Between scholar and jurist: The controversy over the research of jewish law using comparative methods at the early time of the field

Journal of Law and Religion

Volumn 23, Issue 1, 2007, Pages 189-248

  Radzyner, Amihai ^a  

^a BAR ILAN UNIVERSITY   (Israel)

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EID: 85023079242     PISSN: 07480814     EISSN: 21633088     Source Type: Journal    
DOI: 10.1017/S0748081400002654     Document Type: Article

References (262)

1. Avraham Eliyahu Kaplan, Yesodei ha-Mishpat ha-'Ivri, in be-'Ikvot ha-Yirah: Divre Mahashavah 67, 67 (Mosad ha-Rav Kook 1959) (critique of Gulak's Yesodei).
2. Shmuel Eisenstadt, be-Sifruteinu ha-Mishpatit {In Our Legal Literature), 31 ha-Shiloah 181,184 (critique of Gulak's Yesodei).
3. Isaac Herzog, Pesakim u-Ketavim, vol. 9, 405, at 405 (Shlomo Shapira ed., Mosad ha-Rav Kook, Yad ha-Rav Herzog 1991).
4. See also id. at 9.
5. Hereinafter, the emphases are mine unless indicated otherwise. For a comprehensive study on the issue of mental consensus in Jewish law, see S. Deutch, Mental Consensus (Gemirat Da'at) and Intention to Create Legal Relations in Jewish, English, and Israeli Contract Law, 6–1 Shenaton ha-Mishpat ha-'Ivri 71 (1979–80) (Hebrew).
6. See id. at 83 discussion of R. Herzog's approach on this subject.
7. Herzog, id, at 405.
8. For a survey of comparative research of Jewish Law, see sources in Bernard Jackson et al., Halacha and Law, in The Oxford Handbook of Jewish Studies 643, 646–647, 668–669 (Martin Goodman ed., Oxford U. Press 2002).
9. For a survey of comparative studies between Jewish Law and Roman law, until the middle of the twentieth century, see Boaz Cohen, Jewish and Roman Law: A Comparative Study 1–14 (Jewish Theological Seminary Am. 1966).
10. For elaboration, see Assaf Likhovski, The Invention of “Hebrew Law” in Mandatory Palestine, 46 Am. J. Comp. L. 339 (1998)
11. Amihai Radzyner, ha-Mishpat ha-'Ivri bein ‘Leumi’ le'Dati'—haDilemma shel HaTenua haDatit-Leumit (Jewish Law—National to Religious: The Dilemma of the National Religious Movement) (forthcoming in Dat veDin (Yitzhak Brand ed., Bar-Ilan U. Press 2008)).
12. It will be noted that he was a member of the London branch of the Jewish Law Society. On this, see Eisenstadt, Id
13. Amihai Radzyner, Jewish Law in London: Between Two Societies (forthcoming in 18 Jewish L. Annual).
14. I address R. Herzog's general position (and that of other important Rabbis) on the subject of actually using the term Mishpat ‘Ivri in my article referred to at Radzyner, Jewish Law in London: Between Two Societies.
15. It should be stressed that in this article, I do not intended to discuss the question of the relationship between the ritualistic and legal components of Jewish Law. This discussion appears in a number of places, e.g., Menachem Elon, Jewish Law: History, Sources, Principles (Ha-Mishpat Ha-'Ivri) vol. 1, 111–141
16. (A. Philip & Muriel Berman eds., Bernard Auerbach & Melvin J. Sykes trans., Jewish Publication Socy. 1994)
17. A. Radzyner, ha-Mishpat ha-'Ivri Einenu Halakhah (uve-Khol Zot Yesh Lo Erekh) (Mishpat ‘Ivri is not Halakhah (but is nonetheless of Value)” 16 Akdamot 139 (2005).
