Comparing Religions through Law: Judaism and Islam

By Jacob Neusner; Tamara Sonn | Go to book overview

4

THE WORKING OF THE LAW

Institutions

A


Institutional authority

From classical theories of legal theory, we proceed to classical theories of legal practice. How, in theory, do the Judaic and Islamic religio-legal systems conceive law to work in the social order that each aspires to realize? That is a political question, concerning the institutions of law enforcement and the character of legal sanctions.

The answer to that question requires that we consider politics, meaning the exercise of legitimate coercion, who has the right legitimately to do what to whom, which is the standard (secular) definition of politics. We deal not with how things worked themselves out here and there, but with the stories that the two systems tell to portray the politics of the law. In the case of Judaism we see how power is differentiated, parceled out between God and human beings, explaining the division of sanctions among a variety of institutional centers. In the case of Islam it is assumed that all law originates with God, but that human beings are entrusted with the challenge of understanding and implementing the law. The science of Islamic law therefore determines the relationship of law to the state and its leaders. The issue confronting Islamic and Judaic legal theory is thus the same: the realization of power in concrete form.

We take up two questions. First, what theory—or, more really, what story —accounts for the institutional arrangements that regulate the community in accordance with the law, and how is the law enforced? Second, to what sorts of persons do the systems assign the task of law enforcement? What explains who has the credentials and authority to enforce the law? The first question draws our attention to the matter of how the legal systems explain their institutional arrangements; that is, the court system and the penalties it imposes. The second question, dealt with in Chapter 5, requires attention to the qualifications required of those who enforce the law, the personal gifts they are supposed to possess, and similar matters of individual credentials and charisma. That is where law, religious sentiment and conviction, and theology intersect: in the person of the sage and the saint.

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Comparing Religions through Law: Judaism and Islam
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Preface vii
  • 1 - Comparing Islam and Judaism in Particular 1
  • 2 - The Authoritative Legal Documents of Judaism and Islam 18
  • 3 - The Intellectual Sources of the Law 61
  • 4 - The Working of the Law 103
  • 5 - The Working of the Law 127
  • 6 - Disproportions 153
  • 7 - Unique Categories 191
  • 8 - Epilogue 240
  • Notes 253
  • Index 261
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