Beyond the Janus Face of Zionist Legalism: The Theo‐Political Conditions of the Jewish Law Project*

Abstract. What are the assumptions that underline the Jewish Law Project? To what extent is this project relates to Zionism as a political program and national vision? Does the secular version of this project and the religious one have anything in common? I argue that aside from the ideological lines that guide the Jewish Law Project, within it rests a reductionist and utopianist stance vis‐à‐vis halakhah which are considered to be obvious. I shall attempt to claim that reductionism and utopianism as tacit assumptions, which are neither explicit nor declared by the carriers of the Jewish Law Project, are definitely not trivial. Then, by detrivializing these two assumptions I will suggest viewing the halakhic‐legal relations defined by the Jewish Law Project through these same parameters—the reductionism of the halakhah and its utopian approach.     

The doctrine of informed consent: a tale of two cultures and two legal traditions

In this article, the author compares and contrasts the notion of informed consent in medical decision making in the Western legal system with the traditional Jewish biblical legal system. Walter critically examines the philosophical underpinnings of disease and medical healing in both legal systems, and describes the practical consequences that emanate from the different ideologies in terms of the individual's rights of choice of treatment. She explains that the Western system is predicated on notions of individual autonomy and self determination. Patients therefore have the autonomous ability to select and direct their own medical therapy. By contrast, the traditional biblical system of law is based on the concept that the body does not belong to the individual. Instead, the body is given to man by God as a trust to respect and preserve. Therefore, the individual patients "has no absolute right to control his body and ... he has no real decision making power as to medical treatment choices." In the Jewish biblical tradition, consent is not necessary for obviously beneficial or obviously non-beneficial procedures; consent is only necessary in decisions with uncertain outcomes or when making choices between equal options. Patients are encouraged to seek the counsel of religious authorities and to conform to rabbinical interpretations of the traditional Jewish law.     

什么是法学研究——民法学习的一点体会

研究生学习阶段的学习目标最为重要的是什么呢 ?我认为就是“研究” ,就是要把法律的概念、原则甚至体系拿来研讨 ,区别它的科学与谬误、正义与非正义 ,因此 ,这个阶段的学习不是当收音机 ,不只是接收他人的观点 ,而是要自主分析、积极讨论 ,提出自己的观点 ,其核心就是“研究”。     

Alf Ross on the Nature of Law

In his work, On Law and Justice, Alf Ross sought to explain law in scientific/empirical terms, in terms that would require no recourse to what he called “metaphysics” or “idealism.” The result is a sort of translation of legal rules and official actions into propositions of behavior, predictions of behavior, and shared ideology. The present work raises questions about the tensions within Ross's work(s), and discusses the places where Ross's analysis seems to fall short of its ambitions. In the course of the discussion, the article considers issues relating to legal mistake, explanations of judicial behavior, and different types of normativity.     

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.     

The Ambiguity of Force

The author argues that Schauer's understanding of appropriate empiricism and relatedly what he wishes to take from the positivist classics might have an even more reductive impact on legal philosophical inquiry than the legal positivist quest (which Schauer rejects) to confine such inquiry to a search for necessary and sufficient conditions. The argument is based on the example of the legal order of the Arab territories occupied by Israel. In the author's view, this legal order is very close to what Schauer regards as the normal case of a properly functioning legal order and in its closeness one can discern the flaws in his argument.     

Designing a Legal and Regulatory Framework for Better Public Financial Management: Some Issues for Consideration from Trinidad and Tobago

Ill fitting legal shoes pinch citizen’s foot.

Chinese Proverb

Never ask of money spent where the spender thinks it went. Nobody was ever meant to remember or invent what he did with every cent.

Robert Frost

There is a sense in which discussions of public law and debates about budgeting have a good deal in common. Both budgets and law are essential to the task of public administration. Without legal authority and budgetary resources, agencies cannot function. Indeed, without legal authority they do not even exist, and without financial resources they exist in name only.

Cooper, Phillip J (1999) ‘Courts and Fiscal Decision Making’, in: Handbook of Government Budgeting (San Francisco: Jossey‐Bass) p 502.     

Is there only One Correct Legal Answer to a Question of Fact? Three Talmudic Answers to a Jurisprudential Dilemma

This article focuses on questions of pure fact‐of‐the‐matter and asks whether two omniscient judges (or jurists or scholars) may disagree over the legal answer to a straightforward question of a matter of fact. There are approaches to legal theory among some western and Jewish philosophers of law whereby at least superficially it is possible that two or more contradictory legal statements regarding a given reality can be equally correct. The article provides a critical analysis of three different models derived from the Jewish legal literature, and reviews the contributions of Jewish sources to the understanding of the phenomenon of disagreements concerning matters of fact.     

