional postgraduate degree.
Further information and the electronic application can be found at http://lapa.princeton.edu.
APPLICATION DEADLINE IS 5:00 PM (EST) MONDAY, NOVEMBER 5, 2012.
Princeton University is an equal opportunity employer and complies with applicable EEO and affirmative action regulations.
September 27th, 2012
Several new articles have been published in Jewish Studies, an Internet Journal, including Tzvi Novick, "Din and Debate: Some Dialectical Patterns in Tannaitic Texts" and James A. Diamond, "A Kabbalistic Reinvention of Maimonides' Legal Code: R. Abraham Isaac Kook's Commentary on Sefer Hamada." (HT: PaleoJudaica)
September 26th, 2012
The most recent issue of Nashim: A Journal of Jewish Women's Studies and Gender Issues, includes a number of interesting articles, including Shai Secunda, "The Construction, Composition and Idealization of the Female Body in Rabbinic Literature and Parallel Iranian Texts: Three Excurses." Here is the abstract: Body studies have been a focus in Jewish Studies at least since the publication of Daniel Boyarin’s Carnal Israel (1993), while the Babylonian Talmud’s Iranian context has been a preoccupation of talmudists as a result of Yaakov Elman’s massive decade-long project on this subject. In this article, I use parallels from Zoroastrian literature to shed light on three developments found in rabbinic attitudes toward the female body: the androgynous formation of the first human couple; the etiology of menstruation; and the rabbinic discourse about the ideal contours of the female body. First, in light of the Zoroastrian myth of the first human couple and its Indo-European parallels, I suggest that Genesis rabbah’s androgynous reading of Genesis 1–2 should not be interpreted as a direct subversion of the Middle Platonic adaptation of the classical Greek androgyne myth (as Boyarin suggested), but rather as participating in the production of a widely diffused gender myth in late antiquity. Second, I demonstrate that the view which sees menstruation as a punishment for Eve’s sin is a wholly Babylonian rabbinic invention, and it parallels a Zoroastrian etiology that ties menstruation to primal, demonic evil. Finally, I show how the Babylonian Talmud adapts material from the Tosefta to create an extended discussion regarding the aesthetics of the female breast that parallels developments in Zoroastrian literature from the Avesta to its Sasanian Middle Persian adaptation.
September 26th, 2012
Jay Michaelson (Hebrew University of Jerusalem) has posted Hating the Law for Christian Reasons: The Religious Roots of American Antinomianism on SSRN. Here is the abstract:
- Popular American law-talk is a religious discourse. While Americans routinely valorize the “rule of law” and “common sense,” they express hatred for lawyers and laws, which are supposedly drowning our country in a sea of regulation and litigation. What explains this curious ambivalence is a Protestant ethic, beginning with the Apostle Paul, who, in an explicit rejoinder against Judaism, denied that the law (which governs the body) is a path to salvation (which is a matter of the soul). The result is a philosophy of “law without laws,” a religious antinomianism that has shaped, explicitly and implicitly, such disparate phenomena as the jury system, debates over the common law, and contemporary jeremiads about litigation and regulation.
- This article, forthcoming in the anthology "Jews and the Law," edited by Suzanne Last Stone and Ari Mermelstein, traces this American antinomianism in secular and religious sources. It begins by analyzing three different moments in American popular legal history: the Clinton impeachment, the debates surrounding the adoption of the English common law in the early republic, and discourse about the value of the jury from the Colonial period. The paper then turns to the religious sources, chiefly Paul's letters to the Romans and Corinthians, and later texts by Augustine, Aquinas, and Luther. It concludes by observing that the contemporary American mistrust of law is not a secular, civic, or jurisprudential ideology but a deep, religious conviction.
