Hanina Ben-Menahem
Encyclopedia
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.
Oxford
The city of Oxford is the county town of Oxfordshire, England. The city, made prominent by its medieval university, has a population of just under 165,000, with 153,900 living within the district boundary. It lies about 50 miles north-west of London. The rivers Cherwell and Thames run through...
trained scholar at the Hebrew University of Jerusalem
Hebrew University of Jerusalem
The Hebrew University of Jerusalem ; ; abbreviated HUJI) is Israel's second-oldest university, after the Technion – Israel Institute of Technology. The Hebrew University has three campuses in Jerusalem and one in Rehovot. The world's largest Jewish studies library is located on its Edmond J...
who specializes in Jewish law (Halakha
Halakha
Halakha — also transliterated Halocho , or Halacha — is the collective body of Jewish law, including biblical law and later talmudic and rabbinic law, as well as customs and traditions.Judaism classically draws no distinction in its laws between religious and ostensibly non-religious life; Jewish...
).
Ben-Menahem is critical of the legal positivist
Legal positivism
Legal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. However, the most prominent figure in the history of legal positivism is H.L.A...
approach that dominates Mishpat Ivri
Mishpat Ivri
Mishpat Ivri In content, Mishpat Ivri refers to those aspects of Halakha that many in modern society generally consider relevant to "non-religious" or "secular" law...
, 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.
Selected works
- Judicial deviation in Talmudic law (1991)
- "Towards a jurisprudential analysis of the kim li argument" in Shenaton Hamishpat ha-Ivri 6-7 (1979-80)
- "Is there always one uniquely correct answer to a legal question in the Talmud?" in the Jewish Law Annual 6 (1987) 169-173
- Ben-Menahem, H. and Hecht, N.S., eds. Authority, Process and Method: studies in Jewish law. 1998
- "Postscript: the judicial process and the nature of Jewish law" in An introduction to the history and sources of Jewish law" eds. Hecht, Jackson, et al. Oxford: Clarendon Press, 1996
- "Maimonides on equity: reconsidering the Guide for the Perplexted III:34" in the Journal of Law and Religion v.XVII, nos. 1 & 2, 2002 pp. 19-48.