THE FUNDAMENTAL PRINCIPLES OF
               JEWISH JURISPRUDENCE*
 
                          Jos- FAUR**
 
 
      In antiquity, only three peoples developed a juridical system:
 the Romans, the Persians and the Jews. There was no meaningful
 contact between the Persians and Romans. The Jews had to live
 under the dominion of both these peoples and therefore had to
 come to grips with their juridical systems. Since the Jews did not
 possess an independent police force charged with execution of the
 decisions of the judiciary, the validity of their legal system ulti-
 mately was a matter of legal competency.
      In the Middle Ages Jewish jurists came in contact with Islamic
 jurisprudence and further developed their own legal system in
 light of the new challenges. The Jewish legal system continues to
 develop today, and in some Muslim countries (e.g., Turkey, Syria,
 Morocco), the authority of the Rabbinic Court over the Jewish
 community is recognized by the government in such matters as
 family law, inheritance and arbitration. Jewish jurisprudence is
 the oldest legal system still in force. It reached vast geographical
 areas, from Goa, Cochin and Hong Kong in the East to the
 Americas and the Antilles in the West.
 
                    I. LAW AND SOVEREIGNTY
      In order to understand the Jewish legal system it is best to be-
 gin by examining the concepts of law and sovereignty. In the view
 of Austin, law may be conceived as the effect of authority: law is a
 command expressing the will of the political superior. Since the
 ultimate ground of law is sovereignty, magistrates and govern-
 ment bodies issuing laws and legal decisions derive their authority
 from the sovereign. Sovereignty cannot be limited; the sovereign
 
     * To Mickey Kairey: In token of friendship.
     ** Professor of Rabbinics, Jewish Theological Seminary. Ph.D. (Semitic Philol-
 ogy), University of Barcelona, 1963; M.A. (Philosophy), University of Barcelona.
 1961.
                               225
 
 
 Imaged with the Permission of N.Y.U. Journal of International Law and Politics
 
 
 
 
 INTERNATIONAL LAW AND POLITICS
 
 
 is not subject to law. Thus, sovereignty is the basis of law, not its
 effect.1
      It should be emphasized that sovereignty in Jewish thought is
 not the basis of law but rather its effect.2 This law, however, is not
 to be identified with "natural law," which is universal and requires
 no promulgation. In Judaism the Tora (Law) is binding only on
 the Jewish people, not on mankind; it became authoritative only
 after the theophany at Sinai. The Noachide laws, which apply to
 non-Jews,3 similarly do not constitute a "natural law." In this re-
 spect it is important to note that the Noachide laws discussed in
 the Talmud are not universally applicable. Bahye ben Asher of
 Toledo4 observed that these laws are binding only in the Holy
 Land.5 They governed the aliens residing in Israel6 and thus con-
 stitute a Jewish ius gentium, or law for the foreigners. These laws
 most likely originated in the Maccabean Period, during which
 large numbers- of aliens lived within boundaries of the Jewish
 state.7
 
     1. H. Jolowicz, Lectures on Jurisprudence 15-27 (1963).
     2. The Maccabean uprising (167-164 B.C.E.) [regarding year designations,
 see note 15 infra] illustrates this point, for not only the political institutions but also
 the Temple clergy and Sanhedrin (the Supreme Court of Justice) upheld the poli-
 cies of the Selucid government. E. Bickerman, From Ezra to the Last of the Macca-
 bees 99-101, 106-11 (1962). The fact that the people revolted against all these
 forms of authority in the name of the "Law" clearly shows that sovereignty is not
 the source of, but rather is subject to, the law. In this connection, a passage from
 the Palestinian Talmud contrasts the view of Gentile kings as above the laws which
 they impose with the Jewish view of God as considering Himself bound to the law.
 Palestinian Talmud, Rosh Ha-Shana I, 3, 57B. See also S. Liberman, How Much Greek
 in Jewish Palestine?, in Biblical and Other Studies 128-29 (1963).
     3. See Talmud, Sanhedrin 56a-59a; M. Maimonides, Mishne Tora, Melakhim
 ix, 1.
     4. D. 1340 C.E.
     5. Bahye ben Asher, 3 Commentary on the Pentateuch (in Hebrew) 378, 452
 (1968);J. Faur, Studies in the Mishne Tora 150-51 n.42 (1978) [in Hebrew] [herein-
 after "Faur"].
     6. M. Maimonides, Mishne Tora, Bi'ot 'Asurot xiv. 7; Faur, supra note 5, at
 150-51 n.42.
     7. Finkelstein, Some Examples of the Maccabean Halaka, 49 J. of Biblical Litera-
 ture 21-25 (1930). The Bible even recognizes the legitimacy of star worship by
 other peoples, see Deuteronomy 4:19, a point made explicit in The Septuagint and
 Dead Sea Scrolls. P. Skehan, A Fragment of the "Song of Moses" (Deut. 32) from
 Qumran, 136 Bull. Am. Schs. Oriental Research 12 (1954). The blessing pre-
 scribed by the Rabbis upon witnessing a broken idol, "Blessed Art Thou ... who
 has removed idolatry from our land," Mishna, Berakhot ix, 1, is evidence that even
 the prohibition on idolatry was not binding over the gentiles outside the Holy
 Land. Further evidence may be derived from the legend that when God offered
 
