contrast, the logos of Philo and the memra (word) of the [*1658] do not exclude Law and Hermeneutics in Rabbinic writing; writing is creation itself. n3 Jurisprudence: A Maimonidean Perspective The idea of writing as creation reflects the By: Jose Faur rabbinic concept of exegesis. It generates rather than discovers, meaning. Commenting Jewish jurisprudence is the oldest evolving on the verse, "and I shall give you the tablets legal system in history. It has existed since of stone, and the law and the commandment pre-biblical times, and continues in our own which I wrote to instruct them," n4 the rabbis day both in the modern State of Israel and taught as follows: " "the tablets of stone' - this throughout the diaspora. Rabbinic tradition is the Miqra (Scripture); "the law' - this is the stands at the center of this system. This ." n5 If the text is like stone, then tradition perceives itself as the authoritative exegesis is the "a blow of a hammer," giving foundation and the historical bond linking the forth various sparks. Like the stone, the text Jewish people from the dawn of time to the itself remains inviolable and absolute, whereas present. The rabbinic tradition functions as an the explanations and commentaries flee like apparatus that processes and catalogues data sparks. In explaining the polysemic character and opinions facilitating juridical of the Scripture, the rabbis stated, "Just as interpretations and decisions. This Article each blow of a hammer strikes forth many examines that apparatus by exploring its sparks, a single verse unfolds into many underlying concepts of law and hermeneutics. senses." n6 Exegesis serves to reinforce and supplement the oral tradition; it can never be Contemporary notions of rabbinic the explanation of a text. In contemporary jurisprudence have been affected by the terms, this means that the rabbis viewed the general trend of hellenizing Jewish literature text as a semiological composition whose unit, and ideas. Rabbinic texts are ordinarily the word, is a sign which is not subject to examined through hierarchical distinctions definition; it is either recognized or not. As and categories peculiar to Western classical Emile Benveniste shows, "in semiology there studies. The basic assumption underlying this is no need to define what a sign signifies. For methodology is that the rabbinic truth is a sign to exist, it is necessary and sufficient essentially platonic. As such the purpose of that it should be received and that it should be rabbinic exegesis is to "uncover" the text and related somehow to other signs." n7 At the reveal its "true meaning." This method semiological level, whether or not a sign reflects the scholastic view that the "literal signifies is a matter of recognition, not sense" of the Scripture is what the author interpretation. "Does the entity in question intended. n1 Once the "intention" of the signify?" n8 The answer must be an author has been determined, the text itself unequivocal yes or no. "If it is yes, everything becomes insignificant - a "metaphor" marginal was said, and it is registered; if it is no, it is to its "true meaning." The object of rejected, and also everything was said." n9 interpretation thus becomes displacement of Exegesis pertains to the semantic aspect of the text. This view is intrinsic to Western the word, where meaning is generated by tradition, in general, and Christianity, in establishing new connections. n10 particular, where writing is displaced on behalf of logocentrism. The classic example of this Out of this background information, two type of hermeneutics is the Christian Scripture fundamental points follow. First, rabbinic interpreting, and thereby displacing, the exegesis is not platonic. From this perspective Hebrew Scripture. It is worth noting that it would be faulty to apply to rabbinic ideas John's logos n2 (word) is "unwritable," and and institutions the theological notions therefore anti-book and anti-text. By way of associated with Christian hermeneutics.

1 Error! Unknown document property name. Second, there is no basis for the assumption with the intellectual tradition of the . that our hellenistic views are indeed universal. n13 The academies of the Geonim were [*1659] In examining rabbinic jurisprudence organically connected with the actual schools it is unwarranted to assume that rabbinic ideas in which the original talmudic literature was and institutions are identical to those found in compiled and taught. Second, structurally, Western tradition. Furthermore, without ' Mishneh is the only code acknowledging the "differences," similarities ever produced comprising the entire rabbinic between these separate systems are legal system. Therefore, through Maimonides' meaningless. Conceptually, a proper work, a particular legal theory can [*1660] be methodology for the study of rabbinics, in tested against all other elements of the system. general, and the Jewish legal system, in Finally, conceptually, Maimonides' legal particular, will require a radical revision of system affords a comprehensive view of the standard hellenistic assumptions. rabbinic legal system according to juridical rather than theological or metaphysical There are historical reasons requiring such a principles. This last point is essential in radical revision. Due to the peculiar characterizing the legal mind of the rabbis in circumstances in which rabbinic jurisprudence contemporary legal terms. developed, it is structurally unique. To understand the substance and procedures of I. Law in Rabbinic Jurisprudence rabbinic jurisprudence, one need not draw parallels with similar laws and institutions A. The Nomocratic Society found in other legal systems, which ignore the specific character and function of the rabbinic "Law" in Jewish tradition is a radical concept method. For example, one might compare the with no parallel in legal thought. In rabbinic concept of an unwritten law with that contradistinction with other democratic of the ancient Greeks. The parallel, however, systems, where the demos or "people," as an is trivial unless one also recognizes that, absolute empirical object, are the ultimate within each system, the unwritten law had a source of authority, the people of Israel radically different design. Whereas in Western recognized the absolute authority of the law. legal tradition, the jurist supplements the The people acted as the depository of that written legislation by appealing to the law. n14 Thus, may be properly "unwritten law," in the rabbinic system, the described as a "nomocratic" system. The rabbis supplemented the oral law by appealing "Law," referred to as torah in Hebrew, nomos to the Scripture. n11 Indeed, this Article will in Greek, lex in Latin, and shari‘a in Arabic, is show that even such basic concepts as the sole ground of authority. Again, whereas "sovereignty" and "authority" are substantially in other legal systems, law is the effect of different in rabbinic jurisprudence than in the authority, in Judaism authority is the effect of Western legal tradition. the law. n15 Therefore, all forms of [*1661] authority are limited by the law. The major thrust of this Article is to examine the concepts of "law" and "hermeneutics" in Jewish law is the result of a bilateral covenant rabbinic tradition. This investigation has contracted between and the Jewish followed the legal tradition of Maimonides. people at the foot of Mount Sinai. According n12 , in general, and the to rabbinic tradition, the covenant contains , in particular, have been interpreted six hundred and thirteen mis vot or "articles" by various authorities during medieval times. regulating all of Jewish life. n16 The covenant Yet this author chooses to base this study on is both "divine" and "eternal." Since it is Maimonidean tradition for three reasons. "divine," it requires no promulgation. It binds First, historically, Maimonides' understanding the contracting parties at all times and in all of rabbinic jurisprudence is closely associated societies. This principle is known as torah min