Hegel and Hobbes on Institutions and Collective Actions

Abstract. Georg Wilhelm Friedrich Hegel is usually, and rightly, considered the foremost representative of the organistic conception of society. It is only natural to think that his view has nothing in common with the kind of individualistic outlook that dominates our legal and political thinking, and that I myself have tried to defend. I try to show why certain insights of Hegel are potentially important even for individualistic legal and political theories. First, I explicate some of the problems he struggled with, and compare his views with those of Thomas Hobbes. Next, I try to link his views to the modern theories of institutions and of collective action. The antidemocratic ideology expressed in the main works of Hobbes and Hegel is clearly outmoded. Nevertheless, in their criticism of popular sovereignty, they posed some important questions. First, how do collectives like the People exist? Second, what do we mean by saying that collectives perform actions? It seems that, in order to perform an action, an entity ought to possess will. But what does it mean that a collective has a will?     

From Public Sociology to Public Philosophy: Lessons for Law and Society

The late Philip Selznick's final book, A Humanist Science, examines the role of values and ideals in the social sciences, including the study of law and society. Throughout his academic career, Selznick was committed to what he called “legal naturalism,” a sociological version of the natural-law perspective, while his critics continue to adhere to various forms of positivism. But the age-old opposition between natural law and legal positivism today may be giving way to the quest for public sociology—a sociology that promotes public reflection on significant social issues and thus functions as a moral and political force. A Humanist Science ends with a strong plea for public philosophy. Public philosophy overlaps with public sociology but is a much stronger concept. Selznick's message of public philosophy may be another of his enduring contributions to the field of law and society.     

希伯来法中商业交易规范考辨

希伯来法是西方法律文明和英美法的源头之一,具有很高的研究价值.希伯来的商业交易规范是以《圣经》为法律渊源,源自习惯法则和宗教信仰,由此倡导契约守信观念和诚实无欺的贸易规则.从摩西时期的《圣经·旧约》到犹太教法典编纂时期的《塔木德》,商业交易规范形成与发展折射出希伯来商法的演变历程,也从一个侧面反映了西方商法成长的最初概貌,因此对其做一细致的考证,在外国法律史研究上颇有补正的功效.     

Reflections on Henry Ford's War on Jews

Woeste, Victoria Saker. 2012 . Henry Ford's War on Jews and the Legal Battle Against Hate Speech . Stanford, CA: Stanford University Press. This essay provides an introduction to and overview of four essays that emerged from an “Author Meets Readers” session at the 2013 Annual Meeting of the Law and Society Association, considering Victoria Saker Woeste's book, Henry Ford's War on Jews and the Legal Battle Against Hate Speech. Three essays are authored by panelists (Aviam Soifer, Carroll Seron, and Clyde Spillenger) and a final essay is provided by Woeste. The essays explore larger themes suggested by the book, including what the involvement of Louis Marshall reveals about the rise and role of spokespeople purporting to represent Jewish interests; whether the arc of Aaron Sapiro's education and career challenges our understandings of the development of the legal profession in the late nineteenth and early twentieth centuries; and how the law of group libel intersected with government attempts to regulate hate speech during the twentieth century. Woeste ends the symposium with a reconsideration of Henry Ford's War and how it fits into the new civil rights history.     

The Use of Unwritten Legal Principles by Courts*

Abstract. I argue that one can distinguish two types of unwritten legal principles as applied by courts (in Europe). On the one hand, what are called “structural principles,” which are induced, or at least pretended to be induced, from the written law. On the other hand, what are called “ideological principles,” which are not induced from the actual legal system, but refer to current dominant beliefs in society as to morals, politics or other non legal ideologies. It is argued that the distinction between structural legal principles and ideological legal principles could be an important element for the elaboration of a legal principle theory, as both these types of principles meet a different need and play a different role in legal practice. Structural legal principles primarily meet the need for a new ius commune, in order to achieve the coherence and the completeness of the legal system, whereas ideological legal principles, just like the human rights, meet a revived demand for an ethical framework for the law.     

His master’s voice: H.L.A. Hart and Lacanian discourse theory

H.L.A. Hart’s jurisprudence seems antithetical to Jacques Lacan’s psychoanalysis. Professor Schroeder argues that, in fact, Hart’s concept of law has surprising similarities to Lacan’s ‘discourse of the Master’. Both reject a command theory of law: subjects do not obey law out of fear. Moreover, both insist that the authority of law is completely independent from its content. Anyone seeking to develop a psychoanalytically sophisticated critical legal theory should reconsider Hart. As insightful as his concept of the symbolic is, Lacan has no expertise in legal systems and does not discuss positive law per se. Although he posited a theory of ethics in his Seventh Seminar and the seeds of a jurisprudence are implicit within his theory, he offers no account of legal right, justice or what Hart misleadingly calls ‘morality’. A Lacanian jurisprudence must, therefore, be supplemented by other sources. Moreover, legal positivists should not dismiss psychoanalysis. As insightful as Hart’s jurisprudence is, his theories of legal subjectivity and linguistics are simplistic and his concept of law too narrow. He describes only one aspect of legal experience: obedience to law. He ignores what most legal actors do: Hart’s concept of law excludes the practice of law. Although Lacan’s ‘master’s discourse’ surprisingly parallels Hart’s jurisprudence, Lacan does not restrict the symbolic to the master’s discourse. It requires three other ‘discourses’. Lacan, therefore, supplements Hart. Specifically, Lacan’s fourth discourse describes the excluded practice of law and provides the mechanism by which ‘morality’ can critique law.

