Mishpat Ivri
Encyclopedia
Mishpat Ivri 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.
Subjects covered in Mishpat Ivri include, but are not limited to:
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 an Israeli marriage and divorce law.
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...
("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
Israeli law
Israeli law is a mixed legal system reflecting the diverse history of the territory of the State of Israel throughout the last hundred years , as well as the legal systems of its major religious communities...
.
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.
Subjects covered in Mishpat Ivri include, but are not limited to:
- Property rights
- Torts, called DamagesDamages (Jewish law)In Jewish law, damages covers a range of jurisprudential topics that roughly correspond in secular law to torts. Jewish law on damages is grounded partly on the Written Torah, the Hebrew Bible, and partly on the Oral Torah, centered primarily in the Mishnaic Order of Nezikin...
in Jewish law - Contracts
- Public lawPublic lawPublic law is a theory of law governing the relationship between individuals and the state. Under this theory, constitutional law, administrative law and criminal law are sub-divisions of public law...
- International lawInternational lawPublic international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
- SalesSalesA sale is the act of selling a product or service in return for money or other compensation. It is an act of completion of a commercial activity....
- RentingRentingRenting is an agreement where a payment is made for the temporary use of a good, service or property owned by another. A gross lease is when the tenant pays a flat rental amount and the landlord pays for all property charges regularly incurred by the ownership from landowners...
- OwnershipOwnershipOwnership is the state or fact of exclusive rights and control over property, which may be an object, land/real estate or intellectual property. Ownership involves multiple rights, collectively referred to as title, which may be separated and held by different parties. The concept of ownership has...
- NegligenceNegligenceNegligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
- Legal liabilityLegal liabilityLegal liability is the legal bound obligation to pay debts.* In law a person is said to be legally liable when they are financially and legally responsible for something. Legal liability concerns both civil law and criminal law. See Strict liability. Under English law, with the passing of the Theft...
- CopyrightCopyrightCopyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
Within classical rabbinic Judaism, all Mishpat Ivri subjects are also subsumed under 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...
(Jewish law in general).
Scholars of Mishpat Ivri typically adopt methodologies based on legal positivism
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...
. Notably, Menachem Elon
Menachem Elon
Menachem Elon , an Israeli jurist, who served as a justice on the Israeli Supreme Court and its Deputy President ....
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
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...
. While useful for comparative law
Comparative law
Comparative law is the study of differences and similarities between the law of different countries. More specifically, it involves study of the different legal systems in existence in the world, including the common law, the civil law, socialist law, Islamic law, Hindu law, and Chinese law...
purposes, the legal positivist approach to Mishpat Ivri has been questioned by some scholars, such as Hanina Ben-Menahem
Hanina Ben-Menahem
Hanina Ben-Menahem is an Oxford trained scholar at the Hebrew University of Jerusalem who specializes in Jewish law .Ben-Menahem is critical of the legal positivist approach that dominates Mishpat Ivri, a comparative legal approach to Halakha...
and Bernard Jackson
Bernard Jackson
Bernard Stuart Jackson is a former law professor, and from 1997-2009 was Alliance Professor of Modern Jewish Studies at the University of Manchester, Co-Director of the and Director of its . He is now Professor of Law and Jewish Studies at Liverpool Hope University...
.
In the modern State of Israel
Israel
The State of Israel is a parliamentary republic located in the Middle East, along the eastern shore of the Mediterranean Sea...
, Mishpat Ivri has become one of the lesser ongoing sources for contemporary Israeli civil law
Private law
Private law is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts or torts, as it is called in the common law, and the law of obligations as it is called in civilian legal systems...
, 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 an Israeli marriage and divorce law.