Early Jewish Law and
University Education

Roger P. Booth *

Wyclif argued in the 14th Century that if law was to be taught in the English
Universities, it should be English and not Roman.l His wish is not far from
fulfilment. Roman law is a declining academic stock; today some Universities
teach it not at all. But perhaps the pendulum has swung too far. We would agree
with Wyclif that English law should be the basic education at English law schools,
but the burden of this essay is that University undergraduates, embarking upon
law studies, should be offered a medium of comparison with English law for the
encouragement of their critical faculties, and of their appreciation of an alternative
legal treatment of social and commercial issues. Roman law is an excellent
medium in this regard, for in the thousand years between the Twelve Tables and
Justinian's Corpus the student can plot the course and causes of development of a
legal system from primitive state to high sophistication.

It may be objected that the training of the critical and historical faculties in
relation to law is not the purpose of a University law school. The prime purpose of
the University, this argument runs, is to provide academically trained entrants to
the professional law schools, and University teaching should be oriented towards
that destination. The teaching of the 'core' legal subjects by the Universities, so as
to provide exemption from the academic part of the professional examinations for
would-be practitioners, causes little diversion from this purpose, since those
subjects would probably be in the curriculum on most criteria. But the curricular
trend in the recent past in non-core subjects has been towards providing further
vocationally slanted courses at the expense of the more academic courses, and
historical ones in particular. Thus conveyancing, social welfare, taxation and
bankruptcy are well established in the undergraduate curriculum. It is
understandable that in a society plagued by unemployment, students should have a
greater desire to acquire practical knowledge which will enhance their usefulness
to an employer, but the claims of practical subjects for a place in the curriculum
raise the hoary conflict between utility and the cultivation of the intellect as the
main purpose of University education. Locke's contempt for the study of the
classics would no doubt extend to Roman and other ancient laws which have little

• Sometime Senior Lecturer in Law, University of Buckingham.
1. De Officio Regis (ed. Pollard and Sayle) (1887), p. 193.

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practical application for the Englishman to-day: "Can there be anything more
ridiculous", he writes, "than that a father should waste his own money, and his
son's time, in setting him to learn the Roman language, when at the same time he
designs him for a trade, wherein he, having no use of Latin, fails not to forget that
little which he brought from school ... ?"z

Newman, in opposing Locke, argued that general culture of mind is the best aid
to professional study, and that the man who has learned "to compare and to
discriminate and to analyse" will not at once be a lawyer or businessman or
engineer, but "will be placed in that state of intellect" in which he can take up any
such calling with a special versatility and success.3

In comparing the academic aproach to law with the practical Newman writes
that a Professor of Law in a non-University environment is "in danger of being
absorbed and narrowed by his pursuit" and of giving lectures which are only those
of a lawyer. The Professor in a University, however, will "know where he and his
science stand, he has come to it ... from a height ... he is kept from extravagance
by the very rivalry of other studies, he has gained from them a special illumination
and largeness of mind ... and he treats his own in consequence with a philosophy
and a resource, which belongs not to the study itself, but to his liberal education.,,4

Now, clearly, Newman is arguing for a breadth of liberal education which few
undergraduate law courses could hope to confer in the time available, but the
thrust of his contention, namely that the aim of University education is to train the
mind to sift, analyse and compare, rather than to instil the mass of detailed niceties
necessary for the practice of a profession, is, the present writer believes,
fundamentally correct.

Few would deny the stimulus to the powers of analysis which legal studies
provide: the determination of whether the consensus of offer and acceptance has
occurred, or whether an unexpected event has frustrated a transaction, are ready
examples from the English law of contract. But since the student has to digest so
much factual knowledge of what the law is, there is often too little time to train his
critical faculties by consideration of what the law ought to be; and it is here that a
tertium quid comparationis would be valuable. It can also be urged against legal
education in general that it allows no room for the use of the imagination - the
student's almost exclusive concern is the grasp of what the law is, here and now.

