From the Academy: Law

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Suzanne Last Stone serves as University Professor of Jewish Law and Contemporary Civilization at the Cardozo School of Law at Yeshiva University, where she directs the Center for Jewish Law and Contemporary Civilization. As a visiting professor, she has taught at Harvard, Columbia, Penn, Princeton, Hebrew University, and Tel Aviv. She co-edits Diné Israel, a bilingual, peer-reviewed journal of Jewish law published with the Tel Aviv Law School. Her influential articles include “In Pursuit of the Countertext: The Turn to the Jewish Legal Model in Contemporary American Legal Theory,” published in the Harvard Law Review in 1993, and “The Jewish Tradition and Civil Society” published in Alternative Conceptions of Civil Society (Princeton University Press, 2002). As a pioneering teacher and scholar, she demonstrates the crucial relationship between Jewish and American legal thinking.

Suzanne Last StoneHow would you define Jewish law?

Jewish law is the term used in the American legal academy for the study of the normative texts of Judaism (the halakha) from the perspective of comparative law and legal theory.

The field engages the entire rabbinic legal corpus and is a pure academic discipline. The theoretical and interdisciplinary focus of the American legal academy is having a major impact on the study of Jewish law, expanding its range from doctrinal to jurisprudential studies and stretching its boundaries. This approach views law as a cultural activity to be analyzed in light of philosophical, religious, emotional, and literary dimensions that undergird it. So, scholars in the field of Jewish law often deal broadly with Jewish thought, asking how legal texts both illuminate and reflect larger worldviews.

Still, there are scholars outside the legal academy who question whether there is such a thing as “Jewish law,” which can be studied. The dispute centers on whether halakha, especially in its formative period, counts as “law,” let alone a “system.” Rabbinic texts do not easily fit the popular notion that the word “law” should be reserved for rules imposed by officials and backed by sanctions. Fortunately, this definition of law is not the only one possible and, in fact, the fascination with Jewish law in the American legal academy arises precisely because it departs from the model of official state law.

What drew you to do this field?

I did my undergraduate and graduate studies in Judaism in late antiquity before jumping ship to law school. I envisioned for myself a pleasant but conventional legal academic career as a specialist in the constitutional relations between state and federal courts. But when it came time to set pen to paper, I rediscovered my passion for early rabbinic texts. The reality of needing to secure tenure—and therefore appeal to an American legal audience—propelled me to create a new field of comparative Jewish and American legal theory.

In what ways is Jewish law relevant to contemporary American legal scholarship? Is it more relevant than, say, Chinese or Muslim legal traditions?

American legal scholarship, like American law, used to be notoriously insular, but globalization and multiculturalism have made it far more receptive to other legal ideas. In this context, Jewish law is one of many legal systems that may offer enlightenment.

Nevertheless, it is fair to say that Jewish law occupies a special place in American legal scholarship. Historically, it is the intellectual source of many Western legal ideas. In fact, the Puritans consciously modeled American legal culture around the Hebrew Bible and the idea of a covenantal society. And there are structural affinities between the two systems that facilitate fruitful comparison: both are primarily common law systems and both are organized around an authoritative text with an ongoing history of interpretation that has inspired great allegiance over time.

The most prominent example of this turn to Jewish law in American legal theory is the late Robert Cover’s celebrated essay in the Harvard Law Review, “Nomos and Narrative.” The essay described two ideal-types of legal systems: the imperial, in which law is a system of social order, and the paideic, in which it is a system of meaning. Cover’s paideic model, as I analyzed in a later article, was fashioned around his understanding of halakha. His creative attempt to reconstruct American law along the lines of the paideic model vividly demonstrated the relevance of Jewish law for generating new ideas in American legal thought.

To what degree can the study of Jewish law complicate or expand our sense of modern Jewish history and contemporary Jewish culture?

Jewish law was fashioned and took its characteristic shape against the backdrop of cohesive, semi-autonomous Jewish communities living under foreign rule. As an ongoing legal tradition, however, it continues to address itself to the dramatically new political formations in which Jews are set here and in Israel. Modern democratic statehood and Jewish sovereignty raise new questions about the coordination of religion and state, about Jewish norms of war, and the capacity of the Jewish legal tradition to address a mixed civil society, to name but a few.

Halakhic responses to these new situations are not premodern relics; they are part of contemporary Jewish culture, both reflecting it and shaping it. For example, contemporary jurists addressing the new reality of war have interpreted the tradition’s sparse sources on the subject as a signal that war is forbidden, or as an invitation to create a new Jewish law of war, or as a license to incorporate international norms of war. These varying responses, each citing precedents, reflect different contemporary ideologies and also reveal longstanding tensions within the legal tradition itself. So the study of Jewish law is not only a fascinating window onto contemporary Jewish culture but also an opportunity to see the continuities as well as the ruptures between premodern and modern Jewish history.

Are there particular challenges facing students and scholars of Jewish law?

The institutional challenges are formidable. There are only a handful of people in the field. And although American law schools are receptive to the subject matter, they are not sufficiently invested to dedicate a professorship to the subject. With rare exception, those who teach Jewish law in American law schools are either short-term visitors or professors whose fields of expertise lie elsewhere. Those wishing to pursue a doctorate related to Jewish law must do so outside the law school setting.

To fill this gap, we have a part-time Graduate Program in Jewish Law and Legal Theory at Cardozo open to students pursuing doctorates elsewhere in the various fields of Jewish Studies. We now have close to twenty students who are becoming a unique interdisciplinary community. From an intellectual, as distinct from an institutional perspective, then, this is a thrilling time for the field of Jewish law.

If someone wanted to know more about where the study of Jewish law is headed, what would you recommend he or she read?

There are very few books in English because of the infancy of the field. And American law professors have a tradition of writing articles rather than books. Yair Lorberbaum’s In the Image of God will shortly be out in English, however, and it exemplifies the interdisciplinary direction in which the study of Jewish law is headed.

Posted on September 8, 2009

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