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December 2, 1980

Business Ethics: A Jewish Perspective (1980)

Halachik Method Jewish Law & Secular Law
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Outline

A Philosophy of Halacha that Depends on One Letter (1979)

Nat L is pos. L. (=sovereign's common). *NL = absol, univ'l, timeless. Immanent, ontological. *Euripedis (50 yrs before Plato) – discoverable, no gromulgatis *chtz... Islam: rutabila (NL) vs Ashariga *Hal? some – yes; others – no. (Karaites – yes). 2. יומא – אלה המצות – שאללמלא (פתא דין הוא שיינתב) תודותי – שהשטן משיב עליהם. appar'ly – NL – but Fox: after the fact. Saadia – שכלית/שמעית = NL/PL... 3. Rambam. מהר"ל – כן, אבל מתנגד. פוקסופאור – לא. 4. I: yes: guide 3:17 –
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Freedom and Constraint in the Jewish Judicial Process (1979)

Benjamin Nathan Cardozo, in his small but influential volume, The Nature of the Judicial Process, made a major effort to separate and describe the subjective elements that operate in the judge’s decision-making process and in the body of objective law which he must consult and whose loyal interpreter he must be in reaching a judicial decision. The four “methods" he elaborates offer a structure by which to probe the degree of freedom of and restraint upon the judge in his judicial role.It is appropriate to pursue the same theme in other forms and traditions of law. This essay is devoted to a preliminary exploration of the question of freedom and constraint in the Jewish judicial process. Because of certain basic dissimilarities between Jewish law (Halakhah) and Anglo-Saxon and American law, the problem will have to be posed in different form and begin with more fundamental philosophic issues. Hence, we shall first investigate the theoretical underpinnings of the question, and we shall then proceed to a halakhic survey and analysis.I. The Halakhic System: Monistic or Pluralistic?The Halakhah claims for itself divine origin: the Written Law (or Torah—i.e., the Scriptures, especially the Pentateuch) and the Oral Law (later reduced into writing in the Talmud) were revealed to Moses at Moun nai, and contained a warrant for the judges of each succeeding generation to decide, in each case brought before them, all doubts and disputes in the light of the revealed legislation. This assumption of divine provenance must, of course, be accepted at face value and on its own terms if any investigation into the nature of the halakhic judicial process is to be valid in assessing the role of the judge who must, a priori, accept this assumption in order to qualify as a judge.The problem, then, may be stated as follows: Is the Halakhah, which has undergone massive development and elaboration through the centuries, always assumed to be in consonance with the absolute, divinely revealed …
General Jewish Thought Halachik Method Jewish Law & Secular Law

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The Talmud and the Tapes - article (1973)

Now that the highest court in the land is prepared to study the problem of President Nixon’s refusal to surrender the famous tapes, it is timely to inquire what Jewish law has to say about this historic confrontation between the executive and the judiciary. Can any wisdom be gleaned from the Hebrew tradition, one of the main streams that feed into Western culture and civilization? The Mishnah, (the Jewish legal code redacted by Rabbi Judah in Palestine during the early part of the third century) teaches that a king may not judge and may not be brought to trial; others may not testify against him and he may not be made to testify concerning others. The Talmud (the Babylonian commentary and extension of the Mishnah) limits this law to “Israelite Kings,” i.e. those who were not of Davidic descent. Kings of the House of David, however, are subject to judgment and may be compelled to testify. The Talmud then concludes that fundamentally the law requires that the king should submit to judgment and testimony, but that an exception was made in the case of later Jewish Kings (“Israelite Kings”) because of a historic incident.In the first century of the common era Jannai was King, and the head of the Sanhedrin (supreme court) was the fearlessly independent Simeon ben Shetach. Now it happened that a servant of the King had been accused of committing murder. According to the law, the master had to be present during the trial of the slave. Jannai obeyed, and presented himself in court. But then Simeon informed Jannai that the law required the master to stand while the trial was in session.Aware of the sensitivities involved, Simeon hastened to assure the King that “you are not standing before us, but before Him who by His word created the world.” Here Jannai drew the line and hurled a challenge at Simeon: “not when you say so, but only when your colleagues will tell me so.” The shrewd monarch had made the right move. Simeon turned to his right, and his colleagues “buried their …
Jewish Law & Secular Law