The study of law reform and the solutions of other systems to legal problems,
which stimulate the imagination, are not only liberal aspects of legal studies. They
do, as Newman claimed of liberal education, foster the agility of mind which
facilitates professional success. The lawyer's client, particularly his business client,
does not want to be told merely what the law is. He wants to be shown a legal route
to securing his business objective. He does not want to be informed simply that he
cannot structure a transaction in the way he proposed because it infringes a
2. Quoted in J_H. Newman, On the Scope and Nature of University EduC(ltion (Everyman edn.) (1915),

pp. 152-153.
3. Ibid., p. 159.
4. Ibid., p. 160.

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EARLY JEWISH LAW AND UNIVERSI1Y EDUCATION

statute; he wants to be shown legal machinery whereby he can achieve the same
object in a legal way. In other words, the lawyer needs to think constructively, and
with imagination, for ifhe serves only as a 'coin-op' shop for legal information, the
computer may render him redundant.

English legal history contains many examples of legal development through
lawyers' imaginative use of legal concepts. Karl Renner describes how legal
elements, joined to form a complex relationship, can be dissociated and
re-combined so as to perform a different social function. He cites the modern
hire-purchase agreement. The law concerning the sale of goods whereby a
purchaser in possession can make title to third parties, and the law concerning the
registration of chattel mortgages (which requires expensive formalities and enables
creditors to veto a transaction), created serious obstacles to instalment sales.
Creative lawyers solved the problem by putting the instalment sale into the form of
a hire for periodic rent with an option to purchase on paying a specified total of
instalments.5 It was the same imaginative cast of mind that enabled Chancery
lawyers to devise the floating charge rather than advise their lender-clients that
they could not realistically have a charge on the undertakings of borrowing
companies because, by fixing on the stock-in-trade, the normal charge would
prevent the companies trading. An early example concerns the statute De Donis
Conditionalibus. This was passed by the landowners in Parliament in 1285 because
the Courts had treated a gift ofland to "A and the heirs of his body" as a gift of the
fee simple conditional only upon an heir being born: when an heir was born, A
could convey the fee simple. This practice of the Courts deprived the great
landowners of the potential revenues arising from escheat for lack of heir,
forfeiture and wardship. De Donis therefore laid down that the tenant should have
no power to alienate his estate to the prejudice of his issue or the grantor. Creative
lawyers then advised their tenant clients to proceed with the sale of their land,
notwithstanding, and they inserted in the indenture a warranty by the grantor and
his heirs in favour of the purchaser, for title and quiet possession. By virtue of this
warranty, an heir who claimed to set aside his ancestor's alienation as unauthorised
would find himself bound by the warranty, and though his action for ejectment of
the purchaser might be successful, the consequent obligation to provide lands of
equal value in satisfaction of the warranty would render success a Pyrrhic victory.

Thus, the present argument is that a University law course should, inter alia,
attempt to cater for the student who wishes to include in his studies a subject
which will minister to his critical faculties, his historical sense and his powers of
imagination. For this reason, we urge that, as an alternative to Roman Law, early
Jewish6 law should receive consideration when law syllabi are compiled. Within
these criteria it has several merits.

* * * * *
5. The 11I5titutions of Private Law and their Social Function (English edn.) (1949).
6. For simplicity, we use the terms 'Jewish' and 'Jews' to indicate the people to whom the terms

'Hebraic' and 'Hebrews' would be more correct in their early history.

