The strangeness of Jewish civil law

"The first issue in the book is perhaps the most important: the enigma of Jewish criminal law. This aspect of Jewish jurisprudence is mysteriously vague, and the question is why. In fact, one finds very few social misdemeanors ("that is, crimes committed by humans against other humans") identified in Jewish law, and attempts to penalize offenders on the basis of evidence are systematically blocked by the impossibility of satisfying the requirements. ("Murder, for example, must have been observed by two witnesses, both of whom have to have seen the crime in the process of being committed, and both of whom are required to have warned the suspect of the gravity of his actions, among other things.") This phenomenon cannot be characterized as a lacuna. A legal lacuna is created by the limitations of human thought, by the failure of lawmakers, as brilliant as they may be, to imagine every possible scenario.

As Plato says in his dialogue The Statesman: "... the law does not perfectly comprehend what is noblest and most just for all and therefore cannot enforce what is best. The differences of men and actions, and the endless irregular movements of human things, do not admit of any universal and simple rule. And no art whatsoever can lay down a rule which will last for all time."

But in the case of mishpat ivri, it is not a matter of oversight. Societies establish codes of criminal law before they address other branches of jurisprudence: Criminal law is first and foremost a product of fear of social deviants and the need to create a defense against them. It is illogical to assume that this omission is inadvertent. Enker's approach to this problem is based on the kind of multi-level analysis that is familiar from halakha ("Jewish religious or ritual law"). Different strata include the "law of the sovereign," or the king, as one possible concretization of sovereignty, and the power of a court to impose punishment that is not cited in the Torah. "

See here..

Comment: Might not the difficulty of enforcing Torah punishments have something to do with the institution of "goel hadam". As we see from the story of Amnon and Tamar, and Avsholom's exacting revenge for his sister from Amnon, the society of the times had a working method for deterring interpersonal offences, so that the "formal" law could afford to pursue a more utopian vision.

Comments

[b]

"the society of the times had a working method for deterring interpersonal offences"

Firstly, the method was illegal, even according to any standard of Torah law. The rape of a single woman is not punishable by death, and even if we were talking about the "law of the sovereign", Avshalom was not the king nor was he acting on the king's or Sanhedrin's orders.

Secondly, the allegedly "working method" does not seem to have worked so well since no one learned anything from it. Amnon learned nothing from it since he was dead, having been illegally murdered by Avshalom. Avshalom doesn't seem to have learned anything from it since he continued in his arrogant and troublemongering ways even to a greater extent, going on to try to dethrone David himself, raping David's concubines in the process, the very sin he killed Amnon for.

[avakesh]

On the contrary, one cannot understand the story of Avshalom and Tamar, the argument of the woman from Tekoa and many other things in Tanach (the dispossession of Yiftah, for example, see Radka) without noting the existence of a parallel law system. The argument of the Tekoeite woman makes sense only of you assume that she and Dovid Hamelech shared an assumption that it was the family or the trbe that had an obligation to protect its members. This obligation, the woman claimed, did not extend to inter-brother rivalry, for resons she explained. You see that it was not concieved in terms of individual's standing before the law, as in Torah law, but his or her standing within the family or tribe.

The thread that runs thorughout the story of Avshalom is not rape but arrogation of power. It was up to the Patriarch to impose punishment and to uphold Tamar's honor but Avshsalom took on that positioin, as he did when he aspired to malchus.

[b]

The story of Avshalom and Tamar can simply be understood in terms of Avshalom deciding to take the law into his own hands, legally or not, as he and others (c.f. Adoniyahu or Amnon himself) did on other occasions. The dispossession of Yiftah can be atribbuted to ignorant frontier judges and justice, which were not lacking even in those early generations. The Teqoite woman might simply have been requesting protection from threatened vigilantism. According to your theory, what is the source of this parrallel system, who made it and where does it end? When the Torah said "Lo Tirtzah" wherefrom derives the authority to make limitations and qualifications to that commandment that are not specifically stated in the Halakhah?

[avakesh]

The parallel system ahs many echoes within the normative system; I mentioned some. The Torah chose to regulate some of its most meggregiousl aspects under its own laws, leaving the majority to local minhag. You have to be able to see and feel the society of that time, when individuals were to an important extent parts of family, clan and tribe. The Torah Law that we have is eternal and for indiviudals, unrelated to any other role thye may fulfill.
Other examples of extra-Torah parallel system:
1.Mishpat Hamelech
2.Goel Hadam and regulation of this most extreme application of the parallel law.
3.B"D makkin v'onshim shelo min hadin
4.Mored Bamalchus
5.Folowing zekeinim - in the bais rishon period, ziknei hashevatim
6.Yafas Toar and other regulations of war

Without that you are forced into a great deal of strained exegesis of many passages in Tanach, not that I have anything against that. But this a global answer that avoids having to provide literally hundreds of 'local' answers.

In essence it is no different than takkons and gezeiros of later period. One can also claim that it was Torah Shebaal Peh that no longer applied after golus rishon, since teh tribal system on which it wa predicated was no longer in existence.

[b]

So according to your theory, Jewish civil and criminal law as codified in the Talmud is a purely theoretical, visionary system for Messianic times and has never had any practical relevance to daily life, even in the time of the Prophets. Instead, we live by these parallel systems such as civil law, tribal customs, international treaties, etc. Then why spend so much time on it - we would do better studying and developing better parallel systems that are practical for real life today.

You write,"One can also claim that it was Torah Shebaal Peh that no longer applied after golus rishon, since teh tribal system on which it wa predicated was no longer in existence." Actually, this issue of the "strangeness" of Jewish crimial law has bothered me for a long time and I have thought of solutions along similar lines but in the opposite direction: That in the time of the Prophets the practical halakhah was more in line with the simple meaning of the pasukim which usually allowed for harsher penalties - or, if you wish, more liberal dispensation of justice - than the halakha extracted by the drashot in the Talmud. Only later, in the time of the Second Temple, when such harsh Din could no longer be tolerated, drashot were implemented to soften their formal application, leaving to the principles of Hora'at Sha'ah and בית דין מכין ועונשין שלא מין הדין to handle those cases where the formal halakhah would not work. I have a number of proofs for this.