Mishpat Ivri
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Mishpat Ivri (Hebrew for "Hebrew law" or "Jewish/Hebrew jurisprudence".) In content, Mishpat Ivri refers to those aspects of Halakha ("traditional Jewish law") that many in modern society generally consider relevant to "non-religious" or "secular" law. In addition, the term refers to an academic approach to the Jewish legal tradition and a concomitant effort to apply that tradition to modern Israeli law.
The academic study of Mishpat Ivri spans the full geographic, literary, and historical range of Halakha. It tends to exclude certain areas of Halakha that are not comparable to modern civil law, such as criminal law and "religious" law. Still, the topical orientation of Mishpat Ivri tends to fade whenever scholars address matters of legal theory or methodology.
Subjects covered in Mishpat Ivri include:
- Sales,
- Renting,
- Ownership,
- Negligence (safety),
- Liability,
- Copyright,
- Property rights, etc
Within classical rabbinic Judaism, all Mishpat Ivri subjects are also subsumed under halakha (Jewish law in general).
Scholars of Mishpat Ivri typically adopt methodologies based on legal positivism. Notably, Menachem Elon adopts a legal positivist approach in his extensive study (Elon 1994), which has been used to train Israeli law students at Hebrew University of Jerusalem. While useful for comparative law purposes, the legal positivist approach to Mishpat Ivri has been questioned by some scholars, such as Hanina Ben-Menahem and Bernard Jackson.
In the modern State of Israel, Mishpat Ivri has become one of the lesser ongoing sources for contemporary Israeli civil law, which developed along the model of British common law. (Israeli civil law was built primarily upon British and Ottoman law.) As an effort to promote Jewish law, the Mishpat Ivri movement has had relatively few gains, which include: (1) the Foundations of Law Act of 1980, allowing judicial reasoning to draw upon Halakha, (2) the limited accretion of case law that refers to Halakha, (3) occasional references to Halakha in legislative deliberations, and (4) the placement of a single Mishpat Ivri expert (Nahum Rakover) in the Attorney General's office. Rakover has prepared bibliographies that document the references to Halakha in Israel case law and legislation. An instructive example of the Israeli use of Halakha may be seen in the rulings of Supreme Court Justice Elon (e.g., Yael v. Sheffer v. State of Israel. C.A. 505/88). The limited relevance of Mishpat Ivri to Israeli civil law may be contrasted with the dominant jurisdiction of rabbinic law courts in a Israeli marriage and divorce law.
See also
References
- Jewish Law: History, Sources, Principles Menachem Elon, The Jewish Publication Society, 1994. four volume set, translated from Hebrew. ISBN 082760389-4.
- Multi-Language Bibliography of Jewish Law. Prof. Nahum Rakover (in English). In print and online (http://www.mishpativri.org.il/english/multbibtochen.htm).
- Jewish law: bibliography of sources and scholarship (in English.) Compiled by Weisbard, Phyllis Homan and David Schonberg. 1989.
- An Introduction to the History and Sources of Jewish Law, ed. N. Hecht, B.S. Jackson, D. Piattelli, S.M. Passamaneck and A.M. Rabello, Oxford, The Clarendon Press, 1996, Pp.xvii + 466
- Modern Research in Jewish Law, Leiden, E. J. Brill, 1980. Jackson, B. ed.
- Jewish Law in Legal History and the Modern World, Jackson, B. ed. Leiden, E. J. Brill, 1980.
- Jewish Law Association Studies, volumes I (1985) -
- The Jewish Law Annual, 1978-
- Shenaton ha-Mishpat ha-Ivri. Jerusalem.
- "Jewish law in the State of Israel" Sinclair, Daniel, in Hecht et al., eds. An introduction to the history and sources of Jewish law. Oxford: Clarendon Press, 1996.
External links
- The Jewish Law Association (http://www.art.man.ac.uk/RELTHEOL/JEWISH//JLAS/)
- The Jewish Legal Heritage Society (http://www.mishpativri.org.il/english/default.htm)
- The Israel Matz Institute for Research in Jewish Law Faculty of Law Hebrew University of Jerusalem (http://mishpatim.mscc.huji.ac.il/jewish/jewres0e.htm)he:משפט עברי