The decisionistic strand in Jewish legal philosophy is often neglected by scholars focused on the more common rational explanations for Jewish law. This article brings attention to decisionism in Jewish legal thought by analyzing the legal philosophy of Shneur Zalman of Lyady, the founder of the Habad Hasidic movement. The author uses the legal and political thought of Carl Schmitt—arguably modernity’s most influential decisionist—to help elucidate Shneur Zalman’s decisionistic legal thought and thereby put into sharper focus an otherwise underappreciated current in Jewish legal philosophy.

In Pilate and Jesus, Giorgio Agamben argues that Pontius Pilate never formally condemned Jesus of Nazareth. “The traditional interpretation of Jesus’ trial … must be revised,” he urges, because “there has not been any judgment in a technical sense.” In Agamben's telling, Pilate's non-judgment is the original truth of Jesus's death that has been covered over by tradition. This is an intriguing hypothesis, but Agamben's use of sources in arguing it is highly irregular. This article offers a critique of the legal and philological argumentation of Pilate and Jesus. In the process, it revisits an ancient—and still actual—controversy surrounding the Roman trial of Jesus and demonstrates that Pilate did sentence Jesus, pro tribunali, to death on a cross.

The Western legal tradition was formed in the great revolutionary upheaval of the late eleventh and early twelfth century, when the papacy established its independence from imperial and royal control and its political and legal supremacy over the clergy of Western Christendom. It was then that there was first developed the modern Western belief in the autonomy of law, its professional character, its integrity both as a system of institutions and as a body of learning, its capacity for organic growth over generations and centuries, its conscious historicity, and its ultimate supremacy over political authorities. It was then, too, that the modern Western concept of subjective rights was first adumbrated—the rights of corporate bodies and persons to property and to liberties against other corporate bodies and persons, and even against superiors.

Politically, the Western legal tradition was rooted in the dualism of ecclesiastical and secular authorities and in the pluralism of secular polities—kingdoms and principalities, feudal domains, autonomous cities—within the ecclesiastical unity. Theologically, it was rooted in a concept of salvation, and of law as part of God's plan of salvation.

Religious freedom in America is guaranteed by the first sixteen words of the Bill of Rights:

This simple declaration is pivotal. Its adoption in 1791 was the culmination of an era just as surely as it opened another. The first amendment has inspired almost 200 years of judicial history in which the United States Supreme and lower courts have attempted to fill these plain words with specific content. Its passage climaxed nearly as long a period of significant colonial history. An understanding of that history is indispensable to the interpretation of the first amendment since, as the Supreme Court has said:

A.H.M. Jones, the great British historian of the later Roman Empire, was once asked what difference conversion to Christianity made to Rome. His answer: None. Brutal gladiatorial contests continued to be held, slavery was not abolished, and cruel penalties were laid down for seemingly minor moral infractions. Thus, Jones reasoned, the actual impact of Christianity on secular Roman society is difficult to see. Jones's view, however, has not been universally shared, particularly when it comes to the Roman legal system. Biondo Biondi saw Christianity as bringing about “un profundo rivolgimento” in late Roman law, which had ramifications in many different areas. As a religion, Christianity differed in unmistakable ways from its pagan competitors, and it would be quite surprising if these differences did not have some impact on Roman law and society when Christianity was adopted as the official state religion. The late Roman era offers a fertile testing ground for the impact a nascent religion might have on a society and its legal institutions.

Free exercise jurisprudence is unique in constitutional law. Because direct regulation of religious activity almost never occurs, the litigation surrounding free exercise addresses only incidental and inadvertent regulation of religious conduct. For this reason, the issue in a free exercise challenge typically is not whether a law is constitutional; the law under attack is usually constitutionally unassailable outside of its incidental effect on religious practice. Rather, the issue is whether certain individuals should be exempted from otherwise valid, neutral laws of general applicability solely because of their religious conviction. The jurisprudence of free exercise, in short, is the jurisprudence of the constitutionally compelled exemption.

There are a number of tensions underlying the notion of constitutionally compelled exemption and underlying the constitutional treatment of religion and religious belief, that make free exercise jurisprudence a particularly difficult subject for coherent analysis. First, because special exemptions of any kind raise concerns of undue favoritism, they are normally suspect as violating fundamental constitutional principles of equal treatment. Thus, as the Court noted recently, the conclusion that the Constitution may require the creation of an exemption directly contradicts the constitutional norm.

Were the exhortation to forebear conduct toward others that is hurtful to oneself not so often ignored in real life, its reiteration here would be wearisome. But phrased as Hillel—or as Matthew—does, it remains mostly an aspiration. In this essay, I place the prescription front and center by asking what it might mean, even in theory, to urge love for one's neighbors as for oneself in a pluralist, liberal democratic society. Is it even theoretically possible to achieve? Does it matter? Could it be realized if we treat everyone in exactly same way, and do so from within the same internally constructed frameworks that we bring to the rest of the world? Such a conclusion hardly seems likely, if love of one's neighbor contains a universal prescription for peaceful co-existence; we seem ill-prepared as a public to facilitate the norm. Hillel's vision, rooted in Leviticus, thus partakes of both the trivial and the majestic: of the trivial because it appears as a vaguely-worded, uselessly abstract appeal devoid of substance; but at the same time there's deceptive majesty because the genuine enduring sovereignty of the idea, though often heavily weighed down by the earth's sometimes dreary trappings, is undeniable.

