systemic, dynamic and complex analysis of the interaction between Jewish and other legal systems

1 SYSTEMIC, DYNAMIC AND COMPLEX

ANALYSES OF THE INTERACTION OF

JEWISH AND OTHER LEGAL SYSTEMS

by

AMOS ISRAEL-VLEESCHHOUWER

Introduction

This article grew out of necessity. The scholarly literature on Jewish law’s

attitudes towards other legal systems reveals many methodologies and numerous

findings, indicating that the academic field is in a pre-paradigmatic stage. Both in

the Jewish legal materials and among researchers there is no agreement as to the

definition of the phenomenon of “interaction between legal systems”, as to the

important questions to be answered and the methodology for answering these

questions.1 The lack of minimal agreement poses a challenge for any research into

legal interactions.

This paper suggests a comprehensive approach to research on interactions of

Jewish and other legal systems.2 It proposes methods to answer old questions and

Email: [email protected]. Independent researcher, Jerusalem, Israel. MA, Psychology;

LLM, PhD (law), Tel Aviv University. I thank the reviewer, Profs. Hayes, Edre'i, Ben Naftali and many

teachers and friends for challenging questions and constructive critiques. 1 An agreement regarding these three components constitutes a scientific research paradigm

according to T.S. Kuhn, The Structure of Scientific Revolutions (Chicago: University of Chicago Press,

1962). Working within a paradigm is the basis for the development of a coherent and fruitful practical

and theoretical discourse, but on the other hand it also stifles innovation and obscures facts that are

incompatible with the paradigm. 2 For full documentation, the reader is referred to chapters 7-8 of my dissertation, The Attitudes of

Jewish Law towards International Law. An Analysis and Jewish Legal Materials and Processes [Heb.]

(Tel Aviv University, 2012). Some parts of the present model can be found in my “Jewish Law in the

Age of Globalization. Conceptual Impacts, Multi-player Interaction and Halachic Re-organization of the

Jewish ‘Community’”, European Review of History 18 (2011), 57-67. The implications for social action

can be found in my “Migrating from Home to Homes. Adapting to Complex Contexts and Changing to

Healthier Modes of Communication”, in T. Reytan-Marincheshka (ed.), Migration, Home and

Communication: Jewish Tradition, Change & Gender in a Global World (Sofia: LIK Publishing, 2011),

16-40. For now, I leave aside elements of an even more comprehensive project regarding Jewish law

that will include the complexity of the cognitive experience of Jewish legal decision makers, the

complexity of the Jewish legal literature, and the complex interactions of these three with Jewish

2 Jewish Law Association Studies XXIV: The Netanya Conference Volume

open new frontiers of research. Each methodological argument can be read

separately and each should be critically assessed. However, the arguments can also

be read as fully intertwined, creating a whole that is greater than its parts. A

concluding section discusses the organizational and conceptual challenges that are

inherent to this paradigm shift.

The purpose of this paper is not to argue for the elimination of existing research

methodologies or their findings, but to engage them critically, utilize them within

the proposed framework and move beyond them.3 Existing research tends to focus

on single legal issues or persons, on one literary corpus or even locus, or on

particular points in time and geography. This research tends to analyze two-sided

interactions and focus on one-way influences resulting from interaction in a limited

time frame. Most research is imbedded in an existing paradigm in law or

humanities, and employs one or several methodologies within such a paradigm

(e.g. law and history, comparative law). Most work utilizing legal pluralism vis-à-

vis Jewish law4 tends to be restricted in similar ways. It analyzes the consequences

of the existence of multiple normative systems side by side. It recognizes an

internal legal pluralism (e.g. king’s law, hora’at sha’ah, the legitimacy of local

versions of Jewish law, minhag) in Jewish society and polity, and a plurality within

the systems outside of it (dina demalchuta and hormana demalka). However, it

does not rethink the concepts of “law” or legal “system”, and chooses to remain

within the legal centralism5 paradigm.6 The interactions and tensions between the

descriptive and prescriptive aspects are underplayed. By focusing on a limited set

of elements in order to portray a limited plurality, the interaction between various

factors, issues of power, geography, institutions, culture7 and the complexity of

multiple pluralities is flattened out.

--- communities and Jewish culture. For the cognitive element see my “Jewish Legal Decision Making as a

Cognitive Experience”, in A. Rosenak (ed.), Psika as an Experience (Jerusalem: Magnes Press, Van

Leer, forthcoming). 3 Any future research into the interactions of legal systems will be based on comparative

research, historical research and their combination. Research into political and legal interactions will

include individual, group and religious rights, mutual influences and forum shopping, as well as

comparative research with other religious legal systems, insights from interfaith dialogues, the vast

literature about church/synagogue-state relations, conflict of laws, and intercultural social science

research (especially intercultural interactions). 4 Cardozo Law Review 12 (1991) (Theme issue: Legal Pluralism). 5 Compare J. Griffith, “What is Legal Pluralism”, J. of Legal Pluralism 1 (1986), 1-55. Many of

the following insights derive directly from this classic article. 6 R. Michaels, “The Re-State-Ment of Non-State Law. The State, Choice of Law, and the

Challenge from Global Legal Pluralism”, Wayne L. Rev. 51 (2005), 1209-1259. 7 The interactions of Jewish and other legal systems have changed fundamentally since state law

secularized. The secularization of state law is an issue for debate as is secularism itself and the religious

phenomenon in relation to these secularisms. See, e.g., T. Asad, Formations of the Secular. Christianity,

Islam, Modernity (Palo Alto: Stanford University Press, 2003).

Wygoda: State Tort Liability and the “Discretion” of Jewish Law 3

Arguably, fragmented and contradictory discourses and multiple identities and

memberships accompany interactions between legal systems more often than not.

It is the communities, not the (state) legislators, which make law – especially those

in the periphery.8 Soft law, distributed peer control and other mechanisms are not

to be compared to “real” law (hermeneutical, classic halakhah), but are practical,

pragmatic Jewish law, and reflect on what law was, is or may become. 9 Legal

pluralism isn’t just horizontal – but also multileveled or multilayered without

necessarily complying with a hierarchical order.10 Finally, any analysis of legal

interactions has to incorporate multiple disciplinary inputs, for example, from

anthropology, spatial studies, history, psychology, economics and (gender)

politics.11

Based on contemporary studies of transnational and postnational law12 and their

impact on research of interconnected multiple legal systems, I argue that the

complex interactions between Jewish and other legal systems can only be

comprehensively approached from a new paradigm. Existing knowledge and

research methods will be incorporated into the new framework. I propose a

combination of multiple methodologies, data and insights from multiple

disciplines, and the utilization of system analysis, process analysis and complexity

theory, to enable a better understanding of these interactions. I also propose a

reexamination and adjustment of the research on the internal legal, political and

cultural processes within the Jewish legal system that precede, coincide with and

result from external interactions.

In Part 1 I outline the structure of social and legal interactions. Part 2 discusses

the intra-Jewish regulation of interactions and the intra-Jewish effects of

interactions. In Part 3 I argue for the need to shift from a focus on static dyadic

interactions toward an analysis of dynamic, multiplayer, and interactive complex

8 G. Teubner, “Global Bukowina. Legal Pluralism in the World Society”, in G. Teubner (ed.),

Global Law without a State (Hanover NH: Dartmouth, 1997), 3-28. 9 It would be interesting to discuss the similarities of Jewish law and international law,

especially their definition as “law”, and the implications for our understanding of law (see my PhD,

supra n.2). Talia Fisher, in Separating Law and State (PhD diss., Hebrew University, 2004), mentions

Jewish law as a system which developed a polycentered, power-distributed legal system, inherently

capable of interacting with other systems. For multiple systems within Jewish law see A.

Kirschenbaum, Beit Din Makin Ve’onshin. Jewish Penology (Jerusalem: Magnes Press, 2012), ch.2. 10 See Griffith, supra n.5, and B. Rajagopal, “The Role of Law in Counter-Hegemonic

Globalization and Global Legal Pluralism. Lessons from the Narmada Valley Struggle”, Leiden J. of

Int’l L. 18 (2005), 345-387. 11 S. Engle Merry, “International Law and Sociolegal Scholarship. Toward a Spatial Global

Legal Pluralism”, Studies in Law, Politics and Society 41 (2008), 149-168; P. Zumbansen,

“Transnational Legal Pluralism”, Transnational Legal Theory 1:2 (2010), 141-189. 12 Supra nn. 9, 11; infra, nn.13-14; see also R. Michaels, “Global Legal Pluralism”, Ann. Rev. L.

and Soc. Sc. 5 (2009), 243-262; N. Krisch, Beyond Constitutionalism. The Pluralist Structure of

Postnational Law (Oxford: Oxford Constitutional Theory, 2012); P.S. Berman, Global Legal Pluralism.

A Jurisprudence of Law Beyond Border (Cambridge MA: GLP, 2012).


interactions. Part 4 presents the tools and methods for actually researching such

interactions and discusses the jurisprudential implications and methodological

limitations of the proposed model.

Part 1: A structural view of interactions between legal systems

My inquiry starts from the assumption that the Jewish legal system interacts

with other legal systems.13 I’ll focus on the analysis of the “interactions” between

the “systems”, with an emphasis on the plural in both expressions. I will outline the

multiple contexts and processes involved in each specific case, text or decision,

and suggest a framework to look at the general phenomenon.