18. Nonetheless, R. Herzog maintained that the overwhelming majority of civil laws in halakhah are easily understood by human intellect, as distinct from religious laws. See e.g. in the beginning of his lecture on Hiyuv ve-Hithayvut be-Mishpat ha-Torah (Obligation and Undertaking in the Torah Law) which was published in Herzog, Akdamot, at vol. 9, 416, 416: “Usually, that portion of the Torah known as laws or rules, in other words between man and his fellow man, has an intellectual—rational basis, in a relative sense.”
19. This declaration did not prevent him later on in the lecture from berating researchers who tended toward the comparison of the Jewish law with Roman law, see infra n. 93 and accompanying text.
20. See also infra n. 94; n. 170 and accompanying text.
21. See Izhak Englard, Research in Jewish Law—Its Nature and Function, in Modern Research in Jewish Law 21,41 (Bernard S. Jackson ed., Brill 1980)
22. Menachem Elon, More about Research into Jewish Law, in Modern Research in Jewish Law 66, 74 (Bernard S. Jackson ed., Brill 1980).
23. See also infra nn. 95 & 96 and accompanying text.
24. See Elon, Modern Research in Jewish Law, at vol. 1, 110: “The term mishpat ivri has been recognized since the beginning of the twentieth century as denoting that part of the Halakhah that corresponds to the areas of law that make up the corpus juris of the other legal systems today.”
25. Elon's comments indicate that in his view, the term Mishpat ‘Ivri is identical to the more traditional formulations such as Dinei Israel, Halakhah, and even Din Torah. This identity (which Elon, naturally, was not the first to resort to) was attacked by Englard, Modern Research in Jewish Law, at 22–27 (even though his sweeping statement that the Rabbis recoil from using this term is not accurate).
26. See also in Elon's response, Modern Research in Jewish Law, at 71
27. Radzyner, Modern Research in Jewish Law, at 141–143.
28. Indeed, the term Mishpat Ivri, as Elon noted in Elon, Modern Research in Jewish Law, at vol. 1, 110, n. 79 (although the year in which he states the book was written must be corrected), made its first appearance in Zecharia Frankel's book Darkei ha-Mishnah (Leipzig 1859).
29. However, the “copyright” on the proliferation of its usage apparently belongs to Shmuel Eisenstadt. See his first Hebrew article, infra n. 16.
30. For the first arguments for the need of the term “Hebrew,” see Asher Gulak, Yesode ha-Mishpat ha-'Ivri, vol. 1, Preface xi (Defus Universal 1913)
31. M.Z. Rappaport, ha-Mishpat ha-'Ivri be-Sifrut Israel (The Jewish Law in Jewish Literature), 29 ha-Shiloah 293, 299(1913–14).
32. Likhovski, Modern Research in Jewish Law, at 348–357. He shows that among the members of the Jewish Law Society, there were broader and narrower approaches to the content of the term Mishpat ‘Ivri, but most of them were not identical to halakhah.
33. Eisenstadt, Zion be-Mishpat, Modern Research in Jewish Law, at 30.
34. For a similar position expressed by Paltiel Dickstein, see e.g. Paltiel Dickstein, Ha-Majeleh ve-Hoshen Mishpat, I ha-Mishpat ha-'Ivri 193 at 193 n. 1 (Tel-Aviv 1926).
35. Likhovski, Modern Research in Jewish Law, cites even more radical views.
36. For example, for opinions contending that any legal system of the Hebrew nation is worthy of the title Mishpat ‘Ivri, irrespective of its contents and arrangements, see also infra, end of n. 125.
37. See Shmuel Eisenstadt, le-Heker Mishpateinu ha-Pumbi (The Research of our Public Law), 1 ha-Mishpat ha-'Ivri 9 (Moscow 1918)
38. (2d publication in Eisenstadt, Zion be-Mishpat, Modern Research in Jewish Law, at 35–63)
39. Shmuel Eisenstadt, Corpus Iuris Civilis: Institutiones 18–19 (ha-Mishpat 1929).
40. Eisenstadt devoted many years to the research of Roman law and its connection to Jewish law, and his ambition was to translate the whole Corpus Juris Civilis into Hebrew, in order to facilitate the comparative research of Roman and Jewish law (id. at 7).