 
 Imaged with the Permission of N.Y.U. Journal of International Law and Politics
 
 
 [Vol. 12: 225
 
 
 
 JEWISH JURISPRUDENCE
 
 
      In Judaism, therefore, the basis of the Law is the Berit (Cove-
 nant) established by God and the people of Israel at the foot of
 Mount Sinai and constituting a bilateral pact which determined
 the rules and stipulations governing God and Israel. These re-
 sulting rules are the misvot (commandments), or laws, of the Jew-
 ish people. The effect of these laws is the sovereignty of the Jew-
 ish people; it is guaranteed by the Bei-it between the people and
 God, a covenant that neither of the two parties can abrogate.'
      The law also defines the powers and responsibilities of the
 political, ecclesiastical and judicial authorities. The power of these
 authorities derives from recognition of the law. Thus, when the
 authority fails to comply with the law it loses all legitimacy,' since
 in Judaism the law is autonomous from political officers, ecclesias-
 tical authorities and judicial magistrates. The Scripture, however,
 recognizes the possibility of error on the part of the Supreme
 Court,10 and when this occurs there is no obligation to accept the
 decisions of the Court." The Palestinian Talmud interprets the
 verse "do not depart from the word that they [the Supreme
 Court] shall tell you neither to the right nor to the left"-12 to mean:
 "Only when they tell you that the right is the right and the left is
 the left, then you must obey their dictates. However, when they
 say that the right is the left and the left is the right, do not listen
 to them."13 The same applies to the other two authorities, the Nai"
 (Ruler, Monarch), and Kohen Masliual (High Priest). Both are
 subject to error in judgment, upon discovery of which an expia-
 tory offering is brought in acknowledgement. This concept of "er-
 ror in judgment" presupposes an autonomous law transcending
 the boundaries of their 'authorities. When the biblical prophet
 charged the king, the priest and the judge in the name of the law,
 he was in fact postulating the principle that political, ecclesiastical
 
 his Law to other peoples, they asked for some examples of the Law. whereupon
 God described the prohibition of murder and robbery. They consequently refused
 to accept the Law. Since these prohibitions were already contained in the Noachide
 laws, it is clear that the gentiles were not thought to be bound by them; otherwise.
 both the proposal and its refusal would have been meaningless. The legend is re-
 counted in Sifre 396 (L. Finkelstein ed. 1969).
     8. Faur, Understanding the Covenant, 9 Tradition 33 (1967).
     9. See M. Maimonides, Mishne Tora, Melakhim iv, 9 and Sanhedrin iv. 15. The
 point is further elaborated in Faur, supra note 5, at 19-25.
     10. See Leviticus 4:13, 15:22.
     11. Talmud, Horayot 3a; Faur, supra note 5, at 21-22.
     12. Deuteronomy 17:11.
     13. Palestinian Talmud, Horayot 45a.
 
