JEWISH LAW
Touro Law Center
Fall 2012 Semester
Professor Samuel Levine
I. STRUCTURE AND HISTORY OF JEWISH LAW
· 1312 B.C.E.—revelation at Mt. Sinai
o TORAH was written (= first five books of the Old Testament genesis narrative)
1. Exodus talks about slavery and the exodus of the slaves from Egypt
2. Levitticus has lots of legal material
3. Deutoronomy has Moses’ speech to the nation, and legal matters
4. Genesis is a narrative
5. Numbers is a narrative
· What is “Written” relates to every area of human endeavor: Ritual law, Civil Law, and minimal substantive law
· While the text in the Written Torah is the foundation; Oral interpretation is crucial (Oral Torah)
· The Torah parallels our U.S. Constitution: its interpretation has status of Biblical Law, or Biblical Authority, as the Constitution is the Supreme Law of the Land.
· In the Torah, there are 613 commandments, and all are subject to oral interpretation, each to be analyzed and applied to new circumstances.
· MISHNA, to some degree, attempted to codify the Oral Torah law and traditions.
· In Jewish Law (JL), judges interpret the rules and engage in legislation à Rabbinical authority is lower than Biblical Authority)
· D’ORAITA: law or rule is biblical law which has the highest degree of authority
o Ex: Rabbinical authority interprets cooking a kid in its mother’s milk as not allowing the consumption of dairy and meat together.
· JL is a system of obligations and duties; it is not a system of prohibitions
· 200 C.E.—Rabbinical authorities decide to systemize Jewish legal system; and, the MISHNA is the first comprehensive attempt to codify law and oral traditions.
o Mishna is concise in its literary form
o Often sets forth extreme cases because that makes it easier to apply in more simpler cases
o Incorporates dissenting opinions to explain the law more fully, and to understand the reasoning behind the majority opinion.
o Revolutionary in organization
o Form of legislation
o Sets the boundaries of legal authority for the future
o “Base line”
· MISHNA has 6 Categories:
1. Agricultural law and blessings
2. Festival/Holiday/Sabbath
3. Marriage/Divorce/Family
4. Damages/Torts/Property/Contract/Procedure (closest to American Law [AL])
5. Rites, Sacrifices, and Kosher Foods
6. Cleanliness, Purity, Ritual
· MISHNA became so diverse that the nation was losing uniformity; thus, the TALMUD was created
· TALMUD took a different interpretation and reached conclusions which became baseline/authoritative explanations
o Expansive and extensive discussions
o But, it focuses on areas of the MISHNA that are most relevant.
o Goes through an entire legal analysis; and, reads like an oral argument
o Provides guidance and eliminates uncertainty
o Explores written torah and mishna and is encyclopedic in scope.
o Not a code, but a transcript of debate, discussion, and analysis.
· Bailments are addressed in the Torah, Mishna, and Mishna Torah
· Abortion is addressed in the Mishna (if a woman’s life is threatened [while the baby is still inside of her], remove the live within her “limb by limb”; her like takes precedence)
o TALMUD calls the baby a “pursuer” (one trying to kill their mother); and, the Talmud says that one may dismember the embryo within the mother because its like a pursuer seeking to kill her. BUT, once the head has emerged, the baby cannot be harmed. “We do not set aside one life for another.”
o This abortion discussion only applies when the mother’s life is threatened; it does not apply to abortion by choice or “on demand”.
· Post-Talmudic legal authority issued decision called RESPONSA:
o States a question, and looks to Torah and Talmud to find the rule, and then it applies the rule with analysis and conclusion.
o Scope: anything asked.
o Authority: depends on reputation of the author.
o It’s not uniform in geographic area; so, this did result in different interpretations.
