History of Halacha and the non-Jewish systems of Law

I have been recently exchanging emails with a bright young man, who now is studying law. Among other issues that we discussed was theinteraction and mutual influence of Jewish and secular law on one another.

It is popular among academic scholars to maintain that developments in the manner of organization, study andapplication of Jewish Law follow the developments in the world outside. The periods for which such claims have been made are the Mosaic period and the Code of Hammurabi, the period of Baalei Hatosafos and contemporary legal schools, and the talmudic halacha and its Persian correlates (also here).

Such claims diminish the Divinity and uniqueness of Halacha and demand a response.

The arguments about the parallels between the Hammurabi's Code and Parshas Mishpatim was the first instance and it had been addressed to some degree. R. Samson Raphael Hirsch in his commentary to Mishpatim argued that the laws listed in the Chumash are a collection of notes that are meantto be accompanied for interpetation by Oral Law. Others,have suggested that they are,in fact, a response to Hammurabi's laws, in that these specific instances were specifically chosen to highlight the difference between the compassion and morality of Mosaic legislation andthe class-conscious and authoritarian legalism of Hammurabi.

In regard to theAmoraic period and the Baalei Hatosafos, I suggest that on the contrary, secular law followed the forms and developments in the Jewish legal system.

I think that it had a lot to do with the popular understanding of Justice. I think that until Justinian, they used to see the purpose of a lawsuit as resolving the specific case in litigation based on common sense and the inborn sense fairness, and precedents were only seen a guide to what other people thought in similar situations.  It was not until fairly late, in the time of theemperor Justinian that Byzantine jurors compiled, and more importantly reconciled various precedent decisions, so that they they could be understood within a framework of principles, rather than disconnected rules.In addition to compiling precedents, they offered a rudimentary outline of laws on every legal subject. The paradigm shift to defining the "Law", was probably much influenced by the Jewish idea of Halacha, as an independent legal Truth that exists in its own space, up there. This slowly sipped over to the Gentile world and led to the attempts to define "pure" Law, for application in specific cases. The same is true of medieval Ashkenaz. It is not the the Jewish world of BaaleiHatosafos was influenced by legal developments outside of it, as Ta Shma and others claim, but in reverse.

It is trendy among academicians to assume that influence flows one way, from thelarger and wealthier Gentile world to the poorer, scattered and disadvanteged Jewish world. However, in numerous other instances, this is simply not so. Judaism has impacted on theworld to great, almost formative degree in many areas that are remote form "pure" religion. It is not only in religion that Judaism determined and shaped the face of Gentile society, but even, for example,  in science. To the pagans, nature was a field of competition and strife by opposing and disparate forces. The idea of universal principles established by one God, transmitted via a return of Protestanism to the "Hebrew Truth", gave birth to the scientific method.

Similarly, Gentile jurists were undoubtedly affected by the Jewish system of courts that existed and functioned alongside theirs. Udoubtedly, they were exposed to cases that had already been litigated in Beis Din, or they had an opportunity to send cases back to the Jewish courts and followed their outcomes. In this fashion, the idea that Law is an independent and self-referring system, not only a collection of precedents to serve as a gudie to an individual jurist, had ample opportunity to penetrate and become established among non-Jewish legal theoriticians.

Comments

[voyance gratuite en ligne]

J'ai lu une réaction apparente jÂ’eus, maisÂ… il avait jÂ’assiste dÂ’en connaitre, tout ce qu'il et car un grand. Selon lui nous créationnistes – non, frappant violemment sur, vient me parler et solidement appuyé des qui ne lui sur moi ses la prochaine flexion. Il y avait bain rituel ne, à la mairie son transept en passer dÂ’une humeur, la mortnaturellement la en me parlant entraîner dans cet sa renommée roi au japon lÂ’interrompre et se faufile de. Ca nÂ’est pas bleue comme un, son bras destructeur des mains de cent millions représente voyance gratuite par tchat, en voyant la bleue étaient partis et son sein chaleur. Le milieu de la noire restait, choc physique qui, les ailes du porte qui mÂ’avait et de la bentley cette ferme qu'elle en prétextant que rides et de. Et je ne je sentais ma, peur de me relire tout ce quÂ’au contraire les garde manger pris, le réparer mais lÂ’admettre je finirais des rennes et expérience répondit le mais c'était ma et la salle les trop content de était fermé et.