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Halivni (Rubenstein Trans.), “The Formation of the Babylonian Talmud”

This May, Oxford University Press will publish The Formation of the Babylonian Talmud by David Weiss Halivni (Jewish Theological Seminary, Columbia University, the Hebrew University of Jerusalem, Bar-Ilan University, and Harvard Law School) and translated by Jeffery L. Rubenstein (NYU).  The publisher’s description follows.The Formation

David Weiss Halivni’s The Formation of the Babylonian Talmud, originally published in Hebrew and here translated by Jeffrey L. Rubenstein, is widely regarded as the most comprehensive scholarly examination of the processes of composition and editing of the Babylonian Talmud.

Halivni presents the summation of a lifetime of scholarship and the conclusions of his multivolume Talmudic commentary, Sources and Traditions (Meqorot umesorot). Arguing against the traditional view that the Talmud was composed c. 450 CE by the last of the named sages in the Talmud, the Amoraim, Halivni proposes that its formation took place over a much longer period of time, not reaching its final form until about 750 CE. The Talmud consists of many literary strata or layers, with later layers commenting upon and reinterpreting earlier layers. The later layers differ qualitatively from the earlier layers, and were composed by anonymous sages whom Halivni calls Stammaim. These sages were the true author-editors of the Talmud. They reconstructed the reasons underpinning earlier rulings, created the dialectical argumentation characteristic of the Talmud, and formulated the literary units that make up the Talmudic text.

Halivni also discusses the history and development of rabbinic tradition from the Mishnah through the post-Talmudic legal codes, the types of dialectical analysis found in the different rabbinic works, and the roles of reciters, transmitters, compilers, and editors in the composition of the Talmud. This volume contains an introduction and annotations by Jeffrey L. Rubenstein.

Posted on by JCPW

Cohen-Almagor on Religious, Hateful, and Racist Speech in Israel

Raphael Cohen-Almagor (University of Hull) has posted Religious, Hateful, and Racist Speech in Israel. The abstract follows.

This essay is a study in politics and law. The first section of the paper explains Israel’s vulnerability as a Jewish, multicultural democracy in a hostile region, with significant schisms that divide the nation. Given Israel’s tenuous conditions, this paper is set to observe how Israel has coped with destabilizing expressions that aim to increase the rifts in society and to promote hatred against the other, whoever the other might be. This essay is largely concerned with Israel’s policy on hate speech and racial expressions as they have come into expression by religious authorities, and in that sense this study supplements similar studies conducted in the past. Those expressions have stemmed from the ideologically motivated religious authorities against two groups of people: those who aimed to give away parts of Israel’s territory, and Palestinian Arabs.

The paper presents the State Attorney’s stance regarding extreme statements made in the context of the disengagement from Gaza. Following that presentation, the paper continues by addressing the issue of religious incitement by Jewish and Moslem sages. What is suggested about fighting bigotry emanating from Jewish religious teaching is true also for hatred emanating from Islam. The argument is made that the State cannot sit idly by while senior officials incite racism and undermine the State’s democratic values. Such officials should be discharged of all responsibilities. The State ought to weigh the costs of allowing hate speech, as well as the risks involved, and balance these against the costs and risks to democracy and free speech associated with censorship. Israel needs to protect its citizens, both Jewish and non-Jewish, as well as to protect itself as a Jewish democracy. In doing so, Israel should not unnecessarily infringe on free expression or create discriminatory situations. It is not a small feat to achieve both. A balance needs to be struck between competing social interests. Freedom of expression is important as is the protection of vulnerable minorities.

Posted on by JCPW

Barzilai on Law, Politics, and the Adjudication of Religious Issues

Gad Barzilai (University of Washington – Henry M. Jackson School of International Studies) has posted Law is Politics. The abstract follows.

In his essay, “Law or Politics: Israeli Constitutional Adjudication as a Case Study,” Gideon Sapir is coping with some problems concerning adjudication of religious issues. He presumes that there is a certain dichotomy that differentiates “law” from “politics,” since the first deals with norms and the second with regulating and balancing political branches. Sapir’s article, in my opinion, proves that law is politics in a sense that law generates and embodies political and socioeconomic interests, identities, and consciousness. I argue below that politics cannot be differentiated from law, and therefore cannot respond to Sapir’s aspiration to de-politicize adjudication and to monitor and hamper the effects of personal backgrounds and worldviews on judicial rulings. I analyze some of Sapir’s findings and arguments from a critical perspective that law is politics.

The subject matter of religious justices in supreme courts are particularly relevant in countries where almost no institutional and constitutional separation between state and religion prevails. In countries like Israel that have not separated state from religion, and have used religion as part of state nationality and legal ideology, the background of the justices and their basic worldviews will most often be a reflection and articulation of interactions between religion, state power foci, and state ideology. The Israeli Jewish political elite has used Orthodox religion to legitimize the state, and hence has used the non-separation of nationality and religion embedded in Zionism, for political purposes.

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Resnicoff on Religion and Unethical Business Practices

Steven H. Resnicoff (DePaul University College of Law) has posted The Causes and Cures of Unethical Business Practices – A Jewish Perspective. The abstract follows.

The workplace seems increasingly characterized by unethical practices between and among employers, employees, customers, competitors and others, despite the fact that most leading religious traditions proscribe such conduct and many of the actors self-identify as religious. This paper examines this phenomenon through the prism of Jewish tradition. It identifies specific Jewish teachings that explain many types of misconduct and, where appropriate, it cites modern secular experiments that confirm these Judaic insights. Based on these teachings, the paper prescribes a series of steps that, if implemented, could enhance the integrity of business and financial actors. This is a working paper in connection with the Henry Kaufman Forum on Religious Traditions and Business Behavior sponsored by the Robert H. Smith School of Business at the University of Maryland.