· TALMUD represented the last change at uniformity
· MAIMONIDES (RAMBAM) responded to this problem with a Restatement of sorts; he summarized the entire Talmud and Mishnaà MISHNA TORAH:
o Like the restatements, this work has no legal authority per se
o It is an authority on JL, however, and a scholarly work and digestion of the various findings and interpretations in JL
o Represents the entire corpus of JL
o Addresses all 613 commandments
o How to use it? Use it to locate the source of law on a particular subject of law, and then find that original source.
· SHULAHAN (Table) ARUCH (Set) was the next source of law, which was separated into 4 categories:
1. Laws of Everyday Life (holidays, prayers, etc.)
2. Kosher Laws
3. Torts/Contracts
4. Family Law
§ Limited in scope, but much more user-friendly than the Mishna Torah.
· After the 2nd Temple was destroyed, JL authorities cede much jurisdiction of criminal law to national authority under which they were living.
· Halakha = “the way”, or, the correct path
· Sannhedrin = the highest court in Jerusalem
· MAIMONIDES lists 2 categories of interpretation:
1. Details that cannot derived through logical or textual analysis. In these cases, the TALMUD states law, but there is no attempt to explain (e.g. details of ritual slaughtering are not in the TORAH, so they must have been given to Moses).
2. Definitions which, although presented to Moses, could have been derived as well. In these cases, TALMUD analyzes based on the text of the TORAH to come to a definition. This approach uses logic and observation. For example, the commandment that each individual slaughter a lamb had to be reconciled with the fact that most individuals didn’t slaughter lambs. The TALMUD extrapolated the principle of agency by interpreting the text to mean that agents could be appointed for this purpose.)
· TORAH MIMTZVOT mandates or prohibits certain activities.
o It is limited in authority to define or interpret these activities, though.
o E.g. interpretations provide details necessary to fulfill the commandment; for example, eating matzo made for Passover on Passover.
o New circumstances may arise as to the mitzvoth, and then interpretation may be invoked.
sitions are wrong; it is not ancient law and the OT who he speaks of. He says you need to consult the work of JL legal scholars, but he himself doesn’t! Judge Bright is wrong.
· Capital punishment cases cite to the bible; self incrimination cases cite to JL.
III. SELF-INCRIMINATION
· More than any other law, AL looks to JL in this area for a historical and a conceptual perspective.
· Miranda v. AZ: cites MAIMONIDES in a footnote for the principle that no man is to be declared guilty on his own admission; and, that is a divine decree (meaning, Biblical).
· Garrity v. NJ: also in a footnote, there is reference to the HALAKAH, and how it does NOT permit self incrimination due to a concern about death instinct. This discards confessions in toto because of the physiological insight and its concern about saving man from his destructive instincts (this particular case was about the choice between self incrimination and saving one’s job). This argument is more satisfying and convincing vis a vis JL.
· Moses v. Allard: 5th Amendment case dealing with privilege, which likely originated in ancient Talmudic law (or so the Judge who cited to it incorrectly thought)—the Judge cites to the Jewish principle that statements are untrustworthy and a person may not be of sound mind when self-incriminating.
· But ask yourself: Are these convincing applications? Do they apply JL on its own terms?
o Miranda protects against coercion, but it does not outlaw confessions.
· The rule against confessions is not per se found in the TORAH.
· Sources:
o TALMUD—a D cannot be punished on the basis of a confession (this rule is more akin to tort or commercial rules; it is not a ritual rule). The TALMUD says that the rule is derived from the rule that relatives are prohibited from testifying in cases involving their relatives. A person is his own closest relative. Hence, derived from another rule and not completely rational.
o MAIMONIDES decides to discuss it rather than just restate (unusual). He says:
1. It’s a biblical rule; a divine mandate.
2. Individual may not be in his right mind (that is to say, he may be confused); it’s self-imposed suicide.
· Under JL, civil confessions are permitted as equivalent to 100 witnesses.
· No incentive to lie then because the concern is only money.
· Then, if JL assumes someone would not confess unless they are telling the truth in a civil context, why preclude criminal confessions? à JL is concerned with the fact that the D may have other motives.
