“The Letter Kills, but the Spirit Gives Life”? On the Relevance of Jewish Concepts of Law for PostModern Legal Theory

Abstract

Is there anything that a contemporary (post-) modern legal theory could or even should learn from the traditional Jewish concept of law? Before we can look for an answer to this question, we should reply to an obvious objection. Apparently, our question implies that there is “the” Jewish understanding in a problematic singular, which can then be compared to “the” Christian or Islamic concept of law. Thus, in contrast to some attempts to describe the complex idea of “monotheism,” with all its multiple genealogies, transitions and recursive conjunctions, these different religions are portrayed as sharply disconnected, unitary phenomena. Yet we do not intend such an essentialistic perspective. We will neither neglect the fact that one can find totally different conceptions within the Jewish tradition nor claim that our view represents the “actual” Jewish conception, i.e. the conception most adequate in terms of the Jewish belief—not even in the paradoxical form that states that “controversy among authorities” is “the central unit in the study of Jewish law.” Our interest is not one stemming from the concerns of religious studies, but one of legal theory. Hence, what we claim is just this: there is within the Jewish tradition a concept of law which so closely interrelates text and interpretation that it undermines the classical hermeneutic idea of an author and the meaning that he wants to give to his text. This particular understanding of the law focused on the process of reading demonstrates a remarkable resemblance to certain post-structuralist analyses of the connection between a text and its reading. Within the Jewish tradition, we will argue, the constitution of language and the understanding of law are closely interrelated.