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MAIMONIDES AS CODIFIER OF JEWISH LAW MAIMONIDES AS CODIFIER OF JEWISH LAW Edited By NAHUM RAKOVER The Library of Jewish Law The Library of Jewish Law Ministry of Justice The Jewish Legal llcritagc Society Foundation for lhc Advancement of Jewish Law PROCEEDINGS of the Second International Seminar on The Sources of Contemporary Law: Maimonides as Codifier of Jewish Law Jerusalem. August 1985 © The Library of Jewish Law The Jewish Legal Heritage Society P.O.Box 7483 Jerusalem 91074 1987 TABLE OF CONTENTS PREFACE 9 OPENING ADDRESS, Nahum Rakover 11 GREETINGS BY THE PRESIDENT OF ISRAEL, Chaim Herzog 13 GREETINGS BY THE MINISTER OF JUSTICE, Moshe Nissim 17 CODIFICATION AND SOURCES Nahum Rakover MAIMONIDES AS CODIFIER OF JEWISH LAW 21 Haim H. Cohn CODIFICATORY METHOD AND JEWISH LEGAL THEORY 31 Meyer S. Feldblum CRITERIA FOR DESIGNATING LAWS 45 Martin P. Golding THEORY OF JURISTIC REASONING 51 A. Saenz-Badil/os BIBLICAL FOUNDATION OF JEWISH LAW 61 Aaron Greenbaum SURETY FOR THE PERSON OF THE DEBTOR: MAIMONIDES' GEONIC SOURCES 75 Ratzon Arusi MAIMONIDE_S AS BINDING AUTHORITY 83 MORALS AND LAWS Marvin Fox LAW AND MORALITY 105 Andre Neher META-ETHICS IN THE THEORY OF MORALS OF MAIMONIDES 121 Jonah Ben-Sasson LAW AND JUSTICE 129 Aaron Kirschenbaum MAIMONIDES AND EQUITY 143 5 POLITICAL THEORY Eliezer Goldman POLITICAL AND LEGAL PHILOSOPHY IN THE GUIDE FOR THE PERPLEXED 155 Aaron Nahlon LOCAL LEGISLATION AND INDEPENDENT LOCAL LEADERSHIP 165 CRIMINAL LAW Jacob Bazak CRIMINAL RESPONSIBILITY AND MENTAL ILLNESS 175 Daniel B. Sinclair TREATMENT OF FATALLY ILL PATIENT (TEREFAH) IN MAIMONIDES' LAW OF HOMICIDE 181 Dov Frimer SELF-DEFENSE AND ABORTION 195 Nahum Rakover TERRORISM AND EXTORTION 217 FAMILY LAW Mordechai A. SOCIAL REALITIES IN EGYPT AND Friedman MAIMONIDES' RULING IN FAMILY LAW 225 J. David Bleich COMPELLING THE HUSBAND TO DIVORCE 237 Benjamin INDIVIDUAL, SOCIAL AND NATIONAL Greenberger ASPECTS OF INHERITANCE 255 COMPARATIVE ANALYSIS Bernard J. Meis/in MAIMONIDES AND AMERICAN CASE LAW 269 Isaac H. Jacob COMPARATIVE STUDY OF GRATIAN AND MAIMONIDES 285 6 APPENDICES SEMINAR PROGRAM 295 I.I. Dienstag A SELECTED BIBLIOGRAPHY ON MAIMONfDES AND LAW 309 7 PREFACE The year 1985 has been generally accepted as the 850th anniversary of the birth of Maimonides, and on this occasion the Ministry of Justice has declared 1985 to be "Maimonides' Year". Within the framework of Maimonides' Year the Ministry of Justice, arranged, in association with the Israel Bar Association, a series of lectures, workshops and seminars on the teachings of Maimonides. In addition, the boo.k "Maimonides and the Law of the State of Israel" has now been published. This volume sets forth the ruling of Maimo­ nides, parallel to and alongside provisions enacted by the Knesset, on a variety of questions of civil Jaw. Maimonides' observations can now be seen in a new light. In the same way, a better understanding is now possible of the laws of the Knesset in the light of Jewish law. Jewish law indeed has served as an important source for the Knesset in its legislative work. In honor of Maimonides' Year it was decided that an international seminar be held on the topic "Maimonides as Codifer of Jewish Law". This seminar, held in cooperation with the New York County Lawyers' Association, is the second in a series of international seminars dealing with the topic "The Sources of Contemporary Law: The Bible and Talmud and their Contribution to Modern Legal Systems". The first seminar was held in 1983, and the lectures delivered there were collected in Jewish Law and Current Legal Problems (Jerusalem, 1985). 9 Preface The participants at the present seminar included over 100 judges, lawyers, and scholars of various faiths, who came from different coun­ tries to learn about the countribution of Maimonides to legal thought and to contemporary legal questions. All the papers appearing here were delivered at the conference; the program of the conference appears in the appendix. Also printed in this volume is a bibliography on "Maimonides and Law," that was delivered for publication by Prof. I.I. Dienstag. In addition, the article "Maimonides as Codifier of Jewish law," appearing here, stems from a lecture given by the undersigned at the First International Congress on the Life and Works of Maimonides, held in Cordova (Spain) in September 1985. The organizers of the conference wish to pay tribute to the memory of Rabbi Dr. Aaron Greenbaum, one of the contributors to this volume, who recently passed away: Yehi Zichro Baruch. Finally, I wish to express my thanks to all those who assisted in the publication of this volume. Jeffrey Vandel assisted in the preparation of the manuscript, Peter Ellman translated several of the articles and Prof. Ben-Zion Greenberger provided useful comments and sugges­ tions. N.R. Jerusalem, Israel 5748-1987 10 