What some may not know is that its original meaning in Talmudic literature is quite different. Eliav Schochetman wrote the following:

The dictum, “koaḥ dehetera adif“, appears six times in the Talmud, always bearing the same meaning. The redactors of the Mishnah and the Baraita preferred to record a case that illustrates the entire logical scope of the application of a permitting principle of a particlar tanna on the assumption that the tanna would have used this principle to permit in the case under discussion. This was as opposed to recording a case that illustrated the consequences of the adoption of the prohibiting principle of a particular tanna on the assumption that the same tanna, upon applying the prohibiting principle, would also have prohibited in that case.

In other words, in the Talmud the phrase is not use in order to choose the more lenient opinion instead of a stricter opinion, rather, it is used as a literary device to emphasize the difference of opinions between two sages in a particular case. One can easily prohibit something, but if one wants to permit something, there is a reason for his reasoning to be brought. Again Schochetman:

The Talmudic context of the principle does not relate to the authority of the posek to rely upon halakhic considerations as a source for permitting, but rather, relates to a principle governing the redacting of the Mishnah and the Baraita.

For more about this phrase see here, here, and here (Hebrew).

Source: Eliav Schochetman, “The Power to Render a Lenient Ruling: “Koah Dehetera Adif”,” in Jewish Law Association Studies VI The Jerusalem 1990 Conference Volume (1992): 125-55. A Hebrew version is found in Maḥnayyim, vol. 5, 1993, 72-89.

There have been two main criticisms of the decision to investigate Rabbi Lior. One is that it is disrespectful for a rabbi to be subjected to a police investigation for a legal opinion that he wrote, or in this case, a letter of support for a book. There are really two parts to this claim. The first is that a person of Rabbi Lior’s stature should not be subjected to a police investigation. My opinion about this claim is that a rabbi is not above the law, and just as presidents and prime ministers have been investigated, if needed, so should rabbis. The second is that a person shouldn’t be punished for words that they have written or opinions that they have voiced. This addresses the limits of free speech and incitement and I’ll let others more knowledgable about the subject address this question.

For those interested, the Israeli Supreme Court has a search engine for English translations of some of their decisions. Search for “incitement” or “freedom of speech” and you’ll get some interesting results. In addition see this critique (Hebrew) by Prof. Mordechai Kremnitzer of one of the Supreme Court’s decisions and this book (Hebrew). Also, see this article (English) by Prof. Yedidia Stern about the “Dov Lior Bill” that would prohibit the prosecution of rabbis for opinions expressed in a Torah-related publication.

Another criticism is that there is an unequal enforcement of laws against incitement. According to this claim, people who are religious or hold right-wing views are investigated more frequently than those who are left-wing. This may be true, but I would like to see a serious examination of the question before people start making serious claims against law enforcement and the courts. For example, during the past few days MK Yaakov Katz has been spewing diatribes against the police and the prosecutor’s office. A little searching on the Internet found that these very same police and prosectors investigated incitement against MK Katz earlier this year. It might mean much, but it should cause one to be careful about serious allegations of discrimination.

By the way, I happen to own two volumes of Rabbi Lior’s responsa, Shu”t Devar Ḥevron. I have found them to be interesting and clearly written and Rabbi Lior addresses many interesting topics. When reading them I try and ignore his other halakhic opinions that I find revolting.

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.)

A new book from David Hartman, The God Who Hates Lies.

In this deeply personal look at the struggle between commitment to Jewish religious tradition and personal morality, Dr. David Hartman, the world’s leading Modern Orthodox Jewish theologian, probes the deepest questions at the heart of what it means to be a human being and a Jew. Dr. Hartman draws on a lifetime of learning, teaching and experience as a social activist to present an intellectual framework for examining covenantal theology as it is applied to religious life. As much an expression of his impassioned commitment to Jewish law as it is testament to a lifetime of intellectual questioning and courage, this bold examination of the halakhic system offers fresh insights into Judaism and the quest for spiritual nourishment.

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)

It’s usually conventional wisdom that the Constitution’s text matters most, and the framer’s original intent matters least, in cases involving modern technologies, like wiretaps or the internet, which the framers could never have imagined, a point Justice Scalia himself recognized in a 2001 ruling that the Fourth Amendment limits government use of thermal-imaging devices. But, during Tuesday’s argument, Scalia took a different tack, repeatedly arguing that the California law regulating video games was contrary to the original intent of the men who framed and ratified the First Amendment. California’s regulation of violent expression in video games, Scalia urged, was a “prohibition which the American people never . . . ratified when they ratified the First Amendment.” Portrayals of violence, Scalia said, were understood by the framers to be part of the freedom of speech the First Amendment protected. For Scalia, that was the end of the matter.

Mocking Justice Scalia’s approach, Justice Alito shot back, telling California’s Deputy Attorney General that “what Justice Scalia wants to know is what James Madison thought about video games” and if “he enjoyed them.” Alito pointed out that video games are a “new medium that cannot possibly have been envisioned when the First Amendment was ratified” and that it was “entirely artificial” to say that the framers meant to protect violent video games in which children act out violence because the framers would have accepted violent portrayals in books. Justice Scalia had no convincing reply.

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.