 
 Imaged with the Permission of N.Y.U. Journal of International Law and Politics
 
 
 1979]
 
 
 
 
 INTERNATIONAL LAW AND POLITICS
 
 
 and judicial authorities are subject to the law.
     The law is "sacred," which means that it cannot be abrogated
 by any authority, human or divine. According to Rabbinic juris-
 prudence, even God Himself cannot alter the covenant or
 reinterpret one of its laws. In the words of the Rabbis, "The Tora
 is not any longer in Heaven," that is, under divine authority.14
 Maimonides adds that if one would want to either confirm or
 dispute a matter of jurisprudence on the basis of divine inspira-
 tion, supernatural powers or prophecy, he could be charged as a
 false prophet.
     The law does not require. promulgation to be binding. The
 attitude of the Jews toward the autonomy of law may help us un-
 derstand some significant aspects of their history. To begin with,
 the loss of the government institutions as well as the land of Israel
 does not impair Jewish national sovereignty. In contradistinction
 to heroic thinking that the right of the sword, the merum imperium or
 absolute sovereignty underlies the right for civil and criminal ad-
 ministration of justice, the Jewish view is that the law is the only
 basis of authority. With the destruction of the Temple in 70 C.E.tn
 and the subsequent exile of the Jewish people, national sover-
 eignty was politically redefined as Galut (Exile). This means that
 although vanquished in war the Jewish nation was not dissolved.
 Jewish sovereignty is not predicated upon the ability to control a
 particular geographical area but rather is an extension of the law
 establishing the internal, legal, religious and cultural institutions
 governing the Jewish people.16 This may explain the peculiar
 problem of the Jews in pre-modern times: the problem was not
 merely one of religious freedom but also one of political rights to
 live "under the law" and to administer the civil and criminal af-
 fairs of the "Jewish nation."
      In this connection it is worth noting that when the first group
 of Jews sought permission to settle in New Amsterdam in January
 1655, the petition was made in the name of the "Jewish nation."'7
 Whatever Governor Peter Stuyvesant's personal feelings concern-
 
     14. Talmud, Baba Me~i'a 58a; M. Maimonides, Mishne Tora, Yesode Ha-Tora
 ix, 1. This concept is one of the 13 basic dogmas of Judaism. M. Maimonides,
 Commentary to the Mishna, Sanhedrin x, 1. See Faur, supra note 5, at 16.
     15. Dates herein are referenced to the "common era." Thus, B.C.E. (before
 the common era) is equivalent to B.C.; C.E. (common era) is equivalent to A.D.
     16. Faur, Early Zionist Ideals Among Sephardim in the XIXth Century, 15 Juda-
 ism 54-55 (1976).
     17. I. Sloan, The Jews in America, 1621-1970, at 51 (1971).
 
 
 Imaged with the Permission of N.Y.U. Journal of International Law and Politics
 
 
 [Vol. 12: 225
 
 
 
 JEWISH JURISPRUDENCE
 
 
 ing Jews and Judaism may have been, his refusal to grant the per-
 mit was not a matter pertaining only to religious freedom; the sit-
 uation of the Jews was radically different than that of other
 minorities. A Christian sect, for instance, could claim to be a sepa-
 rate religious group, but not a separate national entity. Although the
 government may have been willing to grant religious freedom to
 its subjects, it still refused to recognize the political autonomy of a
 particular group living within its borders.
      In summary, law in Jewish tradition is grounded on a Cove-
 nant with God. That law does not depend on authority and there-
 fore does not require promulgation; nor can it be subject to abro-
 gation. As the sole source of the institutions governing the Jewish
 people, the law is the only basis of national sovereignty. Much of
 Jewish history is a commentary of this juridical principle.
 
                   II. THE SOURCES OF THE LAW
      In Rabbinic jurisprudence, law is classified into De-'Oraita, De-
 Rabbanan, and Dinim Mufla'im. De-'Oraita (Scriptural),18 are the
 laws contained in the Covenant. The Karaites, a Jewish sect flour-
 ishing in the eighth century C.E., maintained that all laws are to
 be deduced directly from the text of the Bible. For normative Ju-
 daism, scriptural laws are known and transmitted through the
 oral tradition as that is contained in the Talmud and taught by the
 Geonim (singular, Ga'on, Eminence), or heads of the academies in
 Babylonia. The object of the Bible is cultural and spiritual edifica-
 tion, not jurisprudence. 9 These "scriptural" laws form the legal
 constitution of the Jewish people and, as mentioned before, re-
 quire no promulgation. Although the court can temporarily sus-
 pend these laws (with the exception of the law against idolatry)20
 in certain circumstances, the laws cannot be abrogated.
      De-Rabbanan (Rabbinic) are the laws promulgated by the Rab-
  binic courts (i.e., the Judiciary). These laws, which require pro-
  mulgation, can therefore be abrogated by another court. Accord-
  ing to Maimonides, since the judicial authority to promulgate new
  laws is De-'Oraita, Rabbinic enactments are basically covenantal
 