41. He also stressed that it was impossible to appreciate the nature of any legal system without prior knowledge of Roman law (id. at 17).
42. For further information regarding the Palestine-based movement for the research of Jewish law, and in particular the Zionist ideology that guided the Jewish Law Society, see Elon, Modern Research in Jewish Law, at vol. 4, 1588–1591
43. Likhovski, Modern Research in Jewish Law. The Society's activities were not long-lived in Soviet Russia, due to persecution by government authorities. Most of its members came to Palestine during the 1920s, where they continued to pursue their activities, joining additional friends who had already established the Jewish Law Society of Palestine.
44. Te'udatenu (OurDestiny), 1 ha-Mishpat ha-'Ivri 3, 4–5 (Moscow 1918).
45. See also Likhovski, Modern Research in Jewish Law, at 361–365, n. 118.
46. See sources in id. at n. 118.
47. Id. at vol. 1, 14.
48. See Likhovski, Modern Research in Jewish Law, at 365–369.
49. See e.g. S.A. Pen, ha-Mishpat ha- ‘Ivri, 38 ha-Shiloah 50, 57–60 (1921).
50. Te'udatenu, Modern Research in Jewish Law, at 6: “The literature of last few decades attests to a process of the gradual separation of our law from the doctrines of religion and morality, and our purpose is none other than to continue that process and prepare our law for its secular existence.”
51. See e.g. Paltiel Dickstein's lecture in 1922, Dickstein, Modern Research in Jewish Law, at 195–198
52. Aryeh Leib Grayevsky, ha-Memshala veha-Knessia, ha-Mishpat veha-Dat (The Government and the Church, the Law and Religion), 2 ha-Mishpat ha-'Ivri 83, 92–93 (Tel-Aviv 1927).
53. See also infra n. 113.
54. Regarding Gulak, see David N. Myers, Re-Inventing the Jewish Past: European Jewish Intellectuals and the Zionist Return to History 88–89 (Oxford U. Press 1995).
55. See also M. Elon, In Memory of Asher Gulak, 9–10 Shenaton ha-Mishpat ha-'Ivri 3–10 (Hebrew).
56. See also Shmuel Eisenstadt, Asher Gulak, of Blessed Memory, in Zion be-Mishpat, Modern Research in Jewish Law, 167, at 169.
57. Asher Gulak, Tochnit le-Avodat Hevrat ha-Mishpat ha-'Ivri (The Work Program of the “Jewish Law Society”), 2 ha-Mishpat ha-'Ivri 195 (Tel-Aviv 1927).
58. Id. at 196–197.
59. Further on, Gulak elaborates on the need to expose the unique characteristics of Jewish law, through its comparison to other legal systems. He personally presented this approach in his opening lecture when he was beginning to teach at Hebrew University, on Nov. 1, 1925 (Asher Gulak, Hashvaa Kelalit Bein Ruah Dinei Mamonot ha- ‘Ivriim ve- Ruah Dinei Mamonot ha-Romaim (A General Comparison Between the Spirit of Jewish Civil Law and Roman Civil Law), 1 Mada'ei ha-Yahadut 45 (1925) (Hebrew)).
60. Members of the Jewish Law Society explained that a legal education was essential for the renewal of Jewish law, in addition to their other criticisms of the rabbis, such as their basic unwillingness to adapt halakhah to everyday life. See my article about the Mizrahi movement, Radzyner, Modern Research in Jewish Law.
61. Asher Gulak, le-Sidur Hayeinu ha-Mishpatiitn ba-Aretz {The Regulation of our Legal Institutions in Israel), in ha-Mishpat ha-'Ivri u-Medinat Israel (Jewish Law and the State of Israel) 28, 34 (Yaakov Bazak ed., Mosad ha-Rav Kook 1969).
62. This is also indicated in the first publication of the Jewish Law Society, Modern Research in Jewish Law.
63. See additional sources in Modern Research in Jewish Law.
64. Gulak, Modern Research in Jewish Law, at 31.
65. Herzog, Modern Research in Jewish Law, at 414.
66. Compare Modern Research in Jewish Law.
67. I dealt with the question of the authority to develop Jewish law in my article referred to, Radzyner, Modern Research in Jewish Law.
