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Halakhah: The Rabbinic Idea of Law

Explore the transformation of Jewish law by the rabbis into a comprehensive system for regulating behavior, studying religious practice, and articulating major ideas. Examine how law can transcend its application and teach through the process of regulation.

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Halakhah: The Rabbinic Idea of Law

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  1. Halakhah: The Rabbinic Idea of Law Chaim Saiman Professor of Law, Villanova University

  2. Rabbinic Law as Culture:How the Rabbis TransformedJewish Law into a Way of Talking about Everything

  3. What is law for? • Regulation to curtail wrongdoing • Coordination to enable mass society to function

  4. Contract law as a spiritual practice?

  5. Halakhah’s curious features • Talmud Torah • Relevant to functional and non-functional forms of halakhah • Study as a religious practice • God learns Torah, an expression of divine perfection • Halakhah & State • Destruction of Commonwealth & emergence of halakhah • Unusual relationship between political power and legal system • Law can be produced, discussed studies and articulated independent of its application.

  6. Halakhah as Torah • Talmud Torah stresses that halakhah “applies” not only when carried out as law, but when standing as a normative idea in a system that continuously studies, analyzes, cross-references its foundational concepts. • The question is not only what halakhah regulates but what it teaches through the process of regulation.

  7. Minor details & Major ideas. Mishnah Shabbat 6:4 A man should not go out [on Shabbat] Not with a sword, bow, shield, mace or a spear. And if he did, he is liable for a sin offering. R. Eliezer says: They are an adornment for him. But the Sages say, They are but a disgrace. For the verse states (Isaiah 2:4) “They will beat their swords into plowshares and their spears into pruning hooks. Nation will not take up sword against nation, nor will they train for war anymore.”

  8. “an adornment for him”

  9. What makes the Sages go messianic?

  10. What’s Behind the Issue?(B. Shabbat 63a) R. Eliezer: There is no difference between this world and the days of the Messiah, Except that Israel will not be subjugated to the Nations. Sages: All the prophecies recorded by the prophets speak of the days of the Messiah. But regarding the World to Come No eye has seen what God will do for those who await Him (Isaiah 64:3)

  11. Jerusalem Talmud Shabbat 36b:3 • What is the reasoning of R. Eliezer? • Gird your sword on your side, you mighty one, clothe yourself with splendor and majesty. (Ps. 45:4) • What is the reasoning of the Sages? • And they shall cut their swords into plowshares

  12. Halakhah as a medium of Law/ Regulation Torah/Devotion

  13. Part III: Implications and complications of nestling broader concepts in law.

  14. The main business of a lawyer is to take the romance, the mystery, they irony, the ambiguity out of everything he touches. --Panel at Julliard School, 2005

  15. Law’s Imperializing tendencies • Social systems can exists with multiple norms, but law aims to flatten everything. • Law can answer narrow legal questions but not enduring fundamental questions • Central tension for halakhah: Using the same group of texts and ideas as narrow legal texts and broad cultural texts.

  16. Example: Measuring man or measuring Man? Deuteronomy 21 If you find someone slain in the field in the . . .and you don’t know who murdered him. The elders and the judges will go out and measure the cities closest to the slain. The elders from the town nearest the slain will will take a heifer … down to the river …. And they shall break its neck by the river.

  17. If the corpse’s head was found in one place, and the remainder of the body in another place: They would bring the head to the body— the words of R. Eliezer. Rabbi Akiva says: They bring the body to the head. From which part of the corpse do they measure? Rabbi Eliezer says: from his navel Rabbi Akiva says: from his nostrils --Mishnah Sotah Ch 9 (3rd Cent.)

  18. Does this Ever Happen? The Bridge

  19. Law as Torah What are they arguing about? One master [R’ Akiva] holds: The primary element of life in his nostrils. The other [R’ Eliezer] holds: The primary element of life is in his navel. --Talmud Sotah 45a (5/6th century)

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