2 Error! Unknown document property name. hashamayyim expressing the tenet that the "Law The notion that God is subject to the law, and is divine." Rather than a theological doctrine, that He cannot abrogate it, leads to two of the this is a fundamental legal principle most significant aspects of rabbinic postulating that the law requires no jurisprudence: the exclusion of "violence" promulgation or earthly authority to sanction and, its ensuing consequence, equality before it. From this perspective, God is the the law. Whereas the pagan mind conceives of consequence, not the cause, of the law. This legal relationships in hierarchical terms, radical idea is implied in a rabbinic doctrine, determined by an initial act of "violence," the widely held throughout the Jewish world, Jewish bilateral covenant implies the absolute whereby the first verse to be taught to a child horizontality of the contractual parties. is "Moses has commanded the Law to us, it is Authority, whether political, ecclesiastical, or the legacy of the congregation of Jacob." n17 judicial, is the effect, not the source, of the Only afterwards is the child to be taught law. Conceptually, there is no difference "Hear O Israel, the Lord our God, the Lord is between the inauguration of a system by an One." n18 As it were, belief in God is original act of violence, or the abrogation of subsequent to, and a result of, belief in the an existent order. Indeed, all revolutionary Torah. systems are inaugurated by a two-directional act of violence, simultaneously abrogating the This radical idea was codified in Maimonides' old order and establishing the new order. . Belief in God is categorized Denial of the possibility of abrogating the law as a mis vah or article of the covenant. n19 constitutes a formal rejection of the pagan Orobio de Castro n20 pointed out that since idea that "violence" stands at the very basis of belief in God is a consequence of the law, all "legitimate" political and judicial systems. disbelief in the law implies disbelief in God. n27 In the pagan mind, law and authority are, n21 From this perspective, there is no necessarily, the effect of "a monopoly of distinction between rejecting the law and violence." n28 atheism. n22 Within this specific context, the ultimate grounds [*1662] for belief in God We may now have a better understanding of are legal, not theological or metaphysical. n23 the Jewish and Christian views about the Indeed, by codifying the belief in God as a abrogation of the law. The Christian claim mis vah, n24 Maimonides was stipulating that that the law was abrogated by a "new," and that belief is a covenantal or a legal obligation, hence more "powerful" [*1663] order, rests and not a theological doctrine. n25 precisely on the belief that "law" is structurally connected with "violence," and is therefore Since the ultimate recognition of God is the antithetical to "love." n29 Ironically, by law, and not some metaphysical notion, were linking this "love" to an inaugurating act of God to contravene any of the elements of the abrogation, Christian love became formally law, He would not be obeyed. Accordingly, and inextricably connected with "violence." the Talmud identifies the eternity of the law with the biblical principle "lo bashamayim hi" B. Individual Autonomy and the Jewish Constitution ("The Law is not in heaven") by explaining that the divine lawgiver may no longer Reflecting the pagan idea that "violence" promulgate new laws or reinterpret the laws stands as the basis of the legal and political of the covenant. n26 Indeed, the law cannot systems of a nation, John Austin views "law" be abrogated even by a divine agency. Since as a command expressing the will of the the covenant was not imposed but negotiated political superior, and thus the effect of by the two parties - God and Israel - neither authority. The magistrates and institutions may abrogate any of its terms. issuing laws and legal decisions derive their authority from the sovereign. Since sovereignty cannot be limited, the sovereign is

3 Error! Unknown document property name. not subject to the law. Thus, the sovereign is institutions fail to comply with it, they lose the basis of law, not its effect. n30 Herbert their legitimacy. Hellenistic Jewish writers Marcuse referred to this domination of the referred to the Torah as the "constitution" of people by the ruling authorities, when he the Jewish people. Indeed, Philo viewed the remarked: Pentateuch as "the ideal Constitution." n34 In this respect, the Pentateuch is the basis of all The only authentic alternative and negation of authority: political, ecclesiastical, and juridical. dictatorship (with respect to this question) As opposed to the role of the sovereign would be a society in which "the people" have presented in the works of Hobbes and become autonomous individuals, freed from Spinoza, n35 Judaism records the sovereign as the repressive requirements of a struggle for subject to the law. Quoting a Greek proverb, existence in the interest of domination, and as "That for the king the law is not written," a such human beings choosing their in the Talmud commented as follows: government and determining their life. Such a "Ordinarily, when a human king issues a society does not yet exist anywhere. In the decree, if he chooses, he obeys it, otherwise meantime, the question must be treated in only others obey it; but when the Holy One, abstracto - abstraction, not from the historical blessed be He, issues a decree, He is the first possibilities, but from the realities of the to obey it." n36 The rabbinic position on this prevailing societies. n31 matter coincides with separation of kingship and divinity in ancient Israel. Addressing this Autonomy is a fundamental Jewish concept. It fundamental point, a distinguished historian means self-government according to one's remarked: "In the light of Egyptian, and even own laws and criteria. A society is Mesopotamian, kingship, that of the Hebrews autonomous when the ordering of human lacks sanctity. The relation between the conduct and the adjustment of human Hebrew monarch and his people was as nearly relations are relative to its own criteria and secular as is possible in a society wherein interest. Thus, it presupposes a law religion is a living force." n37 The king's independent of the political and religious secular role in ancient Israel led to what may bureaucracies and recognized by all as the sole be properly described as the "separation of source of authority. Unlike freedom (ofesh) powers." Unlike pagan society where the which is a negative concept with negative monarch is the head of the Church, the connotations (for example, freedom from Hebrew king was not the head of the hunger or from oppression), autonomy (erut) sanctuary or directly involved with the temple is the affirmation of certain inalienable rights rituals. Professor Abraham Joshua Heschel contracted with God. The function of the law notes: "In Israel, the king was not a priest. He is to guarantee both public and individual was sanctified by his anointing, appointed by autonomy. Without the law, autonomy is not God; in his person centered the hopes of the possible. As the rabbis taught, "no one is people, yet sacerdotal functions were regarded autonomous (ben orin) unless he is engaged in as the heritage of the tribe of [*1665] Levi." the study of the Torah." n32 Since the Jew is n38 When, occasionally, some kings wanted an autonomous [*1664] entity, he owes to arrogate for themselves such prerogatives, allegiance to the law, rather than to the they were strongly resisted. For example, sovereign or body politic. Every morning the Heschel continues, "When Uzziah entered the Jew celebrates his autonomy by thanking the Temple to burn incense on the altar ... he was Lord both for not being born a "gentile" and told by the high priest, "it is not for you, for not being born a "slave." n33 Uzziah, to burn incense to the Lord, but for the priests, the sons of Aaron, who are Jewish law defines the responsibilities and consecrated to burn incense. Go out of the authority of its political, ecclesiastical, and sanctuary ....' " n39 Biblical prophecy is a judicial institutions. When any of these direct consequence of the idea that the

4 Error! Unknown document property name. monarch and other dignitaries are not the C. The Autonomy of the Law source of authority. When the biblical prophet, an individual without an office, Belief in the autonomous status of the law admonished the king, the priest, and the judge underlies much of biblical and post-biblical in the name of the law, he was affirming the Jewish history. Throughout the ages, the principle that these authorities are subject to a political, ecclesiastical, and judicial authorities law transcending their specific institutions and were challenged by the people in the name of authority. Heschel makes this point succinctly: the law.

