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Gruss Workshop

Gruss Workshop in Jewish Law

Thinking Legally vs. Thinking Historically

Thursday December 12, 2013

This workshop is designed to bring together scholars of law, history, and religious studies to assess the relationship between thinking legally and thinking historically. This idea emerges out of the deep divisions regarding the role of historical/contextual vs. doctrinal reasoning in the study of the Jewish legal tradition. However, by approaching the issue as a matter of general legal theory, we hope to draw on the parallel experiences of other thought traditions to address the following question: To what extent are lawyers justified in assuming that thousands of individualized acts separated by time, space and social context, form a legal system that transcends any individual action?

Background and Premise

9:45 – 10:00 am


Chaim Saiman, Gruss Professor of Talmudic Law, U. Penn Law School


10:00 - 12:00 pm

Panel 1: Law and History: Conjunctions & Disjunctions

Michelle Dempsey, Professor of Law, Villanova Law School
“Thinking Legally vs. Thinking Historically: A Legal Positivist’s Take”


Shyam Balganesh, Assistant Professor of Law, U. Penn Law School
“The Distinctiveness of Legal Reasoning”


Serena Mayeri, Professor of Law and History, U. Penn Law School
“History and Law, History-in-Law: A Legal Historian’s Perspective”


Tamara Eisenberg, Doctoral Candidate, University of Pennsylvania
“Some Historical Context about Historical Context”



12:45 – 2:45 pm

Panel Two: Rabbis, Lawyers & Historians

Talya Fishman, Assoc. Professor & Director of Jewish Studies, U. Penn
“Readers and Raiders of the Rabbinic Archive”


Chaim Saiman, Gruss Professor of Talmudic Law, U. Penn. Law School
“The Moving Average of Legal Meaning”


Ezra Schwartz, Rosh Yeshiva, Yeshiva University
“Concepts and Categories: A View from the Yeshiva’s Beit Midrash”


Ethan Tucker, Rosh Yeshiva, Mechon Hadar Institute
“Should a Rabbinic Judge be Sensitive to Historical Context?”



3:00 - 4:45 pm

Panel 3: Halakhah and History: Case studies

Yishai Kiel, Post-Doctoral Associate in Jewish Studies, Yale University
“The Role of History and Legal Theory in Shaping Noahide Law: The Case of the Sexual Prohibitions”


Richard Hidary, Assistant Professor of Jewish History, Yeshiva University
“Confluence and Cacophony Between Hilkhot Shabbat and the Development of the Laws of the Sabbath”


David Flatto, Assoc. Professor of Law, Penn. State University Law School
“Impeaching Testimony in Halakhah: A Case Study of Historical and Conceptual Dimensions of an Evolving Legal Rule”


Perry Dane, Professor of Law, Rutgers University Law School
“Jewish Legal Change and the Ironies of Historical Consciousness”



5:00-5:45 pm

Concluding Discussion

Christine Hayes, Professor and Chair of Religious Studies, Yale University
Suzanne Last Stone, University Professor of Jewish Law, Yeshiva University


Background and Premise

In 1888, the legal historian F. W. Maitland inaugurated the Downing Professorship of the Laws of England at Cambridge with a lecture titled, Why the History of English Law is not Written. There, Maitland asked why the English— who had been enthusiastic writers of histories on the Roman, German, and French law—had yet to tell the story of their indigenous common law.

Maitland answered that it is difficult to write history when ancient materials are not “history,” but rather constitute present day authority. Historians employ the “logic of evidence” to recover what a legal text meant by probing the context in which it was written. Lawyers, by contrast, use the “logic of authority” to determine how the text was read and applied by subsequent legal interpreters. In Maitland’s words, “the process by which old principles…are charged with new content, is from the lawyer’s point of view an evolution of the true intent and meaning of the old law; from the historians point of view it is…the process of perversion and misunderstanding.” To the historian, presentism is a vice; to the lawyer, it is a virtue.

Maitland’s dichotomy offers a useful framework for understanding a major divide within the contemporary study of Jewish law. Housed in departments of history and religion, academic scholars of Talmud and Jewish law trade in the logic of evidence. Their goal is to recover how the texts were formed and transformed over time, and to explore the contextual factors that influenced legal actors. By contrast, traditionalist rabbinic seminary scholars employ the logic of authority. They understand halakhah as an ongoing chain of normative doctrine that is at least partially autonomous from the circumstances of its actors. Conversation between the two groups—where it exists at all—is largely at an impasse.

The forum offered by the Gruss Chair of Talmudic law housed within Penn’s law school provides the opportunity to approach this debate from a different angle. On the one hand, lawyers are hardly naïve about the formants of legal doctrine, and few in the academy doubt that circumstantially contingent questions of social policy are central to legal decisionmaking. And yet, even the most primitive legal argument is deeply acontextual: it strings together several events (precedents) by way of legal doctrine which inevitably brackets the very social facts and assumptions historians work to uncover. While this ahistorical reasoning may be nonsensical when evaluated under the logic of evidence, it is the foundation of all legal reasoning.

Maitland’s question lived on in discourse of the late 19th and early 20th centuries, but has largely receded from view. Yet lawyers continue to reason through doctrinal categories divorced from social and historical context. And like Talmudic law, the American legal system is largely designed to ignore the contextual details that historians, sociologists, and political scientists see as the primary targets of inquiry. Which brings us back to the core of Maitland’s question: What does legitimate the lawyerly practice of stringing together texts and rules with little regard for the time, space and culture that produced them? By contrasting the lawyer’s approach with the assumptions of other discourses and legal systems, the workshop will offer an interdisciplinary interrogation of what it means to “think like a lawyer.”

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