Professional Documents
Culture Documents
BERNARD S. JACKSON
UNIVERSITY OF MANCHESTER
Abstract
This article reviews Neusner, Sonn and Brockopp’s Comparing Reli-
gions Through Law: Judaism and Islam and Judaism and Islam in Prac-
tice. A Sourcebook. It highlights the methodological choice between
an ‘external’ approach, imposing a clear tertium comparationis, but at
the risk of violating understandings within each tradition, and an ‘in-
ternal’ approach, where the comparison might lack a common ana-
lytical basis. In jurisprudence, a ‘moderate external point of view’ has
come into favour, and this broadly accords with the approach in these
volumes. In this context, the authors’ approach to ‘disproportions’
between the two traditions and their respective ‘unique categories’
(‘enlandisement’, jihad), and their relationship to political history
(viewed primarily internally), is discussed, as is the use of the orality/
literacy spectrum as an external criterion. This leads to consideration
of the nature of authority within the respective systems, and to the
‘religious’ character of the content of the rules.
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questions of the interplay of the life of the faithful with the move-
ment of heavenly bodies.
The methodological dilemma may be posed most directly in rela-
tion to the political history of the two communities. Do the dispro-
portions and unique categories stem from the fact that the classical
sources of Islam derive from a politically dominant, those of Judaism
from a politically servient community? That kind of causal external
question, like that of the actual religious behaviour of adherents to
the two traditions, is acknowledged but avoided: ‘Ours is a study in
the history and comparison of religions viewed as intellectual con-
structions. We give an account of how sages imagine things, not how
people actually conducted themselves’ (CRL 10). Their interest does
extend to ‘the two religions’ respective conceptions of history’, which,
indeed, provide the rationale for the ‘unique categories’ (CRL 192).
However, they are not prepared themselves to indulge in ‘comparison
in more secular terms’, such as ‘geographical determinism, for in-
stance, finding in the common trait of groups of people resident in
the desert — Israel in Sinai, Muhammad and the first Muslims in
Arabia — a reason for the severe monotheism, the intense legalism,
characteristic of both religions. Quite how and why this and kindred
secular explanations accomplish their tasks we do not claim to grasp.
While this-worldly explanations, deriving from historical and social
circumstance, may serve, in our view we do well to consider the con-
figuration of the theology that animates each religion as well’ (CRL
247f.). If anything, they incline to see the causal relationship in the
opposite direction. To the question: ‘what have culture and politics
to do with meeting God in books?’ (CRL 248), the answer is given:
‘Books are artifacts of culture. They require readers, meaning endur-
ing media of formulation and transmission — whether schools and
teachers or inchoate and intangible media of child-raising patterns,
family constructions, implicit expectations, and the other enduring
means by which culture transmits itself. And culture spills over into
politics…’
At root, what is of interest to the authors is the relationship be-
tween the (internal) ‘conceptions of history’ of the two religions and
the religious meaning of their legal institutions. There may well be a
relationship between the external analysis of real history and these
internal (historical, theological, legal) conceptions. But that is be-
yond the present project. Nevertheless, they are prepared to assert: ‘If
we did not know the historical fact that Islam is a world-conquering
religion, with vast successes in its history, and that Judaism is a
world-imagining religion, with a record of defeat to consider, from
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learning and charisma, gifts of intellect and gifts of the soul and the
spirit’ (CRL 150).
Yet there are elements in the present account which might them-
selves seem to point in other directions. The Mishnah is said to be
‘worked out through the modes of inquiry of natural history — clas-
sification of genera and species in a hierarchical structure’ (CRL
83f.). But is this not ‘analytical’, in the sense understood by Joseph
Schacht when he wrote:
There are two methods by which legal subject-matter can be brought
into a system, the analytical and the analogical. The analytical method,
the classical example of which is provided by Roman law, leads to the
creation of logically organised legal norms in an ascending order. The
analogical method leads to the organisation of legal subject-matter by
parataxis and association. Islamic law represents this latter type of sys-
tematising in great purity, and this corresponds with the type of think-
ing expressed by the Arabic language. Closely connected with this way
of thinking is the casuistical method, which is indeed one of the most
striking features of traditional Islamic law. All these features are mani-
festations of a typical way of thought which pervades the whole of Is-
lamic law and which has determined the organization of the legal sub-
ject-matter in all its aspects. (J. Schacht and C.E. Bosworth [eds.], The
Legacy of Islam, 2nd edn. [Oxford 1974], 397).
