1. Kaplan, Avraham Eliyahu, Yesodei ha-Mishpat ha-'Ivri, in be-'Ikvot ha-Yirah: Divre Mahashavah 67, 67 (Mosad ha-Rav Kook 1959) (critique of Gulak's Yesodei)Google Scholar.

2. Eisenstadt, Shmuel, be-Sifruteinu ha-Mishpatit (In Our Legal Literature), 31 ha-Shiloaḥ 181, 184 (critique of Gulak's Yesodei)Google Scholar.

3. I will henceforth refer to the terms “Jewish Law” or Halakhah to distinguish them from the term Mishpat 'Ivri (“Hebrew Law”), a term that was generally shunned by both R. Herzog and other Rabbis, as we will see below (especially infra n. 13). It also should be noted that whenever I speak about “religious” position or ideology, I mean the Jewish Orthodox concept of Judaism and Jewish law.

4. Herzog, Isaac, Pesakim u-Ketavim, vol. 9, 405, at 405 (Shapira, Shlomo ed., Mosad ha-Rav Kook, Yad ha-Rav Herzog 1991)Google Scholar. See also id. at 9. Hereinafter, the emphases are mine unless indicated otherwise. For a comprehensive study on the issue of mental consensus in Jewish law, see Deutch, S., Mental Consensus (Gemirat Da'at) and Intention to Create Legal Relations in Jewish, English, and Israeli Contract Law, 6-7 Shenaton ha-Mishpat ha-'Ivri 71 (1979–1980)Google Scholar (Hebrew). See id. at 83 discussion of R. Herzog's approach on this subject.

5. See infra, text adjacent to n. 191.

6. Herzog, supra n. 4, at 405.

7. For a survey of comparative research of Jewish Law, see sources in Jackson, Bernard et al., Halacha and Law, in The Oxford Handbook of Jewish Studies 643, 646–647, 668–669 (Goodman, Martin ed., Oxford U. Press 2002)Google Scholar. For a survey of comparative studies between Jewish Law and Roman law, until the middle of the twentieth century, see Cohen, Boaz, Jewish and Roman Law: A Comparative Study 1–14 (Jewish Theological Seminary Am. 1966)Google Scholar.

8. For elaboration, see Likhovski, Assaf, The Invention of “Hebrew Law” in Mandatory Palestine, 46 Am. J. Comp. L. 339 (1998)CrossRefGoogle Scholar; Radzyner, Amihai, ha-Mishpat ha-'Ivri bein ‘Leumi’ le'Dati'—haDilemma shel HaTenua haDatit-Leumit (Jewish Law—National to Religious: The Dilemma of the National Religious Movement) (forthcoming in Dat veDin (Brand, Yitzhak ed., Bar-Ilan U. Press 2008))Google Scholar.

9. It will be noted that he was a member of the London branch of the Jewish Law Society. On this, see Eisenstadt, supra n. 2; Radzyner, Amihai, Jewish Law in London: Between Two Societies (forthcoming in 18 Jewish L. Annual)Google Scholar.

10. I address R. Herzog's general position (and that of other important Rabbis) on the subject of actually using the term Mishpat 'Ivri in my article referred to at Radzyner, supra n. 8.

11. It should be stressed that in this article, I do not intended to discuss the question of the relationship between the ritualistic and legal components of Jewish Law. This discussion appears in a number of places, e.g., Elon, Menachem, Jewish Law: History, Sources, Principles (Ha-Mishpat Ha-'Ivri) vol. 1, 111–141 (Philip, A. & Berman, Muriel eds., Auerbach, Bernard & Sykes, Melvin J. trans., Jewish Publication Socy. 1994)Google Scholar; Radzyner, A., ha-Mishpat ha-'Ivri Einenu Halakhah (uve-Khol Zot Yesh Lo Erekh) (Mishpat 'Ivri is not Halakhah (but is nonetheless of Value)” 16 Akdamot 139 (2005)Google Scholar. It would appear that the majority of halakhic authorities acknowledge that the legal part of halakhah is also geared towards regulation of society, and that in the main, it is accessible to human intelligence, an element it shares in common with all other human legal systems. Nonetheless, they simultaneously believed the “legal” part was of divine origin, just like its religious part, and in this sense it was substantively different from other legal systems. This was also the view of R. Herzog, one of the key personages in this article, whose opposition to the comparison of halakhah to the laws of the nations was already discussed at supra n. 4 and accompanying text. Nonetheless, R. Herzog maintained that the overwhelming majority of civil laws in halakhah are easily understood by human intellect, as distinct from religious laws. See e.g. in the beginning of his lecture on Ḥiyuv ve-Hitḥayvut be-Mishpat ha-Torah (Obligation and Undertaking in the Torah Law) which was published in Herzog, supra n. 4, at vol. 9, 416, 416: “Usually, that portion of the Torah known as laws or rules, in other words between man and his fellow man, has an intellectual—rational basis, in a relative sense.” This declaration did not prevent him later on in the lecture from berating researchers who tended toward the comparison of the Jewish law with Roman law, see infra n. 93 and accompanying text. See also infra n. 94; n. 170 and accompanying text.

12. See Englard, Izhak, Research in Jewish Law—Its Nature and Function, in Modern Research in Jewish Law 21, 41 (Jackson, Bernard S. ed., Brill 1980)Google Scholar; Elon, Menachem, More about Research into Jewish Law, in Modern Research in Jewish Law 66, 74 (Jackson, Bernard S. ed., Brill 1980)Google Scholar. See also infra nn. 95 & 96 and accompanying text.

13. See Elon, supra n. 11, at vol. 1, 110: “The term mishpat ivri has been recognized since the beginning of the twentieth century as denoting that part of the Halakhah that corresponds to the areas of law that make up the corpus juris of the other legal systems today.” Elon's comments indicate that in his view, the term Mishpat 'Ivri is identical to the more traditional formulations such as Dinei Israel, Halakhah, and even Din Torah. This identity (which Elon, naturally, was not the first to resort to) was attacked by Englard, supra n. 12, at 22-27 (even though his sweeping statement that the Rabbis recoil from using this term is not accurate). See also in Elon's response, supra n. 12, at 71 and in Radzyner, supra n. 11, at 141-143.

14. Indeed, the term Mishpat 'Ivri, as Elon noted in Elon, supra n. 11, at vol. 1, 110, n. 79 (although the year in which he states the book was written must be corrected), made its first appearance in Frankel's, Zecharia book Darkei ha-Mishnah (Leipzig 1859)Google Scholar. However, the “copyright” on the proliferation of its usage apparently belongs to Shmuel Eisenstadt. See his first Hebrew article, infra n. 16. For the first arguments for the need of the term “Hebrew,” see Gulak, Asher, Yesode ha-Mishpat ha-'Ivri, vol. 1, Preface xi (Defus Universal 1913)Google Scholar; Rappaport, M.Z., ha-Mishpat ha-'Ivri be-Sifrut Israel (The Jewish Law in Jewish Literature), 29 ha-Shiloaḥ 293, 299 (1913–1914)Google Scholar.

15. Likhovski, supra n. 8, at 348-357. He shows that among the members of the Jewish Law Society, there were broader and narrower approaches to the content of the term Mishpat 'Ivri, but most of them were not identical to halakhah.

