Imperative of Legal System - Revision history

WikSysop: /* Legal System in Jewish Law (for Noahides) */

2007-05-28T22:12:54Z

‎Legal System in Jewish Law (for Noahides)

WikSysop: /* Chaim Clorfene and Yakov Rogalsky */

2007-05-08T08:20:28Z

‎Chaim Clorfene and Yakov Rogalsky

WikSysop at 12:25, 4 April 2007

2007-04-04T12:25:00Z

WikSysop at 08:33, 28 March 2007

2007-03-28T08:33:11Z

BillyJDial at 15:34, 16 March 2007

2007-03-16T15:34:42Z

BillyJDial at 15:33, 16 March 2007

2007-03-16T15:33:13Z

HaNoahide: /* Legal System in Noahide Law */

2007-03-16T14:38:56Z

‎Legal System in Noahide Law

WikSysop: /* Rabbi Aaron Lictenstein */

2007-03-16T11:16:58Z

‎Rabbi Aaron Lictenstein

WikSysop: /* Rabbi Yaakov Anatoli (1194-1256) */

2007-03-16T11:15:43Z

‎Rabbi Yaakov Anatoli (1194-1256)

WikSysop: /* Rabbi Aaron Lictenstein */

2007-03-16T11:14:49Z

‎Rabbi Aaron Lictenstein

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	==Legal System in Jewish Law (for Noahides)==		==Legal System in Jewish Law (for Noahides)==
		+
		+	Most rabbinic authorities consider the Seven Noahide Laws a parallel system of general categories of commandments, each containing many components and details.
		+	* Some rabbinic opinion regards the determination of the details of the Noahide Law as something to be left to Jewish rabbis. This, in addition to the teaching of the Jewish law that punishment for violating one of the seven Noahide Laws includes a theoretical death penalty (Talmud, tractate Sanhedrin 57a), is a factor in modern opposition to the notion of a Noahide legal system. Jewish scholars respond by noting that Jews today no longer carry out the death penalty, even within the Jewish community. Jewish law, in contemporary practice, sees the [[death penalty]] as an indicator of the seriousness of an offense; violators are not actually put to death.
		+	* Other rabbinic opinion holds that penalties are a detail of the Noahide Laws and that Noahides themselves must determine the details of their own laws for themselves. According to this school of thought - see N. Rakover, ''Law and the Noahides'' (1998); M. Dallen, ''The Rainbow Covenant'' (2003)- the Noahide Laws offer mankind a set of absolute values and a framework for righteousness and justice, while the detailed laws that are currently on the books of the world's states and nations are presumptively valid.

	===Rabbi Yaakov Anatoli (1194-1256)===		===Rabbi Yaakov Anatoli (1194-1256)===

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 ===Chaim Clorfene and Yakov Rogalsky===
-According to Chaim Clorfene and Yakov Rogalsky in the "Path of the Righteous Gentile"<ref>* Clorfene, Chaim and Yaakov Rogalsky ''[http://moshiach.com/action/morality/introduction.php The Path of the Righteous Gentile: An Introduction to the Seven Laws of the Children of Noah]''. New York: Phillip Feldheim, 1987</ref> the Children of Noah are commanded to establish courts of law that will carry out justice and maintain human righteousness and morality in accord with the Seven Universal Laws.<ref>Mishneh Torah, Laws of Kings, chapter 9, law 14</ref> A court system that perverts justice by handing down rulings in conflict with the Seven Universal Laws is an instrument for driving God's blessings out of the world. Anyone who fails to establish a court system, that is, who lives in a community or city in which there are no courts, and who does nothing to correct the situation, is punishable by death. One who establishes or maintains courts of law that operate contrary to the Seven Universal Laws is similarly liable.
+According to Chaim Clorfene and Yakov Rogalsky in the "Path of the Righteous Gentile"<ref>Clorfene, Chaim and Yaakov Rogalsky ''[http://moshiach.com/action/morality/introduction.php The Path of the Righteous Gentile: An Introduction to the Seven Laws of the Children of Noah]''. New York: Phillip Feldheim, 1987</ref> the Children of Noah are commanded to establish courts of law that will carry out justice and maintain human righteousness and morality in accord with the Seven Universal Laws.<ref>Mishneh Torah, Laws of Kings, chapter 9, law 14</ref> A court system that perverts justice by handing down rulings in conflict with the Seven Universal Laws is an instrument for driving God's blessings out of the world. Anyone who fails to establish a court system, that is, who lives in a community or city in which there are no courts, and who does nothing to correct the situation, is punishable by death. One who establishes or maintains courts of law that operate contrary to the Seven Universal Laws is similarly liable.
 In the Book of Genesis (34:25), we learn that two of Jacob's sons, Simeon and Levi, slew every male in the city of Shechem. The prince of the community, Shechem, son of Hamor, had raped their sister, Dinah, and the city failed to execute justice by bringing him to a court of law. The city was therefore guilty of transgressing this seventh of the Seven Universal Laws, and every citizen was liable for punishment.

