Human Law and Divine Justice
of the Halakhah
(Leiden: Brill, 2001).
If, on the other hand, weadopt a “dualistic” model, then the interpretation of the practices of Jewish law becomes far more open to secular models. Much modernscholarship on Jewish law follows this path, and the “Mishpat Ivri”movement, which seeks the incorporation of Jewish law within thelaw of the State of Israel, strongly advocates it for ideological reasons.
I shall not here attempt any full historical analysis of therelationship between the two models. I have argued that such“secular” law as we may identify with the origins of the
of Exodus 21-22 was
and that it was preciselythrough its later association with divine justice that stronger forms of institutionalisation, associated
with secular positivism,ultimately emerged.
We see this in a number of different respects: the processes of adjudication, the growth of jurisdiction, and in manycases the very force and meaning attributed to particular laws, and thestandards applied in them. Of course, this is an attempt to representthe view of the biblical writers rather than to assert historical facts. Asagainst the “dualistic” model of divine justice that dominatescontemporary scholarship — the view that there are separate spheresof human law and divine justice, the latter intervening in the former only when something goes wrong — the biblical writers, in my view,largely promote the “monistic” model, encapsulated in theDeuteronomic claim (1:17):
, that justice is allor essentially divine, even when it
administered through humanhands. It is, however, surely significant that the Hebrew Bible itself appears to suggest an historical development in this respect. Theoriginal form of adjudication applied by Moses was monistic:consultation of the oracle in all cases (Exod. 18:15,
);only on the advice of Jethro was a system of delegation established,which arguably represented an early example of the dualistic model.
We may regard the story of the oven of Okhnai (
And at greater length in his
The Halakhah. An Encyclopaedia of the Law of Judaism
(Leiden: Brill, 2000), 5 vols. See my review essay, “On Neusner’sTheology of
25 (2008), 257-92.
On the “self-executing” character of many of the norms of the
n.1, at 29-35, 389-95
See further Jackson, “Human Law and Divine Justice in the MethodologicalMaze of the Mishpatim”, in
The Boston 2004 Conference Volume
, ed. E. Dorff,
Jewish Law Association Studies
XVI (2007), 101-22.
n.1, at 422f.