16. After its first publication in the journal ha-'Atid ( Eisenstadt, Shmuel, le-Korot ha-Mishpat ha-'Ivri, 3 ha-'Atid 194 (1910–1911)Google Scholar, the article le-Korot ha-Mishpat ha-'Ivri was published on a second occasion in a collection of Eisenstadt's articles: Eisenstadt, Shmuel, Zion be-Mishpat (Zion in Justice) 11–30 (ha-Mishpat 1967)Google Scholar. Eisenstadt was one of the founders of the Jewish Law Society, one of its chief activists, and one of the first contributors to the writing on ha-Mishpat ha-'Ivri. Personally, he espoused a secular-Zionist ideology and ultimately joined various communist movements.

17. Eisenstadt, Zion be-Mishpat, supra n. 16, at 30.

18. For a similar position expressed by Paltiel Dickstein, see e.g. Dickstein, Paltiel, Ha-Majeleh ve-Ḥoshen Mishpat, 1 ha-Mishpat ha-'Ivri 193 at 193 n. 1 (Tel-Aviv 1926)Google Scholar. Likhovski, supra n. 8, cites even more radical views. For example, for opinions contending that any legal system of the Hebrew nation is worthy of the title Mishpat 'Ivri, irrespective of its contents and arrangements, see also infra, end of n. 125.

19. See Eisenstadt, Shmuel, le-Ḥeker Mishpateinu ha-Pumbi (The Research of our Public Law), 1 ha-Mishpat ha-'Ivri 9 (Moscow 1918)Google Scholar (2d publication in Eisenstadt, Zion be-Mishpat, supra n. 16, at 35-63); Eisenstadt, Shmuel, Corpus Iuris Civilis: Institutiones 18–19 (ha-Mishpat 1929)Google Scholar. In the last text, he argues that an understanding of Roman law is almost a necessary condition for the renewal of Mishpat 'Ivri in Palestine, and that a synthesis must be created between these legal systems. In his view, during the first centuries CE, Jewish law was influenced by Roman law, and adopted some of its legal institutions, and this relationship was a reciprocal one. Eisenstadt devoted many years to the research of Roman law and its connection to Jewish law, and his ambition was to translate the whole Corpus Iuris Civilis into Hebrew, in order to facilitate the comparative research of Roman and Jewish law (id. at 7). He also stressed that it was impossible to appreciate the nature of any legal system without prior knowledge of Roman law (id. at 17). For a similar approach, see the writings of another member of the Jewish Law Society, Judah Junovitz, in his introduction to the book of Pokrousky, J., Toldot ha-Mishpat ha-Romi (History of Roman Law) iii–v (Sifriya Mishpatit 1925)Google Scholar.

20. For further information regarding the Palestine-based movement for the research of Jewish law, and in particular the Zionist ideology that guided the Jewish Law Society, see Elon, supra n. 11, at vol. 4, 1588-1591; Likhovski, supra n. 8. The Society's activities were not long-lived in Soviet Russia, due to persecution by government authorities. Most of its members came to Palestine during the 1920s, where they continued to pursue their activities, joining additional friends who had already established the Jewish Law Society of Palestine.

21. Te'udatenu (Our Destiny), 1 ha-Mishpat ha-'Ivri 3, 4–5 (Moscow 1918)Google Scholar.

22. See also Likhovski, supra n. 8, at 361-365, n. 118.

23. See sources in id. at n. 118. An outstanding example of an essay with a comparative dimension is the six volume work of Daikan, Paltiel (Dickstein), Dine 'Onshin: be-Yisrael uva- 'Arnim ba-'Avar uva-Hoveh (Penal Law in Israel and Other Nations, Past and Present) (2d ed., Bet ha-Sefer ha-Gavoha le-Mishpat ule-Khalkalah 1955–1966)Google Scholar. In his introduction to the first volume, Dickstein elaborates on the advantages of the comparative approach: “The jurisprudence of Jewish law… is presented as a part of the broader spectrum of law from its global perspective.” Id. at vol. 1, 14.

24. But it should be remembered that the attitude to this claim is more ambivalent than with respect to the claim asserting the need to separate religion from law, and occasionally we hear the claim that the institutions of Jewish law are morally superior to those of other systems, and that this should be a basis for their acceptance. See Likhovski, supra n. 8, at 365-369.

Naturally, there is a flip side to this claim: if the perception is that the arrangements of Jewish law are unsuited to the moral outlook of the modern society, then this is a reason for their rejection. See e.g. Pen, S.A., ha-Mishpat ha- 'Ivri, 38 ha-Shiloaḥ 50, 57–60 (1921)Google Scholar.

25. Te'udatenu, supra n. 21, at 6: “The literature of last few decades attests to a process of the gradual separation of our law from the doctrines of religion and morality, and our purpose is none other than to continue that process and prepare our law for its secular existence.”

26. See e.g. Paltiel Dickstein's lecture in 1922, Dickstein, supra n. 18, at 195-198; Grayevsky, Aryeh Leib, ha-Memshala veha-Knessia, ha-Mishpat veha-Dat (The Government and the Church, the Law and Religion), 2 ha-Mishpat ha-Tvri 83, 92–93 (Tel-Aviv 1927)Google Scholar. See also infra n. 113.

27. Regarding Gulak, see Myers, David N., Re-Inventing the Jewish Past: European Jewish Intellectuals and the Zionist Return to History 88–89 (Oxford U. Press 1995)Google Scholar. See also Elon, M., In Memory of Asher Gulak, 9-10 Shenaton ha-Mishpat ha-'Ivri 3–10 (Hebrew)Google Scholar. With respect to Gulak's research methodology in the eulogy written by his pupil, Aryeh Zeev Fink ( Fink, Aryeh Zeev, Prof. Dr. Yehuda Leib Asher Gulak z”l, 3 Yabneh 1, 2 (1942)Google Scholar, Fink speaks of the tremendous influence of the German Professor Josef Kohler on Gulak's comparative research.

See also Shmuel Eisenstadt, Asher Gulak, of Blessed Memory, in Zion be-Mishpat, supra n. 16, 167, at 169.

28. Gulak, Asher, Tochnit le-Avodat Ḥevrat ha-Mishpat ha-'Ivri (The Work Program of the “Jewish Law Society”), 2 ha-Mishpat ha-'Ivri 195 (Tel-Aviv 1927)Google Scholar. The program was written at the request of the Society's committee in Jerusalem. However, it was followed by a caveat from the committee to the effect that the program was not binding, and only reflected the opinions of its authors, and that committee was interested in receiving responses to it, which would be published in the following pamphlet of ha-Mishpat ha-'Ivri. However, responses of this kind were not published. It cannot be disputed that Gulak was highly renowned and esteemed among his colleagues in the Jewish Law Society, in spite of some reservations as we will show below, and at that time was regarded as someone who represented its basic doctrines. Hence, it was not by chance that he was chosen to write the program.

29. Id. at 196-197.

30. Further on, Gulak elaborates on the need to expose the unique characteristics of Jewish law, through its comparison to other legal systems. He personally presented this approach in his opening lecture when he was beginning to teach at Hebrew University, on Nov. 1, 1925 ( Gulak, Asher, Hashvaa Kelalit Bein Ruah Dinei Mamonot ha-'Ivriim ve- Ruah Dinei Mamonot ha-Romaim (A General Comparison Between the Spirit of Jewish Civil Law and Roman Civil Law), 1 Mada'ei ha-Yahadut 45 (1925) (Hebrew))Google Scholar. In this lecture, he contended that a comparison of the two systems reveals the fundamental differences between their respective laws of obligations, which derive from their variant national perceptions of the nations.

31. Members of the Jewish Law Society explained that a legal education was essential for the renewal of Jewish law, in addition to their other criticisms of the rabbis, such as their basic unwillingness to adapt halakhah to everyday life. See my article about the Mizraḥi movement, Radzyner, supra n. 8.

