Jewish Law

Front 1

Parts of Legal Formalism
(5)

Back 1

(1) intro
(2) how jewish law is formalistic
(3) measures are a reflection of reality or simply arbitrary legal device
(4) what is the rational predicated on
(5) why invest in the formalities

Front 2

Formalism Jewish Law intro (2)

Back 2

(1) When deciding what kind of legal system to employ, one must decide whether they want it to be formalistic, or abstract. Formalistic legal rules are very specific and precise, which although might be beneficial in that it helps inform individuals how to behave, it suffers in its ability to be flexible and meet the nuances of each case. In contrast, abstract legal rules are for more flexible, and vague, and although this flexibility allows you to meet the spirit of the law on a case by case basis it makes it difficult to predict, which impedes its ability to guide ones behavior.
(2) Jewish Law has aimed attempted to adopt the advantaged of both system, while minimizing the disadvatanges by implementing a formalistic legal system when it comes to the construction of the law, however, in terms of applying the law it is very flexible.

Front 3

how jewish law is formalistic (3)

Back 3

Examples:
(1) linear formalism - pigeon
(2) time formalism - kethuba
(3) obligation to assist

Front 4

measures are a reflection of reality of simply arbitrary legal device (3)

Back 4

reflection of reality:
(1) sabbatical
(2) evidential possession

Arbitrary Legal Device
(1) Seah

Front 5

what is the rational such a system is predicated on. (4)

Back 5

(1) maimonides - was that the standards and measures where given to moses as sinai

(2) Hazan Ish - is that god only indicated the type of measure to moses, and it is the magnitude which the rabbis must decide on

(3) god only transmitted to moses standards and measures concerning punishment (probatory matters) and the rest were for the rabbis to discern

(4) from a Hoshea excerpt, that the measures are ultimately decided by the courts.

----All agree it is a legal device

Front 6

Law and Equity Parts (6)

Back 6

(1) intro
(2) illustrations
(3) beyond the law illustrations
(4) why not collapse
(5) legislation
(6) what does it tell about our society

Front 7

Law and Equity Intro (3)

Back 7

(1) As previously mentioned jewish law makes a distinction between legal and moral directives in order be both predictable and guiding one's behavior, as well as flexible to meet the circumstances as they arice.
(2) In the silerg excerpt, silber writes that legal directives are aimed at the citizen with the concern for social order. In contrast, moral directives are aimed at the individual to pacify the mind.
(3) Although it might seem as if this is makes moral directives abstract tents, they to have developed through a system of case law.

Front 8

Law and Equity Illustrations (5)

Back 8

(1) Paying debt after sabatical
(2) judge ruling on personal property
(3) sabbatical applied to creditor
(4) Kinyan and Exceptions - all transactions require - shows the gradations of moral directives (promise v. cursing in court).
(5) repenting robber - (a) dont want to punish people who repent, (b) reqs: Aknowledge what you did, Approach the person you wronged and attempt to rectify, Ask the person for forgiveness.

Front 9

beyond the call of the law (4)

Back 9

(1) obligation to assist - ox example and implied obligation to assist and not ignore and return object, and exemptions for priest, older where not dignified, lost object would be worth more

(2) returning purse after 12 months

(3) Expert Opinion - Currency changer - Legally only experts who take a fee or amateurs who pretend to expertsnamely, he would require instruction. This case shows that sometimes one must take an economic lost to meet there self imposed moral obligation.

(4) Rituals - obligation to recite grace - If two have eaten the third must interrupt his meal to let all three say grace in zinnum, but if one has finished he cannot require the other two to interrupt there dinner.

Front 10

why not collapse moral norms into legal ones (2)

Back 10

(1) “greater is the reward of those who being enjoined do good deeds than of those who without being enjoined but merely of their own free will do good deeds”.

(2) this is greater because free from impulses.

Front 11

what does it say about the society? Answer and illustration (2)

Back 11

(1)The fact that moral directives function as an incentive for behavior in jewish law seems to tell us how much the opinion of the community matters in Jewish Law, such that shame in the community can cause one to alter their behavior.

(2) tort employee causes injury example - robin hood.

Front 12

Law of the State is the Law Intro (3)

Back 12

(1) The principle in jewish law of Dina De Malkhuta Dina – namely, that the law of the state is the law, has its origin in the historical conquest of Babylon, in which the jews were required to submit to the new authority. This explains why the priciple seems to only show up in the Babylonian Talmud.
(2) This principle, allowed jews to both recognize the laws of the ruling state, while at the same time maintaining their own personal legal system.
(3) However, this law is not applied arbitrarily. Rather, there are conditions and exceptions disputed based on different case law. Below or the four major restrictions we discussed in class:

Front 13

Law of the State is the Law Conditions (4)

Back 13

(1) The law only applies to officials acting under legal authority. --- Example customs collector and vows on robber

(2) The law of the state must, at least monetarily, be distributed equally among individuals - Example, Bridges

(3) It must be a monetary matter -- Example, Documents that change one's legal status like writs of divorce and emancipation are not monetary matters.

(4) The king must have an interest in the matter of law -- Example, ther e are professed public interests in real estate and taxes.

Front 14

Law of the State is the Law Justifications - (3)

Back 14

(III) Justifications of this law:

(1) Subdivision of the divine rights of kings. -- Just as jewish law can decree so can the king in virtue of his authority. (this is problemative becasue we havent seen a reference for 1200 yrs and its a jewish king)

(2) Practical Justification - It allowed jews to function and still maintain their own legal system. Dont confuse philoshical legal justifications with practical ones.

(3) Rashbam - Social Contract Theory - It is a valid law because citizens accepted it out of free will (this is a problem because the jews never walked into a place to live, it was all negotiated).

Front 15

why the investment in formalities? (3)

Back 15

(1) mainmonides - aribtrary legal device to carry out the commandments

(2) solvetichick - (a) lets us apply religion to behavior, and (b) lets us get closer to the divine

(3) silberg - focused on the individual not the judge. Obligation not rights based approach.

Front 16

Law and Equity Legislation

Back 16

(1) legislation is based on the idea that you should do what is good and right in god's eyes.
(2)the commandments and formalism do not always give us enough information to guide us, so we have legislation to help guide us.