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Published online by Cambridge University Press: 24 April 2015
Professor Kader has entitled his piece “Torts and Torah” presumably seeing his objective as defining the way the Torah (Jewish Law) responds to or deals with the reality of torts. I have entitled my response “Torah and Torts” since, as I shall show, the jurisprudential principles and constructs of Jewish law pervade all areas of the law and the response of Jewish law to issues of tort liability flows from the basic premises and approach manifest throughout the Jewish legal system.
But first, I wish to comment on some specific points in Professor Kader's essay. I would disagree with his assignment of expertise in Jewish law almost exclusively to the beneficiaries of an orthodox education. I could cite numerous examples to the contrary and could even attempt a cogent case for the notion that creative scholarship in Jewish law might require freedom from some of the presuppositions that are the hallmark of an orthodox approach.
Secondly, in citing the Biblical sources for the major categories of torts, he cites Exodus 21:28-32 although his quotation only goes through v. 29. In addition, that citation only refers to the goring ox that killed a human being. More pertinent to the issue of tort damage is the passage in Exodus 21:35-36 dealing with damage by the ox to another animal, from which is derived the principle (referred to by Professor Kader) of palga nizka or the half-damages liability of the owner of the goring ox which had not previously exhibited vicious behavior.
1. See Baba Kama 86a.
2. This is elaborated by Moshe Silberg, a Justice of the Israeli Supreme Court in his article, Law and Morals in Jewish Jurisprudence, 75 Harv. L. Rev. 306 (1961)CrossRefGoogle Scholar. His thesis is correct although he could have adduced much better examples.
3. Baba Bathra 2b, 5a.
4. Id. at 22a.
5. Id. at 6b.
6. Daube, D., Studies in Biblical Law (1947)Google Scholar.
7. Id. at 121.
8. Baba Kama 83b, 84a.
9. Id. at 85a.
10. Maine, H., Ancient Law (1861); (Pollock, ed. 1930)Google Scholar.
11. Eruvin 13b, Gittin 6b.
12. Baba Kama 87a.