Of paramount importance in the history of In the Bible, the episode of Ahab and Naboth Israel was the freedom and independence illustrates how even tyrants were expected to enjoyed by the prophets, their ability to recognize the absolute authority of the law in upbraid the kings and princes for their sins. ancient Israel. When Naboth refused to sell From the beginning of the monarchy, the king his vineyard, Ahab felt despair, not knowing was at any moment in peril of rebuke, even of what to do. His pagan queen, Jezebel, the rejection, by the prophets, who reminded him daughter of a Syrian King, suggested trumped that the king's sovereignty was not unlimited, up charges against Naboth. Yet even during that over the king's mishpat stood the mishpat that notorious incident, judicial procedure was of the Lord - an idea that frequently clashed meticulously observed. More importantly, the with the exigencies of government. n40 episode was denounced for generations as a most heinous crime. n47 Talmudic sources Unprecedented in history, Jewish prophets also underscore that the monarch may not frequently denounced corrupt kings and transgress the law. The rabbis reported a political officers. When confronting the confrontation between Simeon ben Shetah authorities in the name of the Law, the n48 and a Jewish king, who was summoned to biblical prophet "was not a primus inter pares, appear in court and hear charges, just like any first among his peers. By his very claim, his other person. n49 The rabbinic doctrine of was the voice of supreme authority. His malkhut shamayyim (kingdom of heaven), n50 statements not only rivaled the decisions of usually understood in theological terms, is the king and the counsel of the priest, he really a political concept meaning that the defied and even condemned their words and sovereignty (the kingdom) of the law (of deeds." n41 heaven) is supreme. From this doctrine, two legal principles emerge. First, there is the In this connection it is important to note that concept of "en shalia lidvar 'averah" ("there the Pentateuch stipulates that the kohen mashia cannot be a fiduciary relation in matters (the High Priest) representing the involving a transgression"). Second, there is ecclesiastical authority, n42 ‘ene haqahal (the the maxim of "divre harav vedivre talmid divre mi judiciary) representing the people, n43 and the shom‘im" ("the orders of a superior authority nasi (ruler), representing the political and the orders of an inferior authority, whose establishment, n44 are subject to judicial error orders shall we obey?"). n51 The first and must bring an expiatory sacrifice. n45 The statement asserts that an individual is principle that the highest authorities entrusted responsible [*1667] for his own actions, and with the [*1666] interpretation and cannot claim that he was acting as an agent implementation of the law are capable of for someone else. The second statement judicial error presupposes a totally objective conveys the principle that there can be no law independent of governmental legal duty to act on behalf of another person bureaucracies. An entire talmudic tractate, in illegal matters. Neither the king nor any , deals with the niceties of this other authority may be obeyed in matters principle. n46 involving the breaking of the law. n52

5 Error! Unknown document property name. These standards apply to the ecclesiastical Rabbi Mane would deprecate those who were authorities as well. They, too, are under the appointed because of money. Rabbi Amme applied to absolute mandate of the law. When acting them the verse " of silver and gods of gold do not outside the confines of the law, the make for yourselves." Rabbi Joshia said, his talli priesthood has no authority. In the Bible, the (mantle) is to be regarded as the backstrap of a conflict between Amos and the high priest donkey. Rabbi Ashyan said: Whoever is appointed Amaziah, illustrates this principle. n53 The because of money, one cannot stand up in reverence story depicts how Amos, a common man who before him, and one cannot call him "Rabbi," and his held no religious office, challenged the mantle is to be regarded as the backstrap of a donkey. authority of the high priest in the royal Rabbi Ze'ira and a rabbi were seated. One of those sanctuary. Even though the priesthood who was appointed because of money passed before enjoyed an eminent status, nonetheless it was them. Said that seated rabbi to Rabbi Ze'ira: Let us subject to the law, and had to be measured by pretend that we are studying, so that we would not it. n54 The Talmud describes a similar need to stand up before him. n59 incident during the Second Temple period in Jerusalem. The rabbis reported a clash In the matter of incompetent judges duly between the king, who was also a high priest, appointed by the Exilarch, Hai Gaon n60 but who had deviated from prescribed ritual, issued the following decision: and the people. n55 Josephus described this incident as follows: Concerning your query about judges that impound the beds of the poor and other objects not in accordance to As for Alexander, his own people revolted against the law of the Torah, and consequently the creditors him - for the nation was aroused against him - at the come and rob their houses and loot their beds and celebration of the festival, and as he stood beside the utensils which cannot be legally impounded, and you altar and was about to sacrifice, they pelted him with have no power to constrain them. Let the spirit of citrons, it being a custom among the Jews that at the those judges be accursed! They are the judges of Sodom. festival of Tabernacles everyone holds wands made of Robbers and Thieves! Concerning them it is written: palm branches and citrons - these we have described "You have looted the vineyard, the loot from the poor elsewhere; and they added insult to injury by saying is in their houses." Therefore, you must disseminate that he was descended from captives and was unfit to the word among all your neighbors and nearby places, hold office and to sacrifice; and being enraged at this, and disgrace them and remove them from office, since he killed some six thousand of them, and also placed a they do not care about the Torah and the words of our wooden barrier about the altar and the temple as far Rabbis, of blessed memory. And you, who know the as the coping (of the court) which the priests alone were law of the Torah and Rabbinic statutes, organize, permitted to enter, and by this means blocked the take council, deliberate, and bring forth from among people's way to him. He also maintained foreign troops you God-fearing men and scholars who care for the of Pisidians and Cilicians, for he could not use honor of the Torah, and appoint them over you. You Syrians, being at war with them. n56 should have no second thoughts about this matter. n61

Judicial authority as well must follow the law. Political rulings are also not to be obeyed if If the Supreme Court of Israel, or a lower they violate the law. The same principle was court, issues a decision contrary to the law, applied to the political authorities. In a [*1668] it is not to be obeyed. n57 decision of the Geonim it was concluded: Maimonides codified the rule that if the proper Jewish authorities had appointed an A king, governor, or tax-collector who sends agents to unqualified person as a judge, that the community to excommunicate for his own private appointment would be worthless. n58 As to needs and endeavors, [*1669] either to punish or to individuals who were appointed as judges seize Jewish money - and it is impossible not to because of money, the rabbis taught: excommunicate because of his coercion. All excommunications that are issued by him are

