BETWEEN FREEDOM AND DUTY: HOW JEWISH LAW OF OBLIGATIONS MERGED BOTH
Abstract
In traditional Judaism, duties precede rights. This way of thinking about the law is deeply rooted in Judaism, both legally and religiously. Its origins can be traced back to the Sinaitic Covenant and the rise of debt-based Jewish identity. Jewish law of obligations is not contract, but obligation driven and derived from a unique understanding of freedom innately bound to its divine origin.
The theological origin of Jewish law influenced a specific understanding of freedom in Judaism. It was considered to be given by God and, thus, inalienable. In Judaism, vowing was burdened with the risk of committing a sin. Because Jewish law of obligations can be traced back to halakhic norms governing taking and releasing from oaths and vows, contracting away one’s future choices by promising was thought to threaten personal freedom.
Rabbinic disdain towards granting every agreement with legal protection resulted as well from fear of the debtor’s falling into servitude. Nonetheless, legally binding obligations were made possible by extending the meaning of monetary debt on other kinds of legal agreements in the process of creative rabbinic interpretation. The moment of becoming bound by a contract was also delayed as much as possible to avoid limiting one’s future freedom. The Talmudists must have changed their interpretation of some halakhic norms to make them applicable to the lives and commerce in greatly varied legal systems of countries in which Jews lived.
References
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Miqra according to the Masorah, Leviticus 25:42.
The William Davidson Talmud, Eruvin 64b:18.
The William Davidson Talmud, Nedarim 20a:10.
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