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A Codification, A Restatement and More
Published online by Cambridge University Press: 24 April 2015
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- Copyright © Center for the Study of Law and Religion at Emory University 1995
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1. For Judaism, the Middle Ages begin and end slightly later: “From the viewpoint of Jewish history, the Middle Ages may be defined as the period stretching from the early Moslem-Arab conquests, which commenced in 632 CE. to the spiritual crisis experienced by Jewry during the second half of the seventeenth century ….” Ben-Sasson, Haim H., The Middle Ages, in Ben-Sasson, Haim H., ed, A History of the Jewish People 385 (Harvard U Press, 1976)Google Scholar.
2. See Elon, Menachem, 3 Jewish Law: History, Sources, Principles—Ha-Mishpat Ha-Ivri 1236–1308 (Jewish Publication Society, 1994)Google Scholar (describing the extensive codificatory literature during this period).
3. There is some confusion as to the proper spelling of the English transliteration of the great codifier's name, as well as that of his famous codification. Thus, Justice Elon (see note 2 and note 9), adopts the spelling “Caro,” whereas Rabbi Emanuel Quint, whose work is being reviewed herein, refers to “Karo.” Similarly, according to Elon, the codification itself is the Shulhan Arukh, whereas for Quint, it is the Shulhan Aruch, again underscoring the difficulties encountered in the transliteration of Hebrew. In this essay, I have resolved these differences simply by following Rabbi Quint's spellings.
4. For an explanation of this title, see note 13 and accompanying text.
5. Stone, Suzanne Last, In Pursuit of the Counter-Text: The Turn to the Jewish Legal Model in Contemporary American Legal Theory, 106 Harv L Rev 813, 878 (1993)CrossRefGoogle Scholar.
6. Karo is also the author of Maggid Mesharim, a mystical work in which he is addressed by a “Mentor-Angel” who is a personification of the Mishnah, the original basic codification of Jewish law, redacted around 200 CE. Thus, “remarkable enough, the great legist and logical thinker was at the same time a dreamer of dreamers.” Schechter, S., Safed in the Sixteenth Century: A City of Legists and Mystics, in Goldin, Judah, ed, The Jewish Expression 258, 265 (Yale U Press, 1976)Google Scholar.
7. See, for example, Dorff, Elliot N. & Rosett, Arthur, A Living Tree 314–16 (State U of NY Press, 1988)Google Scholar (observing that “[w]hen one versed in Jewish law hears the word ‘code,’ probably the first thing that comes to mind is Joseph Karo's Shulhan Arukh” and asserting that the gloss thereon by Rabbi Moses Isserles has enabled the Shulhan Aruch to “become the most authoritative code in Jewish law”); Twersky, Isadore, The Shulhan ‘Aruk: Enduring Code of Jewish Law, in Goldin, , ed, The Jewish Expression at 322 (cited in note 6)Google Scholar(referring to the Shulhan Aruch in its various embodiments as “… one of the most influential, truly epochal literary creations of Jewish history …”).
8. Werblowsky, R. J. Zwi, Joseph Karo: Lawyer and Mystic 7 (Oxford U Press, 1962)Google Scholar.
9. Menachem Elon, an ordained rabbi and a former justice and deputy president of the Supreme Court of Israel, is the author of the definitive treatise on Jewish law (cited in note 2).
10. Elon, , 3 Jewish Law at 1322 (cited in note 2)Google Scholar(quoting Karo's introduction to the Shulhan Aruch).
11. Although containing significant deviations, this four-part organizational framework of the Shulhan Aruch is based on the structure and nomenclature of Sefer ha-Turim, a fourteenth century codification by Rabbi Jacob b. Asher. Id at 1287-92, 1323-27.
12. The Hebrew phrase Hoshen Mishpat refers to the “breastplate of judgment” worn by the High Priest. Exod 28:15Google Scholar. Rabbi Karo took this title from Sefer ha-Turim, whose organization he followed (see note 11). The author of the latter work explained the title as follows: “I called it Hoshen Mishpat, and I have placed in it the Urim and Thummim [the oracle the High Priest wore on his breast], because it is needed by every inquirer to enlighten his eyes and to open his lips, [to speak] straight and true.” Elon, , 3 Jewish Law at 1291–92 (cited in note 2)Google Scholar(bracketing in original).