     18. "Scriptural," as used for the purposes of this article, will refer to the oral
  laws which came down with and which implement the legal principles of the Bible.
  They are considered to have the force of biblical laws which require no promulga-
  tion and cannot be abrogated.
     19. Faur, Some General Observations on the Character of Classicai Jeuish Litera.
 ture, 28 J. Jewish Stud. 31, 31-36 (1977) [hereinafter "Faur, General Obsertations"].
     20. Talmud, Sanhedrin 46a; M. Maimonides, Mishne Tora, Mamrim ii. 4.
 
 
 Imaged with the Permission of N.Y.U. Journal of International Law and Politics
 
 
 1979]
 
 
 
 INTERNATIONAL LAW AND POLITICS
 
 
 laws. The only fundamental difference between De-'Oraita and De-
 Rabbanan is that the latter requires promulgation and can be ab-
 rogated whereas the former is not subject to abrogation. The dif-
 ferences separating scriptural laws from Rabbinic legislation were
 established by the Rabbis themselves, and they were not part of
 the original covenantal laws.21
     Dinim Mufla'im (Undefined Laws) are the elements of the
 covenantal laws not defined by oral tradition and definition of
 which is the exclusive right of the judiciary. Since there are no ab-
 solute guidelines in these issues, the decision of the court cannot
 be challenged "even when they tell you that your left is the right
 and your right is the left," that is, even when in disagreement with
 one's own view on how these issues ought to be defined.22 The ar-
 guments advanced by the jurists when debating their individual
 views are of a rhetorical character. The ultimate purpose of this
 type of discussion is to convince, rather than to demonstrate in a
 scientific, objective fashion. Views are accepted or rejected on the
 basis of a majority vote rather than by some "criterion of true in-
 terpretation."'23 Once a definition is accepted, it becomes the legal
 interpretation of the law. Most of the Talmudic discussions which
 use biblical exegesis concern Dinim Mufla'im.
     In a sense Dinim Mufla'im is a middle term between the two
 other classes. On the one hand, like the laws De-Rabbanan, these
 laws depend on legislation. They therefore require promulgation
 by the court and can be abrogated by another court. Further-
 more, the judiciary can make stipulations and grant exceptions
 that would be inadmissible in scriptural laws. On the other hand,
 since the Dinim Mufla'im define scriptural laws, they affect the
 laws De-'Oraita and thus acquire the status of the laws that they are
 defining. For example, the scriptural expression "to take a wife"24
 is taken as the basis for the wedding ceremony current among
 Jews since Rabbinic times. Because this ceremony defines an ele-
 ment of the covenantal law, upon the performance of this
 wedding the parties are duly married according to the full mean-
 ing of the law. Since this ceremony was not defined by covenantal
 law but rather by the judiciary, however, the court has the power
 to annul this class of matrimony.25
 
    21. Faur, supra note 5, at 19-25.
    22. Id. at 22.
    23. Id. at 46-49.
    24. Deuteronomy 22:13.
    25. Faur, supra note 5, at 28-29.
 
 
 Imaged with the Permission of N.Y.U. Journal of International Law and Politics
 
 
 [Vol. 12: 225
 
 
 
 JEWISH JURISPRUDENCE
 
 
     There is the additional category of Minizag (Custom, Custom-
 ary Law). This type of law is also De-Rabbanan, since although the
 Minhag originates outside the court of justice, it is binding only
 because it was adopted by the court. Thus Maimonides considers
 the Minhag an edict issued by the judiciary. The only difference
 between it and other laws De-Rabbanan is that De-Rabbanan is
 binding on all Jews whereas the Minhag is limited to a particular
 locale.
     Each of these classes of law serves a specific purpose. De-
 'Oraita is the basis of government, authority and national sover-
 eignty; the fact that this class of law is valid even without territo-
 rial integrity assures national autonomy even after vanquishment
 of the State. Legal stability, the basic rights of the individual, and
 a check on arbitrariness and abuse of power are some of the ef-
 fects of this class of law, which cannot be altered by a "superior
 authority." The purpose of Dinim Mufla'im, however, is to meet
 the political, economic and social conditions peculiar to each his-
 torical situation. Through the interpretation of the undefined ele-
 ments of the Covenant, the laws of the Scripture are adapted to
 the new circumstances.26
     A few examples clarify this point. In the Scripture, 'Aboda
 (Worship) refers to the offering of sacrifices at the Temple. With
 the destruction of the Temple in 70 C.E., Israel no longer had a
 sanctuary in which to offer a daily national sacrifice. By defining
 the passage "and to worship Him (wul-'obdo) with all your
 hearts"27 to mean the prayers, and by further establishing that the
 time of the prayers must coincide with the time of the daily sacri-
 fice, the institution of the prayers and the synagogue were estab-
 lished. The synagogue became a "mini-Temple" and the prayers
 the means by which Israel worshipped God nationally.28
     Another example, found in criminal law, is the notion that no
 criminal punishment can be executed unless the criminal has been
 formally forewarned by witnesses and has acknowledged the
 warning. Since there is no scriptural basis for these requirements,
 they are the result of Rabbinic exegesis designed to redefine the
 law.29 This further illustrates how biblical criminal law was
 adapted to reflect the new sensitivities of the times: the Jewish
 
