Who is the Author of Halakhah?

The Jewish Law (Halakahh) is probably the older legal system working in our time. It is established on a hierarchy of different texts. The oldest and more authoritative is the Torah (the five books of Moshe), then come the Mishnah, the Talmud, the compilation as Maimonide’s Mishne Torah and Caro’s Shulchan Arukh, then the responsa of the rabbis. While the authorship of the later texts is more or less clear, the one of the Torah is highly problematic, also in the self-understanding of Jewish hermeneutics. This question is discussed in the present paper not from a philological-historical point of view, but from a semiotic one, trying to understand what devices and regimes of enunciation are enacted by the text in order to establish its semiotic-juridical effects. A special double enunciation frame is proposed as the mark of the legislative power in the text, in correlation with another textual device, a sort of divine “signature”. The further evolution of the authorship of the Jewish Law is discussed in its relation with the question of the autonomy in the interpretation of the sacred text.     

Boundary Work: Transcendence and Authoriality in Religious and Secular Law

The semiotic investigation of the divine or transcendent authoriality of religious law involves, in the context of discussions concerning the propriety or impropriety of the influence of religion in “secular” political and legal systems, preliminary boundary work to discern the meanings of “religion”, “secular”, and “belief.” Jeremy Waldron’s account of the propriety of religion in “secular” politics, mirroring but reversing John Rawls’ account of religion’s impropriety in that context, can be contrasted with neo-Calvinist (and other) conceptions of pluralism and the inevitability of fundamental “beliefs” in all political and legal thought. In the latter perspectives, religious believers are neither unique in their appeal to transcendent values, nor relegated to advancing theocracy (because pluralism is conceived as a religious value rather than religion’s opposite). A workable alternative to the conventional discourse of religious influence in politics and law is therefore evident.     

宪法解释具有创造性的原因

宪法解释具有创造性的原因有二:第一,诠释学在海德格尔和加达默尔之后实现了从方法论、认识论到本体论的转变。本体论诠释学强调读者领悟之意,认为理解在本质上是一种创造性的行为,而不仅仅是一种复制性的行为。哲学诠释学的理论被宪法解释学所借鉴,从本体论诠释学的角度来看,所有的宪法解释都具有创造性。第二,宪法文本所具有的抽象性、模糊性和不确定性,要求作为具体化宪法文本的宪法解释具有创造性。与本体论诠释学意义上的宪法解释的创造性不同,并不是所有作为具体化宪法文本的宪法解释都具有创造性,因为有一些宪法条款的规定基于社会共识的存在而相对明确,对于它们的解释更多地体现为客观性而不是创造性。     

法律解释者的主体性如何安置?

法律解释者的主体性取决于作者、文本和读者等多种制约因素的互动。作者的权威性和体制性安排确保了文本的经典化和读者的信仰面向。文本权威的建立伴随着读者对作者权威的认同。读者在信仰作者和认同文本权威的方式之下去理解、解释和应用,反过来又强化了文本权威以及对作者的信仰。法律解释者主体性的妥当安置,应吸收后现代解释学的合理成分,反对其过度的诠释;应借鉴圣经解释学"解经"和"释经"的二过程法,适当回归古典解释学。     

Le Juriste en Présence de L’herméneutique Contemporaine

Philosophical hermeneutics developed by the German philosopher Hans-Georg Gadamer and founded on interpretation as explicit form of comprehension generated a debate on contemporary hermeneutics about texts written at different periods of time from those in which they must then be applied. This debate is necessarily very instructive for the jurist when he interprets texts and creates positive law to produce a determined effect on recipients. Comprehension as participation in truth involves questioning and an interpretation devoid of prejudices. Illustration of hermeneutics in law demonstrates that interpretation related to comprehension is strictly bound to the question of application bearing in mind that application does not only consist in concretizing comprehension, it constitutes his nucleus. It follows that hermeneutics oscillates between a theoretical and practical meaning. Regarding the concept of a presumption it is perceived as an instrumental necessity and a necessary corollary of interpretation in that it anticipates on the meaning found on the possibility. It is specified in a context of legal hermeneutics that it is necessary to distinguish the interpretation of the observer from the one of the player such the judge put in the performative position.     