During the latter part of the twentieth century, Islamic law or shari'a has had an increasingly practical influence on the types of cases adjudicated in American courts. As the Muslim population continues to grow, the American legal system will inevitably face interesting, complex family law questions that are intertwined with Islamic law. While religious denominations have a genuine and continuing interest in marriage and its rights and obligations, religious laws are clearly subordinate to state secular law. A religious marriage is valid only to the extent that it complies with a state's statutory requirements. Likewise, state statutes regulate divorce and designate specific state courts as the forum for the divorce proceeding. Since marriage and divorce are controlled by secular state law, it is insufficient for Muslims to adhere solely to the shari'a on these matters. However, as the state continues to cede some of its traditional authority in favor of increased private ordering of the institution of marriage, religious adherents are looking to contracts as a means to abide by religious precepts and secular law. These contracts provide methods whereby “parties agree to internal (religious law) resolutions of marital disputes, but the agreement itself is enforceable by the external authorities.”

What if instead of studying religions by texts, history, and practices we studied them by what they fear? I first had this thought in considering philosophical differences between Plato's Republic and Laws. What accounted for the shift from the profound idealism of the Republic to the apparent authoritarianism of the Laws? The standard answer is that Plato was born in a time of troubles, at the tail end of the oligarchic regime of the Thirty Tyrants, who took hold of Athens at the end of the Peloponnesian Wars. As recounted in the Apology, it was a regime that was famously and vigorously opposed by Plato's great teacher, Socrates. Socrates is absent from Plato's last dialogue, the Laws, written as an older man, after a stint in prison for having opposed another tyrant. In the Laws, the contemplation of ideal forms in Republic gives way to promulgation of detailed laws to achieve unity, harmony, and a perhaps tenuous peace. Most imperative of all is the need to avoid the chaos of war and tyranny. The philosopher is gone—Plato has lawyered up.

Saul, a Jew, later called Paul, was born in the predominately Greek city of Tarsus located in Asia Minor. The Greek Jew was a zealous Pharisee and a contemporary of Jesus although he had not seen him. One day in approximately 35 A.D. he was traveling to Damascus to arrest Christians who were to be punished (persecuted). On the road to Damascus he was met by Christ, who asked him: “Saul, Saul, why do you persecute me? And he (Paul) said, ‘Who are you Lord?’ And he said, ‘I am Jesus whom you are persecuting …’” (Acts 9:4-5). Paul fell into a coma and lost his sight which was restored three days later by Christ's agent. He was utterly convinced and never doubted that he had been authorized by Christ to be an apostle.

The most important facts that should never be lost sight of are, first, that Paul's experience on the road to Damascus was so dramatic, emotional, and intense that his consequent profound faith in Christ must supply the premise of any interpretation of his epistles. Second, quite different but also extremely important is the almost universal agreement that Paul was a genius. In sum, we are dealing with the discourse of a genius, a very emotional one, who had an overwhelming experience that made faith in Christ paramount in all aspects of his subsequent life.

Individuals and communities play critical roles, both theoretically and practically, in the preservation and development of Jewish law. Some of these roles allow for considerable autonomy, at least if that term is understood as the employment of one's intellectual creativity and ethical judgment. Jewish law does not purport to micromanage all of a person's decisions. Quite the contrary, in many instances, it provides and encourages moral choice so that, in part, a person can become a moral agent rather than merely someone who does moral acts.

In Part I, we examine how the scope of autonomy is shaped by basic Jewish law axioms. For example, Jewish law assumes that the Pentateuch, also known as the “Written Torah” or “Written Law,” contains words which were communicated to humankind directly by God. Yet, unlike the approaches of some fundamentalist religions, Jewish law does not always construe these divine words literally. In fact, Jewish law authorities openly acknowledge that various Pentateuchal passages, taken by themselves, are incomplete, incomprehensible or at times ostensibly inconsistent. Jewish law assumes that God transmitted to humankind two interrelated bodies of teachings: one, the Pentateuch, was to be written down, and the other, known as the “Oral Torah” or the “Oral Law,” was to be transmitted from Teacher to Student. It is the Oral Torah that clarifies, resolves and supplements the Written Torah. Indeed, because the Oral Torah is necessary to understand the Torah, Jewish legal sources say that “the Oral Torah is the more important of the two.” Throughout this article, unless stated to the contrary, the term “Torah” refers to the Written Torah, the Oral Torah, or both, and the phrase “Torah Law” pertains to the laws that arise from the Torah.