32. Gulak, Asher, le-Sidur Hayeinu ha-Mishpatiim ba-Aretz (The Regulation of our Legal Institutions in Israel), in ha-Mishpat ha-'Ivri u-Medinat Israel (Jewish Law and the State of Israel) 28, 34 (Bazak, Yaakov ed., Mosad ha-Rav Kook 1969)Google Scholar.

33. This is also indicated in the first publication of the Jewish Law Society, supra n. 21. See additional sources in supra n. 8.

34. Gulak, supra n. 32, at 31.

35. Herzog, supra n. 4, at 414. Compare supra n. 31. I dealt with the question of the authority to develop Jewish law in my article referred to, Radzyner, supra n. 8.

36. R. Abramsky (1886-1976) was considered as one of the great Roshei Yeshivot of the twentieth century. When he wrote the pamphlet under discussion, he was serving as the Av Bet Din of London, and in that capacity maintained extensive connection with R. Herzog. At the same time, it bears mention that the Chief Rabbi of London at that time, R. Yosef Herman Hertz, did not recoil from comparing the laws of the Ancient East to Biblical law. See Hertz, J.H., Ancient Semitic Codes and the Mosaic Legislation, 10 J. Comp. Legis. & Intl. L. 3d ser. 207 (1928)Google Scholar. Despite his unsurprising conclusion that Mosaic law did not borrow from the institutions of Hammurabi's law, he did not hesitate to conduct a detailed comparison which indicates that there are places in which the Torah's arrangement is more primitive than that proposed by Hammurabi's law, even if in its entirety it is more moral. It farther bears mention that he begins with the observation that the comparative analysis that he was about to embark upon “… should prove of interest to all students of Comparative Jurisprudence.” Id. at 207. Of equal interest is the fact that in his concluding comments in the introduction to his book Yesodei, to be discussed along with the Rabbinical attacks thereon, Gulak expresses his gratitude to R. Hertz, “[o]ne of the exceptional personages of our generation who values the research of our national law as an important subject of Israel's Torah,” for providing him encouragement and fortification in completing his book and publishing it (Gulak, supra n. 14, at vii).

37. Abramsky, Yehezkel, Dine Mamonot: Hagdarat Sugeihem (Civil Law—Definition of Categories) (2d ed. Nezaḥ, Machon Sifruti-Masorati 1969) (originally published in London 1939). This pamphlet had no continuationGoogle Scholar.

38. Id. at 4. The ultra-orthodox publisher who issued the pamphlet for the second time even bothered to mention in the introduction to the pamphlet that R. Abramsky's treatise “promotes an approach of deep reverence and inteUectual humility and self effacement in the presence of the Divine Law.” Id. at 1.

39. Isaac Breuer (1883-1946) was one the leaders of “Agudat Israel” in Germany and in Palestine. It also bears mention that this was the only place that Breuer actually uses the term Mishpat 'Ivri (in a similar fashion to that of R. Herzog). Breuer wrote about various institutions of the halakhah in an attempt to highlight their moral uniqueness. In doing so, he mainly utilized the terms “Misphatei ha-Shem” (literally Laws of God) or “the Law of the Torah.” For an example of his distinction between Jewish and Roman law, see his book, Breuer, Isaac, Nahaliel 72 (Mosad Yitshak Broyerr 1951)Google Scholar (“The Torah does not recognize the concept of “right” as it is understood in Roman law, from which it penetrated into modern law ….”).

40. Breuer, Isaac, Darki 52–55 (Mosad Yitshak Broyerr 1988)Google Scholar. Quite possibly, Breuer was influenced by his grandfather, R. Shimshon Raphael Hirsch, who in his interpretation to the Torah posited an immense chasm between the laws of the nations and the Jewish law, “which is the only law that did not emerge from the people” (but rather was Divinely given). See Hirsch's commentary to the Torah on Exod 12: 3-6, and commentary on Exod 19:10-16 ( Ḥamishah humshe Torah: 'im Targum 'Onkelos u-ferush Rashi ve-'im Perush Shimshon ben Refael Hirsh vol. 2, 93–94, 184–185 (Mosad Yitshak Broyerr 1974))Google Scholar.

41. Id. at 53.

42. Id. at 54-55.

43. R. Ba'abad (1875-1944) was an enthusiastic, active Zionist who published a number of articles in the publications of Mizraḥi. He was a Rabbi and Dayan in Galicia, head of the Bet Din in Vienna, and he lived out his life in Manchester.

44. Tosefai, , Hahzarat Atara le-Yoshna ba-Mishpat ha-'Ivri (Restoration of the Crown to the Jewish Law), 3 (29) ha-Tor 7–8 (06 15, 1923)Google Scholar; 3 (30) ha-Tor 6-7 (June 22, 1923); 3 (31) ha-Tor 8-9 (June 29, 1923).

45. Id. issue no. 29, at 8.

46. Id.

47. Id. issue no. 31, at 8.

48. See this discussion at length in my article referred to in Radzyner, supra n. 8. Rabbis Abramsky & Breuer, of the anti-Zionist “Agudat Israel,” did not invoke these claims.

49. Tosefai, , ha-Minhag be-Mishpat Israel (Custom in Jewish Law), 25 ha-Shiloaḥ 600 (1911)Google Scholar.

50. Id. at 602.

51. Id. at 602-603.

52. Id. at 603.

53. R. 'Amiel (1883-1946) also belonged to the Mizraḥi movement. He filled rabbinical positions in a number of communities in Eastern Europe, and in Antwerp. In 1936 he was appointed to the position of the Tel-Aviv Chief Rabbi.

54. The essay was first published in 1936 and for a second time in the anthology 'Amiel, Moshe Avigdor, ha-Tzedek ha-Sotziali veha-Tzedek ha-Mishpati veha-Musari Shelanu (Social Justice and our Legal and Moral Justice), in Bein 'Adam le-Ḥavero—Masechet Yechasei 'Enosh ba-Yahadut (Between Man and his Fellow Man—Interpersonal Relations in Judaism) 3 (Mosad ha-Rav Kook 1978) [hereinafter 'Amiel, ha-Tzedek.Google Scholar I will use this edition of the book here. Some of the ideas were also developed by R. 'Amiel in other contexts. See his book 'Amiel, Moshe Avigador, le-Nevuchei ha-Tekufa (For the Perplexed of Our Time) 106–123 (Mosad ha-Rav Kook 1943)Google Scholar.

55. 'Amiel, ha-Tzedek, supra n. 54, at 6. Compare infra n. 157.

56. See infra text next to n. 128.

57. 'Amiel, ha-Tzedek, supra n. 54, at 14-15.

58. 'Amiel, Moshe Avigdor, ha-Mitbolelim veha-Hitbolelut (Assimilators and Assimilation) in 'Amiel, Moshe Avigdor, Derashot el 'Ami (Sermons to my People) vol. 3, 61–62 (Druck Oswiata 1929)Google Scholar. See also 'Amiel, le-Nevuchei, supra n. 54, at 285-297.

59. See the extensive material in the three volumes of Hertzog's writings compiled by Warhaftig, Itamar: Tehukah le-Yisrael 'al-pi ha-Torah (Constitution and Law in a Jewish State according to the Jewish Law), (Mosad ha-Rav Kook, Yad ha-Rav Herzog 1989)Google Scholar and in the Introduction to the first volume. See also Shochetman, Eliav, Rabbi Isaac Herzog's Theory of Torah and State, 5 Jewish L. Assn. Stud. 113 (1991)Google Scholar.

