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 THE CAMBRIDGE COMPANION TO JUDAISM AND LAW

The Cambridge Companion to Judaism and Law explores the Jewish conception
of law as an essential component of the divine–human relationship from biblical
to modern times, as well as resistance to this conception. It also traces the
political, social, intellectual, and cultural circumstances that spawned competing
Jewish approaches to its own “divine” law and the “non-divine” law of others,
including that of the modern secular state of Israel.
Written by an international team of distinguished scholars, the volume’s
fourteen chapters examine common themes outlined in the Introduction. Part I
focuses on the emergence and development of law as an essential element of
religious expression in biblical Israel and classical Judaism through the medieval
period. Part II considers the ramifications for the law arising from political
emancipation and the invention of Judaism as a “religion” in the modern period.
Part III traces the historical and ideological processes leading to the current
configuration of religion and state in modern Israel, and analyzes specific
conflicts between religious law and state law.

Christine Hayes is the Weis Professor of Religious Studies in Classical Judaica

at Yale University. A specialist in talmudic-midrashic studies, her published
works include Between the Babylonian and Palestinian Talmuds (1997, winner of
a Salo Baron prize), Gentile Impurities and Jewish Identities: Intermarriage
and Conversion from the Bible to the Talmud (2002, National Jewish Book
Award finalist), The Emergence of Judaism (2010), Introduction to the
Bible (2012), and What’s Divine about Divine Law? Early Perspectives (2015
National Jewish Book Award in Scholarship; 2016 PROSE award in Theology
and Religious Studies from the American Publishers Association). She is an
elected member of the American Academy of Jewish Research and Vice
President for Program of the Association for Jewish Studies.

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 cambridge companions to religion
This is a series of companions to major topics and key figures in theology and
religious studies. Each volume contains specially commissioned chapters by
international scholars, which provide an accessible and stimulating introduction
to the subject for new readers and nonspecialists.

other titles in the series

AMERICAN ISLAM Edited by Juliane Hammer and Omid Safi
AMERICAN JUDAISM Edited by Dana Evan Kaplan
AMERICAN METHODISM Edited by Jason E. Vickers
ANCIENT MEDITERRANEAN RELIGIONS Edited by Barbette Stanley Spaeth
KARL BARTH Edited by John Webster
THE BIBLE, 2nd edition Edited by Bruce Chilton
BIBLICAL INTERPRETATION Edited by John Barton
DIETRICH BONHOEFFER Edited by John de Gruchy
JOHN CALVIN Edited by Donald K. McKim
CHRISTIAN DOCTRINE Edited by Colin Gunton
CHRISTIAN ETHICS Edited by Robin Gill
CHRISTIAN MYSTICISM Edited by Amy Hollywood and Patricia Z. Beckman
CHRISTIAN PHILOSOPHICAL THEOLOGY Edited by Charles Taliaferro and
Chad V. Meister
CLASSICAL ISLAMIC THEOLOGY Edited by Tim Winter
JONATHAN EDWARDS Edited by Stephen J. Stein
FEMINIST THEOLOGY Edited by Susan Frank Parsons
THE JESUITS Edited by Thomas Worcester
JESUS Edited by Markus Bockmuehl
C. S. LEWIS Edited by Robert MacSwain and Michael Ward
LIBERATION THEOLOGY Edited by Chris Rowland
MARTIN LUTHER Edited by Donald K. McKim
MEDIEVAL JEWISH PHILOSOPHY Edited by Daniel H. Frank and
Oliver Leaman
MODERN JEWISH PHILOSOPHY Edited by Michael L. Morgan and Peter
Eli Gordon
MOHAMMED Edited by Jonathan E. Brockup
PENTECOSTALISM Edited by Cecil M. Robeck, Jr. and Amos Yong
POLITICAL THEOLOGY Edited by Craig Hovey and Elizabeth Phillips
POSTMODERN THEOLOGY Edited by Kevin J. Vanhoozer
(continued after the Index)

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 The Cambridge Companion to Judaism
and Law

Edited by

christine hayes

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 One Liberty Plaza, 20th Floor, New York, NY 10006, USA

Cambridge University Press is part of the University of Cambridge.

