Judicial Deviation In Talmudic

Judicial Deviation In Talmudic - Hanina Ben Menahem

First Published in 1990. Routledge is an imprint of Taylor & Francis, an informa company. Contents Chapter I. Introduction Chapter II. Case reports in Talmudic Law Chapter III. Two prototype cases of extra-legal considerations Chapter IV. Two concepts of Judicial Power: Yerushalmi versus Bavli Chapter V. Opposition to extra-legal considerations Chapter VI. Power-conferring rules allowing judges to Depart from the generally accepted rules Chapter VII. Conclusion Hanina Ben-Menahem is an Oxford trained scholar at the Hebrew University of Jerusalem who specializes in Jewish law (Halakha). Ben-Menahem is critical of the legal positivist approach that dominates Mishpat Ivri, a comparative legal approach to Halakha. He was also a renown chancellor of law in which he made several advancement in jurisprudence. He argues that Jewish law is not a unified legal system and that its sources and principles are not logically and hierarchically ordered. Instead, he contends that Jewish law has a pluralistic structure, in regard both to its differing domains of authority (e.g., Ashkenazi and Sephardi) and the co-existence of incompatible rules. He believes Halakha makes room for judicial discretion and deviation, leading to a non-systematic tolerance for controversy. Furthermore, Halakha lacks strict adherence to precedence, an appellate system, and "secondary rules of recognition" (cp. legal positivist H.L.A. Hart) to determine authoritative laws.