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By 'early Jewish law' is intended the period from about 400 B.c. when the
Pentateuch took final form, to about 200 A.D. when the next document,
specifically written to record the law, the Mishnah,1 was finally revised. The
stimulus to the student's imagination in being transported to an ancient religious
legal system, still retaining links with taboo and the influence of demonic force,
can hardly be exaggerated. A useful contrast with modern law whose sources lie at
hand in statutes and law reports, is that Jewish law's development within that 600
year span has to be charted with the aid only of occasional references in later Old
Testament books, such as Haggai and Daniel, in books from between the Old and
New Testaments, such as Jubilees and Enoch, the Dead Sea Scrolls and Philo, in
Josephus and in the New Testament documents ranging from circa 50-150 A.D.
This historical study has attracted, amongst legal historians, such eminent scholars
as David Daube,8 Haim Cohn,9 Duncan DerrettlO and Bernard Jackson.1 \ On the
whole, though, Pentateuchal and subsequent Jewish law has received much greater
attention from theological than law Faculties. The apparent reluctance of English
legal historians to investigate religious legal systems is disappointing, but not new;
Maine noted that the connection with Scripture had militated against acceptance
of the Patriarchal Theory of the primeval condition of society. "Inquirers", he
wrote, "were either influenced by the strongest prejudice against Hebrew
antiquities or by the strongest desire to construct their system without the
assistance of religious records." \2 Yet this law is a proper subject for study both by
theologians and lawyers, since it is, on its own claims, both the Word of God and a
legal system. The combined insights of both disciplines would surely produce the
most fruitful results. For even if the legal historian defines his territory cautiously
and denies that religious and ceremonial ordinances are truly 'law', there is much
law of a secular nature sanctioned by punishment from a Court (the Sanhedrin of
later times).

Anthony Phillips is a notable example of a scholar who is able to apply to early
Jewish law the disciplines both of the lawyer and of the theologian. Although
professionally a theologian, he is also a trained lawyer, and his studies of
Pentateuchal law seem to have benefited from his legal knowledge: important
features of his best-known work, Ancient Israel's Criminal Law: A New Approach to
the Decalogue,13 are his discernment that ancient Israel distinguished between
crimes and torts, and that the Ten Commandments in an original shortened

7. The date of the Tosephla, another collection of halakholh, is much disputed by scholars. Literally,
Tosephla means 'additions' (to the Mishnah), but some of its sources are old. It is traditionally
considered to have been compiled shortly after the Mishnah.
8. See, e.g., his Studies ill Biblical Law (1947).
9. See, e.g., his "Prolegomena to the Theory and History of Jewish Law", in Essays illJurisprudellce ill

HOllor of Roscoe Poulld (1962).
10. See, e.g., his Law illlhe New Teslametll (1970).
II. See, e.g., his Theji ill Ear()' Jewish Law (1972).
12.Allcit'1/t Law 5th ed. (1894), pp. 122-123. His Patriarchal Theory has since been strongly doubted:
see Stein, Legal Evolutioll. pp. 101-103.
13. Oxford, 1970.

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version given at Sinai, were Israel's criminal law before the Exile. In a recent
article,14 Phillips has maintained that in the earliest legal traditions in the Old
Testament offences against the person, such as murder and assault on parents, are
punishable by the community with the imposition of the death penalty, while
offences against property are civil offences for which compensation is payable.
Here again his insights as a lawyer have surely assisted his research.

Admittedly, the lawyer, untrained in Biblical criticism, meets the difficulty of
determining what in a particular text is probably original, and what is later revision,
but here he can build upon the literary-critical researches of his theological
fellow-workers in the field.

The Jewish law covers every aspect of life: there is no distinction between the
religious and the secular, since God's will, revealed in the Law, extends to the
whole of life. In that the law thus includes the personal areas of life within its
control, for those who, like this writer, still identify a legal rule by its accompanying
sanction, the sanctions within these areas challenge the very definition oflaw. For
example, the sanction for breach of the laws of ceremonial purity was the
disqualification of the impure person from entry to the Temple, unless he or she
had first undergone the appropriate lustration and period of waiting. IS But how
could these laws by policed? The male and female sexual discharges are a potent
source of impurity, yet who was to know, except the sufferer, whether he or she
had sustained impurity through such an occasion? Jehoiada, a 9th Century Chief
Priest, is reported at 2 Chronicles 23, 19 to have placed keepers at the gates of the
Temple so that nobody unclean should enter, but the aim seems incapable of
realisation. Probably the only sanction was the sufferer's conscience or fear of
divine retribution. The Fathers According to Rabbi Nathan, 16 a 3rd or 4th Century
A.D. collection of haggadah, 17 explains the sanction thus: " ... one has suffered a
pollution. If he is so minded he bathes; if he is otherwise minded he does not
bathe. Does anyone see him, or does anyone know to tell him ought? He fears only
Him who commands ritual immersion.,,18 This sanction appears to be within
Austin's "eventual evil annexed to a command", if "evil" be rather interpreted as
"penalty". 19

