Talmudic Jurisprudence By Maran HaGoan HaRav Mordechai Gifter ZT”L This article by Rav Gifter, zt”l, is as relevant now as it was when it first written and perhaps even more so.  It is about the nature of Torah law, and was published in a journal entitled, “Law in a Troubled World” by the Clevaland College and the Franklin Thomas Backus School of Law at Case Western Reserve University. It was published in 1959, but is actually the Fall 1958 issue.”   The words are that of Rav Gifter zt”l, but in order to facilitate greater comprehension on the part of the reader, Rabbi Yair Hoffman added paragraph headings and made some other minor changes.  The article is being published here in honor of Rav Gifter’s son-in-law and daughter, Rabbi & Rebbitzen Yaakov Reismann. INTRODUCTION We will attempt, within the limited scope of one article, to present a fragmentary concept of that great body of law known as Talmudic Jurisprudence, and in so doing, it will be our purpose to determine what Talmudic Law can contribute towards the solution of the problems of our troubled world. PURPOSE OF LAW The purpose of the Law, as civilized society understands it, is to bring order into the lives and affairs of men, to guarantee—to use a Mishnaic phrase—that “men shall not swallow themselves alive” (Aboth 3,2. CF. Psalms 124:3). Where order exists in society humankind can develop to the fullest extent its capacities for progress under freedom and liberty. A society governed by the Law is, therefore, given a guarantee against anarchy, against chaos and disintegration. LAW CAN BE COLD AND CRUEL Though this be the purpose of the Law, yet the Law itself can become cold and sometimes even cruel if it is designed only to meet the requisites of an ordered society. Indeed, there is a law even among barbarians. The cruelty and tyranny of the dictator is also framed in the order of law. One is reminded of the words of the Psalmists who, in speaking of the tyrant, describes him as being one “who frames violence by statute” (Psalms 94:20). LIMITATIONS OF LAW The development of civilized law knows, therefore, also of the development of equity in the law. Equity has served, we might say, as a guardian over the law, seeking to keep it in line with ethical norms. It has not been the purpose of the law, however, even when joined with equity, to develop the moral and ethical standards of society and of the individual. This has been the domain of philosophy and religion. These values nurtured by philosophy, religion, and other kindred branches of ethical and moral teachings became the norms within which the law developed and fructified. TALMUDIC LAW DIFFERS Talmudic jurisprudence is unique in that the very purpose of the law, itself, is the development of Man’s moral and ethical personality. The ambit of Talmudic Law is a very wide one, indeed, the widest one can imagine, for its scope embraces every facet of human living. It is, by no means, limited to that body of legal matter encompassed by the term “law” as we know it in modern society; namely, that which concerns itself only with those affairs of man vis-a-vis his fellow man. Since its purpose is order in society, it deals […]

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