ACADEMIC PROGRAM

Course Descriptions

Jewish Law And Law and Religion Courses

Legal Theory and Comparative Law Courses

Jewish Law and Law and Religion Courses

The Jewish Political Tradition
Professor Suzanne Last Stone

In this course, we will examine rabbinic texts that address the question of who has authority to govern the Jewish community. We will examine the authority of God, and then the division of authority among kings, prophets, priests, rabbis, lay leaders, non-Jewish rulers and the state of Israel. Topics to be discussed include the division of religious and political realms in Jewish thought, the role of controversy in Jewish law, the role of reason and consent in the Jewish legal tradition, and finally, the role of Jewish law within a civil state and civil society. This course also serves as an introduction to the philosophy and methodology of Jewish law.

Jewish Law and the Irrational
Professor Suzanne Last Stone

In this seminar, we will examine the relationship between Jewish law and supernatural phenomena, such as prophecy, dreams, magic, divine lotteries, and divine ordeals. Topics to be discussed include the role of divine intervention in determining law, the relationship of rabbinic legists to magic, the rabbinic attitude toward performatives, and rabbinic criteria of legal rationality. A major focus of the seminar is on the legal regulation of these phenomena in the Talmud and responsa literature. How are legal concepts and categories used to protect the individual and society from deception and self-deception, from the misuse of the imagination or of the emotions?

Justice and Judaism: From the Medieval Period to the Enlightenment
Professor Suzanne Last Stone

This minicourse will explore various rabbinic debates about justice through the reading of primary sources. The first two sessions will explore the medieval rabbinic debate about two forms of justice, one pragmatic and the other ideal. The Jewish king is charged, like all governments, with preserving social order while the Jewish court administers â€˜true justice' founded on religious law. This form of justice fulfills a religious imperative but may not be effective in securing social order. We will read the Eleventh Homily of Rabbi Nissim of Geronda and discuss the implications of his views for contemporary debates about both capital punishment and the religious legitimacy of conventional systems of government, both non-Jewish and Jewish (i.e., Israel). The third session will take us into the Enlightenment period. We will look at the answers composed by the Paris Sanhedrin to the twelve questions asked by Napoleon before the granting of citizenship rights to Jews in France. The Sanhedrin's responses are aimed at reconciling the rabbinic tradition with modern notions of tolerance and the obligations of citizenship.

Law and the Moral Emotions: Between Retributive Justice and Forgiveness
Professor Suzanne Last Stone

Legal doctrines about punishment and pardon--whether of individuals or collectives--are in part generated by and in part serve as substitutes for moral emotions such as anger, hatred, and resentment, on the one hand, and compassion and forgiveness, on the other. These emotions play a central role in religious and moral traditions, such as Judaism and Christianity, whose attitudes toward the proper spheres of justice and mercy continue to influence modern law's approach to retributive punishment, collective punishment, and to pardon and amnesty. We will investigate the rabbinic tradition's concepts of justice and mercy and the emotions that undergird these concepts. When, if ever, is hatred toward wrongdoers appropriate? When, if ever, should hatred be overcome by empathy or compassion? What role should these emotions play in social, political, and legal philosophy?

Jewish Law and Emotion
Professor Suzanne Last Stone

This course grows out of the emerging interest among American legal scholars in the role of emotions in the conception of law and justice, and their scholarship has offered an alternative account to the perceived incompatibility of emotion with law. Among its foundational assumptions, this school assumes that knowledge does not derive from pure rationality but also that emotions contain a distinct cognitive element. How far law does and ought to take account of emotions is a fundamental line of inquiry in feminist jurisprudence, in particular. This perspective, in its most sophisticated version, posits a reciprocal relationship between law and emotion: at the same time that emotion pervades law, law has the capacity to impact, reinforce, and even shape our emotional world.

We will examine the relationship between law and emotion through the lens of Jewish law. Jewish law is animated by a spiritual or emotional element and, in the Jewish tradition, reflections on the range of human experience are expressed through law and in legal form. Class discussions will address how law codifies, sublimates, and commands emotions (such as love thy neighbor, fear God, hate thy enemy); how law constructively channels emotions; whether we can identify historical and conceptual shifts; whether emotions are monolithic and easily identified throughout the tradition; whether Jewish law "scripts" emotions for its subjects and, if it does, how do those scripts intersect with questions of culture, social structure, and gender; how do emotions actually interact with non-emotional cognitions to produce legal judgments and arguments; and how does Jewish law mark off emotions from the rest of individual experience? Specific examples will include jealousy and shame in sotah (adulterous wife), passionate approaches to law (lifnim mishurat haddin, or supererogatory performance), fear and apprehension in law, revenge (false witnesses, cities of refuge, forms of punishment), disgust in divorce and in laws of ritual purity, romantic and fear conceptions of love, restraint on the expression of emotion (mourning), hate, disgust, and fear toward outsiders, idolatry, etc.

