Journal of Law, Religion and State - Volume 3, Issue 1, 2014

Scholars have frequently alluded to the normative value of the religious free market fostered by the twin legal guarantees of the free exercise of religion and the absence of state establishment of religion. But given that the desirable normative interpretations of these two clauses differ widely, the nature of the resulting market is inevitably dependent on one’s choice of these contested interpretations. Similarly, the “entitlement to free competition” depends on the definition of “religion.” The present article deconstructs the religious free market into its legal components and discusses critically how the different interpretations and combinations of these legal components materially affect the resulting religious market.

Jewish law includes two parallel systems of halakhic ruling: public and private. There is often a significant gap between what halakhic authorities proclaim publicly and what they are willing to say, on the same topic, in private.

The ability to deviate from the original ruling in order to solve concrete problems answers one of the central demands of feminist critics of the law. It enables flexibility and creativity on the part of the decisor and avoids the characteristic pitfalls of the generalized nature of the law, which, according to feminist critics, affect primarily women. On the face of it, halakhah works in this flexible mode. However, the selective concealment mechanism built into the halakhic system prevents this benefit from being felt, primarily by disadvantaged populations. In its absence Jewish law may be capable, at least in principle, of instituting a halakhic model which responds to inherent problems within the two parallel systems of halakhah as well as to feminist sensibilities.

The present article discusses the biblical commandment to return lost property (hashavat aveda) and the manner by which it is treated by the early rabbinic tradition. I argue that it is possible to read the two passages in the Torah in which the commandment is mentioned (Ex. 23:4–5; Deut. 23:1–5) as an attempt at constructing an ethical stance of unselfishness, in which the other and the other’s loss are given priority over one’s selfish instincts. To this end, the Torah uses the rhetoric of brotherhood, intended to stimulate feelings of solidarity and to encourage members of the community to treat each other with empathy, care, and compassion. However, most of the legal discussions of the commandment in early rabbinic literature favored a legalistic interpretation of the Torah rhetoric, according to which the use of the word “brother” was meant to delineate the scope of the commandment, that is, to specify whose lost property a Jew is commanded to return and whose not, rather than to induce sentiments of compassion and solidarity. I suggest that although this line of interpretation stems from a deep rabbinic refusal to accept the interpretive possibility that the commandment to return lost property includes non-Jews, it also reflects a broader rabbinic tendency to deny a role in halakhic discourse to emotions.

Common anthropological and structuralist approaches to Israelite purity law are often problematic. Disgust is a more promising explanation for the diverse impurities reflected in priestly texts. But not all impurities fit into a pattern of disgust equally well. Disgust language also characterizes impurities that ought not to evoke revulsion easily. I have previously suggested a transfer of emotional disgust from obvious triggers to objects that are clearly culture-specific by means of a secondary use of disgust language as value judgment. In the present article I explore this further with the help of cognitive linguistics. Conceptual metaphor theories as well as more elaborate blending models help clarify how disgust intrinsic to certain conceptions of impurity can be extended and transferred to others, which at times bear only slight resemblances. As a result, I suggest that disgust is the most comprehensive explanation for the wide variety of conceptions of impurity found in priestly legislation.