Kara Sears
Jewish law, or halakha, is the collective body of Jewish religious laws that govern daily life and practice. Halakha is derived from biblical commandments, Talmudic and rabbinic laws, and customs and traditions compiled in books such as the Shulchan Aruch or Mishneh Torah. The development of Jewish law over time is essential to understanding its structure and interpretation. Notably, the Jewish legal system differs from the American legal system in that older legal sources are often considered more authoritative. Jewish law is interpreted and applied by local rabbis and rabbinical courts, and lay individuals make ad-hoc decisions within their communities. While some Jews view halakha as binding, others see it as spiritual guidance. Halakha covers various aspects of life, including divorce, marital relations, and modesty.
| Characteristics | Values |
|---|---|
| Basis | Jewish law is based on biblical commandments, subsequent Talmudic and rabbinic laws, and customs and traditions compiled in various books. |
| Development | Jewish law was developed through an exacting process of metaphysical science, handed down from Sinai. |
| Sources | The Written and Oral Torah are the founding legal documents of Jewish law. Other sources include the Mishna, the halakhic midrashim, and the Tosefta. |
| Interpretation | The interpretation of Jewish law is influenced by rabbinic teachings, with the local rabbi and rabbinical courts having authority over specific communities. |
| Antiquity | In contrast to Western legal systems, the greater the antiquity of a legal source, the more authoritative it is considered in Jewish law. |
| Uniformity | Jewish law emphasizes uniformity in practices and interpretation, with God's will as the ultimate purpose and source of authority. |
| Flexibility | Jewish law allows for flexibility, with principles permitting judicial discretion and deviation. Rabbinical authorities have classified commandments in different ways, and lay individuals make ad-hoc decisions. |
| Community | The opinions of students are typically subordinate to their teachers, and community members are discouraged from following differing opinions that may cause strife. |
| Divorce | Divorce is permitted and formalized through a 'get', a document required for the divorce to be finalized. |
| Modesty | Modesty, or 'tzniut', is an important principle in Jewish law, encompassing both behavior and specific laws. |
| Marital Relations | Orthodox and conservative couples may avoid physical contact during the wife's menstruation and for seven days after, resuming relations after a ritual bath. |
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What You'll Learn
Secular law
Jewish law, or halachah, is a comprehensive set of rules, ordinances, commandments, and practices that govern Jewish life. It is derived from two major sources: Torah law and Rabbinic law. The Torah contains 613 mitzvot (laws), which form the core of Halachah. These laws cover various topics, including diet, worship, purity, and social and familial obligations.
One key difference between Jewish law and secular law is their scope and applicability. Jewish law is primarily concerned with governing the daily lives and practices of Jews, including religious rituals and ethical guidelines. Secular law, on the other hand, applies to all citizens or residents of a country, regardless of their religious affiliation. It covers a wide range of areas, including criminal law, contract law, property law, and civil rights, among others.
Additionally, the interpretation and application of Jewish law and secular law differ significantly. Jewish law is interpreted and applied by rabbinic authorities, including rabbis and halakhic scholars. These interpretations can vary among different Jewish communities and streams of Judaism, such as Orthodox, Conservative, and Reform. Secular law, in contrast, is typically interpreted and applied by a country's judicial system, including courts and judges. The interpretation of secular law may also be influenced by legal precedent and legislative enactments.
Furthermore, the processes for changing or amending laws differ between Jewish law and secular law. In Jewish law, changes may occur through rabbinic interpretation, community practices, and the development of new rulings by halakhic authorities. However, there is no single authoritative body that can create universally recognized precedents in Jewish law, as the Sanhedrin, the Supreme Court of Judaism, ceased to function in its full mode in 40 CE. In contrast, secular law typically involves a defined process for amending laws, such as through legislative action or constitutional amendment processes.
Lastly, the consequences of violating Jewish law and secular law differ. Violating Jewish law may result in religious sanctions or community repercussions, such as excommunication or repentance rituals. Secular law violations, on the other hand, can lead to legal consequences such as fines, imprisonment, or other penalties as defined by the respective legal system.
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Divorce
In Judaism, a marriage can end either by the death of one of the spouses or through a divorce document called a 'get' given by the man to his wife. The get is a handwritten document in Aramaic, witnessed and signed, and formally ends a marriage under Jewish law. The get is given by the husband into the hand of the wife or her agent, but the wife may also sue in a rabbinical court to initiate the divorce.
In Orthodox Judaism, only the husband has the power to issue a divorce. This has been a significant problem, with many liberal Jews having a religiously valid marriage but not obtaining a religiously valid divorce. A woman whose husband refuses to grant her a get is called an 'agunah' or 'agunot' (the plural), meaning 'chained' to her marriage. This has been a long-standing issue in Judaism, with some husbands even fleeing the country to avoid granting their wives a get. While Conservative Judaism has developed strategies to prevent women from becoming agunot, such as requiring spouses to follow the advice of the rabbinical court, Orthodox Judaism adheres to the traditional position that divorce is the man's prerogative.
In certain circumstances, a rabbinical court can compel a husband to divorce his wife, such as when he is physically repulsive due to a medical condition. A wife must also receive the get willingly for the divorce to be final. Without a get, a couple is still considered married under Jewish law, and a woman who remarries without one is considered to be in an adulterous marriage.