Jewish Law and American Legal Theory
Professor Suzanne Last Stone and Rabbi Ozer Glickman

This course investigates the relationship between "Torah and Constitution." Early political and legal philosophers often drew on the Bible to develop their theories. More recently, American legal and political theorists have turned to the rabbinic tradition as an alternative model for law. Do these two systems of law share common principles, values, or methods of interpretation? How can the example of Jewish law illuminate or challenge contemporary theories of law? How can American legal theory illuminate or pose a challenge for Jewish law? In addressing these questions, the course will look at a variety of schools of legal thought, including various theories of constitutional law, common law, and literary interpretation, feminist jurisprudence, naturalism, positivism, and legal realism. Among others, we will look at the work of thinkers from Rabbi Soloveitchik to Ronald Dworkin to Robert Cover. Primary sources will be drawn not only from biblical, midrashic, and talmudic literature, but also from post-talmudic commentaries and responsa.

The course is geared to both the beginner and the specialist. No prior background in either legal theory or in rabbinic texts is required. The goal of the course is to expose both students of religious texts and law students to legal theory and law students to the counter-example of a religious legal tradition, in order to engender a dialogue between the two. This course will feature the participation of Rabbi Ozer Glickman. Specialists in different schools of legal theory also may be invited to participate. [syllabus]

The Philosophy of Private Law: Talmudic Insights
Rabbi Ozer Glickman

The course examines a number of legal discussions in the areas of tort, contract, and property law in the Babylonian Talmud and important traditional commentaries. By closely analyzing the structure and content of the Talmudic discussion, participants will test major models of private law advanced by leading legal theorists. Particular attention will be paid to theories of law & economics, corrective justice, and legal formalism.

Course objectives include providing strategies for extracting jurisprudential conclusions from non-philosophic legal materials; testing theoretical models of private law against a specific legal system; and constructing a general model of private law in the Talmudic tradition.

The Jurisprudence of Maimonides
Rabbi Ozer Glickman

Although Maimonides is acknowledged as one of the greatest of Jewish legal decisors, his jurisprudential approach has not often been the topic of direct study. Through a careful examination of specific legal decisions in the Mishneh Torah, his code of Jewish law, his Commentary on the Mishnah, and his Responsa, the class will derive specific methodological and jurisprudential themes central to Jewish legal decision-making. These themes will then be placed within Maimonides' overall legal and theological framework through close reading of his more theoretical legal writings, including the Introduction to the Mishnah and the Guide for the Perplexed. More generally, an important objective of the course is to demonstrate the extraction of jurisprudence from specific legal decisions and doctrine.

Jewish Law, Advanced
Rabbi J.D. Bleich

Seminar on selected problems in law studied from the original sources of Jewish Law: Scripture, Talmud; medieval and modern rabbinic commentaries, codes, and responsa; methodological training in legal, historical and comparative research.

Jewish Law, Introduction
Rabbi J.D. Bleich

Origin, description, and development of Jewish law from Biblical times to the present; emphasis on principles and values reflected in the Jewish legal system; principal areas of that system.

Jewish Law and Contemporary Legal Issues
Rabbi J.D. Bleich

This course will focus upon a series of contemporary and social issues. Among the topics to be investigated may include: the state's authority to punish crime; capital punishment; legitimacy of welfare; copyright; constraints of the prohibition against usury upon commercial enterprises; antenuptial agreements; enforcement of religious divorce by American courts; abortion; surrogate motherhood; and euthanasia. Treatment of these problems will be traced from Talmudic texts through contemporary responsa. Emphasis will be placed upon the methodology of Jewish law and a comparison of the principles and policy considerations of Jewish law with those of other legal systems.

Law and Religion
Professor Marci Hamilton

This course will study the relationship between religion and the rule of law. The first third of the course will be devoted to a study of the history of the relationship between the religion and the common law in Britain, beginning with the 12th century, which is the most important background for understanding the United States system. The second third of the course will be devoted to a study of the history of the relationship between religion and the rule of law in the United States, which will examine the historical and cultural meanings of the Religion Clauses and the relevant Supreme Court cases. The final third of the course will examine areas where certain religions in the United States have had particular problems with existing laws. Topics will include children's safety and health, terrorism in the prisons, land use conflicts, and others. This portion of the course will focus on the meaning of "permissible accommodation" in the context of a republican form of government.

