Teaching Religious Law Research as Part of Comparative Law: Focus on Jewish Law

By Marylin Raisch

Why bother to learn about legal research and methodologies in the niche area of religious law? From the perspective of training lawyers in law schools, this pursuit appears to be completely and literally academic (read: useless for the practice of law). In order to move from “what?” to “so what?” and beyond that to “ok, how?” one has to move into a mind-set that opens up to comparative legal systems generally and wants to find out if learning about the unfamiliar, even obscure, legal cultures helps one better understand one’s own. Practical inquiries made through comparative law may illuminate the impact of legal systems on economic development in their respective jurisdictions.[1] This topic can be a good way into comparing our common and many civil law systems with a system which permits conflicting opinions and is ultimately not driven by precedent at all.[2]

What follows below is an outline of selected sources that have been presented in a 40 minute research talk to a Jewish Law seminar at Georgetown. Some editions of texts we use are not necessarily definitive, but I list what we reference for the students. Unless otherwise indicated, web sites listed are free sources.

Jewish Law in General; together with issues relating to American law

  • Hollander, David. Resources to Begin the Study of Jewish Law in Conservative Judaism, 105 Law Libr. J. 305 (2013) available via HeinOnline (fee-based).
  • ______________. Jewish Law for the Law Librarian, 98 Law Libr. J. 219 (2006) available via HeinOnline (hereafter Hollander, Jewish Law)
  • Elon, Menachem. Jewish Law: History, Sources, Principles = Ha-mishpat ha-Ivri; translated from the Hebrew by Bernard Auerbach and Melvin J. Sykes. 4 vols. Philadelphia: Jewish Publication Society, 1994.
  • University of Miami Law Library, Jewish Law Research Guide
  • WashLaw: Legal Research on the Web (Washburn University Law School), Jewish Law portal.
  • Cardozo Law-Yeshiva University Center for Jewish Law and Contemporary Civilization, blog Ancient Traditions, New Conversations (highlights legal questions within Jewish law along with book reviews useful for new title acquisitions.

Talmudic Law and Primary Texts

The Halakha (transliterated variously) is defined broadly at the Jewish Virtual Library’s Encyclopedia Judaica as the totality of oral and written law from the Bible (Torah/Pentateuch) down from Moses through sages, codification, and rabbinic literature, with some of the latter in the form of specific decisions answering thorny legal questions, called responsa.

From a library collections point of view, primary texts would include:

  • The Mishnah, and edited collection from the late Second century CE attributed to Rabbi Judah the Prince that collected oral law or the oral Torah to transmit teachings after the destruction of the Second Temple in 70.
  • The Mishnah = [Shishah sidre Mishnah] [Jerusalem : Eliner Library, Dept. for Torah Education and Culture in the Diaspora, 1994-1996].
  • The Babylonian Talmud (TB) is a commentary on the Mishnah (and its commentary, the Gemara), and this version predominates in general study over a version produced at another Talmudic academy in Jerusalem, the Jerusalem Talmud, dating from 350–400 CE.
  • The [Babylonian] Talmud: the Steinsaltz edition, translated and edited by Adin Steinsaltz. New York: Random House, 1989- .  Digital copies are emerging, such as the one at the Jewish Virtual Library.
  • The Mishneh Torah (MT) of Maimonides, dating from 1170-1180 CE has been described as “the most comprehensive and significant code of Jewish Law ever compiled.” (see Eliav Shochetman, “Jewish Law in Spain and the Halakhic Activity of its Scholars before 1300” in work cited at footnote 2, above).
  • Maimonides, Moses, 1135-1204.The Code of Maimonides. New Haven: Yale University Press, 1949- .
  • The Shulchan Aruch of Rabbi. Joseph Ḳaro, in the sixteenth century, used the ṣefer halakhot and Maimonides’ Mishneh Torah to create an authoritative statement of halakha.
  • Karo, Joseph ben Ephraim. The Concise code of Jewish law: compiled from Kitzur Shulhan aruch and traditional sources: a new translation with introduction and halakhic annotations based on contemporary response. 2 vols. New York : Ktav Pub. House, 1977- .

(See Hollander, Jewish Law cited above at 228-233 for citation guides to these complex works).