September 26th, 2012
Spaak on Naturalism in Legal Philosophy
Torben Spaak (Uppsala University - Faculty of Law) has posted Naturalism and Non-Naturalism in Legal Philosophy: Hägerström on Kelsen(AXEL HAGERSTROM AND MODERN SOCIAL THOUGHT, Sven Eliaeson, Patricia Mindus, Stephen Turner, eds., Oxford: The Bardwell Press, Forthcoming) on SSRN. Here is the abstract:
- The spiritual father of Scandinavian realism, Axel Hägerström, erected his theory of law on, and formulated his critical remarks on other theories of law from, a philosophical foundation consisting of ontological naturalism and ethical non-cognitivism. The author of the Pure Theory of Law, Hans Kelsen, on the other hand, rejected ontological naturalism out of hand, arguing that law belongs in the ‘world of the ought’, a realm of norms and values beyond the world of time and space, and that any theory of law that locates law in the world of time and space cannot but fail to grasp the specific meaning of law. His meta-ethical position, as we shall see, is not crystal clear, though he appears to have been a meta-ethical relativist. Unfortunately, there was not much intellectual interaction between these two important legal philosophers. While Hägerström occasionally turned his attention to Kelsen’s writings, Kelsen does not appear to have directly addressed Hägerström’s theory or criticism of Kelsen’s theory, though he (Kelsen) did engage with Alf Ross’s realist jurisprudence, especially with the critical remarks made by Ross on Kelsen’s theory (see especially Kelsen 1959/60).
- In this article, I intend to take a closer look at Hägerström’s criticism of Kelsen’s theory as it was put forward in a 1928 review essay, especially the claim that Kelsen’s theory should be rejected on the grounds that it cannot be squared with Hägerström’s naturalistic theory of reality. I am going to argue, more specifically, that while Hägerström’s objection to Kelsen’s non-naturalism is plausible, Hägerström’s theory of reality is not without its problems, and that Kelsen could in any case meet Hägerström’s criticism by abandoning his non-naturalism and adopting instead a naturalist, and more specifically, a conventionalist analysis of the existence of legal norms. I am also going to argue that Hägerström’s claim that Kelsen’s theory shows a strong affinity to primitive positivism, in assuming that the act of legislation necessarily and immediately gives rise to the existence of valid (in the sense of binding) legal norms, is undermined by Hägerström’s failure to appreciate that Kelsen saw the presupposition of the basic norm as being conditional upon a wish on the part of the person who makes the presupposition to conceive of the legal raw-material as a system of valid norms.
September 24th, 2012
The Legal Theory Blog has a very helpful introduction to the concept of distributive justice.
September 24th, 2012
Samuel Moyn (Columbia University) has posted Judith Shklar on the Philosophy of International Criminal Law on SSRN. Here is the abstract:
- This paper revives Judith Shklar's "Legalism" (Harvard University Press, 1964) with an eye to its relevance to international criminal law today. It examines her general jurisprudential outlook, and critique of various prominent mid-century positions, before turning to her account of the Nuremberg Trials. Showing that her defense of those trials may fail, the paper concludes by suggesting that the book's failure may make it more relevant to the contemporary enterprise of international criminal law rather than less.
September 20th, 2012
Sunday, October 14, 12:30 – 6:30 p.m.Center for Jewish History
'A History of Giving: Symposium on Jews and Charity'Conference Co-Organizers: Debra Kaplan, Yeshiva University Judah Galinsky, Bar Ilan University-CAJS, University of Pennsylvania Fourteen international scholars will discuss the fascinatingly complex personal, legal, economic and social reasons that led to charitable giving over time, looking with a comparative lens at its practice among Jews from the biblical period through the contemporary period. For a complete program and list of scholars, please visit www.cjh.org/charity. CJH | $20 general; $15 CJH members; $8 seniors. Complimentary tickets are available for graduate students. Please contact Ethan Zadoff at email@example.com. Program Schedule Session 1: The Apparatus of Charitable Giving Chair: Gerald Blidstein, Ben Gurion University of the Negev-NYU Tikvah Moshe Halbertal, Hebrew University- New York University: On Addressing Needs Private and Public Alyssa Gray, Hebrew Union College: The Amoraim of Bavel and Eretz Israel as Collectors and Distributors of Charity Funds Idana Goldberg, Associate Executive Director, RAVSAK: Sacrifices Upon the Altar of Charity: The Masculinization of Jewish Philanthropy in Mid-nineteenth Century America Session 2: Forms of Communal Charity Chair: Mark Cohen, Princeton