The interaction between two or more legal systems is imbedded in the structure

of social interaction (or lack thereof) between the social entities that carry these

legal systems. The analysis of the social structure is subdivided into the question of

the social structure per se, and the structure of the (social) interactions.

Social structure

The sociological structure of the groups/cultures vis-à-vis each other can best

be represented by Venn diagrams (for clarity including only two groups) in figure

1. On the left we can see groups which are distinct. They have no common

constituency (no one is member of both groups), no common territory, history,

experience or institutions, etc. In the middle are groups which partially overlap –

they have some common and some separate content (in one or more of the

aforementioned dimensions). The structure of inclusion on the right represents a

situation where one group is included in the other. These are of course ideal types,

and one can suggest variations on these models.14 All these representations have a

place in Jewish law and culture.

13 One could object to (1) the assumption that Jewish law is a legal system (I. Englard, Religious

Law in the Israeli Legal System [Jerusalem: Magnes, 1975]; however, see H. Ben Menachem,

“Talmudic Law. A Jurisprudential Perspective”, Cambridge History of Judaism, vol. 4, The Late

Roman Period [Cambridge: CUP, 2006], 877-898; and consider Fuller’s definition in his L. Fuller, The

Morality of Law [New Haven: YUP, date; (2) Legal monism, that sees all legal “systems” as necessarily

ordered in a single coherent legal hierarchy, and denies the possibility and importance of legal

interaction between two distinct systems. Englard (ibid.) bases this argument on Hans Kelsen. I think

Rabbi Herzog holds this position, too. See A. Kaye, The Legal Philosophies of Religious Zionism 1937-

1967 (PhD diss., Columbia University, 2013); finally, one could deny the possibility and importance of

legal encounters. I recommend returning and testing this assumption both theoretically and by

quantitative methods. 14 A working definition of “model” would be “a simplified description or representation of a

system or process that assists calculations and predictions, and allows investigation of the system’s

properties, as well as predictions of future outcomes”.


Figure 1: Three models of social structure

Distinct separated groups partial overlap inclusion

Distinctness is captured in the verse “A people that dwells alone/apart”,15 in

laws that aim to socially separate Jews from non-Jews, and in a Jewish legal

position that denies and opposes dual membership and any non-distinct cultural

identity.

Partial social overlap is the prevailing worldview (of Jews and non-Jews alike)

regarding Jews in the Diaspora. Jews live as minorities in societies that include

Jews and non-Jews. The worldview of religious communities in the modern world

holds that part of Jewish society and culture is separate, unique, self-contained and

self-sufficient and part is intertwined with its surroundings. This presentation is

also considered to be the most relevant for Jews in ancient times.

Inclusion views Jews as a subgroup within humanity. In an opposite inclusion

view, gentile peoples exist in God’s “Jewish” world, created in accordance with the

Torah.

These are “ideal” structures. We should add various data regarding several

criteria that inherently influence these structural pictures. 16 Is one group

significantly smaller/bigger than the other? How cohesive is each group and how

permeable are the borders between them?17 What are the absolute power statuses of

the groups and how do their power statuses relate to each other?18 If there is an

15 b#xty )l Mywgbw Nk#y ddbl M( Nh (Num. 23:9). 16 B. Lickel et al., “Varieties of Groups and the Perception of Group Entitativity”, Journal of

Personality and Social Psychology 78 (2000), 223-246. 17 Griffith, supra n.5; Zumbansen, supra n.11. For borders and their role in Jewish culture, see A.

Israel-Vleeschhouwer and T. Arieli, “Borders and Bordering in Jewish Geopolitical Thought”

(submitted to the Toronto Journal of Jewish Thought, 2014). 18 In the description of church-state relations religions are usually presented as weak and states

as strong. However, in actual interactions religious players sometimes act as a weak minority (seeking

protection, group rights). Religions strive to influence by consistency, displaying their position as truth,

essential and fundamental. These are strategies of minorities. At other times they act – inside the

community and in interactions with outside players – as dominant, big and powerful. They claim to

represent all generations past and future, an eternal truth, and the essence of the people’s culture.

Thereby they activate mechanisms used by the stronger side of interactions. I intend to investigate the

cognitive and political aspects of this phenomenon in depth.


overlap, how big is it, and how big is the overlap in relation to each group?

We should also distinguish between social structure as it is, the ways it is

presented (by the groups, agents and institutions), and the ways it is perceived by

people from inside (constituency, leaders, rabbis) and by people and actors outside.

In addition to the real structure, we should also consider the ideal structure and the

structure as it ought to be. Any analysis should also account for the fact that some

of the structural elements, presentations and perceptions are recursive.

The internal cultural Jewish view of “others” and of the interactions with

“them”, is very important in shaping Jewish identity. 19 The self-definition of

Jewish society (who is included, who decides on membership), the internal

structures and the institutions are important, as well.20

The structure should be derived from the research of sociologists,

anthropologists, political and media scientists. If such data is not available – they

should be consulted. When dealing with historical interactions, historians should be

sensitive to all these aspects. Jewish legal research should account for congruence

between the various findings regarding facts, perception and representation and for

the tensions stemming from incongruences between the various disciplinary

perspectives.

Structure and form of social interaction/relations

Social interactions, imbedded in the described social structures, can occur

between the societies or communities (e.g. through social and political institutions,

e.g. professional guilds), between leaders, professionals and individuals. They can

be restricted to the areas of social overlap, but they can also occur between people

in separate realms. Interactions between the systems can be represented as arrows

in Venn diagrams, as seen in figure 2.21

19 The term “other” in the expression other legal systems requires discussion of “other”ness, of

boundaries of “self” and “other” etc. This dimension of contemporary discourse regarding legal

interactions will be present but not fully developed in my argument. See, e.g., L.J. Silberstein, and R.L.

Cohn, The Other in Jewish Thought and History. Constructions of Jewish Culture and Identity (New

York: NYU Press, 1994); and H. Deutsch and M. Ben-Sasson, Ha’axer (The Other: Between a Person,

Self and Other), [Heb.] (Tel Aviv: Yediot Aharonot, 2001). 20 Some rabbis acknowledge this and explicitly take it into account, but even if they don’t, the

sociological effect nonetheless influences subsequent Jewish legal development. 21 From top to bottom, the arrows present a one-sided broad interaction between societies, which

can represent an influx of many people, ideas or resources, or a pervasive cultural influence. The

broadness of the line represents that the interaction is between societies and not individuals therein, as

seen in the lowest, narrow arrow (which should be in a color which represents the participants in the

interaction, like status and role have a form – like dashes – which represents other features of the

interaction). The middle arrows represent a mutual interaction in the area of overlap (it could also have

been between the nonoverlapping realms). Note that each arrow can represent the culmination of

hundreds of interactions. As such, it does not capture all of the aspects, but represents the main ones.


Figure 2: Interactions (here seen in overlapping systems).

Interactions can be few or many, planned or random, frequent and stable or rare

and varied, deep or superficial, cultural and meaningful, or technical and

pragmatic. Rabbis can be involved (directly and indirectly) or just react to

interactions by and with others. The interactions can be legitimate or illegal, open

or hidden, public or private, one-sided or mutual, and generated from the center or

centered at the periphery.

All these possibilities and more have in fact happened in Jewish history. Most

if not all of these possibilities and their possible combinations have been part of

dynamics which were the context for important processes in Jewish law. A

significant number of these possible interactions (or the opposition to them)

influenced Jewish legal norms in various and perhaps non-straightforward ways.

The location of the interactions matters. An interaction might happen in the

Jewish, in the non-Jewish, or in a common, mixed or “public” space or sphere. The

latter might be considered neutral (but is not always). The mechanisms of

interactions have been discussed by earlier scholars, using some rich metaphors.

Shilo presented equity as a Jewish legal “bridge” between the Jewish and other

legal systems.22 Jeffrey Roth23 aptly connected Shilo’s image “bridges” to Robert

Cover, who liked the image of the bridge to describe law as linking a “concept of

reality to an imagined alternative”.24 Minow argued that bridges are not (only)

formal and legal, but stem from necessary respectful interaction: “we who live in

plural worlds must exhibit enough mutual respect at least to coexist. In so doing,

22 S. Shilo, “Equity as a Bridge between Jewish Law and Secular Law”, Cardozo L. Rev. 12

(1991), 737-752. 23 J.I. Roth, “Crossing the Bridge to the Secular Law. Three Models of Incorporation”, Cardozo

L. Rev. 12 (1991), 753-764. 24 M. Minow, M. Ryan and A. Sarat (eds.), Narrative, Violence and the Law. The Essays of

Robert Cover (Ann Arbor: University of Michigan Press, 1995), 9. See “Symposium. Rethinking Robert

Cover’s “Nomos and Narrative”. Covered Bridges”, Yale J.of Law & Humanities 17 (Winter 2005), 55.


we change one another. Our efforts at mutual respect build a bridge between us.”25

Utilizing this image to analyze legal pluralism in Jewish law, Roth asks: On

what sides of a bridge do interactions happen? Are there meetings on the bridge? Is

the interaction on the bridge, a public space, considered as an “exit” for the Jewish

participant? Who controls traffic on the bridge? Is there one bridge or are there

many? Who or what (e.g. resources or norms) crosses the bridge?26 If interaction

happens on the Jewish side, for example, is it the result of an invitation or of an

invasion? Is it cooperative or threatening? Many possibilities and combinations

may coexist.

