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This book examines biblical and rabbinic law as a coherent, continuing legal tradition. It explains the relationship between religion and law and the interaction between law and morality. Abundant selections from primary Jewish sources, many newly translated, enable the reader to address the tradition directly as a living body of law with emphasis on the concerns that are primary for lawyers, legislators, and judges. Through an in-depth examination of personal injury law and marriage and divorce law, the book explores jurisprudential issues important for any legal system and displays the primary characteristics of Jewish law.
A Living Tree will be of special interest to students of law and to Jews curious about the legal dimensions of their tradition. The authors provide sufficient explanations of the sources and their significance to make it unnecessary for the reader to have a background in either Jewish studies or law.
"This book is terrific. It provides the relevant legal sources for comprehending Jewish law and additional information (historical, sociological, etc.) for understanding the evolution of Jewish Law. The authors' comments are invariably clear and helpful and frequently insightful. The book is not only interesting but it is exciting. The topic is important to Judaic studies and to historical studies in general. It is the best collection of material on Jewish law available in the United States." — Martin Edelman, State University of New York at Albany
"What I like most about this book is the breadth of treatment without sacrifice of depth or sophistication. This is a fine English language introduction to Jewish law"— David Goodblatt, University of Maryland at College Park
"A Living Tree is, in our opinion, from both a pedagogical and a scholarly perspective, the finest book of its kind available today. The unique features of this book make it a valuable contribution to the scholarship of the field. Indeed, in many ways, we would expect that this book will become the standard English work on Jewish law."— Rabbi David Saperstein and Sherman L. Cohn, Georgetown University Law Center
PREFACE
ACKNOWLEDGMENTS
Part I: The Literature and Methods of Jewish Law
INTRODUCTION
A. The Origins and Aims of This BookTopic One: Biblical Law
B. The Structure and Methods of This Book
C. Who Are the Jews?
D. Common Misconceptions About Jewish Law
A. The Biblical WorldTopic Two: The Biblical Law of Injury
B. Fundamentalist and Historical Approaches to the Bible
C. The Structure and Contents of the Bible
D. The Biblical Law Codes
A. The Covenant Code's Treatment of Personal InjuryTopic Three: Biblical Jurisprudence
B. The Code pf Hammurabi
C. The Hittite Laws
A. Law and World ViewTopic Four: Rabbinic Law of Injuries
B. Biblical Methods of Resolving Disputes
C. The Source of the Law and Legal Obedience: The Covenant
D. Reasons for Obeying the Law
E. Law and Justice in the Bible: The Relationship Between Moral Norms and God's World
F. Biblical Law and Change: Adapting Divine Law to New Circumstances
A. An Overview of the History and Literature of the Second Temple and Rabbinic PeriodsTopic Five: The Oral Torah: Rabbinic Exegesis and Oral Traditions
B. Midrash Halakhah
C. Mishnah
D. California Jury Instructions
E. Gemara on Injuries
F. Sectarian Laws of Injuries
A. Two Ways of Dealing with a Fixed Text I: Exegesis and Its JustificationTopic Six: The Authority and Morality of the Tradition
B. Two Ways of Dealing with a Fixed Text I: The Methods and Uses of Exegesis
C. Two Ways of Dealing with a Fixed Text II: The Oral Tradition
D. Continuity and Change
E. The Limits of the Flexibility of the Text and the Tradition: Opposition Movements in Jewish Legal History
A. The Basis for Obedience of the LawTopic Seven: Rabbinic Court Procedures
B. Law and Morality
A. The Structure and Jurisdiction of CourtsTopic Eight: The Repsonsa Literature
B. Systems of Proof and Rules of Evidence
C. Problems with Using Courts
D. Alternatives to Courts
A. The Talmudic and Geonic Periods: Hesitant BeginningsTopic Nine: Codes
B. The Eleventh to Fifteenth Centuries: Franco-Germany and the Spain-North Africa
C. The Sixteenth to Twentieth Centuries: The Aharonim of the Eastern Mediterranean and Eastern Europe
D. World War II - Present: America: Four Movements, Four Conceptions of Jewish Law
E. World War II - Present: Israel
A. The Types of Codes and Their UseTopic Ten: Legislation (Takkanot)
B. The Literature of Jewish Codification
C. Pros and Cons of Codification
D. Example of Codification: Maimonides on Personal Injuries
A. The Nature, Development and Justification of Legislation in Jewish LawTopic Eleven: Custom (Minhag)
B. Maimonides on Legislation: Mishneh Torah, Laws of Rebels (Mamrim)
C. Takkanot of Rabbenu Tam (R. Jacob B. Meir)
A. The Recognition of Binding Customs in Jewish and Common LawTopic Twelve: The Interaction Between Jewish Law and Common Law
B. The Interactions Between Custom and Law
C. Justifying the Authority of Custom
Part II: Marriage Topic Thirteen: The Nature of Marriage in Jewish and American Law
A. The Contractural Element in Jewish MarriageTopic Fourteen: Conflicts and Choice of Law I: Jewish Recognition of Civil Marriage and Divorce
B. The Contractural Element of Marriage in Civil Law
C. The Social Element in Jewish Marriage
D. The Sacred Element in Jewish Marriage
A. Choice of Law in the Common LawTopic Fifteen: Conflicts and Choice of Law II: Civil Recognition of Jewish Marriage and DivorceTopic Sixteen: Epilogue: The Future of Jewish Law
B. Rabbinic Choice of Law
C. Dina De-Malkhuta Dina and the Traditional Refusal to Recognize Civil Divorce
D. The Operation of Jewish Marital Law Within the Context of Binding, Civil Marital Law
A. Jewish Law in IsraelAppendix A: Time-Line on Jewish LawAppendix B: Books of the Hebrew BibleAppendix C: The Structure of the Mishnah INDEX OF SUBJECTS
B. The United States
C. Limits on Jewish Law
INDEX OF SOURCES