     26. See Faur, Law and Justice in Rabbinic Jurisprudence, Samuel K. Mirsky Me-
 morial Volume 17-19 (1970).
     27. Deuteronomy 11:13.
     28. Faur, General Observations, supra note 19, at 37-38.
     29. Talmud, Sanhedrin 40b-41a.
 
 
 Imaged with the Permission of N.Y.U. Journal of International Law and Politics
 
 
 1979]
 
 
 
 
 INTERNATIONAL LAW AND POLITICS
 
 
 community had become horrified at any form of criminal punish-
 ment. The famous biblical passage "an eye for an eye,"'30 inter-
 preted by the Rabbis to mean monetary compensation,31 is an-
 other instance in which scriptural law was interpreted to reflect
 the sensitivities of the times.
      Occasionally, laws that were no longer compatible with the
 spirit of the times were restricted by reinterpretation, and their
 literal applications were thus made impossible. One such law is the
 right of parents to have a rebellious son put to death by the
 court.32 The laws De-Rabbanan     are designed to meet new
 eventualities and situations not contained in the other classes of
 law. They may not, however, infringe upon the rights stipulated
 in De-'Oraita. They must be accepted by the majority of the public
 and can be abrogated by another court when it deems that the po-
 litical, social and economic conditions no longer warrant them.
 
                    III. THE RABBINIC COURT
     The Rabbinic Court had the power to transmit the Oral Law
 (De-'Oraita), to interpret and define the law (Dinim Mufla'im) and
 to promulgate new laws (De-Rabbanan). In theory, this court had
 jurisdiction over all Jewry. Medieval Jewry was divided as to the
 duration of the Rabbinic Court. The Geonim, who were the heads
 of the Talmudic academies in Babylonia and flourished from the
 end of the sixth to the end of the eleventh centuries C.E.,33 con-
 sidered themselves the perpetuators of the Rabbinic Court.34
 Within the Rabbinate, a systematic challenge to the supreme au-
 thority of the Geonim was developed by the seminal school of
 Lucena, Spain, in the works of its most distinguished representa-
 tives Isaac Alfasi,35 Joseph ibn Megas36 and Maimonides.31 Maim-
 onides distinguished the public courts functioning in Talmudic
 times from the courts functioning in post-Talmudic times, which
 he designated as "private courts."'3' This distinction presupposes
 
     30. Leviticus 24:20.
     31. Talmud, Baba Qamma 84a.
     32. Halivni, Can a Religious Law be Immoral, in Perspectives on Jews and Juda-
 ism 165, 169-70 n.7 (1978).
     33. On the institution of the Geonim, see L. Ginzberg, I Geonica 1-71 (1968).
     34. For sources, see Faur, supra note 5, at 33-36.
     35. Isaac Alfasi, 1013-1103 C.E.
     36. Joseph ibn Megas, 1077-1141 C.E.
     37. Maimonides, 1135-1204 C.E.
     38. Faur, supra note 5, at 42-45.
 