Not only is the distinction between the secular and the religious absent in a
religious system, but there is also identity between law and ethics. Since Jewish law
is the revealed Will of God who is perfect holiness,z° the law, in addition to
command, must represent the highest moral good.21 To this statement one

14. "The Decalogue - Ancient Israel's Criminal Law", 34 Jo. of Jewish Studies (1983), pp. 1-20.
IS. See, e.g., Leviticus 15,28-31. Cf The Code of Maimollides (tr. Danby) (\ 954), Bk. X, p. 393.
16. (Tr. Goldin) (1955), p. 18.
17. Spiritual, homiletical and legendary material generally linked to a Scriptural text.
18. Pursuant to Leviticus 15,16.
19. Leclures 011 Jurispntdellce 4th ed., Vol. I, pp. 182-183.
20. See, e.g., Isaiah 6,3-5.
21. See, e.g., Micah 6,8; Amos 5,14-i5. Maine, supra n.12, writes at p. 16 concerning the ancient
Codes that the severance of law from morality, and of religion from law, belongs to the later stages of
mental progress. However, in the case of a divinely revealed law, its unity with religion and morality
cannot be severed.

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qualification must be made: in the Jewish religion there was a tension between its
two aspects, the Temple and cult, and the prophets, between the service of God
through the performance of correct ritual, and his service through righteous
conduct.22 Although the prophetic ideals clearly influenced the Book of
Deuteronomy, on the whole, the emphasis in the Pentateuchal law was on the
ceremonial service of God. A social system in which law can possess such an
elevated status surely merits study in its practical application, for even Courts of
Equity in England do not usually claim that equitable duty is co-terminous with
moral duty. Thus in Re Cawley fS CO.23 Fry L. J. admitted, "If we were sitting in a
court of honour, our decision might be different", and in Buttle v. Saunders,24 by
requiring trustees to 'gazump' in the financial interest of the beneficiaries, the
Court prevented trustees from following the acknowledged practice of honourable
businessmen. The reputation of Equity as a modern arbiter of ethics was pithily
encapsulated by the Judge whose name we salute in this Journal, when,
commenting on the suggestion that a father was entitled to recover dividends
which he had caused his company to declare, and pay for the benefit of his
children, he exclaimed, "Even a Court of Equity would not allow him to do
anything so inequitable and unjust. ,,25

However, even in Israel the law, and the moral values which it reflected,
developed with its history; and the history of Jewish law is a fascinating account of
how Codes were adapted by means of commentary26 and of fiction, to serve the
changing needs of a primitive agrarian society gradually growing more civilised.

The most primitive Code is usually considered to lie in Exodus 34, since it
contains a list of ten, mainly short, commandments, most of which relate to
religious festivals and sacrifices appropriate to a pastoral community. Unlike the
Decalogue in Exodus 20, there are no moral commands. It is thought to date from
the 9th Century. The later part of the Covenant Code, Exodus 20-23, is dated in
the 8th Century, and examples of its ethical provisions are that widows and
orphans shall not be afflicted,27 or usury taken from the poor. 28 The
Deuteronomic Code (Deuteronomy 12-26) is believed to be the book of the law
discovered in the Temple in 621 B.c.;29 it is more comprehensive, is suited to a
more civilised society, and contains charitable and humanitarian provisions. For
example, the man who has just built a house, or planted a vineyard, shall not be
conscripted for war. The same applies to the faint-hearted and the recently

