Chapter 9 includes some insights and observations from the Hon. Prof. Calabresi on the major elements of the Maimonidean theory, especially those that are similar – more or less – to contemporary tort law and economics. Calabresi discusses law, economics, and justice in our era and in Maimonides’ theory of torts, and empirical differences in the different times and their implications. Calabresi also considers the question of whether there are differences between the differential liability model presented by Maimonides, and contemporary theories of the economic analysis of tort law, expanding on deontological as opposed to utilitarian considerations according to law and economics. Calabresi deals specifically with the issue of punitive damages and discusses the innovative analysis of Maimonides compared to the multiplier approach, distributive justice as presented by Maimonides, and his optimal deterrence model. There is a great deal in Maimonides that presaged both his work in particular and sophisticated modern law and economics generally. Calabresi notes that not only can we now understand Maimonides, and the breadth of his thinking better, but we also have a clearer picture of the strengths and weaknesses of modern scholarship.

Chapter 7 attempts to define accurately the standard of care adopted by Maimonides in his Code with respect to four categories of damage: (1) damage caused by a person to the property of another, (2) damage caused by a person who injures another, (3) damage caused by property, and (4) murder. In relation to each of these four categories, Maimonides proposed a standard of care that lies on the scale between fault, negligence, and strict liability. A careful examination of Maimonides’ writings reveals that he favored different liability regimes for different categories of damage. We present a scheme that illustrates Maimonides’ differential model and explains its rationale with respect to the hierarchy in the different standards of care applied in different cases. We also describe the historical background, circumstances, and nature of the tortfeasors in Maimonides’ time and in the contemporary era. This is essential for an understanding of the differential liability model in itself and as compared to contemporary models. Maimonides’ tort theory, we argue, is based upon a fundamental distinction between two questions: (1) upon whom should tort liability be imposed and (2) what is the standard of care that should be imposed in each case.

After raising questions regarding the problematic texts in the Code in Chapter 2, and presenting consequentialist – and not only deontological – objectives of Maimonides’ tort theory as the two main objectives of tort law, as seen in Chapters 3–5, Chapter 6 revisits some of the problematic texts in the Code. In this chapter we revisit some of the problematic texts in the Code and attempted to cast light on them in view of the consequentialist objective of tort law elucidated in the Guide. In this way, we try to resolve some of the difficulties that were raised in Chapter 2. At the same time, we clearly show that the Guide and the Code do not always speak with one voice. Sometimes, a general rationalization offered in the Guide in relation to a particular ruling, such as that relating to the tam ox, cannot be reconciled with the details of the ruling as specified in the Code. Revisiting some problematic texts will serve as leverage for further understanding the Maimonidean theory in the .

In Chapter 2 we will present the difficulties facing those who seek to understand Maimonides’ tort theory as it appears in the Code alone, and according to the common interpretation (the “yeshivah reading”). Several contemporary scholars, as well as rabbis from the Lithuanian yeshivot, identified a different element as an alternative to the element of peshiah, i.e., the element of ownership, and some say ownership and strict liability, by virtue of which liability is imposed for damage caused by a person’s property. We will examine this approach critically and conclude that it does not accurately reflect Maimonides’ position, for it raises serious difficulties, both conceptual-principled and exegetical. We will point to a trend of new explanations of the Jewish sources through the speculum of the common tort theories in the twentieth century in the world of Jewish law. Chapter 2 will leave us with many open questions, which will be answered in the subsequent chapters. The book contains three main parts: (a) Questions; (b) Answers; and (c) Dialogue. Chapter 2 presents the questions to be dealt with in the book. Chapters 3–6 supply answers, and Chapters 7–8 offer a dialogue between Maimonides and various contemporary tort theories.