Hanina Ben-Menahem

Authority, process and method : studies in Jewish law

The articles in this volume were originally published in Hebrew in Shenaton Hamishpat Haivri and address Jewish law, both in its own context and in the context of contemporary jurisprudence. Contributions range from discussion of the rabbincal court to the doctrine of binding precedent, and from the basis of judicial authority to the legal defence of ignorance of the law.

On the Talmudic Prohibition against Giving Gifts to Gentiles.

Examination of the institution of the gift in the Talmud reveals that giving gifts to Gentiles is prohibited. The prohibition is generally believed to be motivated by the desire to restrict social intercourse between Jews and Gentiles. Gift-giving, it is argued, might lead to, or indicate the existence of, overly-close social relations. On this understanding of the institution, then, it is the potential consequences of the gift-giving that are problematic, rather than the act itself. I will argue that this social account of the origin of the prohibition is unsatisfactory, and that while social considerations did play a role, to regard the inhibition of fraternization with Gentiles as the sole or primary factor underlying the prohibition is a facile oversimplification. Further, I will argue that the explanation for the prohibition must be sought in the act itself, rather than in its consequences.

Popper’s Criterion of Refutability in the Legal Context

In this paper we compare two criteria; Popper’s criterion of the refutability of scientific hypotheses and an analogous criterion, found in Talmudic law, for the admissibility of legal testimony. Popper’s criterion and the methodology based on it faces philosophical as well as pragmatic difficulties. We survey the major objections to Popper’s criterion and argue that they do not apply in the legal context. The paper is both a result and an illustration of the interaction between philosophy of science and philosophy of law.