Jewish Law and Israel
Professor Arye Edrei (Visiting)

Jewish law developed and functioned for many centuries in the Diaspora, in the absence of political sovereignty and power. This fact had a far-reaching effect on its character. For example, there was no need for state-related laws or laws of war. The Zionist Movement and the establishment of the State of Israel changed the situation dramatically and raised new questions in Jewish law that had not been addressed for centuries. This course deals with the reaction of Jewish Law to this new reality. Halakhic authorities responded to these new questions with decisions that are diverse and contradictory. Often these conflicting decisions reflected a deeper divergence in ideological outlook (relating to the Zionist movement), personal background, and the historical circumstances in which the halakhic authority operated. We will examine the ways in which new problems were solved by re-reading and re-interpreting classical and authoritative texts. This course attempts to implement a methodological approach that combines the points of view of a number of disciplines including the halakhic-legal perspective, the theological-ideological perspective, and the historical perspective.

Morality and Jewish Law
Professor Arye Edrei (Visiting)

This course deals with different aspects of the relationship between law and morality in Jewish thought. The classic question of law and morality is unique and significant in a religious system: is there a place for independent human reason and morals in a system based on revelation? We will read Talmudic texts and examine the model that the Talmud developed for the relationship between law and morality, and its philosophical underpinnings. We will examine methods of integrating moral reasoning into the law, the interpretation of the law, the creation of law and the judicial decision-making process, and situations in which this is warranted. We will examine and derive meaning from the circumstances in which both normative systems co-exist and in which they conflict. By dealing with these texts and issues, we will try to answer the question with which we began: what is the source of authority in Jewish law, and is there a place for human reason and morals in religious thought?

Legal Theory and Comparative Law Courses

Hegel's Logic
Professor David Carlson

This seminar covers Hegel's "Science of Logic," the work Hegel deemed to be the very center of his philosophical system. Although entitled "logic," the course is probably more appropriately termed "metaphysics." Among the topics covered in the seminar are Hegel's deeply nuanced definitions of Being, Quantity, Measure, Essence, Reflection, and Existence (or "thinghood"), together with a study of how each of these definitions implies and depends on its others. The seminar is conducted according to a unique diagrammatic system Professor Carlson has developed to illustrate every inferential move Hegel makes in his master work.

Why Law? Freedom and Legality
Professors Peter Goodrich and Simon Critchley

This seminar will examine the question of the nature of law and, in particular, the relation between freedom and law. If we are free beings, then why do we need to be bound by law? What is the legitimacy of that bond? Freedom and authority are not obviously philosophical correlates, nor is free self-development, the ideal of a truly human life necessarily best fostered by imposition or law. In the tradition of liberal thought, the seminar will address the question of why law? Why law as opposed to no law? Why law as against other forms of natural, ethical, or communicative order? Why law as opposed to conceptions of its future abrogation? The course will attend to the arguments for freedom, and freedom of thought within a variety of theoretical traditions from the Greeks to the contemporary.

The seminar will be coordinated by Professors Critchley and Goodrich. It will be taught by means of distinguished visiting speakers addressing the topic of Why Law?

Women and the Law
Professor Peter Goodrich

The course starts with the topic of legal education and gender roles. Reflecting upon the immediate context of teaching and training for professional normsâ€”the "socratic method," the communication of all or nothing right answersâ€”the course goes on to look at the history of women as subjects of law. The course looks at antique and continuing legal preconceptions of the status and role of women. Contemporary topics addressed will include domestic violence, rape, the legal profession, gender and the intimate public sphere.

Liberalism and the Rule of Law
Professors Peter Goodrich/Peter Gay

Professor Gay is a historian who has written extensively on the enlightenment, on Freud, on the pleasure wars, bourgeois culture and its law. This course will honor his work and read the liberal tradition as an expression of bourgeois temperament. Starting with Locke and Montesquieu, the course will look at Kant, Bentham, Mill, Freud, Rawls, and Dworkin in an attempt to find the common elements and the specific motives of the great liberal thinkers. The course will not only feature the participation and direction of Peter Gay himself, but will also feature a series of distinguished visiting speakers who will respond to, criticize, praise and pick holes in the readings that we offer.

Theories of Punishment
Professor Kyron Huigens

This seminar considers the philosophy of legal punishment. We will lay a foundation with careful readings of Immanuel Kant, Jeremy Bentham, and H.L.A. Hart. We will then move on to the work of contemporary theorists of punishment, including Antony Duff, George Fletcher, Jean Hampton, and Paul Robinson. Each participant in the seminar will be asked to present a short paper.