It furthers the University’s mission by disseminating knowledge in the pursuit of
education, learning and research at the highest international levels of excellence.

www.cambridge.org
Information on this title: www.cambridge.org/9781107036154
© Cambridge University Press 2017
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2017
Printed in the United States of America by Sheridan Books, Inc.
A catalogue record for this publication is available from the British Library
Library of Congress Cataloging in Publication data
Hayes, Christine Elizabeth, editor.
Cambridge companion to Judaism and law / edited by Christine Hayes.
New York, NY, USA : Cambridge University Press, 2017. | Series: Cambridge
companions to religion | Includes bibliographical references and index.
LCCN 2016028972 | ISBN 9781107036154 (hardback)
LCSH: Mishpat Ivri. | Jewish law – History. | Law – Israel – Jewish influences. |
Judaism – Doctrines. | BISAC: RELIGION / Judaism / General.
LCC KBM524 .C36 2016 | DDC 340.5/8–dc23
LC record available at https://lccn.loc.gov/2016028972
isbn 978-1-107-03615-4 Hardback
isbn 978-1-107-64494-6 Paperback
Cambridge University Press has no responsibility for the persistence or accuracy of
URLs for external or third-party internet websites referred to in this publication,
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.

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 Contents

List of Contributors page ix

Acknowledgments xi

Introduction: Can We Even Speak of “Judaism and Law”? 1

Christine Hayes

part i law as constitutive of biblical

and premodern jewish religious expression
1 Law in Biblical Israel 19
Chaya Halberstam
2 Law in Jewish Society in the Second Temple Period 48
Seth Schwartz
3 Law in Classical Rabbinic Judaism 76
Christine Hayes
4 Approaches to Foreign Law in Biblical Israel and Classical Judaism
through the Medieval Period 128
Beth Berkowitz
5 Law in Medieval Judaism 157
Warren Zev Harvey

part ii enlightenment, emancipation,

and the invention of jewish “religion”
6 From Enlightenment to Emancipation 189
Verena Kasper-Marienberg
7 Enlightenment Conceptions of Judaism and Law 215
Eliyahu Stern

vii

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 viii CONTENTS

8 Rethinking Halakhah in Modern Eastern Europe: Mysticism,

Antinomianism, Positivism 232
Menachem Lorberbaum
9 Antinomianism and Its Responses in the Nineteenth Century 260
David Ellenson
10 New Developments in Modern Jewish Thought: From Theology
to Law and Back Again 287
Yonatan Y. Brafman

part iii judaism and the secular jewish state

11 Judaism and Jewish Law in Pre-State Palestine 317
Amihai Radzyner
12 Judaism, Jewish Law, and the Jewish State in Israel 337
Arye Edrei
13 What Does It Mean for a State to Be Jewish? 365
Daphne Barak-Erez
14 Fault Lines 386
Patricia J. Woods

Index 421

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 Contributors

DAPHNE BARAK-EREZ is a Justice of the Supreme Court of Israel. Formerly

the Stewart and Judy Colton Professor of Law and Dean of the Faculty of Law at
Tel Aviv University, she is the author of Outlawed Pigs: Law, Religion and
Culture in Israel (2007).

BETH BERKOWITZ is Ingeborg Rennert Chair of Jewish Studies in the

Department of Religion at Barnard College and author of Defining Jewish
Difference: From Antiquity to the Present (Cambridge University Press, 2014).

YONATAN Y. BRAFMAN is Assistant Professor of Jewish Thought and Ethics

and the director of the Program in Jewish Ethics at the Jewish Theological
Seminary of America. He is currently working on a book project entitled
Critique of Halakhic Reason: From Divine Norms to Social Normativity.

ARYE EDREI is Professor of Law at Tel Aviv University. He is co-editor in chief

of the journal Dine Israel and co-author of Zweierlei Diaspora: Zur Splatung der
antiken Judischen Welt (2009).

DAVID ELLENSON is Director of the Schusterman Center for Israel Studies at

Brandeis University. The former president and I. H. and Anna Grancell
Professor of Jewish Religious Thought at the Hebrew Union College – Jewish
Institute of Religion, he is author of Jewish Meaning in a World of Choice: Studies
in Tradition and Modernity (2014).

CHAYA HALBERSTAM is Associate Professor of Judaism at King’s University

College, Western University, in London, Ontario, and author of Law and Truth
in Biblical and Rabbinic Literature (2010).

ix

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 x LIST OF CONT RIBUTORS

WARREN ZEV HARVEY is Professor Emeritus of the Department of Jewish

Thought at the Hebrew University of Jerusalem, Israel, and author of Physics and
Metaphysics in Hasdai Crescas (1998).

CHRISTINE HAYES is the Robert F. and Patricia R. Weis Professor of Religious

Studies in Classical Judaica at Yale University and author of What’s Divine about
Divine Law? Early Perspectives (2015).