Bridges facilitate interactions within societies. They attest to the inherent

complexity within social structures and the inevitability of gaps within them. The

metaphor presupposes separate and distinct entities that are separated by a gap

which is then overcome by a bridge(s). However, that is only one possible image.

Most bridges are utilitarian, permanent features in society. But Cover stressed

that each community builds its bridges “with the materials of sacred narrative”.27

Thus, bridges are always more than utilitarian carriers of functional interactions.

More specifically, bridges assume a significant amount of social regulation (land

use, private or public ownership, construction regulations, rights of use, etc.). In

addition, bridges are structures that need investment and maintenance. The image

calls attention to the necessary common ground for interaction and

communication – contact, social assumptions (customs), and tools of

communication, and to the necessary uncommon foundations for interaction within

each participating party.

Social structures and the various interactions imbedded in them are the basis for

any analysis of legal interaction between legal systems, to which I will turn now.

Structural analysis of legal interaction

The structure of the legal interaction can and should be analyzed in the same

two stages that were used above for the social interactions. The basic structural

“picture” evokes the following questions: How similar are the Jewish and the

“other” legal systems – as seen from outside and as perceived from within Jewish

law? Is there an overlap between the legal systems in content, ideology,

jurisprudence, institutions, legal structure, constituency, etc.? Do they recognize

each other? If they do, is it as separate, overlapping, or in forms of inclusion? Are

25 M. Minow, “Introduction”, in Minow et al., supra n.24, at 11. 26 For the inevitable exchange of resources – culture, people and more – in a globalized world,

see Y. Blank, “Cities and the World”, Columbia J. of Transnational L. 44 (2006), 875-931 (I thank

Prof. Blank for conversations regarding the model I present here). 27 R. Cover, “The Folktales of Justice: Tales of Jurisdiction”, in Minow et al., supra n.24, at 176-

177.


the views of both systems regarding each other compatible or congruent?

The structural map of the legal systems can be superimposed on the map of

social structure. The extent of structural compatibility/congruence between the

superimposed maps influences both the social and the legal realms of each group,

and the interactions between them. The superimposition also raises the question of

the nature and essence of the Jewish people, community and legal system. Is

Judaism one coherent, monotonic truth system that encompasses the ritual, social,

economic, political and legal realms, or a multicentered network of subsystems? Is

the Jewish legal system independent and self-sufficient, or part of a matrix that

includes an ideal and pragmatic rabbinic system, alongside a divine system and the

king’s law?

The next structural analysis is that of the interactions between the legal

systems. What parts of the legal systems interact? Is the interaction one- or two-

sided? Are the phases of the interaction dependent or independent of each other?

Are there several interactions and what are the relations between them? Who

interacts? When? Where? How and why? Again, any survey will reveal a variety of

legitimate and illegitimate forms of interaction (which both happen and influence

the systems). Jewish law denies legal interaction in religious ritual, but contains

extensive tools to conceptualize and treat commercial and public interactions. It

promotes a view that Jewish law is autonomous and self-sufficient, but accepts

only judges that know seventy languages to the Sanhedrin. 28 It rejects foreign

norms and institutions, but adapts to changing realities and integrates new ideas,

norms and concepts.

Having outlined the legal structures and interactions, let’s say by circles

(structures) and arrows (interactions), I then propose to add the weights in this

map. What are the power relations between the legal systems? How strong, fast,

frequent, consistent and direct are the interactions? How do these interactions

compare to internal interactions? How legitimate are they? Does legitimacy

determine power?

Do both sides see the structure, interaction and power relations in the same

way? Does each of them see them as stable and as legitimate? Is there a tension

between the practical power relations between the systems and the perception of

these power relations?

The consequences of the various answers to these questions are not self-

evident. Jewish communities in Spain had criminal jurisdiction, even for capital

punishment, while communities in Germany didn’t. Rabbis in various diasporas

served as mediators in disputes between non-Jews, either according to Jewish law

28 G.J. Blidstein, “Rabbinic Judaism and General Culture. Normative Discussion and Attitudes”,

in J.J. Schacter (ed.), Judaism’s Encounter with Other Cultures. Rejection or Integration (New York:

Jason Aronson, 1997), 1-56.


or by individual application of general principles of justice. Jews did or did not

turn to non-Jewish authorities, and their actions were condoned or condemned by

the rabbis. The resulting verdicts had an impact on social and legal structures and

subsequent interactions, whether they were or were not respected in the

communities.

Social structures and interactions are intertwined with the legal ones. Social

practice drives legal coping and innovation and legal norms prevent, allow and

guide social interactions. Moreover, there are multiple social and legal structures

for different fields of law, social interactions, and maybe even social strata. Thus,

almost no romantic interactions are condoned and the legal interaction around

marriage laws is low (but not as low as for some ritual laws concerning purity or

temple worship). In other fields, like commerce and community-state relations,

interactions are acknowledged and even encouraged. Legal concepts like dina

demalkhuta were developed to govern and regulate these interactions and their

potential impacts. Interactions of religious and political leaders are sometimes

viewed differently than that of the demos. This is reflected in the attitude towards

teaching and learning languages, participating in cultural events and more. Other

structural factors are perhaps less planned or intentional. The decision of many

Jewish communities to dwell and prosper in cities, and the tendency to condone the

choice of mixed cities for settlement,29 had major impacts on the development of

social and legal interactions.

It is important to flesh out the Jewish legal stance on the issue of hierarchy

structures.30 Does Jewish law assume a hierarchy between itself and other legal

systems, either in fact or in theory? If yes, is it an enforced hierarchy, an

acknowledged fact, or accepted by one or both systems? 31

The apparent default position gives biblical law and its rabbinical jurisprudence

legal supremacy, at least in utopian, messianic, terms. This supremacy will be

achieved by political submission, by the acknowledgement of moral and legal

supremacy, or by a kind of evolution towards an ideal humanity under God,

expressed in Jewish law.

However, the opposite structure also has legitimacy in Jewish law. Rabbi

Herzog (1888-1959), the first chief rabbi of Israel, suggested that the only valid

and sustainable legal structure is one with Kelsian jurisprudential coherence.

29 B. Rosenfeld, “Where Sages Live in the Galil – Periphery v. Center”, Hebrew Union College

Annual 69 (1998), 57-103; J. Gutwirth, “Hasidism and the Urban Life”, Jewish Journal of Sociology 38

(1996), 105-113; M. Lewyn, “Suburban Sprawl, Jewish Law, and Jewish Values”, Southeastern Envt’l

L. J. 13 (2004), 1-23. 30 The scope of this article does not allow such an elaboration on each point and issue. 31 Acknowledgement of a fact gives a legal norm the power and influence of a fact, being part of

reality that shapes the context for Jewish (legal) existence and sometimes the necessary impetus for

legal creativity. Acceptance goes beyond seeing the norm as a fact, to accepting its legal nature, and

accepting the legal norm as a legal fact.


Therefore, until Jewish law gains supremacy (if at all), adaptation of Jewish law to

state and international law is a legitimate and viable option. Rabbi Hayim

Hirschenson (1857-1935) held that universal just norms trump accepted

interpretations of legal norms, changing Jewish legal practice, norms and culture. It

seems far-fetched that Jewish law, or any religious legal system, will see itself as

submitting to another system. However, the Palestinian Talmud records (or tells)

an episode of executive or judicial review of Jewish law by the Roman imperial

system that led to two revisions in Jewish law.32

Other Jewish legal opinions acknowledge or accept the existence, validity and

legal power of foreign legal systems – either in some areas (dina demalchuta) or

dimensions (law of kings, laws of the civilized nations), as separate or overlapping.

Discussions of choice of law and legal pluralism in Jewish law and thought are the

pragmatic and theoretical offspring of this recognition. Thus, religious and legal

views, as well as social and historical conditions, can create nonhierarchical

structures between the legal systems, with more or fewer interactions. In ideal

terms, Rabbi Hayim Ozer Grodzinski (1863-1940) saw these systems as separate

and Rabbi Yisraeli as partly overlapping. 33 Although striving for Grodzinski’s

ideal – in pragmatic terms, on most issues most rabbis subscribe to the latter view.

As seen in this short and partial discussion, rabbis have (or had) major

influence on these questions. It is therefore important to note their personal

biographies and the impact of their experiences, roles, and ideology on their

attitudes. Rabbis who do not participate in interactions with out-of-faith people

differ from rabbis who do. Rabbis who interact with lay “others” differ from those

which interact with political leaders or with jurists, whether legislators, lawyers or

judges.34

The influence of rabbis on the social and legal structures and interactions

depend on internal criteria like their status and authority in their communities. A

complete account of the internal regulation of interactions between legal systems

would require discussing governance and regulation throughout history and varied

conditions and communities. Such an account would detail how it is actually done

and describe the processes. The following chapter is more modest and seeks to

introduce the impact of internal processes on the interactions, and vice versa, and

to demonstrate the importance of its analysis.

