'The One Who is More Violent Prevails' - Law and Violence from a Talmudic Legal Perspective
Joseph E. David
Sapir Academic College - School of Law; University of Oxford - Faculty of Oriental Studies; Van Leer Institute Jerusalem
Canadian Journal of Law and Jurisprudence, Vol. 19, No. 2, 2006
How are we to distinguish between law and violence? On what grounds is the former legitimized while the latter is condemned? This modern question sheds light on the essential concepts of law and order and their social value. My task in this paper is to trace the roots of this question in the Jewish jurisprudential tradition by focusing on a unique norm, established sometime during the 5th to the 6th century, in which violence become a legitimized norm when a case could not be determined by means of official legal procedure. This survey shows that while ancient sources legitimized this norm of extra-legal violence, medieval thinkers redefined it and neutralized it, reduced it to an economic procedure or even explicated interesting stances regarding the honor and stability of legal institutions.
Keywords: violence, legitimization, Talmud, Jewish jurisprudence, Judicium Dei, duel, ordealAccepted Paper Series
Date posted: June 21, 2007
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