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The Perception and Practice of Jewish Customary Law by Authorities of the Ius Commune

Mon, December 17, 1:15 to 2:45pm, Seaport Hotel & World Trade Center, Federal 1 Complex

Abstract

The purpose of this paper is to explore how university-trained Christian law professors, judges, and administrators/civil servants looked at and applied Jewish customary law in the seventeenth and eighteenth centuries. Regrettably, this topic has received little attention. To the extent that general legal history has taken an interest in the early modern period, the focus has been overwhelmingly on modernizing tendencies. In Continental Europe, the dominant trend was to view the state as the sole source of normativity, as was manifest in the codification movement. The idea that law was contained in a single code effectively blocked any consideration of alternative sources of normativity, in particular custom, and often explicitly so. When one considers the full spectrum of normativity as it existed in the legal world of Ius Commune, it becomes clear that legal custom continued to be a significant source of normative authority until the end of the eighteenth century. This change of perspective may also have an impact on what is understood by Jewish law. There are hints that it was precisely new layers of customary law that embodied legal innovation in face of novel challenges, some of them problematic from the perspective of traditional Jewish law, such as the subordination of rabbinical jurisdiction to the Jewish lay leadership or the interaction with non-Jewish legislation, administration, and jurisdiction. This paper will consider how Christian lawyers viewed these processes, using examples of Jewish inheritance law, contract law, and community bylaws.

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