60. See my article, Radzyner, supra n. 9. Regarding his connection with the members of the “Jewish Law Society,” see infra, text next to n. 69.

61. The lecture was published as an article, Herzog, Isaac, John Seiden and Jewish Law, 13 J. Comp. Legis. & Intl. L. 3d ser. 236 (1931) [hereinafter Herzog, John Seiden]Google Scholar. This article was republished in a collection of R. Herzog's articles compiled by his son, Herzog, Isaac, Judaism: Law & Ethics 65–79 (Herzog, Chaim ed., Soncino Press 1974)Google Scholar.

62. Herzog, John Seiden, supra n. 61, at 238. Further down on the same page, he also refers to a number of mistaken (albeit interesting) comparisons made by Seiden. See also id. at 240.

63. The article was first published in Herzog, Isaac, The Moral Rights and Duties in Jewish Law, 41 Juridical Rev. 60 (1929)Google Scholar, and for a second time in R. Herzog's book, Herzog, Isaac, The Main Institutions of Jewish Law vol. 1, 381 (Soncino Press 1936–1939)Google Scholar [hereinafter Herzog, Main Institutions]. Pages are cited in accordance with Main Institutions. In this article, R. Herzog cites a few examples for his assertion regarding the inseparable connection between law and morality in Jewish law. See infra in Appendix.

In additional sources, R. Herzog also stresses the cardinal role and position of morality in Jewish law. See e.g. in his lecture, Herzog, supra n. 11. In concluding the lecture, R. Herzog emphasized that “[o]ne of the reasons for my choice of ‘Obligation’ as my lecture topic was its moral aspect. For as I explained, the obligation is equivalent to a personal liability and constitutes both intention and reliance, and reflects the living spirit of faith in the laws of the Torah.” Herzog, supra n. 4, at 426.

64. Herzog, Main Institutions, supra n. 63, at vol. 1, 381 (footnote omitted).

65. Id. at 386. It may reasonably be presumed that R. Herzog was expressing his view of those Jews who attempted to emulate other systems, while those systems themselves were already aware that it was precisely the Jewish law that was worthy of emulation.

66. Supra n. 63.

67. Herzog, Main Institutions, supra n. 63, at vol. 1, xv (footnote omitted).

68. This letter is currently housed in the Central Zionist Archives in Jerusalem (File A417/1).

69. In fact, R. Herzog's plan was to present a summary of Jewish law in its entirety in five volumes, of which he completed only two. The first volume, published in 1936, deals with the laws of property, and the second volume published in 1939, deals with the law of obligations. See Herzog, Main Institutions, supra n. 63, at vol. 1, xxvi.

70. Letter from Eliash to Eisenstadt dated Nov. 5, 1926 (Central Zionist Archives, file A417/1). Shmuel Eisenstadt's handwritten list is also in this file.

71. Dickstein, Paltiel, Hashkafa Bibliographit (Bibliographic Outlook), 5 ha-Mishpat ha-'Ivri 298 (Tel-Aviv 1937)Google Scholar.

72. Id. at 298.

73. Evidently, over the passage of time, his expressions became increasingly scathing, see infra, Appendix. Conceivably, the particular severity of R. Herzog's diatribe against resorting to alien law for research purposes was also rooted in practical considerations. It may have been part of his battle against the unwillingness of the State of Israel, and of its founders in the pre-State period, to accept the Jewish law as the legal system of the State, and to prefer in its stead the Mandatory law that reigned in Israel prior to the State's establishment, together with various amendments, most of which were not in accordance with the halakhah. For more on this, see Schochetman, supra n. 59.

74. A distinctive and interesting remark in this context, concerning comparison with English law for illustrative purposes, appears in Herzog, Main Institutions, supra n. 63, at vol. 2, 10 n. 1:

The comparative aspect, as stated in the introduction to the first volume, is not an essential element in the present work, and yet it sometimes exerts so irresistible a spell that one can hardly help succumbing to it. What, for instance, could be of more thrilling interest than to see the great Jewish juristic thinker and Talmudic lawyer, R. Solomon ben Adereth, of the thirteenth century in Barcelona, in medieval Spain, and the greatest English jurists and judges of the end of the nineteenth century treating of an identical juric question and expressing themselves along parallel lines.

This paragraph is a preface to a comparison made between the comments of R. Solomon ben Adereth, regarding the need for a kinyan (formal act of acquisition) in order to give effect to an obligation, and the words of the English jurist Anson, William Reynell, Principles of the English Law of Contract and of Agency in its Relation to Contract 108–109 (Miles, John C. & Brierly, J.L. eds., 17th ed., Clarendon Press 1929)Google Scholar.

75. Herzog, Main Institutions, supra n. 63, at vol. 1, xvi. Notably, on id. at xxvi, R. Herzog again explains that his work is intended to provide a systematic presentation of Jewish law to the Western reader unaccustomed to his traditional sources, having recourse to the accepted definitions in Western jurisprudence. Here too, it is evident that the issue does not concern substantive comparison, but rather comparison for explanatory purposes only, as mentioned in his comments in the speech cited at the beginning of this article. Dickstein took note of this in his critique of R. Herzog's work, supra n. 71, at 298:

There can be no doubt that multitudes of Jewish lawyers working in Palestine, compelled by the exigencies of their professional life to devote extensive time to the pervasive presence of the English language, will learn via an English conduit, to honor the tradition of their forefathers, having observed it in glittering foreign garments.

It should be noted that an additional critique on the book was written by Webber, George J., Jewish Law, 19 J. Comp. Legis. & Intl. L. 3d ser. 297 (1937)Google Scholar. In his critique, Webber claims that R. Herzog failed in his attempt to present Jewish law to the educated Western reader. According to Webber, the average reader not trained in Talmudic discussion would have particular difficulty in following R. Herzog's argumentation. Id. at 303-304. Moreover, there are a number of inaccuracies in the book, as well as references to legal terms that are not in English usage. From his comments on p. 299 as well, there emerges a tone of criticism on the research methodology presented by R. Herzog in the introduction to his book. It is instructive to compare his comments here to his comments on Gulak's book, infra n. 95. For a different approach to these issues, see Zeitlin, Solomon, The Main Institutions of Jewish Law, 32 JQR New Ser. 103 (1941–1942)CrossRefGoogle Scholar.

Webber was President of the London branch of the “Jewish Law Society,” and one of its central active members. In his view, the Society's role in England was to present the Jewish law to the English world of law, and this was his mindset in reading R. Herzog's book. See more extensive discussion in my article, Radzyner, supra n. 9.

76. Herzog, Main Institutions, supra n. 63, at vol. 1, xvi.

77. Id.

78. Herzog, Main Institutions, supra n. 63, at vol. 1, xvi-xvii (footnote omitted) (and he repeats these comments in the introduction to the second part of his book). Emphases are in source. The traditional outlook of R. Herzog receives a very lucid expression in his remarks at the end of the Introduction xxviii, where he rejects the critical views that argue that the Pentateuch absorbed legal norms from legal systems in the ancient Near East. He presents the traditional view according to which the Written law (Torah she-Bichtav) was given from Heaven, in its entirety and was not subject to any absorptions or developments. Legal institutions not recorded in the Written law were transmitted by way of the Oral law. At all events, his comments indicate that the Jewish halakhah is a closed body of knowledge that is not influenced by alien legal norms.

