Dworcules, Jewish Law, and the Doctrine of Legal Error

Hanina Ben Menahem*

*Corresponding author for this work

Research output: Chapter in Book/Report/Conference proceedingChapterpeer-review

Abstract

Recently, scholars of Jewish law who wished to characterize the workings of Jewish law turned to Ronald Dworkin’s writings for inspiration. The Talmudic doctrine of judicial error is based primarily on a procedural test, not a substantive one. The Mishnah distinguishes between a learned individual and a layman. The lack of coherence, the difficulties, and the complications that the Talmudic Sages retain also indicates their approach to the question of lacunae. Invoking the doctrine of mistake implies taking on a judgmental role regarding past decisions, and undermining positions with which one does not agree. The Talmudic discourse that is committed to the ideal of “both are the words of the living God” differs markedly from the discourse of error. Controversy, the hallmark of Talmudic legal culture, allows (and encourages) diverse views to remain within the system, whether or not they are accepted, without requiring that they be labeled “mistaken”; in other words, it allows divergent views to be tolerated.

Original languageEnglish
Title of host publicationThe Jewish Law Annual
Subtitle of host publicationVolume 22
PublisherTaylor and Francis
Pages25-36
Number of pages12
Volume22
ISBN (Electronic)9781317200413
ISBN (Print)9781138674745
DOIs
StatePublished - 1 Jan 2023

Bibliographical note

Publisher Copyright:
© 2024 Institute for Research in Jewish Law, Hebrew University of Jerusalem.

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