Biblical translations in this review are from The Soncino Edition of Hertz, J. H., ed, The Pentateuch and Haftorahs (2d ed, 1960)Google Scholar.
13. Elon, , 3 Jewish Law at 1322Google Scholar (cited in note 2)(footnote omitted)(bracketing in original). Rabbi Karo's metaphor has not lost its charm. See Gellhorn, Walter, et al, Administrative Law 40 (Foundation Press, 9th ed, 1995)Google Scholar (“Again, as a means of setting the table for this course, it may be helpful to take a brief, concrete look at the common modalities in which agencies act”).
14. Compare Sachar, Abram L., A History of the Jews 237 (Knopf, Alfred A., rev 4th ed, 1955)Google Scholar (referring to “the popular abstract, the Shulhan Arukh, a ‘Prepared Table,’ where the young and unlearned could feed without difficulty”).
15. See notes 44-56 and accompanying text.
16. For example, compare Palko v Connecticut, 302 US 319 (1937) (employing a fundamental fairness, essence of ordered liberty test for incorporation), with Adamson v California, 332 US 46 (1947) (Black dissenting) (espousing total incorporation approach), and Duncan v Louisiana, 391 US 145 (1968) (adopting as a standard whether the guarantee is fundamental to the American scheme of justice).
17. There have been two previous translations of segments of Hoshen Mishpat, the 427-chapter civil law section of the Shulhan Aruch. See Denburg, Chaim N., Code of Hebrew Law: Shulhan 'Aruk, Hoshen Hamishpat (The Jurisprudence Press, 1954) (chapters 1 27)Google Scholar; Passamaneck, Stephen M., The Traditional Jewish Law of Sale: Shulhan Arukh, Hoshen Mishpat (The Hebrew Union College Press, 1982) (chapters 189-240)Google Scholar. A popular adaptation of the Shulhan Aruch, dealing with daily observances and ritual law, has also been translated into English. See Ganzfried, Solomon, Code of Jewish Law: Kitzur Shulhan Arukh (Hebrew Publishing Co, ann rev ed, Goldin, Hyman E. trans, 1961)Google Scholar. Kitzur is a Hebrew word meaning abridgment.
18. For a brief biography and interview of Rabbi Quint, see Freedman, Shalom, In the Service of God: Conversations with Teachers of Torah in Jerusalem 87 (Jason Aronson, Inc., 1995)Google Scholar.
19. Quint, Emanuel, A Restatement of Rabbinic Civil Law (Jason Aronson, Inc., 1990–1995)(hereinafter Quint, Restatement)Google Scholar.
20. Berman, Israel V., ed & translator, The Talmud: The Steinsaltz Edition, Vols 1–10 (Random House, 1989–1994)Google Scholar. See, for example, Wieseltier, Leon, Unlocking the Rabbis' Secrets, NY Times, (Book Review) Sec 7 at 3 (12 17, 1989)Google Scholar(reviewing at length the first volume of the Steinsaltz edition of the Talmud).
21. See Quint, , 1 Restatement at xix (cited in note 19)Google Scholar(noting that the Institute “is dedicated to the study of Jewish civil law through two of Judaism's seminal legal texts, the Talmud and the Shulhan Aruch”).
22. Quint, Emanuel B. & Hecht, Neil S., 1 Jewish Jurisprudence (Harwood Academic Publishers, 1980)Google Scholar. In a sense, Jewish Jurisprudence is a precursor to the present series. Although it covers only the first six chapters of Hoshen Mishpat (treated in Vol 1 of the Quint Restatement), it is structured more along the lines of Karo's companion work, Beit Yosef (see notes 9-12 and accompanying text), going into considerably greater detail concerning the positions of other authorities, both before and after the time of the Shulhan Aruch, with regard to the particular issues of Jewish law treated in these chapters.
