Menachem Elon in Mishpat Ivri:
“What is the explanation for the astonishing fact that in the study of a legal system extending over 3000 years, most attention has been centered on only slightly more than the first half of this period, and the last 1300 years have been investigated only in a cursory manner? There is even more reason for wonder if we consider that although the Biblical and Talmudic periods are more significant in terms of spiritual values and authority, the post-Talmudic period has vastly more significance from the standpoint of thoroughness, number and range of legal decisions and quantity of legal and quasi-legal material.” P. 84.
Gp: Rav Elon begins his chapter on Lay Tribunals (Battei Din Shel Hedyotot) citing many sources in the Gemara dealing with this issue. Indeed, he points out that at the very beginning of Sanhedrin 3A – the idea of Hedyotot appears. (p.20) There were times and places in ancient Israel where there were no Mumchim – but you still needed the rule of law. Then he quoted a Tshuva of the Rashba demonstrating this. (Click at the bottom link for this Tshuva ) Then he continues in this fashion:
“The purposes of research in Jewish law in those days (19th century) varied. They included: a)comparison with other legal systems, b)study of the ethical and philosophical values expressed in Jewish legal institutions, and c) study of the historical and literary themes contained in the sources of Jewish law. The common denominator of these scientific approaches was the insistence that investigation and study were for their own sake, embellished by a greater or lesser measure of apologetics; but there was no purpose to satisfy the actual legal needs of the Jewish community. Whereas during the time that Jewish law as a living system the traditional method of study and analysis of the Halacha was to a considerable extent intended to satisfy the actual needs of the entire people in regard to its legal relationships, the goal of the systematic scientific researches was merely to satisfy the needs of the narrow circle of researchers themselves. Research with this purpose could allow itself to isolate for study one or another period from the total spiritual-legal order, so as to extract its ethical, philosophical, literary, and historical conclusions or to compare it to other ancient legal systems. ” P. 85
“Despite growing recognition of the need to study Jewish law with a view to preparing it for practical application, most of the scholars did not sufficiently understand that such study required research into every period from the very beginning of Jewish law up to the present. It seems obvious, however, that scientific research and elaboration of any legal principle can be accomplished only by reviewing all of the various stages of development of the principle throughout its history. No principle of Jewish law can be established on the basis of the Talmud alone, without reference to the subsequent development of the principle, any more than the “Jewish law” on any point can be definitively established solely from the writings of one of the later authorities (acharonim) without considering the nature and character of the controlling principle earlier in its history. In either case, one would not be setting forth the position of Jewish law on the particular subject involved but rather pointing to only a single early or late link in the chain of Jewish law.
“It may perhaps be true that rabbi deciding a point of Jewish law fulfills the obligation of his office when he finds and follows an opinion of one of the great acharonim; but the legal scholar who wishes to present the essence and character of a particular principle, especially when he wishes to draw conclusion with regard to adapting that principle for practical application, must know: a)what were the various stages of this principle throughout all the periods of Jewish law, b) what were the economic and social factors that brought about these various stages, c) how Jewish law absorbed the changes during the various stages and incorporated them as an integral part of its legal system, and d) what were the legal methods Jewish law employed to integrate the new developments into existing law.” P 87
The translators of the English Volume: Jewish Law:
“Why we translated this work: When we first read Ha-Mishpat Ha-Ivri, we realized that never in the annals of Jewish legal scholarship has there been anything even approaching this work in comprehensiveness, analysis, and perspective. It surveys the political theory, jurisprudence, and entire legal literature of Judaism, and provides insight into the skill and creativity of the Jewish legal masters and the sources and spirit of Jewish law, the subject which for some two millennia was the prime intellectual occupation of the Jewish people. It treats Jewish law from a jurisprudential perspective – viewing the legal system as a whole, and laying bare its basic values, concepts and modes of thought – while providing examples of the system’s operation in a broad range of legal areas, including agency, administrative law, conflict of laws, creditors’ rights, criminal law, evidence, family law, guardianship, judicial administration, labor relations, legislation , partnership, procedure, property, and torts. It illuminates Jewish law’s solution to perennial legal problems still very much on the contemporary agenda in English-speaking societies – such as rule versus discretion, principles of legislation (including the limits of legislative power), textual interpretation (e.g., when, if every may words in a normative text be treated as surplusage), stability versus creativity, law and morals, the problem of codification, the place of dissent in the legal system, spirit versus letter of the law, law versus equity, form versus substance, judicial activism versus “strict construction,” and the force of precedent. It compares the Jewish approach to such problems with that of other legal systems. It highlights the distinctive features of Jewish law: the indigenous moral underpinnings stemming from the Jewish religious tradition, the persistence of core Jewish values through permutations of legal doctrine over the course of time, and the maintenance of a viable legal system encompassing a significant body of doctrine not enforced or enforceable by governmental sanction but addressed to individual conscience, with obligations rather than “rights”‘ as the focus of legal precepts.”
Bernard Auerbach and Melvin Sykes
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