Judaica Electronic Texts: This site at the University of Pennsylvania, contains texts in several languages, notably Hebrew-English parallel Bible from the Masoretic text, and “Internet Resources for the Study of Judaism and Christianity.”

Internet Sacred Text Archive, Judaism (older texts no longer in copyright)

Dafyomi Advancement Forum, at which provides hyperlinks to free online resources. Can be used as an easily accessible English summary of the Talmud, for basic orientation through daily study, from The Ministry of Religion and Culture of the State of Israel, Estate Distribution Fund of the State of Israel, Dr. Lindsay and Rivki Rosenwald, Memorial Foundation for Jewish Culture.

CCAR (Central Conference of American Rabbis) Digital Responsa Collection (fee-based),

Bar-Ilan University Responsa Project

Article Indexes ISpecific to Jewish Law and available free on the Internet

RAMBI – the Index of Articles on Jewish Studies: A multi-lingual bibliography of selected articles on Jewish Studies, from the Jewish National and University Library, also via The Library of the Faculty of Law at Bar Ilan University, maintains its own Index to Legal Periodicals in Israel. This platform is the same Aleph platform as RAMBI. It contains articles, written in Hebrew and in English that address matters of Jewish Law. This index can be found by going to, choosing the hyperlink at the top left for English, and then the Index to Articles. The difference? This additional resource also searches for books.

Article Indexes II: General & Legal Periodicals Indexes; search within them for Jewish Law

Law reviews: via Index to Legal Periodicals and Books and the Index to Foreign Legal Periodicals; Lexis and Westlaw with easy search strings that add in the narrower topic, for example this search string: arbitrat! w/s divorce AND “Jewish law”

Google Scholar (with library links to your institution’s catalog)

Digitization, Notable Journals and Collections: Specific to Jewish Law

HeinOnline Religion and the Law collection, section on Jewish Law. Many valuable titles, some older or discontinued journals.

Hebrew digital library Otzar HaHochma: (fee based). May be cataloged as Otzar Online, containing “over 90,200” electronic texts, though not all are on Jewish law.

Treasures of the Library, Jewish National and University Library, Writings of Maimonides, Manuscripts and Early Print Editions

Jewish Theological Seminary, archives and links to other e-content and holdings,

HebrewBooks.org– digitization and free download, all in Hebrew, not all specific to law.

Touro College, Jewish Law Institute, Lillian Goldstein Traveling Judaica Collection – Upon request, they will loan your law school a teaching collection!

Finally, do not overlook the often-cited In Custodia Legis blog of the Law Library of Congress. Search this comparative law blog in the box at the upper left with phrase in quotations “Jewish law” for posts such as this one from 2011, highlighting their Jewish Law collection and rare materials within it.

[1] See Chapters 9 and 10 on legal systems and legal change in Milhaupt, Curtis J., and Pistor, Katharina. Law & Capitalism: What Corporate Crises Reveal about Legal Systems and Economic Development around the World. Chicago: University of Chicago Press, 2014. Accessed February 28, 2018.
[2] “Stemming from the original prophetic concept of divine revelation, the concept persisted that rival, apparently (to humans) contradictory traditions, could subsist simultaneously, each claiming the validity of divine law. No ‘rule of recognition’ … could deprive such revelation of its validity. From this stems the understanding here propounded of both the ‘either-or’ phenomenon of the Talmud…” in Ben-Menahem, Hanina. “Postscript: The Judicial Process and the Nature of Jewish Law” in An Introduction to the History and Sources of Jewish Law, N. S. Hecht, B. S. Jackson, S. M. Passamaneck, Daniela Piattelli, and Alfredo Rabello, eds. Oxford: Oxford University Press, 1996 at p. 434-435. Oxford Scholarship Online, 2012. doi: 10.1093/acprof:oso/9780198262626.003.0016.

A Snapshot of Indonesian Law (and Indonesia) & the FCIL-SIS Throws a Party

By Julienne Grant

Rheny3Dr. Rheny Pulungan, recipient of the 2016 FCIL-SIS Schaffer Grant, gave a fascinating presentation on July 18 entitled “The Legal Landscape in Indonesia:  Limitations and Possibilities.”  This was actually Dr. Pulungan’s first time in the United States, and she admitted to being a little overwhelmed.  She was headed to NYC after her Chicago visit.