University Tzvi Novick, Notre Dame University, Subsidizing the Poor: Charity and the Economic Cost of Halakhic Observance in Rabbinic Palestine Judah Galinsky, Bar Ilan University-CAJS, University of Pennsylvania: The Tension between Private Giving and Communal Charity – A Medieval Perspective Elisheva Baumgarten, Bar Ilan University-CAJS, University of Pennsylvania: Communal Charity as a Reflection of Medieval Jewish Society: The Nürnberg Memorbuch Session 3: Addressing Communal Need through Charity and Philanthropy Chair: Jonathan Helfand, Brooklyn College, CUNY Debra Kaplan, Yeshiva University: Coercion and the Communal Chest: Funding Early Modern Jewish Communities Alan Kraut, American University: Caring for Our Own: Jewish Hospitals and Jewish Philanthropy in the History of American Healthcare. Roundtable: Yossi Prager, Executive Director, Avichai Foundation: contemporary perspective Suzanne Last Stone, Cardozo Law School: legal perspective Adam Teller, Brown University- Senior NEH Fellow at CJH: historical perspective
September 20th, 2012
By Shalom Holtz (Associate Professor of Hebrew Bible, Yeshiva University) On July 23, 2012, the "Assyriology and the Hebrew Bible" consultation of the Society of Biblical Literature's international meeting devoted a session to reviewing Samuel Greengus's Laws in the Bible and in Early Rabbinic Collections: The Legal Legacy of the Ancient Near East (Cascade, 2011). Below is a lightly edited version of my remarks. The book under review provides a comprehensive and detailed statement of what its subtitle aptly calls "the legal legacy of the Ancient Near East." This book is arguably the most detailed description of this legacy ever published. Each of the book's sixty-four case studies, by my count, organized into eight main chapters, guides the reader through a chronologically broad, but at the same time legally focused, manifestation of this legacy. In each, we encounter all of the ancient sources on the topic, from the overtly legislative law collections to relevant narratives based, in some way, on the law. Simply because of the span of sources it addresses, but for other reasons, too, this book has much to offer any student of cuneiform law, the Hebrew Bible, rabbinic literature, and, more broadly, legal and cultural history. It is a book that defies the specialist, since, in reading a given section, the Talmudist will have to contend with the latest conclusions of Assyriology, while the seasoned Assyriologist will discover the biblical commentaries of medieval Jewish authorities like Hazzequni and Bekhor Shor. I especially welcome Greengus's reliance on these and other medieval works, which are too often neglected in modern biblical scholarship. In terms of its application of the comparative method, this book is, in my mind, a legally-focused analogue to my colleague Hayyim Tawil's An Akkadian Lexical Companion for Biblical Hebrew (Ktav, 2009). What Tawil has done for words and phrases, Greengus has done for law. Anyone seeking an Akkadian equivalent to aid in the interpretation of the biblical text can begin, at the very least, by turning to Tawil's Lexical Companion. Similarly, anyone who wishes to understand or further explore a good portion of biblical law in its ancient Near Eastern context now has a first address. Moreover, Greengus's book provides the solid foundation for even deeper exploration of any number of topics on the scholarly agenda. Staying within the realm of biblical law, for the moment, these topics might include: the similarities and differences between ritual and civil law, the nature of the Pentateuchal law collections, the relationships between these collections, the differences between these legislative sources and the law as practiced in ancient Israel, the relevance and usefulness of non-legislative texts for the study of law, or the use (and abuse) of legal institutions as a tool for historical dating of the texts. We could, of course, choose to address any of these questions and consider the contributions and limitations of this book in answering them. Our session, however, is held under the aegis of Assyriology and the Hebrew Bible. Given the scope of Greengus's work, we ought to consider the book as an expression of the vitality of cross-textual, cross-cultural, and cross-legal comparisons. This is, in fact, Greengus's own goal, which he states in the first sentence of his introduction. He hopes "to focus attention on the historical relationship that exists between biblical, rabbinic, and ancient Near Eastern law collections." In calling our attention to the relationship between the laws, Greengus points, if you will, towards the "AND" in "Assyriology AND the Hebrew Bible." How does the study of law explain that "AND"? The book provides a solid basis for answering this question, so it is to this topic that I will devote my remarks today. With