6 Error! Unknown document property name. worthless, and no one should pay any attention to Henceforth, Jews identified themselves and them. In the same fashion, if an Israelite who had were recognized by the host country as deposited money with a friend, and he was denounced, members of "the Jewish nation in Exile." n63 and the king ordered that he who received the deposit Accordingly, the admission of Jews into a new should be excommunicated, and the confidant does not country was not merely a matter of freedom want to disclose the whereabouts of the money except to of religion, but rather, of reorganizing a the heirs as required by the law in order to pay that is, [*1670] juridically autonomous entity. For the debts incurred by the deceased, then blessing shall example, when the first group of Jews sought descend on him, and the baseless curse will not come! permission to settle in New Amsterdam in No one should heed to that ban and January 1665, the petition was made in the excommunication. And we must acknowledge him the name of the "Jewish nation." n64 Whatever confidant for the good that he did, and bless him Governor Peter Stuyvesant's personal feelings because he persisted in his faithfulness, and he is concerning Jews and Judaism may have been, compassionate with the heirs. Concerning this man it his refusal to grant them permission was not is written, "My eyes are on the faithful of the earth." simply a question of religious freedom. The n62 situation of the Jews, believing themselves to be a legal entity autonomous from the state, In short, throughout its history, Judaism has raised highly complex issues. A Christian sect fastened to the principle that all forms of might claim to be a separate religious group, authority must be grounded in the law. The but not a separate national entity. So while the undesirability of assimilating with other government may have been willing to grant political, religious, or legal systems is a religious freedom to its subjects, recognizing corollary of having rejected the notion that Judaism's political and judicial rights as a authority is the effect of power, that is, nation involved not only respect for legal "violence." pluralism and non-state legal orders, but a redefinition of "national sovereignty." D. Exile: Sovereignty Without Territory Accepting the Jews would have been an implicit acknowledgment of political entities In its barest form, the Exile (galut) is a political existing within the state that are not subsidiary theory stemming from the Jewish concept of organs of the national polity. n65 The same law. It means that the Jewish nation was not problem reemerged within the American legal dissolved with the territorial loss of the land system when it came to defining the legal of Israel. This claim rests on the principle that status of native Americans. It is a remarkable Jewish sovereignty is not predicated on the fact that the United States authorities awarded control of a particular geographical area, but to the American Indians an analogous status on the law establishing the internal legal, to that of the early Jewish settlers, and religious, and cultural institutions governing recognized them as separate "nations." n66 the Jewish people. Contrary to pagan thinking, whereby the right of the sword, the merum E. The Jewish "Constitution" versus the United imperium, or absolute power - the "monopoly States Constitution of violence," in the language of Derrida - underlies the right for civil and criminal In concluding the discussion on the place of administration of justice, the law is the only law in rabbinic jurisprudence, this author basis of authority in Judaism. Therefore, wishes to highlight the differences between although vanquished in war, the Jewish nation Jewish law as a constitution and the United was not dissolved. States Constituion. First, Jewish law does not require promulgation or the sanction of With the destruction of the Temple in 70 C.E. authority. The law is valid even when the and the subsequent exile, the Jewish people Jewish people no longer enjoy national politically redefined their national sovereignty. territory. Accordingly, there could be a Jewish

7 Error! Unknown document property name. nation without territory or any political and practical purposes, the Constitution is what judicial institutions essential for the the Supreme Court declares it to be. government of a people. The Jewish status of galut, as a nation in "Exile," is the historical Third, in Judaism, the law is binding on all embodiment of the aforementioned principle. forms of authority. In the United States Although bereft of all political and national Constitution, there is separation of church institutions, the Jewish people recognize the and state. n73 Therefore no parallel can be "Law," and not the host country, as their drawn between the American legal system and supreme authority. As a correlative principle, the Jewish principle that the highest the messianic ideal asserts that eventually a ecclesiastical authorities are subject to judicial perfect Jewish state will be established in full error. The area where proper comparison may accordance with the Law. Therefore, by be made is in the status of the civil sovereign. definition, all political allegiance to other n74 Significantly, the American legal system states or systems are "temporary." The Jewish has not yet developed an equivalent [*1672] claim [*1671] to the Holy Land is based, to the talmudic tractate Horayot, nor can it precisely, on the premise that because of the point to an American counterpart of a Jewish law, the Jewish nation was not dissolved. n67 king responding to a summons of the Supreme Court. Second, the Supreme Court of Israel is subject to judicial error, for which it must bring an II. Hermeneutics in Rabbinic expiatory offering. The Supreme Court of the Jurisprudence United States, although occasionally "erroneous," in the words of Lincoln, can A. The Place of Hermeneutics Within Rabbinic never be subject to judicial error. n68 Even in Jurisprudence the rare instance where a Supreme Court decision is overruled, it is always the Supreme Rabbinic institutions have three bases of Court which makes the revision. As Chief authority: (1) the transmission of authentic Justice Marshall declared, it "is emphatically traditions stemming from Sinai; (2) the the province and duty of the judicial promulgation of new statutes and legislation department to say what the law is." n69 designed to serve as "a fence around the law"; Similar to Jewish law, there are, of course, and (3) the right to interpret Scripture. n75 learned analyses regarding the precise The authority for the first two is a authority of the Supreme Court's exposition consequence of the third. Scriptural grounds of constitutional law. Some, such as the for the transmission of the oral law and the former Attorney General of the United States, enactment of legislation are based on Edwin Meese III, distinguish "between the canonical exegesis (midrash, derashah). Constitution and constitutional law." n70 There is also disagreement about the exclusive Indeed, Judaism owes its very existence to authority of the Court's interpretation of the exegesis. Through exegesis, Judaism was able Constitution, particularly in regard to the to grow and develop in the most adverse and other branches of government. n71 At any diverse circumstances, without having to lose rate, only when examining the Supreme its connection with Scripture. Intimately Court's adjudications from a non-judicial connected with exegesis are the dinim mufla'im perspective (political, public morality, etc.) (undefined laws or casus omissus). There is could they be classified as "judicial mistakes." purposeful ambiguity in the Law designed to There can be no "mistakes" when these allow for adaptability and development. decisions are examined from a strict judicial Judaism recognizes that there are terms in the perspective. n72 Despite the rhetoric and Scripture which were not defined by oral background noise surrounding some Supreme tradition, and thus these terms can be defined Court constitutional decisions, for all legal and exclusively by the judiciary. Concerning the

