Adiel Schremer’s working paper, Toward Critical Halakhic Studies. Here is the abstract:

Current scholarly study of Jewish law concentrates either on a description and analysis of halakhic doctrines, or on the jurisprudential theories underlying the thought of halakhic thinkers. Questions such as: “how halakhic decisions are actually produced?”, and “what are the various constraints operating in halakhic decision-making?”, usually receive very limited attention in the study of Halakha. This paper calls for a shift of focus, from the “theoretical” (whether doctrinal or philosophical) to the “practical”, so that the halakhic process will occupy a central role in the study of Jewish law.

The emphasis on the need to study the halakhic process was also stated by Marc B. Shapiro in idem, Review: “Jewish Obligation and the Modern World: Rabbi Hayyim Hirschenson and His Approach to Modernity” by David Zohar,” Edah 5,1 (2005). (here)

By way of criticism, or better, suggestions for future researchers, let me note that while Zohar’s book is certainly where all future analysis of Hirschensohn’s halakhic thought will begin, there still remains a good deal that Zohar has not examined. Zohar’s interest is primarily in Hirschensohn’s conclusions, but the process whereby Hirschensohn reached his conclusions is also fascinating. The way Hirschensohn is able to work within the halakhic process and his most original method of halakhic argumentation still remain to be analyzed in a comprehensive fashion.

Endicott on Legal Interpretation:

Timothy A.O. Endicott (University of Oxford – Faculty of Law) has posted Legal Interpretation (Routledge Companion to Philosophy of Law, A. Marmor, ed., Routledge, 2012) on SSRN. Here is the abstract:

The focus of this work is the role of interpretation in ‘legal reasoning,’ defined to mean ‘finding rational support for legal conclusions (general or particular)’. My argument is that each of the following aspects of legal reasoning need not involve interpretation: 1. Resolving indeterminacies as to the content of the law; 2. Working out the requirements of abstract legal provisions; 3. Deciding what is just; 4. Equitable interference with legal duties or powers or rights; 5. Understanding the law. I do not claim that interpretation is unimportant to legal reasoning, but that most legal reasoning is not interpretative. Much of what is commonly called ‘interpretation’ can be done with no interpretation at all.

Highly recommended.

(Via Legal Theory Blog.)

Barak D. Richman (Duke University – School of Law) has posted Saving the First Amendment from Itself: Relief from the Sherman Act Against the Rabbinic Cartels on SSRN. Here is the abstract:

America’s rabbis currently structure their employment market with rules that flagrantly violate the Sherman Act. The consequences of these rules, in addition to the predictable economic outcomes of inflated wages for rabbis and restricted consumer freedoms for the congregations that employ them, meaningfully hinder Jewish communities from seeking their preferred spiritual leader. Although the First Amendment cannot combat against this privately-orchestrated (yet paradigmatic) restriction on religious expression, the Sherman Act can. Ironically, however, the rabbinic organizations implementing the restrictive policies claim that the First Amendment immunizes them from Sherman Act scrutiny, thereby claiming the First Amendment empowers them to do what the First Amendment was arguably designed to prevent. This essay evaluates this interesting intersection between the Sherman Act and the First Amendment, and it argues that the Sherman Act can, and must, be vigorously applied against the private rabbinic cartels.

(Via Legal Theory Blog.)

Michael Satlow has summarized Monday’s symposium at Harvard, The Rabbinic Revolution and the Invention of Jewish Law. The symposium featured Shaye Cohen, Moshe Halbertal, Aharon Shemesh, and Vered Noam. Also see this review of Aharon Shemesh’s book Halakhah in the Making: The Development of Jewish Law from Qumran to the Rabbis.

Update: A video of the seminar proceedings are available here. (hat tip)
(Photo courtesy of Menachem Butler)

Zev Farber, “Extra-Legal Punishments in Medieval Jewish Courts,” in Mishpetei Shalom – A Jubilee Volume in Honor of Rabbi Saul (Shalom) Berman, edited by Yamin Levy (Ktav Pub, 2010). Available here.

Daphna Hacker, Religious Tribunals in Democratic States: Lessons from the Israeli Rabbinical Courts

Abstract:

This paper offers a three-variable explanatory model of religious tribunals’ praxis in democratic states. The model emerged from two empirical studies conducted by the author examining the Israeli legal field governing the family matters of Israel’s Jewish population, which involves both religious and civil legal institutions.

The empirical studies revealed that in consensual divorce and inheritance proceedings, the Israeli rabbinical courts attract clients by offering a relatively cheap and efficient alternative to the civil family courts and inheritance registrars. However, the practices of the rabbinical courts diverge greatly in divorce disputes as compared to inheritance conflicts. While in the former, the rabbinical courts fight to preserve their authority and strive to deliver independent rulings, they avoid jurisdiction and jurisprudence in the context of inheritance conflicts. Moreover, whereas in divorce proceedings, rabbinical court judges consistently assert their judicial autonomy even when the result is severe gender discrimination, in inheritance proceedings, a concern with gender equality lies at the foundation of their attempts to mediate between rival family members and to refer conflicts to the family courts.

Religious, cultural, and institutional variables are offered to explain the similarities and divergences in the rabbinical courts’ practices and perceptions when dealing with divorce and inheritance matters, as well as to explain the willingness of religious tribunals to adapt to liberal values in certain circumstances. This paper thus seeks to contribute to the theoretical and policy-making debates between legal multiculturalism and liberal stances.

The inescapable conclusion is that the RA’s practices are illegal, and have been for a long time. Why have these illegal practices persisted? The history of the Sherman Act reveals that concentrated power can be difficult to dislodge. This inflexibility also reveals a systemic tragedy within Conservatism, whose history includes efforts by centralized powers to resist valuable innovations that spread across America. Such a hierarchical structure of religious authority is antithetical to the American religious experience. It is appropriately targeted by the Sherman Act, which is designed to harness the benefits of an unfettered marketplace of ideas.

My conclusion that the RA is violating the law comes with mixed emotions, as I have deep respect for a great many RA members and know the Assembly is a valuable institution for Conservative rabbis nationwide. But recognizing the illegality of the RA’s placement practices forces us to confront many of Conservative Judaism’s deepest challenges, including the critical importance of heeding the grassroots needs of Conservative Jews and the creativity of nontraditional congregations. Ultimately, conforming to the law will be good for congregations, good for the Conservative movement and it will be good for the RA as well.

The implications of the article are potentially far-reaching for most synagogues and congregations. Legal questions aside, the process reflects an antiquated way of hiring a spiritual leader. I may be missing something, but there seems to be a blackout on discussing the article. I cannot find any discussion anywhere. And people wonder why significant institutions and portions of American Judaism are collapsing.

Update: Here is a short discussion with some links at the Antitrust and Competition Policy Blog.