The Jewish Law Annual - Vol. 14

The Jewish Law Annual - Vol. 14

The Jewish Law Annual - Vol. 14

The Jewish Law Annual - Vol. 14


The volume contains ten articles, including a penetrating analysis of the application of Jewish price fraud law to the workings of the present-day marketplace. Diverse in their scope and focus, the articles address legal, historical, textual, comparative and conceptual questions. The volume concludes with a survey of recent literature on biblical and Jewish law, and a chronicle section, which discusses recent Israeli and American court cases involving issues where Jewish law is of particular relevance, thereby making the Annual a journal of record.


The Jewish Law Annual, Vol. XIV



Coercion is in the nature of all legal systems. Coercion is also one of the main concerns of legal theory. Specifically, legal theory attempts to delineate the foundations and limits of coercion. In this context, theories of consent, despite their fictitious nature, are often put forward. Some such theories argue that the alleged consent of the governed-the participation of the ruled in the evolution and determination of the law-is the principal justification for legal coercion. This is so even where insistence on the acceptance of the law by the governed is not motivated directly by the desire to justify legal coercion, but by other concerns. Consider the following doctrine from the area of religious law: where the law is controversial, legal coercion cannot be exercised unless agreed upon by the litigants, lest the doubtful law fail to represent the will of God. While motivated by theological considerations, it may provide some moral justification for legal coercion.

In this article, I compare two doctrines of this genre, one found in Jewish law, the other in Catholic theology; doctrines that, despite differences in origin, underlying assumptions and historical context, share several pivotal features. Discussion of the jurisprudential implications of these doctrines is left for another occasion.

The doctrines in question originated independently, with an interval of almost a hundred and fifty years between them. In both cases, the doctrines constituted an innovation, albeit an innovation based on familiar concepts, and had significant impact on the systems within which they emerged, provoking clamorous opposition and generating much literature. In both cases, controversy and diversity of opinion characterize the social contexts within which the doctrines gained acceptance. To be sure, the Jewish doctrine developed in the sphere of

* Hanina Ben-Menahem teaches at The Hebrew University of Jerusalem, and is Gruss Visiting Professor of Talmudic Civil Law at Harvard Law School.

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