68. See J.H. Hertz, Ancient Semitic Codes and the Mosaic Legislation, 10 J. Comp. Legis. & Intl. L. 3d ser. 207 (1928).
69. Id. at 207.
70. Yehezkel Abramsky, Dine Mamonot: Hagdarat Sugeihem (Civil Law—Definition of Categories) (2d ed. Nezah, Machon Sifruti-Masorati 1969) (originally published in London 1939). This pamphlet had no continuation.
71. Id. at 4.
72. Id. at 1.
73. Isaac Breuer, Darki 52–55 (Mosad Yitshak Broyerr 1988).
74. Quite possibly, Breuer was influenced by his grandfather, R. Shimshon Raphael Hirsch, who in his interpretation to the Torah posited an immense chasm between the laws of the nations and the Jewish law, “which is the only law that did not emerge from the people” (but rather was Divinely given). See Hirsch's commentary to the Torah on Exod 12: 3–6
75. commentary on Exod 19:10–16
76. (Hamishah humshe Torah: ‘im Targum ’Onkelos u-ferush Rashi ve- ‘im Perush Shimshon ben Refael Hirsh vol. 2, 93–94, 184–185 (Mosad Yitshak Broyerr 1974)).
77. Id. at 53.
78. Id. at 54–55.
79. Id. issue no. 29, at 8.
80. Id.
81. Id. issue no. 31, at 8.
82. See this discussion at length in my article referred to in Radzyner, Id. Rabbis Abramsky & Breuer, of the anti-Zionist “Agudat Israel,” did not invoke these claims.
83. Tosefai, ha-Minhag be-Mishpat Israel (Custom in Jewish Law), 25 ha-Shiloah 600 (1911).
84. Id. at 602.
85. Id. at 602–603.
86. Id. at 603.
87. The essay was first published in 1936 and for a second time in the anthology Moshe Avigdor ‘Amiel, ha-Tzedek ha-Sotziali veha-Tzedek ha-Mkhpati veha-Musari Shelanu (Social Justice and our Legal and Moral Justice), in Bein ‘Adam le-Havero—Masechet Yechasei ’Enosh ba-Yahadut (Between Man and his Fellow Man—Interpersonal Relations in Judaism) 3 (Mosad ha-Rav Kook 1978) [hereinafter ’Amiel, ha-Tzedek.
88. I will use this edition of the book here. Some of the ideas were also developed by R. ‘Amiel in other contexts. See his book Moshe Avigador ‘Amiel, le-Nevuchei ha-Tekufa (For the Perplexed of Our Time) 106–123 (Mosad ha-Rav Kook 1943).
89. ‘Amiel, ha-Tzedek, Modern Research in Jewish Law, at 6.
90. Compare infra n. 157.
91. ‘Amiel, ha-Tzedek, Modern Research in Jewish Law, at 14–15.
92. Moshe Avigdor ‘Amiel, ha-Mitbolelim veha-Hitbolelut (Assimilators and Assimilation) in Moshe Avigdor ‘Amiel, Derashot el ’Ami (Sermons to my People) vol. 3, 61–62 (Druck Oswiata 1929).
93. See also ‘Amiel, le-Nevuchei, Modern Research in Jewish Law, at 285–297.
94. See also Eliav Shochetman, Rabbi Isaac Herzog's Theory of Torah and State, 5 Jewish L. Assn. Stud. 113 (1991).
95. See my article, Radzyner, Modern Research in Jewish Law.
96. The lecture was published as an article, Isaac Herzog, John Selden and Jewish Law, 13 J. Comp. Legis. & Intl. L. 3d ser. 236 (1931) [hereinafter Herzog, John Selden].
97. This article was republished in a collection of R. Herzog's articles compiled by his son, Isaac Herzog, Judaism: Law & Ethics 65–79 (Chaim Herzog ed., Soncino Press 1974).
