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The question of the relationship between law and religion, especially as to the influence of the norms of one on the other, is highly problematic, or so it is as to the relationship between Jewish law and the common law of the United States. Despite a great deal of research on the subject, the claimed connections and influences strike me as exaggerated, in excess of what actually has been or can be proven. There appears to be an enthusiasm for finding connections, for what Professor Menacham Elon of Hebrew University in Jerusalem has called the “adoption of an apologetic approach” in which influence is over-emphasized. After all, such influences are difficult to prove, to trace, if for no other reason than explicit attribution to antecedents is rare. Much of the work in this area, at least as it bears on Jewish common law, rests largely on claims of a remarkable similarity between the respective norms of the systems of law.
One needs only observe that similar institutions and rules may have developed, not so much due to reciprocal influences, but because of similar circumstances in the respective histories of each system or similar if not identical predicate values and presumptions, be they divinely revealed or rationally derived. Counter examples exist, however, and in the area of torts and Jewish law, the most notable would be Jacob Finkelstein's essay on “The Goring Ox,” in which a direct connection is demonstrated between the biblical text pertaining to the required killing of the goring ox and deodandum decedens in English law.
1. For examples of this comparative orientation, see Robinowitz, , The Influence of Jewish Law on the Development of Common Law, in The Jews, Their Role in Civilization (Finkelstein, ed. 1971)Google Scholar; Auerbach, , The Talmud, A Gateway to the Common Law, 3 W. Res. L. Rev. 5 (1951)Google Scholar; and Jackson, B., Jewish Law in Legal History and the Modern World (1980)Google Scholar [hereinafter Jackson].
2. Finkelstein, , The Goring Ox, 46 Temple L.Q. 169 (1973)Google Scholar.
3. Berman, H., The Interaction of Law and Religion 11 (1974)Google Scholar.
4. See Blenkinsopp, , Biblical Law and Hermeneutics: A Reply to Professor Gaffney, 4 J. Law and Relig. 97 (1987)CrossRefGoogle Scholar.
5. Englard, , The Problems of Jewish Law in the Jewish State, 3 Israel L. Rev. 254 (1968)CrossRefGoogle Scholar.
6. Albeck, S. in The Principles of Jewish Law 320 (Elon, ed. 1975) [hereinafter Albeck]Google Scholar.
7. Professor Albeck refrains from using terms borrowed from modern law in his summaries. For example, when describing the basis for liability in “tort” he uses a Talmudic term peshiah (negligence) and not rashlanut (negligence).
8. Albeck, supra note 6, at 320-29.
9. Jacobs, L., The Talmudic Argument: A Study in Talmudic Reasoning and Methodology (1984)CrossRefGoogle Scholar.
10. Id. at 17.
11. Id. at 211-13.
12. Elon, More About Research into Jewish Law, in Jackson, supra note 1, at 110-11.