Does Rabbinic Judaism Acknowledge a Fundamental Difference between Civil and Ritual Law?

June 2, 2017 | Chaim Saiman
About the author: Chaim Saiman is the chair in Jewish law at the Charles Widger School of Law at Villanova University and the author of Halakhah: The Rabbinic Idea of Law (Princeton 2018).

For modern Western readers, it seems natural to see a gaping divide between the Torah’s ritual laws (like the prohibitions against eating certain foods) and its civil laws (like those governing torts). The biblical text, by contrast, slips easily from one category to the other, while the Talmud recognizes a distinction but tends to portray both categories as part of a unified and unchanging divine law. Drawing on the work of the early-20th-century Russian talmudist Shimon Shkop, Chaim Saiman argues that the Jewish tradition does recognize a qualitative difference between these two areas of halakhah:

[I]f one confronts a piece of meat of unknown status, halakhah requires abstaining from it to avoid even the possibility of transgression. This principle [of caution] applies to any biblical [as opposed to rabbinic] prohibition. . . . Shkop notes, however, that theft is also a biblical prohibition. The principle of stringency in the case of doubt would therefore counsel that when there is factual or legal doubt as to who owns an asset, whoever has it in his possession should refrain from using the asset for fear of violating the biblical prohibition against theft.

Shkop notes that this is emphatically not the halakhic rule. . . . [H]alakhic civil law, like its secular counterparts, assumes that the plaintiff bears the burden of proof. . . . Unless and until the plaintiff meets his burden, the defendant is permitted to retain and use the disputed asset. But why, asks Shkop, is this instance any different from the meat of uncertain kosher status? . . .

Shkop answers this question by proposing a novel understanding of halakhic civil law. These rules, he argues, are not primarily established by divine mandate. Instead, human rationality and institutions create the system of property, ownership, contract, and tort. . . . While some elements of civil law are indeed determined by biblical exegesis, the bulk are generated by human reason. . . . In Shkop’s account, [therefore], the civil law allows for human intuition and reason to establish legal entitlements and liabilities. But it is the transcendent divine call, a call still heard echoing from Sinai, that calls upon us to live up to these obligations.

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