Crimes and punishments, part II: Noachide law, brother-sister intercourse, and the case of murder

Journal of Jewish Studies

Volumn 55, Issue 2, 2004, Pages 278-304

  Steinmetz, Devora ^a  

^a JEWISH THEOLOGICAL SEMINARY   (United States)

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[No Author keywords available]

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EID: 70450097894     PISSN: 00222097     EISSN: None     Source Type: Journal    
DOI: 10.18647/2553/jjs-2004     Document Type: Article

References (21)

1. 'Crimes and Punishments, Part I: Mitot Beit Din as a Reflection of Rabbinic Jurisprudence', JJS 55 (2004), pp. 81-101
2. For a review of some of the extensive literature on noachide law, see S. Stone, 'Sinaitic and Noahide Law: Legal Pluralism in Jewish Law', Cardozo Law Review 12 (1991), 1157-1214
3. See D. Novak, The Image of the Non-Jew in Judaism (New York, 1983) for a survey of understandings of noachide law and of the specific laws
4. Note that, in the Hebrew, the word 'commanded' appears as the first word in the verse. A second opinion derives dinin from elohim, which is the derivation that appears in Bereishit Rabba 16:6 and parallels (with the exception of Seder Olam; see n. 5, above), where the order of the laws is, correspondingly, different. These two derivations may reflect different conceptions of the basis, and perhaps of the content, of law; for one such interpretation, see Responsa of Rabbi Moses Isserles 10 and the discussion in N. Rakover, 'Jewish Law and the Noachide Obligation to Preserve Social Order', Cardozo Law Review 12 (1991), 1073-1136, and in Stone, 'Sinaitic', pp. 1173-74
5. A. Lichtenstein, 'Does Jewish Tradition Recognise an Ethic Independent of Halakha?', in M. Fox, ed., Modern Jewish Ethics: Theory and Practice (Ohio, 1975), 62-88
6. J. D. Bleich, 'Judaism and Natural Law', Jewish Law Annual 7 (1988), 6-42
7. D. Novak, 'Natural Law, Halakhah, and the Covenant', Jewish Law Annual 7 (1988), 43-67; and Rakover, 'Jewish Law'. My own concern here is not to determine whether either conception of noachide law is properly classified as 'natural law' (in one or another or its transformations); rather, I refer here to conceptions of natural law simply to help clarify my analysis of the two versions of noachide law
8. For an introduction to different theories of natural law from ancient to contemporary times, see L. Weinreb, Natural Law and Justice (Cambridge, 1987); see ch. 1 for the classical version of natural law as it was developed within Stoic philosophy and articulated by Cicero. The providential, ontological, normative and epistemological elements of this conception of natural law are highlighted, as well, in Weinreb's summary of the classical approach on pp. 52-53
9. See B. S. Jackson, 'Secular Jurisprudence and the Philosophy of Jewish Law: A Commentary on Some Recent Literature', Jewish Law Annual 6 (1987), 3-44, especially section 5. While the content of law can be a constraint within positivist theories as well, that would be so only if such a constraint is build into the rules of legislation within a given system of law
10. For the post-talmudic notion that noachide law is to be expanded to meet the needs of society, see n. 10, above, and especially pp. 1174 and 1181-83 in Stone, 'Sinaitic'
11. Tanna deVei Menashe-bSan 57b, 71b; the Rabbis-bSan 56a
12. Fox, 'Maimonides'; J. Dienstag, 'Natural Law in Maimonidean Thought and Scholarship (On Mishneh Torah, Kings VIII. 11)', Jewish Law Annual 6 (1987), 64-77
13. O. Leaman, 'Maimonides and Natural Law', Jewish Law Annual 6 (1987), 78-93
14. See especially M. Fox, 'Maimonides'
15. See Y. Lorberbaum, 'Blood and the Image of God-The Punishment of Beheading in Early Rabbinical Literature' (in Hebrew), Mechqerei Mishpat 15 (2000), 429-56
16. For a discussion of Qayin's elaboration of the consequences of his act, see Steinmetz, 'Vineyard'
17. Both tSan 9:10 and ySan 7:1/24b comment, in relation to the four modes of judicial execution (mSan 7:1), on the more limited mandate to the government (generally taken to refer to the Jewish king, as opposed to the non-Jewish monarch of mSan 7:3) to execute only by sword; this comment does not appear in the Bavli. See G. Blidstein, 'On Political Structures-Four Medieval Comments', The Jewish Journal of Sociology 22 (1980), 47-58, for some medieval discussions of the power of the king, and see 'Crimes and Punishments, Part I', n. 5
18. For some conjectures about the turn to the biblical text as the source of law and about the development of scriptural exegesis to substantiate legal rulings, see J. Neusner, A Life of Rabban Yohanan ben Zakkai (Leiden, 1962), especially pp. 82-82
19. See Weinreb, Natural Law, pp. 37-38, for a statement of this issue as it relates to Stoic thought
20. For a recent review of scholarship on the Bavli's redactors' recasting of traditional sources, see J. Rubenstein, Talmudic Stories: Narrative Art, Composition, and Culture (Baltimore, 1999), especially pp. 15-21
21. See J. Rubenstein, Narrative Art, pp. 11-15, for a discussion of the contexts of Bavli aggadot; Rubenstein emphasises the need to look at the literary, as well as cultural, contexts of talmudic stories