The Preferences of al-Kisāʾī (d. 189/805): Grammar and Meaning in a Canonical Reading of the Qur’an

The Qur’an has been transmitted as both a written text and an oral recital. This has led to the development of a reading tradition that permits numerous different vocalisations to be made upon the basic skeletal text of the established ?Uthmānī codex. Ibn al-Jazarī (d. 833/1429) chose ten early readers whom he felt were most representative of this tradition and whose readings are treated as canonical up until this day. One of these, the Kufan linguist al-Kisā?ī (d. 189/805) has been characterised in the literature as more focused on the grammar of the Qur’an than his reader peers. This article explores al-Kisā?ī’s process of ikhtiyār (preference) when deciding between various possible readings. The sample for analysis consists of Kisā?ī’s tafarrudāt, the approximately fifty cases in which his reading differs from the other nine readers. By comparing his reading with the comments of early scholars of Qur’anic linguistics, especially his near-contemporary al-Farrā? (d. 208/822), it is possible to construct a typology of the suspected principal reasons for al-Kisā?ī’s tafarrudāt. Not only are many of these based on grammatical preferences, but they demonstrate a significant degree of consistency. Furthermore, analysis of a cluster of readings with implications for the interpretation of the sharī?a (divine law and moral code) provides evidence for a subtle exegetical dimension to al-Kisā?ī’s work as a reader-grammarian.     

Religious fundamentalism,religiosity, and priming: effects on attitudes,perceptions, and mock jurors’ decisions in an insanity defense case

Jurors are asked to use their personal knowledge and experience to make verdict decisions; thus, it is no surprise that their religious beliefs might influence their decisions. During legal insanity trials, jurors might also be exposed to religious stimuli (e.g. crucifix, prayer, Bible, etc.), which could evoke (prime) religious beliefs and thus influence decisions. Two studies examined whether dimensions of religiosity and religious beliefs relate to attitudes and decisions concerning mental health defenses, testing social identity theory against Allport and Ross’s religiosity hypothesis. In Study 1 (attitudes survey) and Study 2 (mock juror decision-making paradigm), religious fundamentalist beliefs consistently predicted punitive attitudes and decisions related to mental health defenses and verdicts, and this was moderated by intrinsic religiosity, such that religious fundamentalist beliefs only predicted punitiveness for individuals low in intrinsic religiosity. Also, priming fundamentalist beliefs increased punitiveness in both verdict and sentencing decisions. Combined, these results suggest that religious beliefs play a role in jurors’ verdict decisions in an insanity case, and that priming fundamentalist beliefs increases jurors’ punitiveness. Allport and Ross’s religiosity hypothesis was supported, but social identity theory was not.     

Contesting Religious Authoriality: The Immanuel “Beis-Yaakov” School Segregation Case

This paper will focus on two textual articulations that emerged in the Immanuel “Beis-Yaakov” school segregation case. The first is a declaration of the Admor from Slonim that was published when the ultra-Orthodox fathers who refused to send their daughters to an integrated school were imprisoned. The second is a letter to the Supreme Court that was written by an Ashkenazi mother whose daughter attended the “Beis Yaakov” school. A semiotic reading of the articulations reveals several opposing characteristics. The Admor’s audience is determined by his choices of medium and rhetoric, which guarantee hegemonic reading, corresponding with the textual code of his interpretive community. The letter, on the other hand, represents an attempt to break through communal borders, and therefore its writer cannot expect hegemonic reading. Yet, she makes a considerable effort to employ signifiers denoting her ultra-Orthodox affiliation. In light of the hindrances that usually prevent ultra-Orthodox women from contesting the authority of the community, the letter presents a rare feminine voice, which is vigorous enough to attempt subverting under the authoriality of the Admor, and might have a long run affect on the quest for equality.     