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	[[Category:Legal Rulings]]		[[Category:Legal Rulings]]
		+	[[Category:Jerusalem Court for Bnei Noah]]

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 Although the Noahide courts are responsibile for only the Seven Universal Laws, not the 613 laws of the Torah, there is an opinion that each decision of the Noahide courts must follow its counterpart in Jewish Law. The accepted opinion, however, is that Noahide judges and courts of law are to render legal decisions according to their own laws and principles of law.
-.    Arbitration and mediation or any other means of finding an amicable settlement or compromise, thereby avoiding a court trial, is desirable, and, more than that, it is a commandment to seek compromise.
+.    [[Arbitration]] and mediation or any other means of finding an amicable settlement or compromise, thereby avoiding a court trial, is desirable, and, more than that, it is a commandment to seek compromise.
 . Circumstantial evidence is admissible in the Noahide courts of law.

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−	~~Test~~ [[Image:LegalSystemsOfTheWorldMap.png\|thumb\|right\|300px\|World distribution of major legal traditions]]	+	[[Image:LegalSystemsOfTheWorldMap.png\|thumb\|right\|300px\|World distribution of major legal traditions]]
	The Imperative of Legal System for Noahides includes the requirement to set up courts of Justice, and to refrain from any action that would lead to an unjust court decision. Just what are the implications of the Noahide imperative on Justice (Dinim) is the subject of dispute among major authors. On the one hand, authorities like [[Maimonides]] says: "They are obligated to set up judges and magistrates in every major city to judge according to the above six laws, to warn the nation [regarding their observance]"<ref>Mishneh Torah, Laws of Kings 9:14</ref> which seems to imply that the courts need only uphold the first six laws. Other authorities like [[Nachmanides]] disagree, and envision an entire legal system. Still other authorities give the national courts complete freedom to legislate anything as long as it doesn't contradict the seven laws, see Rabbi Yaakov Anatoli below.		The Imperative of Legal System for Noahides includes the requirement to set up courts of Justice, and to refrain from any action that would lead to an unjust court decision. Just what are the implications of the Noahide imperative on Justice (Dinim) is the subject of dispute among major authors. On the one hand, authorities like [[Maimonides]] says: "They are obligated to set up judges and magistrates in every major city to judge according to the above six laws, to warn the nation [regarding their observance]"<ref>Mishneh Torah, Laws of Kings 9:14</ref> which seems to imply that the courts need only uphold the first six laws. Other authorities like [[Nachmanides]] disagree, and envision an entire legal system. Still other authorities give the national courts complete freedom to legislate anything as long as it doesn't contradict the seven laws, see Rabbi Yaakov Anatoli below.

← Older revision		Revision as of 15:33, 16 March 2007
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−	[[Image:LegalSystemsOfTheWorldMap.png\|thumb\|right\|300px\|World distribution of major legal traditions]]	+	Test [[Image:LegalSystemsOfTheWorldMap.png\|thumb\|right\|300px\|World distribution of major legal traditions]]
	The Imperative of Legal System for Noahides includes the requirement to set up courts of Justice, and to refrain from any action that would lead to an unjust court decision. Just what are the implications of the Noahide imperative on Justice (Dinim) is the subject of dispute among major authors. On the one hand, authorities like [[Maimonides]] says: "They are obligated to set up judges and magistrates in every major city to judge according to the above six laws, to warn the nation [regarding their observance]"<ref>Mishneh Torah, Laws of Kings 9:14</ref> which seems to imply that the courts need only uphold the first six laws. Other authorities like [[Nachmanides]] disagree, and envision an entire legal system. Still other authorities give the national courts complete freedom to legislate anything as long as it doesn't contradict the seven laws, see Rabbi Yaakov Anatoli below.		The Imperative of Legal System for Noahides includes the requirement to set up courts of Justice, and to refrain from any action that would lead to an unjust court decision. Just what are the implications of the Noahide imperative on Justice (Dinim) is the subject of dispute among major authors. On the one hand, authorities like [[Maimonides]] says: "They are obligated to set up judges and magistrates in every major city to judge according to the above six laws, to warn the nation [regarding their observance]"<ref>Mishneh Torah, Laws of Kings 9:14</ref> which seems to imply that the courts need only uphold the first six laws. Other authorities like [[Nachmanides]] disagree, and envision an entire legal system. Still other authorities give the national courts complete freedom to legislate anything as long as it doesn't contradict the seven laws, see Rabbi Yaakov Anatoli below.