32 Y. B.K. 4:3 (19b); see Deut. 4:6, H.H. Cohn, “Al Arka’ot Shel Goyim Ve’arachim Shel

Yehudim”, Mishpat Umimshal 4 (1997), 299-330; A. HaCohen, “Lama Yomru Hagoyim? Tadmit

Yisra’el Be’einei Hagoyim Keshikul Behakhra’at Hadin Vehahalakhah Bamishpat Ha‘ivri” (Israel’s

Reputation in the Eyes of the Peoples as a Consideration in Jewish Legal Decisions), in B. Lau (ed.),

Am Levadad. Moledet Upzurah (Jerusalem: Yediot Aharonot, 2006), 88-123. 33 S. Last-Stone, “Religion and State. Models of Separation from within Jewish Law”, I-Con 6

(2008), 631-661; Kaye, supra n.13. The argument is documented in my PhD, supra n.2. 34 Compare A.M. Slaughter, “A Global Community of Courts”, Harvard Int’l L. J. 44 (2003),

191-204.


Part 2: Intra-Jewish regulation of interaction and its aftermath

Internal Jewish systematic features influence external legal interactions. One

should discern which communal or legal institutions, procedures, and players

initiate and regulate interactions, and which processes regulate the internal effects

of interaction that happened (whether intentionally or not). What are the default

options and how broad is the spectrum of possibilities? For instance, is it either

rejection or integration? Or is it resistance and accommodation? 35 Can more

possibilities coexist?

One could map out the systems, institutions, and norms and present models, as

I did above. In this chapter I’ll use another method and analyze the images and

concepts36 which are used in the internal discourses about legal interactions with

other systems. Most of these images and concepts treat all three aspects of

regulation: initiation or inhibition of interaction, the regulation of interaction itself,

and the regulation of the results, the aftermath, and impact.

Will a foreign norm be treated as a tourist or as an immigrant? If as a tourist, is

it a tourist who is courted and should be respected because the norm nourishes the

social and legal economy, but will eventually leave and have no say in internal

processes? Or a tourist who is exploited and maltreated?

The image of immigration raises multiple questions: Is there a barrier between

the Jewish community and law and the outside? What is the nature and strength of

the barrier, and who stands guard? Do people pass the border clandestinely, or at

border-crossing stations? Who mans these stations – state security – cultural agents

concerned with legal purity or immigration officers? What are the immigration and

naturalization laws for norms and concepts? Are the decisions local or federal,

peripheral or central? Are occurrences of immigration isolated incidents or do

individual (norms) come with their family (or will they follow some years later

after the pioneer immigrant settles in)? As we know from immigration regulation –

there are no easy solutions.

Elon wrote that norms that contradict the basic principles of Jewish law will be

rejected in time. His choice of terms reminds one of organ transplantation. A

foreign body is inserted in the Jewish legal body because of necessity. The body

35 Compare J.J. Schacter (ed.), Judaism’s Encounter with Other Cultures. Rejection or

Integration (New York: Jason Aronson, 1997) with T. Hartman, Feminism Encounters Traditional

Judaism. Resistance and Accommodation (Hanover and London: Brandeis University Press, 2007). 36 For the analysis of concepts through history I refer to M. Richter, “Begriffsgeschichte and the

History of Ideas”, J. of the History of Ideas 48 (1987), 247-263; K. Tribe, “The GG Project. From

History of Ideas to Conceptual History”, Comparative Studies in Society and History 31 (1989) and M.

Richter and M. Richter, “Introduction. Translation of Reinhart Koselleck ‘Krise’”, J. of the History of

Ideas 67 (2006), 343-356.


either absorbs it to be its own, or – if it contradicts the system’s basic principles –

is rejected.37 Taking the image of organ transplant, we can supplement Elon’s

argument and say that keeping the contradicting norms in the system necessitates

constant treatment for immune suppression.

But the image includes more aspects which are rarely discussed. Organ

transplants are done out of life-threatening necessity, and the bodies of the donor

and recipient are distinct and separate. Transplant is initiated by the recipient or his

doctor, and they actively seek a relevant donor (interaction between legal systems

also includes “pushing” legal norms). Only experts can do the deed. Some organs

can’t be transplanted. The mere fact that an organ comes from a stranger usually

makes transplants life-threatening to the system or even impossible. In organ

transplants the transplanted organ is moved “as is”, and success depends on

acceptance by the recipients’ body. The natural reaction of the recipient is deemed

to be rejection, which the professional team has to overcome.

The image of organ transplant enlightens two aspects of norm reception:

Successful transplantation depends on taking out the original malfunctioning organ

while correctly connecting the imported organ to the existing systems in its place.

Additionally, the organ should be successfully connected to sustainment systems

(blood) and control systems (nerves) in the receiving body.

Watson’s famous concept of Legal Transplantation is broader and also invokes

the image of plant transplants.38 This practice is older, rejection factors are fewer

and weaker (although not nonexistent), it is done by many lay people (not experts),

and it is not considered dangerous to the recipient. Plant transplants are not only

done out of necessity, but also to induce variety, improve existing reality, as well

as other reasons. Cross-border transfer of plants also happens unintentionally, in

nature or by humans. In some cases, imported plants compete with indigenous ones

and become a systemic danger to variety or sustainability. Considerable recent

research in norm transplants,39 theoretical and empirical, should inform Jewish

legal research. Research regarding transplants to traditional societies deserves

special attention.40

37 M. Elon, Hamishpat Ha‘ivri (Jerusalem, Magnes Press, 1984), 56-58 (my translation, A.I.). 38 A. Watson, Legal Transplants. An Approach to Comparative Law (Edinburgh: Scottish

Academic Press, 1974). For the vast literature which followed, see

http://www.alanwatson.org/readings.htm. Watson now also uses the terms “diffusion of law” and

“acculturation”. These terms stem, respectively, from the diffusion of materials in chemistry/physics,

and from anthropology and intercultural psychology. See M. Goldstein, G. King and M. Wright,

“Diffusionism and Acculturation”, at http://www.anthropology.ua.edu/Faculty/murphy/diffusion.htm.

D. Ibbetson, “Challenges of Comparative Legal History”, Comparative Legal History 1 (2013), 1-12,

prefers “borrowing”. 39 See, e.g., J. Gillespie, “Globalisation and Legal Transplantation. Lessons from the Past”,

Deakin L. Rev. 6 (2001), 286; D. Berkowitz, K. Pistor and J. Richard, “The Transplant Effect”, Am. J. of

Comp. L. 51 (2003), 163. 40 U. Mattei, “Efficiency in Legal Transplants. An Essay in Comparative Law and Economics”,


I offer to consider the metaphor of grafting – the ancient act that strives to

combine the advantages of two plants, relying on their compatibility to each other.

It includes a minimal artful intervention in the recipient plant, and has to be

repeated for each plant. The result can overcome changes in reality that threaten

the original species, as well as enhance and optimize results (fruit). Historically,

grafting was done by trial and error, based on past performance and experience.

Many use the term adoption to describe internalization of foreign norms and

concepts. Adoption is a legal act that also stems from necessity – of parents and

children. In historical times, most adoptions happened within the community

(broadly defined), while today cross-cultural and cross-border adoptions abound.41

The process of adoption aptly calls attention to the interaction of the legal process

and the social processes. Most adoptions are heavily regulated, but some just

occur, and legal reaction is delayed. In many cases the adoption itself changes and

evolves.

Yoske (Yosef) Ahituv stressed that translation, whether as the locus of

interaction or as a phase subsequent to the interaction itself, is necessary, and even

crucial. Only translation enables an internalization of the consequences of the

interaction. Regarding a normative change he says: “An orthodox Jew can’t refrain

from using Jewish legal language, its concepts and definitions. It is the only

legitimate language in which s/he is supposed to act. Any use of another

terminology … as beautiful and relevant as it may be, will never lead to practical

applications in the orthodox community.”42

Other concepts have been suggested to enlighten the process of interactions and

movement of norms between cultures. 43 Concepts and images of objection to

interaction and rejection of its influence might also prove to be important.44

In conclusion, images evoke conceptual assumptions about the relevant laws of

nature, the nature of people and culture, structural and dynamic assumptions, issues

of motivation and control, and more. These images serve to describe an attitude to

--- Int’l Rev. L. & Econ. 14 (1994), 3; J. Dai, “On Several Problems in Legal Transplantation”, J. of Pol.

and L. 2:3 (2009), 107. 41 It is exactly intercultural/interstate adoption that has generated a vast body of literature that is

largely ignored by those using the metaphor. Of special interest are international conventions and

domestic laws which regulate international and intercultural adoptions. Another issue that might deserve

attention is open versus closed adoption. This text regarding adoption might be influenced by my

personal experience as adoptive parent. 42 Y. Axituv, “Hirhurim bidvar atid hayaxasim klapei haxilonim”, Bexavlei Masoret Utmurah

(Rehovot: Kivunim, 1990), 36 ; Compare M. Langer, “From Legal Transplants to Legal Translations”,

Harv. Int. L. J. 45 (2004), 1-64; D. Katan, Translating Cultures. An Introduction for Translators,

Interpreters and Mediators (Manchester: St. Jerome Publishing, 1999). 43 E.g. “adaptation” (usage of which is influenced by the theory of evolution), “dialogue”,

“ingestion”, “acceptance” and “reference” (for the last two, see Englard, supra n.13). 44 E.g. before interaction: “inhibition”, “aloofness”, “abstaining”; during interaction: “tension”,

“friction”; after interaction: “rejection”, “resistance”, “throwing out or throwing up”, etc.