22. See, e.g., Amos 5,21-24; Isaiah 1,12-17; Jeremiah 7,1-7, 21-23.
23. (1889) 42 Ch.D. 209, 236.
24. [1950] 2 All E.R. 193.
25. Re Vandervell's Trusls (No.2) [1974] 3 All E.R. 20.
26. Both ancient and modern Codes have thus received an extended life; see the commentaries on the
Roman Praetor's Edict and on the French Code Civile in Allen, Law i,1 Ihe Making 7th ed. (1964), pp.
165-187.
27. Exodus 22,23-24.
28. Exodus 22,25.
29. 2 Kings 22,8.

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EARLY JEWISH LAW AND UNIVERSITY EDUCATION

married.30 A similar kindness is to be shown to animals; the ox is not to be muzzled
while threshing.31 The remission of debts in the 7th year,32 the rules of
primogeniture in inheritance33 and the law of levirate34 (a man's obligation to
marry his deceased brother's widow) are examples of increasingly civilised
'lawyers' law. This Code largely repeats and supplements the Covenant Code, but
the additions and variations exhibit a more sophisticated society. Thus, the
compensations to be paid for various injuries35 are omitted from the later Code,
which presumes the sitting of permanent judges36 to decide such matters.

The Priestly Code, probably written during the Exile in the 6th Century B.C. is,
apart from its core, the Holiness Code of Leviticus 17-26, law in the form of
history; what happened in the past is recounted so that it may regulate what is done
to-day.37 This creation of precedent by historical narrative is an intriguing
variation of stare decisis. The Priestly Code fills Leviticus and most of Numbers,
and is scattered through Genesis and Exodus. Not surprisingly, it enhances the
role of the priesthood, and elaborates the ceremonial law. 38 Genesis 2,1-3 and
9,1-17, illustrates the way in which the Priestly authors make law by their writing
of supposed history. Institution of the Sabbath rest is attributed to Yahweh in
creation, and the basic laws considered to be binding even on Gentiles (not to eat
blood and not to shed it), are inserted in a covenant with Noah. Similarly, a
decision by David concerning the distribution of spoil between combatants and
non-combatants (1 Sam. 30,24) reappears in the Priestly Code (Numbers 31,27)
as an alleged part of the Mosaic laws.

The achievement of the Sopherim39 and scribes in adapting this ancient written
law to the changing mores and circumstances of later times, by means of the
interpretation of it, should commend itself to the student of legal history.
Following neglect of the law by generations of the exiled who had been allowed by

30. Deuteronomy 20,5-8.
31. Deuteronomy 25,4.
32. Deuteronomy 15,1-3.
33. Deuteronomy 21,15-17.
34. Deuteronomy 25,5-10.
35. As at, e.g., Exodus 21,18-24,32.
36. Deuteronomy 17,8-11.
37. Judaism is an 'historical' religion for the faith is founded on 'salvation' events; that Yahweh
delivered Israel from slavery in Egypt, and delivered the law to Moses on Sinai. The former historical
root is reflected in the latter. The reason for the Jew, his servants and his cattle not working on the
Sabbath, for releasing slaves and furnishing them liberally in the seventh year, and for not denying
justice to the sojourner or fatherless, is that "you were a slave in Egypt and the Lord your God released
you from there": Deuteronomy 5,12-15; 15,12-15; 24,17-18.
38. The Code is, in part, idealised law, representing what its authors would like to prevail. Cf Maine,
supra n.12, p.17 speaking of the religious oligarchies of Asia: "Their complete monopoly of legal
knowledge appears to have enabled them to put off on the world collections not so much of the rules
actually observed as of the rules which the priestly order considered proper to bc observed."
39. Traditionally the Sopherim (literally 'Writers') are identified with the Men of the Great Synagogue
(led by Ezra) to whom the Law is said at Aboth 1,1 to have been committed by the Prophets. However
the Sopherim and the scribes are often grouped together as 'the scribes', since Ezra is himself
described as 'the scribe' (Nehemiah 8,1).