Dr Pulungan began her presentation with a quiz for audience members, “Fun Facts About Indonesia,” which tested us on our basic knowledge of the country, such as the number of islands (around 18,000);  population (about 250 million); and official religions (Islam, Hinduism, Buddhism, Protestantism, Catholicism, and Confucianism). Needless to say, the attendees were a bit stumped and surprised at the answers. The speaker also showed a slide of Indonesia embedded on a map of the United States, and many of us were astonished to see what a large geographic area the country spans.

Indonesia’s legal system is complex, with civil law attributes resulting from the archipelago’s time under Dutch rule.  One region, Aceh, applies Shariah law. Since 1945, Dr. Pulungan explained, Indonesia has been creating its own laws. Starting in the 1970s, efforts began to create a national legal information center that would make Indonesian laws more accessible, and beginning in 2004, laws and court opinions have been regularly posted on Indonesian government websites.

The speaker next turned to Indonesia’s judicial system. At the trial level are 250 district courts, appellate level high courts number 30, and the Indonesian Supreme Court is a court of cassation. There are also specialized courts, including religious courts and military courts, as well as a constitutional court.  The Supreme Court has a website where its decisions are posted, although none are translated into English. Dr. Pulungan described the search functionality of the site as being mediocre and indicated that the Supreme Court does publish a small number of its decisions in print.  In 2012, as part of USAID’s Changes for Justice Project, an electronic case tracking system (SIPP) was established that was designed to promote judicial transparency.  According to the speaker, it is possible to search by case number or party name to locate information.  Dr. Pulungan also noted that court decisions at all levels must be uploaded within three days of rendering.

Decisions of the Constitutional Court (established in 2001) are translated into English and available on the Court’s website.  The Constitutional Court is not an appellate court and its authority is vested in the third amendment to Indonesia’s Constitution.  The Court’s database can be searched by multiple variables, including case number, case name, applicant names, and keywords.  The Constitutional Court’s role is “The Guardian of the Constitution.”

According to Dr. Pulungan, Indonesian legislation is relatively easy to find online, but locating official English translations can be difficult. There are several databases of note that contain Indonesian legislation: the State Secretariat Database (updated daily); Lexadin; some UN agency websites (such as UNODC); and Hukum.  Hukum is the only commercial database available for Indonesian law in both English and Indonesian.

The speaker next turned to secondary sources.  She recommended Cornell University’s “Southeast Asia Program” website and a quarterly publication called Inside Indonesia. She also mentioned the English-language law journal, Indonesia Law Review , which is open access, and the Australian Journal of Asian Law that is hosted on SSRN. The Jakarta Post covers legal news and developments, and Dr. Pulungan also noted the “Indonesia at Melbourne” blog and the website of the University of Melbourne’s Centre for Indonesian Law, Islam and Society.

The speaker closed her talk by emphasizing that translating Indonesian legal materials into English is inherently difficult.  She provided an example of a phrase in Indonesian translated into English by Google Translate as “hiking education,” while a UNESCO document translated it as “educational streaming.” She advised attendees to search for more than one English translation. Dr. Pulungan has created a LibGuide on Indonesian law and told audience members that she was available via email for assistance.

A question from the audience was raised about religious courts, which she explained are unique and preside over family law matters. As an aside, the speaker mentioned that Indonesian couples who marry must be of the same faith; Dr. Pulungan’s husband is Australian, and he had to convert to Islam for a day in order for the marriage to be legal in Indonesia.  Another attendee asked whether any Indonesian court decisions are precedential. There is no precedent, she said, but Supreme Court decisions include practice notes that can influence lower courts.

ReceptionAfter Dr. Pulungan’s excellent talk,[1] audience members headed to the FCIL-SIS reception for foreign visitors.  The reception was well attended, and I enjoyed chatting with FCIL colleagues there. Keith Ann Stiverson, 2015-2016 AALL President, welcomed the guests and announced the numbers of foreign attendees:  27 from Canada, 17 from the UK, 2 from Australia, 1 from Hong Kong, 1 from Ireland, 2 from South Korea, and 1 from Switzerland.  Ms. Stiverson’s remarks were followed by a few words from IALL President Jeroen Vervliet (Peace Palace Library). Mr. Vervliet related his adventures in Hyde Park at the University of Chicago’s Oriental Institute and Frank Lloyd Wright’s Robie House. He also announced that the International Journal of Legal Information has a new publisher (Cambridge) and a new look. Mr. Vervliet presented a copy of the new issue to editor Mark Engsberg (Emory U) who had not yet seen it. Overall, it was a great party, although I admit I could have used a few more coconut shrimp.