(legal) interaction that encompasses many details. That is their power and their

main limitation – use of images gives the impression that we know the details,

which really have to be documented, modeled, simulated and analyzed.

Research has identified institutions, processes and legal concepts that are used

to initiate or restrict, to reveal or hide, to regulate and to judge legal interaction

with other legal systems. Some of the regulation is direct, such as the law against

turning to foreign courts (arka’ot) or laws that restrict social contact (when it

comes to wine, for example). Other laws influence interaction indirectly, like the

laws of eruv, that place a burden on cohabitation with strangers, or the norm which

denies non-Jews (and some Jews) credibility as witnesses in court.45

One should keep in mind that an objection to foreign jurisdiction of non-Jewish

courts might not prevent adherence to the king’s decrees and judgments. Or the

reluctance of a rabbi to adhere to local norms might not restrict the local Jewish

court or community leaders to accept or enforce it.46 Considering only interactions

between the one and the other can give a skewed impression.

Special attention is due to the legal tools that poskim use to cope with the

consequences of the interactions and to shape the internal legal reaction to them.

Regarding the interaction with international law, Rabbi Herzog used legal

enactments (takanot); Rabbis Hirschenson, Chalfon HaCohen, Aviner, HaLevi and

others used interpretations and Rabbi Shaul Yisraeli focused on custom (minhag).

Of special interest are the concepts that directly deal with incorporating the

results of the interaction in the Jewish system.47 One can reinterpret a Jewish text

to create a Jewish version of a foreign norm, or include a practice in the category

of dinim, the king’s law, or the ways of the world. One might prohibit practices as

dangerous for Jews or the Jewish community (eivah) and condone others as needed

in order to facilitate interactions (darkei shalom, ways of peace). Changes in

prevailing norms might cause some actions to be perceived as desecrating or

sanctifying God’s name.48

According to some positions, the process of reaction to interaction inherently

includes a phase of assessment or evaluation of the “other” legal system(s) as a

whole system – its fairness, legitimacy and power. Thus, dina demalkhuta includes

45 Each one of these legal regulations underwent complicated reforms, interpretations and

changes, as is well known. 46 See S. Assaf, Batei Hadin Vesidreihem Axarei -atimat Hatalmud (Jerusalem: Hapoalim,

1924). 47 E.g. J. Katz, The “Shabbes Goy”. A Study in Halakhic Flexibility, trans. Y. Lerner

(Philadelphia/Jerusalem: JPS, 1989). 48 In some cases interaction reveals that internal Jewish practices have to be (re)considered. In

other cases it is the interactions themselves that include the positive or negative potential. See Daniel

Sinclair’s article in this volume.


– according to some – an evaluation of the fairness of the foreign system, because

gazlanuta demalka has no normative power.49 Indeed, the evaluation of the “other”

system as a “civilized” system (or as not) is important and has many implications.50

Others see this evaluation as norm-specific or as specific to each situation, for

example equity is presented as a normative sieve to evaluate foreign norms.51

The last part of regulation of interactions and reaction to it, is the phase of

legal reaction, partly discussed above. If an external norm is enforced on the

Jewish community, poskim can flag this norm as foreign and externally imposed.

Thereby they ensure it will not be internalized. In other cases poskim might hide

the foreign origin of a norm in order to enable internalization.52 These processes

are sometimes publicly displayed, but at other times they are purposefully hidden.

All these concepts, processes and institutions deserve separate attention, and

most have been dealt with in existing research. It seems however, that previous

studies have taken one of two paths: either to focus on one legal issue/concept,

historical time or legal institution, or to assess the total interaction, using

metaphors, and supplement it with some examples. I think that both approaches are

insufficient and inadequate for treating the big questions and tend to skew the

answers. Further, the interaction between the broad view and practical mechanisms

are mostly left out of this research. More research is needed into when and how the

Jewish community and poskim engage in an internal (legal) discourse about the

management of interactions and their aftermath. Such research should also ask

when and how Jewish players and communities engage other communities and

legal systems to discuss interactions. The impact of these discourses, or the lack of

them, on the interactions and on their consequences, creates circular feedback

mechanisms that deserve attention.

Part 3: From a static dyadic interaction toward dynamic multiplayer interactive

complex interactions

No interaction of the Jewish and any other legal system can be viewed in

49 S. Shilo, “Kshedina Demalchuta Eino Dina”, Jew. Pol. Stud. Rev. 10 (1998), 69-80; M.

Washofsky, “Halakhah and Political Theory. A Study in Jewish Legal Response to Modernity”, Modern

Judaism 9:3 (1989), 289-310. 50 See, e.g., the Me’iri about religions (see M. Halbertal, Between Torah and Wisdom. Menachem

ha-Meiri and the Maimonidean Halakhists in Provence [(Jerusalem: Magnes Press, 2000]); Arukh

Hashulxan and Rabbi Feinstein about modern political and legal systems. See M. Broyde, “Informing

on Others for Violating American Law. A Jewish Law View”, J. Halacha & Contemp. Soc’y 41 (2002),

available at www.jlaw.com/Articles/mesiralaw2.html. 51 Shilo, supra n.22. 52 These are just examples. Poskim might choose other paths, as they indeed do under certain

conditions.


isolation.53 Jewish law, players and communities interact with multiple players in a

complex system.54 Interactions are seldom cleanly dyadic. The “us-them” paradigm

tends to group all “others” as one “other”, and flatten and simplify the multifaceted

richness. Multiple players can actively participate in a direct complex interaction.

However, even when the interaction is seemingly between the Jewish and one

other legal system, other players and systems participate and influence the

ostensibly detached dyadic interactions in multiple ways. Thus, church-state

interaction of the Jewish system should be represented as in a multiplayer structure

(figure 3).

In almost every case, the Jewish side of the interactions includes many

communities, institutions, leaders and legal opinions. 55 Therefore, the “Jewish

legal system” which interacts with “other” systems actually is a matrix of Jewish

communities, but is represented in the multiplayer system as one “circle”.

Figure 3: Multi-Player System

Some interactions occur only on the edge of the Jewish matrix, by institutionalized

representatives of the Jewish entity (or through marginalized members 56 ).

However, many interactions occur from, by and with multiple components of the

Jewish matrix, whether simultaneously or not. The influence of the interactions

53 This is certainly true in the contemporary world. However, as other articles in this volume

show, this insight might have implications for premodern times as well. 54 Thus the Talmud’s context is not only Roman (e.g. Boaz Cohen’s work) nor Greco-Hellenistic

(e.g. Lieberman, Neusner) but also Iranian (e.g. Elman and S. Secunda, The Iranian Talmud. Reading

the Talmud in Its Sasanian Context (Philadelphia: University of Penn. Press, 2013). 55 Assaf, supra n.46; J. Katz, Tradition and Crisis (New York: NYU Press, 1993). 56 Hegemonic representatives and marginalized members are active participants in interactions

between social and legal systems. Sometimes the locus of external interaction is the only place where

these internal actors can meet, as is evident in the practice of UN expert committees.


with others on the Jewish matrix is by and through the intra-Jewish interactions

between those components that interacted with the outside (and those that didn’t).

Neither is the “outsider”, with whom the Jewish matrix interacts, a simple

coherent and monotonic entity. Even if it was – it never exists in isolation. There

are always multiple others (players, communities and norms) beyond the “Jewish”

and “other” – that systemic analysis should take into account. More often than not,

Jewish culture simultaneously interacts with multiple normative, cultural and

political forces. Careful analysis can uncover the dynamics and effects of these

multiple complex interactions.

It is impossible and unsatisfactory to adjust to such multiplicity by just

accounting for several “us-them” relations, under the present essentially bilateral

research paradigm. In short, individualism, universalism and relativist

postmodernism challenge such a solution. Multiple identities, transnational

endeavors and multiple frames of reference prevent it. Multiple interconnected

interactions, not necessarily mutually compatible nor congruent – shape the

interactions of the Jewish legal system. Contemporary developments in history,

sociology, cognitive psychology and legal studies all suggest the necessity of a

paradigm shift.

Complex interactions between systems are better presented as networks, and

not as simplified Venn diagrams. Consider that the left side in the following

diagram represents the matrix of Jewish communities, and the interaction of

interest is the single interaction with the legal system pointed out by the arrow.

Figure 4: Networks57

Networks such as this are a more realistic description of reality. Indeed, network

analysis is an important emergent tool in social sciences and legal studies. 58

57 Taken from http://en.wikipedia.org/wiki/Social_network (accessed 28 April 2013). The entry

provides examples and graphic representations for the following paragraphs. 58 S.P. Borgatti, A. Mehra, D.J. Brass and G. Labianca, “Network Analysis in the Social

Sciences”, Science 323 (2009), 892-895. S.P. Borgatti, M.G. Everett and J.C. Johnson, Analyzing Social

Networks (London: Sage Publications, 2013), includes software tools; also J. Scott and P.J. Carrington

(eds.), The SAGE Handbook of Social Network Analysis (London: Sage, 2001).


System analysis places greater emphasis on the relations/interactions than on the

individual components of the system.59 I’ll return to it in the next section.