79. Herzog, Main Institutions, supra n. 63, at vol. 1, 115-116. Dickstein's claim appears in his article Dickstein, Paltiel, Mehir Tzedek ve- 'Ona 'ah (The Price of Justice and Overreaching), 1 ha-Mishpat ha-Tvri 15, at 35 (Tel-Aviv 1926)Google Scholar. R. Herzog felt it important to prove that Dickstein had erred in his analysis of Roman law and that his conclusions relating to the Biblical period were illogical. While doing so, he presents his own (religious) approach regarding Biblical law, which is not, needless to say (in his view), based upon a development of ancient laws: “[I]t was precisely the province of the law in Israel to alter radically, or at all events to modify, in the ethical direction, the practices and customs which had prevailed among the Hebrews prior to remoulding of Israel by the divinely inspired legislation.” Herzog, Main Institutions, supra n. 63, at vol. 1, 116 (emphasis in original). Immediately after this, he proceeds to attack the comments of Chaim Tchernovitz (Rav Tsair), upon whom Dickstein relied (these comments also appeared in the same volume of ha-Mishpat ha-'Ivri at 8), who drew a similar parallel with Roman law.

It is noteworthy that Webber stated that R. Herzog was correct in this matter (Webber, supra n. 75, at 302). Dickstein too was forced to admit that “his criticism has many persuasive elements.” Dickstein, supra n. 71, at 299.

80. Herzog, Main Institutions, supra n. 63, at vol. 1, 112-113. This claim of Dickstein also appears in his aforementioned article, Dickstein, supra n. 79, at 29 (and not as stated by R. Herzog in his book). Dickstein notes with satisfaction (id.), that in his matter, R. Herzog accepted his opinion, but added that he was unclear as to why R. Herzog was hesitant to rule unequivocally that even the law of possession as a means of acquiring ownership of land was a Roman borrowing from the Palestine Talmud. All the same, examination of R. Herzog's comments in this context (Herzog, Main Institutions, supra n. 63, at vol. 1, 231-232) indicates that he indeed thought that the Justinian Code was influenced by Jewish law. Compare infra text next to n. 184.

81. See supra n. 4.

82. I will deal with one instance of this in the appendix.

83. Regarding Krochmal and his book, see generally Harris, Jay M., Nachman Krochmal: Guiding the Perplexed of the Modern Age (N.Y. U. Press 1991)Google Scholar. For specific discussion of our subject, see especially 214-220.

84. In fact, Krochmal only briefly dealt with the question of the connection between legal systems in two places in his book Krochmal, Nachman, Moreh Nevokhei ha-Zman (Guide to the Perplexed of Our Age, The writings of Nachman Krochmal edited with introduction by Rawidowicz, Simon) 205, 220 (Ararat 1961)Google Scholar, in a long footnote. In his view, the Dayanei Gezerot (Judges of Civil law Lit.: “edicts judges”) referred to in the Mishnah Ketubot, ch. 13, were Jewish judges who adjudicated in accordance with Roman law and in doing so enabled its institutions to penetrate into Jewish law. Furthermore, he attempts to prove the borrowing of institutions by the fact that many of the legal terms in Talmudic law appear to have been taken from foreign systems, both manifestly Greek terms, such as apotheke, and terms that he viewed as a Hebrew translation of Roman and Greek terms. For example on p. 205 he writes that

here it should be mentioned that apart from the similarity and substantive resemblance between the words that were generally used by the Sages of the Mishnah and the Baraita, so that in respect of these it was stated that the Sages must necessarily have copied them from Roman language, such as chattels and that which is not chattels, Assets of Iron and Sheep…

Regarding Krochmal's approach as a reaction to the method adopted by Gans and Jost, see Harris, supra n. 83, at 214-219, and the article Harris, Jay M., Fitting In or Sticking Out: Constructs of the Relationship of Jewish and Roman law in the Nineteenth Century, in Jews, Antiquity, and the Nineteenth-Century Imagination 53, 61–62 (Lapin, Hayim & Martin, Dale B. eds., U. Press Md. 2003)Google Scholar.

85. See Harris's comments, id. at 62-63. Gans, whose jurisprudential doctrine was heavily influenced by his illustrious teacher, Georg Wilhelm Friedrich Hegel, actually converted in order to receive the position of Professor of Law in the Berlin University.

We also discovered another broadly based criticism of this claim of Krochmal on the part of a rabbi who was also a Talmudic scholar—Prof. Shmuel Bialoblocki, the founder of the Talmud Department of Bar Ilan University. In a long article devoted to the ch. 13 of the Moreh Nevukhei ha-Zeman (the chapter containing Krochmal's statements regarding the connection between the legal systems), Bialoblocki actually praises Krochmal and his enterprise for its description of the Oral law. Bialoblocki, Shmuel, 'Em la-Masoret: Mehkarim u-Maamarim 74, 101–105 (U. Bar-Ilan 1971)Google Scholar. But he severely criticizes Krochmal's claim regarding Roman influence, terming it as an unfounded conjecture deviating from and in conflict with Krochmal's regular style of support of the way of simple faith and pure belief in the holiness and originality of the Oral Law. In an attempt to find merit in Krochmal's statements, he claims that he proposed his theory only because he was influenced by the Maskilim (“Enlightened” Jews) who attempted to display the grandeur of Jewish law for the non-Jewish world, by claiming that it incorporates legal norms that are also accepted in the laws of the nations. Bialovlotzky acknowledges that Judaism accepted laws and statutes of other nations, but maintains that their form was changed: “they only served as material for Jewish thought, which gave them new forms.” Id. at 105. In other words, there was no direct absorption, and the source of Tahnudic law invariably consisted of the Sages' determinations, who inter alia had evaluated ideas and institutions of alien origin, but formulated them anew, making them a part of the Jewish law.

86. Herzog, Main Institutions, supra n. 63, at vol. 1, 77-78.

87. See supra n. 84. See also Cohen, supra n. 7 at 9, n. 23, which endorses R. Herzog's view in this subject. It also bears mention that this is the only place in which R. Herzog is mentioned in Cohen's book though this is not surprising, since this book deals with the comparison between Jewish and Roman law, to which Herzog was opposed.

88. Herzog, Main Institutions, supra n. 63, at vol. 1, 77.

89. Id. at 78.

90. He refers to the Dutchman Willem Surenhuys, whose Latin translation of the Mishnah was published in Amsterdam, 1698-1703.

91. Herzog, Main Institutions, supra n. 63, at vol. 1, 77, n. 2.

92. b. Kidd. 9b.

93. See Herzog, supra n. 11, at 425-426.

94. R. Herzog also expressed his view of the special character of Jewish law by force of its religious source and its morality, in a lecture given to a group of lawyers after the establishment of the state of Israel (Warhaftig, supra n. 59, vol. 3, 215):

And we believe … that the entire Torah is of Divine origin, and that the chapter of “And these are the law,” and the chapter dealing with inheritances, possess the same sanctity as the chapters of Shem 'a (Hear O Israel)… but it is clear that with respect to the majority of the laws of the Torah, even if they are of Divine origin, which is infinitely superior to human intellect, they are nonetheless distinguished by their shining rationality, and needless to say, they clearly demonstrate to all the foundations of justice and honesty that are the hallmark of Israel… “And what great nation is there, that hath statutes and ordinances so righteous as all this law, which I set before you this day (Deut 4:8).”

95. Dickstein, Paltiel, Hashkafa Bibliographit (Bibliographic Outlook), 1 ha-Mishpat ha-Tvri 162 (Tel-Aviv 1926)Google Scholar, and see also Webber, George J., Jewish Jurisprudence, Jewish Chron. 2 (02 26, 1923)Google Scholar. In this article, Webber proposes translating Gulak's book into English. He believed that Gulak's book was the most impressive book on Jewish law and thus warranted translation into English for the benefit of the European lawyer who would certainly find it of use, even if only for its numerous comparisons with Roman law. See also supra n. 12.

