Legal Maxims
LEGAL MAXIMS
LEGAL MAXIMS , concise statements of the law as it is or, often, succinct statements embodying a guiding principle established in law. The word kelal, in one of its varied meanings, is the Hebrew equivalent of a legal maxim. "The burden of proof is on the plaintiff " (bk 3:11), for example, is referred to as "a great maxim of jurisprudence" (kelal gadol ba-din; bk 46a; see also *Evidence).
Historical Periods
The wealth of Jewish legal maxims is essentially talmudic. The great corpus of tannaitic and amoraic literature contains hundreds of maxims, i.e., legal rules and principles of jurisprudence stated in brief form and summary fashion.
of biblical origin
Even maxims which can be traced back to the Bible owe their epigrammatic popularity to the Talmud. These "biblical" maxims are of three types: a literal quotation of a verse or of a part thereof, "At the mouth of two witnesses… shall a matter be established" (Deut. 19:15, cited very frequently in talmudic literature); a condensation of a biblical verse: "Do not place a wicked man as a witness" (Sanh. 27a; cf. Ex. 23:1); and a standardized, non-literal interpretation of a verse: "According to the majority [of judges] must the case be decided" (Sanh. 1:6; cf. Ex. 23:2).
tannaitic times
A great number of maxims were developed in post-biblical and tannaitic times. They are cited in tannaitic literature, often anonymously and without their validity being challenged: "A man's agent is like the man himself " (Mekh. Pisha 5); "Local custom decides everything" (bm 7:1); and "A condition made contrary to an express biblical law is void" (Ket. 9:1; see *Contract). A number of tannaitic rules and maxims, on the other hand, represent minority opinions and are not binding: "Marriage takes no effect when there is a prohibitory law against it" (Akiva, Ket. 29b). Other tannaitic kelalim, although accepted, were disputed (cf., e.g., L. Ginzberg, Perushim ve-Ḥiddushim ba-Yerushalmi, 2 (1941), 159–64, on the rule, "Women are exempt from positive commandments which have a time limit"; Kid. 34a).
amoraic period
A significant increase in the wealth of legal maxims was accomplished by the amoraim. Many are recorded in the Jerusalem Talmud; for example: "No price can be put on a Sefer Torah" (bm 4:6) and "Unless otherwise stipulated, partners are to divide equally" (Ket. 10:4). A great wealth of maxims is found in the Babylonian Talmud; for example: "There is no agent in wrongful acts," a maxim explained by the following one: "If the Master's [God's] words conflict with the pupil's [the principal's] words, whose words shall we [who are called upon to act as agent] obey?" (Kid. 42b); and "Any acquisition made in error is voidable" (Git. 14a). All these are cited anonymously; many others are quoted in the name of the amora who first formulated them. "Less than the legal quantity is forbidden by the law of the Torah" (Johanan, Yoma 73b); "No man is presumed to have paid his debt before the time due" (Simeon b. Lakish, bb 5 a–b); and "A man is a kinsman unto himself, hence no man may incriminate himself " (Rava, Sanh. 9b; see *Confession). The amoraim succeeded in introducing numerous Aramaic legal maxims: "The law of the state is law" (*Dina de-Malkhuta Dina; Git. 10b); "Force majeure (*Ones) is excused by the law" (BK 28b) and "The stronger wins" (Git. 60b; see *Extraordinary Remedies). There appears to be no correlation between language and geography; Aramaic and Hebrew maxims were formulated by Babylonian and Palestinian amoraim equally.
Post-talmudic authorities coined very few maxims of law. A few such legal maxims may be gleaned from midrashic and medieval works: "One makes a festive meal to celebrate the conclusion of the Torah reading" (Song R. 1:1, no. 9). They usually contain moral overtones: "As long as advocacy for the accused has not ceased, the trial is not over" (Midrash Sekhel Tov, Gen. 19:1); "One cannot serve two masters" (Israel Davidson, Ozar ha-Meshalim ve-ha-Pitgamim, 12, no. 126).
The Mishnaic Kelal
Of special interest is the mishnaic kelal. The Mishnah often formulates a general statement which summarizes numerous particulars. Sometimes the general statement is found at the beginning of a bill of particulars; sometimes it is found at the end. In the former case, the general statement is introduced by the expression "A general rule have they [the rabbis] stated" (kelal ameru, e.g., Pe'ah 1:4), or "A great rule have they stated" (kelal gadol ameru; e.g., Shab 7:1). In the latter, the general statement is introduced by the expression, "This is the general rule" (zeh ha-kelal; e.g., Ket. 3:9. For details cf. Frankel, Mishnah, 306f.; see also *Codification of the Law). Like the Roman regula, the mishnaic kelal summarizes the law without being an authentic or complete expression of the law. The Roman jurist proclaims, "The law is not derived from the regula, rather the regula is deduced from the law" (Paulus, D. 50:17, 1). Similarly, a basic rule of mishnaic exegesis is enunciated by the Babylonian Talmud, "We deduce nothing from general statements" Ein lemedin min ha-kelalot (Kid. 34a). The Jerusalem Talmud expressed the same idea as follows, "The general statements made by Rabbi [Judah ha-Nasi, editor of the Mishnah] are not general statements" (Leit kelalin de-Rabbi kelalan; Ter. 1:1).