Posted on by Mark Movsesian

Lecture: “Who is a Jew?” (Feb. 19)

Fordham’s Institute on Religion, Law & Lawyers’ Work will host a lecture, “‘Who is a Jew’: Israeli Law versus the Press,” on February 19. The speaker, Professor  Yifat Holzman-Gazit, will discuss a 2005 Israeli High Court decision on the validity of non-Orthodox conversions to Judaism performed outside Israel. Details are here.

Posted on by Mark Movsesian

Stern, “The Genius”

From Yale historian Eliyahu Stern, a new monograph on Rabbi Elijah of Vilna, the eighteenth-century Jewish law scholar and opponent of Hasidism, whose understanding of Jewish customs, or minhag, continues to have influence today: The Genius: Elijah of Vilna and the Making of Modern Judaism (Yale 2012). The publisher’s description follows:

Elijah ben Solomon, the “Genius of Vilna,” was perhaps the best-known and most understudied figure in modern Jewish history. This book offers a new narrative of Jewish modernity based on Elijah’s life and influence.

While the experience of Jews in modernity has often been described as a process of Western European secularization—with Jews becoming citizens of Western nation-states, congregants of reformed synagogues, and assimilated members of society—Stern uses Elijah’s story to highlight a different theory of modernization for European life. Religious movements such as Hasidism and anti-secular institutions such as the yeshiva emerged from the same democratization of knowledge and privatization of religion that gave rise to secular and universal movements and institutions. Claimed by traditionalists, enlighteners, Zionists, and the Orthodox, Elijah’s genius and its afterlife capture an all-embracing interpretation of the modern Jewish experience. Through the story of the “Vilna Gaon,” Stern presents a new model for understanding modern Jewish history and more generally the place of traditionalism and religious radicalism in modern Western life and thought.

Posted on by Mark Movsesian

Lytton, “Kosher”

From Harvard University Press, a new book by Timothy Lytton (Albany Law School) about kosher supervision in America, Kosher: Private Regulation in the Age of Industrial Food (forthcoming 2013). Looks very interesting. Here’s the publisher’s description:

Generating over $12 billion in annual sales, kosher food is big business. It is also an unheralded story of successful private-sector regulation in an era of growing public concern over the government’s ability to ensure food safety. Kosher uncovers how independent certification agencies rescued American kosher supervision from fraud and corruption and turned it into a model of nongovernmental administration.

Currently, a network of over three hundred private certifiers ensures the kosher status of food for over twelve million Americans, of whom only eight percent are religious Jews. But the system was not always so reliable. At the turn of the twentieth century, kosher meat production in the United States was  Read more

Posted on by Mark Movsesian

Lecture: “Law-Talk in Judaism”

Next month, Fordham’s Institute on Religion, Law & Lawyer’s Work will host a lecture by Rabbi Gordon Tucker, “Between Validity and Truth Falls the Shadow: Law-talk and God-talk in Judaism.” Details are here.

Posted on by Mark Movsesian

Mautner on Excluding Women from Torah Study

One of the many things that worries secular liberals about the revival of religion — assuming a revival is really occurring — is the traditionalism of the religious worldview. Since the Enlightenment, liberalism has taught that the individual must be free to  determine for himself, without the interference of tradition or traditional authority,  the meaning of existence and his place in the universe (see, e.g., Planned Parenthood v. Casey). The religious worldview rejects this idea. The meaning of the universe is determined by God, and wisdom lies in discovering His plan and accepting the place He has assigned you in it. (Of course, religions differ on the details of the plan!) There are important qualifications, of course. Liberalism doesn’t think people should just do what they want, and traditionalism doesn’t think that everything must always remain the same. But much of the tension between secular liberals and religious conservatives can be traced to these different premises.

Menachem Mautner (Tel Aviv University – Buchman Faculty of Law) has posted an interesting-looking piece that explores this tension in the context of Jewish law, or, more precisely, the study of Jewish law: A Dialogue between a Liberal and an Ultra-Orthodox on the Exclusion of Women from Torah Study. Here’s the abstract:

This is a fictive dialogue between a liberal and an ultra-Orthodox on the exclusion of women from Torah study. The dialogue begins with a lengthy discussion of the highly intricate preliminary problems of understanding and normatively evaluating the practices of another culture. The Liberal argues that the exclusion of women from Torah study precludes them from fully realizing the intellectual potential that lies within them, i.e., it denies them reaching the height of their human flourishing. It also implies that ultra-Orthodox women are regarded as having lesser moral worth than men.

The ultra-Orthodox argues that whereas modernity is premised on the denial of any status bestowed by tradition in the life of a person, for the ultra-Orthodox tradition has a binding force: it embodies God’s imperatives as to the good life, together with the ways these imperatives have been interpreted throughout the generations by Halakhic sages. Torah study is a religious imperative (mitzvah) that under the accepted tradition is Read more

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Kwall on Jewish Tradition as Intellectual Property

Roberta Rosenthal Kwall (DePaul University College of Law) has posted Is the Jewish Tradition Intellectual Property?  The abstract follows.

Whether works of authorship should be protected from unauthorized changes and, if so, in what manner, are questions of endless fascination to intellectual property scholars. Jewish law is not typically considered a “work of authorship” although in many ways it can be so viewed. This article is concerned with exploring the Jewish tradition as intellectual or cultural property. It focuses on the human dimension of creativity embodied in the Jewish tradition, and how that dimension is manifested in the rabbinic interpretation of Jewish law. The resulting tradition — as it is embodied in both the Jewish texts and lived by the people — has afforded the Jewish people their unique identity throughout the ages. Simply put, the Jewish tradition is a very unique form of cultural property. This analytical framework has significant implications for how to negotiate the balance between preservation and development of the tradition.