 
 Imaged with the Permission of N.Y.U. Journal of International Law and Politics
 
 
 [Vol. 12: 225
 
 
 
 
 JEWISH JURISPRUDENCE
 
 
 that a court-like any form of authority-is valid only when there
 is a public which, to borrow an expression from Austin, "is in a
 habit of obedience or submission." To be valid, therefore, a Rab-
 binic Court presupposes the actual existence of a Jewish society
 that accepts its authority.9
     During the Talmudic period the bulk of the Jewish people
 lived in the Mesopotamian and Babylonian regions called "Babel"
 by the Rabbis. By the end of the Talmudic period, the end of the
 fifth century C.E., Jewish demography began to undergo pro-
 found changes. At the time of the Geonim, from the end of the
 sixth until the eleventh century C.E., Jews were dispersed in
 places as far as Italy, France and Spain. Therefore, there was no
 longer a single Jewish society; rather, there were communities of
 Jews. Hence, Maimonides argued, on the basis of demography
 alone, that a public court with jurisdiction over all Jews no
 longer could exist. The courts established by the different
 communities were "private," that is, they had jurisdiction only
 over the community which had appointed them. The last court
 having jurisdiction over all Jewry was the one which by the end
 of the fifth century had compiled the Babylonian Talmud; this
 compilation represented the decisions and opinions of the Jewish
 public courts.40
      For the school of Lucena, therefore, the Talmud was the su-
 preme and definitive legal authority of the Jews. The post-
 Talmudic private courts had no authority either to transmit the
 oral tradition41 or to interpret and define scriptural law. They
 could promulgate new laws for their communities provided that
 those laws did not contradict the Talmud and that they were ac-
 cepted by the members of the communities. The authority of the
 post-Talmudic rabbi depends exclusively, therefore, on his schol-
 arship and erudition in Talmudic sources and related material:
 the rabbi only expounds and formulates the decisions and opin-
 ions of the public courts as recorded in the Talmud. To reinstate
 a public court with the same status and authority as in Talmudic
 times, it would be necessary for all the rabbinic authorities to "or-
 dain," that is, to delegate authority to one of their colleagues and
 to appoint others as judges, thus forming a Rabbinic Court. These
 
     39. Id. at 44 n.78.
     40. Faur, General Observations, supra note 19, at 38-40.
     41. Only the Supreme Court has the authority to transmit legal traditions
  not explicitly contained in the recognized sources. M. Maimonides. Mishne Tora.
  Mamrim i, 2.
 
 
 Imaged with the Permission of N.Y.U. Journal of International Law and Politics
 
 
 1979]
 
 
 
 
 INTERNATIONAL LAW AND POLITICS
 
 
 views of the school of Lucena were eventually accepted by the
 Jews in the Iberian Penninsula, the Mediterranean Basin and the
 Near East.42
      In Northern France during the twelfth and thirteenth centu-
 ries there   developed   another school, known     as Tosafot.43
 Ideologically, this school stands between the school of Lucena and
 the Geonim. Like the school of Lucena, the Tosafot recognized the
 supreme authority of the Talmud and the limited power of the
 rabbi in post-Talmudic times. However, by developing a form of
 textual analysis known as pilpu144 (casuistry), they were able to
 remold Talmudic law and to accommodate it to reflect the specific
 views and concerns of the individual rabbi, as the French Glossa-
 tors had done in their study of Roman law in the eleventh cen-
 tury.45 Although the supreme authority of the Talmud was form-
 ally acknowledged, it thus was the personal view of the rabbi
 employing the text of the Talmud which became the law.48 This
 approach to Rabbinic jurisprudence eventually was accepted
 by the communities in Northern France, Germany and Eastern
 Europe.
      These two schools of jurisprudence are represented by the
 Sephardic and Ashkenazic rabbinates. Sephardim (literally, Ibe-
 rian, but actually including the communities of the Mediterranean
 and Near East) have followed the legal teachings of the school of
 Lucena and have developed further its juridical ideology. Like-
 wise, Ashkenazim (literally, German, but actually comprising the
 communities in Eastern and much of Western Europe) have fol-
 lowed in the footsteps of the Tosafot and continue today to inter-
 pret Rabbinic law.47
      In Hebrew thought, the ultimate purpose of law is justice.
 The prophets distinguished between "legal laws"-laws enacted
 
     42. Faur, General Observations, supra note 19, at 39-40.
     43. For a detailed historical study of the school of the Tosafot, see E.
 Urbach, Baale Ha-Tosafot (1955).
     44. For a full analysis of this method of analysis, see Faur, The Legal Thinking
 of Tosaphot-An Historical Approach, 6 Dine Israel XLIII (1975).
     45. See P. Vinogradoff, Roman Law in Medieval Europe 73-77, 82-83, 93
 (1929). See also Pollock, The Stone that the Builders Rejected: Adventures of Some Civil
 Law Texts, 12 Seminar 39 (1954).
     46. Faur, The Legal Thinking of Tosaphot-An Historical Approach, 6 Dine Israel
 XLIII, LVI-LXI (1975).
     47. For illustrations of modern Sephardic jurisprudence, see Faur, Lessonsfor
 our Day from Sephardic Halakhic Sources, 40 The Rabbinical Assembly 57 (1978).
 