A good illustration of the nonauthoritative nature of the mishnaic kelal is found in the talmudic analysis of Mishnah Kiddushin 1:7. The Mishnah reads: "(a) With regard to all positive commandments which have a time limit – men are obligated and women are exempt; (b) With regard to all positive commandments which have no time limit – men and women are equally obligated; (c) With regard to negative commandments, regardless of whether they have or do not have a time limit – men and women are equally obligated except for the prohibitions of shaving [with a razor, Lev. 19:27], of removing sidelocks [ibid.], and of kohanim defiling themselves by contact with a human corpse [Lev. 21:1]. These three exceptions apply to men, not to women."
The Talmud (Kid. 34a–36a) records that, in "violation" of paragraph (a), women are obligated to observe the commandments of maẓẓah (Ex. 12:18), rejoicing on festivals (Deut. 16:14), and participation in the public assembly on Sukkot every seventh year (Deut. 31:12), although these commandments are positive and have a time limit. In "violation" of paragraph (b), women are exempt from the commandments of Torah study (Deut. 11:19), procreation (Gen. 1:28), and the redemption of the firstborn son (Ex. 13:13). Paragraph (c), however, admits of no exceptions. This would lead one to assume that a general statement which limits itself by adding "except for" is indeed authoritative, for the very concern for exceptions would appear to indicate the accuracy of the general statement in non-excepted instances. R. Johanan, a Palestinian amora of the third century, was therefore careful to point out, "We cannot learn from general principles, even where exceptions are stated" (see his proof from Er. 3:1). Thus, even where exceptions are specified, the kelal is not a truly general statement. As a result, Maimonides (Commentary on the Mishnah, Kid. 1:7) states that the word kol ("all," "every") in a kelal-statement must be understood as meaning nothing more than rov ("most").
Some would limit the rule, "We cannot learn from general principles," to general statements introduced by the word kol, as, for example, the mishnayot from Kiddushin and Eruvin cited in the previous two paragraphs (R. Jacob Berab, Nov. Kid. 34a, in: Sefer ha-Yovel… B.M. Lewin, 222f.). Other authorities are of the opinion that the rule applies to statements formulated as a kelal as well (Nov. Ran, Meg. 19b). The rule is limited in application, however, only to those statements whose general nature is challenged by facts adduced from authoritative sources: "We on our own may not reject a general kelal which we have as a tradition from the rabbis; for if we do so, there is no limit and we can no longer depend upon our Talmud as edited, for it consists mainly of general statements" (kelalot; Rosh, Shevu. 6, para. 5). The Talmud itself never rejected a kelal except out of necessity or in deference to an oral tradition regarding the exception to the kelal; without such necessity or in the absence of an oral tradition, the accuracy of the general statement is to be accepted (Pseudo-Rashba, Men. 6b). Although the rule, "We cannot learn from kelalot," was formulated by the amoraim concerning general statements found in the tannaitic sources, the matter is disputed whether the rule holds true regarding amoraic kalalim as well (cf. Yad Malakhi, Kelalei Alef, 23). A similar dispute exists as to whether the rule applies equally to general statements found in the codes (R. Ẓevi Hirsch Ashkenazi, Ḥakham Ẓevi, 55, says that the rule does not apply; R. Jacob Reicher, Ḥok Ya'akov, 429, n. 8, and R. Alexander Schorr, Tevu'ot Shor, 32, n. 6, maintain that the rule does apply).
Compilations of Maxims
A bibliography of Hebrew works containing legal maxims, rules, and general principles is found in P. Jacob Kohn, Ozar ha-Be'urim ve-ha-Perushim (1952), 448–62. Other books (published after 1952 and therefore not included in Kohn's bibliography) containing lists of maxims and rules are et (as titles of individual articles); Elon, Mafte'aḥ, 405–412; Y.Y. Ḥasidah, Oẓar Ma'amrei Halakhah (3 vols., 1959–60); Joseph Schechter, Oẓar ha-Talmud David Etrog, Peri Eẓ Hadar (1952). The following works contain lists of Hebrew legal maxims, translated and explained in English: Lewis N. Dembitz, s.v.Maxims, Legal, in: Jewish Encyclopedia, vol. 8 (1904); George Horowitz, The Spirit of Jewish Law (1953), 99–104; M. Mielziner, Legal Maxims and Fundamental Laws (1898).
bibliography:
et, 1 (19513), 295f. and the works mentioned above. add. bibliography: M. Elon, Ha-Mishpat ha-Ivri (1988), see index; idem, Jewish Law (1994), see index; M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (legal digest) (1986), 1:174–92; B. Lifshitz and E. Shochetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefatve-Italyah (legal digest) (1997), 115–38.
[Aaron Kirschenbaum]