Comparative Copyright
Professor Justin Hughes

This advanced copyright course will consider comparative responses to the problems new technologies have created for traditional copyright concepts. The principal focus will be on materials from the United States and the European Union, with some materials from Japan, China, Australia, and other countries. Topics will include â€˜temporary' and â€˜transient' copying, internet service provider liability, the provisions of the WIPO copyright treaties, the future of the first sale doctrine, web-casting, and protection of databases.

Theories of Common Law
Professor Arthur Jacobson

The course will consider and criticize some of the main approaches to understanding the common law as a distinctive legal system. Discussion will focus on the nature of rules in common law, and on the significance of basic institutions in the common law, such as the maintenance of a separate system of equity, the practice of publishing concurrences and dissents, and the protection of fact-finding from appellate review.

Comparative Constitutionalism
Professor Michel Rosenfeld

Examines constitutionalism, the rule of law, and key constitutional subjects and issues from a comparative perspective. The materials covered will be systematically analyzed in terms of the central concept of proportionality. Coverage will include: different models of constitutional review and different theories of constitutional interpretation; separation of powers and federalism or decentralization; and fundamental rights, particularly liberty and equality rights, including freedom of speech and religion, freedom of intimate association, and individual group equality rights.

Psychoanalysis and the Law
Professor RenataSalecl (Visiting)

Psychoanalysis can be of great help in understanding the way people relate to law and gives us an insight into questions like: why some people claim that they committed crime while there is no proof that they in any way acted against the law; why does a serial killer feel no remorse for his crime; or why does someone commit an offense claiming that this was simply a duty he had to perform. The course will first explore how psychoanalytic thinking about law can help lawyers to grasp the way subjects relate differently to social prohibitions. With the help of this knowledge, we will then analyze some forms of violence that we encounter in today's society.

Skepticism, Law, and Norms
Professor Martin Stone

This seminar, taught jointly at the Graduate Philosophy Faculty of The New School, will comprise an in-depth study of Stanley Cavell's important book The Claim of Reason: Wittgenstein, Skepticism, and Tragedy. The seminar can serve as an introduction to Wittgenstein's later thought, but one of its major topics will also be skepticism concerning the possibility of moral and legal judgment, as well as the relationship between classical skepticism and literary tragedy. Classical skepticism depicts a condition of human separation (from the world and from other minds) due to a kind of necessary ignorance or uncertainty or failure to know something. Wittgenstein's later thought suggests a different interpretation of what the skeptic has discovered, namely that the human relation to the world or to others in it is not one of knowing (or, for that matter, of failing to know) anything at all, but rather one of, say, acknowledging--a fundamental attitude which is prior to knowledge. What is this attitude? What is it to acknowledge the otherness of the world or of others in it? Besides The Claim of Reason, readings include some of the essays from Cavell's Must We Mean What We Say, selections from Wittgenstein's Philosophical Investigations, and (time permitting) a Shakespeare play. A substantial paper, as well as serious class participation will be required, and law students taking the seminar will be encouraged to write final papers that bring Cavell's groundbreaking work to bear on problems in legal theory. Some prior exposure to philosophy would be desirable.

Action, Intention, and Responsibility
Professor Martin Stone

A great deal of law is based on the idea that people are responsible for their own actions. But what is an action, when is it "one's own," and what are the limits of a person's responsibility for the effects or consequences of their actions? This seminar will study the related concepts of action and intention, with special attention to the role these notions play in our basic ideas of moral and legal responsibility. Readings will be drawn from classic and contemporary philosophical sources (e.g., Anscombe's fascinating book on "intention"), and will include recent theoretical writing on the foundations of liability in tort and criminal law. As preparation, some background in philosophy would be helpful, or else a strong interest in legal theory. Active participation, class presentation, and one or more papers will be required.

Law and Literature
Professor Richard Weisberg

How are lawyers portrayed in stories? How do lawyers use story-telling techniques in their work? What are the ethical implications of both these inquiries? This course, through a wide-ranging series of novels, short stories, films, and legal materials, explores the ways in which literary art and literary skills inform the lawyer's world. Readings for this course may include one or more of the following: Dostoevski, Crime and Punishment, Dickens, Great Expectations, Camus, The Stranger, Flaubert, A Sentimental Education, Doctorow, The Book of Daniel. Films may include: The Ox-Bow Incident, The Verdict, and The Sweet Hereafter. Complementing the discussion units will be legal material of a more traditional nature. Appellate opinions will be read that exemplify the lawyer-as-outsider, legal reasoning, and uses of history by lawyers and judges.