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Cyrus to return from Babylon to Jerusalem (circa 535 B.c.), Ezra publicly read the
law in 444 B.c.40 and Scripture emphasises that the Levites "helped the people to
understand" the law, and "gave the sense so that the people understood the
reading" (Nehemiah 8,7-8).41 At first, the adaptation was effected by exegesis of
particular verses of Scripture, and examples of this method ('Midrash') are
preserved in the Rabbinical commentaries, Mekhilta, Sifre and Sifra.42 But with
the advent of Hellenistic ideas and customs, following Alexander's Eastern
conquests, the Sopherim were unable to relate them to the Codes, and the
influence of the Sopherim consequently waned. At this point Jewish jurisprudence
by means of a remarkable fiction, at least to the secular mind, sowed the seeds of
an unstoppable growth and development. Since some of the new ideas were good
and sensible, even though no support for them could be found in the written
Codes, some teachers argued that there must be divine authority for them, and
that some laws must therefore have been delivered to Moses at Sinai by word of
mouth. Attempt was still made by these teachers ('scribes') to base a legal ruling
('halakhah') upon a Scriptural text, even if only tenuously,43 but much freer
interpretation of the text was permitted.44 Where the meaning of the text could not
be stretched far enough even by this method the favoured practice was deemed to
be a law handed down by Moses at Sinai.45 However, a rule or custom was only
accepted by the scribes as traditional law in this sense if its authenticity was
guaranteed by the pronouncements of earlier scribes.46

The authority which this mythical origin at Sinai gave to the Unwritten Law,
enabled the scribes to interpret the Written Law in ways which sometimes

40. It is uncertain whether the whole Pentateuch was read or simply the Priestly Code, but "it is clear
that only alier Ezra's activity did the priestly source come out into the daylight": M. Haran, "Behind
the Scenes of History: Determining the Date of the Priestly Source" ,)0. of Biblical Lileralure (1981), at
p.324.
41. This probably signifies that the Sopherim both translated the text into the vernacular Aramaic, and
explained it.
42. On Exodus, Numbers and Leviticus respectively. In their original form they are dated in the 2nd
Century A.D.
43. Thus, Leviticus 11,40 provides that he who eats the carcass of a beast which has died naturally shall
be unclean. This was interpreted to mean not that non-kosher meat defiled the eater, but that the
minimum amount of unclean meat which a person has to bear or touch, to be defiled, is the minimum
amount that could be termed 'eating', i.e. a piece the size of an olive (Sifra; Niddah 42b).
44. Nevertheless, permissible methods for extracting further rules (halakholh) from the written text
were laid down; the first such set of rules, the 7 Middoth, were attributed to Hillel (Tosephta,
Sanhedrin 7,11).
45. R.Joshua b. Hananiah, prominent in the academy established at Yavneh after the destruction of the
Temple in A.D.70, criticised halakllOlh with little Scriptural support: a nail maker by trade, he said,
"Tongs were made with tongs, but who made the first tongs?" (Tosephta, Haf,rigah 1,9). He was
referring (inler alia) to the Sabbath laws which "are like mountains hanging by a string, for they have
little Scripture for many laws" (ibid.).
46. £.f(., at Mishnah, Eduyoth 9,7 the said R. Joshua declared: "I have received as a tradition from
Rabban Johanan b. Zakkai, who heard from his teacher, and his teacher from his teacher, as a Halakhah
given to Moses from Sinai that .. "

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EARLY JEWISH LAW AND UNIVERSITY EDUCATION

conflicted with its common-sense meaning.47 Thus, Exodus 22,1 provides that if a
man steals an ox or a sheep and kills or sells it, he must restore five or four-fold
respectively. The scribes ruled that if he stole according to the evidence of two
witnesses, but killed or sold according to only one person's evidence, then the
tariff of restoration was only two-fold (which applied to theft of entrusted money
or goods: Exodus 22,7).48 This scribal freedom was often exercised to alleviate the
severity of the Written Law,49 and sometimes without attempt at Biblical
interpretation. The lex talionis (Exodus 21,23) which was intended to restria
unlimited private revenge, was repealed by the scribes' substitution of pecuniary
damages (Mishnah, Baba Kamma 8,1). Jewish history accordingly offers a rich
account of the development of law through commentary upon Code and through
fiction.