98. Herzog, John Selden, Modern Research in Jewish Law, at 238.
99. Further down on the same page, he also refers to a number of mistaken (albeit interesting) comparisons made by Selden. See also id. at 240.
100. The article was first published in Isaac Herzog, The Moral Rights and Duties in Jewish Law, 41 Juridical Rev. 60 (1929)
101. for a second time in R. Herzog's book, Isaac Herzog, The Main Institutions of Jewish Law vol. 1, 381 (Soncino Press 1936–39) [hereinafter Herzog, Main Institutions].
102. In additional sources, R. Herzog also stresses the cardinal role and position of morality in Jewish law. See e.g. in his lecture, Herzog, Modern Research in Jewish Law.
103. Herzog, Modern Research in Jewish Law, at 426.
104. Herzog, Main Institutions, Modern Research in Jewish Law, at vol. 1, 381 (footnote omitted).
105. Id. at 386.
106. Id.
107. Herzog, Main Institutions, Id, at vol. 1, xv (footnote omitted).
108. In fact, R. Herzog's plan was to present a summary of Jewish law in its entirety in five volumes, of which he completed only two. The first volume, published in 1936, deals with the laws of property, and the second volume published in 1939, deals with the law of obligations. See Herzog, Main Institutions, Modern Research in Jewish Law, at vol. 1, xxvi.
109. Paltiel Dickstein, Hashkafa Bibliographit (Bibliographic Outlook), 5 ha-Mishpat ha-'Ivri 298 (Tel-Aviv 1937).
110. Id. at 298.
111. For more on this, see Schochetman, Modern Research in Jewish Law.
112. A distinctive and interesting remark in this context, concerning comparison with English law for illustrative purposes, appears in Herzog, Main Institutions, Modern Research in Jewish Law, at vol. 2, 10 n. 1:
113. This paragraph is a preface to a comparison made between the comments of R. Solomon ben Adereth, regarding the need for a kinyan (formal act of acquisition) in order to give effect to an obligation, and the words of the English jurist William Reynell Anson, Principles of the English Law of Contract and of Agency in its Relation to Contract 108–109 (John C. Miles & J.L. Brierly eds., 17th ed., Clarendon Press 1929).
114. Herzog, Main Institutions, Modern Research in Jewish Law, at vol. 1, xvi.
115. Notably, on id. at xxvi
116. Dickstein took note of this in his critique of R. Herzog's work, Id, at 298:
117. It should be noted that an additional critique on the book was written by George J. Webber, Jewish Law, 19 J. Comp. Legis. & Intl. L. 3d ser. 297 (1937).
118. In his critique, Webber claims that R. Herzog failed in his attempt to present Jewish law to the educated Western reader. According to Webber, the average reader not trained in Talmudic discussion would have particular difficulty in following R. Herzog's argumentation. Id. at 303–304.
119. For a different approach to these issues, see Solomon Zeitlin, The Main Institutions of Jewish Law, 32 JQR New Ser. 103 (1941–1942).
120. Webber was President of the London branch of the “Jewish Law Society,” and one of its central active members. In his view, the Society's role in England was to present the Jewish law to the English world of law, and this was his mindset in reading R. Herzog's book. See more extensive discussion in my article, Radzyner, Modern Research in Jewish Law.
121. Herzog, Main Institutions, Modern Research in Jewish Law, at vol. 1, xvi.
122. Id.
123. Herzog, Main Institutions, Modern Research in Jewish Law, at vol. 1, xvi-xvii (footnote omitted) (and he repeats these comments in the introduction to the second part of his book).
124. Herzog, Main Institutions, Modern Research in Jewish Law, at vol. 1, 115–116.
125. Dickstein's claim appears in his article Paltiel Dickstein, Mehir Tzedek ve- ‘Ona ’ah (The Price of Justice and Overreaching), 1 ha-Mishpat ha-'Ivri 15, at 35 (Tel-Aviv 1926).
126. Herzog, Main Institutions, Modern Research in Jewish Law, at vol. 1, 116 (emphasis in original).
127. It is noteworthy that Webber stated that R. Herzog was correct in this matter (Webber, Modern Research in Jewish Law, at 302).