Revisiting <Emphasis Type="Italic">Plato’s Pharmacy</Emphasis>

In this essay, one of Derrida’s early texts, Plato’s pharmacy, is analysed in detail, more specifically in relation to its reflections on writing and its relation to law. This analysis takes place with reference to a number of Derrida’s other texts, in particular those on Freud. It is especially Freud’s texts on dream interpretation and on the dream-work which are of assistance in understanding the background to Derrida’s analysis of writing in Plato’s pharmacy. The essay shows the close relation between Derrida’s analysis of Plato’s texts and Freud’s study of the dream-work. The forces at work in dreams, it appears, are at play in all texts, which in turn explains Derrida’s contentions in relation to the pharmakon as providing the condition of possibility of Plato’s texts. The essay furthermore points to the continuity between this ‘early’ text of Derrida and his ‘later’, seemingly more politico-legal texts of the 1990s. A close reading of Plato’s pharmacy, with its investigation via ‘writing’ of the foundations of metaphysics, and thus also of the Western concept of law, is obligatory should one wish to comprehend how Derrida attempts to exceed the restricted economy of metaphysics through his analysis of concepts such as justice and hospitality.     

Relative Width and Height of Handwritten Letter

This is an exploratory study that analyzes the width and the height of letters in two texts written by each of the 21 writers analyzed. After detrending the linear, text, and allograph trends, we proceeded to comparing the sizes obtained in different texts. The different detrended series were compared by means of correlation and t‐test. According to the results regarding the width of letters, the texts of 19 of 21 writers correlated strongly, whereas the texts of two writers did not correlate with the limits of the threshold. With regard to the height of letters, texts written by between 18 and 21 writers of 21 writers correlated strongly, whereas texts that did not correlate were within the threshold value. Regarding both the width and the height of letters, of 21 writers, texts written by between 19 and 21 individuals were found to correlate strongly.     

论诠释学意义上的原旨主义——反思惠廷顿《宪法解释》中的认识论困境

原旨主义强调宪法的原初意图对宪法解释来说具有优先和主导的地位。原旨主义首先是一种解释理论,它的目的就是使解释与制宪者的原初意图相一致,这反映了一种真理符合论意义上的方法论的哲学解释学;于是在历史诠释学理论的参照下,原旨主义就发生了认识论的危机,它的理论诉求在认识上也是不可能的。宪法解释更多的是作为读者的法官在进行意义的重新解释与建构,法官受当下问题意识的指引而在原有的文义中置入政治道德的考量,以完成解释传统与当下意义的视域融合。     

‘Burqa Avenger’: Law and Religious Practices in Secular Space

The current debate over the hijab is often understood through the lens of a ‘clash of civilizations’ between a tolerant ‘secular’ ‘West’ and a chauvinist ‘religious’ ‘East’. The article argues that this polarization is the result of a specific secular semiotic understanding of religion and religious practices which is nowadays embedded in western law. In my analysis, secular’s normative assumptions, played around the control of women’s bodies and the definition of religious symbols in the public sphere, work as a marker of ‘citizenship’ and ‘racialized religious belonging’. Through women’s bodies, western/secular law creates a link between gender, religion, ethnicity and belonging which forms a specific law and religious subject. Thus, secularism emerges not as the separation between private and public, state and religion, but as the reconfiguration of religious practices and sensitivities in the public secular space through the control of the visible.     

马克思主义哲学与马克思哲学

用诠释学的观点解读马克思的文本 ,是文本和解读者之间的“主体间性”的活动。马克思文本的“原意”是一个不可把握的概念 ,也许有但不可知。马克思主义哲学和马克思哲学在内容上有区分 ,但在意义上完全没有必要。“走进马克思”仅是对不看马克思文本而妄谈马克思的人的规劝。马克思主义哲学本身就是一种意识形态 ,用意识形态性来指责马克思主义哲学是对意识形态的偏见 ;但马克思主义哲学也确实在某种程度上被误解为政治理论 ,剥去马克思主义哲学的政治外衣是发展马克思主义哲学的必要。     

Predestination and Hierarchy: Vallabh��c��rya��s Discourse on the Distinctions Between Blessed, Rule-Bound, Worldly, and Wayward Souls (the Pu??iprav��hamary��d��bheda)