96. See Eisenstadt, supra n. 2, at 183 (“The book Yesodei ha-Mishpat ha-'Ivri is the first Hebrew book devoted to the research of our law, written by a professional and which is clearly intended to establish a clear methodology for this discipline. As such, the book is deserving of special attention.”) See further Elon, supra n. 27, at 3. It is important to note that the first part of the book (which deals with the laws of property) was first published in 1913 in Warsaw (containing a preface that was similar to the preface of the second volume). The ftill work of 4 volumes ( Laws of Property, Obligations, Family and Succession, Courts and Procedure) was published in Berlin in 1922 Google Scholar. In this article, unless indicated otherwise, I have made use of the second edition and the page references are to that edition. In the Preface to the book, p. VI, Gulak emphasizes the importance of the book, which stems from the fact of its publication in a period during which new national life was emerging, making it imperative to prepare Jewish law so that it could be the legal system of the nascent Jewish society. Compare with his comments in his article cited above, Gulak, supra n. 28.

97. In the current framework, I will not discuss Gulak's later books in which he adopted a different research methodology, consisting of primarily substantive comparisons. There can be no doubt that Gulak changed his research methodology toward the end of the twenties and during the thirties, and this point was already noted by Englard in his article, Englard, supra n. 12, at 50. I will elaborate on this subject elsewhere.

98. This method and the problems it raises have already been discussed critically by Englard, supra n. 12, at 40-50. Boaz Cohen refers to Gulak's works in their entirety as being of particular importance in the field of comparative research of Jewish law because Gulak did not limit himself exclusively to comparison with Roman law. Cohen, supra n. 7, at 11-12. However, as mentioned, a distinction must be made between Gulak's Yesodei ha-Mishpat ha-'Ivri, in which he limited himself to Roman law, and his later works, which also conducted comparisons with Hellenistic law and the law of the Ancient East. See also infra text next to n. 119.

99. See supra text next to n. 30. Interestingly, Gulak partially accepted the conclusions of Krochmal (supra n. 84) regarding Dayanei Gezerot. Gulak, supra n. 14, at vol. 4, 21-22, and accompanying notes). He cites Krochmal's view, though indicating that the picture is more “complex.” In his view, these judges were appointed to their positions by the Roman authorities, who gave legal force to their “edicts.” At the same time, in contrast to Krochmal, he contended that they adjudicated and enacted laws in accordance with Jewish law and not in accordance with Roman law.

100. See e.g. supra nn. 42, 74.

101. Gulak, supra n. 32, at 30, 34.

102. Id. at 34.

103. Gulak, supra n. 14, at vol. 1, 13.

104. Id. at 13-14.

105. Id. at 14. See also Gulak's comments in id. at 3-4. Gulak presents the conception that was prevalent in the German concept of law, by which he was extensively influenced. Accordingly, the law bears a unique national character and the role of legal research is to reveal “a central organic doctrine in all the specific rules of a particular system, being a doctrine that develops from period to period, and from generation to generation, according to permanent laws and preserving its internal quality at all times.”

106. According to Fink, Gulak studied in Berlin with the students of Prof. Kohler, who continued in the academic path of the historical approach to legal research, and who exercised a significant influence on Gulak as on the other members of the “Jewish Law Society.” See supra n. 27 and Likhovski, supra n. 8, at 341-342. See also Eisenstadt, supra n. 27, at 169. Gulak mentions Jhering's research method in his “Introduction” to Yesodei ha-Mishpat ha-'Ivri (Gulak, supra n. 14, at 13).

107. Gulak, supra n. 14, at vol. 1, 3.

108. Englard, supra n. 12, at 45, 48-49.

109. Gulak, supra n. 14, at vol. 1, 19. See Englard's critique of this argument, Englard, supra n. 12, at 49.

110. Gulak, supra n. 14, at vol. 1, 7.

111. Id. atvol. 1, 8.

112. Id. atvol. 1, 10-11.

113. Id. atvol. 1, 8.

114. Yet, in the course of time, when Gulak was requested by the “Jewish Law Society” in Jerusalem to write a research program for the Society, he chose precisely to stress the moral foundations of the Jewish law, which he regarded as “the crown jewel of all the various sections dealing with the research of Jewish law.” Gulak, supra n. 28, at 201.

115. Eisenstadt, supra n. 2.

116. Id. at 181-183.

117. Id. at 182.

118. Id. at 187.

119. Gulak, supra n. 27, at 169. See supra n. 98.

120. Supra n. 95 at 162-163. Compare supra n. 80.

121. Markon, Ze'ev, Yesodei ha-Mishpat ha-'Ivri, 23 ha-Tekufa 500 (1925)Google Scholar.

122. Id. at 504.

123. Id. at 503.

124. Id. at 501.

125. Another source of criticism of Gulak and his comparative method of Jewish law to Roman law was Prof. Chaim Tchernovitz (Rav Tsair) in his article Tchernovitz, Chaim, Reshimot ve-Hearot (Notes and Comments), 2 ha-Mishpat 44 (1927)Google Scholar, which contains a scathing criticism of Gulak's opening lecture when he began to teach at the Hebrew University in November 1925 (Gulak, supra n. 30). Tchernovitz maintained that Gulak lacked a proper understanding both of Roman law and of Jewish law, and therefore not much importance could be attached to any of his comparisons. Tchernovitz encouraged such comparisons, but claimed that Gulak was forcibly attempting to indicate differences between the legal systems, even in places where the differences did not exist. He makes a particularly important observation in Tchernovitz, supra n. 125, at 49, n. 1, where he accuses Gulak of blurring early Jewish law's similarity to other early legal systems with respect to the possibility of encumbering the person of the debtor for the benefit of a creditor (Shi'abud ha-Guf). According to Tchernovitz, this was nothing but an attempt to present the Jewish law in a more idyllic light than it was in reality. Those who do so “deny the actual reality and make a mockery of history.” Id. at 49, n. 1. Regarding the central position of comparative law in Tchernovitz writing, see Shmuel Eisenstadt, Rav Tsair u-Mishnato Ba-Mishpat ha-'Ivri (Rav Tsair and his Theory of Jewish Law), in Zion be-Mishpat, supra n. 16, at 276, 280.

For an even more extreme position, see Shimshon Rosenbaum, Shegiot Mekubalot (Common Mistakes), 4 ha-Mishpat ha-Tvri 113 (Tel-Aviv 1933). He argues that Tcerhnowitz also erred; he too presented Jewish law as having developed differently from Roman law. According to Rosenbaum, there are obviously a number of differences between the legal system, but “with respect to the process of their creation there is no difference.” Id. at 123. Rosenbaum was a jurist and a central activist in the Jewish Law Society in Tel-Aviv, and he enthusiastically encouraged the comparative research of Jewish Law. See his article Rosenbaum, Shimshon, Shitat ha-Hashv'aa be-Torat ha-Mishpat (Method of Comparison in Jurisprudence), 1 ha-Mishpat 3 (1927)Google Scholar. There he states that even religious systems such as circumcision and !evirate marriage cannot be understood without having reference to the legal systems of ancient nations.

126. It is interesting to note that Englard, in his critique of Gulak (Englard, supra n. 112, at 47), states that Gulak's path aroused the ire of the rabbis, but he only cites the criticism of R. Kaplan, which is referred to below. This led to Elon's response, “But Kaplan (Englard does not disclose the identity of the other “Rabbis” who write critical views of Gulak) ….”. (Elon, supra n. 12, at 81). We will see below that indeed there were other rabbis whose criticism Englard was not aware of, even though their criticism is highly reminiscent of his own.

