Legal Comparability and Cultural Identity: The Case of Legal Reasoning in Jewish and Islamic Traditions
Joseph E. David
Sapir Academic College - School of Law; University of Oxford - Faculty of Oriental Studies; Van Leer Institute Jerusalem
May 23, 2010
Electronic Journal of Comparative Law, Vol. 14, No. 1, May 2010
Comparativism is not only a means for political change, but also a heuristic tool for the legal historian within explanatory contexts. The comparability of the Islamic and Jewish legal systems in the medieval period is a typical case for comparative legal history repeatedly mentioned both by legal historiographers and by scholars of religious studies. Our aim is to examine the comparability of these legal systems in the light of modern comparative theories and methodologies: What makes these legal traditions comparable? Is it the theological proximity, the factual transplantations or perhaps the jurists' jurisprudential self-understandings? Our test case will be one of the debated topics in legal philosophy at that time – the legitimacy of legal reasoning in interpreting legal sources and analogizing novel cases to known rulings. Our analysis of the attitudes towards this problem and in relation to theological principles and legal theories in the Islamic and Jewish legal context will revalue the applicability of current comparative theories in a pre-modern and non-western scene.
Number of Pages in PDF File: 24
Date posted: May 23, 2010 ; Last revised: June 15, 2010
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