 
 Imaged with the Permission of N.Y.U. Journal of International Law and Politics
 
 
 [Vol. 12: 225
 
 
 
 
 JEWISH JURISPRUDENCE
 
 
 by the proper authorities-and 'just laws."'4 Since human society
 will not remain unchanged, it is the duty of the legislative authori-
 ties to enact new laws and reinterpret old ones with the aim of ad-
 justing human relations in a just and equitable way. The order
 provided by justice is Shalom (Peace).49 In the minds of the proph-
 ets, when law produces order without justice, the society will uli-
 mately collapse.50 Two thousand years of Jewish societal survival
 in a hostile environment, where being a Jew could mean death,
 exile and the confiscation of goods and properties, may be evi-
 dence that the Jewish legal system produced a modicum of inter-
 nal harmony and peace.
 
    48. See Isaiah 10:1-2.
    49. SeeIsaiah 32:17, 54:10;Jeremiah 8:16, 14:19; Zechariah 8:16.
    50. See Isaiah 58:1-3;Jeremiah 23:1-7.
 
 
 Imaged with the Permission of N.Y.U. Journal of International Law and Politics
 
 
 1979]
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 Imaged with the Permission of N.Y.U. Journal of International Law and Politics
 
 
 
 
 
 
 
 
                           GLOSSARY*
                        OF ARABIc TERMS
 
 Ask: source, root, foundation, basis.
 Basmala: the name for the formula, "In the name of God the compassion-
 ate, the merciful."
 Darar: harm, loss, hardship.
 Darura: necessity, distress.
 Hadith: a Tradition, that is, an anecdote carrying the weight of precedent,
 about the words or deeds of the Prophet Muhammad.
 Hanafi: related to the school of law founded by Abb Hanafi. The four
 principal schools of Islamic law are the Hanafi, Hanbali, MNiliki, and
 Shififi.
 H. anbali: related to the school of law formed by Ahniad Ibn Hanbal. See
 Hanafi.
 Hikma (pl. Hikam): wisdom, philosophy, maxim.
 "Ibhta (pl. 'IbM&t): a religious duty or devotion.
 Ijmnz': the consensus of the community's scholars.
 Ijthad: an independent decision or judgment without support in the Ko-
 ran, sunna, ma&' or .yafs.
 'I//a: cause, reason, excuse.
 Istilhsn: judicial discretion, choosing the preferable alternative.
 Kiys: analogy, reasoning by analogy.
 Makair: measures, quantities.
 Miliki: related to the school of law founded by Milik Ibn Anas. See
 Hanafi.
 al-Masalih al-Mursala: see Ma4/a~a.
 Masiaha (pl. Masalih): that which is beneficial, that which promotes good
 [used here in the sense of public interest. AI-Masalih al-Mursala refers to
 this same concept of public interest].
 Ma~zinn al-Ibiida: places of devotion, occasions of devotion.
 Mu'dmal&: social conduct or behavior; civil law.
 Qiyas: see kiy&.
 Qur'an: the Quran (also spelled Koran in English).
 Riba: usury.
 Salaf: elders, predecessors.
 
   * Extracted from H. Wehr, A Dictionary of Modern Written Arabic (2d ed.
 1966).
                                  237
 
 
 Imaged with the Permission of N.Y.U. Journal of International Law and Politics
 
 
 
 
 INTERNATIONAL LAW AND POLITICS
 
 
 Shift'i: related to the school of law founded by Shafi'i. See Hanafi.
 Sha'n al-nuzfil: circumstances of revelation.
 Sharfa: the law of Islam.
 Sunna: customary usage or practice.
 Zakiit: almsgiving, which is one of the duties of every Muslim.
 
 
 Imaged with the Permission of N.Y.U. Journal of International Law and Politics
 
 
 [Vol. 12: 237