I will now add another layer of complexity to the analysis of interactions

between legal systems. Any structural mapping is a frozen snapshot. Relations and

interactions are dynamic and change over time and they should be researched as

such. Moreover, some of the dynamic processes are recursive, and create multiple

feedback loops. Current interactions are influenced by previous ones. Internal

processes in each system activate or inhibit interaction, while other processes are

activated by interactions. Interactions may influence systems and structures, as well

as be inhibited or enhanced by them. The sum of all structures and interactions, as

they develop and change over time, are the building blocks of each specific

interaction at a specific time. The organization of these blocks depends on the

processes, forces and circumstances as much as they depend on the personality,

tradition and intent of the participating parties. 60 The changes over time can

activate or move systems as whole entities, unlike the frozen image in figure 4.

Dynamics can also influence the structure of the systems, threaten their existence,

create new ones, and certainly restructure their relations and future interactions.

Figure 5: Dynamic Interactions

Relations are interactions that create temporal or (semi)permanent order in

complex networks of interactions. Coalitions and co-operations, enmity and

competition, support and resistance, are special and important kinds of interactions.

They shape the system, raise expectations, and enable some certainty and

predictability.

However, the permanent and situational interact. As a rule a rabbi might not be

interested in relations with X (e.g. Catholic Church, extreme Muslim clerics). For

the sake of the need to maintain other international relations or in order to petition

59 For some examples of research see H. Whitney, “Social Seen. Analyzing and Visualizing Data

from Social Networks”, http://uxmag.com/articles/social-seen. 60 H.C. White, Identity and Control. A Structural Theory of Social Action (Princeton: Princeton

University Press, 1992).


the state to prevent the gay-pride parade in Jerusalem, he will cooperate with his

fundamentalist opponents. In some cases, such a coalition might influence a legal

worldview, shape relevant data, skew available options, and impact decisions or

argumentations.61

The dynamics in social networks, especially of legal systems, are also heavily

influenced by incentives and sanctions. Berman showed that the most

fundamentalist sects react to economic incentives. 62 A vast body of literature

showed that sunshine methods, soft power and other methods influence compliance

with norms, shape coalitions and interactions, and more.63 Some incentives are

incidental or are created as unintended side effect of previous interactions. Other

incentives are inevitable, resulting directly from the situation, the interaction and

the available options. However, the most interesting incentives are the intentional

ones, offered and denied before, during, and in the aftermath of interactions.

Incentives are strategically employed by various players to shape, initiate,

strengthen or restrict future interactions, options, results and argumentations.64

I’ll give a trivial, but important, example. One of the modes of interaction

between the Jewish legal system and the enlightened nation state’s legal systems at

the birth of modernity was one of resistance, seclusion and stability.65 However,

the incentives set by internal and multiple external systems over time heavily

influenced subsequent interactions and their internal consequences. The influence

of the reduced cost of a private exit from the community on communal and legal

change can’t be denied. It influenced the internal strategies of cultural, legal and

communal dissent and opposition. Therefore incentives have influence even when,

de Jure, they are resisted.

61 On nonstate actors, see, e.g., M. Noortmann and C. Ryngaert (eds.), Non-State Actor

Dynamics in International Law. From Law-Takers to Law-Makers (Surrey: Ashgate, 2010). I suggest to

read the NSA literature in two ways: (1) Jewish law and communities as NSA; (2) other players as

NSAs, while regarding Jewish law as a state-like law. 62 E. Berman, Radical Religious and Violent. The New Economics of Terrorism (Cambridge: MIT

Press, 2009). This book includes an extension of his earlier “Sect, Subsidy and Sacrifice. An

Economist’s View of Ultra-Orthodox Jews”, Quarterly Journal of Economics 115 (2006), 905-953. His

analysis is supported by M. Friedman’s research, available at www.biu.ac.il/SOC/so/mfriedman.html. 63 See, e.g., E. Brown-Weiss and H. Jacobson, Engaging Countries. Strengthening Compliance

with International Environmental Accords (Cambridge: MIT Press, 2000). 64 Martha Minow, supra n.24, at 9, summarizes Robert Cover as saying: “Competing normative

orders cannot be coordinated without doing violence to at least one of them.” This is one of the reasons

that the worldview presented in the text is not popular in Jewish law and Jewish legal research.

However, coordination can come into being through bottom-up self-organizing processes, that are less

violent than top-down or dominance ones. 65 Of course, despite the carefully nurtured image of ideal stagnation – nothing stayed the same.

Communal autonomy was restricted, judicial powers taken, communal roles were transferred to the state

and much more.


Part 4: From chaos to order. System, process and complexity theory and analysis

Many would not deny the factual accuracy of the above description. It is its

relevancy to Jewish law and Jewish legal research that is contested. It is argued

that Jewish law, and its interaction with other legal systems, is mainly influenced

by internal, permanent, clear and eternal guidelines. All the described complexity

doesn’t, and can’t, influence these basic premises. While it can interest sociologist

and historians, it is irrelevant to Jewish law. In addition, the proposal above

describes Jewish law in relation to its interactions with other legal systems as

chaotic – but poskim, community members and leaders do not perceive or

experience it as such. Therefore they conclude that the description must be

irrelevant to understanding Jewish law. A detailed discussion of these objections

exceeds the present article,66 but I shall undertake a partial engagement of these

arguments.

Methodologically, three objections are offered: 1) In order to understand Jewish

law, one tries to find generalizations, rules – that are predictable and testable. A

mere description of all details is a restatement of facts, and doesn’t constitute an

academic analysis or theory. With so many variables, one can prove anything, and

therefore nothing. The explanatory and heuristic powers of the description and

models seem meager. Research in the proposed paradigm will tend to be either

insignificant or the expression of academic hubris. 2) The proposed method is

impractical because one can’t encompass so many details in a coherent and

complete model; 3) one can’t derive meaningful, significant and refutable

conclusions from a chaotic reality.

Order I: Systems, networks and processes

Twenty years ago, in reaction to a discussion of legal pluralism with an

emphasis on Jewish law, Teubner suggested seeing (Jewish) law as an autopoietic

system – self-contained, self-sustainable and closed.67 Preservation of the system is

a dominant feature even (or especially) in extreme conditions. The need for

preservation can lead to autonomy or dependence, cooperation or competition,

imperialism or withdrawal, evolution or stagnation.68 The driving power of legal

innovation is necessity. System dynamics – including players, institutions,

experience, environment, context, possibilities, incentives and outcome matrixes –

66 For one important part of this discussion, see my analysis of psikah, supra n.2. 67 G. Teubner, “Two Faces of Janus. Rethinking Legal Pluralism”, Cardozo Law Review 13

(1992), 1443-1462. (As a reaction to the 1991 volume of Cardozo Law Review (12), entitled “Legal

Pluralism”). Idem, Law as an Autopoietic System (Oxford: Blackwell, 1992). 68 Sometimes preservation demands autonomy and separation, but more often the need will lead

to interaction and adaptation.


determine the outcome.69

Subsequent literature recognized (Jewish) law’s interaction with other systems

as a system of systems, leading scholars to consider using system analysis to study

it.70 Recognizing the systems’ and the interactions’ dynamism led researchers to

consider using process analysis. While system analysis was derived from theory,

and somewhat marginalizes the human factor in the analysis, process analysis of

law stems from anthropological and ethnological lines of research, 71 and has

expanded to various forms. 72 These approaches to legal studies capture two

prominent features of a system.

I didn’t mention the research paradigms in order to promote one approach over

others. In the present stage, multiple experimentations with these methods are to be

commended (Additional approaches are the actor-network paradigm 73 and

praxiology. 74 Closely related methods, in other fields in humanities and social

69 See also P. Goodrich, “Anti-Teubner: Autopoiesis, Paradox and the Theory of Law”, Social

Epistemology 13 (1999), 127-214; A. D’Amato, “International Law as an Autopoietic System”, in R.

Wolfrum and V. Röben (eds.), Developments of International Law in Treaty Making (New York:

Springer, 2005), 335-399; N.T. Lyons, “Autopoiesis. Evolution, Assimilation, and Causation of

Normative Closure”, in T. Kaye (ed.), Law, Justice, and Miscommunications. Essays in Applied Legal

Philosophy (Lake Mary: Vanderplas Publishing, 2011). 70 Although highly theoretical in nature, system analysis has been applied to law. See C.

Maechling, “System Analysis and the Law”, Virginia L. Rev. 62 (1976), 721-736; I. Maher,

“Community Law in the National Legal Order. A Systems Analysis”, J. of Common Market Studies 36

(1998), 237-254; M. Brus, “Systems Analysis of International Law. An Inquiry into Its Application”,

http://webarchive.iiasa.ac.at/Admin/PUB/Documents/WP-89-105.pdf (IIASA working paper, 1989).