8 Error! Unknown document property name. right of the judiciary to define these terms, the Jerusalem. The other approach would be to rabbis taught that the decision of the Supreme eliminate the religious services altogether - Court cannot be challenged "even when they just as the laws of purity and the agricultural tell you that your left is your right and your tithes outside the were rescinded right is your left." n76 after the destruction of the Temple. In either case, there would have been an end to both Most talmudic debates regarding biblical the Jewish people and the Jewish religion. exegesis revolve around the dinim mufla'im. n77 By applying exegesis to the undefined terms The quandary was resolved through of a law, the judiciary was able to hermeneutics. The rabbis interpreted the accommodate the law to the new expression "ul'ovdo bekhol levavkhem" ("and to developments and circumstances. A glaring serve Him with all your heart") n82 to mean example is the definition of "ayin taat ayin" that in addition to offering sacrifices, another ("an eye in place of an eye"), n78 where taat is way to worship God is through the service of interpreted to mean "monetary the heart - that is, . n83 In Scripture, compensation." n79 Occasionally, laws that "avodah," or "service," to God always involves were no longer compatible with public sacramental sacrifices. By focusing on the morality were restricted by exegesis, making "service-heart" connection, the Rabbis were their literal application impossible. One such able to sanction a new form of worship, law concerns the right of parents to have a whereby the prayers would replace (not rebellious son put to death by [*1673] the displace!) the sacramental sacrifices. This court. Another example of exegesis redefining fundamental tenet resulted in the Rabbinic the law is the requirement that no criminal principle of "tefillot keneged temidim tiqqenum" punishment can be imposed unless the ("the prayers were instituted as parallels to the criminal has been formally forewarned by the daily-sacrifices"). n84 The substitution of the witness and has acknowledged their warning. Temple by the synagogue and the priest by n80 the pious sage were a further consequence of this exegetical formulation. This effect totally Hermeneutics became more important with revolutionized the history of religion. Again, it the loss of national autonomy and institutions should be emphasized [*1674] that the after the destruction of the Temple in 70 C.E. transformation was effected not by the rabbis Without exegesis, Judaism would have had to breaking away with the Scripture but by either break with the Scripture, or reduce its basing the new method on Scriptural exegesis. growth to the sociopolitical and religious It is interesting to note that both the church institutions of biblical Israel. In either case, it and the mosque subsequently evolved from would have meant the end of the Jewish the synagogue and not the Temple. Thus, people as a distinct biblical religion. n81 The rabbinic exegesis was instrumental in issue of serving God through sacrifices revolutionizing the concept of religion accentuates the role exegesis and throughout much of the civilized world. hermeneutics played in post-Temple Judaism. After the destruction of the Temple and the B. Reading as Writing: Derashah and the Collusion dispersion of the Jews throughout the Reader-Text diaspora, sacramental sacrifices were abolished. Without exegesis, the alternatives There are two types of exegesis. One is would have been fatal for Judaism. One platonic, while the other is stoic. n85 Platonic alternative would be to institute minor exegesis assumes a theory, postulating a priori temples outside Zion - as was done by the knowledge of the "ideal Forms." As Julia Elephantine community and some Kristeva explains, "it seems that one does not Alexandrian Jews - thus breaking with the interpret something outside theory but rather biblical ideal of a centralized temple in that theory harbors its objects within its own

9 Error! Unknown document property name. logic." n86 This methodology is consistent "connected" through derashah with one with the principle that authority both another. In rabbinic literature, even those antecede, and be independent of, the text. The elements void of lexical meaning, like ultimate grounds of interpretation is the defective and full spellings, particles, theory, not the text. Early Christian exegesis is prepositions, calligraphic ornamentation, and Platonic. In Pauline terminology, "the spirit" even the shape of letters, may be "connected" supercedes and displaces the "letter" of the and acquire "significance" through canonical Scripture. It is because the interpreters exegesis. n89 According to the rabbis, Moses incarnate the theory that they have authority discovered God "tying up" - in the sense of to expound the text. As with the Greek a- making connections - "the calligraphic letheia, interpretation "uncovers" the "ideal ornamentations" of the Torah. n90 By means Forms" in the text. The agenda of the of derashah the reader does not discover, but interpreter is to "uncover" the text and generates meaning. "discover" the ideal forms; more precisely, his agenda is to project those forms onto the text. One of the most important aspects of the In this way, interpretation displaces the text. derashah is that the text is interpreted Accordingly, in Christian tradition the New independently of the author's intention. Testament displaces the Hebrew Scripture Notions of "original intention" are Platonic. precisely by being its "true" interpretation. According to the "originalist" perception, the judiciary "discovers" the "true" or "real Form" For the rabbis, akin to the Stoics, lying somewhere in the mind of the legislator. interpretation involves "making connections" The rabbinic doctrine of derashah is consistent in the text as with the connection "service- with the principle "lo bashamayyim hi." n91 heart" mentioned above. n87 The What was ratified at the covenant on Sinai interpretation, however, can never displace was not the "intention" of the lawgiver, but the pesha (the manifest tenor) of the text. the actual law, as understood by those who Thus, the rabbinic principle provides "en miqra received it. n92 It follows that the task of the yoe midai peshuo" ("a verse which was the object judiciary is not to recapture the "original of exegesis does not lose its manifest tenor"). intent" of the legislator, but to apply the text n88 Accordingly, the interpretation is of the law to the situation at hand, by making surveyed in light of the text and not the other innovative connections, generating, thereby, way around. This methodology is consistent fresh meaning and understanding of the law. with the premise that interpreters have n93 authority because they authentically interpreted the [*1675] text; an interpretation The rabbis approached the text as if it were a is not "authoritative" simply because it was semantic composition. Exegesis borders into issued by people with "authority." the aesthetic. Like in music and painting, there is a complete collusion between the The rabbis of the Talmud and the Midrash did exegete/artist and the elements that were not set up rules to decide between different incorporated into the derashah/artistic hermeneutical options, or to distinguish composition. [*1676] The elements used in between legitimate and illegitimate exegesis. creating the artistic composition lose their Rabbinic sources view all forms of original value in isolation (that is, before they hermeneutics as legitimate. Even the thirteen were "connected"), acquiring a fresh rules of hermeneutics (shelosh ‘esreh significance in the "composition" of the shehatorah nidreshet) are sufficiently broad to derashah. The total significance of the allow for all types of interpretations and derashah-unit is not the sum of the individual associations. Since the rabbis regarded the significance of the parts. For instance, in the entire Scripture as a collection of semiotic above mentioned derashah, the isolated symbols, every aspect of the text could be meaning of the term "avodah" and the term lev