128. Dickstein too was forced to admit that “his criticism has many persuasive elements.” Dickstein, Modern Research in Jewish Law, at 299.
129. Herzog, Main Institutions, Modern Research in Jewish Law, at vol. 1, 112–113.
130. This claim of Dickstein also appears in his aforementioned article, Dickstein, Modern Research in Jewish Law, at 29 (and not as stated by R. Herzog in his book).
131. (Herzog, Main Institutions, Modern Research in Jewish Law, at vol. 1, 231–232) indicates that he indeed thought that the Justinian Code was influenced by Jewish law.
132. See Modern Research in Jewish Law.
133. Regarding Krochmal and his book, see generally Jay M. Harris, Nachman Krochmal: Guiding the Perplexed of the Modern Age (N.Y. U. Press 1991).
134. In fact, Krochmal only briefly dealt with the question of the connection between legal systems in two places in his book Nachman Krochmal, Moreh Nevokhei ha-Zman (Guide to the Perplexed of Our Age, The writings of Nachman Krochmal edited with introduction by Simon Rawidowicz) 205, 220 (Ararat 1961), in a long footnote.
135. Regarding KrochmaPs approach as a reaction to the method adopted by Gans and Jost, see Harris, Modern Research in Jewish Law, at 214–219
136. the article Jay M. Harris, Fitting In or Sticking Out: Constructs of the Relationship of Jewish and Roman law in the Nineteenth Century, in Jews, Antiquity, and the Nineteenth-Century Imagination 53, 61–62
137. See Harris's comments, id. at 62–63.
138. Shmuel Bialoblocki, ‘Em la-Masoret: Mehkarim u-Maamarim 74, 101–105 (U. Bar-Ilan 1971).
139. Id. at 105.
140. Herzog, Main Institutions, Modern Research in Jewish Law, at vol. 1, 77–78.
141. See Modern Research in Jewish Law.
142. See also Cohen, Modern Research in Jewish Law at 9, n. 23, which endorses R. Herzog's view in this subject.
143. Herzog, Main Institutions, Modern Research in Jewish Law, at vol. 1, 77.
144. Id at 78.
145. Herzog, Main Institutions, Modern Research in Jewish Law, at vol. 1, 77, n. 2.
146. See Herzog, Modern Research in Jewish Law, at 425–426.
147. (Warhaftig, Modern Research in Jewish Law, vol. 3, 215):
148. Paltiel Dickstein, Hashkafa Bibliographit (Bibliographic Outlook), 1 ha-Mishpat ha-'Ivri 162 (Tel-Aviv 1926)
149. see also George J. Webber, Jewish Jurisprudence, Jewish Chron. 2 (Feb. 26, 1923).
150. See also Modern Research in Jewish Law.
151. See Eisenstadt, Modern Research in Jewish Law, at 183 (“The book Yesodei ha-Mishpat ha-'Ivri is the first Hebrew book devoted to the research of our law, written by a professional and which is clearly intended to establish a clear methodology for this discipline.
152. See further Elon, Modern Research in Jewish Law, at 3.
153. Compare with his comments in his article cited above, Gulak, Modern Research in Jewish Law.
154. There can be no doubt that Gulak changed his research methodology toward the end of the twenties and during the thirties, and this point was already noted by Englard in his article, Englard, Modern Research in Jewish Law, at 50. I will elaborate on this subject elsewhere.
155. This method and the problems it raises have already been discussed critically by Englard, Modern Research in Jewish Law, at 40–50.
156. Boaz Cohen refers to Gulak's works in their entirety as being of particular importance in the field of comparative research of Jewish law because Gulak did not limit himself exclusively to comparison with Roman law. Cohen, Modern Research in Jewish Law, at 11–12.