For a discussion of the normativity of system analyses see Netherlands J. of Legal Phil. 40(3) (2001,

Theme issue). For a recent application see L. Viellechner, “Constitutionalism as a Cipher. On the

Convergence of Constitutionalist and Pluralist Approaches to the Globalization of Law”, Goettingen

Journal of International Law 4 (2012), 599-623; K.H. Ladeur, “The Theory of Autopoiesis as an

Approach to a Better Understanding of Postmodern Law”, EUI working paper,

http://cadmus.eui.eu/bitstream/handle/1814/148/law99_3.pdf?sequence=1. 71 S.F. Moore, Law as Process. An Anthropological Approach (London and New York:

Routledge, 1978). 72 See the classic M.S. McDougal, “Law as a Process of Decision. A Policy-Oriented Approach

to Legal Study” (1956), http://digitalcommons.law.yale.edu/fss_papers/2464; and recently J. MacLean,

Rethinking Law as Process. Creativity, Novelty, Change (London and New York: Routledge, 2012). 73 J. Law and J. Hassard (eds.), Actor Network Theory and After (Malden, MA: Blackwell, 1999).

In International relations see C. Bueger and F. Bethke, “Actor-networking the ‘Failed State’ – An

Inquiry into the Life of Concepts”, Journal of Int’l Relations and Development (advance online

publication, www.palgrave-journals.com/jird/journal/vaop/ncurrent/abs/jird201230a.html, 18 January

2013). For an application in law see D. Cowan and H. Carr, “Actor-Network Theory, Implementation,

and the Private Landlord”, Journal of Law and Society 35/1 (2008), 149–166; For a recent excellent

overview see R. Banakar and M. Travers (eds.), Law and Social Theory, 2nd ed. (Oxford: Hart

Publishing, 2013): ch. 10 for actor-network theory, section 2 for system theory and especially chs. 11

(empiricism), 15 (legal pluralism) and 19 (comparative sociology). 74 B. Dupret, “Legal Pluralism, Plurality of Laws, and Legal Practices. Theories, Critiques, and

Praxiological Re-specification”, European Journal of Legal Studies 1 (2007), at

http://www.ejls.eu/current.php?id=1; see also Rosenak’s article in this volume.


sciences, should be considered too.75). My main goal is to show that accounting for

all the details does not lead to unmanageability or chaos. The multiplayer system

has a structure, and works through processes which are relatively stable,

predictable and manageable.

To sum up the present premises, Jewish law is a system and one can map all

external relations with multiple players, and all internal structures and processes

that are involved, in a dynamic fashion.76 This system is a metanetwork. It includes

many types of nodes, many types of links,77 and many (superimposed) levels. Any

legal process, including those which involve legal interactions, results in legal

outputs which derive their legitimacy from using deeply entrenched processes

which engage the system as a whole in a semi-automated way.

This system constantly changes. Big changes occur and are inherent to the

system’s existence. However, most changes are small and insignificant for most

interactions. Most environmental and contextual influences are relatively constant,

as are most internal norms, institutions and interactions. The accumulated impact

of these stable factors are responsible for the fixed, stable and predictable image

and perception of (Jewish) law. However, when reality changes (whether

sociologically, technologically, or in changes which relate to interactions like

relations and incentives), the same legitimate internal process will sometimes

deliver an innovative result.

The dynamic multiplayer system of systems doesn’t grasp the full picture

because, as hinted throughout the text, it doesn’t account for the complex nature of

the phenomenon. 78 Complex dynamic systems have multiple features that

distinguish them from simple multiplayer systems,79 and are relevant for Jewish

legal research.

Order II: Complexity

In complex systems individuals and institutions are interconnected in various

75 In literary theory see I. Even-Zohar, “Polysystem Studies”, Poetic Studies 11 (1990), 1-96 (esp.

85ff.), see http://www.tau.ac.il/~itamarez/works/books/ez-pss1990.pdf. 76 Actually there are multiple mappings: social, legal and institutional; practical and theoretical;

real and perceived; in action and in books. The maps are dynamic and there are maps of the dynamics of

the maps. 77 Some links exist in the system not in the sense that there is/was an interaction (or not), but as a

probability. The chance for an interaction, or for an interaction to come to an end is meaningful for the

interaction and the parties. The size of the probability matters too. 78 Complexity theory employs mathematical models. For application to social sciences and law

see D. Byrne, Complexity Theory and the Social Sciences. An Introduction (London and New York:

Routledge, 1998). 79 Most features that constitute complex systems are relevant to legal systems. It is especially

relevant to the Jewish legal system and to its interaction with other legal systems.


degrees within the system, with other systems, and with their environments.80 Each

decision or action by any individual, community, or institution may affect all

related individuals and systems in varied ways. Connectivity creates

interdependence, and both enhance and balance each other to facilitate change or

to reach equilibrium states.

Such systems are multidimensional. Social, cultural, technological, and

political dimensions interact and influence each other. However, these

characteristics do not lead to wasting energy or goal-less processes. These features

enable to constantly adapt and evolve and thus create new order and coherence,

without central planning. “They can create new ways of structure, organization and

work. They can change their rules of interaction; act on limited local knowledge,

especially in functions like self-repair and self-maintenance”.81 This feature of

self-organizing systems has been demonstrated in biological systems and in

artificial intelligence.

It is true, however, that dynamic and reacting systems are rarely at rest. In most

cases these are movements around the equilibrium points and next to them.

However, “In far-from-equilibrium conditions, non-linear relationships prevail, and

a system becomes inordinately sensitive to external influences. Small inputs yield

huge, startling effects.” But here too – after the big effect, the system quickly

calms down around a (new) equilibrium.82 Feedback mechanisms that drive change

(positive – reinforcing – feedback), and maintain stability (negative – balancing,

moderating or dampening – feedback), regulate the dynamic system.83

At each time and context multiple options exist. The options and the

number of options are constrained by each entity and its context. Constraints and

feedback mechanisms allow a reasonable ability to function quickly and at low

costs despite the complexity. However, constraints also invite innovation – forcing

changes in multiple parameters of the system, creating ever-changing spaces of

80 The following paragraphs are loosely based on E. Mitleton-Kelly (ed.), Complex Systems and

Evolutionary Perspectives on Organizations. The Application of Complexity Theory to Organizations

(Philadelphia: Elsevier, 2003), (citations up to note 86 below are from ch. 2: idem, “Ten Principles of

Complexity and enabling infrastructures”, at 23-50): “Connectivity may be formal or informal, designed

or undesigned, implicit with tacit connections or explicit [...] determines the network of relationships

and the transfer of information and knowledge and is an essential element in feedback processes” (29). 81 Ibid., 39. 82 Ibid. One result is that complex systems of human activity have emergent properties as a whole

entity, “which derive from its component activities and their structure, but cannot be reduced to them”

(ibid, 42). 83 Inhibiting feedback loops are important for maintenance. With the collapse of feedback

processes, social systems collapse. Creating new orders in unstable and chaotic environments mostly

starts by the activation of new feedback loops. Actually, there are multiple interacting feedback

processes in complex systems, and we need to “rethink the nature of feedback in this context to

recognize multi-level, multi-process, non-linear influences. The eventual feedback between

macroscopic structures and microscopic events: macroscopic structures emerging from microscopic

events would in turn lead to a modification of the microscopic mechanisms” (ibid., 43).


possibilities. These spaces are explored by experimenting with the multiple

options. When the entity self-organizes, chooses or is pushed to one of the options,

the choice becomes part of the history that will henceforth be part of its self.

Indeed “complex systems are dissipative – their history is irreversible”. When

choices and circumstances lead to path-dependence and ever-increasing returns, the

system reaches an equilibrium, and a new order of coherence is created.84

Interconnectivity and interdependence cause actions in one community to alter

the landscapes of its neighbors. The altering environments restrict the possibilities

of their neighbors and influence their internal selection processes. These processes

are recursive and cause communities to co-evolve without any direct influence or

enforcement. Simple influence, compliance or adaptation are the exception, not the

rule, and actions in complex systems can have planned as well as unsuspected

consequences. This feature is a crucial for the experience of independence of

Jewish law in the complex matrix of interactions. Direct influence and total

obedience are rare, and will indeed have little lasting influence on Jewish law.

However, in most cases the Jewish legal decision is reached within a restricted

range of freedom from a spectrum of legitimate relevant viable solutions.

Therefore, the result is internal and legitimate, and not external and imposed,

although not independent of its contexts.

Seeing the systems and structures, the processes and the overall complexity in

fruitful action, enables seeing the interactions between the systems in their full

beautiful splendor. They circumvent the need to simplify too much, to edit out or to

focus on a manageable part” of the issue, 85 offering a balanced view which

resonates the maxim attributed to Einstein: “Everything should be made as simple

as possible, but not simpler”. 86

I argue that most poskim and Jewish legal researchers experience Jewish law as

a complex system in a complex environment. They perceive Jewish legal processes

as part of a scale-invariant complexity – complexity applies at all scales, from an

individual (part) to a whole system as well as to systems at different scales.87 The

Talmud regards the Mishnah, and itself, as complex. The Tosafists and many

Responsa writers saw the Talmud, all Jewish legal materials, and their own

writings as part of such a magnificent complex multisystem. Rabbis saw (and see)

84 The quote in the text is from p/41. See also ibid., 44: “These characteristics of a human

organization, seen as a complex evolving system, work together to create new order and coherence, to

sustain the organization and to ensure its survival, particularly when its environment or social

ecosystem is changing fast.” 85 There are good reasons to focus on a part, dimension or issue in the interaction, including

methodological reasons. 86 The attribution is debated, see http://quoteinvestigator.com/2011/05/13/einstein-simple/. 87 In its most impressive form, a complex system contains fractals – the same patterns recur at

each scale.


the Jewish people and law as a polycentered complex system of communities,

norms and legal processes which had complex interactions with numerous

contexts. Every psikah is a complex question that is formulated by social and

cognitive processes and arises from the interaction of people, community and

reality. It is considered in a cognitive process in the posek’s mind – where the

opinions of leaders, poskim, external players and others are taken into

consideration. 88 The issues at hand might be complex in and of themselves.