 

[1] I will also add that Dr. Pulungan made a fashion statement with her dress constructed with fabric covered with images of books. Loved it.

 

FCIL-SIS Jurisdictions Interest Groups To Meet On Sunday

FCIL-SIS invites all AALL conference attendees to join us for our Jurisdictions Interest Groups Joint Meeting this Sunday, from 12:30pm to 2:00pm, in the Hyatt-Water Tower Room.  The program will include substantive presentations from several of our interest groups, as well as 15 minutes at the end of the meeting for each group to discuss their plans for the coming year.

The agenda for the meeting is as follows:

SUNDAY July 17, 2016

12:30 PM – 2:00 PM

FCIL-SIS Jurisdictions IG Joint Meeting (Africa, Asia, Latin America, Europe, Indigenous Peoples, Customary & Religious Law, Roman Law) (Hyatt-Water Tower)

Meeting Topics:

  • Welcome and Intro (Susan Gualtier, Louisiana State University School of Law Library) – 5 minutes
  • European Law: Recent Developments in German Law Related to Asylum and Refugees: A Brief Overview for Law Librarians (Jennifer Alison, Harvard Law School Library) – 20 minutes
  • Latin America: Cuban Legal Research Guide (Julienne Grant, Loyola University Chicago Law Library, et al.) – 10 minutes
  • Africa: Updates of the Digitization Case Law Project from South Western Nigeria (Yemisi Dina, Osgood Hall Law School Library) – 20 minutes
  • Indigenous Peoples: Indigenous Peoples and DNA Testing: Friend or Foe? (Steven Perkins, Greenberg Traurig, LLP) – 20 minutes
  • Individual Interest Groups business meetings – 15 minutes

Everyone is welcome to attend the presentations and to check out our interest groups, so please spread the word to anyone interested in these areas of foreign law.  FCIL-SIS looks forward to seeing you there!

people-holding-hands-around-the-world-md

AALL 2015 Recap: Customary and Religious Law Interest Group Meeting

By Susan Gualtier

Front page of CARLIG flyer distributed at FCIL-SIS Exhibit Hall table.

Front page of informational flyer distributed at the FCIL-SIS Exhibit Hall table.

The Customary and Religious Law Interest Group (CARLIG) met on July 19 at 11:30 as part of the FCIL-SIS Jurisdictions Interest Groups Joint Meeting. The group briefly discussed the year’s progress, which included acquiring approximately 35 members in My Communities, developing several programming proposals for the 2015 conference, and publishing an article in AALL Spectrum describing the group’s formation, purpose, and goals. The majority of the discussion then focused on 1) improving communication with the group’s membership in order to generate better response to the My Communities posts; 2) increasing the number of blogging and book review opportunities on customary and religious law topics and soliciting participation by the group’s members; and 3) developing and prioritizing additional projects for the coming year.

CARLIG intends to continue proposing conference programming, and brainstormed a few ideas for the 2016 conference. The group discussed the possibility of putting together a panel of librarians and researchers who are currently working on comprehensive online portals or printed bibliographies of religious law resources. Kelly Buchanan, of the Library of Congress, also shared some preliminary information relating to an Islamic law program to be held at the Library of Congress in December. The group discussed potential opportunities for collaboration between CARLIG and the Library of Congress staff, which has been working on increasing the number of available customary law and religious law resources.

In addition to planning substantive programming, the group decided that CARLIG’s primary focus over the upcoming year should be to create teaching/research toolkits for customary law and for each of the major religious law systems. The purpose of these toolkits will be to encourage more librarians to incorporate customary and religious law research into their FCIL research classes or their presentations in substantive law classes. CARLIG will also work on some of the ideas proposed at the 2014 conference, including creating bibliographies of core resources for use in collection development, and identifying the major library collections in customary law and in each of the major religious law systems.

