Maimonides’ Conception of Principles of the Law as Reflecting Islamic Uses of “Legal Maxims”

• In Event: Inward Acculturation in Medieval Law and Exegesis

Abstract

This paper addresses an understudied aspect of Maimonides’ legal compositions; namely, the striking interest he displays in calling attention to legal principles which inform individual laws. Many, such as “the burden of proof is on the plaintiff” or “one does not pay a punitive fine on his own admission,” can be found in the Talmud, and pre-Maimonidean legal works do utilize them. However, Maimonides spent far more time on these principles than did his predecessors. One can find hundreds of cases in his Commentary to the Mishnah where Maimonides puts forth the principle which stands behind a specific law, and he frequently inserts them into Mishneh Torah and his responsa, often telling the reader to pay particular attention to them.
While previous halakhists sometimes invoked legal principles mentioned in the Talmud, they did not systematically do so, and they certainly did not value them to the extent Maimonides did. When we look at his descriptions and uses of these principles, it becomes clear that Maimonides saw them as possessing a critical role in the halakhic corpus. This paper argues that his interest in legal principles, the specific roles he ascribes to them within the system of Jewish law, and the language (in his Arabic works) he uses to demarcate them parallel a trend in Islamic legal writing beginning to peak in Maimonides’ era.
About two centuries earlier, Islamic legal scholars had begun to identify and formulate what came to be called qawāʿid fiqhiyya, generally translated as “legal maxims.” These maxims represent principles— “doubt does not overrule certainty,” “custom can serve as the basis of a ruling,” etc.— which guide a jurist in deciding individual cases. By the time Maimonides was writing his own legal works, Muslim scholars had laid out hundreds of principles, some applicable to all areas of the law and some specific to particular spheres. In Maimonides’ period, the invocation of these principles became an important feature of Islamic legal writing. Maimonides seems to have adapted or drawn from this trend in Islamic legal scholarship in his presentations of halakhah.

Author

• Ezra Blaustein, University of Chicago