127. 'Amiel, ha-Tzedek, supra n. 54, at 8-9.

128. It is almost certain that R. 'Amiel's conceptions of Roman law on this subject were taken from Gulak. Here too, Gulak states that the distinction between Jewish law and Roman law stems from (Gulak, supra n. 14, at vol. 1, 43):

the individual freedom that Jewish law gave to all the persons of the family, and that this leads to the need to have resort to agents … In the jurisprudence of the Roman nation the institute of agency did not proliferate … under Roman law, all the members of the family are in the father's domain ….

R.'Amiel did not accept this explanation, as we will immediately observe.

129. 'Amiel, ha-Tzedek, supra n. 54, at 8.

130. As stated in the previous note, it would appear that he was familiar with his views in other matters too.

131. Gulak, supra n. 14, at vol. 1, 103. Gulak deals there with the comparison between the Talmudic laws of property and the Roman laws of property. For a general presentation of Gulak's general conception of the difference between the legal systems, see his lecture referred to in supra n. 30.

132. 'Amiel, ha-Tzedek, supra n. 54, at 9.

133. Tosefai, , Bikoret Sefer (book review) 4 (28) ha-Tor 3 (04 4, 1924)Google Scholar.

134. Id. at 4.

135. Id.

136. Id.

137. Id. at 3.

138. Kaplan, Abraham Eliyahu, Yesodei ha-Mishpat ha-'Ivri, 4 Yeshurun (Jeschurun) 93 (1924)Google Scholar. The critique was reprinted for a second time in a collection of Kaplan's articles, Kaplan, supra n. 1. Pages are cited in accordance with this edition.

139. Kaplan, supra n. 1, at 67.

140. Id.

141. Gulak, supra n. 14, at vol. 1, Preface V.

142. Kaplan, supra n. 138, at 68.

143. Id. at 69.

144. Id. at 72.

145. Id. at 69. Probably Kaplan was alluding here to what finally happened to Gulak, suggested in the paragraph cited next to n. 143.

146. See also Kaplan, supra n. 1, at 71, where he attacks Gulak, similar to the attack of Tosefai, for not having examined a number of important sources, especially that of responsa literature, which is the only way of gaining an understanding of “the arrangement of the Jewish law in any subject.” It is quite clear that Gulak attempted to present the Jewish law in the form of a set of rules and avoided having resorted to the responsa literature, due to their casuistic nature, dealing with specific cases.

147. Id. at 73.

148. Id. at 74.

149. Apart from being an important Rabbinic authority and scholar, R. Weinberg was also a scholar of Talmudic law. See Shapiro, Marc B., Between the Yeshiva World and Modern Orthodoxy: The Life and Works of Rabbi Jehiel Jacob Weinberg 1884-1966 (Littman Lib. Jewish Civilization 1999)Google Scholar.

150. Weinberg, Yehiel Ya'akov, Dina Nami Hainu Torah (Justice is also Torah), in li-Frakim 372, 372–373 (Weingort, A.A. et al. eds., Vaad le-hotsaat kitve ha-gaon ha-Rav Yehiel Ya'akov Weinberg 2004)Google Scholar. In his paragraph R. Weinberg explains why Jewish law prohibits accepting the testimony of a non-Jew. He contends that just as a non-Jew cannot join a minyan (quorum of ten men required for prayer in public), neither can he testify, because giving testimony is a religious act like prayer (“The entire Jewish law is based on religious foundations and only persons competent to perform a religious act in Israel are also able to function as legal entities,”) id. at 372; see infra n. 157.

151. Weinberg, supra n. 150, at 373.

152. Weinberg, Yeḥiel Ya'akov, Mekorot ha-Mishnah ve-Derekh Sidurah (The Sources and the Arrangement of the Mishnah), 7 Talpioth 72 (1958)Google Scholar.

153. Id. at 73.

154. Regarding the research methodology of Zuri, see my article Radzyner, A., A Forgotten Scholar—Ya'akov Shmuel Zuri and his Research in Jewish Law in the Light of Research in the Field, 23 Shenaton ha-Mishpat ha-'Ivri 253 (2005) (Hebrew)Google Scholar.

155. This book was published for a second time in Weinberg, Yehiel Ya'akov, Resp. Seridei 'Esh, vol. 4, p. 9 (Mosad ha-Rav Kook 1977)Google Scholar. In p. 81 (which is parallel to p. 111 in the first edition), n. 4 (=6 in the first edition) mentions Zuri's study Mishpat ha-Nezikin (“torts law”) and n. 5 (=7 in the first edition) mentions Gulak's book Yesodei ha-Mishpat ha-'Ivri.

156. The letter was dated 5 Cheshvan 5711 (Nov. 1951), and published in Kitvei ha-Gaon Rabbi Yehiel Ya'akov Weinberg vol. 2, 433–434 (Shapiro, Marc B. ed., Marc Shapiro 2003)Google Scholar. From this letter we learn that R. Weinberg did not rule out the illustrative use of foreign law for purposes of illuminating the methods of Jewish law. He does this himself in one place, when attempting to contrast Jewish law's special conception of ownership with respect to the law of “Ye'ush” (abandonment of hope of recovering lost or stolen property). See “Petihta de-Pirka,” Weinberg, supra n. 150, at 694-695. In doing so, he is careful to use the expression le-Havdil (lit: “to distinguish,” but the meaning here is that though someone may be drawing a comparison between them, they are truly incomparable) prior to making the comparison with Roman law: “the Torah did not sanctify the institution of private property, as it was done le-Havdil in Roman Law. In Roman law private property was sacrosanct—not so in the Torah.” Id. at 695. Compare to Gulak's comments in his lecture supra n. 30.

157. As early as in his article published in 1911, R. Weinberg denied the possibility of attaining a proper understanding of the Jewish law in any way other than by the traditional form of learning, which had developed in the Eastern European Yeshivot. See Weinberg, Yechiel Yaakov, ha-Pilpul ha-Talmudi (The Talmudic Casuistry), in Ḥiddushei Ba'al ha-Seridei 'Esh on Shas, vol. 2, 395 (Weingort, A.A. ed., Vaad le-hotsaat kitve ha-gaon ha-Rav Yehiel Yaakov Weinberg 2005)Google Scholar. In this article, he stresses that it is only by way of the pilpul that one can penetrate the depths of the Jewish law and attempt to suggest its proper meaning. He contended that every legal system is the product of the moral conception of the nation that created it, and that it can only be understood with the particular tools developed by that nation. Then he adds:

And if this is true in relation to the laws of the nations, how much more so is it true for the laws of our holy Torah, all of its laws being founded on the basis of Divine morality, and its spirit hovers over all of the laws. And even more, the many and diverse distinctions between the laws of our Torah and the laws of the nations are the product of the general and fundamental difference in their moral foundation. As a result of the difference in the basic foundations, all of the other differences flow logically in the same fashion. In short, all of the laws of the Torah in civil matters, in torts, in matters of mine and yours, and their legal evaluation—are moral in substance and form. The moral foundation pervades all the laws of the Torah, in civil law as in capital law, in matters between man and his fellow man, as in matters between man and the creator, and the common element in them is that they are moral commands which are divine in their essence and their form ….

Id. at 399. Compare infra text next to n. 55.