The Pu??iprav??hamary??d??bheda (PPM) by Vallabh??c??rya (1479?C1531?) is a brief work (25 verses) written in Sanskrit in about the year 1500, which is accompanied by four Sanskrit commentaries and one Hindi (Brajbh????) commentary. The most important and authoritative commentary is by Puru?ottama, written about two centuries after the original text. The article contains a translation of the PPM with long extracts from the commentaries, particularly the one composed by Puru?ottama. After an introduction placing the PPM??s doctrine of the hierarchy of embodied souls (j??vas) and their eligibility to obtain states of devotion (bhakti) in a wider context of Vai??ava sectarian and philosophical schools, the text is presented along with the translation and notes to the text (including extracts from the commentaries). The article concludes with reflections on the PPM??s doctrine of predestination, comparing it with those of other Indian religious sects and within the wider context of predestination in Western religions, where these discussions have been ongoing for more than 1500 years. An extensive bibliography is included at the end.     

Text and Time: Ten Propositions on Early Rabbinic Hermeneutics

In the first part of the paper, I present ten propositions on the natureof early rabbinic hermeneutics. These propositions focus on the factthat the rabbis treat the meaning of a text from the past as unfoldingin the present. Specifically, rabbinic hermeneutics ties biblicalmeaning to human action, the horizon of which is the present and theprojected future. The fixed verbal structures of the biblical text arecontextualised in that action-oriented rabbinic present, somewhat akinto the ``fulfilment' in a present which give prophecy or proverb theirfull meaning. Also, the institution of a weekly reading of Scripturemust have created random hermeneutic contextualisations of the biblicaltext through the reader's present. The rabbinic homily, however, doesnot contextualise the biblical text through a rabbinic present butthrough a biblical past, albeit an exemplary one. This amounts to anarticulation of the rabbinic present through the language of Scripture.The biblical text thus was on the one hand the unquestionable languagethrough which the salient features of the present were constituted (andtheir perception limited); and on the other hand, it was the target ofan objectification which problematised linguistic meaning. In the secondpart of the paper, I attempt to identify some of the modern conceptswhich underpin the ten propositions, concentrating largely ontwentieth-century philosophy.     

FORGIVENESS AND FUNDAMENTALISM: RECONSIDERING THE RELATIONSHIP BETWEEN CORRECTIONAL ATTITUDES AND RELIGION*

Although research typically has failed to establish a relationship between religious affiliation and correctional attitudes, recent assessments have revealed that fundamentalist Christians tend to be more punitive than are nonfundamentalists. These studies have advanced our understanding considerably, but their conceptualization of religion and correctional attitudes has been limited. Using a statewide survey, the present study demonstrates that compassionate as well as fundamentalist aspects of religious beliefs are related to public correctional preferences. Further, our results reveal that religion influences support for rehabilitation as well as punitiveness. These findings suggest the need for scholars to think more broadly about the role of religion in criminology.     

试论文学意义的多层次存在

文学意义问题在西方现代文论中占有非常重要的地位。本文分析了作者意图、作品意图和读者意图等文本意义存在的三个层面,阐述了这三个层面之间的关系,指出文学意义的实现依赖于作者、作品和读者之间的综合作用,对任何一方的忽略或过分强调,都不可能对文学意义有完整的理解。     

Ritual Texts and Literary Texts in Abhinavagupta’s Aesthetics: Notes on the Beginning of the ‘Critical Reconstruction’

In a recent paper in this Journal Hugo David discussed the possible sources for the comparison that Abhinavagupta draws between ritual and literary discourse at the beginning of his “critical reconstruction” of the theory of rasa in the sixth chapter of his New Dramatic Art. The question of Abhinavagupta’s sources raises more general questions about Abhinavagupta’s use of the concepts and analytical procedures of Mīmā?sā in his literary-theoretical works. What, if anything, does Mīmā?sā really have to do with the analysis of literary texts? How, if at all, can we construct parallels between ritual and literary texts such that the hermeneutics of one can illuminate the hermeneutics of the other? And more specifically, what are the examples that might convince us that there are such parallels? With these questions I attempt, modestly, to reach a somewhat better understanding of the beginning of Abhinavagupta’s “critical reconstruction,” which has already received a disproportionate amount of scholarly attention. I also hope, however, that this passage might serve as an example for how to think of the “borrowing” of concepts typically associated with Mīmā?sā into the realm of literary theory.