157. See e.g. Modern Research in Jewish Law, 74.
158. Gulak, Modern Research in Jewish Law, at 30, 34.
159. Id. at 34.
160. Gulak, Modern Research in Jewish Law, at vol. 1,13.
161. Id. at 13–14.
162. Id. at 14.
163. See also Gulak's comments in id. at 3–4.
164. See Modern Research in Jewish Law
165. Likhovski, Modern Research in Jewish Law, at 341–342.
166. See also Eisenstadt, Modern Research in Jewish Law, at 169.
167. Gulak mentions Jhering's research method in his “Introduction” to Yesodei ha-Mishpat ha- ‘Ivri (Gulak, Modern Research in Jewish Law, at 13).
168. Gulak, Modern Research in Jewish Law, at vol. 1, 3.
169. Englard, Modern Research in Jewish Law, at 45,48–49.
170. Gulak, Modern Research in Jewish Law, at vol. 1, 19.
171. See Englard's critique of this argument, Englard, Modern Research in Jewish Law, at 49.
172. Gulak, Modern Research in Jewish Law, at vol. 1, 7.
173. Id. at vol. 1, 8.
174. Id at vol. 1, 10–11.
175. Id at vol. 1, 8.
176. Gulak, Id, at 201.
177. Eisenstadt, Id.
178. Id at 181–183.
179. Id. at 182.
180. Id. at 187.
181. Gulak, Modern Research in Jewish Law, at 169.
182. See Modern Research in Jewish Law.
183. Modern Research in Jewish Law at 162–163.
184. Compare Modern Research in Jewish Law.
185. Ze'ev Markon, Yesodei ha-Mishpat ha-'Ivri, 23 ha-Tekufa 500 (1925).
186. Id at 504.
187. Id. at 503.
188. Id at 501.
189. see Shmuel Eisenstadt, Rav Tsair u-Mishnato Ba-Mishpat ha-'Ivri (Rav Tsair and his Theory of Jewish Law), in Zion be-Mishpat, Id, at 276, 280.
190. For an even more extreme position, see Shimshon Rosenbaum, Shegiot Mekubalot (Common Mistakes), 4 ha-Mishpat ha-'Ivri 113 (Tel-Aviv 1933).
191. It is interesting to note that Englard, in his critique of Gulak (Englard, Id, at 47), states that Gulak's path aroused the ire of the rabbis, but he only cites the criticism of R. Kaplan, which is referred to below.
192. This led to Elon's response, “But Kaplan (Englard does not disclose the identity of the other ‘”Rabbis” who write critical views of Gulak) ….”. (Elon, Id, at 81). We will see below that indeed there were other rabbis whose criticism Englard was not aware of, even though their criticism is highly reminiscent of his own.
193. ‘Amiel, ha-Tzedek, Id, at 8–9.
194. It is almost certain that R. ‘Amiel's conceptions of Roman law on this subject were taken from Gulak. Here too, Gulak states that the distinction between Jewish law and Roman law stems from (Gulak, Id, at vol. 1, 43)
195. ‘Amiel, ha-Tzedek, Id, at 8.
196. Gulak, Id, at vol. 1, 103.
197. ‘Amiel, ha-Tzedek, Id, at 9.
198. Id. at 4.
199. Id.
200. Id.
201. Id at 3.
202. Abraham Eliyahu Kaplan, Yesodei ha-Mishpat ha-'Ivri, 4 Yeshurun (Jeschurun) 93 (1924).
203. The critique was reprinted for a second time in a collection of Kaplan's articles, Kaplan, Id. Pages are cited in accordance with this edition.
204. Kaplan, Id, at 67.
205. Id.
206. Gulak, Id, at vol. 1, Preface V.
207. Kaplan, Id, at 68.
208. Id at 69.
209. Id. at 72.
210. Id. at 69.
211. See also Kaplan, Id, at 71
212. Id at 73.
213. Id at 74.
214. id. at 372
215. see infra n. 157.
216. Weinberg, Id, at 373.
217. Id at 73.
218. Regarding the research methodology of Zuri, see my article A. Radzyner, A Forgotten Scholar—Ya'akov Shmuel Zuri and his Research in Jewish Law in the Light of Research in the Field, 23 Shenaton ha-Mishpat ha-'Ivri 253 (2005) (Hebrew).