10 Error! Unknown document property name. do not add up to tefillah (). It is through C. Subverting the Text: The Limits of Readerly the construction of the derashah-unit "prayer" Collusion that the semiological lexical meaning of the terms is transformed into a semantic The perimeters and limits of derashah and composition. Accordingly, whereas at the reader-text collusion are those of all judicial peshat level (sense), S = (A)+(B), at the interpretation. In Judaism, the Torah is derashah level, S = (A)+(B) + n. principally the Law of Israel. Indeed, the rabbinic institution of derashah is modeled on Because a derashah is a semantic composition the judicial principle whereby a court of not reducible to its constitutive elements, it is justice is authorized to determine the sense of accepted or rejected by the same process that and interpret all contracts, statutes, and one accepts or rejects any artistic written documents under its jurisdiction. composition. At the level of derashah, there is Now, since the Torah was given to the Jewish no "objective" text; the meaning of a unit is people, it follows that they have the right to not reduced to the sum of its elements in interpret it and determine its meaning in the isolation. Consequently, the rabbis taught, same fashion as does a judicial court. n99 The "One cannot raise an objection against a most basic principle governing judicial homily." n94 At the level of derashah, there is a interpretations is that exegesis cannot be used complete collusion between the reader and as an instrument designed to deauthorize the the text. The "connections" made in the text text and render it void. Accordingly, when are the creative composition of the reader there is ambiguity in a contract, statute, or functioning as an author. n95 To underscore constitution, it cannot be interpreted in a way this point, the Geonim and Maimonides that would void the document. Both "strict" postulated the principle that everything and "liberal" methods of interpretation are stemming from rabbinic exegesis is not a limited by this overwhelming principle. An scriptural (deorayta) but a rabbinic (derabbanan) excellent example of this principle may be obligation. Rabbinic exegesis is the creation of found in a responsum by the famous medieval the rabbis, rather than the stipulation of the jurist, Rabbi Asher. n100 A promissory note text. n96 This position parallels the distinction on Passover was brought to his Court for made by contemporary jurists "between the execution. Somehow the scribe had omitted Constitution and constitutional law." n97 the pronoun "this," which would have indicated that the first Passover from the time There are however, definite limits to the of the drafting was intended as the due date reader-text collusion. Certain types of for the note. A strict interpretation of the exegeses are regarded as illegitimate and contract would imply, as the promisor argued, offensive. Among those who have forfeited that the note was due in a future, the World-to-Come and fellowship with the indeterminate Passover. A liberal people of Israel are those engaging in "derashot interpretation, as the promisee argued, shel dofi" ("exposition of faltering warranted an immediate execution of the interpretations"). n98 This category includes contract, since it was clear that "this Passover" [*1677] all the Gnostic, Christological, and was intended. Although usually a strict antinomial exegeses. interpreter of the text, Rabbi Asher decided in favor of the promisee, that is, the liberal Our focus now is to examine the perimeters interpretation. After a careful analysis of of readerly collusion. Specifically, by which talmudic sources, he pointed out that an criterion did the rabbis distinguish between a interpretation rendering an ambiguous legitimate derashah that may be accepted, and a contract invalid must be avoided. Now, he Christological or antinomial derashah, that said, since the strict interpretation would must be rejected as offensive and illegitimate? render the note null and void, as the promisor could always argue that a later, indefinite

11 Error! Unknown document property name. Passover was meant, the liberal interpretation to it a meaning designed to subvert the law or was correct: [*1678] a national institution. Addressing themselves to this concern, the rabbis formulated the Only when it can be explained in two ways, principle that "kol midrash umidrash ke‘inyano" one favoring the promisor and another ("every interpretation and interpretation must favoring the promisee, then we explain it be context-bound"). n102 This means that the against the promisee, as the burden of proof text must be interpreted in the light of the is on him. This is possible only when the original context. The same principle is held in contract would not be rendered ineffectual. other legal systems, including the American However, in our case, if we would interpret it legal system. Jurists warn against reading the to mean an indefinite Passover, there would law, "without regard for the surrounding have been no reason for the contract to have jurisprudence - including its constitutional been drafted in the first place. Therefore, we [*1679] configurations - into which the must surely assume that this immediate statute must fit." n103 Concerning lawyers Passover was intended, and that the scribe who take words and terms out of their erred and forgot to write the date. n101 context, disregarding their specific background and circumstances, a great legal The exclusion of subversive exegesis by the scholar of our times wrote with indignation: rabbis is quite clear in light of the preceding. "One of the most important contexts is that The Gnostic, Christological, and antinomial of the whole Act, and there is no more vicious interpretations of the Hebrew Scripture are method of argument than tearing words from designed to impugn the law ("derashot shel a statute as some counsel do, without relating dofi"), rendering the text void and ineffectual. them to the whole purport of the enactment." Therefore, they must be rejected for the same n104 reason that such interpretations would be rejected by any court of justice. In the Judaism felt the same about the Law. Since American legal system, both "strict" and ambiguity is intrinsic to the nature of "liberal" interpreters would concur that any language, one cannot interpret an obscure or interpretation whose ultimate consequences laconic term in such a way as to render a law, are the abolition of the Constitution, and the or the entire Constitution, null and void. The subversion of national authority and perimeters of text-reader collusion in Judaism institutions, must be rejected. This is all the parallel the standard methodology applied in more true in Judaism where the authority to American courts of justice for the interpret stems from the text, rather than interpretation of contracts and legal texts. from an outside institution. As to the latter, if an argument concerning the validity of the law Footnotes: were correct, then an interpreter would have no authority to issue any interpretation. n1. See Umberto Eco, The Limits of Interpretation 14-15 (1990). III. Conclusion n2. John 1:14. Judaism admitted both "strict" and "liberal" interpretations of the text, and acknowledged, n3. See Jose Faur, God as a Writer, Religion & better than any one else, the collusion reader- Intell. Life, Spring/Summer 1989, at 31, 32-35 text. This was always with the provision that the interpretation does not void the law. Thus, n4. Exodus 24:12 (translated by author). subversive exegeses were rejected as offensive and illegitimate. A peculiar technique of the n5. Midrash Hagadol 556 (Mordecai Marguiles subversive derashot is to tear a term or ed., 1967) (commenting on Exodus 24:12) expression out of its general context, and give (translated by author). The text in Babylonian

12 Error! Unknown document property name. Talmud, 5a is corrupt. See Jose to which all human affairs, including those of Faur, Studies in the Mishne Tora 18 (1978). the state and society, must accommodate. n6. Babylonian Talmud, Sanhedrin 34a n15. The term "theocracy" was first coined by (translated by author). See Jose Faur, Golden Flavius Josephus to describe the political Doves with Silver Dots: Semiotics and Textuality in system of Israel. See 2 Josephus, Against Rabbinic Tradition at xiii-xiv (1986). Apion 165 (H. St. J. Thackeray trans., 1961). In other writings, this author has submitted n7. 2 Emile Benveniste, Problems de linguistique that Josephus did not mean that God - as a generale 222 (1974) (translated by author). pure theological concept - is directly and imminently the ruler of Israel. This would n8. Id. (translated by author). obviously lead into total chaos and anarchy. Rather, this term is meant to convey "the Law n9. Id. (translated by author). of God." Thus, the Law, given by God Himself, and representing His eternal and n10. See Faur, supra note 6, at 76-79, 118-23. unchangeable will, is the constitution, and therefore the source of all authority in Israel. n11. See Jose Faur, Law and Justice in Rabbinic A more appropriate term to designate the Jurisprudence, in Samuel K. Mirsky Memorial Jewish constitution would have been Volume 13, 20 (Gersion Appel et al. eds., nomocracy or "authority of the Law." The 1970); cf. Erwin R. Goodenough, The Politics of reason that Josephus preferred "theocracy" Philo Judaeus 79 (1938). was to emphasize that in Judaism the Law stems from God, rather than from the will of n12. Rabbi Moses ben Maimon, widely known the political sovereign and that through the as Maimonides, was one of the major Law, God Himself is governing. Josephus medieval rabbinic authorities and writes: philosophers. He lived from 1135 to 1204 c.e. For us, with our conviction that the original n13. The Geonim were heads of the Talmudic institution of the Law was in accordance with Academies in Babylonia between the seventh the will of God, it would be rank impiety not and tenth centuries. to observe it. What could one alter in it? What more beautiful one could have been n14. The state of ancient Israel may be discovered? What improvement imported described as democratic. from elsewhere? Would you change the entire character of the constitution? Could there be The biblical concept of state can be described a finer or more equitable polity than one as "democratic" with at least as much justice which sets God at the head of the universe, as the Mesopotamian form of government. It which assigns the administration of its highest is the "people" (i.e. demos) of Israel who have affairs to the whole body of priests, and a decisive say as to how and by whom they are entrusts to the supreme high-priest the to be ruled; it is they who set up their kings direction of the other priests? ... But this time and again. charge further embraced a strict superintendence of the Law and of the E. A. Speiser, The Biblical Idea of History in Its pursuits of everyday life; for the appointed Common Near Eastern Setting, in The Jewish duties of the priests included general Expression 1, 9 (Judah Goldin ed., 1976). The supervision, the trial of cases of litigation, and Jewish demos, however, was intrinsically the punishment of condemned persons. different from that of the pagan world, because it perceived itself as bound to a Id. at 184-88. Josephus summarized the higher Law, divine and immutable, according principal elements of the Law. Since

