History of Jewish Law

Democracy is supposed to allow individuals the opportunity to follow their conception of the good without coercion. Generally speaking, Israel gives precedence to Judaism over liberalism. This article argues that the reverse should be the case. In Section I it is explained what the Halachic grounds for discrimination against women are. Section II concerns the Israeli legal framework and the role of the family courts. Section III considers Israeli egalitarian legislation and groundbreaking Supreme Court precedents designed to promote gender equality. Section IV analyses inegalitarian manifestations of Orthodox Judaism in Israeli society today, especially discriminatory practices in matters of personal status. It is argued that Judaism needs to adapt gender equality because of Israel's commitment to human rights. Israeli leaders should strive to close the unfortunate gap between the valuable aims and affirmations voiced in the 1948 Deceleration of Independence and the reality of unequal political and social rights for women.

In this article, I examine jurisprudence textbooks and related works written in the British Empire in the late-19th and early-20th centuries, focusing mostly on British India, but also discussing Mandatory Palestine and British-ruled Egypt. Some of the jurisprudential works from the British Empire were merely summaries of the leading English books. However, there were also more original works, characterized by several unique features. First, some of the works produced in the Empire were more influenced by Continental and American legal theories than the equivalent English textbooks (for example, by early-20th-century French and American sociological approaches to law). Second, the need to mention non-English legal systems in these works sometimes led their authors to question key English notions about the nature and development of law (critiquing, for example, Henry Maine’s description of Hindu law). Finally, some nationalist local legal scholars also created a unique genre of jurisprudential works: texts that used western jurisprudential theories to describe the main features of non-western legal systems, such as Hindu, Jewish and Islamic law.

These unique aspects of colonial jurisprudential works illustrate a broader phenomenon: the fact that legal scholars in imperial peripheries were not always simply passive receivers of ideas produced at the center of empires, but in some cases created works containing interesting jurisprudential insights. The notion that the British Empire was a “legal laboratory” in which legal scholars experimented with new ideas has already been discussed in the literature, largely based on examples taken from the fields of legislation (the codification of English law in 19th-century India), or forensic science. This article explores the extent to which the British Empire was also a site of jurisprudential innovation.

A look at how the various halakhic strategies for inclusion of non-observant Jews - primarily that of tinok she'nishba - produce a discourse that can be seen as patronizing and unhelpful, and the proposal of a different strategy which embodies a more respectful ethos and which more accurately reflects contemporary realities.

In this essay I analyze three lengthy passages of Tosafot on the Bavli through a "law and literature" lens. I identify rhetorical and literary features common to all three, after which I model a close reading of one passage: Tosafot to B. AZ 2a, s.v. "asur." That reading demonstrates that the Tosafist passage is actually a carefully structured sustained argument designed to persuade the reader of the rightness of Rabbenu Tam's view of the issue at hand.

Jewish marriage has undergone many metamorphoses. It seems that originally, a husband could divorce a wife against her will, but a wife could not be divorced without her husband’s agreement (while some major authorities, e.g. Rabbenu Gershom and Rambam, hold that even under original Torah law any woman really fed up with her husband could forfeit her ketubba and receive a coerced divorce). Later, at the end of the Talmudic period or at least from the 7th century (Rabbanan Sevora’ei), halakha moved to a symmetrical situation: not only the husband but also the wife could unilaterally end the marriage. Then, after Rabbenu Gershom forbade the husband to unilaterally divorce his wife, the pendulum swung to the opposite pole: for about a century, only the wife could coerce the husband to divorce her, while he was forbidden to do so against her will. At this time, halakha (at least in Ashkenaz) was directly contrary to the original position. After that, Rabbenu Tam restored symmetry between the spouses – but in a manner opposite to what had been the case until Rabbenu Gershom: now, not only the man but also the woman could not exit the marriage, unless the partner concurred. For the first time since Mount Sinai, both partners entering a Jewish marriage knew that they might become hostage to the other.
This article was published in Conversations 23 (Autumn 2015)

This volume provides an authoritative collection of freshly translated and annotated canonical and classic texts on sex, marriage, and family from Judaism, Christianity, Islam, Hinduism, Confucianism, and Buddhism. Designed to introduce the rich family teachings of the world religions in and on their own terms, the reader includes differing and enduring genres of text – legal, theological, poetic, and liturgical – from the founding eras of these traditions until early modern times. The texts for each tradition are selected and arranged with an eye to their usefulness for comparison with texts from other religions.