Greengus, however, I will also widen our session's scope a bit by considering not only "Assyriology and the Hebrew Bible," but also post-biblical Jewish law. Greengus, in his statement of purpose, asks us to move beyond one field of specialization-- biblical studies, Assyriology, or rabbinics-- to consider the broader phenomenon that has been called "the shared tradition" of Near Eastern law. In this respect, the book brings to mind the writings of the late Raymond Westbrook, who was among the chief exponents of the idea of a common Near Eastern legal tradition. This idea emerges directly from comparison between biblical law and pre-biblical cuneiform law, and is mainly associated with biblical studies. But Greengus, like Westbrook, extends the boundaries to include cases that, for whatever reason, do not occur in the Hebrew Bible. In his summation, Greengus identifies a category of laws that specifically do not appear in the Hebrew Bible, "laws attested in the ancient Near Eastern collections . . . still preserved and 're-emerging' in the later, rabbinic collections" (p. 282). Thus, reference to the cuneiform legal tradition provides the precedents for rabbinic rulings that allow divorce in the case of illness, assign penalties for assaults on dignity, and regulate assessments for negligence in agricultural leases, to name just three of Greengus's nine examples. All of the laws in this category prove that rabbinic law partakes of a heritage that was, by the time of the Talmud, no longer available in its first Sumero-Akkadian manifestations, but was certainly still very much alive in Hebrew and Aramaic. Greengus has certainly convinced me that this category of similar laws-- laws that occur first in cuneiform and again much later in Talmudic literature-- are, in fact, actual survivals. A more skeptical reviewer might contend, perhaps based on the chronological and cultural gaps in attestation, that similarities could be random, independent developments, rather than survivals. Indeed, given that all of these laws come from basically the same place in the world, one would expect to find similar responses to the environment. People living in Babylon-- whether they were Sassanian Jews or their predecessors from earlier in history-- would have to govern the navigation of exactly the same waterways and the irrigation of exactly the same soil. I agree with Greengus, however, that we should not attribute the similarities he has identified to independent developments. We must still think of these survivals as survivals, as evidence for a remarkably long-lived legal tradition. How, then, can we explain this legal tradition's long life? What is the mechanism by which these laws might have survived the demise of cuneiform to their later attestation in Talmudic sources? In his discussion of this set of cases, Greengus attributes this continuity, correctly in my view, to continuity of practice within the biblical and post-biblical Jewish communities. In other words, the gap in attestation does not imply that these laws were somehow unknown to pre-exilic and early post-exilic Israel. Rather, Greengus suggests that these laws resemble what the rabbis describe as "the oral Torah:" the body of legal traditions that would have been known "from Sinai," as it were, even though they are not part of the written record of the laws Moses received there. The advantage of Greengus's position is that it accounts not only for similarities, but also for differences, between the various manifestations of the law. The idea that rabbinic laws might reflect common practices within a much older legal tradition affords a measure of flexibility when we encounter the available evidence that Greengus presents. Let's consider the example of regulations concerning assaults on dignity (pp. 136-139). Greengus relates the rabbinic regulations to antecedents in the Laws of Eshnunna and the Laws of Hammurabi and even shows how they were put into practice in an Old Babylonian trial record. If we were looking for an exact correspondence in all of the examples, however, we'd come up short; none of the sources states exactly the same thing. I should add that in this particular case--in contrast, say, to the more famous cases of "goring oxen"-- even the examples of assaults are different: hitting cheeks in the Akkadian legal sources, and a wider range of behaviors in the Hebrew texts. Nevertheless, following Greengus, all of these cases belong within the same tradition of legal practice, one that specifically stipulates penalties for inflicting shame. The kind of evidence Greengus brings together in this case-- the basic legal idea of assessing damages for humiliation manifest differently in a variety of laws-- is precisely the kind of evidence that underlies the "idea of a shared tradition." Most significantly, as Bruce Wells and Rachel Magdalene have pointed out, Westbrook's "idea of a shared tradition" explains both "macro" similarities and "micro" differences between the various manifestations of the tradition.