Boundaries of loyalty : testimony against fellow Jews in non-Jewish courts / Saul J. Berman.
2016
KBM2025 .B47 2016 (Map It)
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Author
Title
Boundaries of loyalty : testimony against fellow Jews in non-Jewish courts / Saul J. Berman.
Published
New York, NY : Cambridge University Press, 2016.
Call Number
KBM2025 .B47 2016
Former Call Number
Jew 874 B456 2016
ISBN
9781107090651 (hardback)
1107090652 (hardback)
1107090652 (hardback)
Description
xiii, 239 pages ; 24 cm
System Control No.
(OCoLC)951760391
Summary
Talmudic legislation prescribed penalty for a Jew to testify in a non-Jewish court, against a fellow Jew, to benefit a gentile - for breach of a duty of loyalty to a fellow Jew. Through close textual analysis, Saul Berman explores how Jewish jurists responded when this virtue of loyalty conflicted with values such as Justice, avoidance of desecration of God's Name, deterrence of crime, defence of self, protection of Jewish community, and the duty to adhere to Law of the Land. Essential for scholars and graduate students in Talmud, Jewish law and comparative law, this key volume details the nature of these loyalties as values within the Jewish legal system, and how the resolution of these conflicts was handled. Berman additionally explores why this issue has intensified in contemporary times and how the related area of 'Mesirah' has wrongfully come to be prominently associated with this law regulating testimony.
Note
Talmudic legislation prescribed penalty for a Jew to testify in a non-Jewish court, against a fellow Jew, to benefit a gentile - for breach of a duty of loyalty to a fellow Jew. Through close textual analysis, Saul Berman explores how Jewish jurists responded when this virtue of loyalty conflicted with values such as Justice, avoidance of desecration of God's Name, deterrence of crime, defence of self, protection of Jewish community, and the duty to adhere to Law of the Land. Essential for scholars and graduate students in Talmud, Jewish law and comparative law, this key volume details the nature of these loyalties as values within the Jewish legal system, and how the resolution of these conflicts was handled. Berman additionally explores why this issue has intensified in contemporary times and how the related area of 'Mesirah' has wrongfully come to be prominently associated with this law regulating testimony.
Bibliography, etc. Note
Includes bibliographical references (pages 223-230) and index.
Record Appears in
Table of Contents
Acknowledgments
xi
Introduction
1
1.
Use of Non-Jewish Courts: The Tannaitic Period
3
1.1.
Litigation in Non-Jewish Courts
3
1.1.1.
Fact Finding
4
1.1.2.
Execution of Judgment
6
1.1.3.
Judging
8
1.2.
Testimony in Non-Jewish Courts: Advantaging Testimony on Behalf of the Jewish Party
11
1.2.1.
To Achieve "Religious Rescue"
12
1.2.2.
Limits on the Duty to Testify
13
2.
Legislative Constraint on Testimony: The Amoraic Period
16
2.1.
Amoraic Legislation
16
2.1.1.
Authority of the Teaching: The term Machriz
18
2.1.2.
Legal Constraint on Testimony
19
2.1.3.
Role of Subpoena
20
2.1.4.
Magista Courts and Dawar Courts
21
2.1.5.
Literary Structure of the Passage
24
2.2.
Later Amoraic/Stammaitic Limitations on the Constraint
28
2.2.1.
Identifying the Original Legislation of Rava
28
2.2.2.
First Limitation and the Rationale of Rava
29
2.2.3.
Second Limitation and the Rationale of Rava
30
2.3.
Gaonic Rationale of Procedural Justice: Some Justice is Better than None
31
3.
Rejected Rationales for Testimonial Restriction: The Gaonic Period into the Period of the Rishonim
38
3.1.
As Extension of the Ban on Litigation -- Lifneihem
38
3.1.1.
Rejection of the Theory by R. Nissim
39
3.1.2.
Basis of the Inapplicability of Lifneihem
40
3.1.2.1.
Permissibility of Litigation Between Jew and Non-Jew in Non-Jewish Courts
40
3.1.2.2.
Permissibility to Testify in Honest Non-Jewish Courts
42
3.1.2.3.
Absence of Challenge from the Tosefta Text
43
3.2.
Law of Mesirah (Handing Over/Collaboration)
44
3.2.1.
Mesirah in Biblical Narratives
44
3.2.1.1.
Case of Samson
44
3.2.1.2.
Case of Sheva ben Bichri
45
3.2.1.3.
Case of the Seven Sons of Saul and the Gibeonites
46
3.2.2.
Mesirah in the Talmudic Era
49
3.2.2.1.
Mishnah and Tosefta
49
3.2.2.2.
Jerusalem Gemara
54
3.2.3.
Approach of Rambam: Distinction between Religious Oppressor, Violent Criminal and Government
56
3.2.3.1.
Mesirah and Kiddush Hashem
57
3.2.3.2.
Mesirah and the Law of Damages
59
3.2.4.
Is Mesirah Based on the Duty of Rescue? Limits on Loyalty to Life
64
3.2.5.
Inapplicability of Mesirah to Testimony in Non-Jewish Courts: Rashba and Rambi
69
3.2.6.
Summary of the Elements of the Crime of Mesirah
75
4.
Creation of a Duty to Testify Against Fellow Jews in Non-Jewish Courts: The Period of the Rishonim
77
4.1.
To Avoid Chillul Hashem (Desecration of God's Name)
78
4.1.1.
Biblical Texts of Chillul Hashem
79
4.1.2.
Rambam on Chillul Hashem
82
4.1.3.
Ravad's Use of Chillul Hashem
88
4.1.4.
Chillul Hashem as a Factor for the Rishonim of Ashkenaz
94
4.2.
To Prevent a Fellow Jew from Perpetrating a Crime (Chiyuv Lehafrisho min Haissur)
102
4.3.
When Required to Testify by Non-Jewish Law: Being Subject to Two Masters
110
4.4.
To Avoid Monetary or Bodily Penalty for Refusal to Testify
119
4.5.
If Refusal or Failure to Testify would Threaten the Security or the Economic Well-Being of the Jewish Community
129
5.
Tension Between Responsa and Codification -- Maharam Mintz, Rabbi Joseph Karo and Rabbi Moshe Isserlis
140
5.1.
Maharam Mintz
140
5.2.
Rabbi Joseph Ben Ephraim Karo
146
5.3.
Rabbi Moshe Isserlis (Rama)
158
5.4.
Tension between Codification and Responsa
176
6.
Further Expansion of the Duty of Testimony Against Fellow Jews in Non-Jewish Courts in the Period of the Acharonim
182
6.1.
If the Testimony is Itself Not Definitive and Not Determinative of the Outcome
183
6.2.
Role and Significance of the Subpeona
185
7.
Contemporary Attempts to Revert to the Original Law of Rava: Expanding the Boundaries of Loyalty
191
7.1.
Hovering of the Term Mesirah
192
7.2.
Dual Meaning of Legal Terms
192
7.3.
Dual Meaning of the Term Mesirah
199
7.4.
Mesirah in the Responsa of Rabbi Moshe Feinstein
205
8.
Conclusion: Reflections on Loyalty and Law
213
References
223
Index
231