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 ===Civil law===
-Civil law is the most widespread system of [[law]] in the world.
+Civil law is the most widespread system of law in the world.
-It is also known as <em>European Continental law</em>. The central source of law that is recognised as authoritative are [[codification]]s in a [[constitution]] or [[statute]] passed by government, to amend a code. Civil law systems mainly derive from the [[Roman Empire]], and more particularly, the ''[[Corpus Juris Civilis]]'' issued by the Emperor [[Justinian]] ca. 529AD. This was an extensive reform of the law in the [[Eastern Empire]], bringing it together into codified documents. Civil law today, in theory, is interpreted rather than developed or made by judges. Only [[legislature|legislative]] enactments (rather than [[judiciary|judicial]] [[precedent|precedents]]) are considered legally binding. However, in reality courts do pay attention to previous decisions, especially from higher courts.
+It is also known as '''European Continental law'''. The central source of law that is recognised as authoritative are codifications in a constitution or statute passed by government, to amend a code. Civil law systems mainly derive from the [[Roman Empire]], and more particularly, the ''[[Corpus Juris Civilis]]'' issued by the Emperor Justinian ca. 529AD. This was an extensive reform of the law in the Eastern Empire, bringing it together into codified documents. Civil law today, in theory, is interpreted rather than developed or made by judges. Only legislative enactments (rather than judicial precedents) are considered legally binding. However, in reality courts do pay attention to previous decisions, especially from higher courts.
 Scholars of [[comparative law]] and economists promoting the [[legal origins theory]] usually subdivide civil law into three distinct groups:

