Two cases of adultery and the halakhic decision-making process
Biblical sources that speak of God's participation in human courts notwithstanding, the judicial decision-making process is a human act.On biblical sources, see Ḥanina Ben-Menaḥem, “Postscript: The Judicial Process and the Nature of Jewish Law,” in An Introduction to the History and Sources of...
| Subtitles: | Research Article |
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| Main Author: | |
| Format: | Electronic Article |
| Language: | English |
| Check availability: | HBZ Gateway |
| Journals Online & Print: | Drawer...
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| Fernleihe: | Fernleihe für die Fachinformationsdienste |
| Published: |
University of Pennsylvania Press
[2002]
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| In: |
AJS review
Year: 2002, Volume: 26, Issue: 2, Pages: 277-300 |
| Further subjects: | B
Women
B Urine B Canon laws B Husbands B Rumors B Adultery B Rabbis B Talmud B Cellars B Jewish Law |
| Online Access: |
Volltext (kostenfrei) Volltext (lizenzpflichtig) Volltext (lizenzpflichtig) |
| Summary: | Biblical sources that speak of God's participation in human courts notwithstanding, the judicial decision-making process is a human act.On biblical sources, see Ḥanina Ben-Menaḥem, “Postscript: The Judicial Process and the Nature of Jewish Law,” in An Introduction to the History and Sources of Jewish Law, ed. N. Hecht et al. (Oxford: Clarendon Press, 1996), pp. 423–424, 434. Rabbinic authorities, like judges in other legal systems, are fully subject to the many factors beyond the formal rubric of the law that influence interpretation, including educational background and personal experiences and values.From a historical perspective, there is no place for conjectures that halakhic decision-making simply uncovers what was already revealed at Sinai or that it reflects ongoing divine revelation. See the summary of such views in Aaron Kirschenbaum, “Subjectivity in Rabbinic Decision-Making,” in Rabbinic Authority and Personal Autonomy, ed. Moshe Sokol (Northvale, NJ: Jason Aronson, 1992), pp. 63–64, 66–67. A criticism of judges as “living oracles” of the law who simply pronounce the meaning of various statutes in general jurisprudence can be found in Jerome Frank, Law and the Modern Mind (1930; reprint ed., Gloucester, MA: Peter Smith, 1970), pp. 35–36. Still, construing jurists may not always be aware of the existence of such non-legal considerations in their thought, and the influence that such concerns wield may rest just beneath their consciousness.See Benjamin Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921), p. 167. Even when they were aware of the influence of extra-legal factors, medieval and pre-modern Ashkenazic rabbis seldom, if ever, revealed them in the course of their halakhic discussions, for the halakhah, like any other legal system, has its own terms of discourse that rarely admit uncloaked expressions of extra-legal concerns into its process of reasoning.Hanina Ben-Menahem, Judicial Deviation in Talmudic Law (Chur: Harwood, 1991), p. 13, argues that extralegal considerations were accepted in the decision-making process of the Babylonian Talmud but were rendered normative halakhic criteria by their incorporation into the halakhah by post-talmudic authorities. An extended discussion of extra-halakhic considerations in the legal thinking of Rabbi David Ibn Zimra (Egypt, Safed; 1479–1573) can be found in Samuel Morell, “Darkei ha-shikul be-meṣiut ha-speṣifit be-piskat ha-RaDBaZ,” in ‘Atarah le-Ḥayyim: Meḥkarim be-sifrut ha-talmudit ve-ha-rabbanit le-khevod Professor Ḥayyim Zalman Dimitrovski, ed. Daniel Boyarin et al. (Jerusalem: Magnes Press, 2000), pp. 413–438. On the question of determining matters based on internal legal standards alone, see Ernest Weinrib, The Idea of Private Law (Cambridge, MA: Harvard University Press, 1995), pp. 12–13, 23–24, comments germane to the halakhic endeavor as well. |
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| ISSN: | 1475-4541 |
| Contains: | Enthalten in: Association for Jewish Studies, AJS review
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| Persistent identifiers: | DOI: 10.1017/S0364009402000077 |