The unedited full-text of the 1906 Jewish Encyclopedia
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That system of jurisprudence established by the people of a state or nation for their government as citizens as distinguished from criminal law, which defines crimes and their punishment, and from ecclesiastical law, which regulates matters of church and religion. The distinction implied in this division of the subject did not exist in the old Jewish law, which knew no difference between the obligation to do right to man by respecting his person and property and the obligation to do right to God by offering Him the proper and customary devotion and sacrifice. All these obligations were regulated by a body of legal rules or customs, and were equally sacred because they had the same sanction, namely, the command of God.

Laver.(In the Shearith Israel Synagogue, New York.)Ancient Custom.

The law originated in ancient customs, recognized among the nomadic people before any well-defined legal system or code came into existence. The books of Genesis and Judges, where a condition of society is described in which "every man did what seemed right in his own eyes," illustrate this (Judges xvii. 6). The customs of this stage of society will be found to refer principally to the family relations, to the simplest forms of trade, and to the regulation of pasturage. The family was the unit of this society, hence the preponderance of customs relating to it. The relations of husband and wife, parent and child, the regulations concerning family property, slavery, and the rights and duties of kinsmen to each other, are the chief subjects which ancient patriarchal customs regulated.

These ancient family and tribal customs are variously treated by the Torah. Some are preserved, and thus receive the sanction of law; some are abolished; and others are merely modified. Many of these customs are not alluded to in the Torah, but persisted as a part of the unwritten, oral law down to the Talmudic period, when they were committed to writing. The antiquity of the oral law is attested by various authorities. The Mishnah (Ab. i. 1), as explained by Maimonides in the introduction to the "Yad," ascribes the oral law to Moses, from whom it descended through an unbroken line of authorities to the latest times. This theory is substantially the same as that by which the origin of the English common law is explained. The law is supposed to have existed since time immemorial in the breasts of the judges, awaiting the case in which it was to be first applied.

Civil Law in the Pentateuch.

After the period of the supremacy of ancient tribal customs came the Torah, containing codes of law on various subjects. Here is the first law in the modern sense, a series of statutes and ordinances succinctly expressed and written down by the authority of a lawgiver. The Torah legislates for a stage of society higher than that of the nomad. It is intended for a people settled on the soil and devoted largely to agriculture. Herein will be found its limitations. It knows little of commerce or contract in the modern sense; its regulations are comparatively primitive and are expressed in terse sentences and with little comment. The simplicity of the Biblical civil law is best illustrated by the fact that it is all contained in fifteen chapters of the Bible, and in some of these chapters occupies the space of only a few verses. The bulk of the civil law is found in two codes (Ex. xxi.-xxiii. and Deut. xxi.-xxv.) concerning slaves, land, inheritance, pledges, loans and interest, bailments, torts, marriage and divorce, and legal procedure. Exodus xviii. and Deuteronomy xvii. treat of the constitution and jurisdiction of the courts; Leviticus xxv. and Deuteronomy xv. treat of the laws of the jubilee, of the Sabbatical year, and of ransom; Leviticus xix. treats of the poor-laws, and Numbers xxvii. and xxxvi. of the laws of inheritance. This is substantially the entire Biblical civil law, which grew to enormous bulk in the Talmud.

That these laws were intended for an agricultural people is obvious. The sale of land was not favored, because land was substantially the sole means of support of the people, and its easy transfer would have resulted in the impoverishment of sellers and the creation of great landed estates, a condition of things that actually supervened in the times of the kings, and was made the target of prophetic censure. Hence the lawgiver instituted the Sabbatical year and the jubilee, preventing this consequence of free alienation of land. On the other hand, the laws of inheritance prevented the too minute subdivision of the land, by excluding the daughters from a share unless there were no sons. Personal property other than that which is incident to the land, such as cattle, is hardly mentioned, and there areno regulations concerning its transfer except the general injunction to be just in weights and measures (Lev. xix. 35; Deut. xxv. 14, 15). Written contracts were unknown; all transactions were simple, and were easily made a matter of public record by being accompanied by the performance of some formal act in the presence of witnesses. Legal process was likewise simple: the judges spoke in the name of God (Ex. xxii. 7, where the Hebrew has "Elohim" as the original of the A. V. rendering "judges"), and it is not unlikely that the judgment of Solomon fairly represents the simple and direct method pursued by them in seeking to do justice. In doubtful cases the "oath of the Lord" (Ex. xxii. 11) was administered to settle the matter.