To the student of legal history, the humanitarian trends of the Pharisaic law
afford a noteworthy comparison with the influence of Equity on the English
Common Law. As just discussed, the rigour of the Written Law was often avoided
by the use of the rules of evidence. The evidence of at least two witnesses was
required in a capital case. so If the evidence of the witnesses disagreed even on
minor points, e.g. if one said the offence took place at the fifth hour and another
the seventh hour (Mishnah, Sanhedrin 5,3), their entire evidence was rejected.S1

Study of the Unwritten Law reveals many examples of that creative approach to
law which the University should seek to inculcate. One effect of the release of
debts every 7 years (Deuteronomy 15,9) was the difficulty of borrowing money in,
say, the 6th year. Thus the famed Pharisee, Hillel (founder of one of the two
competing schools of Pharisaic thought), instituted the prosbul which, through a
declaration by the creditor before the Court, negatived the operation of that law.s2

Again, Deuteronomy 24,1 provides that a man may divorce his wife simply by
delivering a bill of divorce, but the scribes, by requiring detailed formalities
affecting this documentS3 and by institution of the ketubah (whereby the husband
had to charge his assets to secure payment of the dowry to the wife on widowhood
or divorce), 54 sought to protect the wife's position.

47. The scribes varied in degrees of conservatism according to their willingness to accept new
halakhoth. R. Eliezer b. Hyrcanus (a contemporary of the said R.Joshua, and a frequent disputant with
him) would not pass on an halakhah to his students, unless it had been handed down by teachers of two
previous generations. R.Joshua is thought to have disapproved of the multiplication of halakhoth, for he
would say of a recent ruling cited to him, "The Scribes have invented a new thing, and I cannot make
answer (to them that would gainsay them)"; e.g., Kelim 13,7.
48. 8aba Kamma 7,4.
49. A guiding principle of the scribes was not to impose a rule which most people would be incapable of
observing (8aba 8athra 60b).
SO. Deuteronomy 17,6.
51. Shebiith 9,3-4. In the History of Susanna the capital conviction of Susanna by the Jewish elders for
adultery was quashed when Daniel, in separate examination of each of the two witnesses, elicited from
one that the act was done under a mastick tree, and from the other under a holm tree.
52. Shebiith 10,3-4.
53. Gillin, passim.
54. Shabo 14b and see the Soncino Talmud, Moed I, p. 59, n. 6.

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The role of intent in Jewish law also repays study. Indeed, one would expect
internal state of mind to be important in a religious law. Intention was an essential
component in the legal effect of an act from an early stage, and the old Common
Law rule that a man may be presumed to intend the natural consequences of his
acts,55 does not usually Operate. Deuteronomy 19,4-13, provides that if a man kills
his neighbour unintentionally, as where the head of the tree-cutter's axe slips from
the handle and kills, he may flee to a city of asylum. But where a man lies in wait
for, and attacks his neighbour fatally, and then flees to a city of asylum, the elders
may recover him and hand him over to the avenger. Pollock's claim that "Even
manifest intention is hardly treated as a possible or proper subject-matter of
judicial proof in archaic systems oflaw,,56 accordingly appears open to question. In
Mishnaic times, state of mind has the same importance both in religious and civil
matters. If a man recites the Shema (daily prayer) without directing his heart to it,
he has not fulfilled his obligation (Berakoth 2,1). Again if a man only intends to
strike another on the loins, but the blow lands on his heart and kills him, the striker
is not liable for killing (Sanhedrin 9,2).57 Liability for injury by even an ox is
determined by what the ox intended (Baba Kamma 5,4)!