23. See, for example, the explanation of “kinyan” in Quint, , 6 Restatement at 4 n 1 (cited in note 19)Google Scholar.
24. Quint, , 1 Restatement (cited in note 19)Google Scholar. Volume I consists of 38 chapters, of which the first 27 chapters make up the part “Laws of Judges.”
25. Quint, , 1 Restatement at 74 (cited in note 19)Google Scholar. The perutah is the smallest denomination of currency mentioned in rabbinic literature and would be the ancient equivalent of a penny.
26. Id at 74 n 4.
27. Id at 74 n 5.
28. Establishing a judicial system is one of seven Noahide laws applicable to all non-Jews. See The Code of Maimonides: Book 14: The Book of Judges, Laws Concerning Kings and Wars 9:14 at 234 (Yale U Press, Hershman, Abraham M. trans, 1949)Google Scholar (hereinafter The Book of Judges).
29. Quint, , 1 Restatement at 66 (footnotes omitted)(cited in note 19)Google Scholar.
30. Deut 19:15Google Scholar (“One witness shall not rise up against a man for any iniquity, or for any sin, in any sin that he sinneth; at the mouth of two witnesses, or at the mouth of three witnesses, shall a matter be established”); see also The Book of Judges, Evidence 5:1 at 91Google Scholar (cited in note 28)(“Neither in civil nor in capital cases is a legal decision given on the evidence of one witness ….”).
31. Lev 5:1Google Scholar (“And if any one sin, in that he heareth the voice of adjuration, he being a witness,… if he [does] not utter it, then he shall bear his iniquity”). This duty is discussed further at notes 52-56 and accompanying text.
32. Quint, , 1 Restatement at 192 (cited in note 19)Google Scholar.
33. Id.
34. Id (footnotes omitted).
35. See Exod 22:24Google Scholar (“If thou lend money to any of My people, even to the poor with thee, thou shalt not be to him as a creditor; neither shall ye lay upon him interest”). The word “if” at the beginning of the verse is more accurately translated as “when.” See 2 Pentateuch with Onkelos, Targum, Haphtaroth and Rashi's Commentary, Exod 22:24 at 121 (Hebrew Publishing Co., Rosenbaum, M. and Silberman, A.M., trans, 1973)Google Scholar. See also Deut 15:9Google Scholar (admonishing against refusal to give loans because the seventh year, in which there is remission of indebtedness, is approaching).
36. Compare Fed R Civ P 8(d)(providing that failure to respond to allegations concerning which a responsive pleading is required constitutes an admission thereof).
37. Quint, , 3 Restatement at 123–50 (cited in note 19)Google Scholar.
38. Deut 24:10–13Google Scholar; accord, Exod 22:24–26Google Scholar. As Rabbi Quint observes, although the objects taken as collateral and subject to return to the debtor for his use may seem trivial in our affluent society, making such strictures seem obsolete, these laws serve to remind us that in many parts of the world where famine and hunger are quite real, such matters “may not be of little consequence.” Quint, , 4 Restatement at 6 (cited in note 19)Google Scholar.
39. Quint, , 5 Restatement at 150–57 (cited in note 19)Google Scholar.
40. Id at 173-75.
41. Quint, , 6 Restatement at 52–54 (cited in note 19)Google Scholar.
42. Id at 146-51. Rabbi Quint notes that, by itself, the “payment of money does not transfer ownership of the item to the buyer.” Id at 152.
43. Some footnotes last for a page or even more, not due to any verbosity on the part of the author, but rather because a great deal of background information is essential to enable the reader to understand the text. See, for example, Quint, , 1 Restatement at 5–13 (cited in note 19)Google Scholar (explaining the intricacies of subject matter jurisdiction before and after the time of the Shulhan Aruch); id at 23-27 n 2 (delineating the scope of the exigency jurisdiction, the standard of proof thereunder, and the qualifications for judges exercising such authority); Quint, , 6 Restatement at 12–13 n 19 (cited in note 19)Google Scholar(providing an overview of the law of bailments).
44. Quint, , 1 Restatement at 5–14 (cited in note 19)Google Scholar; Quint, & Hecht, , 1 Jewish Jurisprudence at 139–40 (cited in note 22)Google Scholar.