As mentioned above, the old notions restricting the transfer of land gave way during the reign of the kings before the power of the king and the nobles. It is quite probable that the changes in the law during that time were numerous and radical, although the chroniclers who handed down the records of the books of Samuel, Kings, and Chronicles say nothing of such changes. One significant illustration of this change is preserved. When Jeremiah bought the field of Hanameel, the simplicity of the earlier days when Abraham bought Machpelah or when Boaz bought the lands of Elimelech had given way to the more modern procedure of preparing a written deed of conveyance (Jer. xxxii. 9-10).

After the Exile.

The Babylonian captivity probably influenced the development of the Jewish civil law both in substantive law and in procedure. The long residence of the Jews under Persian dominion left its impress on their jurisprudence, just as in the following centuries the Greeks and Romans successively contributed to its development. On the return from the Captivity, the influences which under the monarchy had resulted in breaking down the old land system were no longer in actual operation, but new conditions promoted the same result. The people were now reduced to a small community, were in need of ready money to pay taxes and tribute to a foreign master, and were on the great commercial highroad between Egypt, Syria, and Persia. Accordingly they began to engage in commerce to a larger extent than before. These influences succeeded in preventing the reestablishment of the old land laws. There was less need of the soil as a source of livelihood and more need of freedom of alienation. Even the effect of the Biblical law of the Sabbatical year was nullified, so far as the collection of debts was concerned, by the ordinance of Hillel (see Prosbul). The jubilee was never reinstituted after the Captivity ('Ar. 32b), and many of the land laws connected with it fell into abeyance ("Yad," Shemiṭṭah, x. 9).

Contemporaneous with this decline of the laws relating to the soil was the origin of the great body of law relating to personal rights and obligations, the law of contract. The people were now by force of circumstances compelled to play an important part in the affairs of the world at large, and this, together with the growth of their commercial activity, created sweeping changes in the law. Persian, Greek, and Roman supremacy successively influenced not merely the politics, but also the law of Judea. Numerous branches of the law were created during the period from the return from Babylonian captivity to the destruction of the Second Temple. The number of foreign technical legal terms adopted by the Jewish law indicates the important part that foreign systems played in its development.

The Mishnah.

This great change took place during the period of the formation of the Mishnah, which was codified at the end of the second century of the Christian era, but its laws run back to remote times, many of them to the period before the Captivity. The Mishnah contains the old common law of the Jews together with the additions made thereto during the five hundred years immediately before the Christian era, and the rabbinical amplifications of these laws made during the first two hundred Christian years. The old law, which had developed under agricultural conditions, was characterized by its prohibitive enactments. "Thou shalt not" is its key-note. It was concerned chiefly with guarding the rights of persons. The new law, which was afterward gathered and written down in the Mishnah, was mandatory rather than prohibitive. It was chiefly concerned with the enforcement of rights created by contract, express or implied. Thus, the new law was the necessary complement to the old law of the Torah; and so great was the veneration in which the Torah was held that the rabbinical lawyers, ignoring the fact that the laws of the later period had sprung up independently of the Torah, or perhaps unconscious of this fact, sought to find the origin of all these laws in the words of the Torah. Much of the law which had arisen after the Captivity, or even earlier, was based upon customs which were found to be at variance with the words of the Torah; and when the Rabbis became conscious of this discrepancy they attempted to reconcile with those words the practise which had been made obligatory by reason of long-continued usage. Herein they displayed their greatest ingenuity, for although in theory they did not go beyond tradition, and certainly would not advisedly have overruled the sacred laws of the Torah, yet the necessities of the situation drove them far beyond these self-imposed limits to their activity, and they acted with the practical independence of modern lawmakers, although with theoretical subservience to the domination of the written word.