13 Error! Unknown document property name. "theocracy" came to be known as a n26. See Babylonian Talmud, Baba Meia 59a; government of God by the ecclesiastical Faur, supra note 6, at 13-14. See also authorities, this author now prefers the term Maimonides, Mishneh Torah, Sefer Hamada, "nomocracy." Actually, "theo-nomocracy" Hilkhot Yesodei Hatorah 9:1. would be a more accurate description. n27. On the pagan concept of "violence," see n16. For a close analysis of this fundamental Jacques Derrida, Force of Law: The "Mystical concept, see Jose Faur, Understanding the Foundation of Authority", 11 Cardozo L. Rev. Covenant, Tradition, Spring 1968, at 33; Jose 921 (1990). Faur, Texte et Societe: histoire du texte revele, in 1 La Societe Juive a Travers l'Histoire 49-52 n28. Id. at 985-87. (Shmuel Trigano ed., 1992) hereinafter Faur, Texte et Societe. n29. Cf. id. at 991. n17. Deuteronomy 33:4 (translated by author). n30. See H.F. Jolowicz, Lectures on Jurisprudence 15-27 (J.A. Jolowicz ed., 1963) (explaining the n18. Deuteronomy 6:4. See Babylonian theories of John Austin). Talmud, Sukkah 42a; Maimonides, Mishneh Torah, Sefer Hamada, Hilkhot n31. Herbert Marcuse, Repressive Tolerance, in A 1:16; Shulan "Arukh, Yoreh De"ah 245:5. Critique of Pure Tolerance 81, 105 (1969). n19. See Faur, supra note 5, at 152-60. n32. Mishnah Avot 6:2 (translated by author). n20. Orobio de Castro was a philosopher and n33. For further discussion on this subject, physician born in Brazaga, Portugal (1620- see Faur, Texte et Societe, supra note 16, at 70- 1687). See 12 Encyclopaedia Judaica 1475 74. (1972). n34. See Harry A. Wolfson, 2 Philo 374-95 n21. See Orobio de Castro, Epistola Invectiva, in (1947). For a more modern perspective of this I.S. Revah, Spinoza et le Dr Juan de Prado 88, issue, see Jacob Neusner, The Constitution of 119-23 (1959). Judaism in Ancient Times: The Pentateuch and the Mishnah, J. Reform Judaism, Spring 1989, at n22. See Jose Faur, In the Shadow of History: Jews 55; see generally 3 Jacob Neusner, The Two and Conversos at the Dawn of Modernity 147 Constitutions of Judaism in Ancient Times, (1992). Understanding Seeking Faith 145 (1988). n23. See Maimonides, Mishneh Torah, Sefer n35. See Faur, supra note 22, at 184. Hamada, Hilkhot Yesodei Hatorah 8:2 (stating that belief in God is explicitly connected with n36. , Rosh Hashanah 1:3 the giving of the Law at Sinai). (translated by author). The correct text is found in Seride Hayerushalmi 145 (Louis n24. Maimonides, Mishneh Torah, Ginzberg ed., 1968) (Fragments of the Hamivot, Mivat Ase 1. Genizah). For the correct interpretation of this passage, see Saul Lieberman, How Much n25. Accordingly, "heretic" is defined not as Greek in Jewish Palestine?, in Biblical and one who disbelieves in God, but as one "who Other Studies 128 (Alexander Altman ed., declares" ("ha‘omer") that there is no God. 1963). Maimonides, Mishneh Torah, Sefer Hamada, Hilkhot Yesodei Hatorah 3:7, 8. n37. Henri Frankfort, Kingship and the Gods 341 (1948).

14 Error! Unknown document property name. n51. Babylonian Talmud, Qiddushin 42b n38. Abraham J. Heschel, The Prophets 478 (translated by author). (1962) (citing Deuteronomy 33:8). n52. See Maimonides, Mishneh Torah, Sefer n39. Id. (quoting 2 Chronicles 26:16). Shoftim, Hilkhot Melakhim 3:9. For a summary of the main legal points included in these n40. Id. at 478-79. formulas, see Jacob Algazi, Qehilat Yaaqov 1c- 4d (Lemberg, 1862). n41. Id. at 480. n53. See Amos 7:7-17. n42. Leviticus 4:3-12. n54. See Shalom Spiegel, Amos vs. Amaziah, n43. Id. at 13-21; cf. Numbers 15:22. in The Jewish Expression 38-65 (Judah Goldin ed., 1976); cf. Malakhi 2:5-7. n44. Leviticus 4:22-26. n55. See Mishnah Sukkah 4:9. n45. The sequence - ecclesiastical, judicial, and political - is particularly significant. By n56. Josephus, supra note 49, at 13:372-74. mentioning the ecclesiastical authority first, it The story in Babylonian Talmud, Yoma 71b is implied that unless the authority of the Law illustrates the feeling of disgust that the is recognized, the priesthood cannot serve as people had for this type of high priest, in agent of an expiatory offering. The stipulation contrast to the reverence that they had for the that a sin by the high priest is "to the teachers of the law. culpability of the people" ("le'ashmat ha'am"), Leviticus 4:3, emphasizes that the onus is on n57. See Faur, supra note 5, at 20-24. the people. Judaism does not accept the view that a people is not responsible for the crimes n58. Maimonides, Mishneh Torah, Sefer of its leaders. See Maimonides, Mishneh Shofetim, Hilkhot Sanhedrin 4:15. Torah, Sefer Shoftim, Hilkhot Melakhim 9:14. The conduct and demeanor of the sovereign n59. Jerusalem Talmud, Bikkurim 3:3 (citing rest on the proper functioning of the Exodus 23:20) (translated by author). ecclesiastical and judicial authorities, not the other way around. n60. The most prominent figure of his time, Hai ben Sherira (939-1038) led the Pumbedita n46. See Babylonian Talmud, Horayot; academy from 998 to 1038 C.E. 7 Jerusalem Talmud, Horayot. Encyclopaedia Judaica 1130 (1972). n47. See 1 Kings 21:1-29. n61. Hai Gaon, Sha'are Teshuva No. 86 (citing Isaiah 3:14) (translated by author). n48. Simeon ben Shetah was the head of the Jewish Sanhedrin (High Court) during the first n62. Halakhot Pesuqot No. 195 (Yoel Hakohen century B.C.E. Miller ed.) (citing Psalms 101:6) (translated by author). n49. Babylonian Talmud, Sanhedrin 19a-b. See also Midrash Tanuma, Exodus: Ki Tissa; n63. See Faur, Texte et Societe, supra note 16, at Josephus, Jewish Antiquities 14:169 (Ralph 74-82. Marcus trans., 1961). n64. See Irving J. Sloan, Selected Documents, n50. See Mishnah Berakhot 2:2. in The Jews in America 1621-1970, at 51, 53 (1971).