VERENA KASPER-MARIENBERG is Assistant Professor of History at North

Carolina State University and author of “Vor Euer Kayserlichen Mayestät Justiz-
Thron.” Die Frankfurter jüdische Gemeinde am Reichshofrat in josephinischer
Zeit (1765–90) (2012).

MENACHEM LORBERBAUM is Professor of Jewish Philosophy at Tel Aviv

University and heads the Bet Midrash of the Shalom Hartman Institute,
Jerusalem. He is co-editor of The Jewish Political Tradition (2003) and author
of Dazzled by Beauty: Theology as Poetics in Hispanic Jewish Culture (2011).

AMIHAI RADZYNER is Professor of Jewish Law in the Faculty of Law, Bar-Ilan

University. He is the chief editor of Ha-Din ve-ha-Dayan (The Law and Its
Decisor), a journal of Israeli rabbinical court decisions on family matters.

SETH SCHWARTZ is the Lucius N. Littauer Professor of Classical Jewish

Civilization at Columbia University and author of The Ancient Jews from
Alexander to Muhammad (Cambridge University Press, 2014).

ELIYAHU STERN is Associate Professor of Modern Jewish Intellectual and

Cultural History at Yale University and author of The Genius: Elijah of Vilna
and the Making of Modern Judaism (2013).

PATRICIA J. WOODS is Associate Professor in the Department of Political

Science and in the Center for Jewish Studies at the University of Florida. She is
the author of Judicial Power and National Politics: Courts and Gender in the
Religious-Secular Conflict in Israel (2008; second edition forthcoming).

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 Acknowledgments

In crafting the original plan for this volume, I envisaged a series of chapters
ranging from biblical antiquity to the modern state of Israel, united by a
common exploration of the concept of law as a vehicle for the divine-human
relationship in Judaism, and of challenges to that concept arising from
within Judaism and from various political and socio-historical realities.
Hoping for a sustained and thorough-going narrative incorporating con-
ceptual and historical approaches, I charted the precise terrain to be conv-
ered in each chapter. To my delight, it was not difficult to identify
contributors who shared my enthusiasm for the project, and I couldn’t be
more pleased with the result: a stunning, collaborative effort by eminent
scholars working with common purpose across a spectrum of disciplines,
areas of specialty, and time periods to produce a cohesive and tightly inter-
connected volume that is greater than the sum of its parts.
I owe special thanks to the patient team at Cambridge University Press
who allowed this project to take as long as it needed to take. I benefited from
the kind attention and able assistance of a succession of editors and editorial
assistants including Laura Morris, Beatrice Rehl, Alexandra Poreda and
Isabella Vitti. I was fortunate to have the gloriously detail-oriented
Jacqueline French as copy-editor. The logistics of publication were handled
by Christina Sarigiannidou and Hannah Hiscock, with Ross Stewart carrying
the project over the finish line.
It is wonderfully fitting that this volume on Judaism and Law reached
completion on the eve of Simhat Torah – a holiday dedicated to joyful
celebration in the Torah.
Christine Hayes
October 23, 2016

xi

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 Introduction: Can We Even Speak
of “Judaism and Law”?

Christine Hayes

We begin with a caveat. The formulation “Judaism and Law” rests upon an
assumption derived from and congenial to the western Christian tradition
but somewhat alien to the Jewish tradition. The assumption, articulated in
a parallel Cambridge University Press volume on Christianity and law, is that
“law and religion are distinct spheres and sciences of human life . . . that exist
in dialectical interaction, constantly crossing-over and cross-fertilizing each
other.”1 On this view, it is possible to explore how “legal and religious ideas
and institutions, methods and mechanisms, beliefs and believers influence
each other – for better and for worse, in the past, present and future.”2 And
indeed, a guiding question for the volume Christianity and Law was the
following: “what impact has Christianity had on law?” (law being understood
here as western law in all its rich complexity, as an independent entity
distinct from Christianity).
One might suppose that a volume on Judaism and Law could follow the
same basic format – exploring Judaism’s impact on law on the assumption
that law and religion are distinct spheres that interact dialectically. However,
the guiding assumption and questions that so fruitfully structure the volume
on Christianity and Law raise immediate difficulties in the Jewish context.
Christianity originated in a rejection of the Mosaic Law as antithetical to
a life lived in the spirit. As is well known, this original alienation of the faith
from law proved to be unsustainable, and in due course Christianity found it
necessary to negotiate the bounds and claims of normativity. Nevertheless,
even as Christianity made room for and in turn influenced the development