In addition, Jewish law requires divorce in some circumstances, such as when the wife commits a sexual transgression. A man who divorces his wife is required to pay her substantial sums of money as specified in the ketubah (marriage contract).
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Marriage
There are several prohibitions on marriage in Jewish law. These include marriages between close blood relatives, the ex-wives of blood relatives, a woman who has not been validly divorced from her previous husband, the daughter or granddaughter of the ex-wife, or the sister of the ex-wife during the ex-wife's lifetime. The offspring of such marriages are considered illegitimate and are subject to restrictions. Marriages are also forbidden during the first thirty days of mourning after the death of a near relative, and during certain festivals.
In Orthodox Judaism, the laws of "family purity" are considered an important part of marriage, and adherence to them is regarded as a prerequisite for marriage. This includes observance of the various details of the menstrual niddah laws. Orthodox brides and grooms attend classes on this subject prior to the wedding.
In Reform Judaism and Reconstructionist Judaism, there is more personal autonomy in the interpretation of Jewish Law, and intermarriage is not forbidden. However, many rabbis in these traditions seek agreement from the couple that any children will be raised as Jewish. In contrast, Orthodox Jews only consider a child to be Jewish if the mother is of Jewish ancestry or has undergone a proper conversion conducted by rabbinical authorities.
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The judicial process
Jewish law, or Halakha, is a system of law developed through discussion and debate in classical rabbinic literature, particularly the Mishnah and Talmud (the "Oral Torah"). Halakha is applied by various authorities, resulting in different answers to halakhic questions. There is no single judicial hierarchy or appellate review process, leading to differences in interpretation and application across communities.
Historically, the Sanhedrin served as the Supreme Court and legislature for Judaism, interpreting and administering binding law to all Jews. The Sanhedrin consisted of 71 judges, each distinguished in Torah knowledge, wisdom, humility, fear of God, indifference to monetary gain, love of truth, love of fellow man, and good reputation. They would sit in a semicircle to ensure all members could see each other and the witnesses testifying.
Today, the application of Jewish law is left to local rabbis and rabbinical courts, with only local applicability. Lay individuals can make ad-hoc decisions but lack the authority to decide certain issues definitively. As a result, Jewish law differs from other legal systems with a central authority, such as the Anglo-American system with its Supreme Court.
The Jewish judicial process includes several distinctive features:
- Defendants are considered innocent until proven guilty.
- In litigation between two parties, each selects a judge, and these two judges choose a third one.
- A judge may be disqualified if there is a concern of partiality due to favours received from one of the litigants.
- Courts encourage litigants to reach an out-of-court settlement before opening litigation.
- Litigants typically speak for themselves, without lawyers attempting to sway the judges.
- Litigants must be treated equally, regardless of their reputation or status.
According to Michael Broyde, an authority on Jewish law, a key difference between Jewish law and American law lies in their ethical foundations, obligations, and punishment. Jewish law demands active intervention and responsibility for one's neighbours, even if it involves some personal risk or detriment. In contrast, American law, grounded in a libertarian view, focuses on instructing citizens on what not to do rather than what to do, and it does not mandate helping others in distress.
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Sources of law
Jewish law, or halakha, is derived from the Written and Oral Torah. Halakha is based on biblical commandments (mitzvot), subsequent Talmudic and rabbinic laws, and the customs and traditions compiled in various books, such as the Shulchan Aruch or Mishneh Torah.
The Written Law and Oral Law are the founding legal documents of the Jewish legal system. The Oral Torah, due to its very nature, could not include every possible case, and this is where the role of qualified Torah scholars comes in. They are tasked with interpreting and deciding questions of Torah law, and their rulings are considered binding.
The Sanhedrin, which functioned as the Supreme Court and legislature for Judaism, had the power to administer binding law, including received law and its own rabbinic decrees. However, the Sanhedrin ceased to function in its full form in 40 CE, and since then, no body or authority has been generally recognised as having the authority to create universally accepted precedents.
The authoritative application of Jewish law is now left to local rabbis and rabbinical courts, with only local applicability. The two main organs of any legal system, the judicial and the legislative, are also found in Jewish law.
The Talmud, a compilation of rabbinic teachings, is a significant source of Jewish law. There are two Talmuds: the Babylonian Talmud (Talmud Bavli) and the Jerusalem Talmud (Talmud Yerushalmi). The Mishnah, the earliest compendium of Jewish law, forms the curriculum of rabbinic instruction and is part of the Oral Law.
The Shulchan Aruch, a clear and definitive statement of the law, is another important source of Jewish law. It is based on Karo's conclusions in Bet Yosef. Other authoritative codes include the Arba'ah Turim (or Tur) by Jacob ben Asher, and Maimonides' Mishneh Torah, an 11th-century compendium of Jewish law.
The halakhic midrashim are compilations of laws that correspond directly to the Written Law from the Torah. These sources, along with the self-contained Oral Laws contained in the Mishna, form the basis of the Oral Law tradition.
The absence of a central authority has resulted in a diverse approach to Jewish law, with spiritual descendants of both traditionalists and reformers interpreting it according to their principles and communities.
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