158. Gulak, supra n. 14, at vol. 2, 211-212.

159. Supra n. 155, at 81 n. 5.

160. Herzog, Main Institutions, supra n. 63, at vol. 1, xv. In that context, R. Herzog mentions another book of Gulak, Gulak, Asher, le-Ḥeker toldot ha-Mishpat ha-'Ivri bi-Tekufat ha-Talmud, Belek 1, Dine Karka'ot (The Law of Real Property in Talmudic Times) (Sifriya Mishpatit 1929)Google Scholar. In this book, there is far greater emphasis on the comparative aspect than in Yesodei ha-Mishpat ha-'Ivri. R. Herzog mentions this book in a pejorative sense in Herzog, Main Institutions, supra n. 63, at vol. 1, 152-153, when he refers to his conjecture, regarding R. Simon ben Gamliel's ruling that a will must only be written in Hebrew. Gulak's suggestion is that it was a reaction to the Roman's insistence on the will being written in Latin. R. Herzog explains the illogical nature of Gulak's comments, and even accuses him of not having understood the Tosefta, on which Gulak based his interpretation.

Another essay of Gulak mentioned by R. Herzog in his book is the lecture referred to above at Gulak, supra n. 30. R. Herzog mentioned this lecture in the first chapter of the second volume of his work, Herzog, Main Institutions, supra n. 63, at vol. 2, 4. It seems that he praises the lecture, which he refers to as a “masterly lecture on a comparison of the respective characteristic tendencies of Hebrew and Roman civil law ….” Id. But further on, he refutes some of Gulak's claims raised in that lecture. His sharpest argument is made in id. at 8, n. 1, where he accuses Gulak of presenting a uniform, monolithic picture of the concept of lien in Jewish law, whereas R. Herzog claims that the issue is far more complex, and that in effect, Gulak ignored important views of medieval Jewish rabbis. See also id. at 12.

161. Written in the same format as the two first parts of Gulak's Yesodei ha-Mishpat ha-'Ivri: the first part devoted to the law of property and the second part to the law of obligations.

162. Dickstein is mentioned once. See supra text next to n. 80. Another researcher who was only mentioned once is R. Yekutiel Ya'akov Neubauer, whose book on the history of marriage law in the Bible and the Talmud is mentioned by R. Herzog in the introduction to his book. Neubauer offers a historical-realistic hypothesis for the Sages' determination that paying money (keseph) was not a valid way for the acquisition of chattels (metaltelin). R. Herzog rejects this approach in the first volume of his book, Herzog, Main Institutions, supra n. 63, at vol. 1, 172-173.

163. See supra n. 4 and accompanying text.

164. R. Herzog mentions Gulak in a positive sense once, in his discussion of the classification of assets, where he praises Gulak's analysis of subdivisions of the broad classification of assets (Herzog, Main Institutions, supra n. 63, at vol. 1, 78-81).

165. See supra n. 78 and accompanying text.

166. Herzog, Main Institutions, supra n. 63, at vol. 1, 62-64, where he refers to Gulak, supra n. 14, atvol. 1, 55-57.

167. Herzog, Main Institutions, supra n. 63, at vol. 1, 63.

168. Gulak, supra n. 14, at vol. 1, 170-172.

169. Herzog, Main Institutions, supra n. 63, at vol. 1, 227.

170. Id. at 227-228; compare supra n. 11. For an analysis of this dispute, see also Warhaftig, Zorach, ha-Ḥazakah ba-Mishpat ha-'Ivri (Possession in Jewish Law) 53–55 (Mosad ha-Rav Kook 1964)Google Scholar.

171. Herzog, Main Institutions, supra n. 63, at vol. 1, 323-328 citing Gulak, supra n. 14, at vol. 1, 132.

172. Herzog, Main Institutions, supra n. 63, at vol. 1, 323, 326, 328.

173. Id. at 324, 325.

174. See his comments at Herzog, supra n. 78 and accompanying text.

175. See e.g. Herzog, Main Institutions, supra n. 63, at vol. 2, 10, n. 1. R. Herzog compares a 13^th-century halakhic source to a 19^th-century English source. Clearly, this is not a substantive comparison, but rather an attempt to show a similarity in the thought process, for the benefit of the English reader who is not familiar with the comments of R. Solomon ben Adereth. As stated, R. Breuer also held this view, and it would seem that even R. Weinberg was not opposed to this comparison.

176. I have dealt with a number of aspects of these polemics in my article, Radzyner, supra n. 8.

177. Fishman, Yehuda Leib, 'Al ha-Mitzpeh, 7 (40) ha-Tor 1 (07 1, 1927) (emphases in source)Google Scholar.

178. Supra n. 19.

179 Herzog, Main Institutions, supra n. 63, and see adjacent text in body of article.

180. Isaac Herzog, ha-Mishpat veha-Musar ba-Yahadut (Law and Morality in Judaism), in Warhaftig, supra n. 59, vol. 3, 218. The original version of the lecture, including the date, can be found in the archives of Herzog, R. in “Heichal Shlomo” (Jerusalem)Google Scholar. I would like to express my gratitude to them for enabling me to examine the documents.

181. Herzog, supra n. 180, at 224-225.

182. These comments are reminiscent of his general approach as outlined above, which supports the use of extra-halakhic methods exclusively for the elucidation of Jewish law for those who would not otherwise have access to it.

183. See Herzog, Main Institutions, supra n. 63, at vol. 1, 382-383; Herzog, supra n. 180, at 219-220. And see supra n. 73 for a supposed explanation for the changing.

184. Compare supra n. 80.

185. b. Bava Metsia 108a.

186. For more about this law and its moral significance, see Elon, supra n. 11, at vol. 2, 625-626.

187. Herzog, Main Institutions, supra n. 63, at vol. 1, 385-386 (footnotes omitted).

188. The Jewish Encyclopedia, vol. 9, 213–214 (Singer, Isidore ed., Funk & Wagnalls 1907)Google Scholar. On a substantive level, to the best of our knowledge, this law is not to be found in Persian law, as is evident from the correspondence cited below. This was also confirmed to me by Prof. Yaakov Elman who is researching the comparison of Talmudic law to Persian law, and I wish to thank him). Nevertheless, we find similarity to Dina de-Bar Metsra in other ancient Near East legal systems. See Libson, Gideon, 'Od 'al Rasbah be-'lnyanei Matsranut ve-Zikato la-Halacha ha-Muslemit (More about Rasbah's Opinion on Matsranut and his Linkage to the Muslim Law) , in 'Atarah le-Hayim: Mehkarim ba-sifrut ha-Talmudit veha-rabanit li-khevod Profesor Haim Zalman Dimitrovski 371, 372–373 ((Boyarin, D. et al. eds., Magnes 2000) (Hebrew)Google Scholar.

189. For more details on him, see entry Dembitz, Lewis, in Encyclopedia Judaica 2d ed., vol. 5, 548 Google Scholar. Dembitz's affiliation with Jewish life was at first through the Reform movement, but later he joined the Conservative movement and helped to establish the Jewish Theological Seminary.

190. Herzog, supra n. 180, at 223.

191. See especially text adjacent to n. 4: “I have already condemned a conspicuous proclivity in large portions of the modern literature on Mishpat 'Ivri, to invariably search for comparisons and analogies from external sources.” Herzog, supra n. 4, at 405.

192. In 1947, he was appointed as the first Foreign Minister of Pakistan, and later in his life, he served in a wide range of prestigious positions, both political and legal. See United Nations, Sir Muhammad Zafrulla Khan (Pakistan), Elected President of the Seventeenth Session of the General Assembly, http://www.un.org/ga/55/president/bi017.htm (accessed Aug. 31, 2007).