219. See “Petihta de-Pirka,” Weinberg, Id, at 694–695.
220. Id. at 695.
221. Compare to Gulak's comments in his lecture Id.
222. Id at 399.
223. Gulak, Id, at vol. 2, 211–212.
224. Id, at 81 n. 5.
225. Herzog, Main Institutions, Id, at vol. 1, xv.
226. In that context, R. Herzog mentions another book of Gulak, Asher Gulak, le-Heker toldot ha-Mishpat ha- ‘Ivri bi-Tekufat ha-Talmud, Helek 1, Dine Karka'ot (The Law of Real Property in Talmudic Times) (Sifriya Mishpatit 1929).
227. In this book, there is far greater emphasis on the comparative aspect than in Yesodei ha-Mishpat ha- ‘Ivri. R. Herzog mentions this book in a pejorative sense in Herzog, Main Institutions, Id, at vol. 1, 152–153, when he refers to his conjecture, regarding R. Simon ben GamlieFs ruling that a will must only be written in Hebrew.
228. Another essay of Gulak mentioned by R. Herzog in his book is the lecture referred to above at Gulak, Id.
229. R. Herzog mentioned this lecture in the first chapter of the second volume of his work, Herzog, Main Institutions, Id, at vol. 2, 4.
230. See also id. at 12.
231. R. Herzog rejects this approach in the first volume of his book, Herzog, Main Institutions, Id, at vol. 1, 172–173.
232. R. Herzog mentions Gulak in a positive sense once, in his discussion of the classification of assets, where he praises Gulak's analysis of subdivisions of the broad classification of assets (Herzog, Main Institutions, Id, at vol. 1, 78–81).
233. Herzog, Main Institutions, Id, at vol. 1, 62–64
234. where he refers to Gulak, Id, at vol. 1,55–57.
235. Herzog, Main Institutions, Id, at vol. 1, 63.
236. Gulak, Id, at vol. 1, 170–172.
237. Herzog, Main Institutions, Id, at vol. 1, 227.
238. Id. at 227–228
239. compare Id.
240. For an analysis of this dispute, see also Zorach Warhaftig, ha-Hazakah ba-Mishpat ha-'Ivri (Possession in Jewish Law) 53–55 (Mosad ha-Rav Kook 1964).
241. Herzog, Main Institutions, Id, at vol. 1, 323–328
242. citing Gulak, Id, at vol. 1, 132.
243. Herzog, Main Institutions, Id, at vol. 1, 323, 326, 328.
244. Id. at 324, 325.
245. See e.g. Herzog, Main Institutions, Id, at vol. 2, 10, n. 1.
246. I have dealt with a number of aspects of these polemics in my article, Radzyner, Id.
247. Yehuda Leib Fishman, Al ha-Mitzpeh, 7 (40) ha-Tor 1 (July 1, 1927) (emphases in source).
248. Id.
249. Herzog, Main Institutions, Id, and see adjacent text in body of article.
250. Isaac Herzog, ha-Mishpat veha-Musar ba-Yahadut (Law and Morality in Judaism)
251. Warhaftig, Id, vol. 3, 218.
252. Herzog, Id, at 224–225.
253. See Herzog, Main Institutions, Id, at vol. 1, 382–383
254. Herzog, Id, at 219–220.
255. And see Id for a supposed explanation for the changing.
256. Compare Id.
257. For more about this law and its moral significance, see Elon, Id, at vol. 2, 625–626.
258. Herzog, Main Institutions, Id, at vol. 1, 385–386 (footnotes omitted).
259. The Jewish Encyclopedia, vol. 9, 213–214 (Isidore Singer ed, Funk & Wagnalls 1907).
260. Herzog, Id, at 223.
261. Herzog, Id, at 405.
262. In 1947, he was appointed as the first Foreign Minister of Pakistan, and later in his life, he served in a wide range of prestigious positions, both political and legal. See United Nations, Sir Muhammad Zafrulla Khan (Pakistan), Elected President of the Seventeenth Session of the General Assembly, http://www.un.org/ga/55/president/biol7.htm (accessed Aug. 31, 2007).