An examination of the contents of the civil law of the Mishnah will illustrate what has been said. The civil law will be found principally in the first, third, and fourth orders of the Mishnah. The first order, Zera'im ("Seeds"), contains many laws relating to the land—the old Biblical law and its amplifications. The third order, Nashim ("Women"), treats of marriage and divorce, marriage settlements, and property rights arising out of the marriage relation. The fourth order, Neziḳin ("Damages"), treats principally of the civil law. It contains the divisions Sanhedrin, Shebu'ot, and Horayot, which treat of the courts, and of administration of oaths and legal procedure generally, as well as of the effect of judicial decisions. The divisions Baba Ḳamma ("FirstGate"), Baba Meẓi'a ("Middle Gate"), and Baba Batra ("Last Gate") contain the bulk of the civil law.

Based on the Torah.

The attempt to trace back this huge body of jurisprudence to the Torah and its few simple laws resulted in the development of a peculiar Talmudical system of reasoning. At times with superficiality, more often with great thoroughness, always with earnestness and zeal, Biblical legal principles were examined, traditions reviewed, opinions and cases dissected, analogies discovered, differences glossed over, in the attempt to preserve the unbroken unity and continuity of the law and to reconcile the irreconcilable. The practical effect of this enormous intellectual output of the Talmudic legal mind was to establish a great system of law theoretically based on the Torah, but containing the inherent power of adapting itself to the changing conditions of life. It rested upon the theory that all possible modifications of the law had been foreseen at the beginning, and that when once uttered by an authority ex cathedra, they took their place naturally in the system, as though they had been there since time immemorial. "Even that which an able student [] may hereafter expound before his master has already been communicated [by God] to Moses on Sinai" (Yer. Meg. iv. 74d; Lev. R. xxii.). The peculiar system of Talmudical hermeneutics contributed largely to this result. The discussion and arguments of the rabbinical authorities are preserved in the Gemara, which together with the Mishnah forms the Talmud. The Gemara was compiled about three hundred years after the Mishnah, and the generations of Rabbis who followed devoted their talents to the interpretation of the Talmud and the application of its principles and decisions to the new cases which arose. The volume of the civil law grew apace. In Europe, Asia, and Africa scholars and judges were adding to its bulk. Steinschneider divides these additions to the law into five classes:

  • (1) Commentaries on the Talmud.
  • (2) Tosafot (glosses and additions to the Talmud and its commentaries); Nimuḳim (notes); and Ḥiddushe Halakot (the novellæ of the Spanish, Italian, and modern schools).
  • (3) Liḳḳuṭim (collectanea); Ḳobeẓim (compilations of laws); Ḳiẓẓurim (compendiums for practical use).
  • (4) Pesaḳim (decisions of actual cases); Teshubot (responsa, legal opinions rendered in response to some "she'elah" [question] submitted upon a given state of facts); Dinim (rules of law); Taḳḳanot (ordinances referring principally to communal matters).
  • (5) Independent works on the entire subject of the law, or on different branches of it.

The most important of these for the development of the civil law were the teshubot. As these were opinions on actual cases they were, to a large extent, kept free from theoretical speculation. They were usually extended discussions of the law in general applicable to the case, followed by a decision of the point involved. The tosafot, which are the work of the authorities of the twelfth and thirteenth centuries in France, Germany, and Italy, are also of very great importance, and are usually printed in the common editions of the Talmud with the text.

The Codes.

Two other great codes of the law require notice: Maimonides' "Mishneh Torah" (Second Law), known as the "Yad ha-Ḥazaḳah" (Strong Hand), which belongs to the twelfth century, and Caro's "Shulḥan 'Aruk" (Prepared Table), which belongs to the sixteenth century. The code of Maimonides resembles the modern law code in its orderliness, and the "Shulḥan 'Aruk" is largely modeled upon the same plan. In each of these codes the law was brought up to date, and since the compilation of the latter, various commentaries have been written to include the later literature, especially the responsa. One of the most important of these is the "Pitḥe Teshubah" (Gates of Repentance—a play on the word "Teshubah") of R. Abraham Eisenstadt (1836). This is a collection of decisions from the literature of the teshubot arranged according to the text of the "Shulḥan 'Aruk," and usually printed with the latter.

The civil law is still administered by the Jewish tribunals in different countries; and even in those countries in which, in civil matters, the courts of the land have superseded these tribunals, the Jewish law is still administered by the latter whenever litigants submit to their jurisdiction.

K. D. W. A.
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