15 Error! Unknown document property name. n65. See Jose Faur, Early Zionist Ideals Among n77. See Faur, supra note 5, at 19-32; Jose Sephardim in the Nineteenth Century, 25 Judaism Faur, The Fundamental Principles of Jewish 54, 54-55 (1976). Jurisprudence, 12 N.Y.U. J. Int'l L. & Pol. 229- 32 (1979) hereinafter Faur, Fundamental n66. On the legal status of the Indian nations Principles. in American law, see Perry Dane, The Maps of Sovereignty: A Mediation, 12 Cardozo L. Rev. n78. Leviticus 24:20 (translated by author). 959 (1991). n79. Babylonian Talmud, Baba Qamma 84a. n67. See Faur, supra note 65, at 54-56, 60-62. n80. See Faur, Fundamental Principles, supra n68. See Harry H. Wellington, Interpreting the note 77, at 231-32. Constitution 133 (1990) (quoting Abraham Lincoln, First Inaugural Address (Mar. 4, n81. It is highly doubtful that even the 1861)). Samaritans would have been able to survive on their own, without the Jewish people. n69. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). n82. Deuteronomy 11:13 (translated by author). n70. See Wellington, supra note 68, at 131 (quoting Edwin Meese III, Speech at Tulane n83. Maimonides, Mishneh Torah, Sefer University (Fall 1986)). Ahavah, Hilkhot Tefilah 1:1. n71. See Marbury, 5 U.S. (1 Cranch) at 174- n84. Tosefta, Berakhot 3:1. 76; see also Carlos Santiago Nino, Philosophical Reconstruction of Judicial Review, 14 Cardozo L. n85. On these two types of exegeses, see Julia Rev. 799 (1993). Kristeva, Psychoanalysis and the Polis, in The Politics of Interpretation 85 (W.J.T. Mitchell n72. Wellington overlooked this point in his ed., 1983). otherwise illuminating chapter on "Judicial Mistake," in Wellington, supra note 68, ch. 2. n86. Id. n73. See U.S. Const. amend. I. n87. On the two basic types of "connections" in rabbinic exegesis, see Faur, supra note 6, at n74. Although personally relieved when xviii-xix. Nixon resigned, this author was intellectually disappointed. Contrary to what many legal n88. Babylonian Talmud, 63a theorists argue, this author is not convinced (translated by author). For a detailed analysis that a sovereign could be tried in an American of this principle as well as of the concept of court. The very fact that a president could peshat, see Jose Faur, Basic Concepts in "pardon" someone indicates that the contrary Rabbinic Hermeneutics, in 2 Studies in Jewish may be the case. This is consistent with the (forthcoming). In short the peshat above mentioned theory whereby "violence" in rabbinic jurisprudence is analogous to stands at the basis of authority. Vico's sensus communis. n75. See Maimonides, Mishneh Torah, Sefer n89. See Faur, supra note 6, at 84-85. Shofetim, Hilkhot Mamrim 1:1-3. n90. See Babylonian Talmud, Menaot 29b n76. Id. (translated by author). (translated by author).

16 Error! Unknown document property name. n99. See Faur, supra note 6, at 123-24. n91. See supra text accompanying note 26. n100. Also known as the Rosh, Rabbi Asher n92. This point was analyzed and further ben Jehiel lived from 1250 to 1321 C.E. elaborated in Faur, Texte et Societe, supra note 16, at 60-66. n101. Asher ben Jehiel (Rosh), Teshuvot Harosh, Responsum no. 14 (translated by n93. Benjamin Cardozo drew parallels author). between the understanding of Maimonides and the Geonim of judicial derashah with n102. Jerusalem Talmud, Yoma 3:5 (translated concepts in American jurisprudence. See by author). generally Benjamin N. Cardozo, The Nature of the Judicial Process (Yale Univ. Press 1960) n103. See Wellington, supra note 68, at 31. (1921); Benjamin N. Cardozo, The Growth of the Law (Greenwood Press 1973) (1924). Cf. n104. Carleton K. Allen, Law in the Making Wellington, supra note 68, at 43-60. 506-07 (1964). n94. See 3 Oar Hageonim, Pesah im 71 & From The Cardozo Law Review, May 1993 n.3. n95. See Faur, supra note 6, at 122. New David Shasha Book for Sale n96. See Faur, supra note 5, at 25-32. Please note that The Center for Sephardic Heritage has published David Shasha’s Representing the n97. See Wellington, supra note 68, at 131. Human Family: Essays on the Book of Genesis. The book is available for $20.00 plus n98. See Babylonian Talmud, Sanhedrin 99b; $3.00 shipping to US addresses. Please e-mail Faur, supra note 6, at xxi. There are two [email protected] for more information. different versions of megalle panim. Concerning Mishnah Avot 3:14, Maimonides used the Editorial Note: All opinions expressed in this version megalle panim batorah. See 4 newsletter are those of its individual writers. Please Maimonides, Pirush ha-Mishnayot 433 (Joseph feel free to submit your own thoughts in the form of an Qafi ed., 1963). Accordingly, Maimonides essay which will be considered for publication by the explained the term to mean "one who editors. transgresses the Law in open defiance." Megalle panim is referred to in this precise While credits are given, we have not obtained consent sense of "open defiance" in Babylonian to reproduce or publish these articles, and only do so as Talmud, Erubin 69a. This is also how “fair use,” i.e. for our minimal academic purpose. Maimonides codified it in Maimonides, Mass distribution is not intended. Mishneh Torah, Sefer Hamada, Hilkhot Teshuva 3:11. This is probably the version If you wish to have an e-mail address added to our that he had in Babylonian Talmud, Sanhedrin list please contact [email protected] 99b. The more popular version, in both Mishnah Avot and Babylonian Talmud, A full listing of all the contents of past issues is Sanhedrin, is "megalle panim batorah shelo available by e-mailing David Shasha. kahalakhah" ("unveiling in the Torah directions contrary to the law") - that is, subversive homilies designed to void a particular law.

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