Thinking Legally vs. Thinking Historically: A Penn Conference- Guest Post by Chaim Saiman

UPDATE: AUDIO POSTED ONLINE

Tomorrow, Penn Law School will be hosting a workshop whose genesis is an ongoing discussion between myself and Shai, reflected in a previous post on this blog. The workshop is designed to look at the divide between academic and yeshiva approaches to Talmud through the prism of legal theory. 

A useful starting point for this discussion is an 1888 lecture by the legal historian F. W. Maitland, Why the History of English Law is not Written, as he inaugurated the Downing Professorship of the Laws of England at Cambridge. Maitland asked why the English— who had been enthusiastic writers of histories on Roman, German, and French law—had yet to tell the story of their indigenous common law.  Maitland answered that it is difficult to write history when ancient materials are not “history,” but rather constitute present day authority. Historians employ the “logic of evidence” to recover what a legal text meant by probing the context in which it was written. Lawyers, by contrast, use the “logic of authority” to determine how the text was read and applied by subsequent legal interpreters.  In Maitland’s words, “the process by which old principles…are charged with new content, is from the lawyer’s point of view an evolution of the true intent and meaning of the old law; from the historians point of view it is. . . the process of perversion and misunderstanding.”  To the historian, presentism is a vice; to the lawyer, it is a virtue.

Maitland’s dichotomy seems very relevant to understanding the major divide in the study of Talmud and Jewish law. Academic scholars of Talmud and Jewish law trade in the logic of evidence, yeshiva learning by contrast, employs the logic of authority. The forum offered by a law school provides the opportunity to approach this debate not as  a question within Talmud or Jewish studies, but as a matter of legal theory. Thus on the one hand, lawyers are hardly naïve about the formants of legal doctrine. Few in the academy doubt that circumstantially contingent questions of social policy are central to legal decisionmaking.  And yet, even the most primitive legal argument is deeply acontextual: it strings together several events (precedents) by way of legal doctrine which inevitably brackets the very social facts and assumptions historians work to uncover.  While this ahistorical reasoning may be nonsensical when evaluated under the logic of evidence, it is the foundation of all legal reasoning.

Lawyers continue to reason through doctrinal categories that are generally divorced from social and historical context. And like Talmudic law, the American legal system is largely designed to ignore the contextual details that historians, sociologists, and political scientists see as the primary targets of inquiry. Which brings us back to the core of Maitland’s question: What does legitimate the lawyerly practice of stringing together texts and rules with little regard for the time, space and culture that produced them?

We have gathered a group of scholars to search for answers to these questions at a conference that begins tomorrow. It should be a fruitful way of conducting a fascinating conversation.

9:45 – 10:00 am Welcome Chaim Saiman, Gruss Professor of Talmudic Law, U. Penn Law School 
10:00 – 12:00 pm  Panel 1: Law and History: Conjunctions & DisjunctionsMichelle Dempsey, Professor of Law, Villanova Law School“Thinking Legally vs. Thinking Historically: A Legal Positivist’s Take”

Shyam Balganesh, Assistant Professor of Law, U. Penn Law School

“The Distinctiveness of Legal Reasoning”

Serena Mayeri, Professor of Law and History, U. Penn Law School

“History and Law, History-in-Law: A Legal Historian’s Perspective”

Tamara Eisenberg, Doctoral Candidate, University of Pennsylvania

“Some Historical Context about Historical Context”

 

12:00 – 12:45 pm Lunch 
12:45 – 2:45 pm Panel Two: Rabbis, Lawyers & Historians Talya Fishman, Assoc. Professor & Director of Jewish Studies, U. Penn“Readers and Raiders of the Rabbinic Archive”Chaim Saiman, Gruss Professor of Talmudic Law, U. Penn. Law School

“The Moving Average of Legal Meaning”

Ezra Schwartz, Rosh Yeshiva, Yeshiva University

“Concepts and Categories: A View from the Yeshiva’s Beit Midrash”

Ethan Tucker, Rosh Yeshiva, Mechon Hadar Institute
“Should a Rabbinic Judge be Sensitive to Historical Context?”

 

2:45-3:00 pm Break 
3:00 – 4:45 pm Session 3: Halakhah and History: Case studiesYishai Kiel, Post-Doctoral Associate in Jewish Studies, Yale University“The Role of History and Legal Theory in Shaping Noahide Law: The Case of the Sexual Prohibitions”Richard Hidary, Assistant Professor of Jewish History, Yeshiva University

“Confluence and Cacophony Between Hilkhot Shabbat and the Development of the Laws of the Sabbath”

David Flatto, Assoc. Professor of Law, Penn. State University Law School

“Impeaching Testimony in Halakhah: A Case Study of Historical and Conceptual Dimensions of an Evolving Legal Rule”

Perry Dane, Professor of Law, Rutgers University Law School

“Jewish Legal Change and the Ironies of Historical Consciousness”

 

4:45-5:00 pm Break
5:00-5:45 pm Concluding Discussion  Christine Hayes, Professor and Chair of Religious Studies, Yale UniversitySuzanne Last Stone, University Professor of Jewish Law, Yeshiva University
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9 thoughts on “Thinking Legally vs. Thinking Historically: A Penn Conference- Guest Post by Chaim Saiman”

  1. The conference was recorded, but it will need to be edited to be useful to anyone. Everything is closed in the US academy for the next week or so. I will send out notifications when its up and accessible.

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