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 :6. "...against the judge showing marks of honor to but one litigant." Negative 275.
-:7. "...against the judge acting in fear of a litigant's threats." Negative 276. Some leniency is extended to the Noahide judge in this connection according to Nahmanides, Pirush al HaTorah (Commentary on the Pentateuch), on Genesis 34:13, who quotes the Jerusalemite Talmud as saying: "Under Israelite law, you may not decline to serve as a judge as long as you are safe from repercussions, but you may decline when you are not safe from repercussions. However, under Noahic law you may decline in any event." Nonetheless, Negative 276 is listed here as having Noahide import because the talmudic quote seems to refer only to the initial refusal to hear a case due to fear of threats, whereas Negative 276 is also addressed at a judge who is already presiding, and who is tempted to render an unjust decision in face of personal danger. The latter surely constitutes a miscarriage of justice. Thus, it seems probable that when Nahmanicles, in reference to Negative 276, writes, - 'Fear no man (in judgment]' is an added feature of Mosaic [not Noahide] law" (ibid.) he means to give a Noahite more latitude in refusing to hand down a decision, but probably he does not mean to sanction an unjust decision.
+:7. "...against the judge acting in fear of a litigant's threats." Negative 276.
-:Possibly, this extra latitude for the Noahite judge finds expression in a situation such as described in the following halakha: "When two litigants - a mild one and a vicious one - approach you with their dispute you may say to them 'I refuse to judge your case,' as long as you have not as yet heard their arguments or, even having heard their arguments, as long as you do not know who is the more likely to win, lest the vicious litigant lose and try to kill you. But once you have heard their arguments and know who is the more likely to win, you may not say 'I refuse to judge your case,' because of the dictum, 'Fear no man'…" (Imperative 415, Sefer HaHinnuch). Nahmanides may mean to sanction the withdrawal of a Noahite judge even after he knows which litigant is likely to emerge victorious. See Joseph Babad, Minhat Hinnuch. New York: Saphrograph, 1950, Part 111, page 76 (Imperative 415): "I think Noahites, too, are implicated in this 'Do not fear' according to Nahmanides…"
+Some leniency is extended to the Noahide judge in this connection according to Nahmanides, Pirush al HaTorah (Commentary on the Pentateuch), on Genesis 34:13, who quotes the Jerusalemite Talmud as saying: "Under Israelite law, you may not decline to serve as a judge as long as you are safe from repercussions, but you may decline when you are not safe from repercussions. However, under Noahic law you may decline in any event." Nonetheless, Negative 276 is listed here as having Noahide import because the talmudic quote seems to refer only to the initial refusal to hear a case due to fear of threats, whereas Negative 276 is also addressed at a judge who is already presiding, and who is tempted to render an unjust decision in face of personal danger. The latter surely constitutes a miscarriage of justice. Thus, it seems probable that when Nahmanicles, in reference to Negative 276, writes, - 'Fear no man (in judgment]' is an added feature of Mosaic [not Noahide] law" (ibid.) he means to give a Noahite more latitude in refusing to hand down a decision, but probably he does not mean to sanction an unjust decision.
-:Also see Rashi, Sanhedrin 56b last line: "The fear of Me shall be upon you,'implies but not the fear of men, as in Deuteronomy 5,'Fear no man, for judgment is of the Lord,' that is, justice [of the Seven Laws]."
+Possibly, this extra latitude for the Noahite judge finds expression in a situation such as described in the following halakha: "When two litigants - a mild one and a vicious one - approach you with their dispute you may say to them 'I refuse to judge your case,' as long as you have not as yet heard their arguments or, even having heard their arguments, as long as you do not know who is the more likely to win, lest the vicious litigant lose and try to kill you. But once you have heard their arguments and know who is the more likely to win, you may not say 'I refuse to judge your case,' because of the dictum, 'Fear no man'…" (Imperative 415, Sefer HaHinnuch). Nahmanides may mean to sanction the withdrawal of a Noahite judge even after he knows which litigant is likely to emerge victorious. See Joseph Babad, Minhat Hinnuch. New York: Saphrograph, 1950, Part 111, page 76 (Imperative 415): "I think Noahites, too, are implicated in this 'Do not fear' according to Nahmanides…"
 :8. "...against the judge, out of compassion, favoring a poor litigant." Negative 277.
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 :10. "...against the judge, out of softness, putting aside the penalty of a mauler or killer." Negative 279.
-:11. "...against the judge discriminating against a stranger or an orphan." Negative 280. The idea here is to require equal treatment for those who are weak or meek for lack of relatives and friends. However, "stranger" in the Israelite statute, may refer strictly to "proselyte," in which case only "orphan" would have significance for the Noahide law here.
+:11. "...against the judge discriminating against a stranger or an orphan." Negative 280.
 :12. "...against the judge hearing one litigant in the absence of the other." Negative 281.
-:13. "...against appointing a judge who lacks knowledge of the Law." Negative 284. Cf. Joseph Babad, Minhat Hinnuch. New York: Saphrograph, 1950, Part III, page 76 (Imperative 414): "Perhaps the Noahites too are included in this prohibition, and must appoint only a man who is erudite in Torah with regard to the laws that pertain to the Noahites." Also see remark of Aaron HaLevi, there, who considers Negative 284 a natural component of the pursuit of justice when he writes: ". . . an untutored judge will acquit the guilty and condemn the innocent. The rationale behind this command should be clear to all."
+:13. "...against appointing a judge who lacks knowledge of the Law." Negative 284.
 :14. "...against the court killing an innocent man." Negative 289.
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 :15. "...against incrimination by circumstantial evidence." Negative 290.
-:16. "...against punishing for a crime committed under duress." Negative 294.   Cf. Maimonides, Code, "Laws on Kings" 10:2, "A Noahite who is forced - because his life is in danger - to transgress any of his laws is permitted to transgress." At this point it should be noted that the threats in Negative 276 (against a judge acting in fear of a litigant's threats,) are not such threats that constitute a clear and present danger to the life of the judge, or he would probably be permitted to misjudge in order to save his own life.
+:16. "...against punishing for a crime committed under duress." Negative 294.
 :17. "...that the court is to administer the death penalty by the sword [i.e., decapitation]." Positive 226.
 ::See [[Capital Punishment in Noahide law]]
-:18. "...against anyone taking the law into his own hands to kill the perpetrator of a capital crime." Negative 292.   Naftali Zvi Judah Berlin, Haarnek Shaela (Commentary on Sheiltoth of Ahai Gaon). Jerusalem: Mosad Harav Kook, 1961, volume 1, page 16 (section 2:3). The discussion there centers on how justice may have application for the Noahide lay citizen - for in the main justice seems directed at the presiding jurists. N.Z.J. Berlin concludes that each Noahite "is compelled to desist from enforcement of the remaining six laws except via the court. That is, a witness to a murder may not execute the murderer, but must wait for the trial…" However, another writer disagrees: Babad, in Minhat Hinnuch, Part 111, page 72 (Imperative 409) writes: "The Noahites are not restricted in this way [Negative 2921 but may judge singly and at once." Babad repeats this remark on page 73, ibid.
+:18. "...against anyone taking the law into his own hands to kill the perpetrator of a capital crime." Negative 292.
-:19. "...to testify in court." Positive 178.  Thus, another example of how each citizen is expected to participate in the quest for justice is when he is called as a material witness. That Noahites are so implicated can be derived from Sanhedrin 57b, as follows: "A Noahite can be condemned on the testimony of a man, but not on a woman's ... Rav Hamnuna raised the following question here, 'You say that a woman is not obligated to pursue Justice?  Notice that because a woman is ineligible to testify, Rav Hamnuna concluded that she is under no obligation with regard to Justice. Apparently, when a Noahite testifies in court he is fulfilling one of his obligations under justice.
+:20. "...against testifying falsely." Negative 285.
-:20. "...against testifying falsely." Negative 285.   If, as in Positive 178 above, a Noahite is under obligation to enlighten the court with his testimony, one may safely conclude that the Noahite has not met this obligation when his testimony leaves the truth unsaid. Cf. Philip Biberfeld, Das Noachidische Urrecht. Frankfurt, 1937, page 64.
+If, as in Positive 178 above, a Noahite is under obligation to enlighten the court with his testimony, one may safely conclude that the Noahite has not met this obligation when his testimony leaves the truth unsaid. Cf. Philip Biberfeld, Das Noachidische Urrecht. Frankfurt, 1937, page 64.
 Thus, twenty from among the Mosaic 613 have application for the Noahite under Justice. According to Maimonides – and most writers probably would side with him - Justice purports nothing more than the spirit of these twenty items. However, Nahmanides (Ramban) objects. He views justice as signifying  much more.

