Page 27 - Jewish Book Annual Volume 27

Basic HTML Version

systems, the power to initiate entirely new legislation. However,
out of this serious disadvantage there have developed certain
special advantages. In modern legal systems, in the period be­
tween legislative creativity, the law is in the hands of the judges
to interpret, according to the specific cases that come before
them. These interpretations are “judge-made law.” In Jewish law,
since there is no legislative remedy, all the law is to be described
as “interpretative” or “judge-made law.” For this very reason the
power of interpretation has been especially well developed in
Jewish law, since it was the only practical instrument available.
This interpreting, keenly pursued over the centuries, has crystal­
lized into specific laws of interpretation (Kelalim) and is quite
an effective instrument which can be used with a fair degree
of efficiency in facing new and modern problems.
In fact, Jewish law has another advantage which tends to
counterbalance its lack of original legislative remedy: Its scope
is much wider than any other legal system. It includes matters of
food and dress, prayer, etc. It purposes to cover almost the totality
of life. Therefore, it possesses a vast and varied mass of material
which can be used as analogies, illustrating or exemplifying
a principle which may well apply to the new and modern
The inherited Jewish legal system, by virtue of its highly
developed skill in the art of interpretation and vast scope of
matters dealt with in its literature, covering almost all of daily
life, is therefore able to make up for its loss of the legislative
creativity and deal in a very interesting (and sometimes surprising)
way with some of the new problems which have arisen in modern
times. We shall consider a number of separate areas in modern
Jewish experience and note the creative way in which the author­
ities have dealt with them.
New Medical Procedures
The most dramatic changes in modern life have undoubtedly
derived from the accelerated progress in medicine. Perhaps the
first new medical procedure which impinged upon Jewish law
was blood transfusion. Human consumption of blood is forbidden
in Scripture (Leviticus 17:10, 11, 12): “Thou shalt not eat the
blood. . . ” On the basis of these verses there is a Christian sect
which refuses to accept blood transfusions. Occasionally a court
order has been necessary to authorize a doctor, against the wishes
of the parents, to transfuse a child in order to save its life. This
new medical practice has encountered no comparable opposition
in Jewish law. Patients who need blood transfusions are given
the status of “patients in danger,” and almost any medicine that
may be required is permitted them (Pesahim 25a and Hilkhot