Originally published in Journal of Jewish Studies 31:2.
Bernard S. Jackson (ed.), Modern Research in Jewish Law (The Jewish Law Annual; Supplement One). Brill, Leiden, 1980. vii, 157 pp. Fl. 56.
Professor Izhak Englard published some years ago in the Hebrew journal Mishpatim a critique of modern research methods in Jewish law. This was followed in the same journal by two responses, by Menachem Elon and Baruch Shiber. These three articles are here published in English translation together with a section on legal methodology from the book by Shalom Albeck, Dine mamonot batalmud, one of the targets of Englard’s criticism. All four authors belong in the ranks of religious Orthodoxy. The learned editor has felt it advisable, in providing material for further discussion, to add an essay of his own, in which he presents his theoretical approach, as he calls it, and a contribution by Justice Haim H. Cohn, who describes his approach as ‘secular’, i.e. an attempt to preserve and cherish Jewish law as a product of Jewish culture.
The main issue around which the discussion revolves is the relationship between the history of Jewish law, the process of development in response to external conditions, uncovered by modern research techniques, and the law’s dogmatic formulations according to the methodological principle used by traditional Halakhists, in which the law has, as it were, a life of its own impervious to any demands from outside its closed system. This is a problem for any legal system but is especially acute in Judaism in that the Halakhah makes the tremendous claim for itself that it is the expression of the eternal voice of God and is consequently immutable. Is it possible to cope with the problem by distinguishing between Mishpat ‘Ivri, the term now in use for Jewish civil law, which can be said to allow far more scope for the human element, and religious law, in which the basic premises are ‘given’ by divine revelation, or is the very term Mishpat ‘Ivri artificial and question-begging? The editor remarks in his Preface: ‘Academic writers are commonly exercised and excited by methodological questions. When the issues involve in addition religious ideology and state policy, we may not be surprised to find them debated with considerable heat’.
After faulting the methods of Asher Gulak, Elon and Albeck, whom he acknowledges nonetheless to be outstanding scholars of Jewish law, Englard attempts to lay down a number of principles which, he believes, if followed, will result in a more refined and authentic treatment. The object of the research must be the totality of the Jewish legal heritage, no distinction being made between ‘religious’ and ‘non-religious’ aspects. The research must be ‘pure’ in the sense that it is not engaged in for the purpose of any practical consequences since that would introduce an element of subjectivity, nor must there be any prior ideological assumptions as to the results of the research. Finally, the only but very important concession to a methodology used in the investigation of other legal systems is the presentation in a systematic way of material that is in essence non-systematic. Englard maintains that the most fruitful results are likely to be attained from the investigation of those Halakhic institutions which have no counterpart in other systems of law. Elon, in his come-back, claims that the distinction between civil and religious law is, in fact, inherent in the Jewish sources. He admits that he uses value judgements but then so does every other scholar including Englard himself whose anti-value judgement is itself a value judgement. Elon maintains that the whole thrust of Englard’s critique is really in support of a thesis he has advanced elsewhere, namely, that in order to preserve the Halakhah in its pristine purity, it must not be integrated into the legal system of the State of Israel. At this stage, it seems to an outside observer, the debate has more to do with politics than with scholarship.
Justice Cohn argues from the secularist standpoint that the law is man-made, although the traditional belief in its divine origin does endow the law with special significance. Jewish law, says Cohn, is in its totality ethics, justice and equity; and the right method to explore and expound the law is to grasp its essence.
The editor’s summary prefers to consider the diverse theories evident in the debate. His analysis of the theoretical issues is deft and stimulating, though it is hard to see how the question of ‘reasons for the mitzvot’ is at all germane since the reasons suggested by the philosophers are never allowed a voice in developing the Halakhah. (The well-known statement that R. Simeon ‘expounded the reason for the Scriptural verse’ has often been misunderstood. R. Simeon is not said to have allowed reason a voice in the application of the divine law, but to have given reasons, not evident on the surface, so as to determine the original meaning of the law. Much could be said on this but it is vital to note the operative word ‘expounded’—darash.) Jackson adds that one methodological conclusion is ‘safe enough’. This is that progress will be achieved by collective effort, not by the individual who flies his flag, disputes the credentials of his opponents, and seeks to refute every criticism as if he alone represented the words of the living God. He concludes: ‘May this symposium prove the beginning of a serious and fruitful debate’; to which, presumably, even the secularist will wish to say, Amen.
Leo Baeck College, London