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 ===Rabbi Yaakov Anatoli (1194-1256)===
-:When the Noahites were enjoined concerning Justice, they were put under obligation to create legal arrangements .... It is incumbent on the judges to draw up rules of equity that shall be appropriate for that particular country, as exemplified by the manner in which this matter is handled currently by the nations, severally. Likewise, it is incumbent upon merchants and upon the members of the trades to establish regulations for themselves... and whatever emerges as the law in this manner is law, as much as that which is written in the Bible. Furthermore, anyone violating this law violates Scripture, because Scripture commands the individual to accept the decisions of the contemporary jurists. The dictum, "The law of the land is the Law," relates to this concept.<ref>Quoted by Reuben Margolioth, Margolioth Hayarn. Jerusalem: Mosad Harav Kook, 1958, volume 11, page 20. (Sanhedrin 56b, section 9.)</ref>
+When the Noahites were enjoined concerning Justice, they were put under obligation to create legal arrangements .... It is incumbent on the judges to draw up rules of equity that shall be appropriate for that particular country, as exemplified by the manner in which this matter is handled currently by the nations, severally. Likewise, it is incumbent upon merchants and upon the members of the trades to establish regulations for themselves... and whatever emerges as the law in this manner is law, as much as that which is written in the Bible. Furthermore, anyone violating this law violates Scripture, because Scripture commands the individual to accept the decisions of the contemporary jurists. The dictum, "The law of the land is the Law," relates to this concept.<ref>Quoted by Reuben Margolioth, Margolioth Hayarn. Jerusalem: Mosad Harav Kook, 1958, volume 11, page 20. (Sanhedrin 56b, section 9.)</ref>
 ===Nahmanides===

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 Here again caution should be exercised not to misread Isserles to mean that all Noahic and Sinaitic laws are identical, and Isserles himself goes on to make mention of some aspects wherein the two systems differ. Still Isserles, more so than is apparent from the words of Nahmanides, sees the two systems as having a great deal in common. For according to Isserles, the civil laws of the two systems differ only where the Talmudic sources explicitly note the dissimilarity, "but otherwise one should not presume to exclude the Noahite from Mosaic principles."<ref>Moses Isserles, Sheilot U'Teshuvot Rarno, Sudylkow; Isaac Madpis, printer, 1835, page 7, Responsum 10.</ref>
-That Justice should be thought of as referring to a thorough going system containing points of law, as Nahmanides and Isserles see it, is denied by at least one early author. Jacob Anatoli (1194-1256) expresses the view, in his Hamelamed, that the Noahide tradition does not feature a comprehensive code of standard regulations under Justice. Anatoli writes:
+That Justice should be thought of as referring to a thorough going system containing points of law, as Nahmanides and Isserles see it, is denied by at least one early author. Jacob Anatoli (1194-1256) expresses the view, in his Hamelamed, that the Noahide tradition does not feature a comprehensive code of standard regulations under Justice. Nonetheless, Anatoli could agree to the inclusion of the twenty imperatives which are listed above as features of Noahide Justice. For these twenty are but manifestations of those two aspects by which the talmudic sources define Justice, (a) that courts shall be established and (b) that any act which contributes to an unjust decision be prohibited.
 ===Chaim Clorfene and Yakov Rogalsky===