1
Witte and Alexander (eds.), Christianity and Law, p. 3.
2
Ibid., p. 5.

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 2 CHRISTI NE H A YES

of western legal traditions, law was never an essential or constitutive element

of Christian religious expression. Law was a distinct sphere of human
endeavor despite its many points of intersection with the new faith.
In contrast to the antinomian gesture at Christianity’s inception,
Judaism’s origins are represented as thoroughly nomian. As David
Novak writes: “While today many regard law and religion as separate
spheres and sciences of life, Judaism has long regarded these phenomena
as overlapping, if not virtually identical . . . [By the Middle Ages, a]ll law
was assumed to be derived from the will of God, whether immediately
experienced in revelation, or transmitted via continuous tradition, or
discerned by public discursive reasoning. And religion, being the human
relationship with God, was assumed to consist of accepting, understand-
ing, applying, and obeying God’s commandments.”3 Law was long viewed
as an essential and constitutive element of Jewish religious expression.
Thus, the assumption that religion and law are distinct spheres that
interact dialectically is unwarranted in the Jewish context. In premodern
Judaism we find not simply a system of religious law but an exhaustive
nomos of comprehensive scope retrojected to the very moment of the
tradition’s origin (the covenant at Sinai) and believed to express the will
of a single divine being – in short, a divine law.
The idea of divine law – the notion that the norms that guide human
action lay some claim to divinity – is found in both classical (Greco-Roman)
thought and in the Hebraic (biblical) tradition. However, to the extent that
the two traditions conceive of the divine in radically different ways, their
notions of divine law diverge. In Stoic thought, for example, the divine is not
distinct from nature; therefore, divine law is a metaphor for natural law – an
unwritten law (as opposed to written legislation) based on and perceived in
the rational order of the universe. By contrast, biblical law is divine because it
is believed to emanate from and reflect the will of a personal god who is the
master of history. In the biblical tradition, divine law – for the first time in
history – is actual written legislation; among other things it contains a mass
of specific and detailed pronouncements, rules, prohibitions and teachings
attributed to the direct authorship of a divine being.
The Hebrew Bible places law and justice within the context of
a relationship between the ethnos Israel and a personal deity, YHWH.
Because of the utter centrality of divine law to the biblical and premodern
Jewish conception of the divine–human relationship, it is difficult to speak of
“Judaism” and “law” as distinct entities such that their interaction can be

3
Novak, “Law and Religion in Judaism,” p. 33.

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 INTRODUCTION: C AN WE EVEN SPEAK OF “J UD A ISM A ND L A W ” ? 3

identified and traced. Arguably, at least in its classical rabbinic formulation

extending through the premodern period, Judaism was law – though in
a vastly expanded sense that is not fully captured by western definitions
and theories of law (natural, positivist, or historical). For centuries, the
foundational principles of Judaism might just as easily have been understood
to be the foundational principles of Jewish law. That the one god, through his
covenant, has placed normative demands upon his people in order that they
might achieve justice and aspire to holiness is at one and the same time
a religious principle and a legal principle. Insofar as law may be seen as
constitutive of the Jewish conception of the divine–human relationship –
a condition that obtained in the literary manifestations of the tradition in the
premodern period – it is not possible to speak of law and Judaism since law is
Judaism.
In the modern period, the idea that law is constitutive of the
divine–human relationship was challenged by intellectual and political
changes that swept Europe, and Judaism came to be seen by some as
a “religion” in terms that enable a consideration of its relationship to law
as a distinct entity. The characterization of Judaism as a “religion” parallel to
Christianity was not universally endorsed, however, and countertrends
developed in European and American Jewish thought. In the twentieth
century, the tension between competing visions of Judaism and Jewish
identity (variously emphasizing moral, halakhic, ethnic, or cultural
elements) and the relation of Judaism to law – both Jewish and western –
found expression in debates over the role of church and state in modern-day
Israel.

reformulating the question

In light of the foregoing, this volume on Judaism and law addresses the
following topics. First, on the assumption that for much of its history,
Judaism has been identified with law, the volume will explore ways in
which the tradition has conceived and theorized its divine law. How did
Jewish writers, rabbis, philosophers, and thinkers understand (1) the
nature, scope, character, and purpose of the normative demands that
Israel’s god has placed upon the community; (2) the roles of the divine
lawgiver and the divine law’s human mediators; (3) the possibility of
continuing revelation; (4) the possibility of and mechanisms for legal
growth and development; (5) the relationship of Written Torah and Oral
Torah, of biblical law and rabbinic law (or halakhah)? The volume also
investigates the extent to which Judaism has, throughout its history,

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