OPENING ADDRESS Nahum Rakover Your Excellency, Mr. President, the Chief Rabbi of Jerusalem, R. Shalom Messas, Prof. Bertels of UNESCO, Honourable Officers of the Congress, Judges and Rabbis, Ladies and Gentlemen. On behalf of the Organising Committee, I have the honour to declare this International Congress on "Maimonides as Codifier of Jewish La~" open. I welcome all of you who have come from distant lands to take part in the Congress. In the 850th year since the birth of Maimonides, the Ministry of Justice declared 1985 as "Maimonides' Year". The Jewish people does not perpetuate the memory of its great sons in monuments of stone. It delves into the depths of their thinking - "Their words are their memorial" (divreihem hem hem zichronam). This Congress is meant to discuss, analyze and illuminate the figure of R. Moses ben Maiman who again and again has shed light on the prob­ lems that confront us to this very day. Our people, renewing itself in its own State in this land, has also restored its sacred and crowning glories of the past. The striving for law and justice, those priceless treasures of society, dominated the life of Abraham. Of him God said, "I have known him in order that he may command his children and his household after him to keep the way of the Lord to do justice and law" [ Gen. 18:19]. The conjunction of these two values, justice and law - zedakah 11 Opening Address u'mishpat- presents a challenge to the world, for its realisation has not yet been achieved. Maimonides successfully drew our attention to the different ways in which justice and law are related. Indeed, partially for that very reason, he has earned a place of honour in Jewish culture and generally in the culture of the world. Hence the declaration by UNESCO of 1985 as "Maimonides' Year." Hence also the efforts of the Governments of Spain and Morocco and of different communities in N. America to pay tribute to Maimonides. Maimonides sketched for us a picture of an ideal world even when we were in exile, distant from our own land and subject to an alien· government. But we were filled with the hope of returning and fashion­ ing once again our system of law and order. In recent years the State of Israel severed the link which had bound it to English law for many decades. Instead, it has now established a new and independent relationship with "the principles of justice, equi­ ty, freedom and peace of the Jewish heritage," as the Foundations of Law Act enacted by the Knesset in 1980 declares. By so doing the State has renewed the link between the Jewish people and its heritage stretching over thousands of years. In that heritage Maimonides occupies a foremost position and his teachings form an integral part of the law of the State of Israel. The aim of this Congress is to consider these teachings with refer­ ence to the legal and social problems of our times. We hope that it will make a contribution towards meeting our modern needs - not merely of the legal community - but of generally advancing and restoring our society. 12 GREETINGS BY THE PRESIDENT OF ISRAEL Chaim Herzog My Friends, As one who has always been concerned with the contribution Jewish law can make to Israeli legislation, I look forward, along with all ofyou here, to the lectures we shall be hearing on Maimonides as Codifier of Jewish Law. Perhaps the outstanding aspect of Jewish civilization is its inherent justice and the fact that the concept of justice occupies a paramount place in the hierarchy of values. Consider that many principles of hu­ man justice currently accepted as a matter of course in civilised coun­ tries - an acceptance which is, historically speaking, of comparatively recent vintage - are the principles expounded to mankind by our Jew­ ish forebears over 3000 years ago. These principles of justice are non­ existent today in the overwhelming majority of the nations of the world. We Jews have given to the world a legal system which recognises the existence of a special reciprocal tie between Jaw and morality, a tie that stems from the common origin of both concepts in Judaic sources. The common origin of the concepts of Jaw and morality remained a guide­ line for Judaism in all periods and generations. "Thou shall not kill" and "thou shall not steal" are enjoined with the same finality as "Thou shall love thy neighbor as thyself; I am the Lord. "Indeed, Jewish law, functioning as a legal system, itself impels recourse to a moral impera­ tive, and in so doing prepares the way to conversion of the moral 13 Greetings imperative into a fully sanctioned norm. Thus, a legally sanctioned norm is to be found in the direction to act lifnim mishurat ha-din (i.e. leniently, beyond the requirements of the Law), a direction which be­ came in the post-talmudic period a fully fledged norm enforced in cer­ tain instances by the courts.
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