‘I Would Prefer Not To’: Giorgio Agamben, Bartleby and the Potentiality of the Law

In Homo Sacer, Giorgio Agamben suggests that Herman’s Melville’s ‘Bartleby the Scrivener’ offers the ‘strongest objection against the principle of sovereignty’. Bartleby, a legal scribe who does not write, is best known for the formula with which he responds to all his employer’s requests, ‘I would prefer not to.’ This paper examines this formula, asking what it would mean to ‘prefer not to’ when the law is in question. By reading Melville’s story alongside Aristotle’s theory of potentiality and Walter Benjamin’s theses on history, it suggests that Bartleby’s interest, for Agamben, lies in his challenge to dominant conceptions of the relation between potentiality and actuality, which, he believes, are rendered indistinct in sovereignty. By reflecting critically on Agamben’s depiction of Bartleby as a ‘new Messiah’, this paper examines Agamben’s understanding of what it would mean to fulfil the law, and what form of political task this would entail.     

NR Madhava Menon: The guiding light for global clinical legal education

The late NR Madhava Menon, known widely as ‘the father of modern legal education in India’, was also a leading voice for global legal education reform by championing ‘socially relevant legal education’ through clinical legal education throughout the world. This article concentrates on his seminal role in the founding of the Global Alliance for Justice Education (GAJE) and the crafting of its mission statement. Drawing on a number of key moments in Dr Menon’s lifelong dedication to the twin causes of legal education and social justice, it highlights how he brought an international perspective to his critical work on legal education reform in India by enlisting international collaborators, how he motivated international colleagues to bring similar reforms to their countries, and how he mentored new generations of legal educators in what has become a true global clinical movement. The article focuses specifically on how the guiding principles of GAJE’s inaugural conference, which Dr Menon co-chaired in 1999, reflect his vision of global clinical legal education that continues to guide GAJE and the global clinical movement today.

     

Judging a Judge: A Reappraisal of Lord Mansfield and Somerset’s Case

This article presents an occasion on which moral judgement can, and should, take place. When the chief justice of the court of king’s bench – William Murray, first earl of Mansfield – was presented with the case of Somerset v Stewart in 1772, he was presented with choices that unveiled aspects of his character. By first establishing the ambiguity of the legal context and the multifarious political pressures that preceded Somerset’s case, this article identifies the extent of Lord Mansfield’s ‘room for manoeuvre’ with respect to three elements of his conduct: the delay and reluctance in making a decision, the choices regarding the substantive decision and the manner of expressing that decision. To what extent did Mansfield have freedom of action, and how did he exercise it? Are those free actions worthy of praise or condemnation? Through an essential questioning of previous historians’ assumptions and omissions, this article sharpens the strokes through which a complex portrait of Mansfield may be rendered.     

A. D. Woozley and the Concept of Right Answers in Law*

Abstract. In the debates about legal determinacy, an important but often neglected issue is what is meant in the legal context by saying that a question has a right answer. By way of a critique of A. D. Woozley's discussion of “right answers,” I try to show how this issue is connected with issues of legal truth, legal mistake, and precedent.     

Hijacking Law

This essay considers the legal strategies of comparative communities in South Asian, Middle Eastern, and US history. What does it mean for a particular group to “hijack” a body of law, taking everyone on board to an unwanted destination? The piece compares the legal strategies of the Parsi community in colonial and postcolonial India to those of the German Jewish yekke population in mandate Palestine and early independent Israel, the women's movement in India in recent decades, and Protestants in contemporary America before the 2015 Obergefell decision legalizing same‐sex marriage. There are multiple ways of trying to take control of a body of law, and for multiple reasons. A group may capture a body of personal law to perpetuate its own values within the group. It may try to control a territorial legal system to impose its values on the entire population. It may work across bodies of personal law to obtain as uniform a result as possible—as if the system were a unified field, not a segmented one. Or its group members may make available their legal expertise to shore up a newly independent state's legal system. The essay suggests that taking control of a body of law does not necessarily mean hijacking it.     

Law and Morality: A Critical Relation*

Abstract. The article deals with the difference between some forms of legal positivism. It is argued that, even in continental legal systems which are typically “rule bound,” there is some space left for principles in the legal system. The author tries to explain how this space can be filled and what methods should be used by a judge to do so.