45. Quint, , 1 Restatement at 5–14 (cited in note 19)Google Scholar.
46. Id at 3.
47. Ordained judges possessed the power to award all five of these elements of damages for personal injury (The Mishnah, Baba Kamma 8:1 (Oxford U Press, Danby, Herbert trans, 1933)Google Scholar), whereas their nonordained counterparts were precluded from doing so. Esptein, Isidore, ed, The Babylonian Talmud, 1 Seder Nezikin, Baba Kamma 84b (The Soncino Press, 1961)Google Scholar.
48. Quint, , 1 Restatement at 17–20 (cited in note 19)Google Scholar.
49. Id. See also Cohn, Haim H., Assault, in Elon, Menachem, ed, The Principles of Jewish Law 481–82 (Keter Publishing House, 1975)Google Scholar(noting the postexilic availability of other remedies as well for assault).
50. Hoshen Mishpat 1:5Google Scholar. (Translations to the Hoshen Mishpat are those of the author).
51. Quint, 1 Restatement at 9, 17–20 (cited in note 19)Google Scholar.
52. Hoshen Mishpat 28:1Google Scholar.
53. Beit Yosef and its relationship to the Shulhan Aruch are discussed at notes 9-12 and accompanying text.
54. Quint, , 1 Restatement at 190–91 (cited in note 19)Google Scholar. The rules of witness eligibility are discussed thereafter in chapters 33-35. Id at 233-57. But see id at 191 n 3, in which Quint instead supplies a cross-reference to chapter 7, which deals with eligibility to serve as a judge. The eligibility rules for judges and witnesses do, however, parallel one another. Id at 253.
55. Id at 191.
56. Id at 192 & n 5. The subject of oaths, discussed at notes 36-37 and accompanying text, is dealt with in detail in volume 3 of the Quint Restatement.
57. Hoshen Mishpat 11:1–6Google Scholar.
58. Quint, , 1 Restatement at 83–87 (cited in note 19)Google Scholar.
59. Id at 85, 87. Compare Fed R Civ P 8(e)(1) (requiring that allegations in pleadings be “simple, concise, and direct”); Fed R Civ P 8(f) (providing that “pleadings shall be so construed as to do substantial justice”); Fed R Civ P 15(a) (permitting amendments to the pleadings by leave of court, which is to be “freely given when justice so requires”).
60. Quint, , 1 Restatement at 75-79, 88–89 (cited in note 19)Google Scholar.
61. Hoshen Mishpat 13:6Google Scholar.
62. Id at 18:6.
63. Quint, , 1 Restatement at 75–78 (cited in note 19)Google Scholar.
64. Compare Freedman, , In the Service of God at 94 (cited in note 18)Google Scholar(describing his research procedure, Rabbi Quint notes, “At any one time, I have as many as thirty to forty volumes in front of me.”). Evidence of Quint's extensive research is apparent throughout these volumes. See, for example, Quint, , 2 Restatement at 147–50 (cited in note 19)Google Scholar(describing cases in which words alone can effectuate a binding contract); Quint, , 6 Restatement at 311–16Google Scholar (determining ownership where two buyers claim entitlement to the merchandise).
65. Quint, , 1 Restatement at 78–79 (cited in note 19)Google Scholar. Compare Fed R Civ P 55 (authorizing default judgments).
66. Quint, , 4 Restatement at 86 (cited in note 19)Google Scholar.
67. See, for example, Epstein, Isidore, ed, The Babylonian Talmud: III Seder Nezikin, Sanhedrin 2b-3a, 4–7 (The Soncino Press, 1961)Google Scholar(giving a similar rationale for less intensive examination of witnesses in monetary cases than in capital cases).
68. For example, Quint, , 1 Restatement at 75-79, 88-89, 143 (cited in note 19)Google Scholar.
69. See the summaries of each volume and see notes 24-42 and accompanying text.
70. See note 20 and accompanying text, discussing Rabbi Steinsaltz and his work.
71. Quint, , 1–6 Restatement at prefatory page (cited in note 19)Google Scholar (quoting Rabbi Adin Steinsaltz).