However, even in relatively “simple” cases, sources, customs, traditions,

possibilities roam in the posek’s mind, who is imbedded in his community, which

is imbedded in a matrix of contemporary communities. He is also imbedded in a

community of other poskim who are in turn together imbedded in multigenerational

Judaism and in interactions with other social and legal systems.

This view of the Jewish legal system is actually not strange. It is indeed easy to

see, even if it is very difficult to hold all the complexity in mind at once. It is also

hard to disentangle a process, system or aspect – and see it simultaneously as a

separate occurrence (using the relevant methodology) and as part of the greater

matrix. This explains the present state of art in research, and shows the potentials

of applying the methods and insights from legal research to the issue at hand.

In my PhD research I found a broad spectrum of legitimate Jewish legal

positions regarding Jewish law’s attitude towards international law, using

numerous arguments and wide variations of Jewish legal concepts. Moreover, I

found multiple definitions and understandings of international law. Different

poskim focused on different questions and subsequently used a variety of Jewish

legal tools to cope with this question. In essence I found that Jewish law is in the

preparadigmatic stage as presented by Thomas Kuhn.

Facing this literary corpus, with its internal textual and conceptual complexity

and it past interactions with communal and external reality, I hold that no simple

answer regarding the attitude/s of Jewish law towards international law is

defendable. I found that even changing the title from the singular “attitude” to the

plural “attitudes” is not enough. Jewish law’s attitude regarding international law is

much more than a list of the stated opinions and an analysis of the accompanying

arguments. It is a complex matrix of interactions, coalitions, oppositions, past

experiences, and future expectations – of worldwide communities, various

positions regarding the state of Israel and regarding international institutions –

88 Israel-Vleeschhouwer, supra n.2. For strategic considerations see A. Hollander, “Strategic

Halakha. Jewish Legal Decision Making Influenced by Various ‘Players’ in the ‘Public Playing

Ground’, and Wanting to Influence Them”, Tehilat Olam: Central Issues in Law of State, Tehila

daughter of Yitzhak memorial volume (planned 2014). For internal peer influence, see his “The

Relationship between Halakhic Decisors and their Peers as a Determining Factor in the Acceptance of

their Decisions — A Step in Understanding Interpeer Effects in Halakhic Discourse”, Jewish Law

Association Studies XV (2010), 96-108.


together with Jewish political thought, the history of Jewish law with prestate and

state law, utopian views regarding the world and humanity, and much more.

Lack of enough data and other reasons prevented me from placing all the

materials, facts and analyses in a formal complex model (more about that below)

that could really enable asking new questions and answering them.

Notwithstanding, my excursion to system analysis and process analysis and my

exposure to complexity theory (mainly in biology), gave me tools to give some

interesting answers and to asses and analyze answers derived from other

paradigms.

I’ll demonstrate the heuristic value by considering the importance of relations

(e.g. coalitions) between social and legal entities on Jewish law. In times and on

issues where religious law cooperates with state law against international law, the

Jewish legal position regarding international law will be more critical than when

religious law cooperates with international law and organizations to confront the

state. Note that the structure of relations does not define the halakhic position, nor

coerces it from “outside”. The structure it is expressed as internal, relevant,

halakhic considerations.89

Structure, incentives and interactions directly influence outcomes in issues

under controversy in Jewish law. The proposed analysis has heuristic value to

explain apparent tensions between the prevailing hegemonic Jewish legal position

and its consequences (internal or external, legal or social) and justifications (legal,

social and political). The analysis explains and may help to predict when and how

the Jewish legal decision process will occur.90 The analysis can also explain and

predict some seeming inconsistencies in the literary corpus.91

Concluding thoughts

The approach presented above is necessary both to better describe the

interaction of Jewish and other legal systems, and in order to analyze them.

Analysis of single cases, issues and interactions within this framework will

89 A similar analysis can be offered for many others issues, like non-halakhic wills (Rabbi

Feinstein’s position, Iggrot Moshe, EH 1:104 and the subsequent literature); the attitude towards

democracy (J. Blidstein, “Jewish Law ad Democracy” [Heb.], Democratic Culture 2 (2000), 9-40) or

the state of Israel and its laws. For example, regarding obeying military orders, see my “Jewish Legal

Attitudes towards the Use of Force”, Law and Business (2014, forthcoming, available from author). 90 A system analysis can predict a slow or quick process to reach a decision and a consensus

around the decision (an equilibrium); the relative influence of actions, people and sources on the

process, etc. 91 E.g. I pointed out the complexity of adapting legal concepts to international law, taking into

account the influence it might have on the way the concept can be used in other contexts, the way the

usage of the concepts might be understood by Jewish and other players, the impact of the concept on the

range of halakhic choice, etc.


enhance and enrich these important contributions. Keeping the complexity in mind,

and utilizing system and process analysis together with existing paradigms, can

enrich existing research considerably. System analysis and process analysis can be

conducted on the existing data, but in order to construct a sufficient and

comprehensive complex model, and utilize the advantages of complexity, much

more data is needed. However, the characteristics of complexity are so evidently

relevant that one can employ relevant insights even before formal modeling,

computing and predicting is possible.

When this field of research will mature, research of these complex systems will

be able to pose new questions and give new answers to old ones. I suggest to focus

on identification of multiple possible states of equilibrium and the processes and

conditions which led to one point over others (or in contemporary cases processes

and conditions which may lead to one or the other). Another focus could be

processes and conditions which enable transitions between equilibrium points

(legal change and innovation) and ways to predict and (partially) control these

dynamics.92 Modeling the systems, interactions, literary corpus together with the

legal and communal processes will enable many more theories to arise and be

tested.

My proposal calls for collaborative efforts that can generate data in ways that

are conducive to more complex research. Case studies, studies of Jewish legal

figures, historical analysis and more, all retain their importance. However,

researchers and publication venues should be encouraged to facilitate secondary

use of these findings in larger, aggregative projects. Facilitation might include

tagging of classical sources in databases, connecting databases, and creating

enhanced electronic forms of publication (articles and monographs) that will

connect sources.93

Since first formulating this project and methodology, steps towards digital legal

research have been taken, 94 and the “Digital Humanities – Israel” project has

recently been launched, 95 advancing these efforts regarding Jewish studies and

texts in Hebrew. Any Jewish digital legal studies of interaction of Jewish and other

legal systems will have to be imbedded in both digital humanities and digital legal

studies.

92 As stated above, I don’t think that one can predict the change of a Jewish legal position; one

can, however, predict when a current equilibrium will become unstable, define other points of

equilibrium, and assess the probabilities of the various paths to the same and the alternative points of

equilibrium under various conditions. 93 In a recent presentation (European Association of Jewish Law, Berlin, November 2013), I

promoted this “digital Jewish legal studies” approach. I will discuss it in a separate article. 94 See, e.g., http://computationallegalstudies.com/tag/network-analysis/. 95 See http://www.thedigin.org/digital-humanities-israel/; and for the activities, see

https://www.facebook.com/groups/DHIsrael/.


The project I propose requires work in multidisciplinary teams.96 It will need to

utilize strong, innovative and multiple tools. In time, many of the existing tools

will be tested and adjusted to better fit the Jewish legal system in its environments.

A community of researchers, schooled in the methodologies, will have to assess

and certify these contributions. Cooperation with an existing journal or the creation

of adequate electronic forms of publications are needed to explore this direction of

research. As in any paradigm shift, the fate of the proposed direction relies on its

merits and on its communicability.

The suggested shift has major implications for our approach to Jewish law and

within Jewish law and thought.97 This approach has theological implications,98 as

well as implications for Jewish political theory, sociology, history and philosophy.

These will have to be fleshed out separately and in various combinations, over

time.

The complexity paradigm for approaching the interaction of Jewish and other

legal systems has been offered here in a tentative and incomplete fashion. Writing

about complexity in a two-dimensional static text and complying with the norms of

linear reasoning is very challenging. This attempt should be viewed as an invitation

for discourse and controversy – on both the merits and the best ways to converse

about these issues. Indeed, aside from trying to convince readers of the claims in

this article, I have tried to open a process that will shift incentives which will in

turn lead to a systemic shift and ultimately institutional support for this endeavor in

the matrix of research on Jewish law.

96 Another encouraging and important relatively new research group is that of comparative legal

history. See http://www.hartjournals.co.uk/clh/sample.html. 97 Complexity and computational approaches don’t void research from questions of values and

justice but enhance these questions. Compare S. Douglas-Scott, Law after Modernity (Oxford: Hart

Publishing, 2013). 98 In short: One could argue that the model implies a theological shift. The image of God itself

(or of God’s Torah) seems to shift from a monotonic hierarchic unified oneness, to one network – that

includes non-hierarchical multiplicity, diversity and dynamics.

systemic, dynamic and complex analysis of the interaction between Jewish and other legal systems

Documents

Transcript of systemic, dynamic and complex analysis of the interaction between Jewish and other legal systems