[i] If I may borrow their formulation, it is an effective way of coming to terms with both the quantity and the quality of data that reveal striking similarities at the level of fundamental law while, at the same time, exhibiting differences in the finer details.[ii] Appeal to a shared tradition is especially important when we consider the set of legal practices that appear in cuneiform and reappear in rabbinic sources but "skip" the Bible, so to speak. This gap in attestation means that, from the rabbinic perspective, there is no basic textual anchor for the practices. Therefore, when the laws "re-emerge" in rabbinic literature, it is difficult to attribute this development only to rabbinic interpretation of the Hebrew Bible. Here, we might cite the example of penalties for negligence in agricultural leases, which are stipulated in Akkadian law collections and documents of practice, and are recorded in the Mishna and Tosefta, but are not regulated in the Pentateuch (pp. 240- 245). Now, of course, the lack of an explicit biblical prooftext is hardly an obstacle for rabbinic midrash. Thus, it is all the more striking that rabbinic literature and even later codifiers do not attempt, as far as I know, to provide a specific source, even midrashically, for these practices. In fact, as Greengus shows, there are various traditions, even within rabbinic law, about how to assess the penalties. The only source the Mishna cites is the very language of written leases themselves. Here, I think, we see the law explicitly recognizing legal practice as its source while practically ignoring the Bible as a source of law. I hasten to add that even if we did have a rabbinic teaching that pointed to one prooftext or another, we would still have to give traditional practice priority over exegesis as the source of law. The Mishna's direct citation of the wording of the lease points to another important body of evidence in support of the idea of a shared tradition: legal formulations. Here, I am referring to the language used mainly in documents that record individual legal transactions. The very same legal tradition that gave birth to the basic similarities in legal practice also had a tradition of legal writing. Sales, marriages, lawsuits and debts were all recorded according to conventions that, like the law itself, are remarkably stable over time. In fact, I would consider the formulary of rabbinic legal documents, and Aramaic legal documents, in general, as a significant, even the most significant, survival from the cuneiform legal tradition. And, like the laws governing renters' negligence or penalties for assaults on dignity, the formulations of rabbinic legal documents are not drawn from biblical precedents. They are in Aramaic, not Hebrew; the rabbis themselves, in their discussion of the Mishna's citation of the lease (b. BM 104a), describe it and other similar formulations as leshon hedyot, or "common language." Here, we would do well to invoke the work of Yochanan Muffs, of blessed memory, whose Studies in the Aramaic Legal Papyri from Elephantine (Brill, 1969) is missing from Greengus's bibliography. Muffs has shown that legal phrases in Aramaic-- from Elephantine and also in later, rabbinic texts-- preserve earlier Akkadian formulations through inter-linguistic translations, or calques. The Aramaic and Akkadian legal records share phrases that have identical semantic meanings functioning in legally identical contexts. Thus, according to Muffs, "the Aramaic legal formulary is the recipient of millennia of cuneiform legal experience" (p. 14). We can observe this kind of linguistic continuity in one of the examples that Greengus himself presents, namely, the range of guarantees that a seller assumes in the sale of chattel slaves (pp. 113-116). These guarantees govern two main areas: clear title to the slave and the slave's health. As Greengus correctly points out, all of these guarantees—from the regulations found in Hammurabi's Code, through the Old Babylonian and Neo-Assyrian slave sale documents, and beyond them to R. Judah's ruling in the Talmud—all properly belong to the wider set of defension clauses, attested in legal documents in both cuneiform and Aramaic. Let us follow Greengus's lead and consider the rabbinic formulation together with a Neo-Babylonian defension clause:
- R. Judah's defension clauses (b. Git 86a)
- R. Dimi of Nehardea (b. B. Bat 63b--Variants cited from www.lieberman-institute.com)
[i] Bruce Wells, "The Idea of a Shared Tradition," in Law from the Tigris to the Tiber, pp. xii-xiii (citing Magdalene in n. 3).
[ii] Wells, xiii.
[iii] I have in mind Jakob Grimm's observations regarding die Poesie im Rechts. On this, see Calvert W. Watkins, How to Kill a Dragon (Innsbruck, 1994), p. 718.