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).
4 Jewish Law Association Studies XXIV: The Netanya Conference Volume
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”.
Wygoda: State Tort Liability and the “Discretion” of Jewish Law 5
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.
6 Jewish Law Association Studies XXIV: The Netanya Conference Volume
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.
Wygoda: State Tort Liability and the “Discretion” of Jewish Law 7
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.
8 Jewish Law Association Studies XXIV: The Netanya Conference Volume
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.
Wygoda: State Tort Liability and the “Discretion” of Jewish Law 9
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.
10 Jewish Law Association Studies XXIV: The Netanya Conference Volume
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.
Wygoda: State Tort Liability and the “Discretion” of Jewish Law 11
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.
12 Jewish Law Association Studies XXIV: The Netanya Conference Volume
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.
Wygoda: State Tort Liability and the “Discretion” of Jewish Law 13
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”,
14 Jewish Law Association Studies XXIV: The Netanya Conference Volume
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.
Wygoda: State Tort Liability and the “Discretion” of Jewish Law 15
(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.
16 Jewish Law Association Studies XXIV: The Netanya Conference 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.
Wygoda: State Tort Liability and the “Discretion” of Jewish Law 17
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.
18 Jewish Law Association Studies XXIV: The Netanya Conference Volume
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).
Wygoda: State Tort Liability and the “Discretion” of Jewish Law 19
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).
20 Jewish Law Association Studies XXIV: The Netanya Conference Volume
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.
Wygoda: State Tort Liability and the “Discretion” of Jewish Law 21
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.
22 Jewish Law Association Studies XXIV: The Netanya Conference Volume
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.
Wygoda: State Tort Liability and the “Discretion” of Jewish Law 23
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.
24 Jewish Law Association Studies XXIV: The Netanya Conference Volume
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).
Wygoda: State Tort Liability and the “Discretion” of Jewish Law 25
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.
26 Jewish Law Association Studies XXIV: The Netanya Conference Volume
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.
Wygoda: State Tort Liability and the “Discretion” of Jewish Law 27
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.
28 Jewish Law Association Studies XXIV: The Netanya Conference Volume
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/.
Wygoda: State Tort Liability and the “Discretion” of Jewish Law 29
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.
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