Schedule of FCIL Events in Philadelphia

Blog Postcards 2015Hello FCIL-SIS!  Are you ready for Philly?  We at the publicity committee certainly are!  We have swag for the exhibit hall ready to go, and we’re looking forward to seeing all of our SIS friends again next week!

As we approach the 2015 AALL Annual Meeting in Philadelphia, we encourage you to keep an eye on the blog and to follow us on Twitter for coverage of FCIL-SIS programming both during and after the conferenceIf you are interested in covering any of the events listed below, please contact blog administrators Susan Gualtier (susan.gualtier@law.lsu.edu) or Loren Turner (lturner@law.ufl.edu).  Finally, remember to send us your original photos from the Philadelphia conference so that we can share them with our readers who were unable to attend!

FCIL-SIS EVENTS

2015 AALL ANNUAL MEETING, PHILADELPHIA

Saturday, July 18

9:30am – 4:45 pm

Researching the European Union (University of Pennsylvania Law School)

5:00 pm – 6:30 pm

Exhibit Hall Ribbon-Cutting/Opening Reception. Stop by the FCIL-SIS table!

Sunday, July 19

11:30 am – 12:45 pm

AALL/LexisNexis Call for Papers: Researching International Agreements other than Article II

Treaties (PCC-Room 104A)

FCIL-SIS Jurisdictions Interest Groups Joint Meeting (Marriott-Grand Ballroom Salon C)

1:00 pm – 2:00 pm

Cross-Border Disputes: Dissecting the International Investment Arbitration (PCC-Room

201BC)

4:00 pm – 5:00 pm

Designers’ Workshop: Subject Guides that Create the Effect You Want (PCC-Room 103BC)

5:15 pm – 6:00 pm

FCIL-SIS Foreign Selectors Interest Group (Marriott-Room 306)

6:00 pm – 7:00 pm

FCIL-SIS Internships and International Exchanges Committee (Marriott-Room 310)

FCIL-SIS Publicity Committee (Marriott-Room 308)

Monday, July 20

7:15 am – 8:30 am

FCIL-SIS Business Meeting and Breakfast (PCC-Room 110AB)

3:15 pm – 4:25 pm

FCIL-SIS Teaching Foreign and International Legal Research Interest Group (PCC-Room

112A)

4:00 pm – 4:30 pm

FCIL-SIS Schaffer Grant for Foreign Law Librarians Fundraising Committee (Marriott-

Conference Suite 2)

4:30 pm – 5:30 pm

FCIL-SIS Schaffer Grant for Foreign Law Librarians Recipient Presentation (Marriott-Grand

Ballroom Salon D)

5:45 pm – 6:45 pm

International Attendees Joint Reception (AALL/FCIL/IALL) (Marriott-Grand Ballroom Salon

IJ)

Tuesday, July 21

8:30 am – 9:30 am

Mighty MT: Enhancing the Value of Machine Translation Tools for FCIL Reference and

Collection Services (PCC-Room 103BC)

12:30 pm – 2:00 pm

LHRB/FCIL-SIS Roman Law Interest Group: Researching the Corpus Juris Civilis (PCC-Room

105A)

1:00 pm – 2:00 pm

FCIL-SIS Education Committee (Marriott-Grand Ballroom Salon B)

FCIL-SIS Electronic Research Interest Group (PCC-Room 104B)

Philadelphia_skyline_sunset

Book Review: Sharia and the Making of the Modern Egyptian: Islamic Law and Custom in the Courts of Ottoman Cairo, by Reem A. Meshal

By Angela Hackstadt

sharia bookReem A. Meshal. Sharia and the Making of the Modern Egyptian: Islamic Law and Custom in the Courts of Ottoman Cairo. (The American University in Cairo Press, 2014). 290 p. Hardbound, $75.00.

Sharia and the Making of the Modern Egyptian: Islamic Law and Custom in the Courts of Ottoman Cairo examines the sijill (the complete records of a judge or court) as a historical text where Ottoman state law, local custom, and Islamic legal theory intersect. According to Meshal, legal scholars have neglected the study of these documents and “an unfortunate consequence of this neglect has been the inhibition of research into legal theory and legal praxis and their osmotic influence on one another in a given political setting.”

