Reconsidering Early Modern Jewry: Reflections on the Methodology of Legal History

Abstract

This article seeks to clarify the methodology of Jewish legal history and illustrate how the historical examination of Jewish law serves as a valuable tool to discern the distinctive character of the early modern period. Principal elements of the analysis are the role of Jewish law in communal governance, its relationship to civil legislation, and its responsiveness to social and economic challenges. Communal autonomy, a hallmark of the early modern Jewish community and its self-governing institutions, had well-established roots in the medieval period, but it was only in the sixteenth and seventeenth centuries, in the post-Westphalia (1648) era, that its distinctive legislative and judicial features were fully developed and widely adopted. The participation of rabbinic authorities in communal government and their consultative role alongside lay governing officials was of particular importance. As unofficial jurisconsultants, they provided guidance on matters of legislation, when a legal ambiguity required clarification, or when litigation involving the community was pending. Poskim (halakhic decisors) were asked to review and, in some instances, interpret communal bylaws. Important new trends in legal decision-making in areas of dispute resolution and judicial discretion and the devising of legal remedies to ease social or economic difficulties provides valuable illustrations of responsiveness to social and economic change. Legal activism is especially notable in areas of law relating to the rights of women regarding inheritance and marital property. Despite lay hegemony in community affairs, religion continued to be a potent force in civil government and legislation, and there was a far greater degree of cooperation between the lay and rabbinic authorities than has been previously assumed.