First Amendment Theory
Professor Richard Weisberg

This seminar explores the historical and theoretical backdrop to the US Constitution's First Amendment. We will also place the understanding of both speech and religion in a comparative context, examining the quite conflicting approaches from Canada, the UK, China and other legal cultures. We will explore such questions as why speech is privileged in the US, what it means to have free exercise of religion when there is also a ban on the intermingling of church and state, and how speech and religion issues intersect. Our readings include essays, short histories, and judicial opinions from the US as well as elsewhere.

Culture of Copyright
Professor Wayne Alpern (Adjunct Professor, Cardozo Law School, and Director, Institute for Advanced Studies in Music Theory, New School University)

The remoter and more general aspects of the law are those, which give it universal interest. It is through them that you not only become a great master of your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law. â€“ Oliver Wendell Holmes.

This seminar explores the philosophical, historical, ideological, and anthropological foundations of the institution of copyright as an evolving legal practice regulating the creation, ownership, and exploitation of intellectual property. Its purpose is to implement Holmes' dictum by situating copyright in a comprehensive theoretical context â€“ a culture of copyright â€“ in order to better understand and critique it as a complex and controversial social phenomenon whose deeper significance enhances pragmatic legal education and professional practice. The readings draw upon a rich inventory of scholarly and historical texts, supplemented by lectures and intensive class discussion.

Modern Legal Thought
Professor Assaf Likhovski (Visiting)

Legal thought is not autonomous. It is influenced by political, scientific and cultural trends and reflects them. The goal of this course is to tie developments in legal and jurisprudential thought in the 19th and 20th centuries to parallel intellectual, political, and cultural changes in Europe and North America. By linking legal and non-legal developments, students will gain a better understanding of the history of jurisprudence in the last two hundred years, as well as current trends such as the globalization of American legal thought. Among the topics that will be discussed will be the Enlightenment and codification, Romanticism and the Historical School of Law, mid-nineteenth-century evolutionary theories of law, late-nineteenth-century legal science, fin de siÃ¨cle anti-formalism, modernism and legal realism and the post war globalization of legal thought.

Law, Economics, & Culture
Professor Uriel Proccacia

Law and Economics has taken root as an important part of the curriculum in most American law schools. Law and Culture is an emerging subject, highlighting such fragments of the curricula as the interface of law and literature, law and historical investigation or law and the fine arts. These two subjects are commonly viewed as completely disjointed in their subject matter, spheres of interest, and methodology. By and large, members of the faculty who are interested in one of these two subjects are quite "different" as human beings, scholars, and ideologues from members of the faculty who belong to the "opposite" faction. This seminar is crafted to bridge the gap between these two seemingly separate subjects. The Law and Economics movement has a very stylized, "thin" interpretation of human actors. An agent may be represented, for example, by her profile of preferences over a given choice set; thus, if the choice set consists of three alternatives, X, Y, and Z, a "person" may be defined as an agent who prefers X to Y to Z. However, to better understand the real world and to better predict future behavior, a "richer" understanding of human actors is called for. Human desires are conditioned by the actors' personal and group history ("path dependence") and acculturated by such variables as religious fervor, peer-related constraints ("norms") and exposure to some form of "high culture." In this seminar, we will examine some of these cultural inputs and explore their impact on economic behavior, using traditional and untraditional Law and Economics methodology.

Human Rights and Holocaust
Professor Thane Rosenbaum (Visiting)

This is a course in legal humanities and moral justice. It will examine issues relating to the assault on human rights in the modern world, focusing primarily on genocide in the 20th century. The course will include the still unresolved definition of human rights, the legal mechanisms for enforcing those rights, the conflict between universal standards and moral relativism, the distinctions between the duty of care and the duty of rescue, along with legal duty and moral responsibility, and the preference Western legal systems continue to have for physical over spiritual injury. If law is designed to bring order to an otherwise chaotic world, then acts of genocide must represent the ultimate breakdown of those laws, and provide the evidence of just how fragile our claims to civilization actually are. The course will focus on some of the philosophical, political, psychological, and legal explanations that have been offered to explain the existence of human rights violations and genocides. The course will also look at the psychological impact that human rights atrocities have had on victims and survivors, as well as the dynamic that makes harm-doing and passive-witnessing possible. In dealing with some of these issues, the course will focus on the Holocaust, the Nuremberg Trials, and restorative justice strategies designed to bring about truth and reconciliation.

EVENTS

ACADEMIC PROGRAM

Jewish Law And Law and Religion Courses

Legal Theory and Comparative Law Courses

Jewish Law and Law and Religion Courses

Legal Theory and Comparative Law Courses