Before the Ottomans, the concept of “court” was embodied in the person of a judge and held in any number of venues. Under the Ottomans, courts became fixed locations and, for the first time, legal documents became mass-produced and centralized. Judges were required to turn over their sijills to a professional archivist, who linked the documents to the court and the public archive. The rise of bureaucrats like professional archivists, notaries, and court experts meant that the authority of the written document would come to outweigh that of oral testimony.

Civil documents pertaining to things like personal disputes, property disputes, and marriages were given the status of “authoritative legal proof.” This impacted the autonomy of the individual by virtue of the citizens’ access to these records. Documents housed in an archive provided a static record that could be accessed under certain conditions; however, a copy of a document that could be carried or distributed would grant rights to the holder in the public sphere. “More than the archive, therefore, it is the millions of individual documents contained within it that provide the textual footprints of an ‘early-modern individualism,’ or proto-citizenship.”

The author’s focus on sixteenth- and seventeenth-century Cairo matters because of the heterogeneous nature of the city’s population during a time when the state sought to harmonize state law with sharia. Meshal’s book discusses custom, state law, and Islamic jurisprudence without falling back on the Western binary of religious-versus-secular. She admits Western influence on the Empire but concludes that important developments were established prior to this influence. The author builds her arguments from sijills and other primary sources, as well from a variety of secondary sources. Chapters are organized by topic, with topic subdivisions including a concise chapter conclusion. This is a well-researched book and I recommend it for academic law libraries, particularly those that serve Sharia or Ottoman scholars.

Film Review: Invoking Justice

c834By Susan Gualtier

In my spring 2014 FCIL research seminar, I explored the idea of using documentaries to provide a visual representation of unfamiliar legal systems. One of the films that I chose to screen was Deepa Dhanraj’s 2011 documentary, Invoking Justice. The film was very well received by the students and led to several interesting group discussions, both during class time and on the course website. Student feedback strongly suggested that they found the film enjoyable, that it helped them to understand how religious (and, to an extent, customary and mixed) legal systems work, and that it encouraged them to think about how one might research legal issues or handle cases arising under these systems.

Invoking Justice focuses on a specific type of legal tribunal in Southern India, where family disputes are settled by local tribunals called Jamaats. These tribunals, which apply Islamic Sharia law, are made up entirely of men. Not only are their cases decided by men, but women are not permitted to be present at the Jamaat meetings and therefore have no opportunity to defend themselves or to present their side of the dispute. Invoking Justice follows a group of women who, recognizing the discriminatory nature of the all-male Jamaats, formed a women’s Jamaat in 2004 where local women could settle their family disputes or report discriminatory treatment by the traditional male Jamaats. By the time the film was made, the women’s Jamaat had already settled more than 8000 cases, “ranging from divorce to wife beating to brutal murders and more.”

The film suggests, though not overtly, that the women’s Jamaat functions not only as a tribunal, but also as an enforcement mechanism and advocacy organization. Its members are shown approaching male Jamaat members to questions their tribunals’ decisions and processes, and using the police force to compel male defendants to attend women’s Jamaat sessions when they do not take the tribunal seriously. Dhanraj follows several of the Jamaat’s cases from beginning to end, which helps to unify the film and provides a narrative element. The film also portrays the power that comes with open communication; the women’s Jamaat has been a galvanizing force for women in the region, and groups of women are shown in animated discussions of topics that would previously have been considered taboo in a public forum.

Invoking Justice is entertaining and visually appealing, and provides an excellent insight into how one form of local tribunal might operate. It also illuminates substantive issues relating to family law and women’s human rights under religious and customary law systems, and addresses issues of discrimination not only in the law itself, but in the procedural practices of the tribunals, the application of the law, and the enforcement of the tribunals’ judgments. Because there is no prerequisite to my FCIL research seminar, I have found that, by necessity, it must serve as a crash course in international law and world legal systems in addition to developing the students’ research skills. Having searched for a film that would entertain the students while at the same time illustrating the issues surrounding religious law, customary law, and informal tribunals, I found that Invoking Justice was an excellent choice. Invoking Justice is distributed by Women Make Movies and can be purchased from their website. My study guide for the film is available online through SlideShare.