Jewish law offers the student interesting insights into the function of custom in
the growth oflaw. Although the Jews believed the Covenant Code to be the Word
of God, it seems probable that, like the Twelve Tables of R0me, it comprised
accumulated custom. Although the Deuteronomic Code contains hortatory
matter, and the Priestly Code idealism, later custom is surely embedded there too.
And in the traditional law enunciated by the scribes, there is reason to believe that
many rules were giving legal sanction to customs. Thus, Hillel was asked whether
it was permissible for the worshippers on the Passover to bring knives to the
Temple for the slaughter of their sacrificial lambs, even when the Passover fell on
a Sabbath, since on the Sabbath the carrying of articles may constitute a breach of
the prohibition of work. 58 Hillel told his questioners to observe what, in fact, the
people were doing on such a Sabbath, and they noticed that the worshippers had
attached the knives to the animals they were leading. The rule was, therefore, that
to this extent the Passover over-rode the Sabbath.59

A most significant feature of this different thought-world, for the imaginative
student, is the Jewish joy in fulfilling the commands of the law which contrasts with

55. R. v. Haroey [1823] Z B.&C.Z57. Winfield inA Textbook of the Law of Tort, 5th ed. (1950) wTOte at p.
20: "If I fire a gun at your dog, wishing merely to scare it, and in fact some of the pellets hit it, it does
not lie in my mouth to say that I intended only to scare it and not to hit it. And it would be equally idle
for me, at any rate in the law of tort, to say that I never wished to hit you, if in faCI some of the shot
glanced off the ground and wounded you who were standing near your dog."
56. A First Book of Jurisprudence 6th ed. (1929), p. 159.
57. Admittedly, there is liability in some cases, particularly in matters of ritual, irrespective of
knowledge of the act or intent: see, e.g. Leviticus, 4,13; 5,1-6.
58. Shabo 1,1-3. Concerning the influence of custom and the folkways in the' formation of law in a
theocratic society, see also the presenl writer's Jesus and the Laws of Purit)' OSOT Press, Sheffield,
1986).
59. Tosephta Pisha 4,14.

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EARLY JEWISH LAW AND UNIVERSITY EDUCATION

the often reluctant and critical attitude towards the law's requirements in a
secularly based system. Expressions such as the Psalmist's "Oh, how I love thy
law! It is my meditation all the day" and "Blessed is the man ... his delight is in
the law of the Lord, and on his law he meditates day and night" 60 indicate the
devotion of the orthodox to a religious legal sytem.

* * * * *
This writer is not aware of any text-book of early Jewish law written specifically
with the law-student in mind, but we have mentioned most of its literary sources
above, and it would not be beyond the competence of the teacher to give in his
lectures the necessary historical background and explanation of those sources.

This trumpeting of the claims of early Jewish law to a place as an optional course
in academic legal syllabi is not intended to deprecate the claims of other systems of
ancient religious law, such as the Hindu or the Moslem, which we understand
already to be optional courses in the LL.B. curriculum at the School of Oriental
and African Studies of London University. Indeed, the greater current prevalence
of those systems in Britain's multi-racial society, will enhance their attraction for
the proponents of utilitarianism. We are submitting only that the purpose of a
University ought to be the conferment of a liberal education upon its students and
that, within the context of an academic legal education, early Jewish law's embrace
of religion, jurisprudence, ancient history and literature, renders it a suitable
medium to that end, stimulating, as it will, the student's imaginative and creative
powers no less than his historical and critical faculties.

60. Psalms 119,97; 1,1-2. The element of joy in Judaism is sometimes overlooked. The early law
stipulated, "you shall rejoice before the Lord" at the feast of Weeks, and "you will be altogether joyful"
at the feast of Booths (Deuteronomy 16,11 and 15). This spirit extended into later times. The said R.
Joshua declared that on a Festival day a man should devote half his time to God and half to
merrymaking (Bezah ISb), and at Shabo 118b we read, "He who delights in the Sabbath is granted his
heart's desires."

39