Conversely, analogical reasoning (qiyas) in Islamic law (which ‘would
find instant recognition among the Talmudic sages’, CRL 101) is not
always regarded (externally) as quite so logical or abstract as is here
suggested. Its identification with ‘formal syllogistic reasoning’ (CRL
56) is contentious (see R. Brunschvig, ‘Logic and Law in Classical
Islam’, in Logic in Classical Islamic Culture, G.E. Grünebaum [ed.]
[Wiesbaden 1920], 16–19, esp. 18; Jackson, ‘A Semiotic Perspective
on the Comparison of Analogical Reasoning in Secular and Religious
Legal Systems’, in A. Soeteman [ed.], Pluralism in Law [Dordrecht
2001], 295–325). The more abstract and intellectual character of Is-
lamic law is supported also by the claim that it is more explicit than
the Halakhah in its methodology: ‘Islam’s science of usul al-fiqh ar-
ticulates its hermeneutical principles, including analogical reasoning
and consensus’ (CRL 240), while ‘Judaic law deals more with the
what than the how, with the contents of the law than with the meth-
ods by which those contents are delineated. When we come to ask
about the intellectual sources of Judaism, we have to work back from
the exposition of the law to the principles which guide that exposi-
tion’ (CRL 81). The latter judgment is certainly true of the Mishnah
and Tosefta, from which the major part of the Jewish material in
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these volumes is taken, but would the picture not appear a little dif-
ferent had the halakhic midrashim also been used — not to mention
the Baraita deRabbi Ishmael at the beginning of Sifra, which this re-
viewer has often thought goes further than anything in contempo-
rary Roman law in attempting to systematise its hermeneutical prin-
ciples?
The arguments for orality from the nature of talmudic debates
and the manner of transmission of the tradition also point in more
than one direction. The traditional view of the Tanna (a charismatic
figure?) is that what he recited from memory was a fixed text.
If, moreover, ‘the debates in the Talmud can and must be recon-
structed’, that implies (as can hardly be disputed) that the talmudic
text does not provide verbatim accounts of the oral debates in the
academy. Neusner does not address the arguments of Louis Jacobs
that the talmudic text was a literary construction ab initio. No doubt
even that position would be susceptible in principle to Ong’s insight
that written texts, in the transition from orality to literacy, may bear
traces of ‘oral residue’. My own sense is that we encounter that stage
at a much earlier (biblical) period of the tradition, and indeed that
the Rabbis build upon the considerable literary artifice already em-
ployed in the latter stages of biblical law.
There are, indeed, important elements of charismatic authority in
the rabbinic judge. I have myself argued that adjudication was con-
ceived originally to be the province of the inspired judge rather than
the inspired text (e.g. ‘L’ebraismo come ordinamento giuridico reli-
gioso’, Daimon. Annuario di diritto comparato della religioni 1 [2001],
170–5; English version forthcoming in A. Huxley [ed.], Religion,
Laws and Traditions. Comparative Studies in Religious Law [Rich-
mond]). In Judicial Deviation in Talmudic Law (Chur 1991),
Haninah Ben-Menahem analysed some thirty cases in the Talmud
where a judge made a decision ‘not in accordance with the halakhah’.
Yet however important this may be historically and conceptually, it is
not presented as the norm. A more typical activity, for which
semikhah indeed provided a charismatic form of legitimation, was the
interpretation of the Biblical text.
The effect of these observations, perhaps, is that we should pay
full regard to the qualifications built into the authors’ formulation:
While both systems incorporate written and oral material, in Islamic
law the characteristics of literate culture predominate, although, as we
have seen, some oral patterns are still evident. Judaic law, by contrast,
retains the characteristics of oral culture… (quoted above, emphases
now supplied)
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